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BACKGROUND TO STUDY
On the general issue of imprisonment as an aspect of punishment, the retributivists and the deterrent philosophers’ stress that a deviant should be punished in order to pay him back for his actions and to deter him or others from committing crime. Imprisonment is most appropriately conceived as a formal perspective of inflicting pain on the individuals, which has been an aspect of the traditional criminal justice system in various societies in Nigeria. While imprisonment is a rescription, prisonization is the process of living within a confinement known as a prison.
A prison according to Mc Corkle it is a physical structure in a geographical location where a number of people live under highly specialized conditions utilize the resources and adjust to the alternatives presented to them by a unique kind of social environment that is different from the larger society in so many ways. Obviously, there are basic social and cultural characteristic that are present in the prison community and other total institution alike, which do not exist in the larger society. The prison community with its distinct culture and way of life epitomizes a complete design capable of changing the attitudes of individual members for good or bad depending on the personal experience and the social net-work action. The way of life in the prison provides the means and ways for the adjustment processes of inmates. Its culture is a dynamic one, which consists of all sorts of value reorientation and internalizations.
The Nigerian prison system was established in accordance with three forms of penal legilation which operate alongside each other in the country; the Penal Code and the accompanying Criminal Procedure Code4 Cap 81 Laws of the Federation 1990 (CPC); the Criminal Code and the accompanying Criminal Procedure Act Cap 80 Laws of the Federation 1990 (CPA) and the Sharia penal legislation in 12 northern states (which applies to only Muslim members of these states). By its establishment philosophy, the Nigerian prison service is an institution meant to administer penal treatment to adult offenders. Its importance is in the bid to reduce crime in the society. On the basis of imprisonment policy, the prison service was established to manage criminals in prison yards. This constitutional function empowers the Nigerian prison operatives to:
- keep convicted offenders (prisoners) for safe custody,
- keep awaiting trial inmates in custody, until law courts ask for their production
- punish offenders as instructed by the law courts
- reform the convicted prisoners
- rehabilitate and to re-integrate prisoners who have completed the sentences in the prison (extract from prison training manual)
- Inferring from the above, the main aim of establishing the prison institution in all parts of the world including Nigeria is to provide a rehabilitation and correctional facility for those who have violated the rules and regulations of their society.
From available statistics, there are 227 prisons in Nigeria, spread across the six geo–political zones of the country. Available literature shows that these prisons, most of which were built by the colonial government, harbour more untried inmates than those properly convicted, some of which include children and women. The facilities are dilapidated and most of the inmates have no access to justice, and the facilities are in a state of decay. The prisons’ congestion is a serious affront to human rights. In pre-trial cases, nationwide, most detainees have no legal representation, case processing is slow, remand periods are exceeded, charge sheets frequently get lost and many cases lack the necessary evidence to prosecute them, making a mockery of a five-year wait for a trial that can only end in acquittal. In Nigeria, prisons are grossly congested. Records have it that they are overcrowded to a capacity of as much as 250%. Kirikiri Maximum Prison for instance, built for 956 prisoners is occupied by over 2,600 inmates, the majority of whom are awaiting trial.
Prison overcrowding is a major concern of the Nigerian criminal justice system. Remand prisoners account for a substantial contribution to the problem of congestion in Nigerian prisons. A greater part of awaiting trial detainees in the prisons are held under the holding charge10 and many have spent up to ten years awaiting trial.
Statement of Problem
For a long time, Nigerian prisons have been centres of human rights abuses. People are detained unlawfully for as long as the police want. Nevertheless, in spite of the sad fact that prison congestion has become a “national embarrassment”, not much has been known about the issue of prison decongestion in law textbooks in the country. A careful research and perusal of our books have unearthed the sad reality that our libraries do not contain much information about prison decongestion. Prison congestion can be said to result if the number of prison inmates in a prison yard exceeds the number it is originally meant to accommodate, leading to inconveniences on the inmates as well as difficulty of control on the authorities concerned. Prison decongestion thus means the reduction in the amount of inmates. Reduction of the inmate intakes in prison to the
available space becomes necessary if one looks at the inconveniences obtainable, to the inmates, the authority and the public. Little wonder, disease spread, violent break up of prisons and general public fear occurs, negating the essence of prison for reformation.
In a public discourse organised recently by the “Detainees and Indigent Help Centre”, resource fellows identified undue delay in criminal trial as one of the causes of prison congestion. This is more so because the cases of awaiting trial detainees are not disposed of in a good time. The forum further observed that where advice is sought from the Director of Public Prosecution, it may take months or even years to obtain because of the bureaucratic bottleneck in the administration of justice and administration in Nigeria.
Having considered the current dilapidating state of Nigerian prisons it suffice to note that the Criminal Justice (Release From Custody) (Special Provisions) Act has empowered the state chief to release prisoners. In this act Judges can only under two conditions there are:
(a) detention of that person is manifestly unlawful; or
(b) person detained has been in custody, whether on remand or otherwise, for a period longer than the maximum period of imprisonment which the person detained could have served had he been convicted of the offence in respect of which he was detained, the Chief Justice or the Chief Judge may issue an order of release to the officer in charge of the prison and such officer shall on receipt of the order release the person named therein.
However some authors have cited the use of the provision for this act for the sole reason of prison decongestion. This has raised the controversy whether or not the act is abused or completely utilized to prevent justice abuse.
OBJECTIVE OF THE STUDY
Having considered the concept of prison and imprisonment as the background to this study, the general objective of the study is to assess the powers of state chief judge in prison decongestion. Therefore this study highlights the current state of congestion in Nigerian prison, the causes of this congestion and the powers of chief judge and need for judicial discretion geared towards prison decongestions.
The research questions to guide this dissertations includes:
- What is the current state of population in Nigerian prisons?
- What provision of the criminal law allows for the use of discretion by the chief judge?
- How can the special provision act in criminal law improved the overcrowded state of Nigerian prisons?
SCOPE OF THE STUDY
The enormity of the subject matter has led to the selection of some aspects of our criminal laws in Nigeria. In general, reference is made to criminal justice system in Nigeria and the special provision act, powers of the chief judge and the state of Nigerian prisons.
SIGNIFICANCE OF THE STUDY
In this regard our significance of study will be both on the theoretical levels and practical levels. Theoretically, this study seeks to highlight and widen scholarly perceptions of the state of Nigerian prisons, practically, the study will be a response to the intellectual challenges involved in the special act provision of the Nigerian criminal law.
Also this study will be of vital importance to scholars on human right affairs, Nigerian law and criminal studies researchers serving as a further take off point for future inquiry in the study under review.
The study is more descriptive than analytical. An assessment the powers of state chief judge in prison decongestion and the current state of overcrowding in Nigerian prisons were carried out. The information relied on for these works are sourced from primary and secondary sources. In this connection, criminal justice system among others serve as major primary source. The secondary source include-materials on the internet, books, essays, journals and articles published on the subject matter together with the opinions of the courts in judicial decisions. Information is also sourced from the libraries of other institutions like The Nigerian Prisons Service Headquarters and Nigeria Institute of Advanced Legal Studies.
The concept, prison has been a subject of debate among various scholars in the social science disciplines. The concept has been treated from various perspectives, which include structural and functional dimensions. For instance, McCorkle and Korn (1954) described a prison as a physical structure in a geographical location where a number of people living under highly specialized condition adjust to the alternatives presented to them by the unique kind of social environment. Similarly, Sykes (1958), conceived prison as where people are highly secluded from the rest of the world with entirely new order of control. The above conceptualizations as advanced by scholars are limited towards an understanding that a prison is a physical environment, and could be described geo-graphically or spatially.
Quite different from the physical conception, there are other schools of thought that are based on function, framework and label. From the functional perspective, a prison is perceived as a place to punish offenders, where criminals that are removed from the society are dumped to protect the society from further criminal activities of the offenders; and a palace to rehabilitate, and teach offenders to be law abiding and productive after their release. Prisons are also perceived as a total institution, from the per-spective of framework. Okunola (1986) and Goffman (1961) variously defined the concept in this manner. While Okunola sees a total institution as a place unlike free environment or community that houses those who are socially rejected, insane or mentally retarded, Goffman on the other hand conceptualized total institution as where there is a basic split between a large class of individuals who are restricted contact with outside world and stereotypical behavioural pattern where social mobility is restricted. Yet from the labeling point of view, the prison is a place for vagrants, who may pose actual danger to social life in the larger society, which pre-supposes that every person in the prison is a vagrant and irresponsible person. This is the position of Howard (1960) who demonstrated his view with what obtained during the ancient Greek times. Perhaps this concep-tualization by Howard is rekindled in the at-titudes of “Mr . Political Leaders” towards prisoners, who they regard as the “dregs” of the society. Yongo27 (2000) commenting on the past neglects meted to the poisons by past leaders noted.
 Obioha 2002 The Prison Service And Penal Reform in Nigeria: A Synthesis Study For the Safety, Security And Access to Justice Programme of the Department for International Development (DFID), PRAWA: Lagos at page 13
-  Mc Corkle Baseline & Impact Assessment of the Prison Decongestion and RE-entry Scheme (PDRS) – A Project funded by Security, Justice and Growth (SJG) Programme/DFID) PRAWA: Enugu at page 4
 Obioha U.R et al (1995) opcit at pages 12-25
-  cited in Adetula et al. 2010 Decongersting The Nigerian Prisons And Police Cells: A Handbook of Practical Strategies for the Remand Population, PRAWA: Lagos at pages 2 – 3
 Nigeria National Prison Audit Report 2007-2008
 However 133 prisons was reported as visited during the National Prison Audit Report 2007-2008, conducted
by the National Human Rights Commission in partnership with UNDP, NORAD et al
 Ibid at pages 8 – 9
 nweze A et al (2009), Baseline & Impact Assessment of the Prison Decongestion and RE-entry Scheme (PDRS) – A Project funded by Security, Justice and Growth (SJG) Programme/DFID) PRAWA: Enugu at page 4
Agomoh U (1996), Decongersting The Nigerian Prisons And Police Cells: A Handbook of Practical Strategies for the Remand Population, PRAWA: Lagos at pages 2 – 3
 Ehonwa O.L and Odinkalu A.C (1991), Behind the Wall: A Report on Prison Conditions in Nigeria and the Nigerian Prison System, CLO: Lagos
 Agomoh (1996), Op cit at pages 51 -65
 Nigeria Bar Association (2007), National Needs Assessment for the Justice Sector, Nigeria BarAssociation: Lagos at page 42
 OECD (2007), OECD DAC Handbook on Security System Reform – Supporting Security and Justice, OECD: Paris at page 205
Atsenwa A (2007), ‘Criminal Justice Reforms in Areas of Bail, Remand and Sentencing’, In: Reforming for Justice: A Review of Justice Sector Reforms in Nigeria 1999 – 2007, Access to Justice: Lagos at page 107
 Ibid at 41 -44
 Mc Corkle L, Korn R 1954. Resocialization within walls. The Annuals of American Academy of Political
Science, 293 (1): 88-98
 Sykes G 1958. The Society of Captives. Princeton: Princeton University Press.
 Okunola R 1986. Institutional Treatment and Social Stigma A Comparative Study of Amanawa Leprosarium and
Sokoto Prisons. Sokoto: F. S. S. A Research Publication, University of Sokoto.
 Goffman E 1961. Asylums. New York: Garden City Anchor Books.
 Howard DL 1960. The English Prisons: Their Past and their Future. London: Butler and Tarmer Ltd.
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