In its criminal adjudicatory procedure, Nigeria upholds and practices the accusatorial or adversarial system of investigation and trial. This system
which is common among the common law countries seems more sensitive to the liberty of the citizen and upholds the presumption of innocence for accused persons. In trials the prosecution and defence compete against each other, and the judge serves as a referee to ensure fairness to the accused, and ensures that the legal rules of criminal procedure are followed. The adversarial system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law accurately.
It is in contrast to the inquisitorial system associated with civil law legal systems like Italy where the system concentrates the judicial and prosecutorial functions in the judge. In addition, the judge initiates the investigation and collects all the evidence. Moreover, the judge has complete control over the admissibility and evaluation of the evidence. No exclusionary rules such as the hearsay rule exist. Judges use their prudent judgment in deciding on the weight to be attributed to evidence which might otherwise be inadmissible. Even though a criminal defendant is not presumed guilty in an inquisitorial system, contrary to what is taught, nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the presumption of innocence that is fundamental to the adversarial system.
In reinforcing the adversarial system in Nigeria, Section 36(5) provides, ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty’. The proviso which refers to evidential burden states, ‘Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.’ A corollary to this constitutional foundation is the provision in many other procedural laws that give stimulus to the doctrine; Section 135(10) Evidence Act, Section 255 ACJA, etc.
In assessing the level of development of any Nation and by extension the quality of life of its citizens, the degree of observance of the rule of law, protection of human rights and access to justice is ascertained.
According to the UNDP, the people and their capabilities should be the ultimate measure of development not just the economic gains. That is the policy behind the Human Development Index (HDI). It is in this respect that various conventions and instruments of the UN and its monitoring bodies are passed and constantly assessed.
The convention against torture and other cruel, inhuman or degrading treatment or punishment of 1984, the United Nations Standard minimum rules for the treatment of prisoners (the Nelson Mandela rules), the United Nations Standard Minimum Rules for Non‑custodial Measures (the Tokyo Rules), the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), United nations norms and guidelines in crime prevention and criminal justice: implementation and priorities for further standard-setting, are some of these international instruments.
These instruments, amongst others, serve as guiding principles in criminal justice administration. They act as the standard setting keys that are subsequently adopted into local legislation.
Going further, Goal No 16 of the Sustainable Development Goals (SDGs) adopted by the United Nations General Assembly (UNGA) in 2015 which is Peace and Justice-strong institutions envisions that by 2030, member States, including Nigeria, would have developed strong systems to promote the rule of law at the National and International levels, ensure equal access to justice for all, and ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.
To attain these lofty targets, our criminal justice organism must be constantly assessed and re assessed in order to be free from all self-imposed albatrosses. These shackles have made mockery of our espousals as a nation built on justice and they constantly welt our image in the international community.
Of concern in this context is the practice commonly known in our criminal trial process as ‘holding charge’. While there may not be a legal or judicial foundation to support the epithet in principle, however, Judges, lawyers and other players in the criminal justice system understand what it implies and are ad idem on the fact that the practice not only subsists but flourishes.
This is how it works in practice. A suspect is taken in by the Police on an allegation that he committed an offence triable by information at the High Court. It could be armed robbery, robbery, murder. After investigation the suspect is taken to the Magistrate court where he is remanded in prison custody. A duplicate copy of the case file is or should be sent to the office of the Director of Public Prosecutions (DPP) for legal advice on the next step to be taken. This rather simple process has in reality over the years created very complex situations that have struck at the core of lives and liberties of suspects and left a huge question about the essence of life in Nigeria. This is because in many cases, after the suspect is remanded, the Police go about their business as usual and the case file of the defendant is not transmitted to the DPP. The defendant is then left to languish in custody endlessly in failed expectation that his case is receiving attention. This waiting process can take up to 12 years as I observed in a matter we handled years ago. The young man was arrested and remanded but his ‘case file’ never saw the light of day. Others have stayed upwards of 10 years in similar twist of process.
On the flip side, when the duplicate case file eventually gets to the DPP, the civil service bureaucracy robs the system of the zest and gusto that such fundamental issues should attract, with the result being that the defendant stays many more years before the advice is released. The advice when released, could be to the effect that the defendant should be released because the case file does not disclose any triable offence, or it could be to the effect that the defendant should be charged with a lesser offence, or that the file discloses a triable offence as per the original charge.
Whichever way we may choose to look at it, this practice should not be accommodated under any guise in our criminal justice structure. Our system should not be subject of negative comparative analysis in criminal justice jurisprudence. Years ago, an Egyptian-Canadian who was undergoing an International course in criminal justice with the IOJ chose to embed in our team in course of our routine visit to the custodial centers to select inmates for legal aid. In one of the custodial centers, when inmates who had stayed for about 8 years awaiting DPP’s advice were brought for pre-selection formalities, the intern burst into tears and we had a really tough time getting him to control his emotions.
TO BE CONTINUED…