Nyasa Hickey is a practising attorney in New York State at Brooklyn Defender Services (BDS), where she is a Supervising Attorney of the Immigration Practice. BDS, a public defender organisation, represents yearly nearly 35,000 people who are too poor to afford an attorney. Hickey, an adjunct professor of Law, and her colleague at BDS Hannah McCrea were in Nigeria to facilitate the leadership and capacity building conference for pro bono lawyers and legal aid service providers in Nigeria’ organised by the Network of Pro-Bono Lawyers. In this interview with JOSEPH JIBUEZE, Hickey shares her thoughts on Nigeria’s criminal justice system.
Having visited criminal justice institutions in Nigeria, what are your impressions?
Similar to the United States, there is much injustice in the Nigerian criminal system. My impression is that Nigeria is following an alarming trend, which many countries are following, of trying to manage poverty through criminal laws. The criminalisation of low-level non-violent offenses, as well as the high rate of lengthy pre-trial detention due to unattainable bail amounts, reflects this trend.
What did you observe about our detention centres?
I only had the opportunity to visit one detention centre, a women’s facility, where the staff were very welcoming. My concerns with this detention centre were some of the same concerns I have with many immigration detention centres in the United States – many detainees did not seem to have access to, or knowledge about how to access, a lawyer to advocate for them, resulting in many people lingering in jail for weeks, months, or even years without progress on their case. Detainees must have meaningful access to an attorney at the beginning of their proceedings. No one should be detained pre-trial. Remember, in Nigeria, as in the United States, a person accused of a crime is presumed innocent, unless and until they plead guilty, or are convicted using valid evidence that constitutes proof beyond a reasonable doubt. That presumption of evidence means that really no one – save in the most egregious cases – should be jailed before they are convicted.
How would you compare Nigeria’s detention centres to the US’?
Like Nigeria, the U.S. used to have a terrible pre-trial detention problem, and in some parts of the United States it persists. Fortunately, courts have started to recognise that incarcerating people who are legally presumed innocent, whether on bail or otherwise, violates the presumption of innocence and rules around procedural fairness, and as a result there has been a significant movement toward releasing defendants, without any bail, pre-trial, and simply requiring them to come back to court as a condition of their release. Unsurprisingly, this movement has brought about a dramatic decrease in the population of people detained pre-trial. There is no doubt that Nigeria struggles with a serious prison congestion problem, and over 70 per cent of those detained are awaiting trial – many without access to counsel. I hope to see in Nigeria a movement toward releasing those accused of a crime pre-trial, which will prevent unnecessary, delayed detention of thousands of innocent people and really force the police and prosecutors to limit their arrests and prosecutions to cases where there is evidence of the defendant’s guilt.
What have you observed to be the major challenges faced by free legal service providers?
The number one challenge, as it is everywhere, is funding. The government of Nigeria has clearly acknowledged that legal aid for poor people is important—the Legal Aid Council has been in existence since the 1970s. However, the Government and States are not adequately funding legal representation. It is important to think about legal representation for poor people as non-negotiable a budget item as law enforcement and prosecution, as you cannot justly fund the former without funding the latter. My experience has shown me that meaningfully funding the right to a lawyer actually makes the entire court and penal system more efficient and effective. Zealous representation by a defense lawyer enables the court to have more of the information they need in order to determine who is in fact a danger to society and who should be released from custody.
How can they cope with such challenges?
In my experience, lawyers who are providing legal aid for poor people are not doing the work for money and are not seeking excessive salaries. They are motivated by passion and the injustices in the criminal and civil systems. However, they do need a decent living wage and political support. Initiatives such as this one—the Leadership and Capacity Building for Pro Bono Lawyers and Legal Aid Service Providers in Nigeria—is one way to cope with the ongoing challenge of limited funding. Another suggestion is to start private scholarship or financial aid programs for law students who are committed to using their law degree to provide legal aid for poor people. The United States has similar programs, both private scholarships as well as government stipends, and these initiatives have been instrumental to enabling young passionate lawyers to enter the legal workforce to work for poor people without the burden of the cost of law school. Finally, lawyers can withstand the challenges of legal aid and pro bono work by strengthening networks and building coalitions to leverage for more funding, and motivating one another to persevere in this important field of law.
What do you make of agencies in Nigeria doing similar work as BDS? What are the major differences?
During our stakeholder meetings in Nigeria, we met with two government-funded legal aid agencies that are doing similar work to Brooklyn Defender Services. They are both doing important work for vulnerable Nigerians. However, we also heard concerns from other stakeholders and affected individuals that sometimes these government-funded legal organisations reflect conflicts of interest, both real and perceived by the individuals they represent, especially when they are serving in both the role of defense attorney to some individuals, as well as the prosecution. At Brooklyn Defender Services, we are assigned to represent individuals charged with a wide range of crimes and other charges, regardless of nature of the charge, the strength of the evidence or the character of the defendant.
Being in a state-funded agency, how do you deal with conflicts in having to take on your employers?
It is extremely important that any organisation dedicated to representing poor people against powerful interests—whether those interests serve the government, developers or corporations – be able to act independently of the government. Not only is this a way to enforce human rights for indigent individuals, but also an important tool to fight corruption and oppression by powerful interests. This independence and government funding are not mutually exclusive. The government can fund access to counsel, while also ensuring that recipients of those funds are able to operate independently. The ability for defense counsel to act with independence is a challenge, but it is a worthwhile and necessary challenge that defender agencies must take on through strong leadership. For some more guidance about this question, I refer you to the American Bar Association’s “Ten Principles of a Public Defender System,” https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciples booklet. authcheckdam.pdf
What other communities in Nigeria apart from prisons deserve pro bono legal services?
I strongly believe that all indigent individuals in Nigeria deserve access to free legal services. As an initial step, a right to robust criminal defence counsel for all people facing criminal charges or incarceration, is essential. While the support of pro bono attorneys is important, my experience through my work in the United States has taught me that in order to make the right to counsel a reality, it must be adequately funded by the local, state, and federal government. Such an essential right, as specified in the Nigerian Constitution, cannot be left to the good will and financial capacity of pro bono attorneys. Instead, the government must significantly invest in long term and stable funding to supply free legal counsel for indigent individuals. Such funding should extend to all indigent individuals facing legal proceedings in which their freedom, dignity and basic human rights are at stake. During our time in Nigeria, we came across individuals facing family court, housing court, and immigration-related proceedings. The bottom line is that all people, regardless of their financial ability, should have access to quality lawyers to defend their rights and interests.
What is your advice to the Network of Pro Bono Lawyers on how to strengthen their capacity?
Our many suggestions are outlined in detail in our presentations, which we can make available to you. In addition, we are finalising a blueprint of action items for the pro bono and legal aid network to take as next steps to continue to build their capacity.
What funding opportunities are there for pro bono lawyers?
Based on our information during the initiative, we identified three different primary funding structures for providing legal representation to poor people: (1) state-funded public agencies dedicated exclusively to indigent representation; (2) pro bono hours voluntarily donated by private lawyers, made possible through income earned from paying clients; (3) private/donor-funded NGOs dedicated exclusively to providing legal services to the poor, generally funded through international donors and governments.
You have been at the BDS for seven years. Is it just a job for you?
My work with Brooklyn Defender Services is not just a job. I am passionate about amplifying the voices of marginalised individuals through the delivery of direct legal services. My job is a lens through which I see the world and a mechanism through which I challenge prevalent injustices in the criminal, immigration, and other legal systems in the United States and abroad.
As supervising attorney for Immigration Practice, have you had encounters with Nigerians in the US? If any, can you share the experience?
Yes, I specialise in helping non-U.S. citizens who have been arrested to navigate the overlap between the criminal and immigration systems in the United States. Over the years I have represented Nigerians who are present in the U.S., including those with a valid visa, who are undocumented, who have green cards, and those who have orders of removal.
As an adjunct professor, how do you combine law teaching with your work at BDS?
I teach an Immigration Law Field Clinic. My work directly impacts and informs my teaching. My course focuses on mentoring students engaged in direct legal services to immigrants in New York and helping immigrants to navigate the difficult and scary immigration legal system. The United States has millions of immigrants, many of whom are poor, fleeing violence, and otherwise vulnerable. Therefore, I encourage my students to consider a career path that will enable them to work directly for low-income vulnerable immigrants.
What are your recommendations based on your experiences?
Partnerships and idea exchanges such as this conference are fruitful and important. However, in order to make progress, the legal community in Nigeria must decide collectively that a legal system in which the most marginalised people do not have access to legal representation – which, at minimum, helps them navigate the legal system, and more importantly, allows them to vindicate their rights within that system—is not a just and transparent legal system. It is not enough to have pro bono legal services; they must be directed and meaningfully made available to the most vulnerable communities, the poor, whether they are in Makoko in Lagos or in a remote village in Borno State. Such proactive representation should be combined with collective efforts to effectuate systemic reforms that disproport-ionality impact and further marginalise poor communities such as pre-trial detention and criminalisation of poverty.