Law News
Implications of new Administration of Criminal Justice Act

It can be said with justification that the Administration of Criminal Justice Act 2015 is the hottest law in the country right now. It is a 495-section law that repealed the Criminal Procedure Act and the Criminal Procedure Code as applicable in all federal courts and courts in the Federal Capital Territory. However, the Act regulates more than just criminal procedure; it covers, in most part, the entire criminal justice process from arrest, investigation, trial, custodial matters and sentencing guidelines. All the provisions of the Act are geared towards ensuring that the system of administration of criminal justice in Nigeria promotes efficient management of all criminal justice institutions, speedy dispensation of justice, and protection of the rights and interests of the suspects and the victims of crime.

Expectedly, the above objectives could only be achieved by increasing the capacity of the courts and law enforcement agencies; subjecting custodial and other processes to transparent and internal scrutiny; providing for non-custodial alternatives, such as community service; providing opportunity to dispense with formal trial in certain circumstances; and giving further expression to the constitutional guaranty on human rights. All regulatory, institutional and even constitutional impediments to achieving these goals are expected to be removed.

Ostensibly, the new law would address the issue of delays which is characteristic of criminal justice delivery in Nigeria. Delay is one of the key objectives the Act sought to address and it has resolved it, in principle at least, by providing, among others, that authorities must electronically record or videotape the making of confessional statements; that expenses of prosecution witnesses are to be borne by the court. It also put restrictions on stay of proceedings and the number and interval of adjournments to four on each side and 14 days apart. Thus, prolonged delays of trial may remain a thing of the past.

One essential feature of the ACJA is its deliberate shift from punishment as the main goal of the criminal justice to restorative justice which pays serious attention to the needs of the society, the victims, vulnerable persons and human dignity generally.

In order to ensure speedy trial, the Act provides in Section 306 that application for stay of proceedings shall no longer be heard until judgment and cannot operate to stall continuation of trial. This is a revolutionary move that is unprecedented given the delays occasioned to the trial process by interlocutory applications to stay proceedings pending appeal on preliminary matters even when the substantive issues are yet to be tried on the merits. What the ACJA has done is to amplify the provisions of the constitution to ensure speedy dispensation of justice. This new law is very progressive, timely and in conformity with international best practices.

Section 2 of the Act provides that its provisions shall not apply to a court martial. It should be noted that the ACJA has clearly deleted the provisions of Section 10(1) of Criminal Procedure Act which empower the police to arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of his/ her activities.

Section 6 of the Act provides that a police officer or a person making an arrest is to inform the arrested person of the reasons for the arrest except where he is being arrested in the course of commission of the offence. This upholds the fundamental rights to fair hearing enshrined in the constitution.

Provision of Section 6 of the Act mandates the police officer or any other person making the arrest to inform the suspect of his right to:

(a) Remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

(b) Consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest.

(c) Free legal representation by the Legal Aid Council of Nigeria where applicable.

It is necessary to state here that the proviso in section 6 (2) is quite laudable since the suspect will have the benefit of not only being informed of the offence he has committed but also an additional advantage of counsel assisting in securing his immediate release on bail and ensuring that trial is expeditious. This would in turn prevent prolonged detention of suspects and hopefully bring about decongestion of the prisons.

It is also pertinent to note that the referred proviso to Section 6 of the Act amplifies the provisions of Section 35 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).These salutary provisions upholding the liberty, dignity and fundamental rights of suspects in ensuring that no one under any guise is deprived of legal representation.

One other salient innovative provision of the new law is the one dealing with unlawful arrest of the citizen. Unlawful arrest is one of the major problems of our criminal process and it is one of the reasons why police stations and prisons are overcrowded. Arrests are sometimes made on allegation that are purely civil in nature or on a frivolous ground. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as grounds to arrest people indiscriminately. The ACJ Act has deleted this provision and this is highly commendable.

There have been several instances where the police arrested relations or friends and close associates of a crime suspect in order to compel the suspect to give himself up, even though that person is not linked in any way to the crime the suspect is being accused of. Section 7 of the ACJ Act specifically prohibits arrest in lieu.

Apart from the police, other agencies vested with power of arrest e.g. the Economic and Financial Crimes Commission, the National Drug Law Enforcement Agency, the National Agency for Food and Drug Administration and Control, etc have abused this power to arrest and detain relatives and close associates of criminal suspect in lieu of the suspects, where they have challenges in apprehending the suspects. Section 7 should curtail this kind of abuses.

Specifically, Section 7 of the Act prohibits arrest of relations in lieu of the suspect by the police or other agencies vested with power to arrest like EFCC, ICPC, NDLEA etc. This is a revolutionary provision ensuring that Nigeria is not reduced to a banana republic where a father is held culpable for the actions and omission of a child.

The ACJ Act 2015 reiterated the human right constitutional provision of the right to dignity of person. Section 8(1) of the Act provides that  a suspect shall: (a) be accorded humane treatment, having regard to his right to the dignity of his person. (b) Not be subjected to any form of torture, cruel, inhuman or degrading treatment.

Section 8 (2) deals with the longstanding problem whereby people employ the machinery of criminal justice wrongly for civil matters. It is not uncommon for people to maliciously instigate the arrest and detention of others for a breach of contract, failure to pay debt owed or for other civil wrongs. This provision that “a suspect shall not be arrested merely on a civil wrong or breach of contract” is a laudable one. It is believed that it would check arbitrary arrest of persons and torture by law enforcement and security agencies. It is important to note that this provision states that a suspect shall be accorded humane treatment, having regard to his right to the dignity of his person and shall not be subjected to any form of torture, cruel, inhuman or degrading treatment. This ensures civility, decency and decorum in the treatment of suspects during the investigative process in line with the requirement of presumption of innocence as obtains in civilised societies adopting best practices and international standards.

Section 10 of the Act mandates investigating police officers to take inventory of property recovered from suspects. The inventory must be duly signed by the police officer and the suspect. However, where the suspect refuses to sign, it shall not invalidate the inventory. A copy of such inventory shall be given to the suspect, or his legal practitioner or such other person as the suspect may direct. This ensures that assets and personal belongings of suspects are not looted by law enforcement agents and provide a platform for dealing with erring police officers who may want to unduly enrich themselves hiding under the cover of the investigative process.

It is equally stated in the Act that the police shall release such property upon request by either the owner of the property or parties having interest in the property, pending the arraignment of the suspect before a court.

However, where a police officer refuses to release the property to the owner or any person having interest in the property, the police officer shall make a report to the court of the fact of the property. This promotes transparency and accountability in the investigative process.

It is equally important to note that the Act provides that where the suspect is not charged before a court but is released on the grounds that there is no sufficient reason to believe that he has committed an offence, any property taken from the suspect shall be returned to him, provided the property is neither connected to nor is a proceed of crime. This is a recognition and preservation of the rights of the citizen.

The implication of the above is that it is now entirely for the court to decide whether to release the property or any portion of it in the interest of justice to the safe custody of the owner or person having interest in the property. This is fair play, commensurate with the demands for justice.

Section 15 (1) provides for mandatory record of personal data of an arrested person. Such data of the suspect shall include:

(a)   The alleged offence

(b)  The date and circumstance of the arrest

(c)   Name, occupation and residential address of the suspect

(d)          The suspect’s identification such as his height, photograph, fingerprint impressions or such other means of identification.

Section 15(2) of the Act provides that the process of recording personal data of the suspect shall be concluded within a reasonable time and not exceeding 48 hours. This is to check the prolonged pre-trial detention by the police or other law enforcement agencies.

Section 15(4) of the Act also provides for electronic recording of confessional statement of the suspect on a retrievable video compact disc or such other audiovisual means. This ensures that violence is not unleashed on suspects during interrogation and will show whether any particular extrajudicial statements are voluntary or involuntary.

Section 16(1) of the Act provides for the establishment of a Police Central Criminal Records Registry. This will ensure that vital records and information in aid of investigation, prosecution and adjudication are available to speed up the trial process and provide avenue for future references.

Section 16(2) of the Act provides that a Criminal Records Registry is to be established at every state Police Command which shall keep and transmit all criminal records to the Central Criminal Records Registry. This also promotes coordination and control including accountability particularly in the keeping of records.

Section 16(3) of the Act mandates the Chief Registrar of the courts to transmit the decisions of the court in all criminal trials to the Central Criminal Records Registry within 30 days after delivery of judgment. This will assist speedy compilation of records of proceedings and by implication lead to quicker dispensation of justice.

However, where there is default by the Chief Registrar to transmit records within 30 days after judgment, he shall be liable to disciplinary measures by the Federal Judicial Service Commission for misconduct.

The rationale behind the establishment of Central Criminal Records Registry is to avoid a repeat of what happened in the case of Agbi v. Ibori (2004) 6 NWLR (Pt. 868) 78 where the true identity of James OnanefeIbori, who was convicted by the Upper Area Court, Bwari in case no: CK/81/95, was in doubt whether the convicted James OnanefeIbori was the Governor of Delta State or not. This provision will forestall such embarrassment.

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