Posted by By Josef Omorotionmwan on
At the theoretical level of discourse, it is easy to claim that in this country and, for that matter, in most democratic systems, the law presumes that the defendant is innocent until proven guilty.
At the theoretical level of discourse, it is easy to claim that in this country and, for that matter, in most democratic systems, the law presumes that the defendant is innocent until proven guilty. The law also proceeds from there to place the burden of proof on the prosecution, in which case, insufficient or inconclusive evidence and reasonable doubt are to be resolved in favour of the defendant.
The assumption here is projected on the conviction that it is better to be sure that the innocent ones go free at the cost of letting a few of the guilty escape than to strive to punish all the guilty at the cost of unjustly punishing a few of the innocent.
In actual practice, though, one soon gets the impression that the system operates in reverse order: the suspect is treated as if all the constitutional guarantees were really not meant for him. At every turn, he is told in visible actions that he remains guilty until he can prove that he is innocent.
All through the criminal justice maze, he is confronted with thick layers of statements that he openly knows are untrue. At the very entrance of the police station, which is invariably his first encounter with the system, there is a bold notice telling him that “BAIL IS FREE”. All too soon, he finds out that even for minor infractions, bail costs between N2000 and N5000, depending on your negotiating power. One thing I have discovered in life is that each time people begin to volunteer unsolicited information they fall into trouble.
Maybe the police should learn from this and do away with all those notices “Bail is free” so that from the very beginning it will not continue to be portrayed as an organization founded on falsehood.
It is even worse for the suspect if he has to be detained while his matter is being investigated. During the period of his detention, he has to be fed on nine Naira a day (NTA – Benin Channel 7 News, August 31, 2005). This translates to three Naira per meal and by the time you put two essential factors – the Nigerian and the police factors – into the equation, it may mean that he has to be fed on less than one Naira per meal in a country where N100 can no longer see anyone through the average “mama put” joint, even where one chooses to eat “without”. This is a cruel and an unusual punishment for a man who may be later told that he has no case to answer.
Ordinarily, the law guarantees the citizen immunity from arbitrary arrest. We are told that he may be arrested only in pursuance to a warrant issued by a judge, a Justice of Peace or upon a policeman’s belief, supported by some valid evidence, that the suspect may have committed a crime. Where his arrest satisfies neither requirement, section 35 (6) of the Constitution of the Federal Republic of Nigeria, 1999 stipulates, “Any person that is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person….” Unarguably, this provision is quite elegant on the pages of our Constitution but in spite of it, there is the open secret that as yuletide approaches, unsuspecting youths, mainly those in the artisans category get rounded up and dumped in police cells for the purpose of bailing themselves with various amounts. In fact, the more incriminating the frame-up is made to look, the higher the amount of bail.
As soon as the suspect gets to the police station, two important provisions become operational: firstly, section 35(2) of the 1999 Constitution provides, “Any person who is 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 own choice”. The Constitution is increasingly beginning to look elitist. The ordinary citizen would not have the guts to insist on this right. In fact, legal representation is not even available to him in the first place.
Secondly, section 35(3) of the Constitution stipulates that any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention. This guarantees the suspect against being arrested and locked up by the police for weeks while they decide what crime he has committed. In fact, where he is not promptly charged with a crime, he can file a writ of habeas corpus, which compels a judge to hold a hearing to determine the charge against the suspect. If the judge decides that the detention is unlawful, he orders the suspect’s immediate release, after which he can ask for damages for the unlawful arrest. In essence, the writ of habeas corpus is a safeguard against preventive detention and imprisonment without trial.
Again, in actual practice, the average citizen in this country would not insist on this right. It is, therefore, not unusual to find cases where the suspects are locked up and the key literally thrown into the river, until years later, in the case of prison detention, when perhaps the chief judge’s team comes calling on the periodic visitation. Thousands of our citizens are languishing in various penitentiaries across the land on the so-called nebulous holding charges. Where then is the constitutional guarantee?
There is also the prohibition of coerced confession. This means that the suspect cannot be forced to give testimony that might be used to convict him. This is called self-incrimination. The idea here is that the prosecution must be able to prove its case without the cooperation of the suspect. In actual practice, though, there is no telling what happens at the police station. On their part, the prosecutors have a way of cowing the defendant into submission: the plea bargaining process for instance, requires that the defendant admits committing the crime so as to get immunity from prosecution. The tactic is mainly employed to get petty criminals, usually first offenders, to testify against bigger criminals.
The 1999 Constitution outlaws ex post facto laws as section 36(8) provides, “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”. Even beyond the police and the courts, this is one of the provisions of the constitution most susceptible to abuse. As an instance in Edo State, the Local Government Law 2000 gave a three-year tenure to local government functionaries but just recently, the State House of Assembly passed an amendment to that law, reducing the three-year term to two years, with retrospective effect on the incumbent local government functionaries, provisions of the said section 36(8) of the Constitution, notwithstanding.
Even if this amendment is a nullity ab initio, the mental anguish it has caused the incumbent local government functionaries can never be fully atoned.
The list of rights available to the suspect is virtually endless. Effort must be made to educate Nigerians on these rights. We must mention, however, that stretched to the limits, with the endless range of rights, we soon create an obvious dichotomy between individual rights and collective needs: We want law enforcement agencies to successfully apprehend and prosecute the criminal. At the same time, we are giving the criminal a full range of rights. Whatever we do to promote one certainly jeopardizes the other. This is the type of interest-balancing situation within which our justice system has to exist. All we are saying is: Let who is balancing, balance well!
• Hon. Omorotionmwan is a public affairs analyst, based in Benin-City
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