Destiny Ogedengbe
University of
Benin, Nigeria
Editor's note: The views expressed here are exclusively the author's. They do not represent the views of the CJHR.
The hub of this discussion is to appraise the criminal
justice system vis-à-vis the enforcement of human rights in the course of
criminal proceedings. It is needless to say that the Constitution of the Federal Republic of Nigeria, 1999, robustly
provides for the fundamental rights of citizens and this is in consonance with
the provisions of other international instruments which extol the need for
citizens to enjoy their rights undisturbed, as it affects their wellbeing. This
is commendable as it reflects a democratic system. However, what is of major
concern are the Human Rights provisions which are invoked during criminal
proceedings to ensure that citizens are not flagrantly reduced to nothingness
without recourse to their rights even as accused persons. Of concern in this
regard are provisions such as sections 35
and 36 of the Constitution of
Nigeria, (CFRN) 1999. While section
35 protects citizens’ rights to personal liberty, section 36 enjoins state authorities to afford to an accused person
the right to fair hearing during court proceedings.
Over the
years, it has not escaped the right of the observant that the dichotomy that
exists between the rich and the poor extends to the enforcement of human rights
particularly when and how these rights are enforced. It has always been the lot
of the common man to be stripped of his rights especially during criminal
proceedings. For instance, during the course of arrest, detention,
investigation and prosecution, the men of straw are subjected to manhandling,
different sorts of violation of their constitutionally guaranteed rights,
including the right to bail, egress from detention bars. In the light of the
fact that low-profile citizens of the country are barely in the know of their
rights, coupled with their inability to employ the services of influential legal
practitioners (if at all they could afford a legal practitioner) to defend
their rights, they cannot keep a stiff upper lip and choose discretion as the
better part of valour. On the other hand, top profile personalities in recent
times, not to mention the far past, have appeared to be quick on the uptake in
legal issues. In the face of serious criminal charges, they remain unruffled
because they have the machinery of the law at their beck and call. They
activate the process of the law speedily to stall the administration of justice
and or even jeopardize the entire proceedings. Arrests detention and
prosecutions have been stayed effortlessly by these eminent persons who seek
several injunctive reliefs in their favour. The reliefs they seek offer them a
longer rope to perambulate in the face of serious punishable offences, as
opposed to citizens of no means.
Of more serious concern is the act of preempting the
violation of fundamental rights of these top profile persons by the law
enforcement agents. They have been cases of these persons seeking injunctions
to restrain law enforcement agencies from instituting arrests, investigations
and or even prosecutions in deference to their rights. One will be forced to
wonder what rights are being violated as their actions at best appear to be a deviation
from the exercise of common sense. Rather shamefully, the courts have been
generous in granting them these reliefs which ostensibly jettison the
administration of justice and frustrate the
machinery of the law against them.
Injunction had been granted, for instance, to Peter Odili, former Rivers
State Governor, restraining the Economic and Financial Crimes Commission (EFCC)
from conducting any arrest, investigation or prosecution against him. The court
gave him the leeway by way of a perpetual injunction to escape criminal
prosecution. These actions have so far incited the public to vent criticisms on
the judiciary as a whole. It is platitudinous therefore to hear members of the
public say that lawyers, top-profile personalities and even the Nigerian courts
are all together in the web of the unlawful acts; this is appalling! The
precarious position now is that we cannot even say that the courts are totally
exempt from these sordid acts.
Consequently, the afore-explained
actions lead us to a number of issues necessary to be deliberated upon:
Does an arrest, investigation and or
prosecution generally violate the rights of accused persons and at what point
can an application for the enforcement of human rights be said to be a proper
response to an impending arrest, investigation and or prosecution?
Foremost, it will be unhealthy to
hastily conclude that an arrest, investigation and or prosecution generally
violate the rights of an accused person. It is lawful to institute an arrest
when there is reasonable suspicion of the commission of a crime by an
individual. The power of arrest is recognised in section 20 of the Police Act,
2004. Thus, it amounts to no violation of the rights of a person if an
arrest is done in the right procedure. Ancillary to an arrest is investigation
and prosecution when justified. When the law enforcement body laid down rules
under the Police Act and the Criminal Procedure Act, it suffices no
violation of the right of an accused. A police officer who conducts an arrest
and detains an accused person must ensure adherence to the abundant provisions
of section
35 of the Constitution of Nigeria, 1999 which guarantees personal liberty
and stipulates the permissible period for which a suspect can be detained. More
often than not, this right has not been given considerable thought. Some
detainees spend up to a month without being charged to court or even being duly
notified of their rights and in addition, they are manhandled. Some are
arrested and taken to ‘Mobile Courts’ particularly on minor offences and
embossed with guilt, without giving the accused persons the right to defend
themselves. This is in gross violation of section 36 of the Constitution of Nigeria,
1999 in that it disregards the constitutional rights of the accused
person.
To be absolutely clear, arrest, investigation and or
prosecution do not constitute a violation of the rights of an accused person
and to hold otherwise will be an unfair affront on the powers of arrests and
investigations conducted by the law enforcement agencies in the country.
On the second limb of the issue, the proper point for an
application for the enforcement of human rights as a response to an impending
arrest, investigation or prosecution logically appears to be when there is a
violation of such rights, or to stretch it a little, when there are reasonable
grounds to believe that such rights are being violated. As a point for
discussion, proper understanding of the issue forces one to conclude safely
that there cannot be an “application” for the “enforcement” of a right which is
not being or has not been infringed upon. One can only apply to enforce a right
that can reasonably be said to have been infringed. It is rather illogical, at
least, in the eyes of an objective bystander, to propose that any accusation
levelled against certain individuals and the corollary acts of arrest and
investigation are violations of their rights. Many of these persons have cried
wolf over their innocence yet they have refused to submit totally to judicial
determination of their self-professed innocence. Rather, they meteorically jump
the gun, seek injunctions to restrain further investigations. If it is not an
injunction, then it is an issue of jurisdiction to stay indicting
investigations and consequently jeopardize the entire proceedings and or use
the appellate processes to clog the wheel of justice in a manner bordering on
abuse of process, all with a view to avoiding a judicial ascertainment of their
“innocence” altogether. For instance, what is the ratiocination behind the
perpetual injunction granted to a former governor? Why does the court appear to
be blind to the ruse employed by these persons? Are the courts hands in glove
with these persons in their shady escapades? These are the questions that have
been put forward by members of the public who have refused to stomach such
outcries.
An application for the enforcement of a
right only makes sense when such rights in question need to be enforced. Should
not a right have be violated or should its violation be so imminent before the
court is called upon to enforce such right? The judiciary must be careful not
to inveigle itself. This business of trifling but far-reaching applications do
not augur well with the general public for two reasons: firstly, it is
suggestive that the judiciary cannot be said to be independent enough to allow
justice take its course; secondly, it evinces that the rich can wrap the entire
judicial process around their fingers and get it over with. A society that
attends to such construable suggestions from the actions of the rich in preempting
violations, suggestively, with support from the courts cannot repose so much
confidence in the judiciary. Thus, it is of immense concern: such actions
should be curbed.
Another issue that is open to
deliberation is the question of whether there is any connection between enforcement
of human rights and criminal processes carried out in apparent regularity with
legally prescribed procedures?
The proper answer to the above issue
would seem to be in the affirmative. The connection lies in the constitutional
requirement that criminal processes be carried out in line with the accused
persons’ constitutional human rights. It
cannot, however, be expected that law-enforcement officers and even judges
would always act in rigorous compliance with the constitutionally protected
rights of accused persons.
In the light of the above, a common
ground has to be reached. That point is reached when a criminal process is
carried on in violation of an accused person’s rights. If, for instance,
pursuant to a criminal trial or investigation, an accused person is detained
beyond the constitutionally guaranteed 48 Hours, in apparent violation of section
35(4) of the Constitution of Nigeria, 1999, such a violation must
become a rallying point for all against unlawfulness. It is thus incumbent and
prudent for law enforcement agencies to secure permission from a court of
competent jurisdiction to detain an accused beyond the constitutionally
permitted duration. With such permission, their action would be within the
bounds of the law.
It stands to reason, that whenever an
investigation, detention and trial is being done inconsistently with the
provisions of the law, that the accused should not feel encumbered, by the
process of the law or public opinion, from seeking redress. The accused may do
well to secure a court order impressing it on the law enforcement agency to
carry out their functions in line with the provisions of the law. The problem,
however, is the fact that there is so much imbalance in the response to such
actions to secure court orders as it now depend on the pedestal of the person;
the rich easily seek these court orders to enforce their rights while, on the
other hand, the poor finds it difficult to seek such orders. This, it would
appear to the objective bystander, to be the result of their inability to throw
Sob to Cerberus, when demanded.
An ancillary issue that stems up from the
above is what forum could accused persons, if concerned (real or perceived) that
their constitutional safeguards in Criminal trials were not being protected by
the trial judge, seek the protection of the rights being violated? Should it be
before the trial court or another court of coordinate jurisdiction or a matter
to be raised on appeal?
There is always a real or perceived
danger, whether borne out of current realities or sheer mischief by the accused
persons that their fundamental rights are being violated by the law enforcement
agencies and subsequently, not being protected by the trial judge. Due to
deceptive human nature, such feelings might be waived at first. However, on a deeper look, there might actually be real
substance in such claims. While it is important for us to waive frivolous and
mischievous feelings and suspicions as regards the violation of fundamental
rights, we must not also treat with levity, such real possibilities of human
rights violations in the course of criminal trials.
Hence, where the accused feels that his rights are being
violated, the ideal thing to do would be to seek the protection of the courts.
Where and when this protection is to be sought is a question of the accused
person’s feelings and instincts, though ultimately in compliance with laid down
procedures. For instance, in the course of the ongoing trial of the leader of
the indigenous people of Biafra, Nnamdi Kanu, he openly expressed doubts as to
the credibility of the presiding trial judge and the judge rightly stepped down
from the case for another judge to continue the trial.
So, the accused person, it would appear to an ordinary man
of reasonable prudence, is free to strive for the enforcement of his
fundamental rights at any point and any court where he chooses. However, in his
quest to ensure the enforcement of his rights and in the courts’ quest to
ensure that an accused person’s fundamental rights are not violated, the proper
thing for the court to do would be to make an order or orders to guide the
process away from violation into compliance with and respect for the rights of
the accused person. In short, it behoves a presiding judge to ensure that the
rights of an accused person standing trial are upheld. This is right for the
integrity of the court and of the entire trial and conviction, if the accused
is convicted.
However, under no circumstances should
an accused person’s trial be truncated upon a mere assertion of, or a perceived
fear of fundamental rights violations. At best, the trial judge or any other
judge should use his good offices to ensure the enforcement of these rights and
not to truncate the trial. Any attempt to sacrifice the law, together with laid
down procedures, on the altar of a perceived violation of one’s fundamental
rights should be curbed especially by the courts which give room for such
inurbane conducts.
In conclusion and in pursuance of the
sacrosanct nature of the constitution, fundamental rights of citizens must be
preserved by all means. The law enforcement agencies must always bear this in
mind. However, this should never be a yardstick for staying court proceedings
and thwarting the efforts of those designated to administer justice. It is
indeed an unpalatable sign to the society, hence the more serious need to allow
a smooth running of the criminal justice system clearly devoid of disruptions;
a need to consider and espouse public policy to keep to the law in the course
of preserving the rights of anyone called in question, high or low profile,
notwithstanding.
Arusha, 1 March, 2016: The Republic of Benin becomes the eighth AU Member State to make the Declaration under Article 34 (6) of the
