Critique of Administration of Criminal Justice Act (ACJA) 2015 (3)
Continued from last week
The Court is now empowered to award costs in criminal trials to discourage frivolous adjournments. This provision is excellent if only it will be diligently implemented. Day to day trial of criminal cases means that more hands are needed to do the job. It also means that there must be an enhanced welfare package to motivate the personnel. Equally important is the fact that there must be improved facilities. In particular, the anachronistic method of recording court proceedings manually must be phased out.
Without doing all these, Section 396 of the Act will simply not work. Under Section 396(7) of the Act, a judge of the High Court who has been elevated to the Court of Appeal is now permitted to continue to sit as a High Court Judge only for the purpose of concluding hearer matters pending before him as at the time of his elevation.
This is quite commendable as it has taken care of the situation where such cases would have to start de novo. I am however of the opinion that this provision should be made applicable to magistrates who are elevated to the High Court.
TIME LIMIT FOR ISSUANCE OF LEGAL ADVICE
It is a well known fact that issuance of legal advice by the DPP has been a close in the wheel of prosecuting criminal case in Nigeria. This is because in some cases, such advice takes years in coming.
However, Section 376 of the Act now makes its mandatory for the DPP to issue such advice (whether or not there is a prima facie case against an accused person) within two weeks of receiving the case file from the police.
To my mind however, whether or not two weeks is enough to issue this advice will depend on the work load in the office of the DPP but I am sure that the framers of the Act must have taken all relevant factors into consideration before giving the two week deadline. But it’s a very commendable provision that can always be improved upon.
There has been a long standing controversy as to whether women are qualified to stand as sureties for bail applicants. This is notwithstanding the clear provision of Section 42(1) of the 1999 Constitution which guarantees the right to freedom from discrimination.
This unnecessary controversy has been finally laid to rest by the ACJA which clearly provides in Section 163(3) as follows: A person shall not be denied, prevented or restricted from entering into recognizance or standing as a surety for any defendant or applicant on the ground only that the person is a woman”.
This provision is commendable not only because it reinforces the provisions of the 1999 Constitution but also because it equally reinforces the Convention on the Elimination of All forms of Discrimination against Women (CEDAW).
In practice however, I have seen situations where women were prevented by the police from standing as sureties for their own husbands. This is to prevent a situation where the Couple can easily conspire and escape after securing bail. This will make it impossible for the police to get the suspect to face his trial.
I personally believe that there is some justification in preventing a woman from bailing her own husband especially in serious criminal cases. I therefore expect that as events begin to unfold, the National Assembly will consider the possibility of making Section 167(3) the general rule. It will then create an exception to the general rule which will be to the effect that in serious criminal cases a woman should not be allowed to stand as surety for her own husband.
If this is not done and urgently too, criminally minded couple may exploit the blanket provision in Section 167(3) to escape justice. If this happens, one of the main purposes of the Act would have been defeated.
All I have done is to examine some salient aspects of the new Act as the entire legislation will be difficult to review in a single write-up of this nature. Other provisions of the Act especially the controversial plea bargaining will be examined critically in another write-up.
For now it is pertinent to conclude that for the Act to be successfully implemented all hands need to be on deck. Enough money must be made available. Whatever is provided must be judiciously utilized and there must be a determination by all concerned to make the Act work. Any thing to the contrary can only bring us back to square one.
Maraizu is the principal counsel Iheanyichukwu Maraizu & Co. Abuja.