Administration of Criminal Justice in Nigeria (1) By Ebun-Olu Adegboruwa, Esq
In or around 1945, Nigeria enacted and Criminal Procedure Act, to regulate criminal cases in the Southern part and the Criminal Procedure Code, for the Northern part. It was said to be patterned after the criminal procedure of Sudan, with all its archaic provisions that were no longer in tune with the realities of the times. Several unsuccessful attempts were made to amend it, until 2015, when the new Administration of Criminal Justice Act (ACJA), was enacted and passed into law. Expectations were very high indeed, that the new legislation would mark a turning point in the system of criminal justice administration, especially the embarrassing cases of awaiting trial inmates.
About four years on, little has been achieved in the transformation agenda that motivated the passage of the new law. Let us take a quick journey through some of the changes that the new law sought to introduce. Under the old order, the police was made the emperor of arrest and detention but that has now been altered by ACJA, in its sections 7-10, which have now codified extant case law on the point. In particular, section 7 of ACJA now prohibits arrest in lieu by stating that “a person shall not be arrested in place of a suspect”. It was common in the past for the police to arrest by proxy, by picking the father in place of the son or vice versa and at times lock him up for days, until he is able to produce the real suspect. As stated earlier, this new law only operates in writing, as so many cases of arrest by proxy still abound all over the place. What the law has done however is to make it easy for the victim to approach the court, to challenge such unlawful arrest based on the authority of section 7 supra. The easy solution to this is for the police authorities, especially the Police Service Commission, to sanction every erring policeman that is found culpable of engaging in arrest by proxy.
Another major innovation that ACJA has brought about is decriminalization of civil matters. Virtually in all police formations, their case files are mostly filled with civil cases, such as trespass to land, landlord and tenant issues, breach of contract and general civil transactions. Of course, various pronouncements have been made by the courts, outlawing this practice, but the police have complied in the negative. The attraction of course is the pecuniary benefit to the police, by way of rebate. There is an unwritten convention adopted by the police to demand for and to collect 10% of every money recovered in civil transactions, which may at times run into millions of naira. Now, this has only served to dampen police enthusiasm in its main preoccupation of detection and prevention of crimes. Where for instance, the police has assisted to recover ten acres of land in a choice area, virtually all the officers involved will be expecting to receive at least one plot of land each, as compulsory compensation for job well done. In this regard, pursuing criminals becomes less attractive to the average policeman. And in this period of inconclusive elections in particular, every security man wants to be posted to man juicy election locations, at least going by official budget of INEC alone, not to talk of the unofficial budget of politicians, for security. Each time I go through section 8 (2) of ACJA that says “a suspect shall not be arrested merely on a civil wrong or breach of contract”, I cannot but laugh aloud, since I know that the police would rather stop functioning than to be told not to dabble into juicy land matters, loan agreements, breach of contract, etc.
I have attended meetings at some police formations, for the resolution of land disputes, where policemen demand for survey plans, layout plans and other title documents, in order to determine and resolve rival claims of declaration of title, between the complainant and the suspect. In some cases, the police have proceeded upon the absurd procedure of visiting the locus in quo, for the purpose of taking measurements in order to determine actual ownership of land. So then this is why crime rate will continuously be climbing, as the real job of intelligence, investigation and crime bursting, have all become less attractive to the underpaid policeman.
Section 8 (1) of ACJA seeks to protect the dignity and humanity of the suspect, by stating that:
“A person shall:
(a) be accorded humane treatment, having regard to his right to the dignity of his person; and
(b) not be subjected to any form of torture, cruel, inhuman or degrading treatment.”
This is a re-enactment of section 34 of the 1999 Constitution and Article 6 of the African Charter on Human and People’s Right, both of which guaranty fundamental right to the dignity of the human person. The goal of section 8 of ACJA is to end the regime of torture of suspects that the police has become accustomed with, especially in serious cases of armed robbery, kidnapping, murder, etc, where the suspects are at times hung with rope upside down in special torture chambers, in order to force them to make confessional statements. This new law prohibits flogging of suspects or even handcuffing them, in the case of well behaved suspects. Despite this new provision however, we see the police parading suspects everyday, with bruises all over them, evidencing serious beating and torture, whereas the police would always claim that minimum force was only applied to prevent escape or imminent danger.
Another innovation introduced by ACJA but which the police will have no part with is the provision contained in section 6 thereof, on the notification of the reason for arrest. Under this section, the officer making the arrest is under a sacred obligation to inform the suspect of the reason for his arrest and also of the following rights:
(i)) right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice;
(ii) right to consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest; and
(iii) right of access to free legal representation by the Legal Aid Council of Nigeria.
Furthermore, an obligation is also imposed upon the police by stating that “the authority having custody of the suspect shall have the responsibility of notifying the next of kin or relative of the suspect of the arrest, at no cost to the suspect”. I’m sure by now you must be thinking that this is a foreign law not applicable in Nigeria, given the same police that you have known and dealt with. For a citizen to demand to know the reason for his arrest is to incur the wrath of the arresting officer, who takes it as an act of insubordination of some sort and a rude challenge to his authority. And then to ask a policeman to inform your next of kin of the reason for your arrest at his own cost!
ACJA further demands in its section 10 that the police upon arrest of a suspect should take inventory of all items or property recovered from the suspect and the police officer and the suspect must duly sign the inventory. Section 30 of ACJA states that where a suspect has been arrested without a warrant for an offence that is not a capital offence punishable with death, the officer in charge of the police station shall inquire into the case and release the suspect arrested on bail on terms and where it will not be practicable to bring the suspect before a court having jurisdiction within 24 hours after the arrest, he shall be released on bail. By virtue of section 31, even where it is impracticable to conclude investigation into the case, the police officer will release the suspect upon recognizance, with or without sureties. Now the usual challenge is the sing song by the police that “Bail is Free”, by which they express that a suspect upon arrest can walk in and out of a police station without paying a dime! I have yet to come across any real life situation where such has happened, except in the rare cases of the national struggles of our heroes like Chief Gani Fawehinmi, Dr Beko Ransome-Kuti, Mr Femi Falana and many others, where nobody would dare ask any penny. In fact, in these cases, the police usually go out of their way to defer to these icons, given the nature of their cause as a collective struggle on behalf of all.
The normal experience in relation to bail is that the police would target arrest for Fridays, very close to the end of the week, in order to hike the stakes of the bargain for freedom by the suspect. If is a written invitation, it is usually fixed for a period close to the end of the week, so that even if the suspect is granted bail, usually on very stringent terms, it will prove almost impossible to fulfill the conditions of bail and be free on the same day. So, the police is always working from a default angle, that all suspects deserve to stay in their custody. In most police formations therefore, it is as if ACJA has not come into force, as the police do not defer to its provisions, leading invariably to congestion in the police cells, the prisons and even the courts. In the end, the administration of criminal justice is still where it was, before ACJA, at least in practice.
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