Administration Of Criminal Justice Law Of Akwa Ibom State In Review: The Pros, The Cons And The Recommendations

(Being the text of a paper presented by Ekemini Udim, Esq on the 16^th day of April, 2024 at the Bar Week Celebration of the Uyo Branch the Nigerian Bar Association held at the Permanent Secretariat of the Association located at the Banking Layout, Uyo)

Preamble:

I received a call from Mfonobong Udoinyang, Esq., Chairman of the Planning Committee of this event on the 14^th of March, 2024 notifying me of the request of the Branch for me to make this presentation and on 15^th March, 2024, a letter was sent by her to formally invite me to this presentation. I am grateful to the Committee for giving me the opportunity to share my thoughts with you on a piece of legislation that is still very new in our corpus juris. May I also thank the Chairman of the Branch, Augustine Udoh, Esq and his team for the leadership thus far. My Lords, here present, learned seniors, Distinguished Colleagues, ladies and gentlemen of the press, I welcome you all to this presentation.

Introduction:

President Umaru Musa Ya’adua died in office on 5^th May, 2010. His body was quickly moved from Aso Rock Villa and transported by air to his hometown in Katsina State where he was buried the same day. The nation mourned and wished that he was still alive to steer the ship of leadership in the country. In that mournful mood, Dr. Goodluck Ebele Jonathan was sworn in as President of Nigeria. Jonathan went on to serve as President for five years. It was during Jonathan’s administration that the call for the enactment of a revolutionary law to assist in the quick dispensation of criminal justice in Nigeria became the loudest. The calls came from several quarters. A bill on the subject was presented to the National Assembly and in no time, the bill was passed into law. It was then presented to President Jonathan who appended his signature in May 2015 before he left office. By this signature, a law known as the ‘’Administration of Criminal Justice Act’’ was born. There was jubilation across the legal firmament in Nigeria.

The States of the Federation followed suit and enacted Laws having the same purpose or mission as the ACJA. Lagos passed its own in 2015 and thus became the first State to domesticate the law. Other States followed in the domestication. Akwa Ibom State waited a while and eventually enacted its own in March 2022 at the main bowl of the Akwa Ibom State House of Assembly and on 26^th May, 2022, the then Governor of Akwa Ibom State – HE, Udom Gabriel Emmanuel, appended his signature to the Law. By Section 493, the law shall be cited as ‘’Akwa Ibom State Administration of Criminal Justice Law, 2022.’’ It is this piece of legislation that I have been called upon to review, bring out its pros and cons and make recommendations for today and tomorrow.

A Quick Review:

The Law is made up of 493 Sections. In section 1 (1), it is provided that: ‘’The purpose of this Law is to, as much as local circumstances shall allow, promote efficient management of criminal justice institutions, ensure speedy dispensation of justice, protect the society from crime and protect the rights and interests of the suspect, the defendant and victim or complainant.’’ Sub section 2 enjoins the courts, law enforcement agencies and other authorities or persons involved in criminal justice administration to ensure compliance with the provisions of the Law for the realisation of its purpose. The law is broken into 49 Parts with each part addressing a subject, with all the parts working together to make the whole. The law had since come into operation in courts within the State and criminal charges for instance are now drafted pursuant to the provisions of this law.

The Pros:

The Akwa Ibom State Criminal Justice Law, 2022 is heavily pregnant with provisions that have been appreciated by many. I shall make efforts within the limited time, to highlight some of the laudable provisions.

• Prohibition of Arrest in Lieu of Another. Section 7 prohibits the arrest of a person in lieu of another. In a country where security agents can arrest a father in lieu of a fleeing son, a provision of this nature which prohibits such primitive tendency is indeed a laudable provision.
• Debt Collection by Force. In a number of instances, security agents, particularly the police, have been activated through heavily twisted petitions to turn a purely civil and contractual relationship into crime. Policemen are used as debt collectors and to stem this tide, Section 8 (2) of the Law provides thus: ‘’A suspect shall not be arrested merely on a civil wrong or breach of contract.’’ This is indeed a laudable provision in the Law.
• Statements to be Recorded Electronicall Section 15 (4) provides that the taking of statement from an arrested person shall be done in writing and may be recorded electronically on a retrievable video compact disc or any other visual means. Section 17 requires that the recording shall be done in the presence of a legal representative of the suspect or any person of his choice if he has no legal representative, and that, a copy of the recorded statement shall be given to the suspect. As legal practitioners, a number of our clients have told us how they were beaten ‘’black and blue’’ at the police stations and threatened to sign already prepared statements and how they had to sign to save their lives. When a statement is tendered in court and described as a confessional statement, the court can rely on it to ground a conviction. Therefore, a provision which calls for the use of electronic devices to record the statements of accused persons can rightly be described as laudable. The ICPC for instance had long implemented this provision to the admiration of many and our colleagues who have had occasion to accompany clients to the ICPC can all bear witness to this.
• Quarterly Report of Arrests by the Police. Section 29 provides for quarterly report of arrests to be made to the Attorney General by the Commissioner of Police and the heads of other agencies authorised to effect arrest. In a country where those awaiting trial outnumber those standing trial, a quarterly report of ths nature becomes necessary to assist the Attorney General in his assessment of the status of arrests in the state and make informed decisions on who should remain in custody and who should be allowed to go home. The provision of section 33 which mandates the police to report to the supervising magistrate on every last working day of the month, in the cases of all suspects arrested without warrant is also a laudable provision. Section 34 allows the Chief Magistrate or any other Magistrate so designated by the Chief Judge to, at least every month conduct an inspection of the police station or other places of detention for purpose of inspecting the record of arrests, directing the arraignment of a suspect and granting bail to a suspect in deserving circumstances.
• Armed Policemen to be in Court. Section 93 (3) provides that the Commissioner of Police shall ensure that one or more armed policemen are posted to provide security during every criminal trial. This is applicable to all courts where criminal trials take place. This has become necessary in an era where the security situation is becoming highly worrisome.
• Police lay prosecutors are disallowed. Section 106 prohibits a policeman who is not a lawyer from prosecuting criminal cases. This is a laudable provision in view of the clamour for prosecution to be carried out by persons who are learned in law.
• Returns on all persons awaiting trial. By section 111, the State Comptroller of Correction shall make returns every 90 days to the Chief Judge and the Attorney General of all persons awaiting trial in all correctional centres within the State. This is laudable as it will enable the authorities in the State to understand at first glance the magnitude of the existential problem of awaiting trial inmates.
• Women can stand surety. Section 167 (2) prohibits the earlier practice where women were disallowed from standing surety. This provision is indeed laudable in view of the fact that the major requirement for one to act as a surety is that the person must be a responsible person and there are many responsible women in society.
• Children profited from criminal trials. The law prohibits the presence of children in court during criminal trials (section 261).

• Plea bargain (section 269). This section provides that the prosecution may enter into plea bargaining with the defendant, with the consent of the victim or his representative, during or after the presentation of the evidence of the prosecution. The plea bargaining must be done before the evidence of the defence. By this provision, the defendant is allowed to return the proceeds of crime or make restitution to the victim or his representative. I must say that this is a laudable provision. Plea bargain has been practiced for many years in other jurisdictions and if the process is not abused the benefits are many.
• No stay of proceedings. Section 304 provides that, an application for stay of proceedings in respect of a criminal matter before the court shall not be entertained. In the old order, criminal cases – especially of high-profile persons, could drag on for several years as a result of interlocutory appeals and stay of proceedings. The case of the former Governor of Abia State, Governor Orji Uzor Kalu, is a case in point where it took as much as twelve years before judgment could be delivered in the case againt him. This was caused by endless interlocutory appeals and stay of proceedings. A provision such as this one has thus assisted the justice system immensely and has seen to the speedy trial of criminal cases.

• Cost, compensation, damages and restitution. This is an innovative provision in the Law. Before now, one could happily go to jail and serve prison term then come out to enjoy his proceeds of crime. But by section 317 of the Law, the court may, in the course of the proceedings or while passing judgment, order the defendant to pay a sum of money as compensation to the victim of the crime. We have the unfortunate situation where persons who have no title to land, purportedly sell land to unsuspecting buyers. Before now, they could simply go to jail and the buyer loses his money forever. By section 317 (b), it has been provided that ‘’the court may make an order for the payment of money by the defendant to a bona fide purchaser for value who had no notice of the defect in the title of the property.’’ The defendant can also be ordered by the court to defray the expenses incurred in the medical treatment of a victim who was injured by the defendant or convict as the case may be. See section 317 (c) of the Law. By section 319, the court is also empowered to order for restitution. There is also the provision for compensation against a person who causes the arrest and prosecution of an innocent person. See section 321 of the Law. In a country where people make trumped-up charges against their fellows, a provision of this nature had become necessary. I must say that these are innovative and highly commendable provisions in our criminal justice system.
• Private prosecutors. Section 346 of the law provides for the persons that can file information. They are – the Attorney General or a law officer in the Ministry of Justice, a legal officer of any prosecuting agency, and, a private prosecutor. This is an innovative provision and a departure from the past. But the private prosecutor shall work in conjunction with the office of the Attorney General. See also section 381 which provides that an information filed by a private practitioner shall be endorsed by the Attorney General or by an officer on his behalf, stating that he is aware of the information.

• Charge can be dismissed if the complainant is not in court. By section 349, the court may dismiss a charge where the complainant does not appear in court for the trial of the accused. Previously, the court could only strike out the charge.

• Electronic recording of criminal proceedings. Section 362 makes provision for this. This is laudable as it will allow for speedy trials. I hold the opinion that if there are three things that weigh down the health of judicial officers, writing in long hand is one of the first two. It is however sad that we had to wait for a law to be made before the computerization of out courts. Even then, we are yet to see the physical computerization. But like the Americans would say, we live in hope. We live in hope that someday, the burden of painful long hand writing will be lifted from the shoulders of our judges and magistrates especially now that a provision in this regard has been made in the law.
• Parole. This is in section 466 of the Law. It is provided that the court can admit an inmate of the correctional service to parole upon the recommendation of the Comptroller of Prisons. Such an inmate must be a person who has shown good behaviour and has served at least two-thirds of his sentence. This is a laudable provision and a departure from the past. Parole has been practiced in many States in America till date.

• Trial of companies. This is an innovative provision found in section 475 of the law. Here a company found to have been a conduit for the commission of crime can be charged to court and its plea shall be taken by its representative, who may be any of its principal officers or directors. The company can be tried alone or jointly with an individual or individuals found culpable.

• Monitoring Committee. Section 467 of the law establishes the Administration of Criminal Justice Monitoring Committee whose responsibility shall be to ensure the effective implementation of the provisions of the Law. The committee shall have a secretariat and shall enjoy budgetary allocation in the annual budget but its money shall be routed through the office of the Attorney General. The committee shall make its annual reports. This is laudable and a departure from the past, though we are yet to be informed of the formation of such committee in the State.

I must say that there are many other provisions in the law which can rightly be considered as innovative and good for the advancement of our criminal justice system. Time will not permit me to bring them all in this piece.

The Cons:

As widely celebrated as the Law has been, the Law has also been criticised for a number of reasons.  Here are some of the criticisms –

The provision that allows for the remand of a suspect before trial for 21 days with room for extension for another 21 days is a worrisome provision. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the grundnorm of the country. No other law is allowed to overshoot the bounds provided in the Constitution. By section 35(4) of the Constitution any person who is arrested or detained shall be brought before a court of law of competent jurisdiction within a reasonable time. Section 35(5) of the same Constitution states: “the expression reasonable time means, in the case of an arrest or detention in any place where there is a court of competent jurisdiction, within a radius of forty kilometres, a period of one day (that is, within 24 hours).’’ Where there is no court of competent jurisdiction within the same radius, a person is allowed to be detained for up to two days (that is, 48 hours). Ladies and Gentlemen, there are courts everywhere in our State within the radius of 40 kilometres from detention facilities.

The Administration of Criminal Justice Law of Akwa Ibom State, 2022, allows the Magistrate  to order for the remand of a suspect in prison custody for 21 days in the first instance in the event that the Magistrate has no jurisdiction to try the offence for which the person is charged.  See section 295(1) of the ACJL. By section 292, an application for remand can be brought ex parte. Gentlemen, this is one of the first provisions that the security agencies in the State learnt about and several applications have been made to the Magistrate for remand of persons who are said to be in detention and whose faces the Magistrate has not seen. This is a dangerous provision in a celebrated new Law whose mission is the redemption of the criminal justice system. This provision is so dangerous and has already been abused by security agencies within the State. All what it takes to activate this provision is for you to argue with the arresting authority or refuse to do what they want of you. While you are making the argument, and perhaps trying to show reason why your arrest was not necessary, an angry Head of Department can scribble an instruction on a piece of paper to the legal unit, to approach the Magistrate Court and get an order to remand you for 21 days. It is as simple as that. Since the application is allowed to be made ex parte, your presence can easily be dispensed with. The Magistrate has no opportunity to even ask questions and understand what is going on as it used to be the case before the new Law. The Magistrate only looks at papers that have been presented to him; papers that we all know can be cooked up.

What is more, section 295 (2) of the Law allows the Magistrate to extend the period of remand by another 21 days and make the proceedings returnable. In essence, in our State, in a new law, a person who is yet to be arraigned in a court of law of competent jurisdiction, can languish in custody, for 42 days without trial. Is this not the troubling situation known as holding charge for which the Supreme Court had long deprecated?

Furthermore, Section 295 (4) provides that, at the expiration of the remand order of a total of 42 days as stated above, if the suspect is still remanded without a formal charge against him, the court shall issue a hearing notice to the Commissioner of Police and the Attorney General to inquire as to the position of the case and for the authorities to show cause why the suspect should not be released unconditionally. The matter will then be adjourned for a period not exceeding 21 days for which the person will still remain in custody. By section 295 (5) the court shall have the power to make further extension of the remand period for a final period 21 days where the CP or the AG shows cause to the court. This means that someone can stay in custody for 21 days, times 4, making it a total of 84 days, awaiting trial in Akwa Ibom as sanctioned by the new law. This, for me, is highly worrisome. We all know what happens when a law is inconsistent with the provisions of the Constitution. I dare say that these provisions have all the trappings of inconsistency with the 1999 Constitution.

The provisions run contrary to the spirit and letters of the 1999 Constitution. It could never have been the intendment of the Constitution that a man who is presumed innocent can be kept for a cumulative period of 84 days without trial. The Constitution says that a person arrested on reasonable suspicion of commission of an offense shall be taken before a court of law of competent jurisdiction within 24 and hours and 48 hours, if there are not competent courts within a radius of 40 kilometres. Here, we have in our hands a law that allows for the holding of mere suspects in custody for 21 days and 21 days and 21 days and another 21 days. This is by far, the greatest contributor to the conundrum of awaiting trial inmates in our correctional facilities which has become a serious concern to the criminal justice system. One of the ills that the new law came to cure (congestion of the prison by awaiting trial inmates) has now been compounded by the same Law. Prison officials are now helpless because the police keep bringing people to them, armed with court orders for remand, mostly from Magistrate’s courts. This is now a recurring decimal and the provision for the application to be made to the court ex parte, in my opinion, makes the situation even worst and susceptible to abuse. The new Law came like the Messiah and I hold the opinion that it is sacrilegious for a Messiah to compound the problems of the same people he came to offer redemption.

Conviction for a lesser offense. Section 236 (2) of the law provides that ‘’where a defendant is charged with an offense and facts are proved which reduces it to a lesser offense, he may be convicted of the lesser offence although he was not charged with it.’’ Case law allows for conviction for a lesser offence. No doubt about that. But I have a problem with this law and with this provision. The provision which allows someone to be convicted for an offense ‘’although he was not charged with it’’ is troubling provision. If the prosecution cannot prove the charge, why should the accused person not be allowed to go home? Do not forget that during trial, the prosecution has all the rights to amend its charge. If this is not done and the court finds that the charge – for which trial was conducted – has not been proved, I hold the opinion that the accused person should go home.

Cost to be awarded against private prosecutors. Section 320 (1) of the law provides that ‘’the court may, in proceedings instituted by a private prosecutor or a summons or complaint of a private person, on acquittal of the Defendant, order the private prosecutor to pay to the defendant such reasonable cost as the court may deem fit.’’ My worry here is that there is no similar provision for the public prosecutor. If a law is necessary, it should be made to apply to all in equal proportion.

Dismissing a case because the complainant is not in court. This provision is not new. It was there in the old law. But in the new law – by section 349, the court is enjoined to dismiss a charge for non-appearance of the complainant in court. The old law provided for striking out. When a matter is dismissed, the effect is not the same as striking out. While I appreciate the intendment behind this provision, I however hold the opinion that dismissal is rather too heavy a sanction and does not assist the criminal justice system in the state. The drafters ought to have allowed it remain as it used to be, namely, striking out. One can argue that dismissal in this case may be interpreted to have the same effect as striking out. The question then is, why did not the law not use the phrase ‘striking out’ at once to avoid ambiguity and confusion? The current situation leaves the issue to the individual jurist to choose the interpretation to make. A good law should have the qualities of clarity and certainty.

Electronic recording of proceedings. Section 362 provides for this but two years down the line, we are yet to witness this transformation in our courts. Judges still write in long hand. Their backs are breaking and their nerves unduly strained. The law should have made the computerization mandatory but in this section, it uses the word ‘’may’’ thus still keeping our justice system in the stone age.

No provision for the use of Zoom and the likes. The law has not made mention of the possibility of the employment of technology for the hearing of witnesses. I have not seen any section in that direction. This is not good enough for a new law made in the 21^st century with all the possibilities offered by technology. Imagine a vital witness having to travel from the UK or from Australia, the farthest part of the earth from Africa, to appear physically to say what he could have said on zoom, skype and the rest. This is where the National Industrial Court has an edge. This new law should have added these possibilities to its provisions.

Recommendations:

1. The Honourable Attorney General should, please, not assume that every prosecutor within the State understands the dynamics of the Administration of Criminal law of Akwa Ibom State. For this reason, I call for training and retraining of all prosecutors within the State to be anchored by the office of the Attorney General. While those in the Ministry of Justice may not really have a problem – in view of the wealth of manpower and competent seniors thereat to which the juniors can run to, the police, the DSS, Army, NDLEA and Civil Defence may not have such manpower. In those places, the only available lawyer is the king even if he is two years post Call.
2. My Lord, the Honourable Chief Judge should organise seminar for our noble Lords and our learned and hardworking Magistrates. There is no doubt that these gentlemen have the wisdom to interpret the sections of this law, but there is no harm in creating an atmosphere for further brainstorming for cross fertilization of ideas and for the discovery of what may not have been apparent at first glance.
3. Our courts – criminal and civil – must as a matter of expediency by computerized to allow for seamless recording of proceedings. It should be an offence to allow judges and Magistrate to continue to write in long hand. Not in Akwa Ibom. Not in an oil rich State. I have been to the House of Assembly a number of times. I have done cases for them. I have been to the Governor’s office. I know that these places are fully computerized. The Judiciary is an equal arm of government. It should enjoy same privileges and even more.
4. To give effect to the purpose of the ACJL, 2022, we need modern court halls in Akwa Ibom State. Most of the court halls today cannot accommodate the beautiful intendment of this law. At FULGA Street, a new comer to the court may be tempted to ask if some Magistrate Court rooms are courts indeed. There are other courts in nearly the whole State which do not befit us as a rich State and do not represent what the ACJL preaches. Power (electricity) should also be supplied to courts.
5. There are too many cases arising every day for prosecution. I hereby recommend that, there is need to employ more hands in the Ministry of Justice to contend this existential challenge. I must commend our colleagues in the Ministry of Justice of our dear State for their resourcefulness in the cases they handle. I am private practitioner whose if very frequent in court and I can attest to the industry, dedication to duty and hard work of our state counsel. I have a feeling that they would do more if they are better remunerated and given the needed facilities to function optimally like their counterparts in Rivers State and other States around us. The prohibition of lay policemen from prosecution of cases also calls for the recruitment of more lawyers for the State. Permit me to add with due respect that the recruitment must be made open to allow for everyone to compete equally for the available spaces.
6. The wealth of knowledge in our Retired Judges is too much to be allowed to be with them in their residences alone. They should be engaged in one way or the other for the training of judicial officers. They can also train state counsel. They can even train the support staff of the courts. Their wealth of knowledge is need for the effective implementation of the objectives of this law.

I thank you all for your kind attention.

Ekemini Udim is a Barrister and Solicitor of the Supreme Court of Nigeria. He has five law books to his name and is the Senior Partner of Justice Chambers. He holds a first degree in Law (LL.B) from the University of Uyo and a Masters in Law (LL.M) from Liverpool John Moores University, United Kingdom. He is a regular commentator on legal and other issues on radio and across social media platforms. He believes that law should be used for the betterment of society. He is reachable on: ekeminiudimforjustice@gmail.com.