By Ebun-Olu Adegboruwa, SAN
The main responsibility of the court is to interpret the law and provide enforceable guides for the implementation of laws and policies of government. This is why Section 287 has been inserted in the 1999 Constitution of the Federal Republic of Nigeria for all persons exercising executive, legislative and judicial authority to obey and enforce all decisions of courts established by law. The stage is thus set for the enforcement of the statutory prescriptions contained in the Administration of Criminal Justice Act by all the law enforcement agencies. The Inspector-General of Police under the Constitution and the Nigeria Police Establishment Act has statutory authority over general command and operations of the police force in Nigeria. The decision of the Supreme Court in FRN v. Akaeze and a host of other cases that have offered binding judicial pronouncements on the mode of obtaining the statements of suspects should constitute working instruments to guide all officers involved in criminal investigation. This is because the police is the law enforcement agency that is closer to the people presently, given that there is at least one police division or station in every local government area in Nigeria. Working with the legal department of the police, a new set of guidelines should be developed and codified for distribution in all divisions of the police regarding this matter. In addition, regular training sessions by seasoned criminal law experts should be organized for all police officers involved in criminal investigations in order to bring them up to date with this crucial development. No excuse should be proffered by the police and none will be accepted by the people after these authoritative declarations from the final court. The purpose of enacting ACJA is to depart from the archaic and mundane procedures of criminal investigation, where brute force and torture have been the order of the day in most police formations. This much was stated by the Supreme Court at page 21 paragraphs E-G of the judgment.
“The fundamental purpose necessitating the enactment of the Administration of Criminal Justice Act, 2015 is unequivocally provided in Section 1 of the Act. The section states that the purpose of the Act is to ensure the system of administration of criminal justice in Nigeria promotes efficient management of criminal institutions; speedy disposing of justice; protection of the society from crime and protection of rights and interests of the suspect, the defendant, and the victim; and that the courts, law enforcement agencies, and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of the Act for the realization of its purposes.”
The Houses of Assembly of the States in Nigeria have either adopted ACJA or enacted statutes with similar provisions for the administration of criminal justice. As critical stakeholders in the chain in criminal justice administration, the police and all other law enforcement agencies should collaborate together to develop a uniform procedure of compliance with the decision in FRN v. Akaeze. Section 2 (1) of the Administration of Criminal Justice Act, 2015 states that the provisions of the Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja. So long as security and other matters related to it are retained in the Exclusive Legislative List of the Constitution, most law enforcement agencies will continue to wear the federal outlook, the consequence of which is that criminal investigation will most likely be governed by ACJA, which contains statutory provisions governing arrest, investigation and criminal prosecution of suspects, especially Section 3(3) thereof that: ‘a suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of the Act, except otherwise provided under the Act.’
Lawyers also have a critical role to play in effective criminal law administration. Sections 15(4) and 17(2) of ACJA place a great burden on lawyers who go to police formations to represent suspects. The reason why the law has imposed an obligation for their physical presence during the process of obtaining the statement of the suspect is to protect the suspect from threats and abuse and also to assist the police in verifying the voluntariness of the statement. In this regard, the Nigerian Bar Association should produce a document containing guidelines outlining the duty of lawyers attending statement recording sessions. Such document should contain matters of introduction as to the name of counsel, his office, his seal and his relationship with the suspect. Counsel should write a letter of confirmation to the police wherein his details are provided as his contact point. As soon as the suspect is arrested, his lawyer should be informed immediately. The document should also specify the role of counsel during the session to avoid undue interference by way of dictating to the suspect or taking over the process of recording his statement. He is to take notes during the session and raise objections where the police seem to suggest answers to the suspect for adoption or lead the suspect in any other way. Counsel should be allowed to have a private meeting with the suspect at least thirty minutes before the recording session commences. In that meeting, counsel will ascertain the state of health of the suspect, his physical and mental ability and the general condition of the place of detention. In addition, counsel will confirm if the suspect has been tortured or threatened by the police in any form. This is to establish the voluntariness of the statement of the suspect. The lawyer is not to attend the statement recording session as a robot procured for the sole purpose of endorsing the said statement. While not interfering in the process of recording the statement, he must also ensure that the real purpose of demanding his presence is achieved. It is in the interest of the police and other law enforcement agencies to work with the NBA to achieve this objective, as stated by the Supreme Court on page 31 paragraphs G-H of the judgment in FRN v Akaeze that the prosecution bears the burden of proving the voluntariness of the statement of the accused
“The legal and primary burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt includes the proof that a confession by the accused person while under arrest and in the custody of the prosecution was made freely and voluntarily. Therefore, if there is any reasonable doubt that the confession was voluntary, then the prosecution has failed to prove that it is voluntary.”
The video of the recording session should be part of the proof of evidence front-loaded with the information to be filed in court. It should be served on the defendant so that he can share it with his counsel ahead of his trial. What ACJA has done is to save the suspect, the police, the court and indeed society at large, of the wastages associated with previous experiences of trial within trial, whereby the main criminal trial is jettisoned on account of the tardiness of the investigative process. Cases of non-compliance should thus be visited with appropriate sanctions by the police authorities and the NBA. To my mind, one of the reasons for this elaborate process is to assist the criminal law administration in order to ascertain the involvement of the suspect in the offence. The usual complaint of suspects is that of threat, abuse and torture by the police and this goes to the root of criminal trials as it will be improper to proceed against an innocent soul who has no hand in the commission of the crime, but where the involvement of the suspect has been established prima facie, he should not be allowed to use the lapses of the police to escape justice. The police and the NBA should therefore hold sessions together to share and compare notes with regard to the code of conduct for police officers and lawyers involved in the statement recording sessions of suspects. This will eliminate confusion and avoid inconsistencies in the implementation process. This has become so vital to criminal law administration that it should not be left to the nuances of individual police officers and lawyers.
The Supreme Court has also placed a heavy burden on judges overseeing criminal trials in relation to confessional statements. Since the lawyer of the defendant was with him at the statement recording session, there is nothing wrong if counsel is invited by the court to give evidence of what happened at the session in cases where the defendant is trying to play smart by deliberately denying his own voluntary confession. The law is for the protection of the suspect, not for him to deploy to take advantage of the prosecution. Once the police and the NBA have been able to agree on the code of conduct for statement recording sessions, it should be shared with the court to serve as a guide in the determination of the voluntariness of the statement of the defendant, especially in serious cases. This will work to simplify the trial in compliance with the decision of the Supreme Court.
Source: BarristerNG
