Empathy and action: women and girls in carceral settings
Hon. Justice Kudirat M.O. Kekere-Ekun, CFR
Justice, Supreme Court of Nigeria
President, National Association of Women Judges Nigeria (NAWJN)
8th March 2024
I extend my warm greetings to the International Association of Women Judges (and its affiliate Associations) as well as members of the National Association of Women Judges, Nigeria (NAWJN) on this 3rd occasion of the celebration of the International Day of Women Judges. There is no doubt that women Judges play a vital role in the dispensation of justice and in the social fabric of the society. Women Judges bring diversity to the Bench and make it more representative. The society has more confidence in the administration of justice where it sees itself adequately represented. It is also correct to state that although every Judge swears an oath to do Justice according to law, we each bring a unique perspective to adjudication that enriches the outcome.
We recognize and appreciate that the 10th of March every year is a special day set aside to celebrate women Judges as part of a global effort to ensure gender equality and to strengthen the judiciary and judicial integrity. The goal is to promote the full and equal participation of women at all levels in the judiciary (see unodc. org). It also serves as a source of encouragement for young girls and women aspiring to become Judges in the future.
The IAWJ has deemed it fit to raise an interesting topic for our consideration while celebrating this auspicious event: Empathy and Action: Women and Girls in Carceral Settings. The central theme is: “What happens when the prisoner is also a mother?” It cannot be gainsaid that the plight of women and girls in carceral settings, especially mothers, is often overlooked. Statistics reveal that in Nigeria, women constitute about 2% of the prison population, with the largest number of 1,789 being awaiting trial females (ATF). There are currently 433 convicted females (CVF), while 73 are on death row (DRF) (corrections.gov.ng Nigerian Correctional Service Summary of Inmate Population by Convict and Awaiting Trial Persons, 4th March). The most common offences for ATF and CVF are child trafficking, criminal breach of trust and cheating, theft/stealing, kidnapping, unlawful possession of firearms and culpable homicide.
The involvement of women in crime can be attributed to a number of factors such as unemployment, low wages, divorce, separation, economic and psychological abuse from a spouse, dysfunctional family units, poor living conditions and being the breadwinner of the home, to name just a few. While not every woman facing any of these challenges will resort to crime, it cannot be denied that lack of a support system and coping mechanisms are the culprits for some.
Having regard to the fact that the majority of incarcerated persons are men, it is not surprising that interventions targeted at disengagement, rehabilitation and reintegration of female inmates are not as robust as they could be.
The incarceration of children alongside their mothers in often unsanitary and restricted conditions, with limited health, recreational and educational facilities is a matter for concern.
Legislation:
· Section 34 of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides inter alia that every person is entitled to respect for the dignity of his person and no person shall be subjected to torture or inhumane treatment.
· Section 404 of the Administration of Criminal Justice Act (ACJA) 2015 (applicable in the Federal Capital Territory) provides that where a pregnant woman is found guilty of a capital offence, the sentence of death shall be passed on her but its execution suspended until the baby is delivered and weaned.
· The ACJA has been domesticated by the various states of the Federation with various modifications e.g. in Lagos State (Section 302 (2) of Administration of Criminal Justice Law, ACJL), the death sentence shall be substituted with life imprisonment.
· Section 221 (2) & (3) of the Child Rights Act (which has been domesticated in 34 out of the 36 States in Nigeria) provides that no expectant mother or nursing mother shall be subjected to the death penalty or have the death penalty recorded against her. A court shall on sentencing an expectant or a nursing mother, consider the imposition of a non-institutional sentence as an alternative measure to imprisonment. The Child Rights Act (or Law in the States that have domesticated it) appears to pay the most attention to the best interest of the innocent child.
· The Nigeria Correctional Service Act 2019, provides in Section 34 that there shall be separate facilities for females in all states of the federation; necessary facilities to address their special needs such as medical and nutritional needs, including pregnant women, nursing mothers and babies; the provisions of a crèche in every female custodial centre for the well-being of babies in custody with their mothers; prenatal and antenatal health care and sanitary provisions; necessary medical care and support where a female inmate tests positive for pregnancy within 14 days from the date of admission to the correctional centre. It is also provided that babies shall not remain in custodial facilities beyond 18 months. Section 36 provides that young offenders shall not be kept in adult custodial facilities but rather should be sent to borstal training institutions for juvenile offenders, which should be separate for males and females.
The list is by no means exhaustive.
As at 2022 there are only three custodial centres across Nigeria dedicated exclusively for women, while in other custodial centres, women are kept in a separate wing.
Despite the lofty ideals reflected in the various legislations, the implementation leaves much to be desired.
Effect of Incarceration:
Having regard to the fact that women play a very vital role in the development and well-being of the family unit, absence from her family is bound to have a very serious psychological effect on the prisoner as well as the family left at home. Her absence from the home may have adverse effects on her children and may even lead to the break up of the family where the husband (if there is one) is unable to cope and there is no support system to step in to bridge the gap. The incarceration of a mother may cause prolonged trauma in the children such that even after her release they are always afraid that she will leave again. The uncertainty can have negative effects on their behaviour, growth and development.
Empathy:
While it is true that for the benefit of society, wrongdoing when proved must be seen to attract the appropriate penalty imposed by law, empathy comes in where the law gives a Judge discretionary power in the area of sentencing. The Judge also has a discretion as to how to conduct the court’s proceedings where the defendant is visibly pregnant or nursing an infant in terms of granting bail, speedy hearing etc. There is no doubt that in appropriate cases, certain considerations must be given and are given to vulnerable persons such as women who are mothers or mothers-to-be and young children. Nonetheless, every action of the judge must be within the boundaries of fairness, impartiality and justice.
What can be deduced from the experiences of different judges, particularly the women Judges is that due attention is paid to the circumstances of the defendant whether during court proceedings (such as ensuring that a child brought to court with the defendant is looked after by court staff for the duration of the proceedings, the granting of bail on liberal terms where the defendant is pregnant or is a nursing mother) or at the sentencing stage where relevant sentencing guidelines are followed.
Solutions:
· Enhancing the use of non-custodial sentences for Women and Girls.
- Where the law provides for it such as the Administration of Criminal Justice Act 2015 (and similar state laws), non-custodial sentencing options such as parole, probation, community service and suspended sentence should be adopted more frequently. Each case must be considered on its individual merit while ensuring that justice is seen to have been done not only to the offender but also to the victim and the society.
· Limiting adjournments to ensure the speedy and effective disposal of cases.
· Gender-specific initiatives- providing support during and after incarceration.
- Enabling inmates to maintain relationship with their children such as regular visitation, parenting sessions and childcare services within the correctional facility. This will promote bonding between the mother and her children and mitigate the negative impact of incarceration on maternal-child relationships.
- Trauma-informed therapy, reproductive health education and vocational training in fields traditionally dominated by females to facilitate successful reintegration into society.
- Health care – Enhance access to comprehensive healthcare services including gynecological care, prenatal and post-natal care, mental health support, substance abuse treatment.
- Support for measures to prevent and address gender-based violence within custodial centres and training of staff on gender sensitivity and violence prevention.
- Effective and safe reporting mechanisms.
- Access to support services.
- Reintegration Support: Support for comprehensive reintegration programs specifically tailored to the needs of female inmates, offering assistance with housing, employment, education, and community.
· Strong Advocacy and Awareness
- Partnership with Institutions like the National Judicial Institute (NJI) where programs could be targeted at exposing Judges to the circumstances of a prisoner once she is removed from the court room. The NJI has a Judges to Jails program in this regard.
- Frequent visits to correctional centres – the Heads of Courts visit correctional centres periodically and have the power to release inmates awaiting trial who have spent longer than the sentence they would receive in the event that they were tried and found guilty, or where they are in custody for failure to meet bail conditions for minor offences.
- Depending on the offence and the nature of the sentence imposed, an inmate could be released on humanitarian grounds arising from age or health challenges.
- Increased involvement of women lawyer Associations such as FIDA, AWLA and Women Lawyers Forum for advocacy and support.
- Spreading awareness to civil society organisations through participation in our workshops.
In the Merriam-Webster dictionary, “carceral” is defined as “of, relating to, or suggesting a jail or prison” (Webster). However, the carceral system has been extended outside of physical prison walls and into minoritized communities in the form of predictive policing. (https://purdue.edu>carcerality)
IDP issues
1. Non-domestication of The African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa 2012 (Kampala Convention) by Nigeria despite its ratification. The Convention is meant to provide a regional framework for the protection and assistance of Internally Displaced Persons in Africa. Two-thirds of African Union members have ratified the treaty but only Kenya and Niger have domesticated it. Without domestication, the convention cannot have the force of law. Nigeria became the 12th African Country to ratify the treaty but its. domestication process is pending before the National Assembly.
2. Complaints by single women and single mothers on discrimination of allowances in favour of married women.
3. 50 percent of the women in camps do not receive their vouchers/allowances because ‘they were shared late at night’. The result is the starvation of mothers and children.
4. Women make up more than 50 percent of the IDP population in Nigeria. And as they are forced to survive on less than ₦780 (US $1.90), their livelihoods are largely reliant on goodwill donations from charitable and government organizations. Consequently, due to overlapping vulnerabilities related to economic security and protection, many find themselves at risk of sexual and gender-based violence in the camps
5. NAWJN calls on the National and State Assemblies to domesticate the Kampala Convention at the Federal level and the adoption/passage of state laws in line with the standards in the Convention.
Conclusion:
As we strive for a more just and humane correctional system, it’s imperative for the Nigerian government to develop comprehensive strategies that prioritize the well-being of these vulnerable inmates. Only through concerted efforts to address both legal and practical challenges can we ensure that pregnant women offenders and mothers (as well as their young children) receive the dignity and care they deserve within the criminal justice system.