Introduction

1. CODE OF CONDUCT AND ETHICAL CHALLENGES OF LAW STUDENTS ASSISTING PRISONERS IN NIGERIA AND PAKISTAN Presented @ the Sixth International Legal Ethics Conference at the City University London UK, July 10-12, 2014 Prof. Amari Omaka Chukwu Dean Faculty of Law Ebonyi State University and Director EBSU Law Clinic Abakaliki, Nigeria FaizaHaswaryand Omar B. Maniar Director and Supervisor of the Clinical Program at the Hamdard School of Law Karachi, Pakistan

2. Introduction • Due to the challenge of prison congestion and criminal justice rot in Nigeria and Pakistan, Law Clinics in these countries have joined the crusade of prison legal aid service. • As part of the functional legal education objective of the Faculty of Law Ebonyi State University (EBSU) and Hamdard School University law clinics have significantly geared its operations to prisons/criminal justice administration.

3. The Nigerian Situation • Sad staggering statistics • Available facts in Nigerian Criminal Justice Administration show that Nigerian prisons are highly congested. • It is thus a breeding place for communicable diseases and to say the least, a place of wholesome abuse of human dignity. • The most surprisingly, according to Nigerian’s Comptroller- General of Prisons in an information passed to Senate Nigerian Committee from 2010-14 the following facts were revealed: • About 77% of the Prison population are pre-trial or awaiting trial detainees. • Similarly, the 2007 report of the Presidential Commission on Prison Reforms in Nigeria quoted average pre-trial detention period in Nigeria as 3.75years.

4. Out of tune with the law • These situations persist despite the fact that, under Nigerian law: • (1) it is unlawful to detain any person in police or prison custody for more than 3 months prior to commencement of substantive trial, and • (2) it is unlawful to detain any person in police or prison custody for more than 24 hours. • Sadly, national average pre-trial detention time is 3.7years, irrespective of the crime charged.

5. Objectives of CLE in tandem with prison pro bono It is the principal mission of clinical legal education to inter alia: • Produce knowledgeable, skilled& ethical lawyers who are sensitive to the injustices of the legal system for the poor and vulnerable; • Produce lawyers who will either engage in public interest law themselves or support civil societies who do public interest work, • Since 2008/2009 EBSU Law Clinic commenced experimentation on prison decongestion as an outreach project. • In 2009/2010 EBSU Law Clinic consolidated by establishing a Prison Clinic. • In 2010/2011 the clinic directed her focus on pre-trial detention and access to justice.

6. The Objectives of EBSU Prison Clinic • To educate law students on criminal justice • provide clinical law students the opportunity to meet & attend to live clients in prison, interview, counsel & learn from the exercise. • To expose the students to law in practice under supervision. • To expose the students to social justice issues and public service values by aiding indigent prisoners/detainees. • To supplement existing legal aid available to prisoners/detainees, inter alia

7. The Pakistani Situation • Like the Nigerian situation, the criminal justice system in Pakistan has proven to be woefully inadequate. • The system is beset with particular failures in the pre-trial arrest and investigation phases, leading to delays & inadequate prosecution. • This resulted toa comparatively low conviction rate of 10%. • These are further compounded by corruption that is endemic at every stage of a trial. • This results in a large proportion of under-trial prisoners, largely belonging to poor impoverished backgrounds.

8. The Sad Statistics and Poor Intervention • Figures from July 2013 indicate that close to 80% of the prisoners held in various jails of the Sindh province are classified as under-trial prisoners. The figures are similar nationally. • Most the under trial prisoners come from impoverished backgrounds and lack access to good quality legal representation. • Their poor access to justice is worsened by the general lack of pro-bono spirit, the absence of any Legal Aid provider in the public sector and only few NGO’s that struggle to keep up with demand. • The above facts reveal that a legion of detainees deserving legal assistance subsists in the prison population of Pakistan

9. Hamdard Intervention • The identification of the needs of under trial prisoners coupled with the learning opportunity for students, led to the formation of Pakistan’s 1st Street Law Clinic at the Hamdard School of Law Karachi Pakistan in 2012. • The Clinic has been functioning for over two years now and represents the beginning of the CLE movement in Pakistan. • The model established by the Clinic is being emulated by other Pakistan universities as more clinics are established around the country.

10. The focus of Hamdard Law Clinic • The Clinic focuses on creating legal awareness amongst the detainees at the Youthful Offenders Industrial School (YOIS), Karachi, a reformatory detention facility for juvenile offenders. • The detainees at the YOIS are accused of crimes ranging from drug possession and peddling to theft, possession of weapons, kidnapping, extortion and murder. • Over 90% of the close to 150 detainees at the YOIS are under trial. • Law students conduct regular classes at the YOIS and provide critical legal information covering the following broad themes: Constitution and governance , Fundamental rights, Criminal justice, Trial process, Juvenile justice, Prison rules, etc . • The teaching experience and the interactive methodology allow law students to develop several key practical skills that are essential for practicing lawyers.

11. The focus of Ethics in Pakistan Prisons • The interaction also gives rise to numerous ethical concerns and opportunities for students to put their ethical values into practice. The numerous ethical issues can be categorized into the following major themes: • Prison rules and values for interacting with prisoners • Ethics governing interactions with juvenile detainees • Ethics governing practical advice in situations relating to corruption • Professional ethics essential to the practice of law

12. Ethical burden for Hamdard? • The non-representational nature of the Clinic does lessen the ethical burden of the exercise given that there is no lawyer-client relationship between the student teachers and the detainees at the YOIS, however, the Clinic does focus on inculcating professional ethics amongst participating students at every stage. • Values such as empathy, respect for the client, confidentiality, professional behaviour, due diligence and the rules governing the provision of legal advice are taught and practiced in the Clinic and certain protocols have been developed.

13. Method of delivery in both Jurisdictions • Prior to accessing the prisons for legal assistance, legal ethics relating to prison work are taught the law students. • Similarly, the students are also taught the rules of professional conduct generally. • This is because before students are allowed to go to prisons for the purpose of learning and assisting detainees to have access to justice, these ethical rules and codes of conduct must be imbibed.

14. The gains of Prison pro bono 1. In the course of the work in prisons, legal education is enhanced in a functional manner. 2. Prison regulation and ethics of the profession are acquired by law students in a practical (as against theoretical) manner. 3. The clinic regularly secures the release of many pre-trial detainees and several others have access to Justice. 4. Students now have insight on what is happening in the prisons which, many practicing lawyers, unfortunately, do not have. 5. Law students have become ready paralegals in enhancing access to justice for pre-trial detainees. 6. The prison clinic has created new opportunities of law practice to the students, 7. Again, it helps to imbibe pro bono culture in the clinical law students. 8. Finally, by reason of work in prisons students have developed capacity and skill to assist in surmounting the challenges of criminal justice administration in these countries.

15. The Relevance of Ethics in Prison • Ethics in prison exposes one to the “dos’ and ‘don’ts in the prisons & global prison best practices to ensure discipline while conducting their activities. * • Knowledge of these codes of conduct is vital to lawyers and law students while paying official visits to the prisons. In most prisons such codes are observed and circulated, while in some they are mere codeless moral ethical principles to be respected. • These ethical rules, no matter the jurisdiction, are made for the guidance of visitors and prisoners alike. • That is why we have underpinned vital code of conduct and ethical challenges confronting service delivery in prison clinic programmes in this presentation.

16. Some Ethical Rules Generated by EBSU Law Clinic • No use of abusive, provocative or threatening words while communicating with detainees or prison authorities • Don’t collect money from detainees • Don’t give anything to detainees without the knowledge and consent of the authorities • Don’t bring hard drugs cigarettes, Indian hemp, heroine etc • Don’t bring lethal or harmful materials such as knifes, machete, razor, scissors etc • Don’t embrace or get personal with detainees • Don’t give unlawful advice • Don’t bribe prison authorities • Don’t smoke or drink alcohol in prison • Don’t impersonate that you are a lawyer while in prison (make it clear that you are a student)

17. Don’t condemn any detainee • No food poisoning • Don’t discriminate • Don’t encourage, aid or abate crime • Don’t enter the prisons while drunk or under the influence of any drug • Don’t communicate to third parties privileged information which you extracted from detainees • Don’t destroy or aid the destruction of incriminating evidence • Don’t take photographs without the consent of the authorities • Don’t carry out political campaign while on a pro bono prison visit

18. Other Ethical considerations/professionalism • Your client deserves the best possible you can offer. Accept your responsibility towards you client you client depends on your expertise and your advice. • In everything that you do, you are also an officer of the court in ensuring that justice is served as far as possible in all cases that you deal with. • Never mislead the court or a client • Always act professionally. • This includes your appearance(dress and manners) • Your client expects consultation of an expert. Act accordingly.

19. Ethical challenges • Below are a few ethical challenges / dilemma faced by our clinical students: with a view to finding answers with which to cope with them. • Don’t charge fees while there is dearth of sponsorship for there pro bono work • Don’t disclose or breach confidentiality while students discuss among themselves (highly prone to leave their confines). In the process, relations get to know and complain thereby breaching the duty of confidentiality. • Don’t condemn pre-trial detainees, in countries with high religious and moral fanaticisms. Some find it rather obnoxious to assist prisoners they already consider (or who confessed) armed robbery.

20. Ethical Challenges contd. • Don’t take photographs in a world of smart mobile phones, and in a world where they need to show what they are doing to access sponsorship- very tempting to snap • Don’t bribe prison officials in a country where you hardly have access to prisoners if you don’t ‘settle’ prison authorities • Concocting of data and figures for credit, very likely!

21. Ethical Challenges contd. • Don’t impersonate that you are a lawyer while in prison (make it clear that you are a student). This very challenging as many prisoners are tired of talking to students whom they believe use them as educational guinea pigs (just to learn) and dump them. • Don’t say ‘am a lawyer when u are not’ in a situation when most pre-trial detainees have no confidence in law students. Some end up saying they are lawyers in other to have access and have audience with them. • Don’t give money / food to detainees. You are not allowed to give money to your prison clients yet some are so poverty stricken and clear evidence of poor feeding that some students have the temptation of breaching the code of ethics by either giving them money of food stealthily, especially as items donated through official channels sometimes hardly reach them.

22. Conclusion • Law clinics working with pre-trial detainees in Nigeria and Pakistan have proved resourceful in providing leadership and access to justice to under-trials in both countries. • In the process the students learn not just how law works in practice, but also ethics that would help them in future. • But these are not without teething ethical and challenges.

23. Thank you for listening