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Prosecutors Assigning Lawyers For Defence In Criminal Cases: Call For Opinions

By Hameed Ajibola Jimoh Esq.



I have observed just of recent, the trend in criminal prosecution where prosecutors prosecuting suspects assign lawyers to represent those suspects in court as defence counsel on the ground that the suspects do not have lawyers. I personally find this kind of arrangement in the administration of criminal justice system as a wrong arrangement. More so, I find it very difficult to resolve as to the kind of justice that can be envisaged in this kind of situation for the suspect. And I have my reasons for my submissions. Also, I deem it fit to seek further opinions, by this paper, from the readers on the propriety of this kind of situation whether it is proper for prosecutors to assign lawyers to suspects for defence in criminal proceedings?

First and foremost, I do not think it is proper for a prosecutor or a prosecuting agency to be the one to assign lawyers to suspects for defence in criminal proceedings. Also, it is wrong for lawyers to seek pro bono (done free of legal fees) cases in the hands of prosecuting agencies rather and most properly, such lawyers can apply or fill forms with the Legal Aid Council of Nigeria or to make application to render pro bono criminal suits to the Controller of Prisons of the Nigeria Prison Services, which I think the prison service is better because the Legal Aid Council by its establishment Act, does not render pro bono matters in all criminal cases but selected criminal cases.

See Section 8 (2) of the Legal Aid Act, 2011, which provides thus ‘(2) The Council, shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of assisting indigent persons involved in criminal investigation or proceedings specified in the Second Schedule to this Act, access to such advice, assistance and representation as the interest of justice requires.’ [Also see: the Second Schedule to the Act referred to.]

And in this way, the lawyer will be an independent counsel to the suspect and will then be free to protect the interest of the suspect rather than the interests of the prosecutors. More so, there is a long standing adage that ‘he who pays the piper dictates the tune’.

By inference means that it is the prosecutor who assigns the suspect to the lawyer that controls the way the lawyer shall defend the case of the suspect. How reasonable would it be that the prosecutor who is prosecuting a suspect is still the one offering lawyers to him for his defence?

Then it means the suspect has got no counsel and at that instance, such suspect would not be able to make his choice of lawyer except the one who is smart that would know that it is dangerous and unfair for his trial to allow the prosecutor who is prosecuting him to assign lawyers to him or to his family members for his representation.

Furthermore, considering the provisions of section 6(2) of the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA-, which provides thus ‘(2)The police officer or the person making the arrest or the police officer in charge of a police station shall inform the suspect of his rights to:

(a) remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice;

(b) consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest; and,

(c) free legal representation by the Legal Aid Council of Nigeria where applicable: Provided the authority having custody of the suspect shall have the responsibility of notifying the next of kin or relative of the suspect of the arrest at no cost to the suspect.

Therefore, I humbly submit that what the law requires the prosecuting agency to do in a situation where
it arrests a suspect is to ‘inform’ the suspect of his right to lawyer of his choice or free legal representation by the Legal Aid Council of Nigeria where applicable.

I submit that the word ‘as applicable’ in section 6(2) (c) of the ACJA means where such offence is covered by the Legal Aid Act as I have earlier submitted above i.e. in relation to section 8(2) of the Legal Aid Act.

Also, I am clothed in my legal argument and submissions by the provisions of section 17(1) and (2) of the ACJA which provides thus:

(1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.

(2) Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice.

Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner. (Underlined words are mine for emphasis).

So, I am of the firm views that a situation where the prosecutor provides lawyers to the suspect to stand for the suspect as defence counsel is without any legal basis and I do not think that the establishment law of each of the law enforcement agencies and the prosecutors has conferred them with such function or power.

Even if one is to say that the ACJA applies to federal offences or offences under the FCT-Abuja’s laws, each other States of the Federation has almost similar provisions as that of the ACJA.

I also think that perhaps the authority of some of these law enforcement agencies or the prosecuting agencies are not aware of this kind of illegal and unlawful functions being performed by their officers. So, it is my belief that they would get to know by this paper.

I am aware that some of these law enforcement agencies or prosecuting agencies who assign lawyers to suspects would have done one wrong or the other or violated the fundamental rights of the suspect so, in a bid to cover up the wrongs, they assign lawyers who would always approve any act that they do as right without any complaint.

In fact, the kind of discussions and relationship that exist or displayed by the private lawyers and the prosecutors would definitely affirm the facts that such suspect is in serious trouble that requires immediate rescue.

Therefore, I humbly submit that it is unlawful and illegal and in fact, ultra vires of the powers of such law enforcement agencies or prosecuting agencies to offer or assign lawyers to suspects to defend them, in the interest of justice.

Rather, they should refer such suspect to the Legal Aid Council of Nigeria or for him to seek his own lawyer of his choice and that is the position of the law and that way justice can be manifest to have been done in the case of the suspect, else, the prosecutor could be seen to have violated the natural justice principle of ‘nemo judex in causa sua’- not to be judges in their own case.

I therefore advise lawyers to discourage this kind of legal practice for them to always hang around or hang their pro bono legal services on the neck of prosecutors as such act destroys the interest of administration of criminal justice. Also, the appropriate authority and the Administration of Criminal Justice Monitoring Committee under the ACJA are also called upon to put this practice to an end.

Finally, the above are my views. I call on other views as a debate as to whether it is proper for a prosecutor who is prosecuting a suspect or defendant to be the one to assign lawyers to a suspect whom he is prosecuting in a criminal proceeding? I await numerous reactions from the readers!

E-mail: hameed_ajibola@yahoo.com

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