I suppose that, growing up, I was some kind of bookworm. I liked
tarrying in libraries and reading. Reading any book that I could
lay my hands on. Especially English and American Literature. So,
was it that I read “Rip Van Winkle”.
The book was a short story by an American Author called
Washington Irving. He wrote about a Dutch-American villager who
fell asleep in the Catskill Mountains and slept for 20 years. While
he slept, the American revolution took place. But Rip Van Winkle
missed it all, because he was asleep. He slept through a
revolution.
Like 1800s America, a revolution has been taking place in
Nigeria criminal justice administration since 2015, but many people
in law enforcement, like Rip Van Winkle, are sleeping through
it.
It is common knowledge that Nigeria security agents routinely do
not investigate criminal cases. This is because they lack knowledge
or competence in modern crime detection methods, like surveillance,
staking out, crime scene investigation, forensic investigation, DNA
bio science, polygraph tests to determine the veracity of suspects,
etc. Majorly, Nigeria security agents rely on suspects’ confessions
to initiate and obtain convictions in criminal prosecutions.
This reliance on confessional statements produced officers who
perceived it as an acceptable strategy to obtain confessional
statements from suspects at all costs and using all and any
methods. Consequently, in most criminal trials where the
Prosecution seek to tender a confessional statements, it is
familiar for the Defence Counsel to object to the admissibility of
confessional statements sought to be tendered in the case, on
grounds of duress, use of violence and promises as a basis for the
making of the confessional statements.
Then the Court will conduct a trial within the main trial to
determine whether the confessional statements will be admissible as
voluntarily made or not. Many bloody battles in criminal trials
were fought on this point.
Hitherto, all that the Prosecution needed to prove was that the
Accused person made the confessional statements voluntarily. The
principal method of proof was through the evidence of the
Investigating Police Officer and other police officers who will
merely give oral evidence that the accused was never tortured. The
accused person will contradict the assertions equally by oral
evidence only, for it will be almost impossible for the accused to
obtain independent evidence to corroborate his story of torture at
the police station.
Significantly, during the often lengthy period between
investigation and trial, wounds would have healed and evidence of
torture permanently erased, witnesses at police station may either
be unwilling to come forward or may have moved on since the
tortuous events at the police station.
Under those circumstances, the question which usually loomed in
the courtroom is who the court would believe as between the
supposedly public spirited police officers who presumably wants to
bring a criminal to justice, or the supposed ‘criminal’ himself?.
Mostly, the Courts prefer to believe the testimonies of the angelic
police officers.
But all that changed with the promulgation of the Evidence Act
2011 and the Administration of Criminal Justice Act and
domestication in several states in the Nigerian Federation.
The revolutionary criminal procedure law is now two
fold:
1. That the burden on the Prosecution is to prove the
voluntariness of the confessional statement BEYOND REASONABLE
DOUBT. (Capitalisation mine). Hence, where there is any doubt, such
doubt must be resolved in favour of the Accused person and the
confessional statement will be rejected. See section 29 (2) of the
Evidence Act, 2011.
2. That whenever a suspect volunteers to give a confessional
statement in writing, such a confessional statement must not be
taken from the suspect unless and until a lawyer for the suspect is
present. The evidence of the lawyer’s presence must be given in
court. Alternatively, the confessional statement must be video
recorded and tendered in Court.
See the following provisions, amongst others:
A. Sections 15 (4) and 17 (1) and (2) of the ACJA. By the way,
the word “may” which appears in Section 15 (4) as regards recording
of the confession in a video format has been held not to confer a
discretion on the police, but a directory, mandatory, imperative
command. See Nwakuche Jerry Nnajiofor v FRN (2018) LPELR-43925.
B. Sections 9(3) of the ACJL of Lagos State, 2015.
C. Sections 15 (4) and 17 (1) of the ACJL of Delta State
2017.
D. Sections 15 (4) and 17 (1), (2) and (3) of the ACJL of Edo
State, 2016.
In Zhiya v People of Lagos State (2016) LPELR – 40562 (CA), the
Court of Appeal held that unlike the Judges Rules, the provisions
of the ACJA have the force of law. Non compliance with the above
provisions would automatically throw a purported confessional
statement out of the window. Yes, those were the words of the
eminent Justices of the Court of Appeal.
In conclusion, the question that you should answer is whether
the security agents are complying with the mandatory provisions of
the Law by insisting on the presence of Defence lawyers or using
video recording equipment when taking or recording confessional
statements from suspects. If the answer is “No”, then such a
written confessional statement will be rejected in evidence and
thrown out of court.
I rest my case.
(Dele Igbinedion Esq. is a lawyer and Author of
“A Guide to Successful Human Rights Litigation-Vol 1”. For comments
or questions about this or any other article, Telephone or Whatsapp
08059863558)