We refer to it as a system because it embodies a network of laws and institutions and works in a process that is supposed to be coordinated. In addition to the legal institutional components of the administration of criminal justice, certain social and moral values are supposed to be reflected in and form a part of the system. The legal foundation for the criminal justice is the constitution, particularly the portions that relate
to the powers of the court, or jurisdictional mandate of the courts. Also, the sections of the constitution that deal with fundamental rights are central to the criminal justice, particularly the provisions on right to liberty, right to fair hearing. Excising the power of the state to try and convict a person for committing a crime, the state must comply or respect the constitutional provisions on rights. Also, the constitutional provisions have direct control on the definition of a crime and may place several restrictions on the scope of the application of a penal law. For instance, it is the constitution that ensures that an act cannot become a crime based on a law that came into force after the act was committed. This is known as the non-retroactivity of a criminal law.
Apart from the relevant potions of the constitution, our criminal justice comprises of the various laws in force both at federal and state levels which establish or define crimes or conducts that are prohibited at the pain of criminal sanctions. Such sanctions comprise mainly of prison sentence and/or fines. There may be other sanctions such as forfeiture, restitution or community service. Note that the constitution does not control the kind of punishment that the law can impose. It does this through the prohibition of cruel and unusual treatment.
To understand the criminal justice system one needs an illustration of how it works. The process commences when the police has a reasonable suspicion that a person has either committed a crime or is committing a crime. It continues through the end of trial, and continues, in case of conviction, through sentencing, imprisonment and release upon the completion of sentence. If a police officer believes that a person has committed or is committing a crime, an arrest occurs. What happens after that or the processes that such a person goes through all the way to acquittal in court or release after his jail term or completion of alternative punishment constitute the criminal justice system.
As is immediately obvious from this simple explanation, the criminal justice process involves several distinct stages. And in any individual case, the process can terminate at any of such stages. The purpose of this commentary is to highlight certain obvious anomalies and shortcomings in the Nigerian Criminal Justice with a view to focusing your attention and seeking reforms thereof.
In the Nigerian system, the most active stages are arrest, filing of criminal charges and the bail hearing, which is otherwise known as detention hearing.
ARREST: Focusing on arrests by the police, the legal standard is reasonable suspicion. The police must have a reasonable suspicion that a crime has been committed. That suspicion then forms a basis upon which the police officer applies to the court, with an affidavit, for a warrant of arrest. The affidavit shall set out with sufficient specifically that offence has been committed and the facts upon which such suspicion are based. The judge reviews such application and usually issues a warrant for the suspect to be arrested. It is not in all circumstances that the police must first apply and obtain a warrant of arrest before an arrest could occur. If, for instance, a police officer witnesses a crime being committed, he can make an arrest on the spot without the need for a warrant. But such exception to the requirement for warrant should be comparatively fewer than warrant-based arrests. On this reasoning, in nearly all cases where the police is acting based on a complaint by either the victim of a crime or third party, there ought to be a warrant of arrest before the police could arrest that should apply to nearly all the EFCC cases, as they are usually based on some complaint. The warrant-based arrest is the preferred form of arrest in all civilized and democratic countries. The reverse is the case under dictatorships and repressive regimes.
There are several reasons why warrant-based arrests are more acceptable form of arrest in democracies and in the civilized and human societies. First, arresting a person constitutes the taking away his liberty which is a constitutionally guaranteed right. Such a serious event should only be done based on a serious ground and a verifiable process. To obtain a warrant to arrest a person means that the police officer has thought carefully through the question of whether there was a reasonable ground to suspect that a crime was committed. It also means that a judge has been persuaded to share in the reasonableness of that suspicion. Therefore, obtaining a warrant reduces arbitrariness on the part of the arresting officer. Also, by going through the process of preparing an application for a warrant, the arresting authority which usually works closely with the prosecutor is well prepared to move forward with the case once arrest has occurred. Also as the application for a warrant involves some articulation of factual basis for suspicion, that process gives the police and the prosecutor the opportunity to conduct some level investigation of the crime prior to arrest. That minimizes incidence of false arrests. In addition, the involvement of judicial officers in the case prior to arrest, that is, at the point of issuing the warrant, places the stamp of higher authority and fairness on the case at an early stage. It also minimizes the chances that the case would be defeated preliminarily at the point of opening.
In Nigeria, unfortunately, the considerations raised above do obtain. Arrests are made by the police/EFCC on the whim. There is no way to avoid extreme subjectivity and arbitrariness or corruption in the arrest stage of the process. The officer arrests as he deems fit, at his own time and for his own reason, which he is free to change as the day goes. For the EFCC, the only thing their officers need to affect an arrest is a complaint. And there are virtually no standards for the content or form of such complaints. The complaints are not required to be under oath. Indeed, it is strongly believed that EFCC officers write some of the complaints that form the basis for their arrests. The damages of such a loose system of arrest are too numerous to count. Among them is the number of unlawful and abusive arrests and detentions. The incentive for corruption and abuse of human rights are more. And it usually undermines effective prosecution and imperils the entire criminal justice process as we see down the stages.
CHARGING THE SUSPECT: The next stage in the process after a person has been arrested is charging him formally with the commission of any one or more of the offences in the various laws that establish crimes or offences in Nigeria. This involves filing a charging document, known as An Information, in Nigeria. The information contains a short statement of the offence and the section of the law involved. It is followed by a more detailed description of the act that formed the bases of the particular violation. The short and detailed statements of the offence are known respectively as the count and particulars of the offence. Each set of count and particulars constitute the complete information for the offence in the charging document. There could be several sets of such information. The information comes with summons from the court stating the date for the case and the suspect to be presented in court.
How soon after the arrest that a person s charged and presented to the court varies. But the constitution requires for that to be done within 48hours. In most parts of the world, the time line is really short and within a few hours, usually less than 24 hours after arrest.
Before discussing the charging process any further, let me address the question of the decision to charge a person and the legal standard that informs decision. Unlike the decision to arrest which is based on the reasonable suspicion standard, the decision to file a criminal charge against a person requires the existence of probable cause. Probable cause exists when the prosecutor reviewing the evidence available reasonably believes that the evidence is sufficient to prove the case beyond reasonable doubt, which is the legal standard of proof required to convict a person.
Clearly, the probable cause decision is a logical progression of the reasonable suspicion determination. It is the same chain of information and facts that led to arrest that usually continues to the decision to charge a person. Though it does happen that a person may be arrested for one offence, but end up being charged with entirely different offence. The correlation is that a good police work at the arrest stage naturally leads to a good work at the charging stage. Where a warrant of arrest was duly obtained, the charging language usually derives substantially from the language in the application for warrant. This ensures a smooth flow of the process. It is important to note that it is not all arrests that result in charges being filed. Sometimes there may be a reasonable suspicion to arrest, but there would not be probable cause to file a charge. This is significantly more the case in cases of arrest without warrant.
In Nigeria the situation is significantly different. The huge problems with the arrest decisions tend to spill over to the probable cause decisions. Because people have been arrested arbitrarily and with clear articulation of the facts that inform the decision to arrest, it becomes difficult to formulate a charge against them. Often, the first time that the police and prosecutor ever bothered to articulate a theory of crime or to pin down the offence a suspect committed is at the charging stage. This could be extremely difficult because the prosecuting authority is by now under considerable pressure. A person has been arrested and detained in clearly arbitrarily fashion or based on an avoidable mistake. The prosecutor may not like to own up to that mistake and thereby expose a colleague that carried out the arrest.
This situation is so common with EFCC. In majority of their cases, their legal officials are at much loss in formulating a charge. The immediate consequence is that the suspect is detained for unreasonably a long period after arrest has occurred, in complete violation of the constitutional time limit. At the same time several cover-up measures and subversion of justice are carried out by the EFCC officials. Such acts include pressures brought on the suspect for him to confess and incriminate himself, and sometimes blatant acts of coercion. Also the EFCC officials prefer to run to a magistrate court or other courts to obtain a remand order. In many cases, the complaint that led to the arrest has been with the EFCC for months before the arrest occurred. Yet, they go to the court to request for order to remand a suspect days after he has been in their custody.
Another method of covering up mistakes in EFCC is for the officers to pretend to grant the suspect one of their administrative bails, but with terms that are impossible to meet or simply prevent the suspect from meeting the terms. They then turn around and pretend that the suspect having been granted bail is no longer in their custody against his will. Yet another method deployed by the EFCC to try to evade the constitution is to proceed and file a doomed charge. As the charge gets thrown out of court, they file another charge and re-arrest the suspect and thereby commence a new round of detention.
In my case, EFCC arrested me on February 14, 2011. They had absolutely no idea what offence I could be said to have committed. For that reason no one in EFCC could even tell me what offence was in their mind. It was not until February 18 that the EFCC officials told me the offence they were considering. Even at that they had absolutely no idea what evidence they needed to have, and this is despite the fact that they had placed me on the wanted person’s list two months before I was arrested. After detaining me for 10 days, EFCC went to the court in my back and obtained an order to keep me for 2 weeks. Upon the expiration of that order, they renewed it for another two weeks all in my back. And this is one of the points where Nigerian legal system hits its lowest marks – a judge who claims to have anything to do with administration of justice grants an ex parte order twice to detain a suspect already in custody. By so doing, the judge tries to legitimize injustice and oppression.
BAIL APPLICATION AND DETENTION:
This is the next stage after a suspect has been arraigned in court. As of today, this is clearly the most difficult stage and strangely the most decisive one in our criminal justice system. As has been demonstrated by both the police, the prosecutors, and even by many judges, this is the grand finale or do-or-die stage in the process. In other parts of the world, the detention hearing stage which is routinely crossed relatively quickly, is not a major stage in the process. That is to say; detention hearing does not rise higher in importance than the trial stage. In Nigeria, on the other hand, it is everything. This is why over 75% of prison inmates across the country are people awaiting trial, which means they are people who were either denied bail by the courts or who received harsh and excessively difficult bail terms they could not meet. And this is why many people have remained in awaiting-trial status longer than the period of jail term they would have served if they were promptly tried and convicted of the offences they were charged with.
In America and all commonwealth countries, once a person is arraigned, the court assumes jurisdiction to determine whether the person should be detained or set free pending the trial of the person for the offences charged. It is fairly automatic that the judge will address that matter and make a decision either way and set out the terms for further detention or release. In carrying out this function the judge is guided by a body of jurisprudence centering on the full package of due process rights of the accused, particularly the presumption of innocence. This is weighed against the need to ensure that the accused, if released would be available for trial.
By the automatic nature of bail hearing, courts in all parts of the world automatically assume the mandate once pleas are taken. The court must address the constitutional presumptions of innocence. As a matter of law without addressing that important constitutional point, there would be no basis to detain an “innocent” person. In other places, the judge would raise and address the issue of bail even if both the defense counsel and the prosecutor fail to raise it. It is not necessary therefore for the defense counsel to apply for bail in order for the court to raise it. Also, the prosecution must raise the bail question even if the defense does not. The prosecution must be ready to initiate the issue, even for the purpose of justifying denial of bail or detention. It is highly unusual for the court to rise without anyone addressing the bail question.
Nigeria is a marked departure from the world-wide practice. As mentioned above, the bail stage is often the target of the prosecution. The danger is that outcome of bail hearings overshadow the rest of the case. In the EFCC cases, the aim of the prosecution is simply to get the accused detained without bail. The judges also contribute profoundly to the problem. The judges tend to treat bail hearings as if they are the central point in the process. This could explain why most are not willing or ready to address bail applications in a timely manner. First, in almost all the Nigerian courts recently, the judges insist that bail applications must be in writing and they allow the prosecution extraordinary long time to respond to the written bail application. Rather than disposing of bail applications with the priority and urgency that would accord meaning and effect to the constitutional presumption of innocence, the courts surprisingly adjourn bail hearings many times and for as long as a month or more while remanding the suspect in police cells and prison custody pending such a time the court finally disposes bail.
Another area of grave concern in our criminal justice as pertains to bails is the fact that our judges routinely impose excessive and harsh bail terms, which forces the suspect to remain in custody even after being admitted to bail. This tends to suggest that even the judges see the bail stage as the most important part of their work. Also, it tends to show that the judges do not really care about the issues of the constitutional presumptions of innocence and fair hearing. I emphasize fair hearing at this point because if the suspect is unduly held in detention pending his trial, he may effectively be denied the opportunity to defend himself.
From all studies, the practice of the EFCC reflects the worst abuses of the bail process. First, there is a standing policy in EFCC for their lawyers to oppose bail, all bails. Even in situations where EFCC had previously granted administrative bail, they still oppose court bail and demand that the suspect be remanded in prison custody until the end trial. Surprisingly, the courts countenance such practice. During an interrogation right after arrest, the EFCC operatives would tell a suspect that they would put him in jail. This threat continues even when the EFCC lawyers get involved. In the end, what they mean by putting the suspect in jail is no more than the long detention period between arraignment and perfection of any terms of bail. Also, EFCC abuses the rights of suspects by refusing or failing to perform basic verification functions for the suspect to be released on bail. And the courts seem totally unable to do anything about such abuses.
Worthy of specific mention here is another practice by our courts which is to deny bail in exchange for a promise of speedy trial. In other words, the judge would decide that instead of granting bail she would speed up the trial. With due respect to the intentions of the judge here, this smarks of fraud. First and foremost, the judge is already under an obligation to try all cases as quickly as is consistent with the requirements of the procedural due process. A judge cannot chose to delay a trial. Therefore speaking of speeding up of trial is a suspect proposition, especially when couched as an alternative to bail.
There are many other reasons why such a proposition appears fraudulent and untenable. There are many things involved in the trial of a case that are beyond the control of the court. For instance, the case could get transferred to another judge who did not give the personal promise of a “speedy” trial. Also, there may be legitimate grounds for preliminary motions, all of which would delay trial. It is a due process right of the accused to avail himself of preliminary challenges to jurisdiction and similar matters. Promising a speedy trial in the circumstance under discussion is a miscarriage of justice and a basic failure of the courts.
The only way a person wrongly denied bail can be compensated is if during his eventual sentence he receives credit for time already served. But such is hardly any solace because it presupposes that the suspect would be found guilty and such negates the constitutional presumption of innocence. Also, it must be said that a judge who finds that a man he is about to acquit has already spent more time in prison than the sentence allowed by law is likely to pronounce such a man guilty in order to cover up for the blunder in unreasonably denying him bail so he could give him credit for time unjustly spent in custody. One illustration comes very handy here. In the case of Jimoh and others, the 3 accused men were denied bail by a Lagos State High Court judge. They were accordingly remanded in Kirikiri prison, while the judge promised to complete trial in 6 months. Five years after, the trial had not ended. The case had been transferred twice to different judges. Within the time, one of the 3 accused men died in prison. And at the end of it all, EFCC was not yet ready to prosecute as they still did not have the evidence they ought to have had before they filed charges. Instead, EFCC officials pressured Jimoh to plead guilty. He was so tired of the whole ordeal he agreed to plead guilty to the offences charged. Realizing that the offences charged carry punishments far less than the time Jimoh had already spent in prison, EFCC officials decided to amend the charges in other to add new offences that would carry longer so sentence. Jimoh pleaded guilty to all, and was so desperate for any change of scene that he was ready to plead guilty to murder. In the end the third judge sentenced him to 3 years in prison and granted him credit for time served. By the way the offences centered around a fraud of two thousand dollars. Meanwhile, 7 years after, Jomoh’s surviving co-accused who refused to plead guilty remains in prison without bail awaiting trial. Jimoh’s case is typical of the blunder and anomaly that occurs when a judge believes that a promise of speedy trial is a remedy for unjust denial of bail.
Finally on this, the problems we have just addressed in the area of bail in Nigeria are directly connected to the problems we saw in the earlier stages of the process such as the stage of arrest and charging of the accused. Usually, when a person is wrongly arrested and wrongly charged, it becomes clear that such a person would likely be acquitted after trial. An abusive law enforcement agency and prosecutor would see the pre-trial detention due to a denial of bail as the only opportunity to incarcerate and punish the suspect. Because bail hearings do not address the factual basis of innocence or guilt, the oppressive and corrupt criminal justice system routinely imprisons innocent people who would otherwise never be convicted after trial. The mere fact that a person was arrested by a corrupt officer leads unfortunately to months in jail regardless of the absolute lack of basis for such arrest.
The above account reflects a crisis in the Nigerian Criminal Justice system. At present, there are no immediate solutions in sight. The only option available for the accused is to commence fundamental right enforcement immediately there is an arrest. At least, that will force the government to take you to court and for the long bail process to commence sooner. Also, everybody acquitted should sue for malicious prosecution against the prosecutor and the complainant. Also consideration must be given to the possibility of filing a complaint against judges that repeatedly and blatantly abuse their discretion in wanton and reckless manner. At the rule and policy-making levels, the courts should make new rules of procedure to ensure that bail applications and hearings do not last longer than two weeks and a judge must give judgment on bail within 24 hours after the hearing. Also, there should be no basis for a judge to not hear oral bail application. Also such rule must require that a judge receive a report if after 30 days a person admitted to bail fails to meet terms of bail. Such a report should be a basis for the court to hold a hearing within 7 days on whether to vary the terms of bail. Similarly, the legislatures should make laws to the same effect. At the professional organization level, the Bar Association must step up to the plate and fight this crisis.