For Nigeria and Nigerians to be able to enjoy the lofty provisions of the Administration of Criminal Justice Act (ACJA) 2015 vis a vis the Nigeria Constitution, the Nigerian government needs to be seen to be fully committed to improving the Nigeria criminal justice system by providing all that is needed to make the ACJA 2015 work.
The Administration of Criminal Justice Act 2015 is an act of the National Assembly signed into law by the administration of President Goodluck Jonathan in May 2015. With 48 parts of 495 sections, the Act repealed the two principal legislations that governed the administration of criminal justice in Nigeria’s post-independence era, namely: the Criminal Procedure Code for Northern Nigeria, the Criminal Procedure Act for Southern Nigeria and the Administration of Criminal Justice Act CAP A3, Laws of the Federation 2004.
The Act substantially preserved the existing criminal procedure systems but introduces innovative provisions that could enhance the efficiency of the justice system. The provisions of the Act however apply to criminal trials for offences established by an act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja, but does not apply to a Court Martial, as expressly provided under section 2(2) of the Act.
Purpose of the Act
Section 1 of the Administration of Criminal Justice Act 2015 succinctly provides that 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 the interests of the suspects, the defendants, and the victims.
This objective or purpose, as set out in section 1 of the Act, is a paradigm shift in the criminal justice system of Nigeria, from a punitive approach to a restorative approach, with the needs of the society, victims, vulnerable persons and human dignity at the forefront.
By so doing the Act has introduced innovative provisions that not only promotes the speedy dispensation of justice, but is capable of restoring public confidence in the Nigerian justice system.
Innovative Provisions of the Act
The Administration of Criminal Justice Act (ACJA, 2015), as earlier noted, has brought great innovations into the Nigerian criminal justice system, in line with the constitutional provisions of the Fundamental Human Rights clauses of Chapter Four of the Constitution of the Federal Republic of Nigeria 1999, as amended, The Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights (Ratification and Enforcement Act) CAP A20 Laws of the Federation 2004 and the evidence Act 2011. These innovations are:
i. Unlawful Arrest: Previously, before the enactment and signing into law of the ACJA 2015, the police under section 10 of the Criminal Procedure Act (CPA), applicable to the southern part of Nigeria, could arrest a person without a warrant if the person has no ostensible means of sustenance and cannot give a satisfactory account of his or her activities. This provision, in the extant CPA, led to the police and other law enforcement agencies arresting relatives and friends of alleged suspects when they cannot be linked to an offence. The Administration of Criminal Justice Act 2015 has prohibited this. Section 2-7 of the ACJA clearly has set out the procedures to be followed when arrests are carried out by the police. Of particular interest is section 7 of the ACJA, which expressly prohibits arrest in lieu of suspects, and by so doing, the police or any law enforcement agency has no power whatsoever to arrest a mother for an offence committed by the son or daughter.
ii. Constitutional Rights of Suspect: The ACJA also made elaborate provision for the protection of the constitutional rights of an arrested person. Section 6 of the Act provides that a suspect shall be informed of the reason for his/her arrest, and also place a duty on the officer making the arrest to inform the person to be arrested of his or her rights to remain silent or avoid answering any question or making, endorsing or writing any statement, until after consultation with a legal practitioner or any other person of his own choice.
iii. Arraignment In Court Within a Reasonable Time: The ACJA states that a suspect shall be brought to court within a reasonable time or released on bail, whether conditionally or unconditionally. This provision is in consonance with the provision of the constitution, which hitherto defined reasonable time to mean 24 hours and/or 48 hours, respectively, depending on the radius of the court from the detention centre. See section 35(5)a of the Constitution of the Federal Republic of Nigeria 1999, as amended.
iv. Establishment of the Administration of Criminal Justice Monitoring Committee: Section 469(1) provides for the establishment of the Administration of Criminal Justice Monitoring Committee as a body charged with the responsibility of ensuring effective application of the Act. Asides the express provision for the establishment of the Committee, the Act further states where the composition of the Committee shall be drawn from namely: the judiciary, Federal Ministry of Justice, Police, Prisons, Legal Aid Council, Nigeria Bar Association, Civil Society Organisations and the National Human Rights Commission, with the chief judge of the Federal Capital Territory as the chairman, and the secretary appointed by the attorney general of the federation. Apart from ensuring effective and efficient implementation of the Act by the different relevant agencies, the Committee shall also, among other things ,ensure that criminal matters are speedily dealt with, congestion of criminal cases in courts is drastically reduced, congestion in prisons is reduced to the barest minimum and persons awaiting trial are, as far as possible, not detained in prison custody.
A comparative analysis of all the agencies shows that the judiciary has made the most efforts towards complying and implementing the provisions of the ACJA. These efforts are further strengthened by the recent pronouncement of the Chief Justice of Nigeria, Justice Walter Onnogehen, for state judicial institutions to set up special courts to treat corruption cases, as well as the setting up of the Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMCO)…
v. Mandatory Inventory of Property: Another milestone achieved provided by the Act concerns the compulsory recording of the inventory of property, which the ACJA introduces in section 10. This proviso makes it mandatory for a law enforcement officer to take inventory of all items or properties recovered from suspects and this must be signed by the police officer and the suspect. The law further provides that where a suspect refuses to sign the inventory, such shall not invalidate the inventory as copies will also be given to him or her, as well as to his legal practitioner or such other person as he may direct. One great innovation worthy of note here under section 10, is that where the suspect is not charged but is released on the ground that there is no sufficient reason to charge him, any property taken from him or her shall be returned, provided the property is not connected to or the same as the proceeds of crime. It is interesting to understand here that the ACJA 2015 has, under section 337, made provision for procedure on seizure of property during arrest or investigation.
vi. Recording of Arrest and Confessional Statements: In recording the statement of an alleged suspect, the Act in laying down procedures, calls for mandatory recording of personal data of an arrested person in section 15. The conclusion of the recording should be within a reasonable time not exceeding 48 hours [section 15(2)]; section 15(4) provides that where a suspect volunteers to make a confessional statement, such statement shall be in writing or may be electronically recorded on a retrievable video compact disc or such other audio visual means. This is in line with section 84 of the Evidence Act 2011. Section 17 of the ACJA re-emphasises the provision of the 1999 constitution in relation to the recording of av suspect’s statement in the presence of his legal practitioner or any other person of his choice.
vii. Establishment of the Police Central Criminal Registry: Section 16 of the Act provides for the establishment of a Police Central Criminal Registry, which is to be located in all the Police Commands of the 36 states and the Force Headquarters, Abuja. Also all states, including the Federal Capital Territory, are to ensure that the decisions of the courts in all criminal trials are transmitted to the central criminal registry with 30 days after the delivery of judgement.
viii. Monthly Report By the Police To Supervising Magistrates: Ssection 33 of the ACJA 2015 directs the police to remit a report on the last working day of every month to the nearest magistrate on the cases of all suspects arrested with or without warrant within the limit of their respective stations or agency, whether the suspect has been admitted to bail or not. Upon receipt, the magistrate is to forward the report to the Administration of Criminal Justice Monitoring Committee. The Committee shall analyse the report and advice the attorney general of the federation on the trends of arrest, bail and related matters. The attorney general of the federation, upon request, shall also make the report available to the National Human Rights Commission, the Legal Aid Council and Non-Governmental Organisations.
ix. Monthly Inspection of Police Stations and Other Detention Centres: As provided under section 34 of the Administration of Criminal Justice Act ACJA 2015, The chief judge is to designate the chief magistrate or any other magistrate to carry out, on a monthly basis, a visit to police stations and other detention centres. The purpose of the visit is to call for and inspect the record of arrests, direct the arraignment of suspects, or where bail has been refused, grant bail to any suspect where appropriate. The visiting magistrate is empowered to treat any default by an officer in-charge of a police station or any agency as misconduct and deal with such in accordance with the relevant law.
The ACJA 2015 introduces several innovations in the Nigeria Criminal Justice Administration, which due to space constraint cannot be fully expatiated upon here. However, permit me to look at the efforts of government so far in encouraging compliance with the Act, as well as findings of the Civil Society Observatory Group set up to monitor and drive advocacy for the implementation of the ACJA 2015.
Efforts of the Nigerian Government Towards Ensuring Diligent Compliance To the ACJA By Criminal Justice Agencies
As contained under section 469 of the ACJA, the federal government of Nigeria has so far established the Administration of Criminal Justice Monitoring Committee (ACJMC) to carry out the functions as prescribed in the aforementioned section. However, it appears the impact of the Committee is yet to be felt, as the issue of lack of budgetary allocation/funding remains a major constraining factor for the Committee at the moment. On the other side of the divide and with a goal to provide oversight support for the monitoring committee set up by the Act, the Nigerian civil society has also constituted a partner observatory body of civil society organisations working in the areas of criminal justice to join in the advocacy efforts for the effective implementation of ACJA 2015. The Civil Society Observatory set up for the implementation of the Administration of Criminal Justice Act 2015 is made up of credible organisations and private legal practitioners with interest in the effective and efficient administration of criminal justice in Nigeria. The twelve (12) member Civil Society Observatory was inaugurated to monitor progress with the implementation of the Act by the relevant criminal justice agencies. Part of the Observatory’s mandate include identifying violations of the Act by the agencies and driving advocacy with the agencies, as well as public sensitisation on the provisions of the Act. Since its inauguration, the Observatory group has made a number of observations relating to the various agencies’ capacity to implement the Act.
Summary of the Observatory findings and recommendations
Findings: The Police
In the course of its work, the Observatory group paid close attention to the various implementation agencies under the Act – the Nigeria Police Force, judiciary, and the Nigeria Prisons Service to assess the progress made in the implementation of the ACJA. While the Observatory fully recognises the gamut of systemic and institutional constraints and challenges each of the agencies faces at the moment, the problem is further compounded by the lack of adequate funds, all of which contribute to the slow implementation of the ACJA by the various agencies. A comparative analysis of all the agencies shows that the judiciary has made the most efforts towards complying and implementing the provisions of the ACJA. These efforts are further strengthened by the recent pronouncement of the Chief Justice of Nigeria, Justice Walter Onnogehen, for state judicial institutions to set up special courts to treat corruption cases, as well as the setting up of the Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMCO), all of which are to ensure accelerated justice dispensation on corruption cases in compliance with the ACJA 2015. While all of the above is not to say that the judiciary is at its best in complying with the provisions of the ACJA, the obvious and conscious efforts being made are commendable.
The Nigeria Police and Nigeria Prisons Service are observed to be lagging behind in their efforts to comply and implement the stipulated provisions of the Act. Being the gate keeper to the criminal justice system, the ACJA provides extensively critical roles and responsibilities for the Nigeria Police Force and this is rightly so as the other agencies rely heavily on the police in order to achieve successful prosecution of criminal cases.
Given the existing funding constraint adduced to much earlier, which militates against the effective implementation of the ACJA, 2015 by the relevant criminal agencies, it is imperative and very urgent that for progress to be made with implementation of the Act; substantial investment and budgetary provisions need to be made in both human and material resources by the federal and state governments…
From the various experiences and findings of the members of the Observatory from different parts of the country, it has been revealed that:
1. Most men and women of the Nigeria Police are not very familiar with the key provisions of the ACJA and the relevant innovations and changes it has brought to the performance of their official duties.
2. In most police stations, illegal arrests and detention are regular occurrence with persons still being detained beyond twenty four or forty eight hours, as stipulated in the law, without arraignment in courts, corruption is still the number one impediment to the effective performance of police functions in Nigeria, as money is still being paid for bail; arrest in lieu is still being practiced, women are still not allowed to stand as sureties for suspects, while lawyers are prohibited from staying with their clients when statements are to be obtained.
3. Despite the pronouncement by the attorney general of the federation, which bars police from exercising prosecutorial powers in criminal cases in accordance with Section 106 of the ACJA, 2015, it appears that nothing has changed as the police continue to exercise these powers. These, amongst others, are some of the police practices which continue to contravene the provisions of the ACJA, 2015 and need to urgently be addressed for the intents and purposes of the Act to be achieved.
Findings: The Prisons
The call for prison reforms has been an ongoing discussion for a long time given the poor, deplorable and unimaginable state of the Nigeria Prisons System across the country. Findings made by members of the Observatory on the state of the prisons system are not far from what is already publicly known about the prisons. However, a particularly worrisome finding made by members of the Observatory is:
4. The increasing number of underage children serving terms in prison facilities, particularly in Badagry Prisons, Lagos State. According to the findings, many of these underage inmates between the ages of 12 and 17 years are sentenced for varying terms of imprisonment, ranging from a few months to three years for minor offences or street hawking. They are most times arrested, summarily tried by mobile courts, sentenced or given options of fines, running into hundreds of thousands of naira, which they are unable to pay. It is not news that the chief judge of Lagos State in August, 2017 released over 100 underage inmates from the Badagry prisons and as rightly pointed out by the chief judge, children in conflict with the law have no business being kept in prison where they are robbed of their innocence and become hardened criminals. This creates a vicious circle of youth who come out of prison more hardened to continue a life of crime and criminality, posing greater risks to the public safety and security of the society. Furthermore, the incessant arrests, prosecutions and sentencing by state-owned law enforcement agencies and mobile courts are found to be contributing to increasing the number of inmates in the already over-crowded and congested prisons, particularly in Lagos State.
5. The prison facilities lack enough functional vehicles to convey inmates to court and ambulances to convey them to hospitals, particularly during emergencies; they lack of basic medical facilities, drugs and assistance from government hospitals; and also insufficient eating utensils and uniforms for inmates, to mention a few.
6. The working and living conditions of the prison personnel are also an area in need of urgent attention.
Accordingly, the setting up of a stakeholders’ committee by the attorney-general of the federation to oversee and fast-track the decongestion of prisons and the recent directive by President Muhammadu Buhari to all state governors to work with their State chief judges to release prisoners unnecessarily detained without due process are a welcomed development and steps in the right direction to begin to address the issues of prison congestions and awaiting trial inmates, in line with the ACJA 2015.
The Observatory proffers the following recommendations to the relevant criminal justice agencies and their oversight bodies, especially the Administration of Criminal Justice Monitoring Committee (ACJMC), to support efforts that would promote the implementation of the ACJA 2015, ensure speedy dispensation of justice and an improved criminal justice system that is so much desired.
1. Given the existing funding constraint adduced to much earlier, which militates against the effective implementation of the ACJA, 2015 by the relevant criminal agencies, it is imperative and very urgent that for progress to be made with implementation of the Act; substantial investment and budgetary provisions need to be made in both human and material resources by the federal and state governments;
One of the major improvements brought about generally by the criminal justice reform is that conscious effort has been made to strengthen the rights of the defendant and reduce delays in the criminal process. Although most of the rights reaffirmed…have been in existence prior to now, the ACJA recognition of them re-emphasises the need to promote and protect them, as well as iron out grey areas in our criminal justice administration process…
2. The need for continuous capacity building and reorientation of officials across the relevant criminal justice agencies on the foundational principles, objectives, provisions and benefits of the ACJA, 2015 cannot be over-emphasised. Well groomed officials would in the long run not only change the negative perceptions and attitudes towards improving the criminal justice system but also bring about efficiency and better service delivery;
3. There is necessity of training all police investigators and other law enforcement agencies on the provision of the Act, especially in relationship to arrest, detention, bail and prosecutions;
4. There should be the immediate renovation of all courts in Nigeria to check long hand writing of cases by judges in Nigeria, through the installation of modern communication gadgets;
5. Public education and sensitisation about the provisions of the ACJA, 2015 is a necessary pre-requisite for citizens to be able to monitor, demand and hold accountable the relevant criminal justice agencies, where they contravene the provisions of the Act. Efforts should be intensified by civil society organisations, media and well-meaning Nigerians to educate the grassroots on the provisions of the Act;
6. There should be greater commitment from the federal government and relevant criminal justice agencies, most especially the Nigeria Police, to implementing the ACJA, 2015. The Nigeria Police is encouraged to have in place an effective internal oversight and accountability system that would monitor compliance of its officers and men with the provisions of the Act. Similarly, the Administration of Criminal Justice Monitoring Committee saddled with the responsibility to ensure implementation of the Act needs to be fully funded and equipped as well as given the need independence to deliver on its mandate as stipulated in the Act;
7. In relation to the Nigeria Prisons, government must make efforts to empower inmates, whether Awaiting Trial Persons or Convicts, in order to ensure that they do not return to prison upon release;
8. Effect must be given to S.468 of the ACJA 2015, focusing on parole, to ensure the decongestion of prisons. Particularly, aspects of the provision on post-prison rehabilitation of inmates and provision of budgetary allocations for this must be addressed;
9. The need to operationalise non-custodial sentencing measures cannot be over-emphasised in the effort to decongest the prisons;
10. Steps need to be taken to build synergy between the ACJMC and such committees set up in states where the ACJA 2015 has been domesticated. This would provide a platform for interaction and knowledge sharing to improve the capacity of the relevant committees;
11. Additionally, the various committees being set up by the judiciary and Federal Ministry of Justice, which have been applauded, need to be given the much needed support to deliver on their stated terms of references, and the federal government must be ready and committed to implementing the outcomes and recommendations from the committees.
One of the major improvements brought about generally by the criminal justice reform is that conscious effort has been made to strengthen the rights of the defendant and reduce delays in the criminal process. Although most of the rights reaffirmed by the Administration of Criminal Justice Act 2015, have been in existence prior to now, the ACJA recognition of them re-emphasises the need to promote and protect them, as well as iron out grey areas in our criminal justice administration process that have been long overdue. Most importantly, as the last hope of the common man, the Act places huge responsibility on the shoulders of magistrates and judges, towards ensuring effective administration of criminal justice in the country. For Nigeria and Nigerians to be able to enjoy the lofty provisions of the Administration of Criminal Justice Act (ACJA) 2015 vis a vis the Nigeria Constitution, the Nigerian government needs to be seen to be fully committed to improving the Nigeria criminal justice system by providing all that is needed to make the ACJA 2015 work.
Saviour Akpan, is executive director of COMPPART Foundation for Justice and Peacebuilding.
This piece was done on behalf of the Civil Society Observatory on the Administration of Criminal Justice Act 2015. COMPPART is a member of the Civil Society Observatory.