Absoluteness Or Otherwise Of The Constitutional Right To Remain Silent By Kasiemobi Emmanuel Oranugo, Esq

Ab intio, a Defendant has the legal right to reserve his/her right to silent under the Constitution. The courts have ware-housed litany of authorities on this issue, as has been x-rayed in the following cases:

In Botu v. the State (2018) 3NWLR (PT. 1607) 410 S.C., the Supreme Court, per Kekere-Ekun, J.S.C. held that

“an accused person has the presumption of innocence in his favour, and the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. Consequently, an accused person has the right to remain silent throughout from his arrest up to and including the trial. (State v. Salawu (2011) 8NWLR (Pt. 1279) 580”.

Similarly, in Candide-Johnson v. Edigun (1990) 1NWLR (PT. 129) 659 at 672, the Court of Appeal, per Achike, J.C.A. held that:

“the citizen’s right to remain silent has for long been firmly recognized and established under the common law. In Rice v. Connolly (19966) 2 ALL E.R. 649 at p. 652, the Lord Chief Justice opined: “the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority and refuse to accompany those in authority to any particular  place short of course of arrest”. Today, this right has been expressly preserved under section 33(11) of the Constitution of the Federal Republic of Nigeria 1979. If therefore, the appellant was not on trial and irrelevant question was put to him, even by a judicial authority, it would seem to me that the necessity or obligation to answer such question cannot arise”.

See also the cases of Mbele v. the State (1990) LPELR-1854(SC) and Atanda v. Attorney General of Western Nigeria.

To buttress this point, the Administration of Criminal Justice Act, (ACJA) (2015), in sections 15(4) and 17(1), which are the two sections that specifically dealt with making of statements under our criminal justice system provides as follows:

Section 15(4) of ACJAprovides as follows: “where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means”.

The operative word in that section is the word “VOLUNTEERS”, which automatically removes the ingredient of duress, compulsion and threat in recording a Defendant’s statement.

Section 17(1) of ACJAalso provides:  “where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement”.

The operative word in that section is the word “IF”, which also removes the ingredients of duress, compulsion, torture or threat in recording a Defendant’s statement.

From the above sections, the obvious fact is that any statement obtained from a defendant must be voluntary for it to be admissible and for any weight to be attached to it.

ON WHETHER THE SECTION 27 OF THE EFCC ACT (WHICH DEAL WITH DECLARATION OF ASSETS) FALLS WITHIN THE FOUR WALLS OF STATEMENT AS STATED BY THE COURTS AND THE ACJA

Section 15(4) of ACJA, deal with Confessional Statements whilesection 17 (1) of ACJA, deal with any other form of statement.

DEFINITION OF THE WORD “STATEMENT”

The Supreme Court per Ngwuta, J.S.C. in the case of Dickson v. Sylva &Ors (2016) LPELR-4125 (SC),imprimatured as follows on the meaning of statement- “A statement, in a general sense, is an allegation, a declaration of matters of facts, etc. See Black’s Law Dictionary Special Deluxi fifth attestation, avowal etc.

Also in Chukwuma v. Nwoye & Ors (2009) LPELR-4997 (C.A), the intermediate court also defined a statement to mean: “evidence, that is a verbal assertion or non-verbal conduct intended as an assertion”.

Consequently, from all intents and purposes, it then means that the EFCC declaration of asset form comes within the meaning  of statement as provided for by the ACJA and as defined above, as such, it shall not be made under duress, compulsion or threat. Pursuant to the above premise, section 27 of the EFCC Act, which deals with declaration of assets of suspects and which further threatens 5years imprisonment in case of breach is unconstitutional, illegal, unlawful , unreliable, irrelevant and ought to be ignored. The imposition of 5years imprisonment for failure to make a statement by way of asset declaration in itself is already threatening and a way influencing the Defendant to make a statement.

The Constitution of the Federal Republic of Nigeria, 1999, as altered, which is the fons et origo of all laws in Nigeria, also guaranteed the Right to Silence of a Defendant, and so any other law which is inconsistent with the Constitution shall to the extent of its inconsistency be void.

Finally, in Nnunukwe & Ors v. State (2002) LPELR-10296 (CA), the Court of Appeal stated as follows on the effect of a statement under threat- “Any statement obtained under threat of violence or tricks cannot be a valid statement or a free agent, and such ought to be ignored. See Babalola v. the State (1989) 4NWLR (Pt. 115) 264.

Robert H. Jackson, the Former Associate Justice of the Supreme Court of the United States once rightly stated that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances”.

God bless Nigeria.

Kasiemobi Emmanuel Oranugo, Esq, 08065613658