Prof. Nnamdi Obiaraeri
In Nigeria, human rights violations and abuses continue to be on the increase because of many factors. Two readily identified core reasons for this anomalous situation are that because of poverty, ignorance and illiteracy, citizens are either not aware of their rights or are unable to enforce their rights. The few that are aware of their rights lack the financial wherewithal to approach the Courts to either initiate proceedings against violations or to prosecute the cases to their logical conclusions (filing fees are prohibitive, court proceedings are technical and unduly delayed, and lawyer’s professional charges are not cheap). On the flip side, law enforcement agencies remain adamant and flagrantly refuse to respect constitutionally guaranteed fundamental freedoms and inalienable rights of the citizens because of lack of consequences. Most human rights violators are not adequately punished for bad behaviour. It is also the case that most law enforcement agents trample on citizen’s rights because they are ignorant of legal procedures regulating the conduct of their duties especially in criminal investigations.
Public enlightenment is a veritable tool for combating human rights violations and gross abuses. This intervention serves to educate the public about the irreducible minimum legal procedure for obtaining confessional statement from a defendant by law enforcement agencies. Additionally, it reminds law enforcement agencies about the disastrous consequences that will attach to their failure, refusal or neglect to obey the laid down mandatory legal procedure for obtaining extra-judicial confessional statement arising from the recent decisions of the Supreme Court. The analysis will be kept simple and shorn of much legalese in order to ease understanding.
Under the Nigerian legal system, it is recognised that a person accused of a crime or facing criminal trial (called defendant) can admit his or her guilt. A confession is a statement made by an accused person admitting that he is guilty of a crime. It is the best evidence in a criminal trial because the person who committed the offence has admitted it. Legally, section 28 of the Evidence Act, 2011 as amended defines a confession as an admission made at any time by a person charged with the commission of a crime stating or suggesting the inference that he committed the crime. It is trite law that a defendant can be convicted on his or her confession without the necessity for adducing further evidence provided that the confession is voluntary and not vitiated by “oppression of the person making it” as provided in section 29 of the Evidence Act, 2011 as amended. Thus, an involuntary confession is irrelevant and inadmissible. Apart from the fact that the voluntariness or involuntariness of confession is governed strictly by the provisions of sections 28 and 29 of the Evidence Act, 2011 as amended, the Administration of Criminal Justice Act, 2015 which applies to Federal Courts made novel interventions with respect to obtaining confessional statements in section 15(4) wherein it provides that
Where a suspect who is arrested with or without a warrant volunteers 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.
In addition, section 17 of the same Administration of Criminal Justice Act, 2015 provides that
(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.
These mandatory requirements for obtaining confessional statement have subsequently been replicated in the Administration of Criminal Justice Laws of different States of Nigeria. For instance, the Imo State Administration of Criminal Justice Law, 2020 as amended has also laid down iron clad procedure for obtaining confessional statement. Under section 18(2), (3) and (4) of the Imo State Administration of Criminal Justice Law, 2020 as amended it is provided that
(2) Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police shall ensure that the making and taking of such statement is recorded on video or other retrievable electronic device, and the said recording and copies thereof may be produced at the trial; provided that in the absence of video facility, the said statement shall be made in writing in the presence of a private legal practitioner or any other person of his choice.
(3) The Legal Practitioner or any other person referred to in subsection (2) shall also endorse with his full particulars an indication of having witnessed the recording thereof.
(4) The statement or its endorsement as in subsection (2) shall be made in the presence of the officer in charge of the Human Rights Desk, where available or a superior police office in the absence of a Human Rights Desk Officer.
Notwithstanding the above compulsory provisions, law enforcement agencies (be they Police, Army, Navy, Air Force, Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Security and Civil Defence Corps, National Drug Law Enforcement Agency and the like) have obeyed these laws more in breach than observance. As I stated at the recent IMPLEMENTATION ASSESSMENT AND CAPACITY-BUILDING WORKSHOP ON THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF IMO STATE ORGANISED BY THE NIGERIAN BAR ASSOCIATION (NBA) IN PARTNERSHIP WITH MacArthur FOUNDATION AT ROCKVIEW HOTEL OWERRI, IMO STATE, NIGERIA on the 8th day of August 2024, “The harm, mischief or injury the provision in section 18(2), (3) and (4) of the ISACJL, 2020 seek to cure or bring to an end is the awful practice of extraction of a confession by torture, inducement, promise, force or such other unlawful means by law enforcement agents. Besides, the provisions target the elimination of the cumbersome procedure of trial-within-trial when the defendant denies the voluntaries of the confession. So what is the difficulty in the implementation of these safeguards?”
It is heartwarming to update that two latest judgments of the Supreme Court delivered on 1st March 2024 in FRN V NNAJIOFOR (2024) LPELR-62599(SC and FRN V AKAEZE 2024) LPELR-62190(SC) have held unambiguously that the compliance with provisions of sections 15(4) and 17(2) of Administration of Criminal Justice Act, 2015 (analogous to the provisions of section 18(2), (3) and (4) of the Imo State Administration of Criminal Justice Law, 2020 as amended and section 9(3) of the Administration of Criminal Justice Law of Lagos State, 2011 for instance) is mandatory and obligatory as they strictly provided for electronic recording of the statement of the defendant before his lawyer or other authorised person. Failure to perform the act in accordance with the dictates of those provisions of the law would be deemed to be a flagrant non-compliance with the law. In such a situation the Court would be entitled to invoke its interpretative jurisdiction to hold that the non-compliance with the law is against the recalcitrant party (law enforcement agency). Where the arresting or investigating authority failed to obey the strict letters of sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015, the Court was obliged to reject the confessional statements as having been involuntarily made.
There is no doubt that members of the public should be aware of these latest judicial developments as they will help to make law enforcement agents to act more professionally as well as curb the condemnable practice of obtaining confessional statement via oppression of the maker, torture, brutality, cruel, inhuman or degrading treatment by law enforcement agencies. Members of the public are therefore invited to know that following the recent decisions of the Supreme Court-
(a) Failure, refusal or neglect of the Police or other law enforcement agencies to obey the mandatory provisions of the Administration of Criminal Justice Act and Administration of Criminal Justice Law of States on video recording of confessional statement before a lawyer of the defendant or before any other authorised person renders such confessional statement inadmissible. The Courts will reject such confession as involuntary.
(b) The provisions in the Administration of Criminal Justice Act and Administration of Criminal Justice Law of States are mandatory procedural laws against infractions on the constitutional rights of a defendant as enshrined in section 35(2) of the CFRN, 1999 as amended which provide that “Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.. Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless.
(c) In FRN V AKAEZE, the Supreme Court, per Ogunwumiju, JSC, instructively stated among other things that sections 17(2) and 15(4) of the Administration of Criminal Justice Act, 2015 have been put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence to prove voluntariness or a legal practitioner or any person as specified under section 17(2) of the Administration of Criminal Justice Act must be present. The essence of the video/audio-visual evidence is to enable the trial Court to be able to decipher from the demeanor of the defendant and all other surrounding circumstances in the video if he or she voluntarily made the confessional statement. Furthermore, in FRN v NNAJIOFOR, the Supreme Court, per Okoro, JSC, spotlighted that the essence of the provisions of the Administration of Criminal Justice Act stipulating video recording/writing in the presence of legal practitioner in the making/taking of confessional statement is to give credibility to the course of criminal investigation, so as to obviate recurrent objections as per voluntaries of confessional statements by accused person.
(d) By law, the Police and other law enforcement agencies are responsible for promoting and protecting the fundamental rights of persons in custody as guaranteed by the Constitution. The days of their failure to meet with minimum standards of investigation or interrogation are over as the Courts will have nothing to do with extra judicial statements obtained contrary to the irreducible minimum procedure stipulated by law for obtaining confessional statement.
According to Nathaniel Branden, “The first step towards change is awareness. The second step is acceptance.” Knowledge hoarded is a secret. Knowledge shared is power.
A new normal is possible!
