Justice Criminal Act of 2015: The Answer to the flaws of the Criminal law

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The Problem Statement

Prior to the enactment of the Administration of the Criminal Justice Act (ACJA), there were three principal legislation governing judicial affairs in Nigeria, they include the Criminal Procedure Act (CPA), the Criminal Procedure Code (CPC), and the Administration of Criminal Justice Law (ACJL). The CPA and CPC originated from the British Colonial Administration and was never reviewed since their enactment pre-independence. The ACJL on the other hand was enacted in 2011 to cover some lapses identified in the CPA and CPC; however, all three legislations were ridden with concerns that needed urgent reforms via the establishment of a new Act.

Some of these concerns bothered on prolonged trials as lawyers were taking advantage of the weaknesses in these laws. Other concerns had to do with a lack of recognition of the fundamental rights of accused persons or suspects as they were often maltreated and tortured when arrested by detaining authorities as well as the unlawful arrest of relatives or friends of a suspect in a bid to force a suspect to come out of hiding. Arrests were also made by security agents without obtaining a warrant of arrest and without informing the relatives of the arrested suspect nor giving him/her the opportunity to appoint a lawyer in his/her defense. The continuous detention of a suspect without arraignment or bail and the restriction of women as sureties to bail out suspects were also issues of concern in Nigeria’s criminal justice system. This led to the creation of the ACJA with a view to addressing the aforementioned concerns.

The Policy Solution

The Administration of the Criminal Justice Act (ACJA) was enacted in 2015 to improve the criminal justice practices in Nigeria by promoting efficient management of the criminal justice institutions, speedy dispensation of justice, and protection of the right and interests of the suspect, the defendant, and the victim. The ACJA appears to be a fusion of the CPA, the CPC, and the ACJL, implying that it is an aggregation of current reforms of all existing Criminal Acts in Nigeria.

The ACJA describes arrested persons standing trial for criminal offenses as “defendants” and not “accused persons” (as observed in previous Acts), indicating a need to uphold the rights of suspects. The Act mandates that the search of arrested persons or suspects must be done decently and with reasonable force, and must be carried out by a person of the same sex unless the urgency of the situation or the interest of due administration of justice makes it impracticable to do so. The ACJA prevents the search of a suspect’s premises without a warrant of arrest. The warrant can be issued by a Court or a Justice of the Peace and can be executed at any time. The search is to be done in the presence of a respectable inhabitant living within the vicinity. However, the Act allows for an arrest without a warrant only on grounds that a private person witnesses the offence committed and then alerts the police for an arrest. The ACJA also mandates that an arrested suspect must be taken to a police station immediately after arrest and should be given the necessary support to obtain bail or sort out his defense or release. Any suspect arrested without a warrant must be released on bail within 24 hours of arrest if the suspect cannot be brought before a competent court within the given period.

ACJA made provisions for any suspect to remain silent or avoid answering any question or writing any statement until a lawyer is appointed in his/her defense. If a suspect cannot speak the English Language, an interpreter must be present before a statement is officially taken and translated. All statements must be taken under a camera. A detaining authority is mandated to inform the relatives or next of kin of an arrested suspect and should be done at no cost to the suspect. It also prohibits the arrest of relations or friends in lieu of a suspect who cannot be found. Arrested suspects are also protected from maltreatment or torture by the detaining authority to uphold their fundamental human rights. Interestingly, the Act exempted suspects of mere civil offences such as a breach of contract, from being arrested to prevent a situation where a complainant uses the police to recover debt from a defaulter.

The Chief Magistrate or any other Magistrate authorized by the Chief Judge is empowered by this Act to visit detention centers and prisons to inspect arrest records with a view to reducing cases of illegal or prolonged detentions.  The Magistrate also has powers to summon a person over a complaint of an offence committed and these Summons can be served to anyone at any time including public holidays. A suspect can be remanded for 14 days (at the first instance) by a Magistrate Court for offences not under the Magistrate’s jurisdiction. At the end of the 14 days, another 14 days may be given at the discretion of the Court if further investigations are required, and another 14 days if the case is yet to be heard, and yet another 14 days (making a total of 56 days) after which the suspect must be granted bail. For capital offences e.g. Felony, the ACJA authorizes a Judge of the High Court to grant bail only on exceptional circumstances such as ill-health (proven by a medical expert), extraordinary delay in the prosecution proceedings exceeding one year, and any other circumstance that the Judge considers as exceptional.

Upon arraignment, the Act stipulates that the trial of a defendant shall proceed from day-to-day until a final judgment is given. This prevents the unnecessary prolongation of trials by lawyers with ulterior motives. However, where a day-to-day trial is impracticable after arraignment, only 5 adjournments are allowed from arraignment to judgment. In addition, the Act made provisions for the trial of a corporation represented by a representative from the organization who can appear in Court on the company’s behalf. In the Act, corporations are seen as legal entities that can sue and be sued. The ACJA states that where a pregnant woman is found guilty of a capital offence, the sentence of death shall be passed on her (as with guilty male offenders) but its execution shall be suspended until she delivers her baby and weans it. In the case of a minor (under 18 years old) found guilty of a capital offence, he/she shall not get the death sentence but shall be sentenced to life imprisonment or to such other terms deemed fit by the Court. The Act made provisions for compensations to be awarded to any person injured by an offence (to be paid by the defendant), e.g. medical expenses incurred by victims. In addition, properties recovered from the defendant during investigation and trial can be returned to their rightful owners or compensated accordingly.

The ACJA grants all persons including women the right to serve as sureties to suspects applying to be released on bail. The parole system which allows a criminal to be released from jail (but under police surveillance for a length of time) for proven good behaviour, was also introduced for the first time in legislation. It is also the first legislation in Nigeria’s criminal justice system to empower a body (The Administrative of Criminal Justice Monitoring Committee comprising nine members with the Chief Judge of the FCT as the Chairman) charged with the responsibility of ensuring the effective implementation of the Act.

 

 

NIGAC Constructive Position/Take

The ACJA (2015) is a great improvement compared to previous legislation (CPA, CPC, and ACJL) further protecting the fundamental human rights of arrested persons, suspects, defendants, and victims, as well as speeding up trials in Nigeria’s judicial system. However, the Act only applies to Federal judicial institutions such as the Federal Courts, Magistrates’ Courts, and the FCT Area Court. This implies that for the Act to be bidding on State High Courts or State Magistrate’s Courts, the State House of Assemblies of the 36 states in Nigeria needs to adopt it.  So far, the State House of Assemblies of only 10 states in Nigeria (Kaduna, Ondo, Ekiti, Lagos, Oyo, Rivers, Anambra, Enugu, Cross-River, Akwa Ibom) has adopted the Act, indicating that other states are still guided by previous legislation which is now outdated. There is a need for the Administrative of Criminal Justice Monitoring Committee to lobby State Legislators to adopt the Act to ensure a uniform legal guide is followed nationwide.

The Act upholds the death penalty for capital offences even when committed by pregnant women, without considering the fact that a child will need the nurturing of its mother. While Developed nations are generally expunging the death penalty from their criminal justice systems as a way to institute “restorative judgment” (i.e. encouraging a second chance via rehabilitation and reintegration), Nigeria appears to be retrogressing in this regard as the death penalty is a “retributive judgment” (punishment-driven with no second chances). Also, the life imprisonment judgment meant for minors is considered too harsh and can be replaced with community service and rehabilitation plans.

Lastly, the 56 days maximum allowance (to be awarded in four consecutive sets of 14 days per time) to remand a suspect yet to be arraigned appears to be too long a time to detain suspects without trial. A maximum of 28 days (to be awarded in two consecutive sets of 14 days per time) is recommended, after which bail must be granted if the trial is yet to commence.

 

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