Amos O Enabulele*
Mercy Olatayo**
“What was most concerning is the government’s continued failure to account for the social and economic costs of the unwholesome practice of unwarranted awaiting‑trial detention. The government must come to terms with the reality that whenever an economically active individual is detained for a bailable offence — or, worse still, for an offence that does not exist — society ultimately bears the social and economic burdens”.
On 24 March 2026, the legal team of the Centre for Community Law – Michael Agbo, Esq (leading), Ubose Olorunfemi, Esq, and Chioma V.M Okeke, Esq, – argued a public interest action before the ECOWAS Community Court of Justice in Suit No. ECW/CCJ/APP/05/25 between Centre for Community Law v. The Federal Republic of Nigeria. The case brings to the fore the human rights and economic dimensions of Nigeria’s now illegal “awaiting trial” mechanism, challenging the systemic delays and structural inequalities that continue to undermine access to justice across the country.
The legal bases for the case are the African Charter on Human and Peoples’ Rights, 1981; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; and the Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security.
The Center argued that the right to presumption of innocence and the legislative provisions relating to bail, being Siamese twins in the criminal justice system are grossly violated in respect of persons who are detained without trial, especially those charged with bailable offences who sometimes even end up spending more time in prison custody than the time prescribed for the offence if tried and convicted and even more profoundly those detained for offences that do not exist.
While acknowledging the right of the Nigerian State to enforce its criminal justice system, which is needed for orderliness and protection of lives and property, the Centre argued that is not within the gift of the State to use its coercive powers to keep suspects in prison custody for a significant length of time even up to or beyond the prescribed sentence, if the person were tried and convicted within a reasonable time.
It also argued that the converse of the violation of the rights of the individual directly affected by the incarceration is the violation of the rights of the collective to access public service under article 13(5) of the African Charter and other treaties cited above, as the resources spent on the upkeep of accused persons who should not be in prison is a diminution of the resources that is available to the Government for the wellbeing of the people.
It, therefore, among others, sought the following reliefs from the court:
A declarationthat the actions of the Respondent and its agents in incarcerating accused persons without trying them within a reasonable time is unlawful and a violation of their fundamental rights, including the right to presumption of innocence, the right to dignity, the right not to be subjected to cruel inhuman treatment.
A declarationthat the actions of Respondent and its agents in incarcerating accused persons without trying them within a reasonable time is a violation of the duty of the Respondent to prevent torture and to provide good governance for the people who are deprived of essential services to the tune of money used to maintain, in prison custody, individuals who should not be in prison, but being on bail, and should be contributing their quota to economy of the Nation, is incongruous to the treaty obligations of the respondent.
An orderthat the Respondent direct its agents to take all necessary steps to review the situation in its prisons with a view to releasing on bail or permanently anyone who is entitled to bail under its criminal law and practice, especially those whose prescribed punishment, if convicted, has been exceeded in prison custody whilst awaiting trial.
An orderdirecting the Defendant to put machinery in place (including for compensation where appropriate) to reintegrate the affected individuals into society.
Background to the Case
The case was informed by a 2025 study conducted by the Centre for Community Law. The study highlighted a persistent and deeply troubling trend: year after year, official records show that the number of detainees awaiting trial in the Nigeria Correctional Service (NCS) custody consistently exceeds the number of convicted inmates serving prison terms. The report considered that this pattern reflects a systemic challenge within the criminal justice process and underscores the urgent need for reforms that address delays, congestion, and access to justice.
These records relied upon are grounded in statistics published by the NCS and the National Bureau of Statistics (NBS).
Nigerian Correctional Service
The Nigeria correctional service is the agency that manages prisons in Nigeria. It publishes periodic data on prison population. The study relied on the NCS data of 23 December 2024, as later updated on 12 May 2025, both of which were published on its website.
In the December 2024 report, the total prison population was 79, 237 out of which only 26, 718 (34%) were convicts, while the number of inmates awaiting trial was 51, 232 (66%). By the time it published its 12 May 2025 report, the number of awaiting trial detainees had increased to a staggering 54,023, still representing 66% of the total inmates of 81,254, as against 27, 231 (34%) who were convicts.
The report found that the upward trend in the number of awaiting-trial inmates is not an isolated occurrence; rather, it reflected a consistent year-on-year pattern within the Nigerian correctional system.
Because the NCS does not publish the relevant historical data on its website, the study relied on statistics from the NBS, whose records extend back to 2011. These records confirmed the deeply worrying pattern: a consistently high year-on-year number of awaiting-trial inmates, exceeding actual convicts, across the country. What is even more worrying is the nature of crimes for which some of the inmates are being detained in prison custody.
Nigerian Bureau of Statistics
The NBS data confirm the trend of the number of awaiting-trial inmates exceeding convicts serving prison terms: in 2011, awaiting-trial inmates were 35,331; in 2012, it was 36,451; in 2013, it was 38, 024; in 2014, it was 38,888; in 2015, it was 45, 158. During the same period, the overall prison population was 49,481 in 2011; 52,136 in 2012; 55,020 in 2013; 56,058 in 2014; and 65,033 in 2015; and 68,686 in 2016.
The NBS also provided statistics of what it classed as prison admissions. In 2013, the number of awaiting trial inmates was 93, 849 of a total of 158, 896 inmates; in 2014, it was 84, 259 out of 138, 842 inmates; in 2015, it was 78,791 out of 124785 inmates and in 2016, it was 84,404 out of 142, 848. These figures underscore the persistent imbalance between pre-trial detainees and the total custodial population.
This becomes particularly disturbing when the study found that the nature of the offences for which individuals are remanded further underscores the government’s and the judiciary’s lack of appreciation of the broader societal impact of the awaiting‑trial system. Many detainees are held for minor, bailable, or even non‑existent offences, revealing a troubling disconnect between remand decisions and the real‑world consequences these decisions impose on families, communities, and the nation at large.
Drawing from the NBC statistics, the study was particularly concerned by the nature of criminal allegation for which some of the inmates were detained. For instance, the study found that:
those who were in prison custody for debt were 646 inmates in 2013; 934 inmates in 2014; 655 inmates in 2015 and 751 inmates in 2016;
– for assault, it was 8,982 inmates in 2013; 7,657 in 2014; 8,780 inmates in 2015 and 9,754 inmates in 2016;
-for sedition, 188 persons were in custody in 2013; 170 in 2014; 36 in 2015 and 90 in 2016. Stealing constituted an even larger proportion of admissions: 50,436 inmates in 2013; 46,876 inmates in 2014; 38,300 -inmates in 2015 and 47,702 inmates in 2016.
-for sex offences, recorded figures were 5,797 inmates in 2013; 4,436 inmates in 2014; 3,786 inmates in 2015 and 4,148 inmates in 2016; and
-for affray, the figures were 1,012 inmates in 2013; 864 inmates in 2014; 1,558 inmates in 2015 and 1,037 inmates in 2016.
The study considered it necessary to examine the provisions of Nigeria’s penal legislations to determine the prescribed punishment for these offences to assess whether those offences are, in fact, bailable. This review was essential for understanding the extent to which individuals are being remanded for offences that either do not warrant detention or for which bail is legally available. We considered the relevant provisions of the two penal legislations applicable in Nigeria – the Criminal Code and the Penal Code – and thereafter considered the Administration of Criminal Justice Act, 2015.
Assault
The study began by noting that there are different categories of assault to which different degrees of punishment are prescribed, according to their nature and gravity.
Under the Criminal Code applicable in Southern Nigeria, section 351 provides that common assault is a misdemeanour punishable by one year imprisonment; section 355 prescribes three years imprisonment for assault occasioning harm; section 356 provides three years imprisonment for serious assaults, including assault on a peace officer; section 353 prescribes three years imprisonment for indecent assault on a male; section 360 prescribes two years imprisonment for indecent assault on a female; and section 352 prescribes fourteen years imprisonment for assault with intent to commit an unnatural offence.
Under the Penal Code, applicable in Northern Nigeria, sections 264–268 regulate assault and criminal force, with section 265 prescribing up to one year imprisonment or fine or both for criminal force or assault; section 266 prescribes up to two years imprisonment or fine or both for assault to outrage modesty; and section 267 prescribes up to three years imprisonment or fine or both for assault to deter a public servant.
Under both penal regimes, assaults, even the most serious ones are generally bailable, subject to the discretion of the court. In any event, the Centre thought it was safe to take the view that the NBS statistics relates only or predominantly common assault, which is a misdeamenour and carries only a one-year imprisonment on conviction. This assumption is based on the fact that the NBC simply used the word “assault” without more.
Sedition
More shocking is the revelation regarding the continued detention of citizens for sedition which is no longer known to our laws. Thus, although sections 50 and 51 of the Criminal Code create the offence of sedition, the provisions have been judicially declared unconstitutional in Arthur Nwankwo v. The State (1985) on the ground that they are inconsistent with the constitutional guarantee of freedom of expression. Thus, while they remain in the statute books, they are no longer enforceable in a constitutional democracy, yet the government in a democratic system of government is yet holding citizens in prison custody for sedition.
Stealing
We bear in mind that the statistics did not reveal the nature of stealing for which the affected inmate was being detained and therefore made no assumptions in this regard. However, we were mindful that accused persons have been detained in prison custody in the past for petty theft.
Under section 390 of the Criminal Code, stealing is a felony punishable by three years imprisonment where no specific higher punishment is prescribed, while aggravated forms under related provisions attract up to seven years imprisonment or, in limited cases such as stealing wills or postal matter, life imprisonment.
Under the Penal Code, Section 287 provides that theft is punishable by up to five years imprisonment or fine or both, while sections 288 and 289 prescribe up to seven years imprisonment for aggravated theft. As these offences are not capital offences, they are bailable, subject to judicial discretion.
Sex offences
Again, the data did not say the nature of sex offences for which the detainees were detained and the study made no assumptions on the nature of offences.
Under Section 357 of the Criminal Code, rape is defined, and Section 358 prescribes life imprisonment as punishment. Section 353 prescribes three years imprisonment for indecent assault on a male, while Section 360 prescribes two years imprisonment for indecent assault on a female. Section 214 prescribes fourteen years imprisonment for unnatural offences.
Under the Penal Code, Section 283 defines rape and Section 284 provides punishment which may extend to life imprisonment or a lesser term with fine; Section 285 and related provisions address other forms of sexual misconduct. In jurisdictions where the Violence Against Persons (Prohibition) Act applies, Section 1 prescribes a minimum of twelve years imprisonment and up to life imprisonment for rape. Given the gravity of these offences and the severity of the statutory penalties, bail is treated with extreme caution and is generally not granted at the administrative level, with courts imposing stringent conditions, where considered appropriate.
Affray
The carelessness with which the administrators of the criminal justice system approach their work is grossly manifest in the fact that there are persons in prison custody for affray, considering the fact that due to the slow pace of the criminal justice system in Nigeria, it may take more than a year for their case to be called and much longer time for it to be decided.
Under Section 83 of the Criminal Code, any person who takes part in a fight in a public place is guilty of a misdemeanour punishable by one year imprisonment. Comparable provisions under the Penal Code relating to disturbance of public peace, including Section 113, prescribe up to one year imprisonment or fine or both. As misdemeanour, such offences are ordinarily bailable.
The study observed that the legislature has, in fact, acknowledged this unwholesome practice and taken deliberate steps to safeguard the rights of accused persons through the enactment of the Administration of Criminal Justice Act, 2015. To that extent, the study locates the violations currently recorded at the doorstep of the executive and the judiciary, the judiciary being most culpable in the perpetuation of the violations.
The study drew on section 158 of the ACJA, which affirmed the entitlement of accused persons to bail. It further drew on section 162, under which a defendant charged with an offence punishable with imprisonment for a term exceeding three years shall, on application to the court, be released on bail except if:
there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;
they will attempt to evade his trial;
they will attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;
they will attempt to conceal or destroy evidence;
they will prejudice the proper investigation of the offence; or
they will undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.
The study noted that the foregoing provisions and the conditions attached thereto are applicable only to offences carrying prison terms that exceed three years, to the exclusion of those attracting lesser terms, which are covered in section 163. Section 163 states that defendants in such offences are entitled to bail, unless the court sees reasons to the contrary.
This, in the finding of the study, means that those charged with common assault, sex offences attracting less than three years’ custodial sentence, and affray cannot just be sent to prison custody as a routine practice, but there must be very strong justification, which the magistrate must determine and evidence in the records for sending them to prison.
The study also noted, regarding offences that attract over 3 years prison term – section 162 – that the magistrate must satisfy himself or herself that the conditions for remand are fulfilled.
The study noted that, the safeguards of the above provisions notwithstanding, the legislature decided to provide further safeguards by setting detention time limits. Under sections 293 and 295, a magistrate court may remand an accused person who is charged with a crime which the magistrates’ court has no jurisdiction to try under section 293, or grant him or her bail under section 295 in reliance on sections 158 to 188 referenced above.
If the magistrate remands a suspect under section 293, the magistrate must observe the mandatory requirements of section 296, which sets a time limit of remand for a period not exceeding 14 days in the first instance and requires the magistrate to make an order for the suspect to be returnable to the court within the same period. The magistrate can extend the remand for another period not exceeding 14 days only where good cause is shown why there should be an extension of the remand period.
The study took cognizance of the provisions of section 296(3) that where the suspect is still in custody on remand at the expiration of the period after the second period, not exceeding 14 days, has elapsed, the court may, on application of the suspect, grant bail in accordance with the provisions of sections 158 to 188 of the Act.
Where, however, under section 296(4), the trial has not commenced at the expiration of the second 14 days (28 days), or a charge has not been filed at the relevant court having jurisdiction, the magistrates’ court is obligated to issue a hearing notice on any relevant authority in whose custody the suspect is, or at whose instance the suspect is remanded, and adjourn the matter within a period not exceeding 14 days of the expiration of the period of 28 days to show cause why the suspect remanded should not be unconditionally released. The court may extend for the final 14 days and make the case returnable for the same period. But where a good cause is not shown for the continued remand of the suspect, or where the suspect is still in remand custody after the expiration of the extended period, the court shall, with or without an application to that effect, discharge the suspect, and the suspect shall be immediately released from custody. The court is precluded from entertaining any further application for remand after the final period not exceeding 14 days has been granted and exhausted.
The study noted, sadly, that these helpful and progressive provisions of law laid down by the legislature are being routinely ignored by law enforcement officers, the judiciary, and prosecuting agencies of government.
Lack of Adequate Welfare Provisions
In addition to the above, there is the broader systemic problem of inadequate inmate welfare, particularly in the areas of feeding and hygiene. The study drew attention to the appalling revelations that emerged during the 2025 Senate budget defence hearing, which further exposed the depth of neglect within the correctional system. In 2025, the federal government earmarked ₦1,125 for the daily feeding allocation per inmate, despite prevailing economic realities, raising serious concerns about adequacy and transparency. I fact, the 2025 senate budget hearing revealed that the feeding allocation per inmate was significantly lower than ₦1,125.
The study found that another piece of the puzzle of poor welfare is congestion, because the carrying capacity of existing facilities is often exceeded. For instance, the system had a capacity of 47,286 in 2012 but had a population of 52,136; in 2013, it was 47,646 but had a population of 55,173; in 2014, it was 49,825 but had a population of 56,059; and in 2015, it was 50,153 but had a population of 62,260. This persistent mismatch between population and capacity results in chronic overcrowding — a condition that is profoundly detrimental to the health, dignity, and overall wellbeing of inmates.
Considering that the prison population has, year after year, exceeded the capacity of available custodial facilities, Nigeria simply does not have the luxury of keeping accused persons in detention for its own sake. No society deserves a criminal justice system that is structured to deprive citizens of their constitutional right to liberty without lawful justification. Yet, as the data demonstrates, key actors within Nigeria’s criminal justice architecture — judges, ministries of justice, and law‑enforcement agencies — remain consistently inclined toward the incarceration of accused persons, often without due regard for the balancing act that needs to be done between the right to personal liberty and the nature or gravity of the offence charged, or even the broader societal consequences.
The study noted that there were views that many of the awaiting‑trial inmates spend more time in prison custody than the prison term prescribed by law for the offence(s) for which they are charged. The study also noted the appalling revelation made by Senator Adams Oshiomhole during the aforementioned 2025 Senate budget hearing that some of those people in prison did not actually commit any crime but were there courtesy of big men and big women who “want to teach them a lesson”. The study also noted the information provided to the public by Senator Adams Oshiomhole that inmates are either not fed or are fed once a day, miserably, stating that the ordinary Nigerian leaves the prison completely emaciated and that some cannot live a decent life again.
The case highlights fundamental issues of human rights violations, not just of the direct victims (the detainees), but of the fact that the violation indirectly affects everyone in Nigeria (citizen or resident), insofar as the inmates are maintained by budgetary allocations that would have been used to provide critical infrastructure and services. It also raised the wider impact of everyone being a potential victim of unlawful detention.
What was most concerning is the government’s continued failure to account for the social and economic costs of the unwholesome practice of unwarranted awaiting‑trial detention. The government must come to terms with the reality that whenever an economically active individual is detained for a bailable offence — or, worse still, for an offence that does not exist — society ultimately bears the social and economic burdens.
Concerning the social costs, the children and other dependents of detainees suffer significant deprivation: children lose parental care and guidance; spouses lose companionship and financial support; and parents and other relatives lose both financial assistance and essential support services. There are also wider societal costs arising from the loss of the professional services and economic contributions of detainees who are unjustifiably held in custody. While the immediate burden falls on these families and dependents, the long‑term consequences are ultimately borne by society as a whole.
On the economic side, while the immediate family and dependents of detainees bear the direct financial burden, the wider society ultimately absorbs the indirect costs in multiple ways. The first and most obvious cost is the expense of feeding and maintaining a detainee in custody, currently set at ₦1,125 per day. Whether this amount is actually expended on detainees – given the well‑documented leakages caused by corruption – is an open question the study did not need to explore.
When this daily cost is applied to the 51,955 individuals awaiting trial in the period covered by the last data released by the NCS, the country spends Fifty‑eight million, four hundred forty‑nine thousand, three hundred seventy‑five naira (₦58,449,375) every single day on their upkeep. Annually, this amounts to Twenty‑one billion, three hundred thirty‑four million, twenty‑one thousand, eight hundred seventy‑five naira (₦21,334,021,875). For context, this figure exceeds the annual overhead allocations of several federal ministries and agencies.
The second major economic cost is the loss of productivity. By detaining economically active individuals — many for bailable offences or offences unknown to law — the country deprives itself of their contributions to national output and GDP. This represents a silent but significant drag on economic growth and societal wellbeing.
The study particularly noted that the prison population is overwhelmingly under 50, which (for the innocent ones or those who are not dangerous top society) shows that the country is locking away people who are in their most economically productive, socially formative, and family‑building years. That single demographic fact becomes an indication of the broader structural failures—because it means the state is absorbing, warehousing, and ultimately wasting the very cohort that should be contributing to national development.
As at the time of the report in 2025, Nigeria’s GDP per capita (individual) was estimated at approximately $1,200 to $1,380 per year in nominal terms, and this remains the same in 2026. What this means is that Nigeria is deprived the sum of $1,380 per individual detainee per year. If we multiply this by the number of awaiting trial detainees as of 12 May 2025 (54,023), we will arrive at the sum of $74,551,740 per annum.
It was based on this study that the Centre decided to invoke the jurisdiction of the ECOWAS Court as a public‑interest litigant, given the number of the populace—citizens, residents, and those in transit—who, apart from being potential victims of detention on awaiting trial, are also deprived of the scarce resources that should be used to provide critical services to the people.
The Centre remains firmly resolved to pursue this issue through sustained advocacy and strategic litigation until judges and policymakers begin to take the rights of accused persons seriously and fully appreciate the profound social and economic costs of their decisions.
*Professor of Public International Law & Executive Director, Centre for Community Law
**Law Graduate/Researcher
(c)Centre for Community Law
