Article

Nigeria’s Criminal Justice System:

Problems And Challenges


We refer to it as a system because it
embodies a network of laws and institutions
and works in a process that is supposed to
be coordinated. In addition to the legal
institutional components of the
administration of criminal justice, certain
social and moral values are supposed to be
reflected in and form a part of the
system. The legal foundation for the criminal

justice is the constitution, particularly the
portions that relate
to the powers of the court, or jurisdictional
mandate of the courts. Also, the sections of
the constitution that deal with fundamental
rights are central to the criminal justice,
particularly the provisions on right to liberty,
right to fair hearing. Excising the power of
the state to try and convict a person for
committing a crime, the state must comply or
respect the constitutional provisions on
rights. Also, the constitutional provisions
have direct control on the definition of a
crime and may place several restrictions on
the scope of the application of a penal law.
For instance, it is the constitution that
ensures that an act cannot become a crime
based on a law that came into force after the
act was committed. This is known as the
non-retroactivity of a criminal law.
Apart from the relevant potions of the
constitution, our criminal justice comprises
of the various laws in force both at federal
and state levels which establish or define
crimes or conducts that are prohibited at the
pain of criminal sanctions. Such sanctions
comprise mainly of prison sentence and/or
fines. There may be other sanctions such as
forfeiture, restitution or community service.
Note that the constitution does not control
the kind of punishment that the law can
impose. It does this through the prohibition
of cruel and unusual treatment.
To understand the criminal justice system
one needs an illustration of how it works.
The process commences when the police has
a reasonable suspicion that a person has
either committed a crime or is committing a
crime. It continues through the end of trial,
and continues, in case of conviction, through
sentencing, imprisonment and release upon
the completion of sentence. If a police officer
believes that a person has committed or is
committing a crime, an arrest occurs. What
happens after that or the processes that such
a person goes through all the way to
acquittal in court or release after his jail term
or completion of alternative punishment
constitute the criminal justice system.
As is immediately obvious from this simple
explanation, the criminal justice process
involves several distinct stages. And in any
individual case, the process can terminate at
any of such stages. The purpose of this
commentary is to highlight certain obvious
anomalies and shortcomings in the Nigerian
Criminal Justice with a view to focusing your
attention and seeking reforms thereof.
In the Nigerian system, the most active
stages are arrest, filing of criminal charges
and the bail hearing, which is otherwise
known as detention hearing.
ARREST: Focusing on arrests by the police,
the legal standard is reasonable suspicion.
The police must have a reasonable suspicion
that a crime has been committed. That
suspicion then forms a basis upon which the
police officer applies to the court, with an
affidavit, for a warrant of arrest. The affidavit
shall set out with sufficient specifically that
offence has been committed and the facts
upon which such suspicion are based. The
judge reviews such application and usually
issues a warrant for the suspect to be
arrested. It is not in all circumstances that
the police must first apply and obtain a
warrant of arrest before an arrest could
occur. If, for instance, a police officer
witnesses a crime being committed, he can
make an arrest on the spot without the need
for a warrant. But such exception to the
requirement for warrant should be
comparatively fewer than warrant-based
arrests. On this reasoning, in nearly all cases
where the police is acting based on a
complaint by either the victim of a crime or
third party, there ought to be a warrant of
arrest before the police could arrest that
should apply to nearly all the EFCC cases, as
they are usually based on some complaint.
The warrant-based arrest is the preferred
form of arrest in all civilized and democratic
countries. The reverse is the case under
dictatorships and repressive regimes.
There are several reasons why warrant-
based arrests are more acceptable form of
arrest in democracies and in the civilized and
human societies. First, arresting a person
constitutes the taking away his liberty which
is a constitutionally guaranteed right. Such a
serious event should only be done based on
a serious ground and a verifiable process. To
obtain a warrant to arrest a person means
that the police officer has thought carefully
through the question of whether there was a
reasonable ground to suspect that a crime
was committed. It also means that a judge
has been persuaded to share in the
reasonableness of that suspicion. Therefore,
obtaining a warrant reduces arbitrariness on
the part of the arresting officer. Also, by
going through the process of preparing an
application for a warrant, the arresting
authority which usually works closely with
the prosecutor is well prepared to move
forward with the case once arrest has
occurred. Also as the application for a
warrant involves some articulation of factual
basis for suspicion, that process gives the
police and the prosecutor the opportunity to
conduct some level investigation of the crime
prior to arrest. That minimizes incidence of
false arrests. In addition, the involvement of
judicial officers in the case prior to arrest,
that is, at the point of issuing the warrant,
places the stamp of higher authority and
fairness on the case at an early stage. It also
minimizes the chances that the case would
be defeated preliminarily at the point of
opening.
In Nigeria, unfortunately, the considerations
raised above do obtain. Arrests are made by
the police/EFCC on the whim. There is no
way to avoid extreme subjectivity and
arbitrariness or corruption in the arrest stage
of the process. The officer arrests as he
deems fit, at his own time and for his own
reason, which he is free to change as the day
goes. For the EFCC, the only thing their
officers need to affect an arrest is a
complaint. And there are virtually no
standards for the content or form of such
complaints. The complaints are not required
to be under oath. Indeed, it is strongly
believed that EFCC officers write some of the
complaints that form the basis for their
arrests. The damages of such a loose system
of arrest are too numerous to count. Among
them is the number of unlawful and abusive
arrests and detentions. The incentive for
corruption and abuse of human rights are
more. And it usually undermines effective
prosecution and imperils the entire criminal
justice process as we see down the stages.
CHARGING THE SUSPECT: The next stage in
the process after a person has been arrested
is charging him formally with the
commission of any one or more of the
offences in the various laws that establish
crimes or offences in Nigeria. This involves
filing a charging document, known as An
Information, in Nigeria. The information
contains a short statement of the offence and
the section of the law involved. It is followed
by a more detailed description of the act that
formed the bases of the particular violation.
The short and detailed statements of the
offence are known respectively as the count
and particulars of the offence. Each set of
count and particulars constitute the complete
information for the offence in the charging
document. There could be several sets of
such information. The information comes
with summons from the court stating the
date for the case and the suspect to be
presented in court.
How soon after the arrest that a person s
charged and presented to the court varies.
But the constitution requires for that to be
done within 48hours. In most parts of the
world, the time line is really short and within
a few hours, usually less than 24 hours after
arrest.
Before discussing the charging process any
further, let me address the question of the
decision to charge a person and the legal
standard that informs decision. Unlike the
decision to arrest which is based on the
reasonable suspicion standard, the decision
to file a criminal charge against a person
requires the existence of probable cause.
Probable cause exists when the prosecutor
reviewing the evidence available reasonably
believes that the evidence is sufficient to
prove the case beyond reasonable doubt,
which is the legal standard of proof required
to convict a person.
Clearly, the probable cause decision is a
logical progression of the reasonable
suspicion determination. It is the same chain
of information and facts that led to arrest that
usually continues to the decision to charge a
person. Though it does happen that a person
may be arrested for one offence, but end up
being charged with entirely different offence.
The correlation is that a good police work at
the arrest stage naturally leads to a good
work at the charging stage. Where a warrant
of arrest was duly obtained, the charging
language usually derives substantially from
the language in the application for warrant.
This ensures a smooth flow of the process. It
is important to note that it is not all arrests
that result in charges being filed. Sometimes
there may be a reasonable suspicion to
arrest, but there would not be probable
cause to file a charge. This is significantly
more the case in cases of arrest without
warrant.
In Nigeria the situation is significantly
different. The huge problems with the arrest
decisions tend to spill over to the probable
cause decisions. Because people have been
arrested arbitrarily and with clear articulation
of the facts that inform the decision to arrest,
it becomes difficult to formulate a charge
against them. Often, the first time that the
police and prosecutor ever bothered to
articulate a theory of crime or to pin down the
offence a suspect committed is at the
charging stage. This could be extremely
difficult because the prosecuting authority is
by now under considerable pressure. A
person has been arrested and detained in
clearly arbitrarily fashion or based on an
avoidable mistake. The prosecutor may not
like to own up to that mistake and thereby
expose a colleague that carried out the
arrest.
This situation is so common with EFCC. In
majority of their cases, their legal officials
are at much loss in formulating a charge.
The immediate consequence is that the
suspect is detained for unreasonably a long
period after arrest has occurred, in complete
violation of the constitutional time limit. At
the same time several cover-up measures
and subversion of justice are carried out by
the EFCC officials. Such acts include
pressures brought on the suspect for him to
confess and incriminate himself, and
sometimes blatant acts of coercion. Also the
EFCC officials prefer to run to a magistrate
court or other courts to obtain a remand
order. In many cases, the complaint that led
to the arrest has been with the EFCC for
months before the arrest occurred. Yet, they
go to the court to request for order to remand
a suspect days after he has been in their
custody.
Another method of covering up mistakes in
EFCC is for the officers to pretend to grant
the suspect one of their administrative bails,
but with terms that are impossible to meet or
simply prevent the suspect from meeting the
terms. They then turn around and pretend
that the suspect having been granted bail is
no longer in their custody against his will.
Yet another method deployed by the EFCC to
try to evade the constitution is to proceed
and file a doomed charge. As the charge gets
thrown out of court, they file another charge
and re-arrest the suspect and thereby
commence a new round of detention.
In my case, EFCC arrested me on February
14, 2011. They had absolutely no idea what
offence I could be said to have committed.
For that reason no one in EFCC could even
tell me what offence was in their mind. It was
not until February 18 that the EFCC officials
told me the offence they were considering.
Even at that they had absolutely no idea what
evidence they needed to have, and this is
despite the fact that they had placed me on
the wanted person’s list two months before I
was arrested. After detaining me for 10 days,
EFCC went to the court in my back and
obtained an order to keep me for 2 weeks.
Upon the expiration of that order, they
renewed it for another two weeks all in my
back. And this is one of the points where
Nigerian legal system hits its lowest marks
– a judge who claims to have anything to do
with administration of justice grants an ex
parte order twice to detain a suspect already
in custody. By so doing, the judge tries to
legitimize injustice and oppression.
BAIL APPLICATION AND DETENTION:
This is the next stage after a suspect has
been arraigned in court. As of today, this is
clearly the most difficult stage and strangely
the most decisive one in our criminal justice
system. As has been demonstrated by both
the police, the prosecutors, and even by
many judges, this is the grand finale or do-
or-die stage in the process. In other parts of
the world, the detention hearing stage which
is routinely crossed relatively quickly, is not
a major stage in the process. That is to say;
detention hearing does not rise higher in
importance than the trial stage. In Nigeria, on
the other hand, it is everything. This is why
over 75% of prison inmates across the
country are people awaiting trial, which
means they are people who were either
denied bail by the courts or who received
harsh and excessively difficult bail terms
they could not meet. And this is why many
people have remained in awaiting-trial
status longer than the period of jail term they
would have served if they were promptly tried
and convicted of the offences they were
charged with.
In America and all commonwealth countries,
once a person is arraigned, the court
assumes jurisdiction to determine whether
the person should be detained or set free
pending the trial of the person for the
offences charged. It is fairly automatic that
the judge will address that matter and make
a decision either way and set out the terms
for further detention or release. In carrying
out this function the judge is guided by a
body of jurisprudence centering on the full
package of due process rights of the
accused, particularly the presumption of
innocence. This is weighed against the need
to ensure that the accused, if released would
be available for trial.
By the automatic nature of bail hearing,
courts in all parts of the world automatically
assume the mandate once pleas are taken.
The court must address the constitutional
presumptions of innocence. As a matter of
law without addressing that important
constitutional point, there would be no basis
to detain an “innocent” person. In other
places, the judge would raise and address
the issue of bail even if both the defense
counsel and the prosecutor fail to raise it. It
is not necessary therefore for the defense
counsel to apply for bail in order for the court
to raise it. Also, the prosecution must raise
the bail question even if the defense does
not. The prosecution must be ready to
initiate the issue, even for the purpose of
justifying denial of bail or detention. It is
highly unusual for the court to rise without
anyone addressing the bail question.
Nigeria is a marked departure from the
world-wide practice. As mentioned above,
the bail stage is often the target of the
prosecution. The danger is that outcome of
bail hearings overshadow the rest of the
case. In the EFCC cases, the aim of the
prosecution is simply to get the accused
detained without bail. The judges also
contribute profoundly to the problem. The
judges tend to treat bail hearings as if they
are the central point in the process. This
could explain why most are not willing or
ready to address bail applications in a timely
manner. First, in almost all the Nigerian
courts recently, the judges insist that bail
applications must be in writing and they
allow the prosecution extraordinary long
time to respond to the written bail
application. Rather than disposing of bail
applications with the priority and urgency
that would accord meaning and effect to the
constitutional presumption of innocence, the
courts surprisingly adjourn bail hearings
many times and for as long as a month or
more while remanding the suspect in police
cells and prison custody pending such a time
the court finally disposes bail.
Another area of grave concern in our criminal
justice as pertains to bails is the fact that our
judges routinely impose excessive and harsh
bail terms, which forces the suspect to
remain in custody even after being admitted
to bail. This tends to suggest that even the
judges see the bail stage as the most
important part of their work. Also, it tends to
show that the judges do not really care about
the issues of the constitutional presumptions
of innocence and fair hearing. I emphasize
fair hearing at this point because if the
suspect is unduly held in detention pending
his trial, he may effectively be denied the
opportunity to defend himself.
From all studies, the practice of the EFCC
reflects the worst abuses of the bail process.
First, there is a standing policy in EFCC for
their lawyers to oppose bail, all bails. Even
in situations where EFCC had previously
granted administrative bail, they still oppose
court bail and demand that the suspect be
remanded in prison custody until the end
trial. Surprisingly, the courts countenance
such practice. During an interrogation right
after arrest, the EFCC operatives would tell a
suspect that they would put him in jail. This
threat continues even when the EFCC
lawyers get involved. In the end, what they
mean by putting the suspect in jail is no
more than the long detention period between
arraignment and perfection of any terms of
bail. Also, EFCC abuses the rights of
suspects by refusing or failing to perform
basic verification functions for the suspect to
be released on bail. And the courts seem
totally unable to do anything about such
abuses.
Worthy of specific mention here is another
practice by our courts which is to deny bail in
exchange for a promise of speedy trial. In
other words, the judge would decide that
instead of granting bail she would speed up
the trial. With due respect to the intentions of
the judge here, this smarks of fraud. First and
foremost, the judge is already under an
obligation to try all cases as quickly as is
consistent with the requirements of the
procedural due process. A judge cannot
chose to delay a trial. Therefore speaking of
speeding up of trial is a suspect proposition,
especially when couched as an alternative to
bail.
There are many other reasons why such a
proposition appears fraudulent and
untenable. There are many things involved in
the trial of a case that are beyond the control
of the court. For instance, the case could get
transferred to another judge who did not give
the personal promise of a “speedy” trial.
Also, there may be legitimate grounds for
preliminary motions, all of which would delay
trial. It is a due process right of the accused
to avail himself of preliminary challenges to
jurisdiction and similar matters. Promising a
speedy trial in the circumstance under
discussion is a miscarriage of justice and a
basic failure of the courts.
The only way a person wrongly denied bail
can be compensated is if during his eventual
sentence he receives credit for time already
served. But such is hardly any solace
because it presupposes that the suspect
would be found guilty and such negates the
constitutional presumption of innocence.
Also, it must be said that a judge who finds
that a man he is about to acquit has already
spent more time in prison than the sentence
allowed by law is likely to pronounce such a
man guilty in order to cover up for the
blunder in unreasonably denying him bail so
he could give him credit for time unjustly
spent in custody. One illustration comes very
handy here. In the case of Jimoh and others,
the 3 accused men were denied bail by a
Lagos State High Court judge. They were
accordingly remanded in Kirikiri prison, while
the judge promised to complete trial in 6
months. Five years after, the trial had not
ended. The case had been transferred twice
to different judges. Within the time, one of the
3 accused men died in prison. And at the end
of it all, EFCC was not yet ready to prosecute
as they still did not have the evidence they
ought to have had before they filed charges.
Instead, EFCC officials pressured Jimoh to
plead guilty. He was so tired of the whole
ordeal he agreed to plead guilty to the
offences charged. Realizing that the offences
charged carry punishments far less than the
time Jimoh had already spent in prison, EFCC
officials decided to amend the charges in
other to add new offences that would carry
longer so sentence. Jimoh pleaded guilty to
all, and was so desperate for any change of
scene that he was ready to plead guilty to
murder. In the end the third judge sentenced
him to 3 years in prison and granted him
credit for time served. By the way the
offences centered around a fraud of two
thousand dollars. Meanwhile, 7 years after,
Jomoh’s surviving co-accused who refused
to plead guilty remains in prison without bail
awaiting trial. Jimoh’s case is typical of the
blunder and anomaly that occurs when a
judge believes that a promise of speedy trial
is a remedy for unjust denial of bail.
Finally on this, the problems we have just
addressed in the area of bail in Nigeria are
directly connected to the problems we saw in
the earlier stages of the process such as the
stage of arrest and charging of the accused.
Usually, when a person is wrongly arrested
and wrongly charged, it becomes clear that
such a person would likely be acquitted after
trial. An abusive law enforcement agency
and prosecutor would see the pre-trial
detention due to a denial of bail as the only
opportunity to incarcerate and punish the
suspect. Because bail hearings do not
address the factual basis of innocence or
guilt, the oppressive and corrupt criminal
justice system routinely imprisons innocent
people who would otherwise never be
convicted after trial. The mere fact that a
person was arrested by a corrupt officer
leads unfortunately to months in jail
regardless of the absolute lack of basis for
such arrest.
The above account reflects a crisis in the
Nigerian Criminal Justice system. At present,
there are no immediate solutions in sight.
The only option available for the accused is
to commence fundamental right enforcement
immediately there is an arrest. At least, that
will force the government to take you to court
and for the long bail process to commence
sooner. Also, everybody acquitted should
sue for malicious prosecution against the
prosecutor and the complainant. Also
consideration must be given to the
possibility of filing a complaint against
judges that repeatedly and blatantly abuse
their discretion in wanton and reckless
manner. At the rule and policy-making
levels, the courts should make new rules of
procedure to ensure that bail applications
and hearings do not last longer than two
weeks and a judge must give judgment on
bail within 24 hours after the hearing. Also,
there should be no basis for a judge to not
hear oral bail application. Also such rule
must require that a judge receive a report if
after 30 days a person admitted to bail fails
to meet terms of bail. Such a report should
be a basis for the court to hold a hearing
within 7 days on whether to vary the terms of
bail. Similarly, the legislatures should make
laws to the same effect. At the professional
organization level, the Bar Association must
step up to the plate and fight this crisis.Ugly on us
Emeka Ugwuonye