The Administration of Criminal Justice Act, 2015 (1)

By Femi Falana   |   31 August 2015   |   4:09 am  

JusticeUPON the restoration of civil rule in 1999, the Olusegun Obasanjo Administration ensured that the ICPC Act was enacted to deal with the menace of corruption.

Following the decision of the commission set up under the law, to arrest some officials of the Ondo State government for alleged corrupt practices, the constitutional validity of the ICPC Act was challenged at the Supreme Court.

Under the pretext of awaiting the decision of the apex court, the various counsel defending accused persons who were charged with corruption at the various high courts successfully applied for a stay of proceedings.

In its verdict delivered two years later, the Supreme Court upheld the validity of the ICPC Act. At that juncture, the defendants filed preliminary objections to challenge the competence of the corruption charges pending in the trial courts. The objections were heard and dismissed because they were all designed to stall or frustrate the prosecution of the defendants. The proceedings were further challenged by the defendants who appealed against the rulings of the trial courts and filed applications for stay of proceedings pending appeal which were curiously granted either by the trial courts or the Court of Appeal.

When the Court of Appeal equally dismissed the interlocutory appeals, the accused persons approached the Supreme Court for redress by filing notices of appeal together with applications for stay of proceedings pending the determination of the appeal. That was how the procedural practice of suspending trials via stay of proceedings was smuggled into the Nigerian criminal justice system by senior lawyers and judges. The practice has since continued to frustrate the prosecution of criminal cases involving politically exposed persons and other members of the ruling class. Through such dilatory tactics, one of the interlocutory appeals filed at the trial court in a particular corruption case was determined 14 years later by the Supreme Court.

Based on the frustration encountered by the ICPC in the prosecution of corruption cases, Section 40 of the EFCC Act has clearly prohibited stay of proceedings during the trial of any person charged with economic and financial crimes. But in violation of the law, judges have been granting orders for stay of proceedings filed by criminal suspects. Out of frustration, President Jonathan was compelled to task the leadership of the judiciary to arrest the undue delay encountered in the prosecution of criminal cases in the trial courts. The challenge was taken as the 2013 practice directions were issued for each of the federal courts. Under the said practice directions, the trial of terrorism and corruption cases shall be conducted day by day while appeals arising from them are to take precedence over other matters pending in the courts. But for some inexplicable reasons, the practice directions have not been applied by any of the courts!

The intervention of the ACJA
It was the virtual collapse of the criminal justice system which led to the enactment of the Administration of Criminal Justice Act, 2015. In a rather comprehensive manner, the Act has provided for the administration of criminal justice in the courts of the federal capital territory and other federal courts except courts-martial which have separate rules of procedure. Even though it is a federal enactment, some of the provisions are of general application throughout the country. In particular, arrests and detention of all criminal suspects shall be regulated by the provisions of the Administration of Criminal Justice Act.

The purpose of the Act is to ensure that the system of administration of criminal justice in Nigeria promotes 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. The Act has 495 sections with detailed provisions on arrest, warrants, investigation, trial, conviction, imprisonment, plea bargain, community service, parole, suspended sentence, etc. The Act which came into force on May 13, 2015 is expected to revolutionise the criminal justice system.

Rights of suspects arrested by the police
Except when a suspect is in the actual course of the commission of an offence or is pursued immediately after the commission of an offence or has escaped from lawful custody, the police officer or other persons making the arrest shall inform the suspect immediately of the reason for the arrest and the rights to remain silent or avoid answering questions until after consultation with a legal practitioner or any other person of his/her own choice. The suspect is entitled to consult a lawyer of his/her choice or free legal representation by the Legal Aid Council of Nigeria where applicable. Provided that the detaining authority shall notify the next of kin or relative of the suspect of his/her arrest. Arrests of innocent persons in lieu of suspects or on a civil wrong or breach of contract are prohibited.

Every suspect is entitled to make a statement in the presence of their lawyer or in the presence of any other person of choice. To check the prolonged pre-trial detention of suspects by law enforcement agencies, the recording of personal data of a suspect shall be concluded within 48 hours. The Act provides for electronic recording of confessional statement of a suspect on a retrievable video compact disc or such other audio-visual means. It will eliminate the incidence of trial within trial which is always ordered when a defendant objects to the tendering of confessional statements.

In line with Section 34 of the Constitution which has guaranteed the fundamental right of every person to dignity of their person, the Act has prohibited the torture of suspects by law enforcement officials. A suspect may not be handcuffed, bound or be subjected to restraint except: (a) there is reasonable apprehension of violence or an attempt to escape; (b) the restraint is considered necessary for the safety of the suspect or defendant; or (c) by order of a court. Any default by an officer-in-charge of a detention facility to comply with the provisions of the Act shall be treated as a misconduct and shall be dealt with in accordance with the Police Act.

Record of arrests
An officer in charge of a police station or any other detention facility shall, on the last working day of every month, report to the nearest Magistrate the cases of all suspects arrested without warrant whether the suspects have been admitted to bail or not. The Magistrate shall forward them to the Criminal Justice Monitoring Committee which shall analyse the reports and advise the Attorney-General of the Federation as to the trends of arrests, bail and related matters. The Attorney General of the Federation shall, upon request, make the report available to the National Human Rights Commission, the Legal Aid Council of Nigeria or a Non-Governmental Organisation.

The Chief Magistrate shall, at least every month, conduct an inspection of police stations or other places of detention within his/her territorial jurisdiction other than the prison. An officer in charge of a detention facility shall make the report available to the visiting Chief Magistrate. The High Court judge having jurisdiction shall visit such detention facilities operated by other Federal Government agencies authorised to make arrests.

The Comptroller-General of Prisons shall make returns every 90 days to the head of the court in which the prison is situated and to the Attorney General of the Federation of all persons awaiting trial held in custody in Nigerian prisons for a period beyond 180 days from the date of arraignment.
The central criminal registry and database of criminal record

There shall be established at the Nigeria Police Force a Central Criminal Records Registry and at every state police command to which shall be transmitted all criminal records. All police commands shall ensure that the decisions of the courts in all criminal trials are transmitted to the Central Criminal Records Registry within 30 days of the judgment. The Attorney General of the Federation shall establish an electronic and manual database of all records of arrests at the Federal and State levels.
Detention pending trial

A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand. An application for remand under this section shall be made ex parte and shall be returnable within 14 days. Where the Court, after examining the reason for the arrest and for the request for remand is satisfied that there is probable cause to remand the suspect pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court, as the case may be, may remand the suspect in custody. If a remand order is made the case shall be returnable within 14 days in the first instance.
Control of prosecution of criminal cases

Subject to the provision of Section 174 of the Constitution, relating to the powers of prosecution by the Attorney-General of the Federation, prosecution of all offences in any court shall be undertaken by: (a) the Attorney-General of the Federation or a Law Officer in the Ministry or Department; (b) a legal practitioner authorised by the Attorney-General of the Federation; or (c) a legal practitioner authorised to prosecute by this Act or any other Act of the National Assembly. By this provision, the prosecution of federal offences by police officers who are not legal practitioners is no longer permitted.

• To be continued tomorrow
• Falana, a Senior Advocate of Nigeria (SAN), wrote from Lagos.



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