Is The Right Of Silence Being Observed In The Breach?

By Abubakar D. Sani, Esq.

Introduction

I believe that the fundamental right to silence/privilege against self– incrimination guaranteed under Sections 35(2) and 36(11) of the 1999 Constitution of the Federal Republic of Nigeria is violated by the following statutory provisions:

1. Sections 180(b),(g) & 183 (a) of the Evidence Act 2011;
2. Section 35(3)(a),(c) & (d) of the National Drug Law Enforcement

Agency   Act.

iii.       Sections 27(1) & 27(3)(c) of the Economic and Financial Crimes Commission Act 2004; and

2000. Section 28(1) & (10) of the Corrupt Practices and other Related Offences Act 2000.

This is because, in my view, they all compel suspects/persons to make statements to such law enforcement agencies as the ICPC, EFCC, NDLEA, during investigations conducted by such agencies and, in the case of the Evidence Act, it permits the court to compel an accused person to give evidence at his trial. I shall presently review them, starting with the Evidence Act, 2011.

1. The Evidence Act, 2011

Sections 180(b), (g) & 183(a) of the Act prescribe certain circumstances under which an accused person may be compelled to give evidence at his trial. They provide as follows: –

– Section 180(b):

“Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: provided that a person charged and being a witness in pursuance of this Section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged”.

– Section 180(g):

^“A person charged and called as a witness in pursuance of this Section shall not be asked and if asked, shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that which he is then charged, or is of bad character unless:

1. the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged;
2. he has personally or by his legal practitioner asked questions of the witnesses for the prosecution with a view to establishing his own good character or has given evidence of his good character or the nature or conduct of the defence is such as to involve imputations on the prosecutor or the witnesses for the prosecution; or

iii.       he has given evidence against any other person charged with the same offence”.

– Section 183(a) :

“A person charged with an offence and being a witness in pursuance of Section 180 mav be asked and is bound to answer anv question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged” (emphasis supplied)

I submit that the foregoing provisions are inconsistent with the right to fair hearing guaranteed by Section 36(11) of the 1999 Constitution which provides that:

“No person who is tried for a criminal offence shall be compelled to  give evidence at the trial”.

I submit that by offering to testify in his defence and giving his evidence-in-chief, an accused person does not ipso facto, waive or be deemed to have waived his fundamental right not to be compelled to give evidence, even if it is under cross-examination. In other words,  the mere fact that an accused person has freely given evidence-in-chief, does not mean that he can be compelled, subsequently under cross-examination, to answer any question, as the provision of Sections 180(b),(g) & 183(a) of the Evidence Act prescribe. This is because the trial of an accused person does not end, until the rendering or delivery of a verdict: OYEDIRAN vs REPUBLIC (1967) NMLR 122 at 125; this, obviously includes when the accused is under cross-examination.

It has been held that fair hearing is an entrenched provision of the Constitution which cannot be displaced by legislation however unambiguously worded : L.P.D.C vs FAWEHINMI (1985) 2 NWLR pt 7 pg. 300 at 370 per Karibi-Whyte,J.S.C. It is also trite law that the constitutional right of fair hearing cannot be compromised, waived or lost by consent: ENIGWE vs AKAIGWE (1992)2 NWLR pt. 225 pg 505 at 535, per Nnaemeka-Agu, JSC.; OGBA vs THE STATE (1992) 2 NWLR pt 222 pg 162 at 197, per Karibi-Whyte,J.S.C.

2. The National Drug Law Enforcement Agency Act

Section 35(3)(a), (c) and (d) of this Act provides that: –

“Any person who-

1. knowingly fails to make full disclosure of his assets and liabilities

or

1. c) fails to answer any questions or
2. d) fails, neglects or refuses to make a declaration or furnish any information required in the Assets Declaration Form shall be guilty of an offence under this Act and liable on conviction to imprisonment for a term of ten years”

I submit that this provision evidently violates Section 35(2) of the 1999 Constitution which provides that:

“any person 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 choice.”

3. The Economic and Financial Crimes Commission Act, 2004

Sections 27(1) & 27(3)(c) of the EFCC Act  provide as follows, respectively:

• Section 27(1 ):

“Where a person is arrested for committing an offence under this Act, such shall make a full disclosure of all his asset and properties by completing the Declaration of Assets Form as specified in Form A of the Schedule to this Act”.

• Section 27(3)(c):

“Any person who fails, neglects or refuses to make a declaration or furnishes any information required in the Declaration of Assets Form, commit an offence under this Act and is liable on conviction to imprisonment for a term or not exceeding five years”

I submit that each of these provisions is inconsistent with Section 35(2) of the 1999 Constitution, as aforesaid.

4. THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000

Section 28(1) & (10) of this Act provide as follows:

• Section 28(1):

“An officer of this commission investigating an offence under this Act may:-

1. order any person to attend before him for the purpose of being examined in relation to any matter which may, in his opinion, assist in the investigation of the offence;
2. by written notice require any person to furnish a statement in writing made under oath or affirmation setting out therein all such information required under the notice, being information which, in such officer’s opinion, would be of assistance in the investigation of the offence”.

• Section 28(10):

“Any person who contravenes this Section shall be guilty of an offence punishable with a term of imprisonment not exceeding 3 months”

5. Conclusion

• (i) Sections 180(b), (g) & 183(a) of the Evidence Act are inconsistent with the fundamental right of silence/privilege against self-incrimination guaranteed under Section 36(11) of the 1999 Constitution. See OGUNSANYA vs THE STATE (20100 14 NWLR pt. 1213 pg. 349 at 362H, where it was held that  a court of record cannot compel an accused person to testify or call a witness to testify in his defence and AHMED vs NIGERIAN ARMY (2011) INWLR pt. 1227 pg 89 at 1186, where it was held that an accused used person has the constitutional right to remain silent and leave the trial to the prosecution to prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a criminal offence is an inviolable one.

(ii).     Sections 27(1 ) & 27(3)(c) of the EFCC Act, Section 35(3)(a), (c)&(d) of the NDLEA Act and Section 28(1) & (10) of the Corrupt Practices and other Related Offences  Act are inconsistent with the fundamental right to liberty under Section 35(2) of the 1999 Constitution. See UTTEH vs THE STATE (1992) 2 NWLR pt 223 pg. 253 @ 274G & GIRA vs THE STATE (1996) 4 NWLR pt. 443 pg. 375 @ 386D, where the Supreme Court held that an accused person is under our Constitution entitled to remain silent either during investigation or when he is being tried in Court.

(iii).    It is always disturbing to discover any anomaly between a statute/practice and the Constitution; it is worse if such anomaly affects a fundamental right or civil liberty, such as the right of silence or privilege against self-incrimination highlighted above. Given the entrenched principle of constitutional supremacy in our jurisprudence, it is obvious that the aforesaid provisions of the Evidence Act, the ICPC Act, the NDLEA Act and the EFCC Act need to be urgently reviewed, lest we end up with a worse evil by continuing to apply their otherwise salutary, well-intentioned, but – unfortunately – invalid provisions.

ABUBAKAR  D.  SANI, Esq.