Criminal Justice in Nigeria: A Case for Further Recalibration

Being a Paper presented by the Honourable the Attorney General of Ogun State, Oluwasina Ogungbade, SAN at the 24th Annual Bar Lecture of the Nigerian Bar Association (Ijebu-ode Branch)

14 July 2022

[Protocols] 

I am very pleased to have been invited to give this year’s edition of the Nigerian  Bar Association Ijebu-Ode Branch Lecture Series. Today, I join a long list of very accomplished practitioners who have been privileged to deliver lectures  to this storied and gifted Branch of the Bar. Practitioners like Aare Afe Babalola CON, OFR, SAN, like the current chair of the Body of Benchers Chief Wole Olanipekun SAN, Chief Bandele Aiku SAN, Mrs Funke Adekoya SAN, Bambo Adesanya SAN, and Hon Justice G.A. Oguntade JSC have delivered lectures to  this Branch. This set of previous lecturers is both a high bar to meet and a sign  of the depth that this Branch seeks in these lectures.  

Like these titans of the Profession before me, I was given the opportunity to  speak on any issue or topic of my choice. At first this appeared to me to be a  task that would be easy to accomplish as after all, the practice of law is so  developed in Nigeria that virtually any sphere of the law would throw up talking  points deserving of attracting the attention of any audience as distinguished and learned as that which I now stand before. It however soon dawned on me  that with such a vast array of points to choose from came a duty, nay  responsibility, to utilise the opportunity afforded by this occasion to speak on  an issue which should hold the greatest concern to society.  

Therefore, after coming to this realisation, it took little internal persuasion  before I settled on the choice of the criminal justice system of our society. This  decision was particularly helped by the facts of two cases which I will briefly  detail now and relate to the topic as I progress. 

The first relates to a woman who served as the head of a Federal educational  institution in Nigeria. She was responsible for the daily operation of the  institution, including the preparation of its annual budget. In an approaching  budget year, casual workers were to be converted to fulltime employees and had been screened and interviewed by the Supervising Ministry for the  conversion. To cater to this conversion, Management of the Institution included  the casual workers in the approaching budget as fulltime employees. This was to ensure that when the conversions were approved during the year, there  would be budgetary votes to back their pay as fulltime employees. 

The budget was approved as presented. However, the conversions despite  concerted efforts of this person and her management team and despite several  assurances given to them, were never approved by the supervising Ministry  during the year, so the workers were paid what was due to them as casual  workers. This left the difference between what should have been paid to them  as full-time workers and what was eventually paid to them as casual workers, unutilised. This woman realised that the unutilised fund could be used to pay  a backlog of about two years salaries owed to workers in the institution, especially because the funds released were released for salaries anyway. For  that reason, she paid the backlog of unpaid salaries with the funds released.  

The Independent Corrupt Practices and Other Related Offences Commission  (ICPC) disapproved of the expenditure. ICPC charged the woman for making a  false statement or representation under Section 17(i)(c) of the Corrupt  Practices and Other Related Offences Act 2000. At trial, ICPC conceded that  the budgetary vote was for payment of emoluments and the purpose for which  they were applied was the payment of emoluments. ICPC confirmed that it  traced the funds disbursed into the accounts of lawful employees of the  institution and that no fund was traced back to the woman. To cap it all, section 17 requires that a person charged with an offence under that Section must do  so corruptly, but ICPC was unable to show a corrupt intent. 

The second case is that of a man who was convicted for armed robbery and  sentenced to death. However, the evidence led at trial showed that although  this man was arrested unhurt in public, by the time he was making his  statement in the Police Station, he was practically naked and bleeding from a  bullet wound in the leg. His lawyer felt convinced that the man was simply an innocent man compelled to confess to a crime under fear of death and under pain of a gunshot wound.  

With this belief and considering other flaws in the charge, this lawyer agreed  to represent the man in an appeal to the Court of Appeal.  

I will reveal the fate of these two persons as I progress.  

CRIMINAL JUSTICE

Criminal Justice is the system by which a society identifies, apprehends,  judges, and punishes crimes and criminals.1 Critical stakeholders in the criminal justice system are investigators, prosecutors, criminal defence  attorney, judges, and the correctional services. 2 Criminal justice is founded on  criminal law, which is divided into two parts – substantive and procedural law. Substantive criminal law consists of the principles and statutes that criminalise human conduct, impose punishments and vest jurisdiction to try offences. Procedural criminal law consists of the principles and statutes that govern the  manner of enforcing substantive criminal law (i.e., how a suspected perpetrator  is arrested, prosecuted, sentenced, and incarcerated). 

Substantive criminal law can be found in the provisions of federal and state  statutes on crime. Examples are the Criminal Laws of the different States of  the Federation, the Economic and Financial Crimes Commission  (Establishment) Act 2004, the Corrupt Practices Other Related Offences Act  2000, the Advance Fee Fraud and other Fraud Related Offences Act 2006, and  others like it. Substantive criminal law can also be found in prohibitive  provisions of non-criminal statutes such as the Trade Disputes Act,3 Trade  Unions Act,4 the Banks and Other Financial Institutions Act 2020,5 etc. Further,  substantive criminal law can also be found in the Constitution of the Federal  Republic of Nigeria. 

Procedural criminal law can also be found in federal and state statutes. The  Constitution contains provisions relevant to procedural criminal law,6 as does  the Evidence Act 2011. In the Federal Capital Territory (FCT) and federal  courts, the Administration of Criminal Justice Act 2015 (ACJA) applies.  Different states have “domesticated” the ACJA as the Administration of  Criminal Justice Law (ACJL) of their respective States, with variations as they  suit the States. One author reports that as of November 2021, twenty-nine (29)  States had passed the ACJL with twenty-five (25) receiving Governor’s  consent.7 

The Rule of Law and Empowerment Initiative maintains an online tracker which  reports that the ACJL has been assented to in thirty (30) States of Nigeria, with  Imo State being the latest on the list, having enacted the law on 11 March  2020.8 I should add that Lagos State led the rest of the country as it had enacted an ACJL since 2007 which has been amended twice in 2011 and 2021. Anambra also passed the ACJL in 2010 while Ekiti did so in 2014 – all before the ACJA was passed at the Federal level. 

Nigeria’s journey to the ACJA was not direct or quick. Before the ACJA, Nigeria  ran two regimes of procedural criminal law. The Criminal Procedure Code (CPC)  applied in the North, while the Criminal Procedure Act (CPA) applied to the  South. The dichotomy was not an issue – the ages of the Statutes were. The  CPC was passed in 1960, the same year Nigeria gained independence.9 But it  was the newer statute. The CPA was first enacted as the Criminal Procedure  Ordinance of 1946 and then after independence re-enacted as the CPA in 1963. 

And from 1946 and 1960 till at least 2015, the CPA and CPC remained  unchanged across Nigeria, except in Lagos. The statutes saw the invention of  the supercomputer, the internet, email, digital cameras, cell phones and smart  phones and several other inventions. But the statutes never changed. Clearly,  at some point, the statutes became unfit for purpose, whether wholly or in  part. And the kicker is this – at least six States of the Federation still operate  one of those Statutes. 

Of course, the age of a statute is not itself an automatic problem. In the United  States, the Commodities and Futures Trade Commission (CFTC) is authorised  to regulate the trading of cryptocurrency and digital assets because of the  definition of “commodity” in the Commodity Exchange Act of 1936.10 Although  enacted more than fifty (50) years before cryptocurrency and digital assets  were invented, the statute was appropriately and broadly worded enough to  bring even yet-to-be-invented properties into the statute’s contemplation.  However, this type of outcome is a rarity. What is likelier and commoner is that  unless a law changes, society will outrun its provisions, especially if the jurisdiction that passes the law, operates a rule-based system, rather than a  principle-based system.  

As an example, the National Drug Law Enforcement Agency Act (NDLEA Act)11 prohibits and controls the use of certain substances that we colloquially refer  to as hard drugs. The body and schedules to the Act expressly names certain  substances such as heroin, cocaine, LSD, cannabis, ephedrine, ethyl ether, etc.  That statute was enacted by decree in 1989 and has not been amended since.  As such, over the past thirty-two years, several psychoactive and psychotropic  substances have been invented, created, or altered that are not captured by  the statute. Some are even derivatives of the prohibited substances in the NDLEA Act but there is a strong dispute amongst prosecutors and defence  lawyers as to whether derivatives not named in the statute can be prohibited by the statute. 

This issue explains the urgent need for our laws to always be up to date. To  recalibrate often, considering that offenders are becoming more sophisticated,  harder to detect, and more defiant. Previously, society could count on its  informal means of behaviour control to dissuade criminals and correct them.  However, as moral standards in society decline leading to the celebration of  crime and criminals, it is no longer enough to wait for criminals to gain a  conscience. Our laws must change rapidly to catch up with the changing  society. The enactment of the ACJA and ACJLs are therefore the most  significant leap forward in Nigeria’s criminal law. They are monumental pieces  of recalibration. 

That said, there is still the need to further recalibrate. This lecture sets out my  thoughts on some areas needing further development. 

AREA ONE – POLITICAL AND CONSTITUTIONAL REALITIES 

Nigerian criminal justice is a component of the Nigerian State. As such, it  cannot exist outside the Nigerian reality or Nigerian context. As such, some  drawbacks and limitations are not only expected, they are the precise creation  of the Nigerian situation. Section 214 of the Constitution provides that other  than the Nigerian Police, “no other Police Force shall be established for the  Federation or any part thereof”. We also know the handicaps that the Nigerian  judiciary has in terms of autonomy. These societal handicaps have an impact  on justice generally, and criminal justice particularly. 

For instance, Nigeria does not have an armed agency or institution dedicated  to the judiciary like the United States’ Marshals Service. The United States’  Marshals Service was founded in 1789, the year the country was founded. The  Marshals Service is the enforcement unit of the US federal courts. Its mandate  includes the protection of judges and other judicial personnel, transporting  prisoners, managing prisoners, protecting witnesses, executing federal  warrants, and serving some federal court processes.12 The US Marshals Service  is still administered by the executive through the office of the Attorney 

General, but it provides a dedicated force that caters to the judiciary’s needs  and is untouched by the hierarchy, interests, or bureaucracy of other law  enforcement agencies. 

Nigeria has nothing of the sort – but desperately needs it. As an example,  witnesses are routinely intimidated, or tampered with or simply lost in Nigeria,  without consequence. To respond to this, Nigeria has no service or unit that is  dedicated and equipped to protect witnesses or persons relevant to court  proceedings.  

Instances abound, though poorly reported, of persons who having initiated  criminal proceedings, developed cold feet upon realising they would have to  testify in open court. Rape victims have suddenly forgiven their rapists and  robbery victims their robbers for fear of retribution that may follow should the  prosecution fail. And who can blame them? In the case of Abacha v. The State13,  Mohammed Abacha, son of the late Head of State, Sani Abacha, who had been  standing trial applied for bail at the Supreme Court. In opposing this  application, the state filed an affidavit setting out the following reasons why  the Applicant’s motion was to be denied: 

“(i) That the appellant/applicant actually admitted in his statement to  the police which form part of the record of proceedings before the court  particularly pages 82-83, that one Aminu Mohammed and Mohammed  Katako (both now proposed witnesses for the prosecution in this case) were given $10,000 (ten thousand dollars) each on his instructions. 

(ii) That it was further revealed in the appellant/applicant’s statement  to the police, that the $10,000 was given to enable them resettle  elsewhere outside the country in order to avoid being investigated,  questioned or arrested in respect of this case. 

(iii) That Aminu Mohammed and Mohammed Katako confirmed in their  statements to the police which for (sic: form) part of the record of proceeding before this court, particularly at pages 98, 111 and 112. 

(iv) That some of the key witnesses have expressed great fears on  account of threats received through different sources allegedly connected with the accused persons in this trial. 

(v) That in fact, one of the witnesses who was a driver to the  appellant/applicant had to be taken into protective custody for his  safety, and he is still under protective custody. 

(vi) That there are other witnesses also under protective custody and  many others who are not in protective custody. 

That case underscores the risk witnesses face in the country. It is highly  doubtful that if that case was not of national interest, the protective custody  availed that driver would have been provided.  

In a more recent expression, the Federal Government of Nigeria filed an  application in June 2016 for leave to grant protection to the prosecution’s  witnesses (despite the refusal of an earlier application for secret trial by the  judge) in the case against former National Security Adviser (NSA), Col Sambo  Dasuki (Rtd).  

This application was premised, as reported in the news, on the grounds inter  alia that the defendant, being a former NSA, a retired senior military officer  and a Crown Prince of the Sokoto Caliphate, “commands large followership  throughout the length and breadth of Nigeria who may be aggrieved by his trial”;  most of the witnesses are security personnel and have expressed fears of being  identified by members of the public who are sympathetic to the Defendant;  and that while in office as NSA, the Defendant imported into the country a  large cache of highly sophisticated arms and ammunition for the national  security purposes that have not been accounted for and which were feared to  be in the possession of persons sympathetic to the defendant. Even worse, the  government’s deponent solemnly declared further that the security of  government’s witnesses would be blown up if they were made to testify  publicly without any protection.14 

The point to be taken away is that such manipulation of witnesses is common  or at least easy in Nigeria. It is instructive that in the two cases above, the option of protective custody was explored on account of the national  significances of those trials. But armed robbers, organised criminals, human  traffickers, ritualists, and occultists all pose a threat to witnesses without  necessarily whipping up a national storm. The persons testifying in their trials  may need protection just as much as the person testifying in the NSA’s trial. What is perhaps most striking is that even government officials have come under this fear – in Abacha’s case, the government despite having allegedly  taken witnesses into protective custody opposed the applicant’s application for  bail on the ground, amongst others, that he would interfere with his trial while  in Dasuki’s case, the witnesses afraid of testifying were by the government’s  own admission, security personnel. 

So, even in the face or real or apprehended threats to witnesses, prosecutors  rely on the Police; and sometimes the strongest tool that prosecutor has, is  the denial of bail to the defendant. However, these two tools are manifestly  unsuitable. Firstly, a defendant in custody can still pass on information to a  collaborator who is not in custody for the intimidation of a witness. This was  why in Col Dasuki’s trial, although the Defendant was in detention, the  witnesses were still reluctant to publicly testify – for fear of the Defendant’s  followers in public. 

Secondly, the intimidation of a witness may come from the same Police or  investigators that are ordinarily tasked with protecting witnesses. In Al Mustapha v. State,15 PW2 was one Barnabas Jabila (aka Sgt Rogers). He  testified for the State and completely reversed himself under cross examination. Under cross-examination, he explained that the statement he  made during investigation was made in fear and in response to promises. He added that during the investigation, an SSS officer prostrated to him and said  if he did not cooperate, he would be told to go and on the way he would be killed.  

Another case comes to mind to show how witnesses can be tampered with by  regular State agents, and even in cases that are not popular. Years ago, the  Lagos State High Court was prosecuting one Chief Emmanuel Nwude, an  advance fee-fraud artist who perpetrated the biggest scam in Nigerian history.  He was convicted in the year 2005 and his attempt to steal a match on the  prosecution by reclaiming properties he had voluntarily given up in a plea  bargain was recently rebuffed by the Court of Appeal16.  

During his trial in 2005, one Mr Dayo Ogunseye was billed to attend court and  testify against Chief Nwude. On the set day, being the 13 September 2005,  there was a bomb scare at the Ikeja Division of the Lagos State High Court where Chief Nwude’s matter was being prosecuted. In the ensuing  pandemonium, Mr Ogunseye, the prosecution’s witness, was allegedly  kidnapped to deprive him of documentary evidence he intended to tender. To make the story stranger than fiction, it was later uncovered that one Inspector Cornelius Ibe, a senior prison warden had helped orchestrate the act!17 

Several things can prevent this however – witness protection, confidential  proceedings, development and enforcement of contempt law and procedure, etc. Presently, the framework for protecting witnesses is lax, and the ACJLs  alone cannot fix this issue, especially if the solution is to create a new force  dedicated to the judiciary. There will be some people who will argue that  Section 214 of the Constitution bars the creation of that force. 

The necessity for that force is not the protection of witnesses only. Judges,  judicial personnel, and judicial premises also need protection, which is  currently provided by the Police or perhaps the Civil Defence Corps. Now,  because the judiciary relies solely on the conventional police for protection of  judicial officers, that exposes judges themselves to pressure by the executive  arm of government. 

In the early 1980s, Femi Falana SAN represented some student activists who  had been detained in Ibadan. The activists had been charged with several  offences – including murder – before a Magistrate who remanded them in  prison custody. In response, Mr Falana, then a youth corps member, filed an  application for the enforcement of the activists’ fundamental rights. He filed  two applications before two judges – Ayorinde J and Oloko J. He was successful  in both, but Justice Ayorinde specifically declared holding charge  unconstitutional.  

The State Commissioner of Police was displeased. He addressed a press  conference decrying Justice Ayorinde’s judgment as a “travesty of justice”. In  further protest, the Commissioner of Police then withdrew the Police orderly  to Justice Ayorinde. Disappointed, all the other judges of the Oyo State High  Court sent their Police orderlies back to the Commissioner of Police. The impasse between the Police and the judges lingered till the Inspector general  at the time – Sunday Adewusi – intervened.18 

Many other examples exist of how it is impractical for the Police to serve the  judiciary. For example, the Police is often a party to proceedings before court  and sometimes the judgment debtor. When that judgment debt is to be  executed by a writ of attachment, the judgment creditor usually requests Police  protection. The irony is obvious – how will Police officers assist you to attach  police property? Sometimes, a court issues a summons to compel a witness to  attend court. The Police is ordinarily mandated to enforce that summons. But  what happens when the witness is a Police officer?  

So, Nigerian criminal justice stands to gain a lot from a better enabled judiciary  that can assert its governance function without absolute reliance on the  executive. To do so, further recalibration, within and beyond the ACJLs, is  necessary. 

That is not all. On a practical plane, Nigeria does not have a unified emergency  short code number that victims can call when in need. Instances abound where  the voice and words of an assailant have been picked up over an emergency  call. At other times, victims who could not speak into the phone due to the  presence of assailants in the room have been rescued by officers who traced  the phone calls to the place of origin. In 2019 a kidnap victim in the US State of Ohio called the police with the offender in the room and pretended to be ordering pizza.19 We do not have that here – at least not nationally. An  emergency number, calls to which will be recorded, can provide useful  evidence of the crime or the victim’s state of mind. It can even be res gestae.  

There is also another flaw the Nigerian system suffers – the lack of a  comprehensive and filtered identification system in the country. The country  still struggles to enrol Nigerians in the National Identity Card Scheme.  Similarly, though Nigerians are called upon at different times to volunteer  information peculiar at them, there is no unified silo in which all these  information are harmonised and warehoused. In fact, until recently, these data existed only in paper.  

Nigeria has seen the actual damage that poor data collection can do. In 2006,  a prominent chieftain of the Peoples’ Democratic Party (PDP), Funsho Williams  was murdered in his Lagos residence. Detectives from the London Metropolitan  Police were promptly invited to assist in the investigation particularly with  respect to recovering fingerprints. The detectives arrived and combed the  residence for fingerprints, focusing on the room which was the crime scene. 

They left utterly confused – they had recovered over 7,000 prints from the  crime scene. Unskilled in crime scene preservation, security operatives had let  all manner of Nigerians enter the crime scene after the fact including prominent Nigerians, sympathisers and even other security personnel.20 

Curiously, at the trial of the accused persons, a Prosecution Witness, Mr  Adebayo Adeoye, who retired as a DIG stated under oath “we didn’t touch  anything because we were expecting forensics”21 

Now, even if the Metropolitan Police had found the right fingerprints in Funsho Williams’ room, Nigeria did not have at the time, a trustworthy and  comprehensive database to compare the prints to. As such, it is highly doubtful  that the killers would have been found even if the crime scene had been  properly preserved. The situation is scarcely different today.  

In that same case, blood samples and virtuous humour of the eye, evidence collected by the pathologist, were lost due to epileptic power supply where they were kept.22 These are real, practical, and continuing factors that negatively impact criminal justice, which amendments to ACJLs alone, will not resolve. 

AREA TWO – INVESTIGATIONS AND CASE PREPARATION 

It is not uncommon to have prosecutors rush to Court to arraign a suspect  even when crucial bits of the jigsaw puzzle are still missing. It is a given that  justice delayed is justice denied and, in a country where it may be easy to  disappear without a trace, the desire to quickly have an offender punished is  reasonable. However, this desire must not override the imperative to have  criminal matters properly investigated to avoid the vindication of a dangerous  criminal on a technicality.  

The Chief Justice of Nigeria (Mahmoud Mohammed CJN as he then was)  acknowledged this problem when he observed to delegates of the Nigeria  Electronic Fraud Forum (NEFF) in November 2015 that, aside the fact that the  agencies conduct shoddy investigations before rushing accused persons to  court, in some cases, “up to 200-count charges are brought before the court”,  a situation he said “makes mockery of the constitution and the laws”.23 

Capacity building of prosecutors is an extra-legal matter. The law cannot  mandate it, or most importantly, achieve it. And this is an area of further  recalibration that cannot be overemphasised. In May 2016, the Federal  Government inaugurated a National Prosecution Coordination Committee,  NPCC, for the effective prosecution of high-profile criminal cases in the  country24. The Vice President, Professor Yemi Osinbajo had the following to say  as to government’s motive for setting up the committee: 

“Given the nature of economic crimes and the enormity sometimes of the  money that is involved and the influence of those who may have to be  prosecuted, you need more than legal skills. You need men and women  of strong character and courage who will not only be able to turn down  inducements of any kind but also act without consideration for tribe,  friendship, religion or any other parochial considerations.” 

The Vice President’s point is very well founded. It takes more than  prosecutorial and advocacy skills to successfully prosecute cases. Integrity,  clear sight, accountability, and independence are equally important. These may  be lacking in several prosecutorial instances in Nigeria – not because of  corruption or vice, but because of the very structure of prosecutorial agencies  in Nigeria. 

For instance, in Nigeria, the Economic and Financial Crimes Commission  (EFCC), its sister agency, the Independent Corrupt practices Commission  (ICPC) and the Nigerian Police Force are at the forefront of prosecution of  criminal offences. Section 12 of the EFCC Act provides for the establishment of  special units of the Commission including the Legal and Prosecution Unit. By  virtue of Section 13(2) of the Act, that Legal and Prosecution Unit is saddled  with the power of prosecution of offenders under the Act. In a similar manner, Section 6(a) of the Corrupt Practices and other related offences Act also  confers investigative and prosecutorial powers on the ICPC. 

Thus, in effect, both ICPC and EFCC have powers to investigate and prosecute.  However, experience and history prove that the powers of investigation and  prosecution do not always go well together. An investigator who is tasked to  assess his investigation and determine if he has enough evidence to prosecute,  is unlikely to be objective in his assessment of the case, or in his eventual  decision to prosecute. Also, because prosecution is his job, or the job of his  colleagues, he approaches every investigation not simply as a factfinding  mission, but as the start of a process of prosecution. Thus, regardless of  exculpatory evidence the investigator encounters, he would feel impelled to  achieve a prosecute at all cost. 

The need to appear to be working and thereby prosecute at all costs may  outweigh considerations such as the adequacy of investigations and evidence  garnered against a suspect. It was this very consideration that led to the  establishment of the Crown Prosecution Service in England. In 1978, England  faced several cases in which criminal charges were routinely and easily thrown  out. Watery cases were filed and several prosecutions failed. In response, a  Royal Commission of Criminal Procedure was set up in England. The reports of  the Commission published in 1981 came up with three main criticisms of the  system at that time. These were:  

(i) The Police should not investigate offences and decide whether to  prosecute. The officer who investigated the case could not be relied  on to make a fair decision whether to prosecute.  

(ii) Different police forces around the country used different standards  to decide whether to prosecute. 

(iii) The Police were allowing too many weak cases to come to court. This  led to a high percentage of Judge directed acquittals. 

One author explained the reasoning behind these conclusions thus: 

The maintenance of an investigator-prosecutor divide was central to the  report which led to the establishment of the Crown Prosecution  Service…The investigator-prosecutor divide was premised on the belief  that if the prosecutor becomes involved in the investigation of a case, then the prosecutor may become committed to a particular line of inquiry and  loose objectivity in assessing that case.25 

I believe the criticism made by the Royal Commission in England are also  applicable to Nigeria. Whilst Nigeria has one Police force in theory, the reality  is that the functions of that Force have been greatly eroded by several law  enforcement agencies such as the EFCC, ICPC, NDLEA, FRSC to name a few.  And these agencies all share investigative and prosecutorial powers. Therefore,  the situation of different investigative forces using different standards to  prosecute is also now applicable to Nigeria.  

By fusing investigative and prosecutorial powers in the EFCC and the ICPC, the  lawmaker has placed an unnecessary burden on both bodies. Of course, within  these bodies, the investigation units are separate from the prosecution units.  But those distinctions are as real as the difference between six and half a  dozen. My understanding of these agencies is that there are no hard borders  between the investigative teams and the prosecutorial teams. Officers get  transferred from Operations Department to Legal Department and back. As  such, it is possible for a lawyer in these Commissions to be involved in the  prosecution of cases he investigated while outside the legal department. 

That is not all, the prosecution units are still subject to the oversight and  administrative control of the same persons who supervise the investigative  units. Thus, the prosecutors can be compelled to prosecute by bosses who  believe that the investigative teams have achieved enough to justify  prosecution, whether that is so or not. The legal teams lack the career and  professional independence to do otherwise, or to ensure that their  considerations for prosecution, which are supposed to be purely legal  considerations, are not overridden by factors considered by their bosses who  are non-lawyers and are unskilled, untrained and undevoted to the legal  principles behind prosecution. 

A system in which the law enforcement agencies are limited to investigative  duties will greatly aid the performance of their roles in the criminal justice  system. In my view, this explains the difference between criminal cases prosecuted by the Police and criminal cases prosecuted by the Ministry of Justice. The Ministry has no interest in justifying the Police’s investigation and always gives frank assessments of investigations, notwithstanding that this  assessment may result in charges being dropped.  

I know of a matter in which after perusal by my Office, we declined to prosecute  or render a prosecutorial advice, without further investigation on certain  specific points. The Police graciously obliged and have returned after  additional investigation, with facts that further buttress the suspicions against  the suspects and eliminate what we perceived to be reasonable doubt. Had we  not approached that file with the frank independence of a strict prosecutor,  the Police was content with the investigation it had done. In fact, the Police  has even already brought charges before an inferior court of record. 

So, we must develop a system in which investigators do their job and then seek  guidance from the office of the public prosecutor at any stage of the  investigation where such advice or guidance is needed. This is particularly  more so in modern times where the commission of such crimes as money  laundering have gained much sophistication and investigators even need to  firstly understand the complex legal structures and technical fields, before  they can spot offences, let alone investigate them well enough to prosecute. 

This explains why, as an example, the United States Securities and Exchange  Commission does not prosecute market manipulation or securities crimes,  despite being the apex regulator of the securities market in that country. It  relies, instead, on the Department of Justice (DOJ) to assess its investigations,  and then decide to prosecute. Similarly, the Federal Bureau of Investigations  (FBI) in the United States of America does not prosecute persons suspected to  have committed crimes. A statement on its website reads as follows: 

Although the FBI is responsible for investigating possible violations of  federal law, the FBI does not give an opinion or decide if an individual will be prosecuted. The federal prosecutors employed by the Department of Justice or the U.S. Attorneys offices are responsible for making this  decision and for conducting the prosecution of the case. 

If a possible violation of federal law under the jurisdiction of the FBI has  occurred, the Bureau will conduct an investigation. The information and  evidence gathered in the course of that investigation are then presented  to the appropriate U.S. Attorney or Department of Justice official, who will  determine whether or not prosecution or further action is warranted.  Depending on the outcome of the investigation, evidence is either  returned or retained for court.”

Nigeria can adopt a similar system. To make it effective, the government can  increase the offices of the Federal Directorate of Public Prosecution to cover  existing police and law enforcement mandates that currently exist in Nigeria.  

Apart from preserving the objectivity of prosecutors and prosecution,  separating prosecution from investigation will give prosecutions credibility and  accountability by creating a system of professional and effective checks to the  process of investigation, indictment and prosecution. An accountable  prosecution will be fair to criminal defendants by shielding suspects and  subjects of investigations from unfair prosecution or even persecution.  Because only strong and maintainable cases will be brought by this system,  criminal trials will be more efficient and successful. Lastly, if we are to protect  the integrity of the prosecution system, we must anonymise the professionals  who run the system – that anonymity does not exist in the limited legal units  of specialised Commissions like the EFCC and ICPC. 

Like I already mentioned at the start of this lecture, the ACJA and ACJLs are  monumental leaps forward and significant recalibrations of Nigerian criminal  justice. But the noble intentions of the statutes must be supported by  improvements in the quality of investigations, investigators, and prosecutors.  Our prosecutors must have specialised training, subject matter expertise and  strong advocacy skills. Personally, I was pleased to see the tough and experienced team in the Public Prosecutions Department of the Ogun State  Ministry of Justice, led by the two tireless but fair Directors of Public  Prosecution that I have been blessed to work with – Bamidele Adebayo (SG/PS)  and Adejumoke Adewole (current DPP). 

AREA THREE – DEATH SENTENCE 

Nigeria has been an independent nation for sixty-one (61) years. We are in our  62nd year of independence. Of our 61 years, Nigeria experienced civilian rule  for only about thirty-three (33) years with the longest stretch being this current  republic of twenty-three (23) unbroken years. This means that before this  republic, Nigeria was thirty-nine (39) years old and had spent 29 years under  the military. So, before 1999, a whopping 74% of our national experience was  shaped by the military. 

Although it has many virtues, by training and constitution, the military has  several characteristics that made it unqualified to be a governing institution.  The military is not suited for debate or verbal engagement, does not brook  opposing opinions, views protests as disrespect, demands absolute and unquestioning loyalty, and is comfortable with the fatal use of force. The Nigerian military was especially all these things. As such, when the military  took power, it deployed its usual militaristic tools in civil governance. And  anytime a vice became rampant in society, the military had only one solution  – force. 

Certainly, force is a legitimate way to defeat crime, especially crimes that are  themselves forceful and violent. However, punishment must be commensurate  to the crime, and must be justified in all circumstances. A punishment should  not be prescribed merely because the State wants to scare people off a specific  conduct, notwithstanding whether that punishment fits the crime or not. The  most significant example of the military’s overreliance on force is in the  example of the death penalty. The death penalty is the sentence for armed  robbery,26 murder,27 and kidnapping.28 It is also a possible punishment for  terrorism.29 

Many of these sentences were conceived and imposed under the military. To  be fair, several of the offences were imposed by the civilian successors to the  military. However, even the civilian successors carried on vestiges of the  military-era thinking that force is the only appropriate response to social  deviance. In any event, many ex-military officers fluxed into politics at the start  of this republic. The death penalty is attacked on several grounds based on its  humanity, its utility or usefulness, its fairness in view of its finality and its  extreme rigidity. 

On its humanity, some argue that the death penalty is not compatible with a  modern, humane, or fair society. On its website, Amnesty International  contends that: 

the death penalty breaches human rights, in particular the right to life  and the right to live free from torture or cruel, inhuman or degrading  treatment or punishment. Both rights are protected under the Universal  Declaration of Human Rights, adopted by the UN in 1948.30 

In this regard, some international instruments have been enacted towards the  total abolition of death sentences.31 Amnesty then contends that the “death  penalty is a symptom of a culture of violence, not a solution to it.” I agree with  this view for different reasons.  

One, killing is the most extreme and most irreversible act of violence that is  perpetrated by the persons we classify as society’s worst. When a State  sanctions killing in the name of retribution or punishment, it only creates more  violent persons and more of society’s worst. Members of the armed forces who  see war and Police officers who engage in fatal shootings often tell of internal  conflicts after the fact, substance abuse because of struggles to get over the  shooting and several bouts of post-traumatic stress. For a normal person, it is  never easy to take a life, even when killing is done to defend one’s life. So, how can it be easy to take a life of a condemned defenceless person, just because the State says so? Certainly, it is not – and executions only harden the  executioner and the public to the sanctity of human life. 

Two, the public’s demand for executions is simply founded in bloodthirst – in  a desire for revenge, rather than justice. It is rooted in the feeling that one  who takes an eye, should lose an eye. This is often without regard to the  welfare of the one whose eye the perpetrator took. An eye for an eye was the  touchstone of Mosaic law – but the world has since moved away from that  principle (Nigeria certainly has). That is why in punishment, we do not kidnap  a kidnapper, we do not rape the rapist, we do not abuse the abuser and we do  not trade the trafficker. It is only in the death penalty that we punish an  offender by giving him a taste of his criminality. That is simply State violence – not justice. 

Three, I am convinced that the high rate of extra-judicial killings by law enforcement is founded in the existence of death penalty under our laws. I  take the view that law enforcement agents are encouraged to kill offenders because they believe they are simply hastening the sentence that the court will  impose anyway. If the court will sentence this defendant to die, why should I wait and go through trial, gather evidence, do paperwork, testify in court, and  waste one or two year when I can execute the sentence now?31 These include The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming  at the abolition of the death penalty; Protocol No. 6 to the European Convention on Human Rights, concerning the  abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the  abolition of the death penalty in all circumstances; and The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

Four, Amnesty International reports that the five leading countries in the use  of the death penalty are China, Iran, Egypt, Saudi Arabia, and Syria. None of  these countries is a civilised democracy that Nigeria is patterned after – or  wishes to be patterned after. They are known for stringent and often violent  measures in protection of the State. One is even war torn as we speak.  Consequently, Amnesty International may just be right to say that the death  penalty is a symptom of a violent society, not a cure to it. 

The usefulness of the death penalty is also questionable. A common  justification of death sentence is that because it is a strong punishment, it  serves as strong deterrent to offenders. However, a survey of research findings  on the relation between the death penalty and homicide rates, conducted for  the United Nations in 1988 and updated in 2002, concluded that: 

“it is not prudent to accept the hypothesis that capital punishment deters  murder to a marginally greater extent than does the threat and  application of the supposedly lesser punishment of life imprisonment”32 

An American researcher came to a different conclusion from analysing the  death penalty across different US States. She concluded that in about six US  states, homicides fell because of a high rate of executions, in thirteen (13)  other states with the death penalty, homicide rates rose instead. She described  this as the brutalisation effect arguing that “instead of deterring crime, the  executions may be inducing additional murders…” and that “in the many states  where executions induce murders rather than deter them, executions cause an  additional 250 murders per year.”33 A passage of this work is relevant to quote  here: 

It has been theorized that executions might increase murder, not deter  them, and that the brutalization effect is the consequence of the “beastly  example” that executions present. Executions devalue human life and  “demonstrate that it is correct and appropriate to kill those who have  gravely offended us.” Thus, the lesson taught by capital punishment may  be “the legitimacy of lethal vengeance, not of deterrence.” 

I must clarify that this author agreed that at least in the US, executions have  deterred criminals. She however explained that executions created the brutalisation effect more than they deterred, and that before executions can  become deterrent, a State must conduct at least nine executions. She said that: 

…in a state that has executed only a single person in the last 20 years,  criminals may remain unconvinced that the state has the fortitude to  execute more people. 

My results suggest that the brutalization effect initially outweighs the deterrent effect. As the Figure shows, until a state conducts approximately  nine executions, each execution’s tendency to breed brutality and violence  outweighs the execution’s tendency to deter it; until nine executions, the  brutalization curve is above the deterrence curve. 

This may explain the Nigerian situation. In Nigeria, despite the existence of the  death penalty, violent crimes attracting the death penalty continue to occur  and even increase. Clearly, the perpetrators are not deterred. The perpetrators  are not deterred, possibly because the death sentence does not deter, or  perhaps because the sentences have not been executed frequently enough to  deter. Undoubtedly, the death sentence has not been a very useful tool in  Nigerian criminal justice. Its brutalisation effect has also been seen. 

The justice of a death sentence is also in doubt. Nigeria is a country where  several factors can coincide to result in the conviction of an innocent  defendant. We have seen several confessions procured by force, torture, and  duress. Several convictions have also been upturned on appeal, and I have  mentioned a few in this lecture. This knowledge makes it hard for informed  members of the society to defend the death sentence as a justified or  reasonable sentence. How can you defend the death sentence when you  recognise the possibility that the Defendant is a victim of ineffective  representation, forced confessions or miscarriage of justice?  

I remember an experience from when I was growing up during the military  era. During that time, condemned criminals used to be executed frequently at  Bar Beach, by firing squad. On one of such occasions, the firing squad shot at the convicts. The convicts all died, except for one. When an official went round to confirm the death of the convicts, he heard the surviving one mutter under his breath “iku oro o, iku oro o. Layi jale, layi se” which means “oh gruesome  death, oh gruesome death. Without stealing, without offending”. Even till his  last, that offender maintained his innocence. Human conduct tells us that he was likely telling the truth at that point. Still, he was killed.

The finality of the death sentence is also a scary prospect and a defeatist  concept. It concludes that an offender cannot be rehabilitated for the rest of  his natural life and must immediately be killed. It also appears doubly punitive  and contrary to the intentions of punishment. Punishment is intended to  protect society from the offender. However, condemned criminals are executed  from the prison yard. In other words, they are never plucked from society to  be executed. They are plucked from a situation of existing confinement in  which they are already no longer a threat to free society.  

Additionally, the rigid nature of Nigerian criminal justice makes the death  penalty intemperate in several instances. The offences punishable by the death  penalty and the refusal of Nigerian criminal law to recognise nuance, makes  the death penalty too broad a punishment for too wide a spectrum of offences.  I will discuss this further later. 

The result, however, is that our prisons are full of inmates who have been  condemned to die and who have even exhausted all appeals but whose State  Governors are completely averse to signing their death warrants. As of 10 July  2022, 3,145 inmates were on death row around Nigeria. Of that number, 3,084  are males and 61 are female.34 The reason for this high number is that several  state Governors are reluctant to sign death warrants. Last year, a newspaper  reported that as governor of Osun State, the current Minister for the Interior  Governor Rauf Aregbesola never signed one death warrant.35 This news was  published in response to news that Governor Aregbesola urged all State  Governors to sign death warrants to decongest prisons.36 

Even if it is argued that we cannot afford to discard the death penalty  altogether, Nigeria can borrow a leaf from jurisdictions that have properly  developed the sentence to reserve it for the most heinous and most  reprehensible circumstances or to impose the sentence only when specific  aggravating circumstances exist. In the US state of Georgia, the death  sentence exists and has been executed for over a thousand convicts. However,  the sentence is reserved to offences of treason and aircraft hijacking. A death  sentence is not mandatory for all murders, but may be imposed if available  evidence establishes the following aggravating circumstances: 

i. offender’s prior record of conviction for a capital felony; 

ii. offense committed while the offender was engaged in the commission  of another capital felony, or aggravated battery, or during arson in the  first degree or burglary in any degree or; 

iii. offender creating during the crime a great risk of death to more than  one person in a public place by means of a weapon or device which would  normally be hazardous to the lives of more than one person; 

iv. offender committing the offence for money or any other thing of  monetary value; 

v. the murder of a judicial officer, former judicial officer, current or former  prosecutor during or because of the exercise of their official duties; 

vi. offender causing or directing another to commit murder or committing murder as an agent or employee of another person; 

vii. offense was outrageously or wantonly vile, horrible, or inhuman in that  it involved torture, depravity of mind, or an aggravated battery to the  victim; 

viii. murder of any peace officer, corrections employee, or firefighter while  engaged in the performance of their official duties; 

ix. murder committed by an escapee from the lawful custody of a peace  officer or place of lawful confinement; 

x. murder to avoid, interfere with, or prevent a lawful arrest or custody in  a place of lawful confinement, of offender or another; 

xi. offence committed by a person previously convicted of rape, aggravated  sodomy, aggravated child molestation, or aggravated sexual battery; or 

xii. murder committed during an act of domestic terrorism.37 

The death penalty in Nigeria has not necessarily served its purpose in Nigeria.  It certainly has not deterred criminals and has not shown to be an effective or  true punishment for crimes. Additionally, its legacy to society is the  brutalisation effect – the cheapening of human life and the encouragement of  revenge. Changes to the ACJL, being procedural criminal law, cannot fix this.  Beyond our recalibration of criminal justice through the ACJL, we must fix criminal law by eliminating the death penalty altogether or further calibrating  that penalty like the Georgians, tweaking it to only specific well developed and  justified instances. 

AREA FOUR – RIGIDITY AND INFLEXIBILITY 

Another challenge in criminal justice, is the severity and inflexibility of  punishment. ACJLs have brilliantly devised all sorts of punishment different  from the typical fine and custodial sentences. We now have community service,  suspended sentences, and other non-custodial punishments. But the ACJL is  being applied to substantive offences created before its enactment and which  retain the old traditional and futile punishments. Those punishments are also  premised on faulty criminal justice principles and sometimes undemocratic  motives of our onetime military leadership. 

As a result, although there are new temperate, moderate, and proportionate  punishments in ACJL, a person who steals a phone today while armed with a  bottle is liable to the same punishment as a bandit who robs an entire train armed with an AK-47 rifle. Statistically, over-punishment has never been found  to be an effective deterrent. On the contrary, it has only ever encouraged the  criminal to be as dastardly as possible since the punishment for restrained  criminality is as crushing as punishment for extreme criminality. 

In Nigeria (including in Ogun State), an offender is presumed by law to intend  anything that is the natural consequence of his actions. So, if a person gets into a fight and during the fight lands heavy blows on the opponent which kill the opponent, Nigerian law concludes that because death is a natural possible  consequence of such blows, the offender intended death. This position is extreme, but true. 

In the United States, as an example, they have the offences involving loss of life broken down into levels. A common distinction is the classification of the  offence of murder into degrees. First degree murder is any murder committed  with premeditation and deliberation. It differs from second degree murder  which is any murder committed with malicious intent but no premeditation.38 

What this difference means is that a person who sets out to kill (i.e., with  premeditation and planning), will be charged with first degree murder. A  person who does not set out to kill but is involved in a felony and kills during  that felony, will be charged with second degree murder. 

This difference is not cosmetic. It also has an impact on the sentences that  respective offenders are liable to. First degree murder attracts capital  punishment, but second degree murder does not. Distinctions like this better  calibrate punishment to fit the crime. They ensure that the State is not  overreacting when crimes occur. They also ensure that offenders are not  unfairly punished. Without this distinction in Nigeria, we have been saddled  with instances where two teenaged friends fight and one of them dies. The  surviving fighter is sentenced to die and is placed on death row alongside a  serial killer, a terrorist, and a ritualist.  

The intemperance, obvious excessiveness, and manifest inequity of  punishments like this, are additional factors that make several Governors  reluctant to sign death warrants. They cannot reconcile signing the same death  warrants for persons with differing scales of violent offences. Yet, they must,  if they are to comply with Nigerian criminal law. 

But that is not even the worst of it. The Robbery and Firearms (Special  Provisions) Act was promulgated in response to armed by the likes of Shina  Rambo, Anenih, Oyewusi. These were gun-wielding criminals who wasted many  lives. However, the definition of armed robbery under that Act includes robbery  where the robber is armed with “any offensive weapon”. The implication of that  law, is that a hungry thief who steals a phone using a broken bottle to threaten  the victim, stands liable to the same fate as the notorious Evans, or the  terrorists who, armed with AK-47 rifles, robbed an entire train earlier this year.  This outcome is the creation of our rigid and excessively broad laws. And they  do not make for just outcomes. 

We often hear non-lawyers condemn criminal justice by citing examples of how  a bread thief gets sentenced to a long jail term, but corrupt politicians get light  sentences. These arguments are mostly pedestrian and inaccurate but there is  some reason to the comparison. All crimes are bad and must be punished by  the State. But crimes cannot be divorced from the social context in which they  occur. That is why the same offence may have different punishments or  responses in different jurisdictions – each jurisdiction will craft a response that  it deems appropriate to address behaviours it deems tolerable or  objectionable. Armed robbery is a capital offence in Nigeria, but not so  everywhere in the world. Homosexuality is a felony in Nigeria, but a constitutional right in the United States. Social context is important. 

In Nigeria’s socio-economic context, the causes of crime are not the same as  the causes of crime in other more advanced or less advanced jurisdictions. A recognised cause of crime in Nigeria is poverty. And while poverty-induced crime must not be excused, it is unconscionable to punish it with the same  severity that we punish greed or avarice. In Nigeria, once a person steals  anything, he is punishable by the offence of stealing. So, a man who sneaks  into a bakery and steals four loaves of bread for his family of eight, stands  liable to the same punishment as his neighbour who steals a brand new iPhone  from the store, to impress a girlfriend. 

In some jurisdictions of the world, the distinction in these instances justifies  the classification of offences against chattels into grades. This birthed the  offence of grand Larceny, distinct from the offence of stealing or simple  larceny. Grand larceny is the same thing as stealing. The difference is simply  the value of the chattel stolen. In California, for example, grand larceny is  committed by theft of a vehicle, firearm, or property worth more than $950.39 

This distinction avoids outcomes where an offender, who steals for  subsistence, is thrown in jail at all, or for the same period as a career thief who  steals for commercial gain. 

Distinctions like this have been criticised and commended. In California, for  instance, when shoplifting was downgraded to a misdemeanour, it sparked an  epidemic of bold, public, and unrestrained thefts from shops.40 However, they have the commendable effect of reserving jail time or stricter measures for  persons who are wilful offenders, as opposed to victims of circumstance. 

Another example from Nigeria may help. The Kidnapping (Prohibition) Law of  Lagos State imposes a life sentence on all kidnap cases and a sentence of  death in kidnap cases where death occurs. But the definition of kidnap is  instructive. The Law defines kidnap to include  

“the act of unlawful removal or abduction of person(s) from a place to  another against the person(s)’ will, either by force or use of offensive  weapons, firearms or deception or the act of holding somebody hostage  with or without the person’s consent with the intent to demand ransom,  for ritual killing or for any other unlawful purpose”. 

Now, imagine this scenario – a parent is separated from a spouse but shares  a child with the ex-spouse. The court grants custody to the spouse but this  parent is dissatisfied. To avoid execution of the court’s judgment, this parent  lies to the ex-spouse about wanting to take the child to the amusement park but instead flees with the child from Magodo to Ijebu-Ode. By the definition of kidnap in that Law, that parent committed kidnap because the parent caused  the removal of the child, used deceit to do so, did not have the consent of the legal guardian of the child to do so, and did so for the unlawful and  contemptuous purpose of frustrating a court judgment.  

Without doubt, this parent’s actions are reprehensible and should be punished.  But should they be punished by life in prison or classified as the same offence  that Evans the Billionaire Kidnapper was known for? I leave you to be the judge. 

As long as our laws continue to deny nuance and contain excessive and rigid  punishments, the ingenious and temperate punishments devised in the ACJA  and ACJLs will be as good as useless. The courts will be unable to use them in  most instances since the exercise of discretion has been excluded using  mandatory sentences. And even where discretion is permitted, it is a discretion  to choose between two specific punishments – usually prison term or fine – not  the discretion to use any of the wide array of punishments recognised in the  ACJA and ACJLs. 

AREA FIVE – PLEA BARGAINS 

One useful innovation in global criminal justice which remains underutilised in  Nigeria, is the appropriate use of plea bargains. Because Nigerian States  retained the old criminal regime, many States retained the offence of  compounding, which by intention or implication, prevented offences from  being bargained. This kept many cases in court which could have been easily  concluded. These delays resulted in many lost cases as investigators died or  left jurisdiction and witnesses lost the will to cooperate. Thankfully,  compounding has been discarded, even if not directly but by the codification  of plea bargains. 

However, in that solution lies a setback. Plea bargains are historically rooted  in the broad discretion of a prosecutor to determine what laws to enforce and  against whom to enforce them. And discretion is extremely subjective and very  flexible. In fact, in Abacha v. State,41 the Supreme Court explained that when  there is a question about the exercise of discretion, there can be no such thing  as a binding authority or precedent.  

Yet, Section 283 of our Law stipulates the conditions under which a plea  bargain may be struck. The most problematic condition is that a plea can only  be struck when there is insufficient evidence. Firstly, the stipulation of these conditions (especially in a Statute) severely undermines the flexibility of  discretion. It makes bargaining rigid. Secondly and more importantly, the  condition I have highlighted is completely inconsistent with the goals of  bargaining. 

A prosecutor has an almost infinite number of reasons to strike bargains, even  when evidence is strong. These include when the defendant is to be used by  the State in subsequent proceedings, or when the defendant has special  circumstances that warrant due considerations for a lesser sentence, or when  a lesser sentence accords with governance goals and policies. The stipulation  of strict conditions for bargaining is antithetical to bargaining as a concept,  and only takes away with one hand, what the ACJL intended to give with the  other. 

Of course, the State is not handicapped by these provisions. The Attorney General can still enter a nolle or elect to charge differently. Nevertheless, this  problem is worth highlighting, to demonstrate to us all that some more work needs to be done. 

CONCLUSION 

Criminal justice is like a vehicle. The ACJA, ACJLs and other bits of procedural  criminal law are like the wheels of the vehicle. Substantive criminal law is the  engine. Criminal justice stakeholders are its drivers. With the ACJA and ACJLs,  Nigeria refurbished and modernised the wheels of its vehicle. This ensures or  lays the foundation for a smoother ride to criminal justice. However, without  fixing substantive criminal law, the vehicle will move smoothly, but only at the  peak speed of the old engines. And without the right drivers, the vehicle will  be driven into the bushes. The fate of the two persons I mentioned earlier illustrate this point.  

The woman was convicted and sentenced to a year in prison which term she fully served. As the event occurred after over three decades of service and less than two years to her retirement, she lost all her entitlements, all because she  paid salaries of her workers and particularly when no criminal intent was imputed or established against her. Her appeals to the Court of Appeal and  the Supreme Court were dismissed.  

The man on the other hand had his conviction for armed robbery set aside and  one for robbery substituted in its place. The convict served out the term of his  revised sentence and was released. His lawyer was pleased to see a falsely  accused man free. That was until one day while in his office, he got a telephone call from a colleague urging him to tune into a radio show. The lawyer tuned  in only to hear the former client enthusiastically narrating stories from the client’s time as an armed robber and leader of a gang. It was the first time the  lawyer would hear that “visiting” had a peculiar meaning in the underworld. It turns out that the client was an actual armed robber who was simply subjected to illegal means of information extraction by delinquent law enforcement agents. 

These two cases in which I represented the Appellants, demonstrate the  dynamics of criminal justice. The strict standards of criminal justice sometimes  set a criminal free; and on some sad occasions, criminal justice condemns the  innocent. This is why criminal justice is critical. This is why today’s topic cannot  be overemphasised. 

Nigeria has rightly recalibrated its criminal justice. But I am sure you will agree, from the few things we have heard, that further recalibration is  necessary, and urgently needed.  

I thank you for listening. 

OLUWASINA OGUNGBADE, SAN

Footnotes

  1. https://www.internationalstudent.com/study-criminal-and-forensic-science/what-is-criminal-justice/
  2. Balsing Rajput Identifying The Challenges Of Criminal Justice System While Responding To Cyber Economic Crime IJCRT | Volume 6, Issue 1 March 2018 | ISSN: 2320-2882 page 148
  3. Section18
  4. Section 31(6)
  5. Section 49
  6. See generally, Section 36 on the rights to fair hearing.
  7. Prof. Adedeji Adekunle SAN, An Overview of the Administration of Criminal Justice Act and Laws; Presentation By at the 2021 All Nigeria Judges Conference of The Superior Courts organised by The National Judicial Institute 15-19 November 2021 Abuja. Hosted at https://nji.gov.ng/wp-content/uploads/2021/12/An-Overview-of-the Administration-of-Criminal-Justice-Act-and-Laws-by-Prof.-Adedeji-Adekunle-SAN.pdf
  8. https://www.partnersnigeria.org/acjl-tracker/
  9. T H Williams, MA (Judge of the High Court of Northern Nigeria), The Criminal Procedure Code of Northern Nigeria: The First Five Years. Hosted at blob: https://onlinelibrary.wiley.com/feae6aef-66c4-444c-9cf6-2e61df9cd237
  10. 7 U.S. Code § 1a(9) provides: The term “commodity” means wheat, cotton, rice, corn, oats, barley, rye, flaxseed, grain sorghums, mill feeds, butter, eggs, Solanum tuberosum (Irish potatoes), wool, wool tops, fats and oils (including lard, tallow, cottonseed oil, peanut oil, soybean oil, and all other fats and oils), cottonseed meal, cottonseed, peanuts, soybeans, soybean meal, livestock, livestock products, and frozen concentrated orange juice, and all other goods and articles, except onions (as provided by section 13–1 of this title) and motion picture box office receipts (or any index, measure, value, or data related to such receipts), and all services, rights, and interests (except motion picture box office receipts, or any index, measure, value or data related to such receipts) in which contracts for future delivery are presently or in the future dealt in.
  11. Cap N30, Laws of the Federation of Nigeria 2004
  12. https://www.usmarshals.gov/index.html
  13. (2002) LPELR-15(SC)
  14. http://newtelegraphonline.com/dasuki-fg-asks-court-witnesses-protection/
  15. (2013) LPELR-20995(CA)
  16. See Nwude v. FRN (2015) LPELR-24647(CA)
  17. Nigeria: Nwude, Prison Warden Face 5-Count Charge. Published on 20 July 2006 and Hosted at http://allafrica.com/stories/200607200331.html
  18. Akin Ibidapo-Obe, In The Public Interest: A Study of the Legal Interventions of Femi Falana; 2008 ISBN 978- 978-48311-4-7 at pages 37 – 39.
  19. US domestic abuse victim pretends to order pizza to alert 911. Published on 22 November 2019 & hosted at https://www.bbc.com/news/world-us-canada-50513706
  20. http://nm.onlinenigeria.com/templates/?a=8538&z=12; also see page 25 of The Retreat of the Legal Process, paper presented by Professor Yemi Osinbajo, SAN at the 2011 Founder’s Day Lecture of the Nigerian Institute of Advanced Legal Studies on 17 March 2011. Hosted at http://www.nials nigeria.org/round_tables/TheRetrateoftheLegalProcess.pdf
  21. Funsho Williams’ murder: Retired DIG says disorganised room indicates scuffle before death. Published on 22 June 2019 and hosted at http://www.premiumtimesng.com/news/139374-funsho-williams-murder-retired dig-says-disorganised-room-indicates-scuffle-before-death.html
  22. Evidence of Funsho Williams’ murder damaged due to epileptic power supply, police tell court. Published on 29 April 2019 and hosted at https://www.premiumtimesng.com/news/131904-evidence-of-funsho-williams murder-damaged-due-to-epileptic-power-supply-police-tell-court.html
  23. EFCC, ICPC, others bungle crime cases – CJN. Published on 2 November 2015 and hosted at http://www.vanguardngr.com/2015/11/efcc-icpc-others-bungle-crime-cases-cjn/
  24. Nigeria sets up panel for prosecution of high profile corruption cases. Published on 27 May 2016 and hosted at http://www.premiumtimesng.com/news/headlines/204198-nigeria-sets-panel-prosecution-high-profile corruption-cases.html
  25. Dr. Destina Kyprianou, Comparative Analysis of Prosecution System (Part II): The Role of Prosecution Services in Investigation and Prosecution Principles and Policies
  26. Sections 1 (2 & 3) Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004
  27. Kidnapping is reportedly a capital offence in at least 15 States of Nigeria. See ThisDay editorial titled Will the Senate’s New Anti-Kidnapping Bill Make a Difference? Hosted at: https://www.thisdaylive.com/index.php/2021/09/26/will-the-senates-new-anti-kidnapping-bill-make-a-difference/
  28. Section 2(c) of the Terrorism (Prevention) (Amendment) Act, 2013
  29. https://www.amnesty.org/en/what-we-do/death-penalty/
  30. These include The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming  at the abolition of the death penalty; Protocol No. 6 to the European Convention on Human Rights, concerning the  abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the  abolition of the death penalty in all circumstances; and The Protocol to the American Convention on Human Rights  to Abolish the Death Penalty.
  31. Roger Hood, The Death Penalty: A Worldwide Perspective, Oxford University Press, 2002, p. 230
  32. Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment’s Differing Impacts Among States
  33. Congestion: 3,084 males, 61 females on death row in Nigeria. Published on 10 July 2022 and hosted at https://punchng.com/congestion-3084-males-61-females-on-death-row-in-nigeria/
  34. As Governor, Aregbesola Didn’t Sign One Death Warrant. Hosted at https://www.thisdaylive.com/index.php/2021/08/03/as-governor-aregbesola-didnt-sign-one-death-warrant/
  35. Sign death warrants to decongest prisons, Aregbesola urges govs. Published on 24 July 2021 and hosted at https://punchng.com/sign-death-warrants-to-decongest-prisons-aregbesola-urges-govs/
  36. See GA Code § 17-10-30 (2020) hosted at https://law.justia.com/codes/georgia/2020/title-17/chapter-10/article 2/section-17-10-30/
  37. Second degree murder. Cornell Law School Legal Information Institute. Updated in May 2022 and hosted at https://www.law.cornell.edu/wex/second_degree_murder
  38. https://www.justice-firm.com/grand-larceny.html
  39. Why Shoplifting Is Now De Facto Legal In California Published on 3 August 2021 and hosted on https://www.hoover.org/research/why-shoplifting-now-de-facto-legal-california
  40. Supra

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