Is The Right Of Silence Being Observed In The Breach?

By Abubakar D. Sani, Esq.

Introduction

I believe that the fundamental right to silence/privilege
against self– incrimination guaranteed under Sections 35(2)
and 36(11) of the 1999 Constitution of the Federal Republic of
Nigeria is violated by the following statutory
provisions:

1. Sections 180(b),(g) & 183 (a) of the Evidence Act
   2011;
2. Section 35(3)(a),(c) & (d) of the National Drug Law
   Enforcement

Agency   Act.

iii.       Sections 27(1)
& 27(3)(c) of the Economic and Financial Crimes Commission Act
2004; and

2000. Section 28(1) & (10) of the Corrupt Practices and other
      Related Offences Act 2000.

This is because, in my view, they all compel suspects/persons to
make statements to such law enforcement agencies as the ICPC, EFCC,
NDLEA, during investigations conducted by such agencies and, in the
case of the Evidence Act, it permits the court to compel an accused
person to give evidence at his trial. I shall presently review
them, starting with the Evidence Act, 2011.

1. The Evidence Act, 2011

Sections 180(b), (g) & 183(a) of the Act
prescribe certain circumstances under which an accused person may
be compelled to give evidence at his trial. They provide as
follows: –

– Section 180(b):

“Every person charged with an offence shall be a competent
witness for the defence at every stage of the proceedings whether
the person so charged is charged solely or jointly with any other
person: provided that a person charged and being a witness in
pursuance of this Section may be asked any question in
cross-examination notwithstanding that it would tend to incriminate
him as to the offence charged”.

– Section 180(g):

^“A person charged and called as a
witness in pursuance of this Section shall not be asked and if
asked, shall not be required to answer any question tending to show
that he has committed or been convicted of or been charged with any
offence other than that which he is then charged, or is of bad
character unless:

1. the proof that he has committed or been convicted of such
   other offence is admissible evidence to show that he is guilty of
   the offence with which he is then charged;
2. he has personally or by his legal practitioner asked
   questions of the witnesses for the prosecution with a view to
   establishing his own good character or has given evidence of his
   good character or the nature or conduct of the defence is such as
   to involve imputations on the prosecutor or the witnesses for the
   prosecution; or

iii.      
he has given evidence against any other person charged with the
same offence”.

– Section 183(a) :

“A person charged with an offence and being a witness in
pursuance of Section 180 mav be asked and is
bound to answer anv question in cross-examination notwithstanding that it
would tend to incriminate him as to the offence charged”
(emphasis supplied)

I submit that the foregoing provisions are inconsistent with the
right to fair hearing guaranteed by Section 36(11)
of the 1999 Constitution which
provides that:

“No person who is tried for a criminal offence shall be
compelled to  give evidence at the trial”.

I submit that by offering to testify in his defence and giving
his evidence-in-chief, an accused person does not ipso
facto, waive or be deemed to have waived his fundamental right
not to be compelled to give evidence, even if it is under
cross-examination. In other words,  the mere fact that an
accused person has freely given evidence-in-chief, does not mean
that he can be compelled, subsequently under cross-examination, to
answer any question, as the provision of Sections
180(b),(g) & 183(a) of the Evidence Act prescribe. This is
because the trial of an accused person does
not end, until the rendering or delivery of a verdict:
OYEDIRAN vs REPUBLIC (1967) NMLR 122 at 125; this,
obviously includes when the accused is under cross-examination.

It has been held that fair hearing is an entrenched
provision of the Constitution which cannot be displaced by
legislation however unambiguously worded : L.P.D.C vs
FAWEHINMI (1985) 2 NWLR pt 7 pg. 300 at 370 per
Karibi-Whyte,J.S.C. It is also trite law that the
constitutional right of fair hearing cannot be compromised, waived
or lost by consent: ENIGWE vs AKAIGWE (1992)2
NWLR pt. 225 pg 505 at 535, per Nnaemeka-Agu, JSC.; OGBA vs
THE STATE (1992) 2 NWLR pt 222 pg 162 at 197, per
Karibi-Whyte,J.S.C.

2. The National Drug Law Enforcement Agency
   Act

Section 35(3)(a), (c) and (d) of this Act
provides that: –

“Any person who-

1. knowingly fails to make full disclosure of his assets and
   liabilities

or

1. c) fails to answer any questions
   or
2. d) fails, neglects or refuses to make a declaration or
   furnish any information required in the Assets Declaration Form
   shall be guilty of an offence under this Act and liable on
   conviction to imprisonment for a term of ten years”

I submit that this provision evidently violates Section
35(2) of the 1999 Constitution which provides that:

“any person arrested or detained shall have the right to
remain silent or avoid answering any question until after
consultation with a legal practitioner or any other person of his
choice.”

3. The Economic and Financial Crimes Commission
   Act, 2004

Sections 27(1) & 27(3)(c) of the EFCC Act
 provide as follows, respectively:

• Section 27(1 ):

“Where a person is arrested for committing an offence under
this Act, such shall make a full disclosure of all his asset and
properties by completing the Declaration of Assets Form as
specified in Form A of the Schedule to this Act”.

• Section 27(3)(c):

“Any person who fails, neglects or refuses to make a
declaration or furnishes any information required in the
Declaration of Assets Form, commit an offence under this Act and is
liable on conviction to imprisonment for a term or not exceeding
five years”

I submit that each of these provisions is inconsistent with
Section 35(2) of the 1999 Constitution, as
aforesaid.

4. THE CORRUPT PRACTICES AND OTHER RELATED
   OFFENCES ACT 2000

Section 28(1) & (10) of this Act provide as
follows:

• Section 28(1):

“An officer of this commission investigating an offence
under this Act may:-

1. order any person to attend before him for the purpose of
   being examined in relation to any matter which may, in his opinion,
   assist in the investigation of the offence;
2. by written notice require any person to furnish a statement
   in writing made under oath or affirmation setting out therein all
   such information required under the notice, being information
   which, in such officer’s opinion, would be of assistance in the
   investigation of the offence”.

• Section 28(10):

“Any person who contravenes this Section shall be guilty of
an offence punishable with a term of imprisonment not exceeding 3
months”

5. Conclusion

• (i) Sections 180(b), (g) & 183(a) of the
  Evidence Act are inconsistent with the
  fundamental right of silence/privilege against self-incrimination
  guaranteed under Section 36(11) of the 1999
  Constitution. See OGUNSANYA vs THE STATE
  (20100 14 NWLR pt. 1213 pg. 349 at 362H, where it was held that
   a court of record cannot compel an
  accused person to testify or call a witness to testify in
  his defence and AHMED vs NIGERIAN ARMY (2011)
  INWLR pt. 1227 pg 89 at 1186, where it was held that an accused
  used person has the constitutional right to
  remain silent and leave the trial to the prosecution to
  prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a
  criminal offence is an inviolable one.

(ii).     Sections 27(1 ) & 27(3)(c)
of the EFCC Act, Section 35(3)(a),
(c)&(d) of the NDLEA Act and
Section 28(1) & (10) of the Corrupt
Practices and other Related Offences  Act are
inconsistent with the fundamental right to liberty under
Section 35(2) of the 1999 Constitution. See
UTTEH vs THE STATE (1992) 2 NWLR pt 223 pg. 253 @
274G & GIRA vs THE STATE (1996) 4 NWLR pt. 443 pg.
375 @ 386D, where the Supreme Court held that an accused person
is under our Constitution entitled to remain silent either during investigation or when he is being tried
in Court.

(iii).    It is always disturbing to discover any
anomaly between a statute/practice and the Constitution; it is
worse if such anomaly affects a fundamental right or civil liberty,
such as the right of silence or privilege against
self-incrimination highlighted above. Given the entrenched
principle of constitutional supremacy in our jurisprudence, it is
obvious that the aforesaid provisions of the Evidence Act, the ICPC
Act, the NDLEA Act and the EFCC Act need to be urgently reviewed,
lest we end up with a worse evil by continuing to apply their
otherwise salutary, well-intentioned, but – unfortunately – invalid
provisions.

ABUBAKAR  D.  SANI, Esq.

By Abubakar D. Sani, Esq.

Introduction

I believe that the fundamental right to silence/privilege
against self– incrimination guaranteed under Sections 35(2)
and 36(11) of the 1999 Constitution of the Federal Republic of
Nigeria is violated by the following statutory
provisions:

1. Sections 180(b),(g) & 183 (a) of the Evidence Act
   2011;
2. Section 35(3)(a),(c) & (d) of the National Drug Law
   Enforcement

Agency   Act.

iii.       Sections 27(1)
& 27(3)(c) of the Economic and Financial Crimes Commission Act
2004; and

2000. Section 28(1) & (10) of the Corrupt Practices and other
      Related Offences Act 2000.

This is because, in my view, they all compel suspects/persons to
make statements to such law enforcement agencies as the ICPC, EFCC,
NDLEA, during investigations conducted by such agencies and, in the
case of the Evidence Act, it permits the court to compel an accused
person to give evidence at his trial. I shall presently review
them, starting with the Evidence Act, 2011.

1. The Evidence Act, 2011

Sections 180(b), (g) & 183(a) of the Act
prescribe certain circumstances under which an accused person may
be compelled to give evidence at his trial. They provide as
follows: –

– Section 180(b):

“Every person charged with an offence shall be a competent
witness for the defence at every stage of the proceedings whether
the person so charged is charged solely or jointly with any other
person: provided that a person charged and being a witness in
pursuance of this Section may be asked any question in
cross-examination notwithstanding that it would tend to incriminate
him as to the offence charged”.

– Section 180(g):

^“A person charged and called as a
witness in pursuance of this Section shall not be asked and if
asked, shall not be required to answer any question tending to show
that he has committed or been convicted of or been charged with any
offence other than that which he is then charged, or is of bad
character unless:

1. the proof that he has committed or been convicted of such
   other offence is admissible evidence to show that he is guilty of
   the offence with which he is then charged;
2. he has personally or by his legal practitioner asked
   questions of the witnesses for the prosecution with a view to
   establishing his own good character or has given evidence of his
   good character or the nature or conduct of the defence is such as
   to involve imputations on the prosecutor or the witnesses for the
   prosecution; or

iii.      
he has given evidence against any other person charged with the
same offence”.

– Section 183(a) :

“A person charged with an offence and being a witness in
pursuance of Section 180 mav be asked and is
bound to answer anv question in cross-examination notwithstanding that it
would tend to incriminate him as to the offence charged”
(emphasis supplied)

I submit that the foregoing provisions are inconsistent with the
right to fair hearing guaranteed by Section 36(11)
of the 1999 Constitution which
provides that:

“No person who is tried for a criminal offence shall be
compelled to  give evidence at the trial”.

I submit that by offering to testify in his defence and giving
his evidence-in-chief, an accused person does not ipso
facto, waive or be deemed to have waived his fundamental right
not to be compelled to give evidence, even if it is under
cross-examination. In other words,  the mere fact that an
accused person has freely given evidence-in-chief, does not mean
that he can be compelled, subsequently under cross-examination, to
answer any question, as the provision of Sections
180(b),(g) & 183(a) of the Evidence Act prescribe. This is
because the trial of an accused person does
not end, until the rendering or delivery of a verdict:
OYEDIRAN vs REPUBLIC (1967) NMLR 122 at 125; this,
obviously includes when the accused is under cross-examination.

It has been held that fair hearing is an entrenched
provision of the Constitution which cannot be displaced by
legislation however unambiguously worded : L.P.D.C vs
FAWEHINMI (1985) 2 NWLR pt 7 pg. 300 at 370 per
Karibi-Whyte,J.S.C. It is also trite law that the
constitutional right of fair hearing cannot be compromised, waived
or lost by consent: ENIGWE vs AKAIGWE (1992)2
NWLR pt. 225 pg 505 at 535, per Nnaemeka-Agu, JSC.; OGBA vs
THE STATE (1992) 2 NWLR pt 222 pg 162 at 197, per
Karibi-Whyte,J.S.C.

2. The National Drug Law Enforcement Agency
   Act

Section 35(3)(a), (c) and (d) of this Act
provides that: –

“Any person who-

1. knowingly fails to make full disclosure of his assets and
   liabilities

or

1. c) fails to answer any questions
   or
2. d) fails, neglects or refuses to make a declaration or
   furnish any information required in the Assets Declaration Form
   shall be guilty of an offence under this Act and liable on
   conviction to imprisonment for a term of ten years”

I submit that this provision evidently violates Section
35(2) of the 1999 Constitution which provides that:

“any person arrested or detained shall have the right to
remain silent or avoid answering any question until after
consultation with a legal practitioner or any other person of his
choice.”

3. The Economic and Financial Crimes Commission
   Act, 2004

Sections 27(1) & 27(3)(c) of the EFCC Act
 provide as follows, respectively:

• Section 27(1 ):

“Where a person is arrested for committing an offence under
this Act, such shall make a full disclosure of all his asset and
properties by completing the Declaration of Assets Form as
specified in Form A of the Schedule to this Act”.

• Section 27(3)(c):

“Any person who fails, neglects or refuses to make a
declaration or furnishes any information required in the
Declaration of Assets Form, commit an offence under this Act and is
liable on conviction to imprisonment for a term or not exceeding
five years”

I submit that each of these provisions is inconsistent with
Section 35(2) of the 1999 Constitution, as
aforesaid.

4. THE CORRUPT PRACTICES AND OTHER RELATED
   OFFENCES ACT 2000

Section 28(1) & (10) of this Act provide as
follows:

• Section 28(1):

“An officer of this commission investigating an offence
under this Act may:-

1. order any person to attend before him for the purpose of
   being examined in relation to any matter which may, in his opinion,
   assist in the investigation of the offence;
2. by written notice require any person to furnish a statement
   in writing made under oath or affirmation setting out therein all
   such information required under the notice, being information
   which, in such officer’s opinion, would be of assistance in the
   investigation of the offence”.

• Section 28(10):

“Any person who contravenes this Section shall be guilty of
an offence punishable with a term of imprisonment not exceeding 3
months”

5. Conclusion

• (i) Sections 180(b), (g) & 183(a) of the
  Evidence Act are inconsistent with the
  fundamental right of silence/privilege against self-incrimination
  guaranteed under Section 36(11) of the 1999
  Constitution. See OGUNSANYA vs THE STATE
  (20100 14 NWLR pt. 1213 pg. 349 at 362H, where it was held that
   a court of record cannot compel an
  accused person to testify or call a witness to testify in
  his defence and AHMED vs NIGERIAN ARMY (2011)
  INWLR pt. 1227 pg 89 at 1186, where it was held that an accused
  used person has the constitutional right to
  remain silent and leave the trial to the prosecution to
  prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a
  criminal offence is an inviolable one.

(ii).     Sections 27(1 ) & 27(3)(c)
of the EFCC Act, Section 35(3)(a),
(c)&(d) of the NDLEA Act and
Section 28(1) & (10) of the Corrupt
Practices and other Related Offences  Act are
inconsistent with the fundamental right to liberty under
Section 35(2) of the 1999 Constitution. See
UTTEH vs THE STATE (1992) 2 NWLR pt 223 pg. 253 @
274G & GIRA vs THE STATE (1996) 4 NWLR pt. 443 pg.
375 @ 386D, where the Supreme Court held that an accused person
is under our Constitution entitled to remain silent either during investigation or when he is being tried
in Court.

(iii).    It is always disturbing to discover any
anomaly between a statute/practice and the Constitution; it is
worse if such anomaly affects a fundamental right or civil liberty,
such as the right of silence or privilege against
self-incrimination highlighted above. Given the entrenched
principle of constitutional supremacy in our jurisprudence, it is
obvious that the aforesaid provisions of the Evidence Act, the ICPC
Act, the NDLEA Act and the EFCC Act need to be urgently reviewed,
lest we end up with a worse evil by continuing to apply their
otherwise salutary, well-intentioned, but – unfortunately – invalid
provisions.

ABUBAKAR  D.  SANI, Esq.