Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development Todd Foglesong Introduction Synopsis The paper starts by describing the relationship This paper describes how Adeola Ipaye, the between the Program in Criminal Justice at Harvard attorney general in Lagos State, Nigeria, and the attorney general of Lagos, as well as the new changed the practice of filing “legal advice” upon understanding of the justice system that came from the completion of an investigation of a homicide, studying and then trying to expedite the filing of legal armed robbery, fatal motor vehicle accident, or advice. It then analyzes the “governance work” of other grave offense.1 It also describes the justice indicators — changes in the relationships of contribution to that change made by the design authority within government, and changes in the and use of “indicators” of the pace of nature of knowledge about systems. The paper prosecution. investigates the operating principles of these indicators, focusing on their dependence on the The indicators themselves were the result of an collective identity of state counselors in the extended collaboration between the Lagos State Directorate of Public Prosecution and the Attorney General’s Office and the Program in organizational authority of its leaders. Criminal Justice Policy and Management at the Harvard Kennedy School (John F. Kennedy School of Government at Harvard University). Building Relationships Over Baselines Adeola was appointed attorney general of Lagos State The change in practice, I believe, was the result in the fall of 2011. He had served as a special adviser of the careful cultivation of new relationships — on taxation and revenue for the governor between first, between line staff and supervisors at the 2007 and 2011. When he became attorney general, he Lagos State Ministry of Justice and then between inherited a relationship with the Program in prosecutors, police, and the courts. Criminal Justice Policy and This material has been funded by UK aid from 1 the UK Government Although the Constitution of the Federal Republic of Nigeria gives the attorney general of each state the authority to “institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria,” article 23 of the Police Act of 1990 empowers the police to conduct “all prosecutions in any court.” In practice, the police charge and prosecute the overwhelming majority of all offenses in the magistrates’ courts. In Lagos, the attorney general decides whether to charge and prosecute in police investigations of murder, armed robbery, fatal motor vehicle accidents, serious fraud, and a few other infrequent offenses. The decision whether to charge and, if so, for what offense is called “filing legal advice.” http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 1 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development Management at Harvard Kennedy School that his released inmates they considered to have spent too predecessor, Olasupo Sasore, had begun in earnest in much time in detention.5 the fall of 2009. That relationship may have seemed Scholars, prosecutors, and police acknowledged that natural by the time Adeola assumed his position. It there was a deep, structural problem in the justice all started when Yemi Osinbajo, Lagos State’s system, even if they disagreed on its sources and attorney general from 1999 to 2007, shared the solutions. Sasore convened an interagency justice results of his research on delay and corruption in the forum in May of that year to encourage joint efforts civil courts at a Harvard workshop funded by the UK to mitigate the problem. All that was needed, I Department for International Development, and thought, were more precise, reliable, and valid pledged his agency’s interest in collaborating on measures. 2 “indicators.” I spent a few weeks in the summer of 2009 with a I wrote to Olasupo Sasore in June 2009, shortly after researcher from CLEEN and Akeem Bello, the Yemi Osinbajo had left office, asking whether the attorney general’s senior special adviser, trying to new attorney general would like to work with the generate a shared understanding of the problem. We program, too. Sasore agreed, and he suggested that visited the Ikoyi Prison, the most overcrowded we start by working together on pretrial detention. I facility in the state; rummaged through files in the was thrilled. I fancied myself an expert on the office of the director of public prosecution (DPP); subject, having run an experiment to reduce chatted with the director of police investigations; and overcrowding in a pretrial detention facility in Russia canvassed a new “case tracking system” that a private a decade earlier. I also believed that there was a good software company had set up with funding from the opportunity to improve on the indicator of detention Department for International Development to most commonly used in the world—the proportion of facilitate the “monitoring and evaluation” of prison inmates on any given day who await defendants’ criminal proceedings. But none of these sentencing. In fact, I was convinced that Sasore and sources yielded a measure of the detention problem his staff could generate a much more discerning and that was reliable, believable across government actionable indicator — the average duration of departments, and able to inspire individual agencies detention — by sampling the files of people leaving to take action on their own. prison each month. I also knew that we could work with the CLEEN Foundation, a well-regarded human rights organization in Lagos that had steadily built a working rapport with the federal and state police, the commissioner of state prisons, and the former 2 3 See Harvard Kennedy School (2008) for an account of this attorney general. research and the workshop at which the project on indicators began. There were plenty of reasons to focus on pretrial 3 detention in 2009. A national initiative to CLEEN was established in 1998 by Innocent Chukwuma and worked loyally but critically with successive governments in “decongest” prisons, announced by the president in Nigeria. Its experience with foreign development organizations 2006, was yielding uneven effects across the country and capable research unit made it a particularly attractive partner for us and the attorney general. and was having a limited impact in Lagos, the state 4 4 with the greatest number of inmates. Every lawyer, In 2010, the federal Ministry of Justice estimated, through a one-day “survey” of all prisons, that there were approximately public servant, and casual reader of the Nigerian 45,000 inmates in Nigeria’s prisons. In June of that year, the press knew that Lagos’s prisons were severely state controller of prisons for Lagos State told me that the facilities held 5,808 inmates—13% of the total. For press overcrowded — primarily with suspects and accounts of the number of inmates at the time, see “Plight of defendants awaiting trial. Judges occasionally Awaiting Trial Inmates” (2010). 5 See, for example, Adesomoju (2012). http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 2 Over the next eighteen months, with help from We agreed with Sasore’s staff that we should students on summer internships and the assistance measure two things: the duration of custody for of my colleagues during breaks in their calendar, remanded defendants and the length of proceedings I worked fitfully with senior staff from the Attorney before and after the completion of police General’s Office and researchers from CLEEN to investigations. The attorney general somehow build a new system-level understanding of the persuaded the warden of Ikoyi Prison, home to one- dynamics of pretrial detention, along with a baseline third of the state’s inmates, to permit us to conduct from which to chart improvements. One reason for an “exit sample” of those leaving the prison each the fitfulness was that the attorney general and his month. Using the remand warrants that staff were often busy solving more urgent problems accompanied every inmate to and from prison, we — crumbling cases, staffing crises, fuel shortages, learned that more than half of all inmates spent less and the drafting and defending of new legislation. than a month in detention. Only a tiny fraction of all Their day job — running a government ministry — prisoners — fewer than 5% — remained in detention left little time to pursue the public interest outside for a year or more. But as figure 7.1 shows, the small the normal channels of public administration. group of inmates who stayed more than a year Another reason was that neither the Program in accounted for almost half of the prison spaces Criminal Justice nor CLEEN wanted to develop this occupied by pretrial detainees.6 understanding without the Attorney General. We knew that the sense of obligation or duty that can come from new knowledge stems primarily from its 6 production. Real ownership is not received. For a detailed account of the research methods and findings, see Foglesong and Stone (2011). Figure 7.1. Detainees and Prison Space Used by Length of Stay in Detention, Ikoyi Prison, Lagos, 2011 50% Percentage of All Detainees 45% Percentage of Prison Days Used 40% 35% 30% 25% 20% 15% 10% 5% 0% One Day or Less > One Day to > One Week to > One Month to > One Quarter > One Year One Week One Month One Quarter to One Year Length of Stay in Pretrial Detention Source: CLEEN Foundation and Harvard Kennedy School, prison exit samples from January, March, and June 2011 To us the findings were exhilarating. They upset the distribution of “length of stay” implied two clear conventional wisdom about delay as a source of organizational conclusions: first, that the courts prison crowding.