TEXT OF A PAPER PRESENTED BY PROF. AGBO J. MADAKI Legal Practitioner and President, Imani Humanitarian Law Initiative AT THE  5TH NATIONAL SUMMIT ON EFFECTIVE PROSECUTION OF CRIMES IN NIGERIA HELD IN ABUJA  FROM 9TH – 10TH APRIL, 2019 1.0   Perception of the Criminal Justice System in Nigeria

  • The perception of the criminal justice system in Nigeria is overwhelmingly negative. Amnesty International tagged the criminal justice system in Nigeria a “ conveyor belt of injustice, from beginning to the end”
  • The criminal justice system has failed to respond to the increasing needs of the Nigerian society.
  • Our criminal procedure to some extent still remain archaic and unresponsive to the changing dynamics of the society.
  • The Penal Code, the Criminal Code are substantially relics of colonial culture and all past amendments have failed to effect a unique Nigeria-specific agenda on criminal legislation.[2]
2.0   Rising Crime Rates in Nigeria
  • The rate, pattern and sophistry of crime in Nigeria is annually on the increase
  • According to the National Bureau of Statistics, in 2017 a total of 134,663 crimes were reported in Nigeria across the 36 states and the Federal Capital Territory[3].
  • Of these offences, the offence against property topped the list with 68,579 reported cases followed closely with offence against person with 53,641 cases reported.
 Crime Perception Index[4]
Level  of crime  67.63 High
Crime increasing in the past 3 years  57.18 Moderate
Worries home broken and things stolen  62.00 High
Worries being mugged or robbed  67.69 High
Worries car stolen  60.40 High
Worries things from car stolen  65.34 High
Worries attacked  60.31 High
Worries being insulted  55.20 Moderate
Worries being subject to a physical attack because of your skin colour, 45.83 Moderate ethnic origin or religion Problem people using or dealing drugs                                                                    63.44 High Problem property crimes such as vandalism and theft                                        68.90 High Problem violent crimes such as assault and armed robbery                               72.59 High
Problem corruption and bribery                                                                                   84.09 Very High 3.0   Crimes and the Nigerian Prisons
  • Official statistics show that Nigeria Prisons held 72,277 inmates as of April, 2018.
  • Out of this number, 49,229 of the inmates representing 68% were awaiting trial inmates (ATI).5
  • The reasons for this high number of ATI are well known.
4.0   The Administration of Criminal Justice Act 2015 to the rescue 
  • Came into effect 15th May 2015
  • ACJA is divided into 48 parts with 495 sections
  • The objective of the Act is captured in section 1 as follows:
“The purpose of this Act is to 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, protection of the rights and interests of the suspect, the defendant and the victim.”6
  • Prevents unlawful arrests
  • Protection of the constitutional rights of an arrested person
  • The use of ‘defendants’ instead of ‘accused’
  • Prohibition of arrest in lieu of the actual suspect
  • Recording of arrest
                                                         55 Compiled by the Institute for Criminal Policy Research at the University of London 6 So much has been written on the overview and analysis of the core content and overview of ACJA in all the past summits and therefore the presenter will not belabor you on such forensic analysis anymore but rather will give greater attention to the topic of our discussion.
  • Establishment of Central Criminal Record Registry
  • Liberal bail condition
  • Provisions for prevention of offences and security for good behavior
  • Establishment of the Administration of Criminal Justice Monitoring Committee
  • Mandatory inventory of property
  • Quarterly reports of arrests to the Attorney-General of the Federation
  • Monthly report by Police to supervising magistrate
  • Return by Comptroller General of Prisons
  • Power to prosecute*
  • Mode of instituting criminal proceedings
  • Quarterly returns of cases and other criminal proceedings to the Chief Judge
  • Powers of a private Legal Practitioner to institute and undertake criminal proceedings under this act
  • Right of women to stand as surety
  • Provisions for plea bargain
  • Day to day trial of criminal cases
  • Time limit for issuance of legal advice
  • Witness protection
  • Electronic recording of proceeding
5.0   Recent Developments and Contentious Issues in the Law of Criminal Evidence Section 106 of the Act confers the power to prosecute criminal cases on the following persons: (a) The Attorney-General of the Federation or a Law Officer in his Ministry or Department; (b) A legal practitioner authorized by the Attorney-General of the Federation; or (c) A legal practitioner authorized to prosecute by this act or any other act of the national assembly 5.1  In this regard, the duties of the Prosecution can be summarized as follows:
  1. The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
  2. The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
  • The duty of the prosecutor is to seek justice, not merely to convict.
  1. It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.
  2. It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor’s jurisdiction. [5]
These functions of the prosecutors are no different in Nigeria as the Courts in Nigeria in a plethora of cases have expressed similar view. In the case of NDIDI V STATE (2007) LPELR-1970 (SC) the Supreme Court held as follows:- “The cardinal principle of trial in criminal cases is that the trial court must not be seen to appear to look for excuses to shore up the case of the prosecution to get a conviction anyhow. Such an attitude of ignoble practice only portrays the court as anything but impartial arbiter. It is reprehensible  for any court to portray any attitude that shows tendency to get conviction at all cost for the prosecution.  In that case the court would have now turned itself into a prosecutor and a persecutor. A court of law or rea sonable tribunal should be wary of such a practice.” 6.2 In our criminal jurisprudence the burden of proving the guilt of the defendant lies on the prosecution.[6] To secure a conviction, this burden of proving the guilt of the defendant must be discharged beyond reasonable doubt. In order to secure a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt as the defendant is presumed to be innocent until his guilt of the offence is established. This principle was well stated by the Court of Appeal in the case of AYEDATIWO V STATE (2014) LPELR – 23034 (CA) where the Court held as follows:- “As already settled, the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt. In Ogundiyan vs. State [1991] 1 NSCC 448, the Supreme Court, per Obaseki, JSC said: “The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, verity, CJ, (Nigeria) delivering the judgment of the court on the standard of proof said: “As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F- & F 383 at 384 where the learned Baron said:- In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.” While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established. See: section 36(5) constitution of the Federal Republic of Nigeria, 2011, as amended (formerly Section 36(5) constitution of the Federal Republic of Nigeria, 1999). Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty – per Muhammad, J.S.C. in The State vs. Azeez (2008) 4 S.C. 188. 6.3 Therefore it is advisable that from the moment of arrest to the time of bringing the defendant before the Court for trial, the provisions of ACJA must be strictly adhered to. How a suspect is treated after arrest now impacts heavily on the chances of the prosecution in securing a conviction. Section 8 (1) of ACJA provides- A suspect shall:
  • Be accorded humane treatment, having regard to this right to the dignity of his person; and
  • Not be subjected to any form of torture, cruel, inhuman or degrading treatment.
If the suspect is able to prove that he was badly treated or subjected to any form of torture, cruel, inhuman or degrading treatment, any extra-judicial statement made by such suspect may not carry any serious weight and could be rejected. This synchronizes well with section 29 (2)(a) & (b) of the Evidence Act 2011 which provides that: (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained
  • By oppression of the person who made it; or
  • in consequence of anything said or done which was likely, in the circumstances, existing at the time to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (not withstanding that it may be true) was not obtained in a manner contrary to this section.
It is not in doubt that subjecting the suspect to any form of torture, cruel, inhuman or degrading treatment could vitiate a confessional statement. As far back as 1976, the Supreme Court held in the case of ACHABUA V STATE (1976) LPELR – 63 as follows: “It is settled law that confession alone is sufficient to support conviction without corroboration so long  as the court is satisfied of the truth of the confession.” In JAMES V. STATE (2017) LPELR-42721 (CA) the court of Appeal held that-  “It is trite that a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt is enough to sustain a conviction, so long as the Court is satisfied with the truth of such a confession.”  In Afolabi vs. State (2016) LPELR-40300,  the Supreme Court held that the six tests for determining the truth or weight to attach to a confessional statement is: “In any case, this Court settled the law that confession which is direct and positive can be relied on alone to convict an accused person. In determining whether to attach any weight to the statement made by an accused person which has been retracted or not, the Court, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268:  “On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr, App, R.233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden.  The questions a judge must ask himself are: 
  • Is there anything outside the confession to show that it is true?
  • Is it corroborated?
(3). Are the relevant statements made in it of facts, true as far as they can be tested?  (4). Was the prisoner one who had the opportunity of committing the murder?  (5). Is his confession Possible?  (6). Is it consistent with other facts which have been ascertained and have been Proved?  If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.  Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. 6.4 Another worthy and innovative provision in the ACJA is the provision for electronic recording of confessional statements. Section 15 of the Act deals principally with recording of arrest. In the course of recording the particulars of the alleged offence, circumstances of the arrest and personal details of the suspect, if the suspect who is arrested with or without warrant volunteered 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.[7] There are obvious challenges here relating to the capacity of the Nigeria Police as presently constituted and funded to have such facilities all over the country. Another challenge is the difficulty of admissibility of electronically generated evidence. Be that as it may, electronically generated evidence is now classified as documentary evidence. Section 258 of the Evidence Act defines documents to include-
  • any disc, tape, sound track, other devices in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
  • any film, negative, tape, other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
  • any device by means of which information, is recorded, stored, or retrievable including computer output.
The condition precedent for the admissibility of electronic evidence are elaborately laid out in section 84 of the Evidence Act. In the case of DICKSON V. SYLVA & ORS (2016) LPELR-41257 (SC) the apex Court held as follows: “ Section 84(1) and (2) Evidence Act provides-  84 (1) In any proceeding a statement contained in document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.  (2) The conditions referred to in Subsection (1) of this Section are 
  • that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
  • that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
  • that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
  • that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities”.
The correct interpretation to be given to Section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2).  As noted above, the main plank of the argument of the first and second cross respondents, with regard to the second issue above, was that only internet-generated documents are caught by the admissibility requirements of Section 84 of the 2011 Evidence Act . With profound respect, this argument is untenable, S. Mason ( ed ), Electronic Evidence : Disclosure , Discovery and Admissibility, (London: LexisNexis, Butterworths, 2007) passim ; H. M. Malek (ed),Phipson on Evidence (London: Sweet and Maxwell, 2010) (Seventeenth Edition) passim ; R v. Shepherd(1993) l All ER 225, 231 [a decision of the defunct House of Lords]; Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534, 577- 578).  Even the very chapeau or opening statement in Section 84(1) contradicts this submission. The relevant phrase here is “a statement contained in a document produced by the computer…” Interestingly, the draftsperson did not leave the meaning of the word “computer” to conjecture. In Section 258(1), the Act defines “computer” to mean “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.” Per NWEZE, J.S.C (Pp97-98, paras e-d)  7.0 CONCLUSION: To realize the core objectives of ACJA will come at a great cost both human as well as in terms of material resources. There is the need, therefore, to capacitate the various institutions/agencies charged with the implementation of the act. In this regard, greater burden is placed on the Nigerian Police Force and other agencies such as EFCC, ICPC, DSS, NSCDC, FRSC, NAPTIP, NDLEA, NAFDAC and NCS. The recommended strategies for achieving the functions allocated to these agencies by Prof Yemi Akinseye-George, SAN are as relevant as when it was made.[8] Some of the recommended strategies include:
  1. The IGP in the interim should establish a unit within his office to serve as the Central Criminal Records Registry
  2. The IGP should engage software engineers and ICT specialists to create software and build database and security firewalls for the software to be used at the CCRR for recording data
  3. The IGP should seek the support of the Director General of NIMC (National Identity Management Commission), Central Bank of Nigeria, Independent National Electoral Commission, etc
  4. The IGP and respective CPs should write to the Heads of Courts, intimating them of the requirement of the Act on criminal records and soliciting their support through court registrars. The letter should also highlight the benefits of such records.
  5. Training and retraining of police officers in line with best international practices on arrest and taking of statements.
[1] Prof Agbo J Madaki has taught many law courses in Universities in Nigeria and East Africa. He is currently the Principal Partner of Agbo J Madaki & Company Advocates and the President, Imani Humanitarian Law Initiatives. +234 8033155674, +2349025764184, email: dr.jerrymadaki4gold@gmail.com [2] Osasuna, T. the Nigerian Criminal Justice System. Sourced from www.cpparesearch.org [3] “134,663 Crimes Cases Recorded in 2017 – NBS” The Sun of 29th June, 2018 sourced from https://www.sunnewsonline.com [4] These data are based on perception of visitors of a website called NUMBEO in the past 3 years. Sourced from https://www.numbeo.com/crime/country [5] Culled from Prosecution function; Criminal Justice Section Standards, American Bar Association, https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_pfunc _blk/ [6] See sections 131 and 139 of the Evidence Act 2011 [7] See section 15 (4) of the Evidence Act 2011 [8] Yemi Akinseye-George, SAN “Strategies for the effective and efficient implementation of the Administration of Criminal Justice Act (ACJA or Act) 2015 being the text of a paper presented at a similar summit]]>

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