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Salem University, Lokoja
College of Management and Social Sciences
Criminology and Security Studies Programme
CSS 409: The Role of the Public Defender in Criminal Justice
Lecture Material
By
ISIAKA HARUNA
The Objective of this course is to give students an Introduction and understanding on the Office of the Public Defender and the Roles which the public defender performs in Criminal justice, in Nigeria especially. An insight into the rights of citizens and causes the Public defender can fight for will be examined, as well as an evaluation of how effective the Nigerian Public Defender is. Course Outline Module 1: An Overview of the History of the Office of the Public Defender in Nigeria Module 2: Unit I: Functions of the Public Defender Unit II: Roles of the Public Defender Module 3: The Role of the Government and Courts Teaching Method This course will be taught in thirteen weeks via two hours contact period every week, ensuring that both theoretical and practical requirement of the course are judiciously dealt with. To facilitate the involvement of students, they will be advised to study the topic of each week before coming for lecture as questions will be asked randomly. Assignments will be given frequently as well as a compulsory term paper.
Assessment This course will be assessed through the administration of two continuous assessments (CA) which carries 40 marks. i.e a test for 20 marks and a term paper/ assignment for 20 marks. End of semester examination will attract 60 marks. Annotated Reading List MODULE 1 HISTORY OF THE OFFICE OF THE PUBLIC DEFENDER The Office of the Public Defender is a branch of the Ministry of Justice. In Nigeria was first established in Lagos state on 24 th July, 2000 by His Excellency, Gov. Asiwaju Bola Ahmed Tinubu to provide free and qualitative legal services to the indigent and oppressed residents of the state. Its major aim was and is to safeguard the fundamental human rights and freedom of vulnerable and disadvantaged groups through a strong and vibrant high quality, pro bono service, in collaboration with stake holders, nationally and internationally. It was established with a mission to provide qualitative legal aid through free representation in court and legal advice to promote respect for rights and freedoms, the law and constitution and to ensure that all persons resident in Lagos state irrespective of means, sex, tribe and religion have access to justice. Other states have since taken a cue from Lagos state and have established the office of the Public Defender, as a department in their respective Ministries of Justice. The Objective for this establishment was to create an avenue/forum that will be open to receive and legally deal with issues that affects the socio-economic rights of the indigent residents of Lagos state irrespective of tribal background. A public defender, according to Harvard Law School, is an attorney-at-law, appointed by the courts and provided by the state or federal governments to represent and advise those who cannot afford the services of a private attorney. MODULE 2 FUNCTIONS AND ROLES OF THE PUBLIC DEFENDER The office of the Public Defender Laws of Lagos State 2011 provides that: The functions of the Office of the Public Defender shall be to;
Defender. In most instances, the Public Defender has been known to take up such matters voluntarily without necessarily waiting for these children to bring petitions to their offices. This situation may not be unconnected to the fact that most children who are victims of child/forced labor are usually not aware of either the existence of their rights or a solution. III. Tenants; It is no longer in dispute that most tenants in Nigerian cities, especially Lagos have become victims of intimidation, exploitation, extortion and several forms of abuse by Sherlock landlords who, in their desperation to second vent the Rent Control laws resort to all sorts of illegal practices to squeeze out more money from tenants over and above the approved rent set by government. Most of these tenants now seek assistance from the Office of the Public Defender. IV. Employees; Instances where employees are taken advantage of by unscrupulous employers in violation of their contracts of employment or government standards regarding minimum wage, such employees have been noted to seek protection from the Public defender. In deserving circumstances, the office of the Public defender would either mandate between the parties or institute an action against such defaulting employers of labor in line with the relevant, appropriate labor laws. V. Fundamental Rights Violation Victims; it is now common place for innocent citizens to be arrested, detained and often times abandoned in detention centers/cells by officers of the law, especially the Police, who are, ordinarily under duty to protect the citizens. Some of these detainees end up languishing in such illegal incarceration due to their inability to afford the services of a lawyer. The office of the Public Defender in a view to guard against such unfortunate situations now carry out routine visits to Police Stations/Cells, Prisons and other detention centers used by Law enforcement agencies where there is clear evidence of abuse and or violation of the liberty of the citizens. The Public Defender, in line with the provisions of the law files an application for Fundamental Rights enforcement to secure the liberty of the citizen. The Public defender is expected to assist in the crusade to ensure the observance of Human Rights. Reason is because the majority of citizens whose rights are violated by public authorities do not have the means to engage the services of lawyers. Difficulties however arise regarding the description of the Public defender by individuals, especially in Nigeria. Uncertainty as to the level of confidence reposed on the officers of the office of the Public Defender. The reason may not be unconnected to the fact that the average Nigerian citizen,
especially in Lagos state which has pioneered the establishment of the Office of the Public defender is such that they are unable to completely trust the ability and willingness of the officers of the Office of the Public defender to confront officers of the state, and the fact of being public officers themselves. In the light of this development, it has become necessary for the state to insist on public awareness on the part of the citizens as well as continuing legal education on the part of the Public defender. In reality, the duties of the Public Defender include but are not limited to the following; a) To promote the ideals of the state regarding the welfare of the citizens. b) To exhibit that in working for the individuals, by way of representing the masses, they are by extension and necessary implication working for the state. c) To promote and ensure that the state gives priority to the observance of The Chapter II group of rights as enshrined in the 1999 constitution of The Federal Republic of Nigeria, as amended in 2011 in its policies and principles. d) To ensure compliance with the Chapter IV group of rights ordinarily referred to as The Fundamental Human Rights in the 1999 constitution. e) To act as a check on the state and all authorities there-in to avoid an abuse of state powers. Beyond these rights, subsumed and provided for in the constitution which has already been compartmentalized into The Chapter II group of rights with focus on the fundamental objectives and directive principles of state policies on one hand, there is also The Fundamental human Rights on the other hand, sometimes referred to as the Chapter IV group of rights. The Public Defenders are expected to be Vanguards of the emerging set of rights, regarding freedom of lifestyles, sexual orientation and to engage in legitimate business. It is now settled that the major role of the Public Defender revolves around the protection of Human Rights. Difficulties however arise as to the exact scope of what constitutes human rights. This problem may not be unconnected to the fact that a causerie look at Section 46 of the constitution of the Federal Republic of Nigeria provides for the protection of all rights contained therein, the implication strictly written, is that the Marginery distinction or compartmentalization of the rights of individuals into Fundamental Human Rights on one hand, and
pronouncements must set the stage for a level playing ground before the Public Defender can effectively carry out his duties. The following are the most obvious of these roles/duties.
- Security and Welfare of the Masses; The primary duty of every government is to ensure the security and welfare of its citizens. It is only when government is committed to realizations of these goals that the stage will be set for the Public Defender to effectively achieve societys expectation from him.
- Equal rights, Justice and equality before the Law; For the Public defender to effectively discharge his duties, the constitutional guarantees regarding Equal rights, Justice and Equality before the law, must be encouraged by the government at all levels. Where therefore, the government, either by action or omission gives the impression that there is inherent inequality among its citizens, the duty of the Public Defender becomes cumbersome.
- Dignity of the Human Person; The Fundamental Right to dignity of the individual appears to be a major foundation upon which the responsibility or duties of the Public defender rests. In ensuring the observance of this right to dignity, the courts have a duty to raise issues regarding rights of individuals with the view to ensuring they are not trampled upon. This is in recognition of the fact that the Public Defender cannot achieve any meaningful success if the court does not hold the dignity of the individual as sacred.
- Laws and the administrative mechanisms must be humane; For there to be any hope of the Public defender achieving any meaningful success, in his line of duty, the laws and the administration of same must be conducted by the court with a human face. The implication is that the court must prioritize the desire to secure the enjoyment of basic rights by the citizens. Any situation therefore that seeks to deny the citizens any of their rights should be interpreted strictly. The courts on their part must show that they are indeed independent.
- The courts should act as Umpire; Further to the requirement of the independence of Courts/Judiciary, the courts in the discharge of their duties must act as Umpires. The implication is that the Judiciary must stand firm and defend the constitution without any indication of bias. This is the standard both in domestic and international law situations. The Attitude of the Courts towards technicalities in Human Rights
Ordinarily, in the course of litigation, Lawyers have a habit of raising objections, sometimes unnecessarily, taking adjournment often designed to delay cases and generally, making deliberate effort to confuse their client, the court and the public. The position of the law encourages strict adherence to the rules of procedure and technicalities. The practical implication of all these is that more often than not, slavish adherence to technicalities and the rules of procedure end up delaying and even defeating the aim of justice. This position is predicated on the fact that Justice delayed is in law and reality, Justice denied. With particular reference to Human Right situations, the court have consistently maintained that the need to expedite the cause of Justice is not just paramount but overriding and as such should be prioritized over adherence to procedure. This may naturally enhance the success and performance of the Public defender. Some Judges have thus insisted that the desire to protect and preserve Fundamental Rights and the liberty of the citizen should always be the major focus of the courts in Human Rights cases, where therefore there is an obvious conflict between the rules of procedure and by extension, technicalities on one hand and the aim of doing substantial justice on the other, the courts must make the difficult choice of doing justice, and sacrificing procedure on the altar of Justice. The rationale for this position appears to stem from the fact that rules are made for man and not the other way round. The result is that faced with situation, the Judge may; a. Maneuver his way around the rules, or b. Manipulate the rules to achieve the major objective of the law, which is Justice. This position appears to be in consonance with the understanding that the rules of the court are not equivalent of statues but inferior to the later. This Judicial attitude, which received the endorsement of Lord Denning in the English case of The Family Story appears to have been accepted by Nigerian courts and has been adopted and followed in the following cases- i. Oodua Investment vs Tolabi ii. Abdullahi vs FCA Homes iii. Duke vs Akpabuyo LGA iv. Steel Keys vs Government of Cross River State. The Role of Non-Governmental Organizations(NGOs), Civil Liberty Organizations(CLOs) and Intergovernmental Organizations(IGOs).
