10th December, 2015
Ademola Owolabi
The state of the Law is a mirror reflecting the state of any society. For example, several nation states have abolished the death penalty while some states are still adopting death penalty as a punishment for certain offences such as murder, treason and kidnappings.
Prior to May 13, 2015, the principal legislations with respect to criminal prosecutions are the Criminal Procedure Act for Southern Nigeria and the Criminal Procedure Code, applicable to the Northern Nigeria.
However, on May 13, 2015, the former President Goodluck Jonathan assented to a new law unifying both the CPA & CPC to form the Administration of Criminal Justice Act 2015 (ACJA) to apply in all Federal Courts in respect of Federal offences. It must be noted that the CPA & CPC have equivalents in some states of the Federation. So while the CPC/CPA are no longer extant legislation in Federal sense, we have many states still adopting their provisions as Criminal Procedure Laws in such state.
The new legislation is innovative no doubt. The former laws are obsolete making a need for the ACJA imperative. It is also recognised that in our quest to fight corruption and other crimes, the CPA/C have failed in assisting the nation to get rid of these malaises.
I am of the view that for the ACJA to be effective, certain institutions must be strengthened or if need be overhauled. For example, let us consider Lagos State where the Administration of Criminal Justice Law has been in existence since 2011. In fact, it is safe to say that the Administration of Criminal Justice Act is a federal offshoot of the Lagos Administration of Criminal Justice Law.
Police still arraign offenders before courts that have no jurisdiction to try such offences such as arraigning a suspect before a Magistrates’ Court over an offence of murder when both the Police and the Magistrate ought to know that magistrate courts have no jurisdiction over capital offences. The magistrate will simply remand the suspect, adjourn sine die and order the police to duplicate the case file and forward same for DPP’s advice. This dangerous practice is nothing different from Holden Charge despite that a full panel of the Supreme Court in Enwere vs COP (1993) 6 NWLR pt. 229 at pg 333 declared that Holden Charge has never been part of our criminal jurisprudence.
It must be noted that 90% of criminal prosecution in Nigeria take place at the Magistrates’ Courts. See ‘Nigeria: Rest in Pieces by hrw.org/reports/2005/nigeria0705’. It is therefore important that the ACJA ought to have specifically abolished the practice of holden charge in whatever form.
Fundamental area requiring urgent review is section 221 of the Act. The section provides thus: “Objections shall not be taken or entertained during proceeding or trial on the ground of an imperfect or erroneous charge”.
It is surprising that several legal practitioners and human rights activists have been celebrating this provision which I consider as the gravest affront to freedom in criminal prosecution.
One of the fundamental defences against abuse is that courts have inherent power to prevent abuse of process. In the case of R-Benkay Nig. Ltd vs Cadbury Nigeria Limited, the Supreme Court restated the fact that courts have inherent powers to prevent abuse of court process. It must be noted that what constitutes an abuse of court process is wider and almost non-exhaustive.
Section 221 is dangerous because it prevents a court from doing justice to a case where it is obvious that the charge is frivolous or vindictive. Section 221 is saying that a suspect (who is deemed innocent until his/her guilt is established) cannot challenge the charge until the prosecution has called his witnesses and closed his case! In a country where trials are prolonged because of unnecessary adjournment, irrational elevation of judges, logistical nightmares, holidays and strikes by judicial workers, denying a suspect from challenging his trial is most unfortunate and a grave assault on freedom.
A scenario will drive home the danger inherent in section 221. A man born on March 21, 1976 is charged with the offence of participating in the June 29, 1966 military putsch which happened 10 years before he was born. This is simply impossible. Section 221 is saying that the accused person and even the judge should wait until the prosecution has called its witness to prove a case which is simply factually impossible.
In a society like ours where powers are employed to settle scores and vindictiveness is a rule of the state, to prevent an accused person from attacking his arraignment and trial until the prosecution had called its case is worse than Stalinist legal system.
Section 221 is therefore an affront against common sense and orderly society which law must promote. In the case of Abacha vs. State, a full panel of the Supreme Court states as follows:
“The Court below (Court of Appeal) opined that such challenge to quash an information should not be encouraged. With greatest respect, in a democratic setting, as we now are with no legislative ouster of courts’ jurisdiction, all PERCIEVED ABUSES should be tested if confidence is to be preserved for courts as final arbiter in peoples’ right.”
The ACJA failed to distinguish between trial on information and summary trial procedure. There are certain cases where judges need to test the truth and cogency of witness’ evidence. In such cases, the magistrate may require test of demeanour of the witness in deciding cogency of evidence. This is different from a case where the proof of crime alleged is documentary in nature. Examples are financial crimes where evidences are often in written form. Such written evidences and experts’ opinions are always in written form and form the Proof of Evidence. In such a case, there is not more that the prosecution witness is coming to do than to adopt his written statement which are already before the court.
Now, if we adopt the strict and (with greatest respect) the injudicious test of Section 221, despite the fact that all the evidences are before the court and the Defendant (in asking that the information be quashed) because the charges are frivolous or weak or constitute an abuse of court process or there is no nexus between the charge and the proof of evidence, the defendant must be tried!
Section 221 also violates Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 6 of the CFRN protects the inherent powers of jurisdiction of the court to protect abuse of process. It must be noted that any laws that violate the Constitution (ground norm) cannot stand. Section 221 is unconstitutional in that it violates Section 6. A court stripped of its inherent powers to prevent an abuse of its process is no longer a court.
In a democratic setting as we have, it is an affront to fundamental right of any person to require him to stand trial when it is obvious that the charges are defective. We have been told that the ACJA is to make for speedy trial but the law is replete with anachronistic provisions. It is fallacious to think merely changing the law will do the magic. Speedy trial will come where there is attitudinal change from the bar and the bench. Trial logistics such as transport for defendants in prison custody must be looked into.
The question must be asked why will police await a magistrate’s order before forwarding a case file to the DPP for his advice? Why can’t the police on its own duplicate the file and seek DPP’s advice? Is there any statutory or administrative fund earmarked to cover the cost of duplicating such files? In several instances, the order that a case file be duplicated is often an empty order because the police prosecuting will still be expecting the defendant or his family to provide the money to cover the logistics of duplicating the file as well as taking the file to the DPP. In some instances, the defendant or his family will have to see the staff at the DPP’s office to speed up preparing the advice!
The point is that in a bid to fight graft and organised crimes, we must not sacrifice liberty of person. Our laws must reflect deep thoughts. I end this piece by quoting our Supreme Court in the case of Abacha vs State that: “To face trial is not a matter to be treated with levity, a trial SOMEHOW infringes on the liberty of the subject…”
We submit that Section 221 should be expunged from the ACJA since its objective is to infringe on the right of an accused person to fair trial. Section 221 also prevents the judges from doing justice since a court can no longer prevent abuse of its process no matter how obvious!
—Owolabi, Esq. is a lawyer and the Managing Partner of Ademola Adetokunbo & Co.