A New Era For Confessional Statements In Nigeria: Due Process Or Obstruction?
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By Chinaecherem Nwaubani
Following the decision of the Supreme Court in Charles v The State of Lagos (2023) LPELR – 60632(SC), the law has been firmly established that confessional statements not recorded electronically or in the presence of a legal practitioner is not admissible in evidence. The decision which was followed in FRN v Nnajiofor (2024) LPELR – 62599 (SC), and FRN v Akaeze (2024) LPELR – 62190 (SC), has reshaped the evidentiary landscape in criminal cases across the country.
In line with that decision, trial courts have in recent times struck down extra-judicial statements allegedly made by Defendants before it, the net effect of which is that many a defendant have been discharged and acquitted since prosecutions’ cases are oftentimes largely dependent on alleged extrajudicial statements of defendants. Critics argue that this new standard imposes a difficult standard on law enforcement and criminal prosecution, but a closer look reveals that these safeguards are essential to ensuring due process, credibility, and fairness in the administration of criminal justice.
A troubling pattern has, however, emerged where defendants increasingly deny having had legal representation during interrogation, even thought documents indicate otherwise. In some cases, statements appear to have been signed by legal practitioners who were supposedly present, yet defendants insist no such lawyer attended the interrogation. While it is easy to wave away the protestations of these defendants as the usual antics of defendants in their effort to escape the long arm of the law, other circumstantial evidence in some instances point to the fact that, contrary to the claim of the prosecution, there was indeed no legal representative at the taking of the suspect’s statement.
Recently, in a trial, the defendant had testified that he had no lawyer present at the interrogation. During cross-examination, the prosecution counsel put it to him ‘you wouldn’t know if there was a lawyer present since you do not know the lawyer.’ I was enthused. If a defendant could have legal counsel while making a statement and not know it, then what is the whole essence of the requirement for the presence of a legal practitioner in the first place? Where a defendant has invited a counsel of his choice to be present during interrogation, he would know his lawyer. Similarly, if legal aid counsel is provided for a defendant by the state, the said counsel would have introduced himself to the defendant and ensured that the defendant understood his (counsel’s) role – to represent and protect the defendant’s interest. Thus, where a defendant is ignorant of or unaware of the presence of legal counsel, that is clear evidence of irregularity in the process.
It must be emphasized here and understood that the requirement of the presence of a legal practitioner in Section 17(2) of the ACJL is not similar to or an equivalent of the prescription in the Judge Rules on the taking of statements of suspects, wherein as a matter of practice, the police officer who took the confessional statement of an accused person is obliged to take the accused and the statement before a superior police officer (i.e. an Assistant Superintendent or above) after the fact, for endorsement after satisfying him or herself of the voluntariness of the statement. Section 17(2) requires the legal practitioner to be present when the suspect is giving the statement. Therefore, getting a lawyer from Legal Aid Council or any where else to endorse the statement of a defendant after it had been made, cannot by any stretch, constitute compliance with Section 17(2).
A common misconception is that the law gives investigators an “either/or” option: either electronically record the confession or take it in the presence of a lawyer. However, this applies only to the Lagos State ACJL, as the Administration of Criminal Justice Act (ACJA) applicable at the federal level, has slightly different provisions. While the requirement under the ACJL of Lagos State is disjunctive, requiring video recording of a confessional statement or the presence of a legal practitioners, as confirmed by the apex court in Charles v. The State of Lagos, it is our humble view that the requirement under the ACJA is conjunctive. Sections 15(4) and 17(2) of the ACJA, require that confessional statements must be taken in writing; video‑recorded on retrievable electronic media; and in the presence of a legal practitioner or other approved persons
Consequently, even if the statements of a defendant were taken before a legal practitioner, it would be inadmissible where he denies making the same, except the police can provide the video-recording of the said statement. This view is supported by the decision in FRN v Nnajiofor (supra), as captured in the brilliant reasoning of His Lordship, Okoro, JCA, thus:
This court has variously held that the essence of the requirement for electronic recording of extra judicial statements which must be taken in the presence of a legal practitioner of the suspect’s choice as stipulated in sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 is to give credibility to the course of criminal investigation, so as to obviate recurrent objections as per voluntariness of confessional statements by accused person. See Charles v. State of Lagos (2023) LPELR-60632 (SC), (2023) 13NWLR (Pt. 1901) 213.
… It follows therefore that the police or any agency of the state in charge of arrest and investigation is duty bound to perform their responsibilities within the prescriptions of the Administration of Criminal Justice Act, 2015 vis-a-vis the provision of section 35 (1)(C) of the 1999 Constitution of the Federal Republic of Nigeria. Since the law has provided for a suspect’s extra-judicial statement to be electronically recorded and in the presence of a legal practitioner of his choice, it would amount to a violation of the law if that provision is not followed to the letter.
To the average law enforcement officer, this may appear stringent and some argue that these rules hinder law enforcement and enable guilty defendants to walk free. But this criticism overlooks the larger systemic issue: an overreliance on confessional statements that led to widespread violation of fundamental human rights. Coerced, falsified, or improperly obtained confessions have historically undermined justice, leading to wrongful convictions and eroding public trust.
To my mind the twin requirement of video-recording in the presence of a legal practitioner as provided in the ACJA and the ACJL of some states, protects the due process rights of suspects, enhances transparency in criminal investigation, prevents false retraction and allegation of coercion, and improves the credibility of the justice system. Rather than being a clog in the wheel of justice, the law encourages the police to conduct thorough, evidence-driven investigations, and not depend wholly on confessional statements that may subsequently be challenged. A robust investigative process makes confessions more reliable; reduces abuse and strengthens prosecutions. This is in tandem with best practice in the administration of criminal justice in modern times.
The reforms demanded by the ACJA are an invitation for law enforcement, civil society, and government bodies to build a justice system that is both effective and truly just. To this end, the government, non-governmental organisations, civil society organisations must channel attention and resources towards reform in the Nigeria Police and in other law enforcement agencies. We note that some agencies are already adapting to these standards – a positive sign of evolving compliance and professionalism.
It is recommended that the judiciary should consider issuing legal directions in the nature of a guideline for the taking of statements from accused persons by law enforcement agencies, and demand strict adherence to the same. These guidelines should prescribe a standard format for the opening statement, which must expressly record the presence of a legal practitioner in the interrogation room, including the lawyer’s full name and designation. This opening statement should be signed by both the accused and the lawyer. Such a requirement would prevent situations where the names of lawyers are inserted into statements as afterthoughts – often long after the accused has allegedly made them – and would ensure transparency and authenticity in the process.
Conclusion
The combined requirement of electronic recording and legal presence during confessional statements is not a technicality designed to frustrate law enforcement. On the contrary, it is a modern safeguard aligned with global best practices. It protects suspects’ rights, ensures transparency, and reinforces the legitimacy of Nigeria’s criminal justice system. It also ensures the realisation of the objectives of the ACJA, which is ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim. Ultimately, fairness and transparency are not enemies of justice; they are its foundation.
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