Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law, including the 1999 Constitution of the Federal Republic of Nigeria. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[i]
In recent past, particularly in high profile cases, there has been an upsurge in the number of prospective or ongoing criminal trials in which human rights applications have been made in a bid to forestall arrest, investigation or even truncate the entire process. Therefore, I would like to diagnose the rights of an accused person both to a real or perceived breach and an impending breach. In doing this I will answer the following questions (with necessary modifications duly inserted):
- Can it be said that an investigation, arrest and or prosecution generally violate the rights of an accused person?
- At what point can an application for the enforcement of human rights be said to be a proper response to an impending investigation, arrest and or prosecution?
- Is there a real connection between enforcement of human rights and criminal processes carried out in apparent regularity with legally prescribed procedures?
- Should accused persons be concerned, whether real or perceived, that their constitutional safeguards in criminal trials were not being protected by the trial judge, where would be the proper forum for seeking the protection of the rights being violated?
With this in mind, I will proceed to highlight the rights of an accused person as enshrined under the Constitution of the Federal Republic of Nigeria, 1999. Bearing in mind also the African Charter on Human and Peoples Rights and where need be the Fundamental Rights (Enforcement Procedure) Rules, 2009.
CONCEPT OF RIGHTS OF AN ACCUSED PERSON
Under Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, the rights of an accused person are fully guaranteed. The relevant sections are sections 35 and 36. The Former deals with the right to Personal Liberty and the latter, the right to fair hearing. The provisions of these sections are designed to adequately protect a person alleged to have committed any criminal offence in the administration of criminal justice, so that justice is not only done but seen to have been done and actually done.
- CAN IT BE SAID THAT AN INVESTIGATION, ARREST AND OR PROSECUTION GENERALLY VIOLATE THE RIGHTS OF AN ACCUSED PERSON?
In determining whether an investigation, arrest and prosecution violates the rights of an accused person, the CFRN deems any accused person innocent until tried by a competent court and found guilty.[ii] Anti-corruption or security agencies rather nibble away at their credibility by harassing, detaining and meting out other forms of indignity to citizens in a bid to show that they are working.
The Department of State Security (DSS) might not have taken into consideration these ramifications before it decided to investigate the immediate past National Security Adviser (NSA) Col. Sambo Dasuki (rtd) and Chief Security Officer (CSO) Gordon Obuah, both aides of erstwhile President Goodluck Jonathan. The result was the condemnable shoddiness of the DSS in the performance of its duties that has jarred public consciousness. The agency’s operatives laid siege to Dasuki’s home and prevented his family from having access to him. They took away vehicles, money and other valuables and even broke into his father’s home while the old man was away in London.
And for Obuah, his detention for days triggered anxiety over his health that was only allayed when he was allowed to appear before journalists. Nobody queries the right of the operatives of the DSS to summon any citizen for questioning, especially when allegations of the abuse of public office are made against him or her. However, it was obvious that the DSS operatives did not execute the investigations of the two officials in a manner that freed it of criticism.[iii] Generally, an investigation, arrest and subsequent prosecution would not violate the rights of an accused person. However, if an arrest is carried out before investigation, then the rights of an accused person would have been breached or violated.
In furtherance of this, I would like to bring to the core the statement by Mahmud Mohammed GCON (Chief Justice of Nigeria) when he received delegates of the Central Bank of Nigeria. His Lordship at that meeting charged security agencies to ensure that investigations into fraud and other criminal cases were properly carried out before charges are filed against suspects. The CJN, who also discouraged filing too many counts of charges against suspects, advised that security agencies’ approach to prosecuting offenders should be investigation-led arrest and not arrest-led investigation.[iv] Also, a Lagos-based Lawmaker, Honourable Olumuyiwa Jimoh, opined in an interview that investigation should come before arrest so that people would not just be accused unnecessarily. After the investigations, you can then make arrest. This is in order to save public funds from waste too as it must always be remembered that the money for prosecution is not coming from individuals, it is coming from the Federal Government.[v]
The rights of an accused person are enshrined in paragraphs a-e of section 36(6) of the Constitution.[vi] It stipulates the procedures to be followed by security agencies in investigating, arresting and or prosecuting accused persons. Hence, they are obliged to follow the laid down procedures of subsection (6). If they do not follow, with all sacrosanctity the provisions laid down, they cannot escape the charge of violating the rights of an accused person, thereby making human rights application inevitable.
In conclusion also draws strength from section 3 of the Administration of the Criminal Justice Act, 2015, under which a suspect charged with committing an offence shall be arrested, investigated, tried or dealt with according to the provisions of the Act except otherwise provided under the Act, goes to show that an investigation, arrest and or prosecution generally does not violate the rights of an accused.
- AT WHAT POINT CAN AN APPLICATION FOR THE ENFORCEMENT OF HUMAN RIGHTS BE SAID TO BE A PROPER RESPONSE TO AN IMPENDING INVESTIGATION, ARREST AND OR PROSECUTION?
By virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules any person who alleges that any of the Fundamental Rights provided for in the Constitution[vii] and/or the African Charter on Human and Peoples’ Rights[viii] and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court for redress.[ix] In other words, an applicant can bring an application for the enforcement of his human rights anytime and at any stage of a criminal process if he believes that the procedure(s) employed has contravened, is contravening or is likely to contravene his/her rights under the above laws.[x] In Nigeria, a lot of cases have come before the courts with petitions requesting injunctions preventing arrest, investigations or prosecutions. Most of the time, these injunctions are sought by high profile personalities in the society who claim that their rights would be contravened if the process is left to go further. However, it appears the applications for preventive injunctions are mere attempts at evading prosecution.
The first case that comes to mind is that of former Rivers State Governor, Peter Odili, who obtained a controversial court injunction that made him perpetually immune from arrest and prosecution by the Economic and Financial Crimes Commission. The former governor alleged that the allegations in the EFCC report were false and contrived maliciously against him and his administration in order to force him out of the People’s Democratic Party presidential primaries.[xi] Similarly, the former governor of Lagos State obtained a court injunction stopping his arrest or harassment by the Nigerian army sometime last year pending the determination of the motion on notice.[xii] Although his arrest was impending, he already believed that his right would be contravened.
Though these cases show, at first impression, attempts at avoiding criminal prosecution, however, in a country where political vendetta is rife, it might be difficult to ignore an application for a fundamental rights protection against an arrest that might turn out to be a decoy for political harassment through the coercive agencies of the State. The difficulty lies in determining arrests or investigations that are persecutory. The safety mechanism should be that, in an application for a preventive injunction, the relevant agency should show course for the intended arrest; and where the court is satisfied that there is a reasonable grounds for the suspicion of the commission of a crime, the application should be rejected, but with a further order compelling the agency to prosecute within the constitutionally stipulated time, a failure of which should lead to the release of the arrested person.
- IS THERE A REAL CONNECTION BETWEEN ENFORCEMENT OF HUMAN RIGHTS AND CRIMINAL PROCESS CARRIED OUT IN APPARENT REGULARITY WITH LEGALLY PRESCRIBED PROCEDURES?
If the legally prescribed procedures for criminal prosecution were duly followed, there would be no breach of human rights and the need for the enforcement of human rights would presumable not arise. This is because the procedures prescribed do not contradict or infringe on an individual’s human rights. The procedures themselves have the backing of human right instruments such as the CFRN[xiii] and the African Charter on Human and Peoples Rights.[xiv] For instance, the CFRN provides that a person shall be entitled to fair hearing within a reasonable time by a court or tribunal established by law[xv] and of course, the enforcement of human rights is taken seriously by the courts.[xvi]
However, procedural regularity could themselves be unsatisfactory under certain circumstances. For example, an arrest could be ill-timed (may be, around holidays); logistics and facilities for speedy trial might be inadequate and non-functional thereby delaying trial, the judge might be biased against the accused or overworked going by her docket, politically sponsored news reportage might be prejudicial, detention facilities may be dehumanizing, etc. Basically, these indicate low level of social development that might have far-reaching negative psychological effects on an accused, who is constitutionally innocent until proven guilty
- SHOULD ACCUSED PERSONS BE CONCERNED, WHETHER REAL OR PERCEIVED, THAT THEIR CONSTITUTIONAL SAFEGUARDS IN CRIMINAL TRIALS WERE NOT BEING PROTECTED BY THE TRIAL JUDGE, WHERE WOULD BE THE PROPER FORUM FOR SEEKING THE PROTECTION OF THE RIGHTS BEING VIOLATED? SHOULD IT BE BEFORE THE TRIAL COURT OR ANOTHER COURT OF COORDINATE JURISDICTION? OR A MATTER TO BE RAISED ON APPEAL?
The constitutional provisions safeguarding the rights of an accused person in a criminal trial should be duly protected. The rights of accused persons – be it those that protect them during the pre-trial processes or those that run concurrently with the trial – should be of utmost concern to the trial judge. One cannot but appreciate the observation of AYOOLA JSC, in Oforlette v. State when he said that:
The truth of the matter is that the whole case was improperly investigated and poorly prosecuted…
This goes to show that the court is not quiet in identifying whether the procedures for commencing a particular trial was duly followed. This does not relinquish the duty off the accused to be attentive to note if the trial judge shall take into consideration the illegality in the trial procedures.
The second ambit of the question requires a brief discussion of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, which provides:
Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:
Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction.
This Rule grants the power to entertain matters relating to the enforcement of fundamental rights to the Court in the state where the infringement occurred or is likely to occur. Thus, the proper forum for seeking redress or the protection of rights being violated is in the court. I believe this is in tandem with the fact that it is only in the court of law that the voice of the lay man can be heard and justice bequeathed to him.
In answering the question as to which court has jurisdiction to entertain the application for the enforcement of fundamental rights, it is fitting to recall the decision of the Court of Appeal, Calabar Division in Felix A. Uwa v. Sunday Etim Akpan & Anor[xvii] that both the State High Court and the Federal High Court have concurrent jurisdiction in handling issues of fundamental rights. Thus, the alleged breach of fundamental rights in a criminal matter should be raised before the trial court itself and where the court ignores the application or refuses to grant the necessary relief, the applicant should appeal even before the final decision on the criminal charge is made.
Haven taken a cursory view of the entire human rights law and its relation to the criminal justice system, it would be preposterous to say that there are no deficiencies in the enforcement of human right in Nigeria. The rules regulating the rights of an accused are duly and well protected in the various laws,[xviii] however, in practicality they are not adhered to strictly. We have seen, heard and read of instances where security agencies melt out brutality on suspects under the guise of exercising their duty of investigation or arrest. The statutory power of arrest does not give the police the power to be brutal, ruthless and disobedient to the law in the course of investigation of a crime.[xix] In the case of Ahamba v. State[xx] the appellant was charged, tried and convicted for the offence of murder at the Abakaliki High Court. The Court of Appeal commenting on the method adopted by the police in the investigation of the case said:
It should be observed that the investigation of this case was a clear departure from the established methods generally known and practiced in this country and other countries in which accusatorial as opposed to inquisitorial process is consistently followed in criminal trials…
The above aptly captures the attitude of the police to criminal justice in Nigeria. Poor and shoddy investigation of cases constitutes one of the greatest challenges militating against effective administration of criminal justice in Nigeria. Also Section 5 of the Administration of Criminal Justice Act[xxi] says that a suspect or defendant may not be handcuffed, bound or retrained except an order of Court stipulates so or there is a necessary apprehension of violence or escape by the suspect or the restraint is necessary for the safety of the suspect. However, what we have in practice is not so. Security agencies upon arrest of suspects, handcuff, beat and possibly drag and tussle the suspect without recourse to the safeguards of the rights of accused persons
The fact that the police[xxii] can arrest a person on mere suspicion is worrisome and leaves one to think on the numerous ways the security agencies could abuse this discretion in effectuating arrest. Thus, I would suggest this provision to be duly checked so as not to cause the person who might not be the one who committed an offence but who was wrongly suspected by the security agencies to be a victim of the brutal nature of the Nigerian security agencies.
[ii] Subsection 5 of Section 36 of the Constitution of the Federal Republic of Nigeria
[iv] Sylvester Ugwuanyi: http://dailypost.ng/2015/11/02/cjn-urges-security-agents-to-investigate-properly-before-arrests/
[vi] 1999 Constitution of the Federal Republic of Nigeria
[vii] Sections 33 – 46, 1999 Constitution of the Federal Republic of Nigeria
[viii] Applicable in Nigeria as African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act)
[ix] Order 2 Rule 1 Fundamental Rights (Enforcement Procedure) Rules, 2009
[x] Section 46 (1), 1999 Constitution of the Federal Republic of Nigeria
[xi] Conscience and History: My Story
[xii] Micheal Abimboye: http://www.premiumtimesng.com/news/top-news/179265-court-restrains-nigerian-army-from-arresting-tinubu.html
[xiii] Section 36, 1999 Constitution of the Federal republic of Nigeria
[xiv] Article 7
[xv] Section 36 (1), 1999 Constitution of the Federal Republic of Nigeria
[xvi] Order 2 Rule 1 Fundamental Rights (Enforcement Procedure) Rules, 2009
[xvii] 2010 Court of Appeal
[xviii] 1999 Constitution of the Federal Republic of Nigeria, African Charter on Human and Peoples Rights, Fundamental Rights (Enforcement Procedure) Rules 2009
[xx] (1992) 5 NWLR (Pt. 242) 450
[xxii] Used to collectively refer to security agencies