By Ani Comfort Chinyere (Mrs.), LLB. (Hons.), BL; LL.M.,

Ag. Head, Centre for Conflict and Dispute Resolution,

Nigerian Institute of Advanced Legal Studies, Lagos.

 

 

INTRODUCTION

The term Criminal Justice connotes the machinery, procedures, personnel and processes, which have to do with the operation/administration of the criminal law. In a broad sense, it covers the arrest, trial, conviction and disposition of offenders.[1]  An effective criminal justice system must among other things, deliver justice for all by convicting and punishing the guilty and helping them to stop offending while protecting the innocent and raising public confidence that the system is fair and will deliver for the law abiding citizen[2].

 

There is no gain saying that our system of criminal justice administration is in urgent need of reformation and modernization especially at the federal level and for states that are yet to take action in this respect.  The issue of reforming the criminal justice system has, for several years engaged the attention of criminologists, legal practitioners, judges, academic writers, legislature, police officers, prison officials, other government officials, journalists and members of the general community. Ideas have been expressed on the definition of crime, the penal policy, the issue of payment of compensation to victims of crimes, the relationship between the culture of the people and the law of crime, sentencing practices, the prison system, the police, human rights and the issue of a uniform system of criminal justice in Nigeria, in various writings on criminal justice[3].

 

The system and laws on administration of justice we run today are vestiges of our British colonization. The Criminal Procedure Act (CPA) [4], Criminal Procedure Code (CPC)[5], Police Act[6], and the Evidence Act[7] had all never been subjected to a complete review. While some of the provisions of the laws are in need of transformation to reflect the true intents of the Constitution and the demands of a democratic society, there is wide spread abuse of the provisions of the laws by the law enforcement agents, notably, the police, prosecutors and lawyers.

Former Attorney General of Lagos State, Professor Yemi Osinbajo SAN, had commented:

 

“An effective criminal justice system is fundamental to the maintenance of law and order. Criminal justice, because it addresses behavioral issues, must be dynamic and proactive. … Consequently, many of the provisions are outdated and in some cases anachronistic. Besides, the loopholes in the laws and procedure have become so obvious that lawyers especially defence lawyers have become masters in dilatory tactics. It has thus become increasingly difficult to reach closure of any kind in many criminal cases. Convictions or acquittals have become exceedingly rare”[8].  

 

All the problems enumerated above, and many others, culminated in the need for a reform of the administration of criminal justice. Several workshops and symposia have been held in the past by succeeding administrations with a view to improving the administration of justice generally, and criminal justice in particular. The reforms in the administration of criminal justice generally at the Federal level have produced the Administration of Criminal Justice Bill which is quite significant for the role of prosecutors.

 

The Presidential Committee came up with the Administration of Criminal Justice Bill, 2005(ACJ Bill) meant to replace the present Criminal Procedure Code and Criminal Procedure Act. The Bill is still pending at the National Assembly.

 

These reforms are not only at the Federal level.  A State like Lagos State was the first State to initiate reforms in the justice sector. It organized a series of Stake Holders Summits where intellectuals gathered to brainstorm on ways to reform the justice sector. Three of such summits held in Lagos State, was on the administration of criminal justice. The summits gave birth to the Administration of Criminal Justice Law 2007 (ACJL Lagos State, 2007).

 

Past developmental initiatives by the Federal Government like the National Economic Empowerment and Development Strategy NEEDS articulated a kind of framework for the reforms that are presently taking place[9].  Another initiative of the Federal Government that is geared towards injecting the desired reforms in all arrears of governance and administration is the SERVICOM[10].

 

This paper endeavours to discuss the novel provisions of the Administration of Criminal Justice Law 2007 (ACJL Lagos State, 2007), which is already in operation in Lagos State and the yet to be passed Administration of Criminal Justice Bill, 2005(ACJ Bill) as they affect the prosecutor.

 

PROSECUTORS

A prosecutor is any person who institutes criminal proceedings by way of indictment or information on behalf of the State, who is nominally the prosecutor in all criminal cases[11].  In Nigeria, besides the Attorney- General and the police which are vested with prosecutorial powers, some other Federal agencies are also given powers to prosecute offenders by their enabling statutes. A private person can also be a prosecutor if certain conditions are satisfied. The following is a brief profile of prosecutors.

 

 Private Prosecutor

The law of Nigeria has given every person a right to prevent the commission of a criminal offence, and where it is committed, to lay a criminal charge against any one whom he sees committing the offence, or who he reasonably suspects to have committed the offence.[12] Any one who has sufficient information in his possession to establish the crime and identify an accused person is entitled to lay the charge. The Supreme Court justices held unanimously in the case of Gani Fawehinmi v. Halilu Akilu & Anor. In Re: Oduneye, D.P.P.[13], that every Nigerian has a right to prosecute any one for a crime committed.

 

A private prosecutor must satisfy the conditions specified in section 342 of the CPA[14] before signing and presenting information for the consent of the Judge to prefer the information. Section 342 provides an exception to section 341 of the CPA which requires all information to be signed by a law officer. The rights and obligations conferred by this section on a private person are not common law rights but statutory rights and obligations.

 

The Attorney General and the Law Officers

Constitutionally, it is the function of the Attorney General to undertake criminal prosecutions.[15] Sections 174 and 211 of the Constitution empower the Attorney General of the Federation and the states respectively, to institute, and undertake, take over, and continue or discontinue criminal proceedings against any person before any court of law in Nigeria. These functions of the Attorney General, which he exercises in person or through officers in his department, can be subject to abuse as a result of corruption.

 

The officers in the Directorate of Public Prosecutions (DPP), popularly known as State Counsel or Law Officers, are the prosecutors in the Ministry of Justice. They represent the State in criminal matters mostly in the superior courts. The State Counsel advises the police on criminal cases; writes legal opinion on cases; appears on behalf of the State in motions[16]; exercises the discretion whether or not to prosecute; files information and proofs of evidence, where a prosecution has been decided, and goes on to prosecute. With all these, the State Counsel has enormous say on the faith of a criminal case.

 

The Police       

The police is an integral part of our judicial system as far as criminal justice administration is concerned. A large percentage of criminal prosecutions take place in the lower courts, especially the magistrate courts and it is the police that handle them. By section 23 of the Police Act[17], the police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name.  However, this is subject to the provisions of sections 174 and 211 of the Constitution. From the wordings of section 23 of the Police Act, it appears a police officer can prosecute cases in the High Court.  By necessary implication, the police can prosecute but the power to conduct such prosecutions is subject to the provisions of sections 174 and 211of the Constitution. This issue was the bone of contention in the case of Olusemo v. Commissioner of Police[18]. The implication of this decision is that the police can prosecute only where the provisions of sections 174 and 211 are not invoked.[19]

 

Special Prosecutors

Some statutes establishing some agencies expressly empower some persons named in the statutes t prosecute offences created under the statute. This however, is subject to the overriding constitutional powers of the Attorney-General[20].

 

   Administration of Criminal Justice Laws

The Presidential Committee on the Reform of the Administration of Justice in Nigeria came up with the Administration of Criminal Justice Bill to replace the existing Criminal Procedure Act and Criminal Procedure Code. It seeks to merge the provisions of these two principal legislations into one Act to be cited as the Administration of Criminal Justice Act 2005.[21] The Bill modified some of the provisions and added some new ones where necessary all in a bid to give our Criminal Procedure Law the international flavour it deserves and also to further strengthen the rights of the accused persons contained therein. Some of the innovations in the Bill are discussed below and compared with the provisions of the Administration of Criminal Justice Law Lagos, 2007 (ACJL) where necessary.

 

Change in Terminology

The major obvious change both in the ACJL Lagos 2007 and the ACJ Bill 2005 is the introduction of the term “defendant” which has always been used in civil trials. A “defendant” is defined as any person against whom a complaint, charge or information is made.[22]  The drafters of the laws replaced all references to “accused person” with the word “defendant”. The reason for this change may not be unconnected with the desire to diminish the combatant nature of the trial process by adopting a milder term that will also boost the meaning of the principles of the presumption of innocence.

 

ARREST

Arrest by the police

By section 10 (i) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of subsistence and who cannot give a satisfactory account of himself.  This particular provision has been greatly abused by the police, who use it as a ground to arrest people indiscriminately. The ACJ Bill 2005 out rightly deleted this provision[23].

 

Arrest by Judicial Officers

Section 21 of the ACJ Bill 2005, is a new provision on arrest by judicial officers. It provides that the judge, magistrate, or justice of the peace who makes or directs an arrest, is to hand the person over to a police officer or take security for his attendance before a court at a specified time.[24]

 

 Arrest by Private Persons

By the provisions of the CPA[25] and the CPC[26], a private person may arrest any person who commits an indictable offence in his presence or whom he reasonably suspects of having committed a felony or a misdemeanor by night. Despite this provision, Nigerian masses are in the habit of taking the laws into their hands when they arrest perceived criminals. Most times they lynch and cremate such suspects.[27] This attitude could be attributed to the loss of confidence in the police and the criminal justice system.   The ACJ Bill 2005 retained this provision, with minor modifications. The Bill eliminated the dichotomy between the terms “indictable offence”, “felony” and “misdemeanor”.

 

Under section 16 of the ACJ Bill 2005, any private person may arrest any person in the federation who in his presence commits an offence or whom he reasonably suspects of having committed any offence “for which the police is entitled to arrest without a warrant”.  The summation is that a private person may arrest any person who commits any offence in his presence, regardless of the type of offence. He can only arrest a person whom he simply reasonably suspects to have committed an offence only if the offence is such that the police can arrest without a warrant[28].

 

It will not be out of place for the ACJ Bill 2005 and the ACJL Lagos 2007 to add a provision, expressly prohibiting public mob executions of suspected criminals as a response to the incessant incidents of such executions.

 

Arrest of Person Doing Damage to Public Properties

A private person, his servants, agents or persons authorized by him, may arrest any person found committing an offence involving injury to his property.[29] Section 17 (2) of the ACJ Bill 2005 adds a new provision regarding arrest of person doing damage to public properties.[30] The section provides that a private person may arrest any person found committing injury to public property. This addition is timely with the incessant vandalism of public utilities like petroleum pipelines, electrical installations, water pipes etc. This section while not categorically placing a duty on citizens to arrest vandals, now emphatically authorizes any one who may wish to arrest such a person to go on and do so. A private person arresting such offender is to immediately hand over the person to a police officer or take the person to the nearest police station. This provision is perhaps a sequel to the community policing initiative, where citizens are encouraged to cooperate adequately with the police in their communities[31].

 

Section 18 (4) of the ACJ Bill 2005, is a sort of handover protocol. It provides that where a person so arrested by a private person is handed over to a police officer or to an official of agency authorized by law to make arrests, such police officer or official shall take note of the names, residence and other particulars of the private person making the arrest, and the date, time and other circumstances of the arrest, and where the person arrested is taken to the police station or to such agency, the charge room officer shall make such entries in the crime diary.

 

The person who made the arrest is required to make a formal witness statement setting out the facts and circumstances of the arrest.[32] If there is sufficient reason to believe that that the person handed over has committed any offence, he shall be re-arrested at once[33].

 

 

 

Prohibition of Arrest of Relatives and Associates of Suspects

There had been a lot of instances where police men arrest relations or friends and close associated of a crime suspect in order to compel the suspect to give himself up, even though such a person is not linked in any way to the crime the suspect is being accused of. It is believed that this practice occurs more often than is reported in the press[34]. Section 4 of the ACJL Lagos, 2007, provides that no person shall be arrested in lieu of any other person. The ACJ Bill 2005 included a provision which seeks to abhor the arrest and detention of relations and friends of a suspect. Section 14 (4) of the Bill provides thus:

“Nothing in this section and in this Act shall be construed as permitting a police officer, private person or officer of any agency[35] to arrest a person by reason only of consanguinity or affinity or association with the person alleged to have committed an offence.”

 

In 1991, when one Chief Great Ogboru was said to have financed Major Gideon Okar’s aborted coup, his sister was arrested under Decree No. 2 of 1984. The court not only declined jurisdiction, but resorted to extra judicial appeals “in the name of God” to the military government while pleading for her release.[36]

 

 Notification of Cause of Arrest and other Due Process Rights

Section 5 of the CPA and section 38 of the CPC provide that the police officer or the person making the arrest is to inform the person arrested of the reason for the arrest, except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escaped from lawful custody[37].  These provisions should still have made it mandatory to inform the person the reason, even if he was in actual commission of the crime. This is in line with international practice. Section 28 (3) of the Police and Criminal and Evidence Act, 1984, UK, provides that when someone is arrested, they should, at the time of the arrest, be informed in non-technical language, of the reason for the arrest even if the reason is obvious[38].

The ACJ Bill 2005 retained this provision of section 5 CPA in section 7 (1) [39] , but went ahead to add section 7 (2) where it further provides that the person making the arrest or the police officer in charge of the police station or any law enforcement agency is to inform the person arrested of his rights to:

1. remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his choice
2. to consult a counsel of his choice before making or writing any statement or answering any question put to him after arrest

• free legal representation by the legal aid counsel or any organization that offers free legal aid.[40]

Section 7 (2) (1) of the ACJ Bill 2005, regurgitates section 35 (2) of the Constitution, which provides that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

 

Before this ACJ Bill 2005, there was no provision in the Constitution or any where else in Nigeria, mandating the police to inform the suspect of his rights to silence and counsel.  A. V. Atsenuwa, while commending the inclusion of the pre-trial right to silence in our Constitution, regrets that there is nowhere the police is mandated to inform the suspect of the existence of this right or to inform a person of his choice, the fact that he is in detention [41].

 

The provision requiring the suspect to be informed of his right not just to counsel but to free legal counsel in the ACJ Bill 2005 is impressive in view of the fact that, besides having the benefit of informed legal advice, the suspect would have the additional advantage of counsel assisting in securing his immediate bail, and ensuring that his trial is expeditious[42]. This goes a long way in reducing cases of long detentions in our police cells.

 

The lack of any provision obliging the police to inform any person of the suspect’s choice, the fact of his arrest, has led to indifference on the part of the police. In a lot of cases, arrests are made without any person knowing the whereabouts of the suspects. This is a contributory factor to over congestion in the police cells and prisons. The ACJ Bill 2005 and the ACJL Lagos, 2007, has likewise not addressed this problem of not informing any body of the accused person’s choice the fact of his arrest. Section 56 of the English Police and Criminal Evidence Act, 1984, (PACE), gives a suspect the right to have someone of his choice, informed of his arrest.[43]

 

It has been noted that there is a general apathy by the police personnel to counsel consulting their clients/suspects in police custody. When they allow such consultation, they do so very reluctantly[44]. Usually, there is a policeman in attendance within hearing range and the time allowed is always short.  Taiwo Osipitan also observed that nearly all communications between the accused person and his counsel take place in the presence of law enforcement officials, thereby scuttling the free flow of information between the accused and his counsel.[45] This makes nonsense of any confidentiality of communication between the suspect and his counsel and is clearly against the spirit of the Constitution and international norms and practices, particularly, principle 18 of the United Nations Body of Principles for the Protection of All persons Under Any form of Detention or Imprisonment,[46] which provides that interviews between a detained person and counsel may be within sight, but not within hearing of a law enforcement official.[47]

 

Considering the foregoing, it would have been expedient if a provision was made in the ACJ Bill 2005 and the ACJL Lagos, 2007, like the one contained in principle 18 of the United Nations Body of Principles for the Protection of All persons Under Any form of Detention or Imprisonment,[48] to the effect that interviews between a detained person and counsel may be within sight, but not within hearing of a law enforcement official.

Prohibition of Arrests in Civil Cases

The ACJ Bill 2005 addressed the longstanding problem, whereby people employ the machinery of criminal justice wrongly in civil cases. Most of the times, people instigate the arrest and detention of others for a breach of contract, for failure to pay debt owed or for other civil wrongs.  These matters, which are evidently civil in nature, are followed up by the police as if they are criminal. The Bill endeavored to address these type of case by providing in section 8 (3), that no person shall be arbitrarily arrested, or arrested on allegations that borders on civil breach of contract, but the arrest shall be based on reasonable suspicion that the person arrested committed or is about to undertake a criminal activity punishable as an offence under any law.[49] The ACJL Lagos 2007, State did not make such a provision.

 

Inventory of Property of Arrested Person

The new addition on search in the ACJL Lagos 2007 is the introduction of an inventory of property of arrested person. Section 6 (a) of the Bill provides that upon arrest, a police officer making the arrest or to whom the private person hands over the person arrested, shall record an inventory duly signed by the police officer and the arrested person of the particulars of all items or properties recovered from or about the arrested person. A copy of the inventory is to be given to the person arrested, his legal representative or such other person as the person arrested may direct.[50] The mischiefs which this provision tried to address are:

1. cases where police officers take properties from suspects and such properties are converted.
2. the provision puts a check on the police so that the recovered items are kept safe and the suspect can afterwards recover all his inventoried properties
3. to enhance investigations and to ensure that exhibits recovered are properly recorded at the time and place of recovery and signed by the suspect.[51]

 

Recording of Arrests

One of the new innovations in the ACJ Bill 2005 is the provision for recording of arrests and the creation of a Central Criminal Record Registry. Section 13 (1) of the Bill provides that when any person is arrested, whether with or without a warrant, and taken to the police station or any other agency effecting the arrest, the police officer making the arrest or the official of the agency making the arrest or the police officer or official in charge of the police station or the agency shall cause to be taken immediately, the record of the alleged offence, the physical address of the person arrested, and for the purpose of identification, the physical measurement, the photograph, and the full fingerprint impressions. The recording is to be concluded within a reasonable time, but not exceeding 48 hours.[52]

 

Establishment of a Police Central Criminal Records Registry

Section 13 (3) of the ACJ Bill 2005 provides for the establishment at the Nigeria Police Force a Central Criminal Records Registry. All record of arrests of the preceding month obtained as provided by section 13 (1), is to be forwarded to the Central Criminal Record Registry on the first week of every month.[53]

The establishment of this criminal Record Registry is very necessary in order to document all the arrests made. The recordings and the returns to the Registry will act as an oversight. Hopefully, this will help to stop or minimize cases where people are arbitrarily arrested and detained without any one being able to give adequate account of them. It will be desirable if such records are computerized in form of a database so that other stakeholders in the criminal justice administration like the courts will be in a position to access the records to help them take some decisions, for instance in determining whether a person is a first offender or how long the person had been in detention, etc.[54]

Quarterly Reports of Arrests to the Attorney General of the Federation

Under the ACJ Bill 2005,[55] the Inspector General of Police and heads of every agency authorized by law to make arrests[56] is mandated to remit quarterly to the Attorney-General of the Federation a record of all arrests made with or without warrant in relation to federal offences or arrests within the Federal Capital Territory. Such record is to contain the full particulars of the persons arrested as prescribed in section 13 of the Bill.[57]

These developments are quite impressive and it is hoped that other States would emulate the Lagos State Government and put such measures in place.

Police to Report to Supervising Magistrates

Section 28 of the ACJ Bill 2005, provides that officers in charge of police stations or official in charge of any agency authorized to make arrest is to report on the last working day of every month, to the nearest magistrate, the cases of all persons arrested with or without warrant within the limits of their respective stations, whether such persons have been admitted to bail or not.[58] Such report is to contain the particulars of the persons as prescribed in section 13.[59] Upon receipt, the magistrate is to forward the report to the Chief Judge of the Federal Capital Territory. The Chief Judge upon request by the National Human Rights Commission or the Administration of Justice Commission or Committee is to make the report available to them.

This is another commendable provision as it will serve as a form of check and balance on the activities of the police.

 

Quarterly Reports of Arrests to the Attorney General of the Federation

Under the ACJ Bill 2005,[60] the Inspector General of Police and heads of every agency authorized by law to make arrests[61] is mandated to remit quarterly to the Attorney-General of the Federation a record of all arrests made with or without warrant in relation to federal offences or arrests within the Federal Capital Territory. Such record is to contain the full particulars of the persons arrested as prescribed in section 13 of the Bill.[62]

 

 Police to Report to Supervising Magistrates

Section 28 of the ACJ Bill 2005, provides that officers in charge of police stations or official in charge of any agency authorized to make arrest is to report on the last working day of every month, to the nearest magistrate, the cases of all persons arrested with or without warrant within the limits of their respective stations, whether such persons have been admitted to bail or not.[63] Such report is to contain the particulars of the persons as prescribed in section 13.[64] Upon receipt, the magistrate is to forward the report to the Chief Judge of the Federal Capital Territory. The Chief Judge upon request by the National Human Rights Commission or the Administration of Justice Commission or Committee is to make the report available to them.

This is another commendable provision as it will serve as a form of check and balance on the activities of the police.

 

Humane Treatment of Arrested Person

Section 8 of the ACJ Bill 2005 is another new provision in the Criminal Procedure Laws. It turns its focus on the humane treatment of arrested person. The section re emphasizes the constitutional human rights provisions on rights to dignity of the human person and personal liberty.[65]

Section 8(1) of the ACJ Bill 2005, provides that any person arrested shall be accorded humane treatment, having regard to his right to the dignity of his person. No arrested person shall be subjected to any form of torture, inhuman or degrading treatment.[66]

Article 5 of the Code of Conduct for Law Enforcement Officials,[67] provides that no law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

The insertion of a provision on humane treatment of accused persons in the ACJ Bill 2005 is to buttress the above mentioned laws, which provide for humane treatment of accused persons while also prohibiting torture and any cruel treatment. Despite these provisions that had existed in our laws, there are horrifying reports of torture and inhuman treatment of accused persons in our police cells and detention centers.[68]

In the majority of cases, the main aim of the torture is to elicit confessional statements from the suspects. By the provisions of section 28 of the Evidence Act, the confessions of a suspect, made as a result of any inducement, threat, or promise by a person in authority; where the suspect has grounds to think that he would gain an advantage or avoid any temporary evil by making it, is irrelevant during criminal proceedings. The Bill is silent on this thorny issue of involuntary confessions which has often times wasted the time of the court.[69] The Lagos State Government, through its Ministry of Justice, has taken a step aimed at reducing or totally eradicating the incidents of involuntary confessions. Section 9(3) of the ACJL Lagos 2007, mandates the Police to ensure that confessional statements are recorded on video and the said recording and copies thereof are to be filed and produced at the trial. In the absence of a video facility, the statement is to be made in writing in the presence of a legal practitioner of the suspect’s choice.

Speedy Arraignment

Part of the provisions on humane treatment of arrested person is the provision that any arrested person shall be brought to the court for his arraignment and trial within the time prescribed by the Constitution.

Section 35 (4) of the Constitution provides that a person who is arrested or detained by the police should be brought before a court of law within a reasonable time.[70]

The following factors have been identified as culprits in hindering the actualization of the right to speedy trial: insufficient personnel; lethargy by some of the personnel; inadequate facilities; unreasonable adjournments; delay in the investigation processes; poor investigation; irregular procedure in dealing with accused persons which diverts attention from the main issues at the trial; delay of files in the Ministry of Justice; delays in receiving laboratory reports; lack of vehicles to convey detainees to court[71]. Added to these are also, obsoletism of available facilities and equipments, and poor conditions of service.[72]

 

Section 20 (1) of the ACJL Lagos, 2007, provides that  officers in charge of police stations are expected to report to the nearest Magistrates the cases of all persons arrested without a warrant within the limits of their respective stations, whether such persons have been admitted to bail or not. The Chief Magistrate is to notify the Chief Registrar of the High Court of such reports, which will be forwarded to the Director of Public Prosecutions for necessary actions.

 

RIGHT TO COUNSEL

To further quicken trials and avoid delays caused by absence or unavailability of counsel, the reforms have put the following in place:

Availability of free legal aid

In addition to the general right to counsel for every one charged with a criminal offence in section 36 (6) (c) of the Constitution, for those that can afford to retain counsel, one of the instances when a suspect is guaranteed the help of counsel is under the statutes that have provided for legal representation for persons charged with capital offences[73]. This special privilege of free legal representation for the undefended capital offence suspect is due to the gravity of the offences and the very grave punishment attached to the offences upon conviction, which is death. The Supreme Court in the case of Josiah v. the State[74], declared the indispensable nature of the right to counsel, especially in capital offences.

A defendant who is remanded in prison custody in Lagos State can now fill a form indicating whether he wishes to be represented by a Legal Practitioner arranged by him or by the Public Defender or Legal Aid or any organization providing legal aid.[75]

 

The ACJ Bill 2005 introduced a statutorily recognized mandatory legal aid to defendants which is available to any one charged with a criminal offence unless he declines to make use of the opportunity.  The Bill has included the old practice of what is called a “dock brief”, where the court assigns a case of an indigent defendant to a counsel within its jurisdiction.

 

Non Appearance of Prosecutor

Section 236 of the ACJL Lagos State 2007 provides that where the prosecutor fails to appear in court after having due notice of the time and place of hearing the court is to dismiss the case, unless the court receives reasonable excuse for non-appearance of the prosecutor or his representative, or adjourn the case.

 

Non-Appearance of Defendant’s Counsel

Where the legal representative of the defendant ceases to appear in Court, the Court shall enquire from the defendant if he wishes to engage another counsel arranged by him or a counsel engaged by way of legal Aid[76]. Where the defendant fails or is unable to obtain legal representation, the court has the power to order that he be represented by way of legal aid. [77]

 

 Chief Magistrate to Visit Police Stations Every Month

Another innovation of the ACJ Bill 2005 is the requirement that the Chief Magistrate or any Magistrate designated by the Chief Judge for that purpose, is to conduct an inspection of police station(s) or other places of detention within his jurisdiction, other than the prison, at least, every month.[78]

During such visit, the Chief Magistrate or designated magistrate has the power to:

1. Call for, and inspect the record of arrests.
2. Review and modify bail decisions by the police.
3. Where bail has been refused, to grant bail to any suspect where appropriate; provided that the offence for which the suspect is held is within the jurisdiction of the Chief Magistrate or the magistrate.

 

 BAIL

The ACJ Bill 2005 made a general entitlement to bail for all accused persons, subject to the provisions of the Bill[79].

The Bill made specific provisions on bail where a person is charged with a capital offence. Such a person can only be admitted to bail by a High Court Judge under exceptional circumstances. Such circumstance may include:

1. Ill health of the applicant.
2. Extra ordinary delay in the investigation, arraignment and prosecution for a period exceeding 3 years.
3. Any other circumstances that the judge may in the particular facts of the case.

A person charged with an offence exceeding 3 years imprisonment shall upon application to the court be released on bail, except:

1. where there is reasonable ground to believe that the defendant if released on bail, will commit an offence punishable with imprisonment for a term exceeding 3 years;
2. where he attempts to evade his trial;
3. he attempts to influence, interfere with, or intimidate witnesses, or interfere in the investigation of the case.
4. he attempts to conceal or destroy evidence;
5. prejudices the proper investigation of the offence;
6. Undermine or jeopardize the objectives or the purpose or function of the criminal justice administration, including the bail system.[80]

These provisions of the ACJ Bill 2005 regarding conditions for grant of bail are clearer and more detailed than the provisions of the ACJL Lagos State, 2007, which did not set down these conditions.

 

 Deposit of Money or Other Security   

Apart from the fact that the amount of bail shall not be excessive, section 154 (2) of the ACJ Bill 2005  provides that the court may require the deposit of a sum of money or other security as the court may specify from the defendant and or the surety before the bail is approved.  Such money or security is to be returned to the defendant or his surety or sureties at the conclusion of the trial or upon application by the surety to the court to discharge the recognizance.[81]

 

The Working Group considered that the introduction of cash deposits and other valuables such as title deeds, asset instruments, as other types of security than surety will help to strengthen the deterrence against absconding defendants on bail.[82]

 

Women Sureties

The current practice where women are routinely denied the right to stand as sureties for the purpose of entering into recognizance for bail, received the attention of the working Group. The Bill provided in section 156 (3) that no person shall be denied, prevented or restricted from entering into any recognizance or standing as surety for any defendant or applicant on the ground only that the person is a woman. Section 118 of the ACJL Lagos State, 2007 addressed this long standing problem in exactly the same words as the ACJ Bill 2005.

 

Professional Bondsmen

The institution of the professional bondsman originated from the United States of America. The absence of close friends and neighbours during the early days in the vast expanse of sparsely settled frontier lands, made it difficult for the courts to find acceptable sureties.[83]

Section 175 of the Bill makes provisions for professional Bondsmen in the criminal justice system. It provides for the registration and use of Bondsmen and gives the Chief Judge the powers to make regulations in developing the details of the best practices in use of Bondsmen.

 

Section 138 of the ACJL Lagos State, 2007 makes provisions for professional Bondspersons in the criminal justice system. It provides for the registration and use of Bondspersons and gives the Chief Judge the powers to make regulations in developing the details of the best practices in use of Bondsmen[84]. The Bondspersons may undertake recognizance, act as surety, or guarantee the deposit of money as required by the bail condition of any person granted bail by the court within the jurisdiction in which the bondsperson is registered. [85]

 

Public Summons for persons absconding

The ACJ Bill 2005 adopted the provision of section 67 of the CPC which provides that if a court has reason to believe that a person against whom a warrant of arrest has been issued has absconded; the court may publish a public summons in writing requiring that person to appear at a specific time. This section on absconding persons was considered important in view of the rampant incidents of absconding defendants and sureties. Among the mode of publication of the public summons contained in the CPC is that: “It shall be publicly read in some conspicuous place in the town or village in which the person in respect of whom it is published resides”[86]. This sub section was deleted and replaced with a provision that the public summons is to be published in a newspaper or circulated in any other medium as may be appropriate.[87] Publication in a newspaper is a far better option than reading it in the town or village as provided in the CPC. Newspaper publication is more modern and practicable.

 

 

PLEA BARGAIN

Plea bargain is an arrangement in a criminal case where the suspect pleads guilty to a charge or a lesser charge against him or her. In exchange for this plea, the prosecutor may decide to drop the charge, reduce it, or recommend that the trial judge enter a sentence that is acceptable to both parties.

 

Besides other numerous advantages of plea bargain, it provides a release valve for congestion of the criminal justice system and also creates avenue for the prosecution to manage their case load.[88]

 

The case of former Inspector-General of Police Mr. Tafa Balogun is an instance of a case where plea bargain was utilized. Mr. Balogun conceded to plead guilty to an amended eight count charge of failure to cooperate with men of the EFCC to probe his acquisition of landed property in both Abuja and Lagos and acquisition of large amount of shares in a number of blue chip companies. He got just six months for the offence which attracts a maximum of five-year jail term following a touching allocutus rendered by his lead counsel, Chief Adegboyega Awomolo (SAN) The plea of guilt, was entered after a serious negotiation between the legal team of EFCC and that of Tafa Balogun on the grounds that all criminal cases against the former police boss would be terminated.[89]

 

Sections 75 and 76 of the ACJL Lagos, 2007 provides for plea bargain and sentence agreements. By the provisions of section 75, the Attorney General of the State has the power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.  Section 76 makes provisions for plea and sentence agreements. The prosecutor and a defendant or his legal practitioner may enter into an agreement in respect of –

 

1. a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge
2. an appropriate sentence to be imposed by the court if the defendant is convicted of the offence to which he intends to plead guilty[90].

 

The prosecutor can only enter into a plea or sentence agreement after consultation with the investigating police officer, and the victim, with due regard to the nature of and circumstances relating to the offence, the defendant and the interests of the community[91].

 

The prosecutor where it is reasonably feasible is to afford the complainant or his representative the opportunity to make representations to the prosecutor regarding the contents of the agreement and the inclusion in the agreement of a compensation or restitution order[92].

 

Such agreements between the parties must be in writing and signed. The presiding judge or magistrate is not permitted to be part of the discussions. He may only be approached by counsel regarding the contents of the discussions and may inform them in general terms of the possible advantages of discussions, possible sentencing option or the acceptability of a proposed agreement. After the prosecutor has informed the court of the agreement reached by the parties, it is the duty of the Presiding Judge or Magistrate to inquire from the defendant to confirm the correctness and the voluntariness of the agreement[93].  After considering the sentence agreed, the presiding Judge or Magistrate may impose the sentence, or impose a lesser sentence[94]. Where he is of the view that the offence requires a heavier sentence, than the one agreed, he is to inform the defendant of his view. The defendant may decide to abide by his plea of guilty and accept the sentence by the Judge or Magistrate, or he may decide to withdraw from his plea agreement. If he does so, the trial precedes de novo before another presiding Judge or Magistrate.

 

 

 

REMAND

“Remand” is a term used to describe a situation where a suspect who is charged with an indictable offence is ordered by a court of law, to be kept in prison custody, pending his bail, ultimate trial or release on the advice of the DPP.

 

The Presidential Committee for the Reform of Criminal Justice Laws, identified long awaiting trial detention, associated with the application of the present remand system as the main problem of the administration of criminal justice in Nigeria.[95] The police often take suspects who have committed serious offences to the magistrate courts, which have no jurisdiction to try such serious offences, on a holding charge to be remanded in prison custody, pending the out come of the legal advice by the DPP, or his ultimate prosecution at the High Court. The request for remand is based on a charge sheet not supported by any other document to show grounds for the request. The consequence is that the defendant is committed to prison custody to await proper arraignment. Due to the absence of any protocol in managing the remand process, many defendants, especially the indigent ones, remain in awaiting trial custody for long periods of time.

 

In Lagos State presently, a Magistrate has the power to remand a person arrested for any indictable offence after examining the reasons for the arrest and being satisfied that there is probable cause to remand such a person, pending legal advice of the Director of Public Prosecutions and/ or the arraignment of such a person before the appropriate Court or Tribunal.[96]

 

The ACJ Bill 2005 contains provisions to the effect that a Magistrate may have jurisdiction to take remand proceedings even though the person is arrested on allegation of having committed an offence, which if charged, he cannot be arraigned before that magistrate. In other words, the Bill conferred jurisdiction to hear remand proceedings on the magistrate, which is unrelated to the jurisdiction to try the substantive offence with which the person may be finally charged with before a court.[97]

 

Application for remand is to be made in a specified manner, by filling out the “Report and Request for

A Remand Form” as contained in the Appendix to the Bill[98]. Section 272 of the Bill expressly provides that the court may grant bail in remand proceedings.

 

Time Protocol for Remand Orders

The new ACJL Lagos 2007 contains a time frame for remand orders. Under section 268 (5) an order of remand made by a Magistrate shall not exceed a period of thirty (30) days in the first instance. After the expiration of the 30 days, the Magistrate shall order the release of the person remanded unless good cause is shown why there should be further remand order for a period not exceeding one month. At the expiration of the further order, the Magistrate is to issue a hearing notice to the Commissioner of Police and/ or Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and /or the Director of Public Prosecutions to show cause why the person remanded should not be released. The Magistrate is to extend the remand order only if satisfied that there is good cause shown and that necessary steps have been taken to arraign the person before an appropriate Court or Tribunal.

 

The ACJ Bill 2005 also contains a time protocol. An order of remand made under Section 273 the Bill shall be for a period not exceeding 100 days in the first instance and the case shall be returnable within the said period of 100 days[99]. The court may extend the remand period for a period not exceeding 30 days upon hearing an application in writing showing good cause why there should be an extension of the remand period. The proceedings shall be made returnable within 30 days.[100] If after the expiration of this period of 30 days or the initial period of 100 days, the person is still in custody, the court may on application of the person, grant him bail in accordance with sections 149 to 190 of the Bill.[101]

 

At the expiration of the 100 days or 30 days remand order, if the person is still remanded and his trial not yet commenced, or charge not yet filed at the relevant court having jurisdiction, the court is to issue a hearing notice to the Inspector General of Police and the Director of Public Prosecutions of the Federation  and adjourn the matter for a period not exceeding 30 days to inquire about the position of the case, and for the Inspector General of Police and/or the Director of Public Prosecutions to show cause why the person remanded should not be unconditionally released.[102] Where good cause is shown, the court may, upon hearing a request for an extension of the remand, extend the remand for a final period not exceeding 30 days for the person to be arraigned for trial before the appropriate court or tribunal, and shall make the case returnable within the said period of 30 days from the date the hearing notice was issued.[103]

 

Where good cause is not shown for the continued detention of the person, pursuant to section 273(4) or the person is still in custody after the extended period of 30 days under section 273(5), the court shall with or without any application to that effect, forthwith discharge the person and the person shall be immediately be released from custody[104].

 

This is a step in the right direction. Nevertheless, we are of the view that a period of 100 days remand is too long. One would be more comfortable with a situation where the initial period is 7 days, that is, 1 week, and the review period, of 5 days. It is recommended that all the States in the federation should also set time limits on the use of remand in their laws. It is also important to make the remand process, as less excruciating as possible, by ameliorating the harsh conditions so that detention is not a harrowing experience.

 

Content of Proof of Evidence

In order to clarify the contents of complete information[105], the ACJ Bill 2005 has included provision on the contents of Proof of Evidence.  Section 351 of the ACJ Bill 2005 provides that an information shall be filed in the registry of the court before whom the prosecution seeks to prosecute the offence, and shall include the Proof of Evidence consisting of:

1. The legal advice of the Director of Public Prosecution or a Law Officer in his office.
2. The list of witnesses and their addresses.

• The list of exhibits to be tendered

1. Copies of statements of the witnesses.
2. Copies of the statements of he defendant(s)
3. Any other document, report, or material that the prosecution intends to use in support of its case at the trial

• Particulars of bail or such recognizance, bond or cash deposit if the defendant is on bail.
• Particulars of place of custody, if the defendant is in custody.

1. Particulars of any plea bargain arranged with the defendant.
2. Particulars of any previous interlocutory proceedings, including remand proceedings, in respect of the charge.
3. Any other relevant document as may be directed by the court.

 

Case Management by the Chief Judge 

The trial of a charge is to be commenced not later than 30 days from the date of arraignment upon that charge. The trial of the person brought under the charge is to be completed not later than 180 days from the date of arraignment.[106] Where a magistrate fails to commence or complete trial within the stipulated time, he shall forward to the Chief Judge the particulars of the charge and reasons for failure to commence the trial or to complete the trial.

Magistrates are to forward quarterly returns of the particulars of all cases including charges, remand and other proceedings commenced and dealt with in their courts to the Chief Judge.[107] The Commission set up under the Administration of Criminal Justice Commission Act shall have power to consider all returns made to the Chief Judge for the purpose of ensuring expeditious disposal of cases.  The National Human Rights Commission shall also have access to the said return upon request to the Chief Judge.[108]

 

ALTERNATIVES TO IMPRISONMENT

Suspended Sentence/Parole

The ACJ Bill 2005 introduced alternatives to custodial punishment, namely, suspended sentence, community service and parole. Section 446 provides that where the court sees reason, it may order that the sentence it imposed on the convict be with or without conditions, suspended, in which case the convict shall not be required to serve the sentence in accordance with the conditions of such suspension if any. Where the Comptroller General of Prisons makes a report to the court recommending that a person sentenced and serving his sentence in prison is of good behaviour, and has served at least two thirds of his prison term if he is sentenced to a term of imprisonment, or at least 15 years if he is sentenced to life imprisonment, the court may order after hearing the prosecution and the prisoner or his legal representative, order that the remaining term of his imprisonment be suspended, with or without conditions.[109]

 

Conditional Release of Offenders /Probation

Section 345 of the ACJL Lagos 2007, provides for conditional release of offenders. It provides that where the court finds that the charge is proved, but is of the opinion that having regard to the character, antecedents, age, health or mental condition of the defendant, or of the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to impose any punishment, or release the offender on probation or community service, the court is to dismiss the charge, or discharge the offender conditionally on his entering into recognizance, with or without sureties to be of good behavior for a period not less than one year and not exceeding three years.

 

The recognition order made by the court may also contain a Probation Order. This order contains a condition that the offender be under the supervision of such person or persons called a Probation Officer.[110]

 

 Community Service

The ACJL Lagos 2007 also made provisions for community service. Such community service shall be in the nature of:

1. environmental sanitation; or
2. assisting in the care of children and the elderly in Government approved homes; or
3. any other type of service which in the opinion of the court would have a beneficial and salutary effect on the character of the offender.

 

The ACJ Bill 2005 also made provisions on community service. It provides that the court may also sentence the offender to perform specified service in his community or such community or any place as the court may direct, with or without conditions.[111] The Chief Judge may give guidelines as to the nature and kind of community service, to which offenders may be sentenced.[112]

 

PAYMENT OF COMPENSATION TO VICTIMS OF CRIME

A search of our statute books reveals that there are scanty provisions dotted in some statutes dealing with victims remedies. Very little and indeed less than marginal emphasis is placed on victim participation.

 

The ACJ Bill 2005 broadened the powers of the criminal court to award costs, compensation and damages in deserving cases, especially to victims of crime. The Bill adopted and improved on the provisions of Section 78 of the Penal Code, Sections 365-366 of the CPC and Section 255 of the CPA. These are now Sections 292 and 293 of the Bill.

 

By the provisions of Section 292 of the ACJ Bill 2005, a criminal court may within the proceedings or when passing judgment, order that the convicted person shall pay a sum of money as compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant, where substantial compensation is in the opinion of the court recoverable by civil suit.[113] The court may order the defendant to pay a sum of money to defray expenses incurred in the prosecution.[114] The court may also order the  convicted person  to pay some money to compensate an innocent purchaser of any property in respect of which the offence has been committed who has been compelled to give it up[115]. The court may also order the convicted person to pay some money in defraying expenses incurred in medical treatment of any person injured by the convicted person in connection with the offence[116]. Section 345 (2) of the ACJL Lagos 2007 also provides that the court can order an offender to pay such damages for injury or compensation for loss.

 

 Besides these provisions on compensation for victims of crime, the Criminal Justice Victim’s Remedies (CJVR) Bill, 2006[117] is fully devoted to addressing the problems of crime victims.

 

 

CONCLUSION

This article has endeavored to analyze the new provisions in the Administration of Criminal Justice Law of Lagos State 2007, and the provisions of the Administration of Criminal Justice Bill, 2005, which when passed into law, will have effect all over the federation. The reforms considered here are vital to the career of prosecuting; hence it is unavoidable for the prosecutor to be acquainted with the relevant provisions.

 

The reforms in the administration of criminal justice laws discussed in this paper include inter alia, reforms on the law on arrest, detention and interrogation; the bail process, remand and time protocol for remand; plea bargain; and alternatives to imprisonment; such as suspended sentence, community service and parole.

 

One of the major improvements brought about generally by the reforms is that conscious effort was made to fortify the rights of the defendant and reduce delays in the criminal process. Though most of these rights had existed hitherto, the new laws have added emphasis to them and have also ironed out a lot or grey arrears that had been long overdue for change.

 

Lagos State has blazed the trail in passing into law the Administration of Criminal Justice Law 2007. The Nation’s legislature is called upon to speed up legislative processes and pass the Administration of Criminal Justice Bill (ACJ Bill 2005) pending before them.

 

It behoves the police, other law enforcement officials, prosecutors, defence lawyers and the judicial officers to get conversant with the provisions of the laws, especially in Lagos State, and other developments within the system, so as to comply with the requirements engendered by the laudable reforms.

ª By Ani Comfort Chinyere (Mrs.), LLB. (Hons.),; BL; LL.M., Ag. Head, Centre for Conflict and Dispute Resolution,

Nigerian Institute of Advanced Legal Studies, Lagos.  E. Mail: [email protected]

 

FOOTNOTES

[1] G. E. Rush, Dictionary of Criminal Justice, (Boston: Holbrook Press Inc., 1997), P. 36.

[2] See the Report of the Presidential Commission on the Reform of the Administration of Justice in Nigeria,

2006, p. 12

[3] See Agenda for Criminal Justice Reform and Effective Law Enforcement Administration in Nigeria, by

Centre for Criminal Justice Reform & Citizen Awareness, May, 1999, p. 4.

[4] The Act which came into being as Ordinance No. 42 of 1945 was re-enacted as ordinance No. 43 of 1948; as “amended” by

   ordinances No. 16 of 1950, sections 244 and 6^th Schedule No. 22 of 1952; No. 13 of 1953; No. 24 of

  1954; No. 10 of 1955, No. 22 of 1955; No. 47 of 1955; No. 76 of 1955; No. 107 of 1955 No. 24 of 1956; No. 52 of

  1958; No. 65 of 1958; No. 100 of 1958. No; 2 of 1959; Cap 128 of 1959; 257 of 1959; 258 of 1959; 30 of 1960 Act.  

  Cap 155 of 1960 Act; Cap 40 of 1961; No. v 1962 Act No. 6 of 1963; No. 112 LN. 1964; No.139 L.N. 1965; Decree

  No. 22 LN. 1966. Decree No. 84 LN. 1966; Decree No. 5 LN 1967; Decree No. 44 of 1970; Cap 80 LFN 1990,

  Cap. C 41 LFN 2004.

[5] The CPC was enacted by the legislation of the Northern Region in 1960 and applied to the Northern

Region. This was renamed Northern Nigeria by virtue of section 3 of the Constitution of the Federation,

1960. 1960. See Jones J. R., The Criminal Procedure in the Northern States of Nigeria, (2^nd,1978), p. 1

[6] The Act was derived from the Police Ordinance 1943 incorporated as Cap. 154 LFN and

   Lagos 1958. It was later repealed by the Police Act (Authority to Reprint) Act Cap. 41 1967 which as

also repealed by Police (Amendment) Act Cap. 23 1979 and incorporated as Police Act Cap. 359 LFN

1990 and now Police Act Cap. P19 LFN 2004. See Annotated Laws of the Federation, Criminal

   Justice Laws, ibid, p. 1018.

[7] Cap. E 14  LFN 2004

[8] See Forward by Osinbajo Y., in Proposals for the Reform of the Criminal Procedure Laws of Lagos State

    of Nigeria, (Lagos: Lagos State Ministry of Justice, 2004).

[9] NEEDS is a nationally coordinated framework of action in close collaboration with the States and Local Governments (with their State Economic Empowerment and Development Strategy SEEDS) and other stake holders to consolidate on the achievements between 1999-2003 and build a solid foundation for attainment of Nigeria’s long term vision of becoming the largest and strongest African Economy and a key player in the world economy. The NEEDS document recognized that the criminal justice system seems to have lost its capacity to respond quickly to the needs of the society to check the rising waves of crime and bring criminals to book. The document proposed that vigorous efforts will be made towards improving the efficiency of criminal justice administration. This entails an urgent elimination of unacceptable delays in disposal of criminal cases, the possibility of stipulating what would be regarded as “reasonable duration” of hearing and determination of criminal cases. See Chapter 5 of the NEEDS Document available at: NEEDS @ Nigerian economy.com. Last visited on 28/5/2009

[10] SERVICOM is a social contract between the Federal Government of Nigeria and its people. SERVICOM gives Nigerians the right to demand good service. Details of these rights are contained in SERVICOM Charters which are now available in all government agencies where services are provided to the public.  The Charters tell the public what to expect and what to do if the service fails or falls short of their expectation. The SERVICOM Charter of the Federal Ministry of Justice states that its vision statement is to make justice accessible to all and ensure that the legal system responds to the needs of the public in an efficient manner with the ideals of democracy and the rule of law in order to reduce poverty and promote economic growth. It sets a time frame of 1 year for prosecution of criminal cases. Available at: http://www.servenigeria.com//index. Last visited on 28/5/2009.

[11] See Mozley and Whiteley’s Law Dictionary, (Butterworths, 9^th ed., 1977).

[12] See sections 174 (1) (b) & (c) and sections 211 (1) (b) & (c) of the1999Constitution, Cap. C 23 Laws of

the Federation of Nigeria, 2004. See also, Fawehinmi G., The Murder of Dele Giwa: The Right of a

   Private Prosecutor,(Lagos: Nig. Law Publications Ltd. 1988), p. 35.

      [13] (1987) 2 NSCC 1265.

[14] This section provides thus: “The registrar shall receive an information from a private person if-

• it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and such private person has entered into a recognisance in the sum of one hundred naira together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court,³ or, in lieu of entering into such recognisance shall have deposited one hundred naira in court to abide the same conditions”

[15] Sections 174 and 211 of the Constitution, for Federal and State respectively. See Olusemo v. Commissioner of

   Police, infra .note 18.

[16] For instance, bail applications.

[17] Cap. P. 19 Laws of the Federation 2004 op. cit. note 6

[18] (1988) 11NWLR, (pt. 575), p. 557.  In that case, the appellant, being the Accountant General of the federation, was charged with some other persons for the offence of stealing. The appellant was initially charged to the Magistrate Court .The appellant appealed to the High Court against a ruling of the court on the refusal by the police to supply him with the proofs of evidence. At the High Court, the appellant objected to the right of Mr. S.G Ehindero, then a Commissioner of Police to represent the State in the High Court. The High Court in Abuja, ruled that he had the right to represent the state at the court. The matter went to the Court of Appeal and the issue for consideration was whether a police officer that is also a legal practitioner could represent the State in the High Court. The court held inter- alia that by the provisions of section 23 of the Police Act, the police officer may conduct in person all prosecutions before any court in Nigeria, but that the power to conduct such prosecutions is subject to the provisions of sections 160 and 191 of the 1979 Constitution (Now sections 174 and 211 of the 1999 Constitution. (Now sections 174 and 211 of the 1999 Constitution).

[19] These sections deal with the powers of the Attorney-General to prosecute offences. See also Osabon v. Federal Republic of Nigeria (2003) 43 WRN, p. 69. See also Tijani N., “The Power to Prosecute by Police Officers in Superior Courts in Nigeria, in Yusuf A. O., (Ed.), Issues in Justice Administration in Nigeria, (VDG Intl. Ltd., 2008), p. 240 

[20] Section 5 of the Independent Corrupt Practices and Other Related Offences Act, vests in the officers of the Commission, all the powers and immunities of a police officer under the Police Act and any other laws conferring power on the police, or empowering and protecting law enforcement agents. Section 61 of the Act states that any prosecution for an offence under the Act are deemed to be done with the consent of the Attorney-General.

Under section 13 (2) (a) of the Economic and Financial Crimes Act (Cap E 1 Laws of the Federation of Nigeria 2004) the Legal and Prosecution Unit of the Commission is charged with the responsibility of prosecuting offenders under the Act. The National Agency for the Prohibition of Traffic in Persons and Other Related Matters (NAPTIP) is a Federal Government of Nigeria Agency established pursuant to the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003.  The mandate of the Agency is encompassing as it is the national focal point for the fight against the scourge of human trafficking, child labour and the rehabilitation of the victims of trafficking in Nigeria. The Agency is expected among other things, to investigate and prosecute traffickers. Section 26 of the National Agency for Food and Drug Administration and Control Act, (Cap. N1, Laws of the Federation, of Nigeria, 2004), states that subject to the provisions of section 174 of the Constitution, any officer of the agency may with the consent of the Attorney General of the Federation, conduct criminal proceedings in respect of offences under the Act or Regulations made under the Act. Section 180  the Customs and Excise Management Act[20] of the Act gives officers of the Nigerian Customs Service, the right to conduct criminal proceedings in respect of matters relating to customs and excise with the consent of the Comptroller-General of Customs. This is subject to the provisions of section 174 of the Constitution, which relates to the power of the Attorney-General of the Federation to Institute, continue or discontinue criminal proceedings against any person in any court of law.     

[21] See the Short Title, S. 1 of the Bill.

[22] See section 1 of the ACJ Bill 2005 and section 375 of the ACJL Lagos 2007.

[23] The ACJL Lagos, 2007, deleted section 10 (1) of the Lagos State Criminal Procedure Law, 2003, which

is the same as section 10 (i) of the CPA

[24] Section 15 CPA, section 29 CPC and section 19 ACJ Bill 2005 provide that Magistrates and judges are

expressly authorized to arrest or order the arrest within their district of any person who commits an

offence in his presence and may thereupon commit the offender to custody, subject to the provisions as to

bail.

[25] Section 12.

[26] Section 28 (d).

[27] Commenting on the public penchant for mob justice, Akin Oyebode commented: “The consequence of the

general disdain for the judiciary has been calamitous for the legal order when the now frequent resort to self-

help and mob justice by aggrieved persons is considered”. Oyebode, A., “The Judiciary and Constitutionalism

in a Democratic Society” in Oyebode, A., (Ed.) Law and Nation Building, (Lagos: Centre for Political and

Administrative Research, 2005), p. 123.

[28] Under section 12 of the ACJL Lagos, 2007, a private person may arrest any person who commits an

indictable offence in his presence or whom he reasonably suspects of having committee an indictable

offence.

[29] Section 13 CPA, C C, Section 17 (1), ACJ Bill 2005 and section 462.

[30] The CPA and the CPC had earlier made provisions authorizing a private person to arrest an offender. See

1. cit. notes 25 and 26

[31] Community policing entails the decentralization of the police and the setting up of police community centers in neighborhoods and villages where no police stations existed previously. On September 2, 2004, the Inspector General of Police organized a retreat for principal officers at Police Staff College Jos, to educate them on community policing. See Obiechina, T. “Community Policing: The Israeli Experience”, in The Guardian, 2004, October 26.

[32] Section 18 (5), ACJ Bill 2005. This provision is pertinent because of the attitude of the populace not to get involved in police matters. With such a protocol, there will be adequate record of the offence and the prosecution will not find it too difficult to trace the key witness/witnesses.

[33] Section 18 (6), ibid.

[34] Okonkwo C.O., “ The Nigerian Penal System in the Light of the African Charter for Human and People’s

Right”, in Kalu, A. & Osinbajo, Y. (Eds.), Perspectives on Human Rights, (Lagos: Federal Ministry of

Justice, 1992), p. 94.

[35] This provision is sensitive to the fact that there are a lot of other agencies presently in the country besides

the police that are also empowered to arrest and detain crime suspects.

[36] See  Ezezobo J., “Extra Legal Appeals and Due Process of Law” in Guardian Newspaper, 2^nd October,

[37] Section 5 CPA, also dispenses with the need to inform the person when the person arrested is in the

actual course of the commission of the crime or is pursued immediately after the commission of the

crime or escaped from lawful custody.

[38] See also Article 5 (2) of the European Convention on Human Rights.

[39]  Section 3 (1) of the ACJL Lagos, 2007, also makes a similar provision. This provision is in line with

section 35 (3) of the Constitution which provides that anybody arrested should be informed in writing

within twenty four hours (and in a language he understands) of the facts and grounds for his arrest or

detention

[40] Principle 17 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides as follows:

1. A detained person shall have the assistance of legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interest of justice so require and without payment by him if he does not have sufficient means to pay”.

 Principle N (2) (b) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,( ACHPR/ Res. 41 (xxvi) 99 (1999) adopted at the African Commission on Human and Peoples’ Right meeting at its 26^th Ordinary Session held in Kigali, Uganda, from 1-15 November 1999),  provides that the accused person has the right to be informed, if he or she does not have legal assistance, of the right to defend himself or herself through a lawyer of his or her own choice. Article 14 (30) (d) ICCPR, Article 55 (2) (c) of the ICC Statute, Article 5 Basic Principles on the Role of Lawyers, section 20 (1) (d) of the Statute of the International Tribunal for Rwanda, sections 20 and 21 of the International Criminal Tribunal for the former Yugoslavia (the ICTY Statute), and section 35 of the Constitution of the Republic of South Africa, all provide that the accused person should be promptly informed of his right to counsel. (See the Constitution of the Republic of South Africa, 1996, as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly, Act 108 of 1996.) This right applies during all stages of any criminal prosecution, including preliminary investigation, in which evidence is taken, periods of administrative detention, trial and appeal proceedings. In England, section 6 of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C). (The Code was made pursuant to the Police and Criminal Evidence Act, 1984 (PACE)) provides that all detainees must be informed that they may at any time consult and communicate privately

with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available

from the duty solicitor.

[41] Atsenuwa, A. V. “Due Process in Criminal Cases”, in. Obilade, A.O. & Braxton G. (Eds.) Due Process

    of Law, (Southern University Law Center, Baton Rouge, Louisiana, 70813, and Faculty of Law,

University of Lagos, 1994), p. 59.

[42] Section 3 (3) of the ACJL Lagos 2007, states that the police officer or the person making the arrest is to

inform the person arrested that he may apply for free legal representation from the office of the Public

Defender , Legal Aid Council or any such agency.

[43] Section 62 of the English Criminal Law Act, 1977, earlier on, provided for a person arrested and held in custody

to have intimation of his arrest and of the place where he is being held, sent to one person reasonably named by

him without delay, or, where some delay is necessary in the investigation or prevention of crime, or apprehension

of offenders, with no more delay than was necessary.

[44] Tobi, N., “The Admissibility of Confessions: The Dilemma of the Accused”, ”, in Maidugri Law Journal

   1990, p.14, in Adeyemi, A. A. “Police and Human Rights in a Democratic Nigeria”, in David, P. R. (Ed.),

Politica Criminal, Derechos Humanos Y Sistemas Juridicos En El Siglo xxi (Buenos Aires, 2001), p.

25.

[45] Osipitan, T.,  “Safeguarding the right to Counsel”, in Journal of Human Rights Law and Practice, Vol. 3

Nos. 1, 2, 3, December 1993, p. 146.

[46] Ibid. See also Principle 8, Basic Principles on the Role of Lawyers, ibid; Rule 93 of the United Nations Standard    

   Minimum Rules for the Treatment of Prisoners, 1977, (Economic and Social Council Resolution 663C (xxiv) of 31  

   July1957 and 2076 (lxxii) of 13 May 1977).

        [47]   A. A. Adeyemi, while condemning the police attitude of restricting consultation with counsel, said:

“The belief in police circles, therefore, can be deduced to be that the consultation with counsel will be a hindrance to investigation or administration of justice, and that it will be permissible for the police to conclude their investigation before permitting consultation with counsel. With respect, while it may be permissible to take such a position in England, the position is untenable in Nigeria. Our constitutional provision prescribes a right to consult with a legal practitioner or any other person of his choice, prior to making his statement or answering a question.” See Adeyemi, A. A., “Police and Human Rights in a

Democratic Nigeria”, op. cit. note 44,  p. 26

[48] Ibid.

[49] See section 35 (1) (c) of the Constitution on right to personal liberty. The section provides that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty except for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. Article 6 of the African Charter on Human and Peoples’ Rights adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (1982), entered into force on October 21, 1986. Ratified in Nigeria by African Charter on Human and Peoples’ Rights Ratification and Enforcement Act, Cap A 9 Laws of the Federation of Nigeria, 2004.

[50] See section 9 (4) of the ACJ Bill 2005.

[51] See Summary Comments on Report of the Working Group, on the Reform of Criminal Justice

Administration, 2004, p. 28.

[52] Section 13 (2) of the Bill.

[53] Section 13 (3) (b), ibid. The section also provides that the person arrested or his legal representative shall

have access to all the information in the register with regard to his arrest or information relevant for his

defence.

[54] This will be akin to the Court Automated Information System (CAIS) set up by the Lagos State

Government in all the High Court Divisions. This system automates existing manual processes and creates a database of all cases pending before each judge as well as their current status until judgment and execution. Apart from the internal network (INTRANET) facilities, the system features a public portal which enables counsel and litigants gain access to the cause list, record of proceedings, rulings, judgments and other court information on the internet from the comfort of their offices or homes. See Justice Sector Reform in Lagos State, (Lagos State Ministry of Justice, 2007).

[55] Section 24 ACJ Bill 20052005.

[56] These agencies include: The Economic and Financial Crimes Commission, (EFCC), the Independent Corrupt Practices Commission (ICPC), the National Drug Law Enforcement Agency (NDLEA), the Nigerian Customs Service, and the National Food and Drug Administration and Control (NAFDAC)

[57] Section 10(3), of ACJL Lagos, 2007 makes similar provision. It provides that the Commissioner of Police is to remit to the Office of the Attorney General of the State a record of all arrests made within one week of arrest.  Under Section 340 of the ACJ Bill 2005, the Commissioner of Police is also to remit periodically to the Attorney-General the following:

(a) Records of all cases being prosecuted by police prosecutors every 3 months.

(b) Records of all convictions or acquittals in cases prosecuted by Police Prosecutors at the expiration of each

case.

[58] This section existed as section 20 CPA. The difference is that the ACJ Bill 2005 takes cognizance of the

fact that there are other officials in charge of agencies authorized to make arrests. It also fixes a time

limit for the report as against the CPA that did not specify any time limit,  i.e. “on the last working day of

every  month.

[59] Section 28 (2), ACJ Bill 2005.

[60] Section 24 ibid.

[61] These agencies include: The Economic and Financial Crimes Commission, (EFCC), the Independent

Corrupt Practices Commission (ICPC), the National Drug Law Enforcement Agency (NDLEA), the

Nigerian Customs Service, and the National Food and Drug Administration and Control (NAFDAC)

         [62] Section 10 (3), of the ACJL Lagos 2007, makes similar provision. It provides that the Commissioner of Police is to

remit to the Office of the Attorney General of the State a record of all arrests made within one week of arrest.

[63] This section existed as section 20 CPA. The difference is that the ACJ Bill 2005 takes cognizance of the fact

that there are other officials in charge of agencies authorized to make arrests. It also fixes a time limit for

the report as against the CPA that did not specify any time limit,  i.e. “on the last working day of every

month.

[64] Section 28 (2), ACJ Bill 2005.

[65] Section 34 (1) of the Constitution provides that every individual is entitled to respect for the dignity of his

person and accordingly, (a) no person shall be subjected to torture or to inhuman and degrading treatment.

[66] Section 8 (2) of the ACJ Bill. See also Principle 1 of the Body of Principles for the Protection of All Persons        under Any Form of detention or Imprisonment, which provides that all persons under any form of detention or  imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person. The United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975) defined torture in section 1 as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment (Article 1 (2) of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture, ibid.

[67] Adopted by General Assembly resolution 34/169 of 17 December 1979

[68] 59% of accused persons in the Institute’s Report, alleged police maltreatment. See Ajomo, M. A.  and

Okagbue, I. (Eds).  Human Rights and the Administration of Criminal Justice (Lagos: Nigeria Institute of Advanced

Legal Studies, 1991), p. 121.

[69] Where the voluntariness of such confessions is being contested in court, the court will have a trial within trial to

determine its veracity.

[70] See Eda v. C.O.P (1981) 2 NCR, 414, at 427.

[71] Olawoye, C.O. “The Problem of Delay in the Administration of Criminal Justice” in Adeyemi, A. A.

(Ed.), The Nigerian  Criminal Process, (University of Lagos Press, 1977), p. 147

[72] Adeyemi, A. A. “Police and Human Rights in a Democratic Nigeria”, in David, P. R. (Ed.), Politica Criminal, Derechos Humanos Y Sistemas Juridicos En El Siglo xxi  (Buenos Aires, 2001), pp. 31.

[73] Section 352 Criminal Procedure Act, states as follows:

Where a person is accused of a capital offence, the state shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence (The equivalent provision is contained in section 186 of the Criminal Procedure Code).

[74] (1985), 1 N.W.L.R. (pt. 1), p. 131, at p. 140.

[75] Section 74, (6) ACJL 2007 Lagos

[76] Section 237,ACJL Lagos 2007.

[77] Section 237 (3), ibid. See also section 321 of the ACJ Bill 2005 for a similar provision.

[78] Section 29 ACJ Bill 2005.

[79] Section 149

[80] Section 151, ACJ Bill 2005.

[81] Section 116 (2) of the ACJL Lagos State, 2007, makes similar provisions.

[82] See Summary Comments on Report of the National Working Group p. 84.

[83] Thomas, Bail Reform in America (Berkeley, 1976), p. 212, cited in Okagbue I., Bail Reform in Nigeria,

(Lagos: NIALS, 1996), p. 117.

[84] Section 175 of the ACJ Bill 2005 makes similar provision.

[85] Section 138(5) of ACJL Lagos State, 2007

[86] Section 36 (2) CPC.

[87] Section 37 (a) ACJ Bill 2005.

[88] See Report of the Working Group on the Reform of Criminal Justice Administration, 2004, p. 124.

[89] Ige I., available at http://www.vanguardngr.com/articles/2002/features/law/law123122005.html, last visited on

13^th September, 2008. The cases of Emmanuel Nwude and Amaka Anejemba were cases where plea bargain              played a major part.

[90] See also Section 248 of the ACJ Bill 2005, which provides for the possibility of a defendant to plead guilty for a

lesser offence than offence charged.

[91] Section 76 (2) of the ACJL Lagos, 2007.

[92] Section 76 (3). Section 248 of the ACJ Bill 2005

[93] Section 76 (6).

[94] Section 76 (8).

[95] See Comments of the Presidential Committee, p. 135.

[96] Section 268 ACJL Lagos, 2007.

[97] See sections 270 and 271 of the ACJ Bill 2005.

[98] Section 270 (2), ibid.

[99]  Section 273 (1), ibid.

[100] Section 273 (2), ibid.

[101] Section 273 (3), ibid.

[102] Section 273 (4), ibid

[103] Section 273 (5), ibid

[104] Section 273 (6), ibid

[105] Section 350, ibid, lists the contents of an information. It includes a description of the offence or offences, a statement of offence, particulars of the offence, the law and section of the law against which the offence is said to have been committed.

[106] Section 101 (c) ibid

[107] Section 101 (e) ibid

[108] Section 101 (g) ibid

[109] Section 448 ibid

[110] Section 346 ACJL Lagos, 2007.

[111] See also Section 447 (1) of the ACJ Bill 2005

[112] Section 447 (2) ibid

[113] Section 292 (a), ibid.

[114] Section 292 (b), ibid

[115] Section 292 (c), ibid.

[116] Section 292 (d), ibid.

[117] This Bill is also pending at the National Assembly