By Kate Okoh Kpina
Anecdote
….at 3.27am sometime in December 2017, my phone rang; it was a call from my neighbor’s wife. My heart sank because I knew something had gone wrong. I picked the call and the voice on the other end of the phone was shaky. We have just been robbed, my neighbor’s wife said.
Not again! This would be the third time within a relatively short space of time. I stay in a decent area in Abuja, the Federal Capital Territory of Nigeria; how could this incident be so rampant in such a location? I looked out of the window and saw a police van had pulled up by my house and I summoned courage to go outside to see my neighbor – an almost always calm man, who was visibly distraught by the incident.
He managed to describe the robbers to the police, who retorted that they had seen some guys that fit the description while on their way to our house. The policemen drove off immediately to see if they could apprehend the guys but unsurprisingly, they came back shortly, without success.
I wondered to myself how well trained police officers, on their way to answer a distress call could see a group of young men at that hour of the morning and not be suspicious enough to apprehend them for interrogation. This does not speak well of the intelligence and investigative capacities of our police officers, who are first responders to distress calls. In fact, such a sight of men gathered in the middle of the night raises reasonable suspicion and the chain of circumstances becomes potent for any first respondent officer.
At the crime scene in my neighbor’s house, it was apparent that the basic principles of crime scene management were not adhered to. The officers did not even come along with writing pads and pens, not to mention a forensic kit. Basic forensic items such as masks and gloves, which are personal protection equipment that help to prevent contamination of the crime scene were not available. Other basic items such as brushes to dust for fingerprints, cameras to take photographs and paper or plastic bags to package and preserve the integrity of evidence obtained from the crime scene in the chain of custody were also not available. It was very disheartening to say the least.
With the trend of break ins- both at day and night time as well as rising crime, homeowners have found it expedient to utilize high tech security companies for additional protection. Whereas the primary function of government in the Constitution is for the security and welfare of lives and property.
Challenges and prospects of the criminal justice system
The Nigeria Police Force (NPF) with about 300,000 officers was rated the worst in the world by the 2016 World Internal Security & Police Index. There are also numerous challenges inherent in the criminal administration system ranging from inadequate infrastructure to gather intelligence and investigate crime; insufficient trained personnel; delayed trials; congested prisons, to mention but a few.
In 2015, the ACJA was enacted as a federal legislation governing criminal procedure in Nigeria. It repeals the Criminal Procedure Code and Criminal Procedure Act applicable in the Northern and Southern parts of Nigeria respectively. As a result of the revolutionary provisions of the ACJA, a number of International Government Organizations such as the Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ) – a German development agency are lending support to implement the ACJA provisions.
10 leading innovations of the ACJA and how it affects the rights of Nigerian citizens.
The advent of the ACJA 2015, introduces a number of innovations, 10 of which I will discuss under 3 broad sub heads to wit: arrest; trials and verdict/judgment as well as the legal rights therein.
Arrest protocols
Records of arrest.
During arrest, the arresting officer should inform the suspect of the reason for his arrest and his right to remain silent until after consultation with a legal practitioner of his choice or a legal practitioner from the legal aid council, if he cannot afford one.
The arresting officer is also required to document details of the suspect – height, photograph, fingerprint or such other means of identifying the suspect. See s. 6 & 15 ACJA. See also s. 36(6) of the 1999 Constitution (as amended)
Rights: Everyone therefore has the right to be informed of the nature of his offence; his right to be represented by a legal practitioner and a proper documentation of the records of his arrest.
Arresting agencies are prohibited from arresting in lieu or proxy of the suspect. See s. 7 ACJA. In addition, Article 7(2) of the African Charter on Human and Peoples’ Rights further provides that punishment is personal and can only be enforced on the offender.
Rights: This provision brings an end to the indiscriminate arrest of relatives, friends or acquaintances of the suspect, which was prevalent in the Nigeria criminal justice system.
Trials
Timelines
The ACJA has zero tolerance for frivolous adjournments as it sets timelines for legal advice; remand; objection to a charge and day to day trial of a defendant. See s. 296, 376, 396 ACJA
Rights: These timelines by the ACJA ensure speedy trial in line with the constitutional provision in s. 36(1) 1999 Constitution that a person charged with a criminal offence is entitled to a fair hearing within a reasonable time.
The establishment of a Central Criminal Records Registry (CCRR) at the NPF
The ACJA provides for the collation of records of arrest and the decisions of the court to be kept and transmitted to the CCRR. See s. 16 ACJA
Rights: Prior to the enactment of the ACJA, s. 30 of the Police Act, LFN 2012 provides that such records be destroyed or handed over to the defendant upon his discharged or acquittal.
However, the ACJA now clearly overrides this provision to expunge records by providing for the retention of records in the CCRR, the culture of which has been nonexistent in Nigeria for a long time. This procedure encourages accessibility to data, monitoring, accountability and transparency.
Electronic recording of a confessional statement
The ACJA has also provided for the admissibility of electronic recording of a confessional statement on a video/audio disc. See s. 15(4) ACJA and also s. 84 of the Evidence Act, CAP E14, LFN 2004 that makes provision for computer generated evidence to be admissible in Nigerian courts.
Rights: Electronic recording of confessional statements ensure statements are obtained voluntarily in line with international standard and human rights and that the inhumane practice of torture, which is repugnant to natural justice, equity and good conscience is abrogated.
Abolition of interlocutory appeals
Under the ACJA, courts no longer entertain application to stay of proceedings on the basis of appeal, which is mostly used as a ploy to stall and elongate criminal trials as upheld by the Supreme Court in the case of Olisah Metuh v. FRN (2017) 4 NWLR (part 1554) 108 @ 131. See s. 306 ACJA
Rights: Although the right to appeal is a universally acclaimed principle of law which the European convention recognizes even in criminal matters; the intendment of the ACJA is to reduce delay in criminal proceedings which in its very nature should be tried and concluded speedily.
Plea bargain
This procedure allows for the negotiation of a lesser offence for a defendant who is willing to cooperate with the investigation or prosecution process. See s. 270 ACJA.
Rights: It ensures justice is served as the State no longer expends time and resources in prosecution.
The writer’s view: Pleas bargain was almost abhorred in criminal proceedings prior to the ACJA. It is similar to applying the Alternative Dispute Resolution (ADR) technique of negotiation in civil proceedings. It is not alien to Christians when viewed from an economic & financial crimes angle, gleaning from the encounter Jesus Christ had with Zacchaeus the tax collector in Luke 19:8. Tax collectors those days were looters of the public treasury and likened to the politicians of our days, but when Zacchaeus met Jesus, he repented and willingly returned 4x what he had illegally obtained as well as gave half of his property to the poor. This to me was Plea bargain at play 2000 years ago.
The recognition of women to stand as sureties in Bail proceedings
Although there was no law prohibiting the right of women to stand as sureties prior to the enactment of the ACJA, conventional practice as a matter of procedure excluded female sureties for the purpose of granting bail to a suspect.
The ACJA has put an end to this unwritten procedure by stating that no person shall be prevented from standing as surety for any defendant on the grounds that the person is a woman. See s. 167 (3) ACJA. See also s. 42 of the Constitution which prohibits discrimination on the grounds of sex, ethnic group, religion or political affiliation and the Convention on the Elimination of Discrimination against Women (CEDAW) adopted in 1979 by the UN General Assembly and ratified by Nigeria, to ensure our laws are in line with international standards and human rights.
Rights: These provisions reduce discrimination on gender to the barest minimum and upholds the equality of women and men in a time where there is increased clamor for gender parity.
Prohibition of lay prosecutor
The ACJA makes the prosecution of federal offences the exclusive preserve of legal practitioners and puts to rest the controversy in the Supreme Court decision which affirmed the power of police prosecutors to prosecute criminal cases whether or not they are legal practitioners in Federal Republic of Nigeria v. Osahon (2006) 5 NWLR (pt. 973) 361. See s. 106 ACJA.
Rights: The State/Citizens are assured of quality legal representation in criminal matters as opposed to having police officers who are not legal practitioners prosecute criminal cases. These lay prosecutors may not be well equipped to respond to questions of law when raised by defendant.
Judgement/Verdict
Compensation and Restorative justice
Remarkably, upon conviction of a defendant, the court can award compensation against the defendant in favor of the victim. See s. 319 ACJA.
Another notable ACJA innovation is restorative justice which places less emphasis on the punishment of the convict by imprisonment, but on reforming the convict through the use of non-custodial sentences such as rehabilitation centers, community service orders etc. This reduces the rate of pretrial detention and prison congestion in our Nigerian prisons. See s. 453, 460 & 468 ACJA
Rights: The defendant, whilst paying compensation loses a measure of his economic wealth as punishment for the crime, but can also be rehabilitated into the society through non-custodial measures, instead of rotting in the prison.
The victim gets some financial redress for the injury he has suffered as a result of the crime, even though such compensation would in most criminal cases not restore him to the position he would have been, save for the crime.
The State also enjoys the privilege of being viewed as empathetic to the plight of the victim, when compensation is paid to the victim. This helps to build trust between the State and its citizens.
Conclusion
In criminal investigation and prosecution, the world has moved from confessions to evidence based trials and in Nigeria, these 10 innovations of the ACJA support this scientific and technological shift. Lagos state has taken the bold initiative to set up a world class DNA laboratory and Forensic Centre on the Island – the beauty of which is credibility.
The next concrete step is to have a law enforcement process to ensure that there are first responders to a crime scene to cordon off the scene and prevent contamination; ensure preservation of the evidence at the scene and subsequently, the packaging of evidence to preserve the integrity in the chain of custody until it is tendered in Courts for the conviction or acquittal of the defendant.
Synergy between the actors of the criminal justice administration must be encouraged through regular joint meetings; continuous trainings to develop their capacity and the provision of basis equipment for officers to functions effective, all of which will ensure improved access to justice in line with the Sustainable Development Goals of the UN – particularly Goal 16, which provides for peace, justice and strong institutions.
The efforts of development partners such as GIZ, British council, United Nations etc. are largely commendable. However, there must be room for sustainability to transcend the life span of the development projects and ensure continuity of set standards.
Citizens must give relevant information to the law enforcement agencies and be alert to their rights under the ACJA some of which I have highlighted above. The government must improve the living standard of the citizens, reduce unemployment and poverty, which are root causes of rising crime and which unfortunately has become the bane of our society. The security and welfare of citizens is the primary function of the Nigerian government and they should be held accountable when they fail to live up to their responsibilities.
About the author
Kate Okoh Kpina is legal practitioner who is committed to using the law as a constructive tool for the development of the African continent. She holds an LL. B from University of Benin, Nigeria and an LL.M from University College London (UCL) as the UCL John Carr 2013 scholar. She also holds training certificates from the ICC & International Court of Arbitration, Paris as well as the Harvard Negotiating Institute, Boston in arbitration and negotiation respectively.
She is presently the Advisor, Rule of Law to the Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ) Police Programme Africa (PPA) – Nigeria, where she supports the GIZ PPA in the implementation of the ACJA.
Her articles on Crowdfunding, Electricity, Infrastructure and Mergers & Acquisitions are published on International Law Office (ILO) and Bellanaija
