Critique of Administration of Criminal Justice Act (ACJA) 2015 (2)
Continued from last week
ELECTRONIC RECORDING OF CONFESSIONAL STATEMENTS
One of the greatest challenges currently being encountered in criminal trials is the fact that confessional statement are usually denied or disowned in court by the makers. The main ground for this is the alleged involuntariness of such statements as the makers of such statements often allege that they were forced to make them.
As soon as this issue arises, the trial Court is compelled to adjourn the case sine die. It will then go into a “trial within trial” to determine the voluntariness or otherwise of such statements. The trial within trial may take months to conclude before the main trial resumes.
This has contributed in no small measure in prolonging criminal trials.
In order to ensure that this monster no longer rears its ugly head, the Administration of Criminal Justice Act provides as follows in Section 15(4) “Where a suspect volunteers to make a confessional statement, the police officers shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means.”
The first observation I wish to make here is that the Act makes electronic recording of confessional statements optional instead of compulsory or mandatory.
This can be seen from the use of the word “May” instead of “Shall” in Section 15(4).
I am of the humble view that the use of the word “May” has completely whittled down what would otherwise have been a wonderful innovation. This is because the law is clear that wherever the word “Shall” is used in a legislation, it connotes mandatoriness in which case the affected person or authority would have no option or discretion in matter. On the other hand, whenever the word “may” is used it means that the doing of a particular thing is optional or at the discretion of the affected person or authority.
By making electronic recording of confessional statements optional, the Act has willingly created a loophole which will surely be exploited by investigating police officers.
This is because nothing stops a police officer from continuing with the old practice of taking the confessional statement of a suspect in secret. This would be after such a suspect would have been thoroughly tortured into submission.
I would therefore have preferred a situation where the police and other law enforcement agencies would be compelled by law to electronically and openly record the confessional statement of a suspect. Such statement will subsequently be tendered in court pursuant to the relevant provisions of the Evidence Act. This will go a long way in eliminating the rancorous situation which often plays out in Court consequent upon accused persons vehemently contesting the voluntariness of their confessional statements. It will also save the time being wasted in conducting trial within trial.
Where a suspect volunteers to make a confessional statement, the police officers shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means
The greatest challenge that will stultify the implementation of the ACJA is the fact that our Courts and police station are grossly ill equipped.
Government should therefore ensure that the judiciary and police are adequately funded otherwise the purpose of enactering the Act will be defeated.
Another interesting feature of the Act is Section 106 of the Act which makes the prosecution of cases the exclusive preserve of lawyers. In effect police personnel who are not lawyers have lost the right to prosecute.
This innovative provision of the Act is commendable as experience has shown that the bulk of criminal cases pending in our Courts are lost to poor prosecution.
But it equally means that more lawyers will need to be employed as the abolition of lay prosecution will engender a dearth of qualified manpower. Failure to fill the gap as quickly as possible will definitely create problems that will ultimately defeat the aim of the Act.
One area which I have personally seen as a source of serious concern is the failure of the Act to specifically repeal section 23 of the Police Act just as it did to the CPC and CPA.
It is from this Section that the police derive their power to prosecute cases. The continued existence of this Section in the Police Act is capable of causing confusion because both the ACJA and the Police Act are Acts of the National Assembly. None is therefore superior to the other. The implicatioan is that courts and those directly affected by the Act (such as the police) could feel free to choose which of the two Acts to obey.
I have personally argued that Section 106 of the ACJA has the effect of over-ruling the celebrated case of Osahon vs Federal Republic of Nigeria wherein the Supreme court affirmed the right of lay police personnel to prosecute cases. This was by virtue of section 23 of the Police Act. The over-ruling of Osahon’s case has the implication of equally repealing Section 23 of the Police Act which is the enabling Act.
My colleagues have however disagreed insisting that Section 23 of the police Act is still in force since they were not specifically repealed by the ACJA.
For now, the controversy will continue to linger until the Act is either amended to specifically repeal those sections or the issue is taken to court for resolution.
SPEEDY TRIAL OF CASES
The Act makes elaborate provisions aimed at ensuring that criminal cases are expeditiously disposed of.
Towards this end Section 396 of the Act provides that criminal cases shall be tried on a daily basis. Where day to day trial is impracticable, the Act provides that parties shall be entitled to only five adjournments each. The interval between each adjournment, according to the Act, shall not exceed two weeks each. Where the trial is still not concluded, the interval for adjournments will be reduced to seven days each.
• Maraizu is the principal counsel Iheanyichukwu Maraizu & Co. Abuja