By Onikepo Braithwaite
As the Fapohunda Committee updates the 2004 Laws of the Federation of the Federal Republic of Nigeria, some laws require attention, particularly for better dispensation of justice, criminal justice to be precise. While many complain that the Nigerian wheels of justice move too slowly, it’s even worse for the administration of criminal justice here, the slowness of which often results in the breach of fundamental rights of Defendants (accused persons). There is no better time than during this updating of laws exercise, for one of the most important laws in this regard, the Administration of Criminal Justice Act 2015 (ACJA), to be directed to the National Assembly (NASS) for amendment. I had already pointed out that, for instance, Section 396(7) of ACJA which was first struck down by Gabriel Kolawole J’s (as he then was) ruling delivered on 25/1/2019 in Charge No. FHC/ABJ/CR/185/2009 FRN v Iwueke where he held inter alia that though Section 396(7) of ACJA was laudable, since its intention was to facilitate a speedy delivery of justice, a constitutional amendment was required for it to stand. It had to do with a Federal High Court Judge elevated to the Court of Appeal, being able to conclude part-heard criminal matters despite the elevation. Kolawole JCA held that for a Judge to be able to wear two caps simultaneously, that is, one of a Federal High Court Judge and another of a Court of Appeal Justice, a constitutional amendment would be required. The Supreme Court upheld Kolawole JCA’s view, and Section 396(7) of ACJA was declared void due to its inconsistency with Section 290(1) of the Constitution in Ude Jones Udeogu v FRN & 2 Ors 2022 3 NWLR Part 1816 Page 40 per Ejembi Eko, JSC. Accordingly, it must be removed from the updated statute, while the discrepancies between the Child’s Rights Act 2007 (CRA) and ACJA with regard to the prosecution of child offenders must be addressed, not just so that that they can be in sync, but so that the process of prosecution of child offenders is clearly laid out from arrest to prosecution, conviction and punishment. Also see Section 35 of the Nigerian Correctional Service Act 2019 on accommodation for juvenile offenders.
In the aftermath of the #EndBadGovernance Protest, when an argument ensued as to the venue of the prosecution of the minors who were charged for treasonable offences, the Attorney-General of the Federation had stated that minors could be tried for treason at the Federal High Court (FHC), because Section 251(2) of the Constitution vests the FHC with the jurisdiction to try treason and other allied offences. This may very well be so, but the provision doesn’t provide that such jurisdiction is exclusive to the FHC, as it unequivocally provides exclusive jurisdiction for those listed in Section 251(1) of the Constitution. Now that a situation of minors being charged at the FHC has occurred, it is apposite that this issue is addressed in ACJA and the CRA during the law updating exercise. It may be that Section 251(2) of the Constitution, may require some amendment.
Breach of Fundamental Rights
The way in which criminal justice is presently administered in Nigeria, usually results in the breach of the fundamental rights of accused persons. See for example, Sections 33, 34(1)(a), 35 & 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). Among the breaches, Defendants are kept in inhumane conditions at the Correctional Facilities which are mostly unfit for human habitation; their right to liberty is seriously violated, as many spend years in custody awaiting trial; some detainees are tortured while in custody and a few even disappear, never to be heard from again, so much so that, NASS enacted the Anti-Torture Act 2017 (ATA) which contains severe punishments for law enforcement agents who are caught engaging in torture of those in their custody.
There’s also usually a long delay between the arrest of a Defendant, and when they are actually brought to trial. Many a time, the Prosecutors hinge their cases on the Investigating Police Officer (IPO) as the principal witness, and these IPOs sometimes either become constantly unavailable or even disappear. The cases then suffer numerous adjournments spanning several years, while Defendants remain in custody.
Though Section 35(4)(a) & (b) of the Constitution provides that a Defendant should be brought to trial within two (where the Defendant is in custody) or three months (where the Defendant is granted bail), accused persons languish in jail for years awaiting trial. They are also not released unconditionally or subject to conditions, by virtue of the provision of Section 35(4)(b) of the Constitution for trial at a later date when the prosecution may be ready to proceed. Instead, they are kept in custody awaiting trial ‘sine die’. Even for those charged with capital offences, where bail may only be granted by the High Court in exceptional circumstances, for example, circumstances in which the accused person is suffering from an illness which the Correctional Facility doesn’t have the medical facilities to treat, or there’s extraordinary delay in investigation, arraignment and prosecution exceeding one year (see Section 161(1) & (2)(a)-(c) of ACJA), they are usually neither granted bail nor brought to trial within a year.
Section 110(4) of ACJA talks about commencing criminal trials within 30 days of preferring a charge and completing the trial within 180 days. However, it doesn’t make it mandatory, at least not the way timelines are clearly set in Section 285 of the Constitution and the Election Act 2022 for pre-election matters and election petitions all the way to the Supreme Court. Courts are permitted to give the Chief Judge reasons or rather excuses, for why the trials haven’t commenced or been completed within 180 days. It is time that the timelines are unequivocally set out in ACJA. If the Constitution says that an accused person must be charged to court within 60-90 days of arrest depending on the circumstances; and ACJA provides trial commencing 30 days after the charge has been preferred, and completed within 180 days of arraignment; judgement within 90 days of the conclusion of evidence and final addresses (Section 294(1) of the Constitution) – see Rossek & Ors v ACB Ltd & Ors (1993) LPELR-2955(SC) per Adolphus Godwin Karibi-Whyte, JSC where the Supreme Court held that a judgement that is delivered more than three months from the final addresses is a nullity. All this should be codified. The practice of Judges asking Counsel to re-adopt their final addresses when they have failed to meet the 90 day deadline to deliver judgement shouldn’t be permitted, particularly when accused persons have had to wait for extended periods of years before going to trial.
Considering the fact that there’s a presumption of innocence until an accused person is proven guilty (Section 36(5) of the Constitution), ACJA must be tweaked so that all the fundamental rights of Defendants are upheld. Currently, criminal justice, at least for the adjudication of offences which the common man are mostly accused of, seem to treat Defendants as if they are guilty once they are arrested.
Confessional Statements
Contrary to Sections 3 & 4 (a) of ACJA and the Nigeria Police Act 2020 (NPA) respectively (and other provisions of establishment statutes of other law enforcement agencies, with regard to investigation), not much investigation appears to go on when an individual is suspected of committing a crime. Unlike the FBI in US, that can trail a suspect for years to gather information that will be used to nail the suspect in court, Nigerian investigation seems to comprise mainly of confessional statements of the accused persons! A confessional statement is a statement in which the Defendant admits to committing the offence he/she is charged for. See Sections 28, 29 (2)(a) & (5) of the Evidence Act 2011 (EA) and Nkie v FRN (2014) LPELR-22877 (SC) per John Inyang Okoro, JSC on the definition of a confessional statement. Since so much emphasis is placed on the confessional statements of the Defendant, the process of obtaining them must be unimpeachable. Yet, it usually isn’t, and this is another area of concern in ACJA that requires urgent attention – Sections 15 & 17 concerning the extraction of a Defendant’s statement at the Police station or other law enforcement agency, because for instance, the Police do not always use the right methods to extract confessions. The Police have been known to torture suspects into confession, or after asking the suspect basic questions about their name, address, etc, simply attach a written confession to their responses to these basic questions without their knowledge, only asking them to them sign or thumbprint the statement at the end – a sort of entrapment.
Section 15(4) of ACJA makes it mandatory that a confessional statement must be in writing (without the mention of a legal practitioner being present), but electronic recording is optional, while Section 15(5) thereof makes it worse by providing that notwithstanding Section 15(4), an oral confession is admissible in evidence. Both provisions appear to be deficient. The law must provide unequivocally, that it is mandatory that a Defendant’s statement must be recorded in an area where the whole environment surrounding the area is clearly visible in the recording, or taken in the presence of his/her legal practitioner or both. See the case of FRN v Akaeze (2024) LPELR-62190(SC) per Helen Morinkeji Ogunwumiju, JSC on the necessity of video recordings in confessional statements.
Practically every Defendant has an extra-judicial confessional statement, which forms part of the Prosecution’s proof of evidence, and the first thing that happens when the trial commences, is that the Defence Counsel raises a preliminary objection as to the admissibility of the Defendant’s confessional statement, on the ground that it was made under duress (involuntary) – that the law enforcement agents used force to extract the confession. This then leads to a trial-within-trial, where the voluntariness of the Defendant’s confessional statement must be established, in order to determine its admissibility or otherwise. This is yet another avoidable time wasting exercise that impugns on the Defendant’s right to a fair and speedy trial; if statements of accused persons are properly taken, there will be no room for doubt.
Conclusion
In the UK on which we base legal system on, the timeframe for the determination of criminal cases is more certain. A person is usually charged within 1-3 days of arrest. Investigation takes place before arrest, unlike Nigeria where investigation takes place after arrest (see Section 3 of ACJA). More serious cases are heard at the Crown Court, and take between 6-18 months. Judgement is usually delivered within 4 weeks of the trial being completed. Be that as it may, the prisons in UK are almost full to capacity, but due to certain reasons, like longer custodial sentences and backlog from the Covid-19 period.
The reasons for the lapses in our system are due to multiple reasons, not limited to muddled up provisions and procedures, with regard to the administration of criminal justice; inefficiency; corruption; disrespect and disregard for the rule of law. We therefore, need to reconsider our criminal justice system, not only to make it function more efficiently, and so that the fundamental rights of Defendants are upheld, but, so that our prisons can also be decongested.
And, when the ACJA is amended accordingly, these amendments must be reflected in all the State Administration of Criminal Justice Laws, for completeness. Isn’t it ironical that a criminal justice system whose primary goal is to mete out justice, has given so much chance for injustice, so much so that the fundamental rights of accused persons, are breached with gusto and aplomb by the authorities? This window of opportunity to correct these anomalies, provided by the current updating of laws exercise, must not be missed.
Onikepo.braithwaite@thisdaylive.com