By Onikepo Braithwaite
Continuing with our series on the lawlessness of law enforcement/ allowing themselves to be used as tools of oppression against the people, it is apposite for me to consider some of the fundamental rights that a Suspect has upon arrest, and how again, these rights are usually breached and abused by arresting officers.
Ernesto Miranda v State of Arizona: American Miranda Warning/Rights
“You have the right to remain silent. Anything you say, can be used against you in a court of law. You have the right to an Attorney. If you cannot afford one, one will be appointed for you.”
These are globally known as the Miranda Warning/Rights (MR) which are supposed to be recited by the arresting officer at the point of arrest, or before a suspect is interrogated. These fundamental rights of a Suspect, though part of the Fifth and Sixth Amendments to the US Constitution, that is, the right to remain silent, the right against self-incrimination and the Suspect’s right to legal representation of his/her choice, and the right to legal aid when a Suspect cannot afford legal representation, were established from the USA Supreme Court case of Ernesto Miranda v State of Arizona 384 U.S. 436 (1966). In this case, Mr Miranda was arrested for armed robbery, kidnap and rape. He was interrogated by the Police, and he confessed to the crime without being cautioned about his right to remain silent and not to answer questions, or to legal representation. The U.S. Supreme Court ruled Miranda’s confession to be inadmissible, because the Police didn’t inform him of his rights before the interrogation and the confession was taken.
Even though Mr Miranda was subsequently retried and convicted, his confession was excluded, and his conviction was based on other evidence. In USA, obtaining a confession without reading the MR renders such confession inadmissible as evidence, but, doesn’t necessarily signal the end of a case if there’s other evidence available to conduct or prove the case.
American vs UK Miranda Warning
Most countries have their own version of the MR, or at least rights to protect a Suspect. For example, the MR of the UK states thus: “You do not have to say anything. But, it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say, may be given in evidence”.
The American MR is different from that of the British, in that while the former emphasises on the right to remain silent, the latter emphasises on the importance of giving answers to questions which may be relevant to the Suspect’s defence during the trial. I would imagine that, for example, the details of a Suspect’s alibi would be important here. In Ehigiegba v State (2020) LPELR-50372(CA) per Samuel Chukwudumebi Oseji, JCA (as he then was), the Court of Appeal held that: “The law relating to Alibi is that an accused person who wishes to raise the defence of Alibi, must do so at the earliest opportunity while making his extra-judicial statement. This is to enable the Police investigate the Alibi. An Alibi raised by an accused person in the course of his testimony in Court is one raised too late in the day, and does not deserve any valuable consideration.” Also see Njovens & Ors v State (1973) LPELR-2042(SC) per George Baptist Ayodola Coker, JSC. The British MR also doesn’t inform the Suspect of his/her right to legal representation or legal aid, though obviously it should be a given that a Suspect is also entitled to this. Unlike USA, in the UK, the non-recitation of the MR before interrogation doesn’t necessarily render a confessional statement inadmissible; it could depend on the circumstances of the case and/or the Judge’s discretion.
Nigeria: Police Caution
While in Nigeria, we do not have the MR the way they do in the USA or UK, we have some similar rights provided for in the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) and the Administration of Criminal Justice Act 2015 (ACJA). Sections 35(2) & 6(2)(a) of the Constitution & ACJA respectively, provide for the right to remain silent or avoid answering questions on arrest (self-incrimination) – at least, until the appearance of a legal representative or person the Suspect wants to consult. Section 6(2)(b)-(c) of ACJA also mandates the Police or arresting Officer, to inform the Suspect of their right to legal representation and free legal aid where applicable. The Nigerian version of the MR, places emphasis on the right to be informed of the reason for arrest immediately (Section 6(1) of ACJA) or within 24 hours (Section 35(3) of the Constitution).
Sometimes, the Nigeria Police Statement of Witness/Accused Police Caution (PC) includes this statement: “In the case of (the) accused person caution will be given and recorded here in (the) manuscript. I XY (Male/Female) have been duly cautioned in B Language that I am not obliged to say anything unless I wish to do so, but, whatever I say shall be taken down in writing and may be given in evidence”.
But, unfortunately, not only is the PC not particularly followed, it appears that there are no consequences for non-adherence to it. Suspects’ statements/confessions are admissible, even if the Suspect isn’t cautioned. And, since the PC appears on the Statement Form, it is assumed, even if it is wrongly, that the Suspect has been cautioned. The only time there may be some consequences, is if the accused person can prove that his/her extra-judicial confessional statement was taken by the Police under duress. Usually, this is proven or disproven at the beginning of a criminal trial, in a ‘trial-within-trial’, to ascertain the voluntariness of such statement. In Awelle v People of Lagos State (2016) LPELR-41395(CA) per Tijjani Abubakar, JCA (as he then was), the Court of Appeal held that “….where the prosecution fails to comply with the mandatory provisions of Section 9(3) of the Administration of Criminal Justice Law, any confessional statement extracted from an accused person without video recording or in the presence of Counsel for the accused shall be rendered impotent”.
Upon arrest, the suspect is usually interrogated and asked to make a statement, often times, this is done in the absence of their legal practitioner and without a video recording. See Section 15(4) of ACJA; FRN v Akaeze 2024 12 N.W.L.R. Part 1951; Charles v State of Lagos (2023) LPELR-60632(SC) per Helen Moronkeji Ogunwumiju, JSC on the video recording of confessional statements being mandatory. Unfortunately, the PC written on the statement form is just for decoration, and the Suspect is mostly not allowed to remain silent. Though the issue of the the right to remain silent and avoid answering questions is closely intertwined with voluntariness of a confessional statement, for the purpose of this discussion I’m interested in the former, because they are part of the PC.
The right to remain silent and avoid self-incrimination is breached incessantly, and Suspects are forced to talk, even sometimes tortured into making confessional statements. One day I was listening to a Police Officer giving his testimony in court during a trial, and I couldn’t believe my ears when the witness said that Defendant X had been injured badly, possibly as a result of a gun shot when the Police was arresting him, but he wasn’t taken to hospital or given any treatment until a few days later, coincidentally, immediately after Defendant X’s confessional statement had been taken! Not only was the injured Defendant X not allowed to remain silent or have a legal representative present while he was making the statement, the excruciating pain he felt as a result of his injuries was used as the tool to make Defendant X incriminate himself! In Atuche v FRN 2015 4 N.W.L.R. Part 1449 Page 306 at 330 per Ikyegh, JCA, the Court of Appeal defined incriminate as “to identify (oneself or another) a being involved in the commission of a crime”. Also see the case of Umar v State (2016) LPELR-41182(CA). In Rabiu v State (2010) LPELR-4888(CA) per Mary Ukaego Peter-Odili, JCA (as she then was), the Court of Appeal held thus: “….the purported confessional statement of the Accused/Appellant was not produced through his free will. This is because there has been incontrovertible evidence showing that the statement, though under caution, was obtained after serious violence done to the person of the Appellant alongside threats and inducement, and therefore, the voluntariness that ought to be present to give validity to the Statement was absent. That the superior Police Officer endorsed the statement did not cure the fundamental damage done to the voluntariness of that statement, thereby rendering it inadmissible in evidence”. Just like Rabiu v State (Supra), Defendant X hadn’t been allowed to remain silent; his statement, which was one of self-incrimination, was improperly obtained after he had been seriously injured and left in acute pain without medical treatment.
Sometimes, the Police ask Suspects basic questions – personal details – name address, age, etc and then proceed to fill the Statement Form for them. In one incident, I was surprised when Defendant Y whose statement had been thumb-printed, was able to sign a document in my presence! I had assumed that he couldn’t speak English, nor read or write. He said he could – but that, the Police had insisted that they would fill in the Statement Form for Defendant Y.
Not only are Nigerian Suspects not allowed to enjoy their right to remain silent when they are arrested, they are made to incriminate themselves while words are also put into their mouths by the Police. Additionally, their statements are taken in the absence of legal representation, without being video recorded! So much for the Police Caution or MR!
Conclusion
In my almost 34 years of practice as a Lawyer, I’m not sure that I can say that I have ever seen many extra-judicial statements of accused persons countersigned by their Lawyers. They are usually countersigned by the Police. And, maybe that’s why most statements are confessional statements! Because, whether the MR or PC, these Suspects’ rights are breached by law enforcement agents with reckless abandon.
How many sane people would sit down to implicate themselves so deeply, and admit to committing heinous crimes to the level that we see in so-called confessional statements? Not many. Yet, the irony is that possibly 50% or more of convictions on criminal cases across Nigeria, are secured based on confessions! Or is it that most Nigerian Suspects have loose tongues, so much so that they readily and voluntarily use their own mouths to hang themselves?! I think not.
Something is certainly not right with what transpires between law enforcement agents and Suspects, from arrest to taking statements and beyond. The sum and substance of it is that, in reality, it is the opposite of the MR or PC that obtains, just as it is with other parts of the criminal justice process – the presumption of innocence until proven guilty (Section 36(5) of the Constitution), is in reality, more like guilty until proven innocent. Instead of bringing Suspects to trial within the timelines specified in Section 35(4)-(5) of the Constitution, Defendants languish in prison for years, awaiting trial and congesting the prisons, with or without the services of Counsel. And, instead of being given the right to remain silent etc, Suspects are coerced by all means, including physical torture, to confess. See the Anti-Torture Act 2017.
The Nigerian administration of criminal justice system would do better to have something like the UK Police and Criminal Evidence Act 1984 (PACE), which outlines the procedure that must be followed to regulate the process from arrest of a Suspect to charge. It should be the Handbook, not just for law enforcement, but for Lawyers and Judicial Officers on the clear, unambiguous steps that must be followed to satisfy the MR or in the case of Nigeria, the rights of Suspects set out in the PC, Constitution and ACJA.
P.S.
Congratulations to the 2025 SANs! Isn’t it interesting that while the LPPC has reduced the number of Academics being conferred with the rank to only one per year, SANs are now being called Professors without necessarily going through the rigours that Academicians must pass through, before reaching the helm of their career to become Professors!
