Video Recording of Confessional Statements Under Section 15 (4) of the Administration of Criminal Justice Act (ACJA) is Mandatory and Compulsory

By Hon. Justice Alaba Omolaye-Ajileye, PhD

  1. Introduction 

I have been invited by the Bwari Branch of the Nigerian Bar Association (NBA), to share my bench experience, within a space of fifteen minutes, on the topic: Administration of Criminal Justice Act, 2015: Appraising the Challenges of Implementation Towards an Efficient Justice Administration. An erudite and highly cerebral scholar, acknowledged as one of the draftsmen of the Act, Prof. Yemi Akinseye-George, SAN, has just delivered the lead paper. His admirable and scholarly work: Administration of Criminal Justice Act (ACJA) 2015 with Explanatory Notes Cases, remains unbeatable. 

Given the very limited space of time allocated to me, I have decided to make my paper as short as I can, embodying my reflections on a very controversial provision of ACJA. It is the electronic recording of confessional statements under Section 15(4) of ACJA (Section 26 (4) of the Kogi State Administration of Criminal Justice Law, 2017), with the attendant issues relating to their admissibility. I have chosen this controversial topic because of my passion for the development and advancement of the law of electronic evidence in Nigeria in the past twelve years. 

It is without doubt that the criminal justice system in Nigeria has undergone tremendous transformation in the recent past. The transformation process was further affirmed in the provisions of the Administration of Criminal Justice Act, 2015 (ACJA) which have been replicated in many states of the federation, including Kogi State.  Kogi state enacted its Administration of Criminal Justice Law (ACJL) in 2017. The objectives of ACJA are not far-fetched. The law seeks to ensure a coordinated, efficient, effective, and consultative approach in the administration of the criminal justice system. In specific terms, Section 1(1) of the Act reads:

The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal institutions, speedy dispensation of justice, protection of the society from crimes, and protection of the rights and interests of the suspect, the defendant and the victim.

In Nnajiofor v. FRN (2019) the purpose of the Act in protecting the tripartite interests of the defendant, victim, and society was reiterated by the Court of Appeal.   

The enactment of the Administration of Criminal Justice Act, 2015 (ACJA) has been well applauded in various quarters. The Law Pavilion describes the Act as “revolutionary” in nature. The Act, according to Saviour Akpan, “introduces innovative provisions  that not only promote the speedy dispensation of justice but capable of restoring public confidence in the Nigerian justice system.” The Court of Appeal (Per Ugo, JCA.,) also acknowledges the “revolutionary innovations” introduced by the Act into our administration of criminal justice system. While not attempting to deny the progressive and proactive nature of the Act, the point must be underscored here that the fact that legislation contains lofty provisions does not guarantee its enforcement. Enactment of law is one thing but the main issue arises in its implementation, which is another matter entirely. Poor implementation of laws often leads to inefficiencies and ineffectiveness.  

The Nigerian criminal justice system is comprised of multiple interrelated pillars, which, essentially, consist of the law enforcement agencies, prosecutors, the judiciary, and the correctional services. These pillars are fashioned to support the ideals of legal justice, which necessarily protect the defendants, the society and ensure that victims of crimes are not subjected to secondary victimization.  Each of these agencies possesses its practitioners, whom I refer to here as stakeholders, with different expectations, but are required to coordinate and cooperate efforts to achieve a common purpose, which is, justice. One of the greatest challenges bewildering the criminal justice system in Nigeria can easily be identified as lack of synergy between the pillars of justice. There are provisions in ACJA which acknowledge the need to promote cooperation and coordination among the agencies but, in practical terms, it is more of a mirage.  Section 1 (2) of ACJA directs that the courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of the Act for the realization of its purposes. The implication of this is that the different agencies of administration of criminal justice evolve a harmonious working relationship. Regardless of the perspective of the stakeholders, all of them meet on the common ground of the court of law. This underscores the significance of the judiciary within the hierarchy of the criminal justice system. 

The judiciary, that is, the court system, plays a critical role in the criminal justice system. It is uniquely placed to ensure that relevant laws are interpreted through the lens of justice and effectively enforced. It holds perpetrators of crimes accountable and provides reparations for victims. The judiciary is responsible for ensuring that the defendant’s right to a robust defence does not eclipse the victim’s rights to be treated with dignity and respect or the rights of the society to be protected. 

  1. Electronic Recording of a Defendant’s Confessional Statement

It is a common feature in criminal trials that whenever there is a confessional statement, the high probability is that there would be an objection to its admissibility on grounds of involuntariness. Such a confessional statement is either denied or disowned by the defendant. The common allegation is that the defendant made the confessional statement under one form of oppression or another. In Owhoruke v. Commissioner of Police, Rhodes-Vivour, JSC., (as he then was) observed that confessional statements are “most times beaten out of suspects” and the courts usually admit such statements, as counsel and the accused are unable to prove that such statements are made involuntarily. 

Objections to the admissibility of confessional statements constitute one of the greatest challenges to criminal trials. A court before whom the objection is raised is constrained to proceed to test the voluntariness or otherwise of the statement through the process of “trial-within-trial”, as stipulated under Section 29(2) of the Evidence Act, 2011, which is a mini-trial on its own. This involves that the main trial is put in abeyance and the diversion of attention to the subsidiary issue of determining the admissibility or otherwise of the confessional statement. Inevitably, this process runs into weeks, and, in some cases, months. The resultant effect is that the trial is prolonged and delayed.

To achieve its noble objective of speedy dispensation of justice, the Administration of Criminal Justice Act, 2015, intervenes, vide Section 15(4), which provides thus:

Section 15(4) “Where a suspect who is arrested with or without 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 retrievable video compact disc or such other audio visual means” 

As simple as the above provision might appear to be, it has generated so much fuss within judicial circles that its true purport remains an illusion. The interpretation of the subsection has engendered so many conflicting judgments, particularly, from the Court of Appeal, such that trial courts are finding the application of the law most frustrating on grounds of uncertainty. I will use two conflicting Court of Appeal decisions to illustrate the chaotic situation. They are, Oguntoyinbo v. FRN (2018) and Nnajiofor FRN (2018).  

  1. Oguntoyinbo v. FRN 

In Oguntoyinbo v. FRN, one of the prosecution witnesses sought to tender alleged confessional statements of the appellant, obtained during investigation, but the appellant counsel raised an objection to the admissibility of the said statements on the ground that they were obtained involuntarily and through oppression. Consequently, the learned trial judge ordered that a trial-within- trial be conducted in accordance with Section 29(2) of the Evidence Act, 2011 so as to determine the voluntariness or otherwise of the statements. The trial court ended up admitting the document, against a further objection that the alleged statements of the defendant were not electronically-recorded as required under Section 15(4) of the Evidence Act, 2011. In a split decision of 2-1, the Court of Appeal, (Coram: Owoade, Barka, JJCA., & Ugo, JCA., disenting), held that the use the word “may” in the subsection makes the requirement permissive. In the majority opinion scholarly rendered by His Lordship, Owoade, JCA., it was postulated:

I perfectly agree with the learned trial Judge not only on the permissiveness of the provision of Section 17(2) but also the portion of Section 15(4) which says the taking of the statement which shall be in writing “may be recorded electronically on a retrievable video compact disc or such other audio visual means.”  I think to his credit, the draftsman of the ACJA has carefully and deliberately used the words ” shall” and “may” sometimes in the same text to pointedly make a distinction between statements/sentences that are mandatory and those that are permissive. The ACJA being a teleological enterprise, its draftsman dexterously mixes the use of the command word ” shall ” and the permissive word “may” for textual accomplishment. This is to my mind, a recognition of the fact that the ACJA itself is largely a legislation in the realm of the ideal, containing provisions that are for now clearly enforceable and sometimes provisions that could only hope for enforceability in the nearest future. All however, to fulfill its grand purpose “to ensure that the system of administration of Justice in Nigeria promotes efficient management of Criminal Justice institutions, speedy dispensation of Justice, protection of the society from crime and protection of the rights and interests of the suspect, the Defendant and the victim.” In any event, the traditional commonly repeated rule is that “shall ” is mandatory and “may” is permissive. Mandatory words impose a duty; permissive words grant discretion. See: NIGERIAN NAVY VS. LABINJO (2012) 17 NWLR (PT. 1328) 56 (SC).

  1. Nnajiofor v. FRN

A similar factual situation arose in Nnajiofor FRN (2018) but a different conclusion was reached by another bench of the Court of Appeal (Coram: Sankey, Otisi, & Ekanem, JJCA). In that case, in the course of the evidence-in-chief of PW2, the prosecution sought to tender the appellant’s extra-judicial statement. The Appellant’s counsel objected to the admissibility of the statement. The objection was on the basis that the statement was obtained contrary to Section 29 of the Evidence Act, id est, that it was involuntary. The trial court directed a trial-within-trial. During the trial-within-trial, the prosecution called four witnesses while the appellant testified for himself. Written addresses were filed in which the appellant contended, inter alia, that the respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 in taking the statement of the appellant. The prosecution took the stand that the provisions were directory and not mandatory. The trial court, agreed and held that the word “may’ used in Section 15(4) of the ACJA 2015 is permissive and not mandatory and so the non-observance of the conditions stipulated therein was not fatal to the admission of the statement.

In rejecting the position of the trial court, the Court of Appeal, per Ekanem, JCA., articulated elaborately on the point thus:

It has been established by a long line of decided cases that the Courts would interpret the word “may” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen… Sections 15(4) and 17(2) of the ACJA impose a duty on public functionaries (police officers and other officers of any law enforcement agency established by an Act of the National Assembly and this includes the EFCC) to record electronically on retrievable video compact disc or such other audio visual means, the confessional statements of a suspect and to take statements of suspects in the presence of the person/s set out in Section 17(2) . The provisions are for the benefit of private citizens who are suspected of committing crimes so that the enormous powers of the police or other law enforcement agencies may not be abused by intimidating them or bullying them in the course of taking their statements. I should also add that the provisions also have another side to it, viz; to protect law enforcement agents from false accusation of coercion in taking statements from suspects. The use of the word “may” in those provisions are in those circumstances mandatory and not permissive.   

Otisi, JCA., added her erudite voice to the debate and reached the same conclusion, holding as follows:  

One of the primary functions of the police is to investigate all crimes which are brought to their notice and wherever possible, to bring the perpetrators before the Courts, together with all the relevant evidence. Controversies associated with methods used by law enforcement agents in the interrogation of suspected persons and the value of evidence obtained thereby has always been a source of judicial and societal concern. In an attempt to achieve a balance between the need to ensure that law enforcement agents are enabled to investigate crimes thoroughly and the need to ensure the protection of the innocent as well as the rights of the suspect, Judges in England developed what was known as ‘Judges’ Rules’ meant to guide the police on how far they should go when interrogating or taking statements from suspects or prisoners. These Rules were not rules of law but more in the nature of rules of caution. They, in effect provided a code of behaviour for the guidance of the police in investigation. The purpose of the Rules was to insure as far as possible that all statements admitted in evidence, more so if confessional in nature, were obtained freely and voluntarily. The fact that the police have adhered to these Rules in their investigation of a crime would guide the Judge in determining the weight to be attached to any confessional statement made by the accused. Nevertheless, failure to observe the Rules would not, ipso facto, render the statement inadmissible, as long as the statement in issue was made freely and voluntarily; Ojegele v The State (1988) NWLR (Pt 71) 414, (1955) LPELR 2370 (SC), Kasa v The State (1994) 6 SCNJ 1, (1994) LPELR 1671(SC); Smart v The State (2012) LPELR-8026(CA); Eyop v state (2012) LPELR-20210 (CA); Babarinde v The State (2012) LPELR-8367(CA).

Certain provisions of Administration of Criminal Justice Act, 2015 (ACJA) are in the pattern of the Judges’ Rules and are aimed at providing a guide for the law enforcement officers and ensuring the protection of the innocent as well as the rights of the suspect… 
Unlike the case with the Judges’ Rules which were cautionary, the provisions of ACJA have the force of law. Non-compliance with these provisions would automatically throw a purported confessional statement out of the window; Zhiya v People of Lagos State (2016) LPELR-40562(CA). I therefore share the view that the provisions of Sections 15(7) and 17(2), as well as Section 9(3) thereof, which are for the benefit of a suspect, are mandatory.

It is clear that, at the core of the conflicting decisions of courts associated with the interpretation of Section 15(4) of ACJA, is the definitional possibilities of the word “may” used in the subsection. It is also interesting to find that the two conflicting standpoints solaced themselves in the stated objectives of the Act. 

My Reflections and Conclusion – Interpreting the word “may” contextually under Section 15(4) of ACJA   

Section 15 (2) of ACJA, for a proper appreciation, may be bifurcated into two. The first part mandates that “the taking and making” of a confessional statement “shall be in writing”, while the second part provides that the statement “may” be recorded electronically on a retrievable compact disc or such other audio-visual means. The mandatory nature of the word “shall” under Subsection (4) above would appear to have been duly acknowledged by a consensus of judicial opinions. The focus of the inquiry is, therefore, narrowed down to the effect of the use of the word “may” as it affects the electronic recording of confessional statements. Does Section 15(4) of ACJA make an electronic recording of confessional statements optional or compulsory and mandatory? 

From the elaborate illuminating opinions of the decisions of Their Lordships in both Oguntoyinbo v. FRN (2018) and Nnajiofor FRN (2018), which I duly respect, the conclusion can be drawn that, contextually speaking, the word “may” may be “may” (discretionary, permissive, and optional). The word “may” may also be “Shall” (compulsory and mandatory). 

Words used in statutes that are not statutorily defined are customarily given their ordinary meanings, usually derived from the dictionary. Thus, courts have often relied on regular dictionary definitions to ascribe literal meanings to words. Of course, it is well known that application of dictionary definitions is not always a clear course because many words have several meanings. That is why it is always important to allow context to guide the choice of meaning of words, where possible. A word in a statute may or may not extend to the outer limits of its dictionary meaning and definition. In the context of Section 15 (4) of the Administration of  Criminal Justice Act, (ACJA), I hold the humble view that, courts should go beyond the literal meaning of the word “may” and give effect to the broader purpose of the Act. It is one of the surest indexes of a progressive and proactive jurisprudence not to make a fortress out of the dictionary meaning of a word, but to remember that statutes always have some purpose or object to accomplish, whose imaginative discovery, which is the primary duty of the judex, is the surest guide to its meaning. In respect of ACJA, courts, in exercising their unquestionable power of interpretation of statutes, ought to give effect to the stated objectives of Act.

Accordingly, I align myself, most humbly, with the position in Nnajiofor FRN (2018),  that the word “may” in Section 15 (4) ACJA means “Shall” and imposes an obligation on the police officers and investigators to comply with the conditions prescribed therein. The police ought to see this as a challenge! The admirable and highly plausible prescription and proposition of Owoade JCA, describing ACJA as “a legislation in the realm of the ideal, containing provisions that are for now clearly enforceable and sometimes provisions that could only hope for enforceability in the nearest future,” can only lead to one question: When is the nearest future going to come? I think the nearest future is here. It is now! 

THANK YOU FOR LISTENING.


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