There are at least 110 sets of amendments that have been proposed to be carried out on various provisions of the Administration of Criminal Justice Act (ACJA), a law that brought a lot of innovations into criminal justice system and proceedings since it came into force in 2015.
A major provision of the law being operated at the federal courts and already domesticated in at least 31 states of the federation, is the abolition of stay of proceedings in criminal trials.
Judges, lawyers, a federal lawmaker, and civil society groups, met in Abuja on Monday, to review proposed amendments to address the gaps in the law.
The meeting was organised by the Centre for Socio-Legal Studies (CSLS), which collated the proposed amendments suggested by lawmakers, the Federal Ministry of Justice, the police, and many other law enforcement agencies.
The CSLS, a law reform advocacy organisation, led the campaigns that birthed the enactment of ACJA in 2015.
Lagos State which took the lead in adopting then proposed law ahead of the federal government in 2007, had amended its own version of it in 2011.
Governor Babajide Sanwo-Olu on September 30, 2021, assented to a new amended version of the law.
“Having practised the ACJA for about six years now, I know there should be some review which is the essence of this meeting,” Olukayode Adeniyi, a judge of the High Court of the Federal Capital Territory (FCT), Abuja, said in his remarks at the event.
He said there was the need for the review of the law “so that we move with the contemporary circumstances”.
Also speaking, the chairperson, Judiciary Committee of the House of Representatives, Onofiok Luke, said there was the need to amend the law to place Nigeria on the same page with other societies.
“I am sure, this will be done”.
President of CSLS, Yemi Akinseye-George, a Senior Advocate of Nigeria and professor of law, said amendment proposals will be updated with the outcome of the brainstorming.
Issues under key amendment proposals
Recording of confessional statement
This amendment is proposed to be done on section 15(4) and (5) of the ACJA to make an electronic recording of confessions by suspects mandatory.
The extant provision says “the making and taking of” a suspect’s confessional statement “shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio-visual means.”
But the proponent of the amendment seeks the removal of “may” from the provision to make it mandatory for the writing of confessional statements to be done both manually and electronically on a retrievable video compact disc or such other audio-visual means.”
During deliberations on this provision, however, two judges of the FCT High Court, Mr Adeniyi, and Idris Kutigi argued against the amendment.
Mr Adeniyi argued that the amendment making it mandatory for confessional statements to be recorded electronically might bring constraints to the police in a situation where the availability of the available infrastructure could not be guaranteed.
He added that the proposed amendment would not necessarily achieve its intended goal of ensuring that confessional statements are not obtained through torture.
Mr Adeniyi said torture could be psychological which would not be captured in the electronic recording.
Investigation before arrest
Another amendment being sought is for the tinkering with section 3 of the ACJA, to ensure that investigation precedes arrest in line with international best practice.
The proposed subsections (2) and (3) are to ensure collaboration between investigators and law officers for effective prosecution of criminal cases.
Prosecuting and defence lawyers at the event including Chioma Onuegbu, of the Federal Ministry of Justice, applauded the proposal.
But Mr Adeniyi argued that it is not a subject that should be legislated on.
“It should be taken for granted,” he said.
He said pushing for such an amendment would amount to unnecessary meddling in the internal operations of the law enforcement agencies.
Bearing in mind that certain circumstances might warrant arresting a suspect before investigations are done, Mr Adeniyi said some lawyers might take undue advantage of the amended provision to file a fundamental rights enforcement suit to challenge such arrests even when they are justifiably done.
A Senior Advocate of Nigeria, Akinlolu Kehinde, also toed Mr Adeniyi’s line of argument, adding that a mandatory provision in ACJA that investigation must always precede arrest may offend constitutional provision that empowers a law enforcement agency to arrest a person on the basis of just a reasonable suspicion.
According to them, the provision of ACJA is better allowed to remain as it is while the campaigns for law enforcement agencies to always ensure they act in line with international best practices is sustained.
Should magistrates be allowed to issue remand orders in cases they have no jurisdiction to adjudicate on?
Participants also deliberated on a proposed amendment of section 293 to take away the power of a magistrate to issue an order for the remand of a suspect arrested for a crime the magistrate does not have jurisdiction to adjudicate.
Speaking on the proposal, CSLS president, Mr Akinseye-George, said Lagos State had removed the provision from their newly amended Administration of Criminal Justice Law.
FCT High Court judge, Mr Kutigi, backed the amendment proposal, saying only the court with competent jurisdiction should have the power to issue an order for the remand of the suspect.
But EFCC representatives at the event kicked against it, noting that it inhibited the agency’s operations when it was first introduced as a policy by a former Chief Judge of the FCT High Court, Ishaq Bello, some years ago.
During the time recalled by the prosecutors, law enforcement agencies were asked to approach only the High Court judges to obtain remand orders for suspects accused of capital offences, and other offences beyond the jurisdiction of the magistrate’s courts.
But the EFCC lawyers said they had to contend with a number of issues including the inability of High Court judges to attend to urgent applications for remand orders.
In some cases, they said, the applications were not assigned to judges early enough, sometimes for 30 days, by the time which its essence would have been lost.
Mr Kutigi, however, insisted that only the High Court judges should have the power to issue such remand orders, advising that such applications should be filed in less busy divisions of the court.
But for Mr Adeniyi, the magistrate should be allowed to continue to issue remand orders.
The meeting also deliberated on sections 253 and 254 of ACJA to make it mandatory for the office of the attorney-general to provide the court with the funds for witness expenses.
Judges and lawyers lamented, during the review, the frustration of prosecutors who had to pay from their pockets the expenses of bringing prosecution witnesses to court.
On other occasions, prosecution witnesses are not able to come to court because of a lack of funds, leading to many criminal cases being lost by the government.
Mr Akinseye-George said the federal ministry of justice should demand a vote for witnesses expenses in its budget. Such funds should then be made available to the courts which will then disburse to the witnesses attending a trial.
Abolition of trial-within-trial
Prosecutors advocated the abolition of trial-within-trial because of the delay it causes in criminal proceedings.
A trial-within-trial arises when a defence lawyer objects to the admissibility of a confessional extra-judicial statement of the defendant on the grounds that it was illegally obtained either through torture, threats or other illegitimate methods.
The judge orders a trial-within-trial to put the defendant’s claim of the involuntariness of his or her statement to test.
Sometimes, trial-within-trial takes years, with the main trial itself unable to progress for that period, Ms Onuegbu said.
Mr Adeniyi admitted that defence lawyers had abused the process of trial-within-trial but argued that there was no alternative to it for now.
Headvised judges to examine if the statement was truly confessional before ordering a trial-within-trial.
Mr Kutigi, too, shared Mr Adeniyi’s views.
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