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NOVEL PROVISIONS IN THE IMO STATE ADMINISTRATION OF CRIMINAL JUSTICE LAW, 2020 By Prof Obiaraeri, N.O., LL. B (Hons), B.L. (Hons), LL.M, Ph.D (Law), FHRI, FCAI, TEAW, KJW • Professor of Law/Former Dean, Faculty of Law, Imo State University, Owerri, Nigeria, • Former Fellow and Visiting Scholar, Human Rights Institute, Columbia University, New York, New York, USA, • Head of Chambers OBIARAERI, OBIARAERI, OBIARAERI & CO., 5 Ekwema Crescent, Owerri, Imo State, Nigeria Phone: +23480355244442; E-mail: profnoobiaraeri@imsu.edu.ng

BEING THE TEXT OF A PAPER PRESENTED AT A SPECIAL ASSIZES WORKSHOP ON ADMINISTRATION OF CRIMINAL JUSTICE LAW 2020 OF IMO STATE THIS 16 DAY OF SEPTEMBER 2020 AT
AHAJIOKU CONFERENCE CENTRE, OWERRI, IMO STATE, NIGERIA

INTRODUCTION
The Imo State Administration of Criminal Justice Law, No. 2 of 2020 (hereinafter abbreviated as “ISACJL, 2020)” came into effect on 11th day of March 2020 as a “Law to make provisions for the procedure to be followed in Criminal Justices cases in the High Court and Magistrates’ Courts in Imo State”. The four primary purposes of the ISACJL or gateway of the law are to ensure that the system of administration of criminal justice in Imo State-
(i) promotes efficient management of criminal justice institutions,
(ii) speedy dispensation of justice,
(iii) protection of the society from crime and
(iv) protection of the rights and interests of the suspect, the defendant, and the victim.

Structurally, the ISACJL, 2020 is divided into 47 (forty seven) Chapters and contains a total of 542 (five hundred and forty two) sections with 5 (Five) Schedules. The ISACJL, 2020 is a revolutionary legislation due to the paradigm shifts and reforms it has brought to criminal proceedings and with its coming into force a new vista in criminal justice administration has been ushered in Imo State. With the repeal of the Criminal Procedure Law in section 542 of the ISACJL, 2020, effective from the day it became operational, the courts, law enforcement agencies and other authorities or persons involved in criminal justice administration are mandated by compulsion to ensure compliance with the provisions of the ISACJL “for the realisation of its purposes.”

Without prejudice to the discussion that will follow hereunder, it can be quickly surmised that the wide range of procedural safeguards and fastrack mechanisms embedded in the ISACJL, 2020 are to ensure among other things that-
(a) criminal matters are speedily dealt with;
(b) congestion of cases in courts is drastically reduced;
(c) congestion of prisons is reduced to the barest minimum;
(d) persons awaiting trial are as far as possible not detained in prison custody for unreasonable length of time.

Against the foregoing backdrop, this presentation will attempt to spotlight and accentuate some of the novel provisions of the ISACJL, 2020. This is by no means exhaustive survey and can only serve as a useful guide for further discussions that will follow from other eminent contributions at this august occasion.

SOME NOVEL PROVISIONS OF THE ISACJL, 2020
For ease of comprehension, some of the notable innovative provisions of the ISACJL, 2020 will be identified and considered under the relevant chapters and sections where they were injected or introduced in the law.

Chapter 1 (sections 1 to 7) is titled “Preliminary”.
• In the Interpretation or definition section 3 of ISACJL, 2020, “adult” is clearly stated to mean a person who has attained the age of eighteen years or above while the nomenclature “defendant” is deployed instead of erstwhile “accused” to mean a person against whom a criminal charge or complaint is brought before the court. The general tenor of the ISACJL, 2020 puts human dignity first beginning with the adoption of the word “defendant” instead of accused and extending to its robust provision for humane treatment during arrest.

• We also noted the repetition of some words, terms or phrases in the interpretation section like “defendant”, “division”, “federal law”, “felony”, and “criminal code”. No doubt that this repetition is not deliberate. This must be the proverbial “printer’s devil” rearing its ugly head in a beautiful document.

• Under section 5(3) of ISACJL, 2020 in the absence of any express provisions in the ISACJL, 2020, the Court has power to apply any procedure that will meet the justice of the case.

CHAPTER 2 (sections 8 to 36) deals with Arrest
The ISACJL has enlarged the canvass of interests protected in criminal matters from erstwhile three to four by making copious provisions for safeguarding the rights of suspects in criminal matters. These four protected interests are those of the suspect, the defendant, the State and the complainant.

• Chapter 2 provisions deal extensively with procedure for arrest, search of arrested person and restates the constitutionally guaranteed rights of a defendant in section 36 of the 1999 Constitution as amended.

• Specifically, section 9 of the ISACJL, 2020 provides that no person shall be arrested in the stead of another. This is good and commendable.

• Section 11(6) of ISACJL, 2020 provides for the first time that where a person or officer of any agency violates the provisions of the ISACJL in the course of an arrest and investigation, he shall be personally liable to pay compensation to the person(s) or any injured person(s) as may be determined by the court.

• The provisions of section 20(3) of the ISACJL, 2020 is clear on this and the compensation awarded the victim shall be paid by the direct deduction from the salary of the particular Police Officer. This will put a stop to malicious arrests and vexatious prosecution.

• Section 12(1) of ISACJL, 2020 contains a proviso that whenever it is necessary to search a person, the search shall be made by a person of the same gender with a sense of decency.

• Section 17(1)(d)(v) of ISACJL, 2020 authorise that when a person is arrested, his identification particulars like physical measurement, photograph, finger print impressions can be taken including but not limited to DNA samples. Section 17(2) of ISACJL, 2020 further provides that the process of recording shall be concluded within a reasonable time, not exceeding forty-eight hours. This is intended to check prolonged pre-trial detention in the guise of recording the personal data of the arrested person.

• Section 18(2) of ISACJL, 2020 provides that where a person arrested with or without warrant volunteers to make a confessional statement, the Police shall ensure that the making and taking of such statement is recorded on video or other retrievable electronic device. Where there is no video facility, the said statement shall be made in writing in the presence of a private legal practitioner or any other person of his choice. This is mandatory as the operative word used here is “shall”.

• The Legal practitioner or any other person referred to in section 18(2) above shall also endorse with his full particulars an indication of having witnessed the recording thereof.

• Section 19(1) of ISACJL, 2020 provides for the establishment of a Central Criminal Record Registry at the headquarters of the State Police Command. Under section 19(2) of ISACJL, it shall be the duty of the Chief Registrar of the Courts in Imo State to transmit the decision of the courts in all criminal trials at the Central Criminal Record Registry within sixty days of delivery of final judgment.

• Under section 19(3) of ISACJL, where there is default by the Chief Registrar to transmit the records within thirty days after judgment, this attracts appropriate disciplinary measures by the Judicial Service Commission while under section 19(7) of ISACJL, such a misconduct by a Police Officer or security officer shall be handled by the appropriate organ responsible for his disciplinary measures.

• Another novel provision relates to the establishment of Forensic Laboratory at the State Police Headquarters or any appropriate location under section 19(8) of the ISACJL, 2020.

• Section 31 of ISACJL, 2020 mandates the Commissioner of Police in Imo State and the head of every agency authorised by law to make arrest within the State to remit quarterly to the Attorney-General of Imo State, a record of all arrests made within the State with or without warrant failing which this is treated as a misconduct to be dealt with in accordance with applicable disciplinary procedure of the agency concerned.

• As a follow up, section 31(4) of ISACJL, 2020 mandates the Imo State Attorney-General to (shall) establish an electronic and manual database of all records of arrested persons in the State. Nothing is said on what will happen in the event of failure, refusal or neglect on the part of the office of Imo state Attorney General to maintain the said electronic and or manual database.

• Section 35(1) of ISACJL, 2020 requires a Police Officer in charge of a Police Station or an official in charge of an agency authorised to make arrest to report to the nearest or Supervising Magistrate on the last working day of every month all cases of persons arrested without warrant and to explain whether they have been admitted to bail or not and with detailed particulars of the arrested person in terms specified in section 17 of ISACJL, 2020.

• Under section 35(3) of the ISACJL, 2020 the Magistrate shall on receipt of the reports of arrest made without warrant forward them to the Imo State Justice Reform Sector established under section 526 of the ISACJL, 2020.

• Under section 35(5) of the ISACJL, 2020, where no report is made in accordance with section 35(1) of ISACJL, 2020, the Magistrate is still under a duty to still report to the Chief Judge and the Attorney-General for appropriate remedial action.

• Section 36 of ISACJL, 2020 empowers the Chief Magistrate or a designated Magistrate for that purpose by the Chief Judge within the Division to, at least every month, conduct an inspection of Police Stations or other places of detention within his territorial jurisdiction other than the Correctional Centre/facility (prisons). The numerous things the Magistrate can do to fastrack the administration of criminal justice on such monthly visit are listed in section 36(2) and (3) of ISACJL, 2020. Failure, refusal or neglect or default of an Officer in charge of a Police Station or official in charge of an agency authorized to make arrest to comply shall be treated as a misconduct to be dealt with by the Police or other authorities responsible for imposing disciplinary measures on the defaulting official.

CHAPTER 5 (sections 87- 120) deals with Bail and Recognizances.
• Section 87(1) of ISACJL, 2020 sets a twenty-four-hour timeline for admitting to bail by the detaining authority or agency of a person who has been taken into custody without a warrant for an offence other than an offence punishable with death if it will not be practicable to bring such person before a Magistrate having jurisdiction with respect to the offence charged. Where the offence appears to the officer to be of a serious nature, discharge the person upon his entering into a recognizance with or without sureties but if retained in custody, he shall be brought before a court having jurisdiction with respect to the offence or empowered to deal with such person within 24 hours whether or not police inquiries or investigation activities are completed.

• Section 89 of ISACJL, 2020 contains a clear-cut classification of bail to the effect that in offences punishable with death, only the High Court may admit to bail, in offences punishable with life imprisonment, bail may be granted by a Chief Magistrate and or a High Court. In other felonies punishable with other terms of imprisonment, bail may be granted by a Magistrates’ or a High Court.

• Creation of bail registers in the specific court, divisional bail register in all judicial divisions and central bail register at the State Judiciary Headquarters hosted in the Office of Director of Litigation is another novel provision found in section 89(d),(e) and (f) of ISACJL, 2020 which requires the maintenance a bail register showing details of the defendant, offence charged, the conditions of bail, names, addresses and particulars of sureties and other relevant information.

• Section 91 of ISACJL, 2020 imposes a novel duty on officers in charge of police stations to make quarterly reports to the nearest Magistrate of cases of all persons arrested without warrant within the limits of their respective stations disclosing whether such persons have been admitted to bail or not. The Magistrate shall notify the Chief Registrar of such report who shall forward the same to the Chief Judge for necessary action.

• Specifically, the law contains liberal provisions on granting bail. Thus, section 93(2) of ISACJL, 2020 enacts that where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit, admit him to bail. Again, section 93(3) of ISACJL, 2020 enacts that for any other form of offence other than those relating to death, the court shall admit the defendant to bail, unless it sees good reason to the contrary.

• Section 97 of ISACJL, 2020 deals with sureties and specifically enacts in commendable novel terms in 97 (3) thereof that no person shall be denied or prevented from entering into any recognizance or standing surety or providing any security on the ground of gender. This is forward looking and consistent with Goal 5 of the SDG- Gender Equality.

• Section 119 of ISACJL, 2020 deals with powers of the Chief Judge to make a regulation for registration and licensing of corporate bodies or persons to act as Bondspersons within the jurisdiction of the court in which they are registered and creates an offence for contravention of the licence or engaging in bail bond services without registration and licence in section 119(3) of the ISACJL, 2020.

• Section 120 of ISACJL, 2020 empowers a Bondsperson to arrest a defendant or suspect who is absconding or who he believes is trying to evade or avoid appearance in court.
CHAPTER 6 (sections 121- 158) deals with Enforcing Appearance in Court of Defendant and Witnesses.

• One significant novel provision is the power of the Chief Judge of Imo State to make regulations or Practice Directions on the use of electronic mails in service of summons or other processes under the ISACJL, 2020. This is a significant milestone or window that can be used to usher in e-practice in criminal proceedings.

• Section 148 of ISACJL, 2020 deals with power to dispense with personal attendance of defendant in certain cases. Section 148(1) of ISACJL, 2020 provides that “Whenever a court issues a summons in respect of any offence for which the penalty is a fine not exceeding ten thousand Naira or imprisonment for a term not exceeding six months or both, the court, on application of the defendant: (a) may dispense with the personal attendance of the defendant where the offence is punishable by fine or imprisonment or both; and (b) shall dispense with personal attendance of the defendant where the offence is punishable by fine only, if the defendant pleads guilty in writing and so pleads through his legal practitioner or agent.”

• Section 152(1) is emphatic that the State shall bear expenses for medical and other bodily examination. Hence, section 152(3) of ISACJL, 2020 makes it a criminal offence for medical personnel appointed to conduct a medical examination including autopsy to refuse to do so or demands any payment from either the complainant or defendant. Upon conviction, such a medical personnel shall be liable to two months’ imprisonment or two hundred thousand Naira fine in lieu of imprisonment or both.

• Section 153(1) of ISACJL, 2020 establishes a special unit in the office of the Chief Registrar of the High Court called Witness Support Unit with detailed responsibilities as listed in section 153(2) of ISACJL, 2020.

CHAPTER 7 (sections 158 to 166) deals with Remand in Certain Cases.

• Section 158 of ISACJL, 2020 provides that where bail is refused or not granted to the defendant, the court shall as far as practicable hear the matter from day to day. Note this novel provision against the momentous provision of section 257(1) of ISACJL, 2020 that “Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial”.
CHAPTER 9 (sections 167 to 172) deals with Control of Criminal Proceedings.

• This restates the general powers of the Attorney-General to enter nolle prosequi in criminal proceedings at different stages of the trial in sections 168 and 169 of ISACJL, 2020. However, a novel provision is found in section 170 of ISACJL, 2020 where a Law Officer may, where any charge of an indictable offence is being proceeded with summarily by a Magistrate, by a directive in writing under his hand, apply to such Magistrate to stop further proceedings and to transmit the case file and all statements and documents in the case to the Attorney- General for the purpose of preparing the proof of evidence in respect of the charge with a view to preferring an information.

CHAPTER 10 (sections 173 to 192) deals with Institution of Criminal Cases generally.

• Section 180(2) of ISACJL, 2020 require that the charge sheet filed by the prosecution shall be served on the defendant within seven days of its being filed or such time as the court may allow and under section 180(3) of ISACJL, 2020 the trial before a Magistrate Court shall commence not later than thirty days from the date of filing the charge and be concluded within a reasonable time. Any default in keeping to the allowed timeline of thirty days for commencement of trial or completion of trial of charge outside the timeline allowed in section 258 of ISACJL, 2020 shall be reported to the Chief Judge and the reasons for failure adduced for further directive of the Chief Judge.

• Section 181 of ISACJL, 2020 prescribes novel provisions on front loading of processes in the Magistrate Court. Under section 181 (1) of ISACJL, 2020, upon filing the charge sheet in the Magistrate Court, the prosecution shall serve on the Defendant or his Counsel all documents and description of material exhibits it intends to rely on in the prosecution of the case and under section 182(2) of ISACJL, 2020, the Defendant shall serve on the Prosecution on demand all documents and materials it intends to rely on for his defence within fourteen days of service on him by the Prosecution.

• With respect to prosecution of offences, section 182 of ISACJL, 2020 regulates who can prosecute offences in any court in Imo State but whittles down and limits the power of a Member of the Nigerian Police with respect to offences, which on conviction may be punished with imprisonment not exceeding one year under section 182(d) of ISACJL, 2020. Furthermore, prosecution can be undertaken by any other person authorised by law in the State to prosecute offences under such law.

• Section 192(a)(i) and (ii) of ISACJL, 2020 restates that trials shall be he held in the High Court only on the information filed by a Law Officer or a Private Prosecutor or Legal Practitioner in the Nigeria Police force or by the Attorney-General.

• Under section 183(1) of ISACJL, 2020 the State Controller of Correctional Services shall make quarterly returns to the Chief Judge and to the Attorney-General of all persons awaiting trial held in custody within the State for a period beyond 180 days from the date of arraignment.

CHAPTER 14 (sections 223 to 232) deals with Remand and Other Interlocutory Proceedings.

• While section 223 of ISACJL, 2020 authorise that applications for remand may be brought in cases of offences which the Magistrate has no jurisdiction to grant bail, it is significant to note that section 225 of ISACJL, 2020 provide expressly that the same Court may, in considering an application for remand brought under section 223 of ISACJL, 2020, grant bail to the Defendant. This is revolutionary.

• In the event where the Magistrate is minded to remand in prison custody under section 224 following an application brought under section 223 of ISACJL, 2020, section 226 of ISACJL, 2020 provides a robust time protocol for remand orders as follows:
(1) The order shall be for a period not exceeding fourteen days in the first instance, and the case shall be adjourned to a date not exceeding fourteen days.
(2) By an application in writing showing good cause for an extension of the remand period, the court may make an order for further remand of the person or a period not exceeding fourteen days.
(3) Where the person is still in custody on remand at the expiration of the fourteen day period in the first instance or additional extension of fourteen days in the second instance, the Court may on the application of the person grant bail upon such conditions as the Court may deem fit.
(4) At the expiration of the remand order in terms envisaged in either in (1) or
(2) above, and if the person is still remanded with his trial having not commenced, or charge having not been filed at the relevant court having jurisdiction, the Court shall issue a hearing notice to the Commissioner of Police or any other law enforcement agency concerned and the Attorney-General of the State and adjourn the matter within a period not exceeding fourteen days of the expiration of the period of remand order, to inquire as to the position of the case and for the Commissioner of Police or the Attorney-General to show cause why the person should not be released unconditionally.

  1. Where the Commissioner of Police or Attorney-General shows good cause as demanded in (4) above and make a request to that effect, the Court may extend the remand of the person to be arraigned for trial before an appropriate Court or Tribunal and the case shall be adjourned to a date not exceeding fourteen days from the date the hearing notice was issued in line with (4) above.
    (6) Where good cause is not shown for the continued remand of the person pursuant to section 226(4) of ISACJL, 2020, or where the person is still on remand custody after the extended period, the Court shall, with or without an application to effect (suo motu), forthwith discharge the person on such condition(s) as the Magistrate may deem fit in the circumstances.
    (7) Conclusively, no further application for remand shall be entertained after the proceedings in section 226(6) of ISACJL, 2020.

CHAPTER 16 (sections 251 to 268) deals with Notice of Trial.
Other revolutionary provisions of the ISACJL, 2020 are found in sections 257 relating to time for raising certain objections, day to day trials and adjournments.

• Specifically, section 257(2) of ISACJL, 2020 ISACJL, 2020 provides that an objection to the information or charge may be taken before the plea of the Defendant. Thereafter, all objections to the charge shall be taken at the final address.

• Under section 257(3) of ISACJL, 2020 any interlocutory appeal in respect of an objection taken before plea shall not operate as a stay of proceedings in the trial court while under section 257(4) of ISACJL, 2020 upon arraignment, trial will proceed from day-to- day until conclusion of the trial.

• Where day-to-day trial is impracticable, after arraignment, each party shall be entitled to not more than two adjournments, and there shall not be more than two adjournments at the instance of the Court: provided that no adjournment during the trial shall exceed 14 days inclusive of weekends.

• Novel “Time standards” are set for criminal proceedings in the Court under section 258 of the ISACJL, 2020 as follows:
(a) for capital offences, a maximum of 540 (five hundred and forty) days;
(b) for other offences triable on information, a maximum period
of 360 (three hundred and sixty) days;
(c) for all summary trials, a maximum period of 180 (one hundred and eighty) days;
(d) for bail applications, a maximum period of 30 (thirty) days;
(e) for all other interlocutory applications, a maximum period of 90 (ninety) days.
However, these timelines are not cast in stone as under section 259(1) of ISACJL, 2020 the Court may, on cogent reasons being adduced, extend time if the case is not concluded within the stipulated time standards but the extension period will not exceed half of the period originally provided.

• Section 268(1) of ISACJL, 2020 provides that trials in the High Court may be recorded electronically retrievable audio visual means such that where a trial Judge is unable to conclude a trial, another Judge may be assigned to conclude the proceedings without having to start de novo; provided that non-recording of proceedings shall not vitiate a valid trial while the transcript of the electronic recording of the proceedings of the court shall be produced and signed by the Judge and such signed transcript shall constitute proper signing of the record book of the court.

CHAPTER 17 (sections 269 to 282) deals with Preparation and Use
of Proofs of Evidence.

• Section 269(1) of ISACJL, 2020 abolished all forms of Preliminary Inquiry or Preliminary Investigation into a criminal charge by a Magistrate or any court in Imo State and replaced them with preparation of proofs of evidence for the purpose of determining whether or not an information may be preferred.
For additional emphasis, section 270 of the ISACJL, 2020 clearly lists the charges where proofs of evidence “shall” be prepared to be (a) capital offences; (b) offence punishable with imprisonment for life; and (c) any indictable offence in respect of which the defendant has elected to be tried by the High Court under section 272 of ISACJL, 2020.

• Under section 275 of ISACJL, 2020, in prosecuting a case at the Magistrate Court, the prosecution shall file (a) a statement of witnesses and the document it wishes to rely on and list of exhibits; (b) the prosecution will give oral evidence in-chief and be cross-examined while section 276 of ISACJL, 2020 contain elaborate steps to be taken by the Magistrate for the verification of statement of witness(es).

CHAPTER 19 (sections 335 to 347) deals with Description of Property and Persons in The Court Process.

• A significant provision in this chapter is found in section 342 of ISACJL, 2020 which provides that “property belonging to a woman who has contracted a marriage under the Marriage Act or a marriage under native law and custom may be stated as belonging to such married woman”.

CHAPTER 26 (sections 372 to 377) deals with Addresses.

• Section 377 of ISACJL, 2020 contain a revolutionary provision to the effect that “Subject to the provisions of the Constitution, an application for stay of proceedings in respect of a criminal matter brought before the Court shall not be entertained until judgment is delivered.” This is a bombshell provision that is analogous to section 306 of the Administration of Criminal Justice Act, 2015. It can be likened to a provision “loved by Judges and hated by defence lawyers” as it does not tolerate ambush and delays in criminal proceedings.

CHAPTER 28 (sections 385 to 387) deals with Sentences.

• Significantly, section 387 of ISACJL, 2020 makes copious provision for suspended sentence to the effect that when a person is convicted of an offence, the court may, instead of passing sentence, release the offender upon his entering into his own recognizance, with or without sureties, in such sum as the court may think fit, on the condition that he shall appear and receive sentence at some future sitting of court or when called upon.

CHAPTER 32 (sections 433 to 446) deals with Costs, Compensation and Damages

• Under section 433 of ISACJL, 2020 the court has power, during the proceedings or while passing judgment, to order the Defendant to pay a sum of money as compensation to any person injured by the offence or a bonafide purchaser for value without notice of defect of the title to any property or defraying medical expenses incurred in medical treatment of a person injured by the defendant in connection with the offence.

• Section 435 of ISACJL 2020 vests the Court with the power to order restitution and under section 436 of ISACJL the Court can order a private prosecutor to pay to the defendant such reasonable costs as the Court may deem fit.

CHAPTER 34 (sections 448 to 469) deals with Probation and Non-Custodial Alternatives

• Section 462 of ISACJL, 2020 confers on the court power to impose suspended sentence or order the offender to perform Community Service except where the offence involves the use of violent weapon or firearm.

• Section 463 of ISACJL, 2020 mandates the Chief Judge to establish in every Judicial Division a Community Service Centre to be headed by a Registrar as well as outlines the functions of the Community Service Centre and allied matters.

CHAPTER 35 (section 470) deals with Parole.

• As part of the aggressive measures to decongest Correctional Centres and facilities, section 470 of ISACJL, 2020 empowers the Court to direct, in appropriate cases, the release of prisoner before completion of sentence.

CHAPTER 36 (section 471) deals with Punishment for Child Offenders

• In section 471 of ISACJL, 2020 the provisions of the ISACJL, 2020 were EXPRESSLY made subject to the Child Rights Law.

CHAPTER 38 (section 484 to 485) deals with Detention During Governor’s Pleasure

• Section 484 of the ISACJL, 2020 provides that where any person is ordered to be detained during the Governor’s Pleasure he shall notwithstanding anything in the ISACJL, 2020 or contained in any other written law liable to be detained in such place and under such conditions as the Governor may direct and whilst so detained shall be in proper custody.

• Section 485(1) of ISACJL, 2020 enacts that a person detained during the Governor’s pleasure may at any time be discharged by the Governor on license which said license may be in such form and in such conditions as the Governor may direct under section 485(2).

• Finally, in section 485(3) of the ISACJL, 2020 a license may at any time be revoked or varied by the Governor and where license has been revoked, the person to whom the person the license relates shall proceed to such place as the Governor may direct and if he fails to do so, may be arrested without warrant and taken to such place.

No doubt these provisions of section 484 of ISACJL, 2020 are not only draconian but scandalous as they vest too much farcical and absolute powers on the Governor contrary to the express provisions of the International Bill of Rights, the African Charter on Human and Peoples’ Rights and the 1999 Constitution of Nigeria as amended. It is left to see how these kinds of monstrous provisions that do not deserve any pride of place in a democratic society and rule of law setting will survive the long standing decisions of the courts, especially the apex Supreme Court of Nigeria, that the human rights and fundamental freedoms of the citizen guaranteed in Chapter IV of the 1999 Constitution as amended are sacrosanct, inalienable, inderogable and imprescriptible.

CHAPTER 41 (section 504 to 513) deals with Trial by Corporation and allied matters.

• Section 504 of ISACJL, 2020 elaborates on application of the entire chapter while section 505 is interprets the term “representative” of a corporation while section 506 of ISACJL, 2020 how a corporation may enter its plea when called upon to plead to any charge or information. Sections 507, 508, 509, 510, 511. 512 and 513 of ISACJL, 2020 explain other procedural steps that may be taken in trial of corporations.

CHAPTER 44 (sections 526 to 533) deals with The Justice Sector Reform
The establishment of the Imo State Justice Sector Reform Team is another new provision of Chapter 44 of the ISACJL, 2020 to help monitor and achieve the objectives of the ISACJL, 2020 as well as improve on the justice delivery system.

• Specifically, section 526 of ISACJL, 2020 creates the ISJSRT and outlines its membership to be taken from a broad spectrum of relevant stakeholders while its sundry functions, secretariat of the team, officers of the team and their duties, funds and accounts, annual report, power to obtain Information, and power of the team to make rules or any standing orders regulating its proceedings are listed in sections 527, 528, 529, 530, 531, 532, and 533 of ISACJL 2020 respectively.

CHAPTER 46 (section 535) deals with Revision.
• Section 535 of ISACJL, 2020 provides that the ISACJL, 2020 shall be reviewed not later than ten (10) years from the time of commencement
.
CONCLUSION
On the face value, prima facie, the provisions of the ISACJL, 2020 are forward looking, progressive and commendable. There are no perfect laws and the ISACJL, 2020 is no exception. Until legal provisions survive judicial scrutiny, there is little or nothing to celebrate. Hence, the attitude of the courts via its decisions on, observing and ensuring the observance of the lofty provisions of the ISACJL, 2020 will determine how potent, pragmatic and durable the myriads of its innovative provisions are. The unique provisions of the ISACJL, 2020 highlighted above clearly demonstrate that although the Administration of Criminal Justice Act, 2015 may have influenced its promulgation and some of its provisions, the ISACJL, 2020 is not a simplistic recopy of the ACJA, 2015 as the former contain many provisions that are a radical departure from the provisions of the ACJA, 2015.

Going forward, it is suggested that more awareness be created in the polity to sensitize the ordinary citizens and other levels of operators and stakeholders about the existence of the ground breaking provisions of the ISACJL, 2020. A law is useless and a mere academic compilation gathering dust in the shelves if the citizens are not aware of its existence and cannot call its provisions in aid to settle matters in the conflictual society we live in. The absence of online (soft copy) version of ISACJL, 2020 more than six months after it came into existence is not an encouraging evidence that there is a readiness and willingness to embrace the regime of electronic hearing contemplated under that law and as a contemporary desideratum. Reference to “Government prison” in section 161 of ISACJL, 2020 should necessarily refer to a Correctional Facility maintained by the Correctional Services.

The sprinkle of editorial oversight and typographical or printer’s errors found in the ISACJL, 2020 should be sorted out and streamlined and a reliable and accurate version hosted online for public information and guidance. The novel and ambitious provisions of the ISACJL relating to things like maintaining of Central Criminal Record Registry, filing of Quarterly Reports, maintaining of Case Management Register, establishment of Community Service Centre in every Judicial Division manned by Registrars who are Legal Practitioners and actualising the aims and objectives of setting up of the Justice Sector Reform Team will go to waste if there is inadequate funding to bring them to fruition.

Conclusively, the introduction of the phenomenal ISACJL, 2020 in the administration of criminal justice sector in Imo State is a practical demonstration that a new normal is possible!

Categories
Law & Crime

Blasphemy: You got it wrong, We can’t intervene – Kano Govt tells UNICEF over imprisonment of 13 year Old BY KIZITO TOCHUKWU

Kano state Attorney General and commissioner for Justice Musa Abdullahi Lawan said it is wrong for United Nation Children Fund (UNICEF) to ask the state government to intervene in a court judgement that sentence a minor to 10 years in prison for alleged blasphemy.

Unicef’s country representative in Nigeria Peter Hawkins had called on the Nigerian Government and the Kano State Government to urgently review the case with a view to reversing the sentence.

He said, “The sentencing of this child – 13-year-old Omar Farouk – to 10 years in prison with menial labour is wrong. It also negates all core underlying principles of child rights and child justice that Nigeria – and by implication, Kano State – has signed on to.”

However, in his swift reaction, the Attorney General said there has been issues that the convict is a minor but what on the court record was that he is 17 years old.”

“For UNICEF to say that the state government should intervene, of course there is no country where government intervenes in court cases. Once there is judgment by a court of competent jurisdiction, the next thing if there is problem with the judgement the aggrieved party can file an appeal,” he said.

“And in this instance he has the right of appeal to the High court, to the court of appeal and to the Supreme Court and so if indeed he is a minor record will show that and if he files an appeal like you know under the law a minor cannot be held accountable especially in criminal cases. So, I think is wrong for UNICEF to say the state government should intervene,” he added.

He said, ” Not even here but Europe and America, they do not intervene in court cases. Once there is a valid judgement, there is a valid judgement there, whether the judgement was rightly entered or not it is a subject of appeal. And as per as I know he has filed an appeal so the best thing for us is to wait and see the outcome of the appeal.”

On August 10, a Shari’a court sentenced Farouk to 10 years in prison after he pleaded before the court for his alleged derogatory remarks on Allah, during a heated debate on March 4.

The trial judge, Khadi Muhammad Ali-Kani, in his judgement said the offence contravened Islamic Law, and sentenced the convict to 10-years imprisonment under section 382 (b) of Kano State Panel Code Law 2000 and granted a 30-day grace to appeal the judgment

Categories
Law & Crime

Let’s Talk About It: Need To Exterminate The Rape Culture

LET’S TALK ABOUT IT!


Yea, it is high time we talked about this menace that has been in existence since time immemorial.
RAPE… What does it mean?
Rape according to Section 357 of the Criminal Code is an unlawful carnal knowledge of a woman or girl without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman by impersonating her husband. Section 358 prescribes life imprisonment with or without caning for anyone found guilty of rape.


In the middle of the surge on news on rape, I said to a friend, one of the advantages of social media is that it helps to publicize this heinous crimes that have come to stay in our society. I remarked that there were several other cases going on and will continue until we do something, it is sad that most of some of these cases are been swept under the carpet by the parents, guardian, neighbors, the authorities,etc. More than the ones we see on social media, there are much more cases going on that we will never know of and until we are intentional about ending rape, it may forever haunt our society.
Would you be surprised if I say by my estimation, about 75-80% of females have either been raped, almost raped, molested, assaulted or harassed at once or several times. That most victims decide to keep a secret or only share among fellow females does not mean that it does not happen. Many more females and sadly males too are going to experience any of this dignity depriving crimes until we do something about it.


For the teenager that was raped severally by her uncle and the son till she died from complications.
For the 4 years old that was defiled by a security personnel.
For the 22 years old that was raped and brutally murdered in a church.
For the 18 years old raped and killed within her parents’ compound.
For the 12 years old that was raped by different men.
For the 18 years old that was raped by 5 men
For the 2 years old raped to death.
For the 14 years old that was raped severally and threatened by a neighbor.
For the other rape victims unknown to the world or the social media.
It is a lifetime of torture, distrust, shame, pain, hurt, brokenness, disappointed and anger. To rape a person is to kill that person psychologically and emotionally, the trauma is unimaginable.
RAPE CULTURE


A culture, environment or society where rape is common and in which social attitudes or practices work to trivialize sexual violence, make rape seem normal or shift responsibility to from the rapist to rape victims.
This rape culture is one major reason rape is rampant in our society, don’t be ignorant, rape has always been common event in our society, just that most go unreported due to the rape culture. Some of these rape culture are:

  1. That is her, the girl that was raped. The victim is usually tagged and stigmatized.
  2. What is she looking for at that time of the night.?
  3. Why did she go to his house, can’t she stay in her own house?
  4. She must have dressed half naked/ seductively, she deserved rape.
  5. She is a known prostitute, she deserves to be raped.
  6. Why didn’t she shout or fight, she must have enjoyed it.
  7. Why are you just saying it now after so many years, I don’t believe your story.
  8. You too, why are you so fine and curvy/sexy, “body no be wood na” and man must be man”.
  9. You should have allowed the rape instead of struggling.
    ….and the victim shaming and blaming goes on…
    Let’s quit pretending, our women and girls are not safe, we walk and move around in fear at the sight of a male figure especially when they are in groups. I still remember running most times in the night whenever I was sent on errand as a child and teenager, the fear is still there. I remember so many harassment from “brothers and uncles” in the neighborhood and compound back then, or what do you call a grown man talking trash to a child of 12/13 years and trying to touch in sensitive parts, asking to take a child out to have fun with her??
    What is the root of this rape culture? how did we get here?
    It’s time we agree to unlearn some of the bad things we learnt and condoned while growing up which have contributed to the rape culture.
    Please Note Some of them:
  10. Only the female child need “iron hand” so they will not “spoil” and bring shame upon the family, the male child is easy to train and so needs little or no “iron hand”.
  11. The topic of sex is forbidden in the home, sex education is a taboo in the home, never discussed and parents expect kids to learn on their own.
  12. The average male folk mostly think the thing there is to a female is the body and ultimately sex.
  13. Most male folks see nothing wrong in fantasizing over a lady’s body and ‘tapping current’ i.e touching sensitive parts of a female’s body intentionally.
  14. Some male folks believe women saying ‘No’ means she is forming and to show you are a man, you pester her or even force her.
  15. The believe that when a lady visits you in your home, she wants sex.
  16. The believe that a lady who dressed in a way “half-naked” or seductive to you wants sex or deserves to be raped.
  17. The believe that once a woman has “chop” your money, you must have sex with her even if it is rape or else you’ll be tagged a “maga”.
  18. The wrong mentality of bragging about “conquering” a woman to fellow males.
  19. The believe that once she agrees to date you, her body belongs to you.
  20. The practice of catcalling a lady on the street and cussing at her if she rejects such harassment, they say “you no even fine sef” “olosho”…
  21. Sex is natural, sexual urge must be satisfied, “if I don’t do it, I will fall sick or die”.
    ..and this believe and practice is passed from man to man and generations to generations..
    WHAT NOW??
    These are some of my suggestions:
  22. Learn that a child not trained will eventually destroy the one trained, who spoils the female child? The male right? Then we should teach the male child not to spoil the girl child. Teach the boy morals and respect for others and their bodies and choices. If you emphasize female virginity make sure to put emphasis on male virginity too.
  23. Start talking about body parts and privacy to children at an early age, teach them boundaries when playing and respect for others. Let’s have sex education at home as soon as they can comprehend the topic and deepen the conversation as they mature. Let them know about sexual violations and abuse, let them be better informed to make better decisions.
  24. Let’s talk about all there is to know about both gender, teach the male that there is more to a woman than her body/sex.
  25. Know that when you begin to lust after a woman’s body, you send some signal to your brain and the sexual organ picks it up which can lead to desperation to have that woman or any woman at all. Stop touching/tapping a woman’s body without consent. It is not acceptable to tap a woman’s bum, caressing her hand, face, hair on the street or anywhere else, it doesn’t make you a real man, it makes you a snatcher of human dignity.
  26. If a woman wants something, she knows, if she says no leave her alone, if she wants you let her say it. If she says you’re not man enough because you respected her no, it’s her loss, your manhood is not defined by violence or being forceful on a lady. Most important is you have your integrity intact.
  27. A lady coming to your home does not mean she wants sex, she may just want to hangout and talk. She is in your house is not license to rape her, if she wants sex let her say so, else control yourself not to land in jail. If you lack self control, meet with ladies in public until you have self control.
  28. That a woman dress in a way unacceptable to your moral standard does not mean she is soliciting to be raped. Even a sex worker whose work is paid sex standing on the street”half-naked” has the right to say no, if she doesn’t want sex with you. Look at it like this, when you see a mall, the goods are kept in open shelf for people to see, do you then break into the mall and pack their goods and run away? I bet No, because that is a crime of robbery. Same here, stop giving lame excuses to blame the victims. Just an analogy though. If you’re enticed by a lady’s dressing and she says no to you, then waka or better still lower your gaze and stop sexualizing a lady’s dressing.
  29. As long as she is not a worker who is into sex for money, that you gave her money or helped her is not a license to have sex with her. If she consents, fine, if not, leave her alone. You were not threatened or held to ransom for the money, if you can’t give money or help without expecting sex in return, then better you don’t help or give money out.
  30. “Conquering” a woman does not prove your manhood, stop molesting women and bragging to your friends. Whatever is the meaning of conquering a woman self, is she a colony, are you in a war? Give yourselves brain.
  31. No man owns another person’s body irrespective of the relationship between you, claiming ownership over another person’s body is pure slavery.
  32. Stop catcalling ladies, stop cussing at them when they ignore/reject you. You are harassing them publicly and violating their right to dignity. This is not right and should not and never be a guy thing.
  33. Sex is a natural thing, yes, sexual urge must be satisfied, no. Sometimes you have to control it, if there is no willing partner. And no, you will not fall sick or die if you don’t have sex.
    WHAT MORE??
    I will suggest the following:
    ✓ A review of the Criminal laws as it borders on rape and other sexual offences to include modern day realities, filling the loopholes, time lapse issue, properly defined consent age, marital rape?, inclusion of rape of an adult male after proper analysis of it’s possibility, etc..
    ✓ Strict and proper investigation by the enforcement agents.
    ✓ Rapid trial of the cases.
    ✓ Establishment of separate Courts to handle this cases speedily in all divisions in all states.
    ✓ Rape should be a capital offence with strict punishment.
    ✓ Punishment should be castration and life imprisonment.
    ✓ False rape accusations should be thoroughly investigated and punished.
    It is no longer right to turn the other way or mind our business on the issue of rape, it is now our collective responsibility to right this wrong and bring justice to all victims.

BLESSING O. JOSEPH ESQ.

Categories
Law & Crime

A Review Of the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN.

I read with much pleasure, my learned friend, Uche Amulu’s commentary and the analysis contained therein, of the recent judgment of the Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji Uzor Kalu v. FRN (hereafter “Orji Kalu”) . For purposes of brevity, I will adopt the facts of the case and his summary of the judgment in Orji Kalu as he laid them out. I may however add or proffer an alternative summary, which Mr. Amulu may have not included (for good reasons I believe). I have also read the said Judgment of the SCoN.
The relevant laws to this analysis are mainly (1) the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) which hereafter shall be referenced simply as “the constitution” and (2) the Administration of Criminal Justice Act 2015 (hereafter ACJA).
My review of the SCoN’s judgment is conducted from two main legal perspectives or methods, viz the black- letter or doctrinal method and the socio-legal methods. In acknowledgement of the divergent definitions that these two terms have lent themselves over the years, let me clarify what I mean in reference to the black-letter or doctrinal and the socio-legal methods.
For the purposes of this review, my use of the term “black-letter” method of analysis refers to an analysis or review of the judgment from a strictly legal perspective and on a correctness (as opposed to reasonableness standard). This is a method of analysis that will simply examine the SCoN’s judgment in the light of the “letter-of-the-law”. For that reason, I will simply seek to determine what the SCoN said the law is (viz-a-vis the relevant sections/provisions of the constitution and ACJA) and offer my opinion on whether or not they are correct in that their interpretation the those laws.
On the socio-legal analysis, I will seek to analyse the SCoN’s judgment from a reasonableness standard, taking into account, its impacts to and consequences for such things as:
i. The constitution
ii. Cost of Litigation and Access to Justice
iii. Integrity and Administration of the Criminal Justice system particularly


AND


iv. The integrity and administration of the overall litigation/court systems in general.
In conclusion, I offer some recommendations on how remedy the effects or consequences of the SCoN’s judgment.

THE BLACK-LETTER/CORRECTNESS ANALYSIS
It appears to me, that the central issue on the appeal to the Supreme Court was whether or not the trial Judge, M.B. Idris J (as he then was and now JCA) was a Judge of the Federal High court within the meaning of sections 249 (2) (b), 250, and 253 of the constitution, when he rendered judgment and convicted the defendants in the Orji Kalu case. Framed differently, the appeal was a direct challenge to the validity and constitutionality of section 396 (7) of the ACJA 2015. Again, Mr. Amulu has laid out these provisions in his initial commentary, and I adopt them as laid out for this rejoinder. However, just to put things into perspective, the said section 396(7) of the ACJA gives or (now more accurately) purported to give “a judge of the High Court, who has been elevated to the Court of Appeal . . .dispensation to continue to sit as a high court judge” so as to conclude “any partly-heard criminal matter pending before him at the time of his elevation”.
The undisputed fact in this case was that Idris J, had already subscribed to the oath of office as a Justice of the Court of Appeal at the time of rendering the judgment. Secondly, he received a “fiat” pursuant (purportedly) to the said section 396(7) of the ACJA, from the President of the court of Appeal (PCA) to go back and conclude the said Orji Kalu trial. I supplied the emphasis above for a reason to be addressed shortly.


I have read arguments that the defendants (or at least one of them) in the Orji Kalu case actually sought the dispensation of the PCA upon which Justice Idris returned to conclude the trial and that therefore it was ‘unconscionable” for them to benefit from the irregularity that they had themselves authored. In my opinion, this is of no moment because it is settled law from a long line of decided cases that neither the court nor parties can confer jurisdiction on a court that lacks one, whether by express agreement or by implied conducts.


The Supreme Court determined that Idris (JCA) ”having been elevated to the Court of Appeal, has ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court” to further adjudicate on the Orji Kalu trial and render judgment on it. Eko (JSC), delivering the unanimous Judgment, further held that section 396(7) of the ACJA was inconsistent with section 290(1) of the 1999 constitution. Applying section 1(3) of the constitution, he declared the said section 396(7) of ACJA void to the extent of its inconsistency.
I do not quite agree with a finding of inconsistency with the constitution, against section 396(7) of ACJA based on section 290(1) of the constitution. However and in any case, saddled with the same task, and on strict application of the black-letter method, I would have arrived at the same conclusion but on the basis of section 253 of the constitution, as opposed to section 290(1) of it. Section 253 of the constitution which established the jurisdiction by of the Federal High Court, states that the court shall be deemed to have been properly constituted “if it consisted of at least one judge of that court”. It follows therefore, again speaking strictly from a black-letter perspective, that at the time of rendering the judgement, M.B. Idris is a not a judge of the Federal High Court. And where once the SCoN has found section 396(7) to be inconsistent with the constitution, his status as a Justice of the Court of Appeal at the time of the judgment renders the said judgment to bereft of jurisdiction.
The question that needs to be considered, but perhaps not on a black-letter consideration of the judgment, is whether two things can be said to in conflict or inconsistent with each other if they are complimentary to each other. This line of thought will be considered in the socio-legal analysis of the judgment.
On a strict application of the principles of jurisdiction as laid down in the seminal case of Madukolu v Nkemdilim, the court in the Orji Kalu case, because it was not “properly constituted” is therefore bereft of jurisdiction , and the effect/consequence of any judgment delivered by a court without jurisdiction is, has always been and may well continue to be, a nullity .


While I may agree with Mr. Amulu in his analysis that “that that section 396(7) of the ACJA [was]enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction”, I do not however believe that they effectively achieved that aim. Firstly, the power to grant dispensation to conclude a trial at the Federal High Court was vested in the President of the Court of Appeal, thereby negating the effects of section 19 (3) & (4) of the Federal High Court which vested the power of administration and assignment of cases in the Chief Judge of the Federal High Court. That, in and of itself alone, is problematic.
On the basis of the foregoing analysis, and having read the full transcript of the Supreme Court’s reason for its decision, this is surely not one of those judgments that you wonder what law exactly is the law applying or how they came to their conclusion. The Supreme Court, having approached its interpretation of the relevant sections of the constitution literally and rigidly (I may add), was entitled to the conclusion that it reached and can therefore, in my opinion, not be faulted on a strict black-letter based analysis of the extant laws.


THE SOCIO-LEGAL/REASONABLENESS ANALYSIS
As we all know, the effects and consequences of laws or judgments go beyond the immediate parties for who they were made/delivered. So much as there may be differing views on what exactly is the grand purpose of law, I don’t think that there may be any assessment or analysis of the purpose of courts that may not, one way or another, include its duty to do justice. Granted that there may not be a generally accepted/acceptable definition of justice, what is not justice is however not as controversial.
A court of law, and more so the Supreme Court that sets the tone of the law for other courts to follow, must always be guided by this primary purpose, as with the rules of law, in approaching its decisions. With respect, I feel like the SCoN, by its decision in the Orji Kalu case, sacrificed substantial justice on the alter of doctrinal affirmation or discipline. I say that because, this case, no matter the way you look at it, turns on constitutional interpretation, on a simple phrase on that constitution (i. e. “a judge of that court” in section 253) and finally turns on a balancing exercise between the competing rights/factors in this case.
As Mr. Amulu rightly noted, the constitution, though clearly states that the Federal High Court is only properly constituted when it has at least “. . . one judge of that court”: who or what ”. . . one judge of that court” means/refers to had not received any prior Judicial interpretation. This was an opportunity for the SCoN to render that interpretation, bearing in mind, the aims, purpose and objectives of the Administration of Criminal Justice Act 2015, as well as other equally poignant factors that will be outlined shortly.


In my opinion, a reasonable approach to interpreting or defining who/what “one judge of that court” means is not the literal rule that the SCoN seems to have adopted here. In the English seminal case of Dupont Steel v Sirs which seems to be the foundational precedent for statutory interpretation for most common law countries, Lord Justice Diplock had this to say about the interpretational role of the courts :
“When Parliament legislates to remedy . . . a defect or a lacuna in the existing law . . . the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”.
A corresponding Nigerian authority in this regard is the case of Rabiu v State where the SCoN had this to say specifically about constitutional interpretation :
“In interpretation of the Constitution, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution Where the question is whether the constitution has used an expression in the wider or narrow sense, the court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless . . . narrower the interpretation would best carry out the object and purpose of the constitution”
Also, in AG Lagos State v. Eko Hotels Ltd & Anor, the SCoN restated this position when it held that :
“ . . . where the meaning [of the Constitution] is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention”.
From the purpose of ACJA 2015, it was clear that it set out to cure some defects/mischiefs in the administration of criminal justice. Its purpose was said to promote :
“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”.
Applying these authorities, I will submit that the phrase “one judge of that court” does not immediately lend itself to a clear and unambiguous meaning, especially when viewed in the light of said section 396(7) of ACJA, which until this judgment, was a valid law. It was therefore wrong (in the reasonableness standard) to have approached the interpretation from a literal perspective. It is my opinion, that the SCoN, should have approached their interpretation of both section 290(1) and 253 of the constitution in such a manner that would not defeat the central purpose of ACJA or metastasise the mischief or defect (viz unreasonably long periods of trial) that the said section had intended to cure/remedy. By its interpretation, I argue that the Supreme Court has rather than “save” the constitution (as many commentators were quick to assert), further endangered the constitution and the overall administration of Justice in the following ways:
Hampers the Actualization Fair Trial Within Reasonable Time and other Fundamental Rights
Section 37 of the constitution guarantees “fair hearing within a reasonable time” in the “determination of . . . civil rights and obligations” of all citizens. This is a right that is more on paper than attainable for most Nigerians encountering the criminal justice system. With no pun intended, Eko (JSC), had conducted a review of the instant section 396 of ACJA, particularly its subsection 2, and acknowledged that that section, as well as section 395(2) of ACJA and section 36(1) of the Constitution are “all about . . . speedy trial” .


It will sadly be the case, following this judgment, that criminal trials will continue to take longer (double the time) whenever the instance such as was the case in Orji Kalu arises where the trial Judge is elevated to the Court of Appeal. The aspect of this that undermines the fairness of such trial is in the case of a less wealthy defendant (or complainant). Assuming that the defendants in this case were not a former Governor with the financial wherewithal to prosecute his defence to whatever length required. The implication for a less wealthy defendant will be a doubling in expenditure, which could hamper the quality of representation wherein such defendant is no longer able to afford the services of a good/senior lawyer and is then forced to higher probably a new wig. On the reverse, the opponent is the Federal (or State) government, with ‘unlimited’ resources.
When considered further in the light of the fact that the prosecution viz-a-viz the government (and not the defendant) would have caused the elevation of the Judge, it becomes even more unconscionable and unfair that this would be the legal principle. Situate this within the context of malicious politically-motivated prosecutions that we all know, go on in Nigeria, then you will understand why this decision could very easily become a tool for oppression and persecution more than anything else; whereby defendants are arraigned on trumped-up charges, and on the eve of their acquittal, the trial charge is elevated to the court of Appeal so as to start their ordeal afresh.


The impact of this on personal liberty is best appreciated when liberty is viewed beyond the scope of physical liberty . Anyone who has been subject or part of litigation (whether criminal or civil) will understand the emotional and mental toll it takes on the participants. Recall that sometimes, the defendants may be on onerous bail conditions that places severe restrictions to a lot of things in their lives, including movement (travelling abroad is the most common). The Supreme Court itself agreed this much when it held that seizure of international passport of a citizen amounted to an incursion into that citizen’s freedom of movement in Director of SSS v Olisa Agbakoba .
On the basis of these analysis, I will adopt the words of the Supreme Court itself in Rabiu (supra) to submit that by this Judgment in Orji Kalu, it has defeated “the principles of government enshrined in the constitution” a la fair trial and within a reasonable time, liberty and freedom of movement.
Increases the Cost of Conducting Litigation and thereby Undermines Access to Justice
As I noted earlier, the implications of this judgment go beyond the immediate defendants and also beyond the prism of criminal Law system. In a country like ours where the justice system and the judiciary itself are known to be susceptible to influence or manipulations, elevation of trial judges could be the next tactics for obstructing justice and frustrating poorer litigants from accessing the individual justices in their case.
Imagine an influential defendant or plaintiff (including government or a government agency) who knows that his or her case is weak (whether criminal or civil), and just influences the elevation of the trial judge on the eve of judgment. Think about the proverbial case of the poor widow and the rich/influential man; where the poor widow strives with the last of her possession to try to reclaim a piece of land from this bullyish rich/influential man, and after about 5 years of trial, whether by the making of the rich man or not, the Judge is elevated to the court of appeal on the eve of rendering judgment. By this time, the widow is more probable than not to have run out of resources and may not be able to finance a whole new trial as a result of this.
On the basis of this Orji Kalu judgment, that widow, as with any other litigant that finds themselves in such similar situation, has had their access to justice practically undermined at best, if not totally denied.
Undermines the Integrity of Criminal Trials and Its Investigations
Cases such as the Orji Kalu case is one which perhaps the evidence is not time sensitive. However, there are trials and criminal investigations that its evidence and the underlying investigation may be best reliable in shorter periods of time (rape may be one of them). With this judgment and the consequence thereof a la trial de novo, this legal principle may have only contributed to denying the victims justice for no error or wrongdoing of their own.


Undermines the Integrity of Litigations Generally
One scenario by which this point can be illustrated is with our Election Petition (EP) cases. The constitution as we know, stipulates that the whole trial in EP cases must be concluded within 180 days. I would not think it is beyond what a desperate government in power could to to frustrate any given election petition matter in which it fears might not be favourable to it, by causing the elevation of a member of such tribunal on the eve of concluding the matter so as to begin a new hearing, by which the 180 days may either completely elapse, or no longer be enough to take the matter up till the last appellate court for review.
On the basis of these socio-legal considerations, I will submit that the decision of the Supreme Court in the Orji Kalu case is impeachable on a reasonableness standard.

THE WAY FORWARD
It still remains the duty and obligation of the legislature to make/amend laws. Truth remains that if the legislature had done its duty thoroughly and properly with respect to the vexatious section 396(7) of ACJA, the Supreme Court will have no issue giving effect to it.
Having said that, I am of the strong view that the durable and sustainable cure to this defect in the ACJA is a constitutional amendment, that would:


a. permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice


OR


b. Alternatively, ensures that High Court Judges elevated to the Court of Appeal may not subscribe to the oath of office as Justices of the court of Appeal, to sustain their jurisdiction as High Court Judges, until such a time that they have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date they actually subscribed to the oath, which could be a year later due to delays in concluding cases at the High Court.
I am of the view that achieving a speedier dispensation or administration of our justice system is fundamental to sustaining both its integrity and functionality, as well as restoring the diminished confidence of the public in the system. I am tempted to say that had the Supreme Court ever cared about these germane factors, it is difficult to see how they could come up with their interpretation and consequential judgment in the Orji Kalu case. As such, the necessary amendments to remedy the pitfalls of the Orji Kalu judgment ought to be done and very quickly too.
Ikenna Aniekwe writes from Toronto, Canada and apologises in advance to anyone for finds the length of this review unusually long.

Profile of the Writer
Ikenna Aniekwe holds a Bachelor of Engineering degree (Elect/Elect – Power Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer cum Laude) from the University of the West of England, Bristol UK, BL from the Nigerian Law School and most recently, an LLM in International Business and Human Rights Law (research) from the prestigious Osgoode Hall Law School of York University, Toronto Canada. He is currently undergoing the Law Licensing processes and hopes to be called to the Canadian Bar in 2021.

Ikenna is also a Senior Associate at NICCOM LLP (www.niccomllp.com) where he brings his wide breadth of experience into bear in advising on the firm’s most remarkable works.


Prior to his sojourn into Law, Ikenna was (and still retains a substantial interest as) a renowned filmmaker with skills in screenwriting, Directing and Producing with over 50 Nollywood Film titles to his credit.
He also has a hobby and a side career in football, with a certification and license from the Footballer Association of England and Wales in Adult football coaching. He is also a member of the Nigerian Referees Association for over a decade, a registered member of the Referees Association of England and Wales (Non-active) and of the Canadian Soccer Referees Association.


Ikenna is an avid researcher of law with a broad interest in International Law and Human Rights, particularly the effects of International Business norms and practices on Human Rights in the Global South.

Categories
Law & Crime

THE PRINCIPLES OF SELF DEFENCE IN THE NIGERIAN LEGAL SYSTEM

https://4.bp.blogspot.com/-Wn2ej7RPzEI/W5VGhAjFBaI/AAAAAAAADdo/xNFXbCIhXWQfzF8OOrwXkOBg-lHEoxwtgCLcBGAs/s320/images%2B%25284%2529.jpeg


A woman stabs the husband, to death in Ikorodu Lagos alleging it was self defence.

Now, the question that comes to mind would be: Self defence which may reduce the punishment for the offence of murder to manslaughter, will it avail her in a successful plea and other defences?

Definition of Self Defence

Self-defence according to Black’s Law Dictionary, 10th Edition is the use of force to protect oneself, one’s family or one’s property from real or threatened attack.

The principle states that a person is justified in using a reasonable amount of force in self-defence where he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger.

Section 286 of the Criminal Code Act states:

when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm”.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using the force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

According to report, the sobbing suspect was interviewed, she said “I didn’t kill him intentionally. He was always Battering me. Today, he pinned me down and started beating me again. I picked the knife to scare him, but I mistakenly stabbed him”.

From the statement above, one would be left to wonder if the intended plea would be “accident” or “self defense” or “provocation” or if conflicting defense are intended.

In the supreme court case of Peter Iliya Azabada V. The State Legal Pedia Electronic Citation (LER 2014) Sc. 367/2011. Onuoghen JSC had this to say:

‘ In criminal trial, the trial court should consider all defences available to an accused person irrespective of its merits or stupidity. I hold the view that the principles does not mean that the court can uphold conflicting defences.
Where the defences raised by an accused person conflicts with one another, the trial court, in my view, though obliged to consider all the defence applicable to the case having regard to the evidence on record. Where the facts disclosed in evidence support one as against the other as in this case the court will adopt the established defence.

On the other hand, one may be inclined to think of what provocation is. This is what Rhodes  – Vivour, JSC had to say on provocation; “Any act or words may be provocative” he went further to define provocation as an act or series of acts done by the deceased (when alive) to the accused person which would cause a reasonable person, a sudden a temporary loss of self control rendering the accused person to subject to passion as to make him for the moment not master of his mind.

What then happens in a successful defence of provocation in a charge of murder?


Rhodes-Vivour, JSC went on to say: “in a charge for murder, a successful defence  of provocation has the effect of reducing the charge to Manslaughter. Once the accused person is convicted for manslaughter, the trial judge has discretion on sentence”. Sentence can be a custodial sentence ranging from one day to day life imprisonment. Whereas, for a conviction for murder, there is no discretion. The sentence is death”.

On accident

Accident means that the action leading to the injury was unintentional. Accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and did not engage in any culpable negligence. But it only applies where a defendant is engaged in a lawful conduct.

To assert accident as a legal defence, the burden is on the defendant to prove that he/she acted with no criminal intent or culpable negligence.

The defence of accident is available in any case that requires intentional criminal conduct as an element.

This means that in an offence whereby an accused picks up a knife to “scare” someone and eventually stabs the victim, the accused cannot (in my opinion) rely on accident.

Now let us look at the provision of the Law Section 24 of the Criminal Code states that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident”. 
The question now is “at what point will an event or an act committed be deemed accidental?

In Maiyaki V. State, the Supreme Court held as follows “An event is said to be accidental where the act by which it is caused is not done with the intention of causing it and when its occurrence is as a consequence of such act, it is not so probable that a person of ordinary prudence ought in the circumstance in which it is done, to take reasonable precautions against it.

In conclusion, when one successfully pleads accident, it only makes the act not to fall within the provisions of Section 316 of the Criminal Code. 

OKOYE BRIAN C. Esq.