There are many problems affecting criminal prosecution in Nigeria, our reporter, Michael Ofulue sought the opinions of legal practitioners on the issue. Experts:
There are so many factors affecting criminal prosecution in Nigeria. The difficulties encountered in criminal prosecutions start from the police investigation level. In most cases police officers assigned to investigate cases are not well trained in such endeavour. They lack the needed capacity for thorough and unbiased criminal investigation. They are not well grounded in the rudiments of law particularly laws that border on administration of criminal justice. In most cases when a police officer is investigating a case, what will be playing in his mind is the pecuniary gain that would come out of such case in the mould of bail fee. Don’t be deceived with the police slogan that bail is free.
So while he is thinking about the pecuniary gain, he will definitely leave some stones unturned thereby leaving behind loopholes for defence lawyers to explore in court. Secondly, the government is not sincere in its quest for expeditious criminal prosecution in Nigeria. The facility is simply not there. The courts and by extension the magistrates and judges manning them are ill equipped while discharging their duties under unfavourable environment.
You don’t expect much productivity under that kind of terrible circumstances. Our criminal adjudicating system is also too lax thereby giving room for slow pace in criminal prosecution. The government needs to train and retrain the police personnel in order to equip them with the needed human capacity building in terms of criminal investigation which meets global best practices. There is also the need to strengthen the judiciary to enable it meet modern day challenges facing criminal adjudication in Nigeria. Above all there is the need to overhaul legal frameworks regarding criminal prosecution in Nigeria to meet global best standard.
Coming to the issue of whether victims of rape should be responsible for their treatment costs or the government, we should be mindful that everybody has the right to choose where he or she receives health care as well as the choice of who takes care of him or her medically. Legally the government is not bound to be responsible for the treatment of victims of rape. Government can only come in on moral or humanitarian ground.
This is due to the fact that a victim of a rape may prefer to be treated in a well equipped first class hospital overseas. That remains his or her choice. Some victims may prefer low key public hospitals. That is also their choice. So how do we balance the issue of preference or choice of place of treatment of the victims? One may argue that government can make a blanket policy to the effect that the same hospital, probably government or public hospital shall take care of rape victims but the fact remains that we cannot legally force them to use a particular hospital.
Constitutionally they are entitled to a health facility of their own choice. That is why many of our leaders are going on medical tourism abroad and there is nothing we can do about it legally at least for now. If we have to look at it on moral or humanitarian ground, there is the need for the government to assist victims of rape in terms of medical test and treatments. It should be noted that many rape cases are lost on the ground of the inability of the prosecution to tender before the court a medical report to confirm whether there is actual penetration, rupture of the hymen, vulva bruises and all that.
So most rape victims, apart from the trauma and fear of public stigmatization find it difficult to go for medical test and treatments due to lack of financial wherewithal. They therefore withdraw into their shells while sulking their fate in isolation without telling anybody. If there is a policy of providing free medical test and treatments for rape victims they are likely to avail themselves of this opportunity thereby improving their access to health facility as well as the chance of the prosecution to secure conviction against rape offenders. We therefore advise the government to as a matter of urgency set up legal frameworks to ensure that rape victims have unfettered access to medical tests and treatment.
There are so many factors that inhibit effective criminal prosecution in Nigeria. Some of the factors are inherent in the prosecuting agencies, some with our legal system, some with the justice delivery system, while some of the factors are societal.
A brief examination of these factors will be appropriate here. In Nigeria most investigation agencies equally have prosecutorial powers. Let’s single the Nigeria Police Force for the purpose of this discuss. Successful prosecution depends largely on effective investigation. There is no doubt that Court’s are not bound by Police investigation but by the facts presented before the court during trial. However, thorough investigation will ordinarily lay a strong foundation for effective prosecution. Effective investigation will necessarily make prosecution an easy ride. Bulk of cases coming to court are poorly investigated.
Police investigators don’t have more than school certificate and they are not exposed to quality training programme for performance enhancement. Apart from the six months basic recruitment training, some of them have not attended any other course for more than 10 to 15 years.
The society advances everyday, particularly technologically. There is need for those policing us to equally move with the society. Most modern day crimes are committed with the aid of internet technology. Investigators must be schooled in this area to be able to investigate any alleged crime in that area of life. Lack of quality education on the part of investigation agency is a factor for concern.
Another factor is those who prosecute. Most Police prosecutors are junior Police officer who barely have school certificate. These men are sent out to courts to argue law with qualified lawyers and expect them to win. It is a difficult task!
It is true that we have a lot of challenges and with the emergence of the administration of criminal justice Law ACJL, we thought these problem would have ended with the emergency of ACJL, but reverse was the case.
Look at what is happening now, the accuse now call the defendant in the new law where an accused is supposed to be charged to the court within 24hours now you keep them at the custody of the police.
And eventually, the police would bring them to the Magistrate Court, knowing full well that the Court lacks the jurisdiction to entertain such matter.
For example a case of murder, armed robbery, kidnapping and rape which are capital offences.
These normally affect the case. The police ought to know the appropriate court of competent jurisdiction to charge a case involving capital offence.
The law says that a defendant or accuse person who was alleged of a crime should have been charged to court of appropriate jurisdiction that can determine the allegation against the defendant.
Now you are bringing somebody that is charged with a case of murder or armed robbery or kidnapping to a Magistrate court just for the magistrate to put him in Custody.
You are negating his right, the fact that he was accused or standing trial for allegation of a crime or order multiple criminal acts does not imply that you will not enroll him at the jurisdiction of his right
So the challenges we are having is that in the first place, with respect to the police, but many other security agencies like the Civil defense and all other security agencies still don’t know what they are doing.
The Civil Defence is worst because they just bring people charge them for pipeline and for dealing on petroleum products and bring them before the Magistrate Court which obviously lack jurisdiction to entertain such case and before you take them out there, they would have spent some months in the prison Custody so that is one of the challenges among others.
Multiple violations and other situations affecting Criminal prosecution in Nigeria particularly in Ondo State.
Another thing is that the conditions of bail are onerous and they tell the Magistrate to impose a fantastic bail condition on an accused person.
Bail is just supposed to be an opportunity for this man to be heard. There is a need to give him fair hearing before bail, the bail is to secure his attendance and it is not supposed to be punitive.
This is one of the problems we are having today in the state, especially during this coronavirus pandemic which has skyrocted and ravaging the whole world. Many suspects that were brought to court then have found their way back to the prisons despite the effort of Chief Justice of the state to ensure speedy trail of the accused.
Apart from these two and other conditions, it is also observed that some trial Magistrates are lazy, they continue to adjourn criminal cases.
They supposed to come to court if you have anything against these people but where there are no prosecution witnesses, the court will have no choice than to go on with the case, if they are not ready with the case, the law says we should strike it out anytime and whenever they are ready, they can still come back but all these are not done.
Most of the Magistrates and the judges would just wait, in fact, it is like they are working for the government instead of working for the people. The law has made it clear now that within a period of 180 days, all criminal cases suppose to have been completed but unfortunately this is only happening on paper not in practice.
Ogiren who proffered solutions to the problems facing criminal prosecution said there is need for legislative touch and that counsel must be radical in their approach and adherence to the rule of Law.
He stated that being radical in approach does not mean to undermine the rule of law or disrespect the Magistrate or judge but to be strictly adhere to the legal principles and rule of law. If a magistrate or judge is trying to go outside the law, it is the responsibility of the counsel to draw his or her attention on the point of law.
On the side of the prosecution who are usually policemen, they need to be trained and most of their heads of department should be called to order and addressed the issue
He hinted that good cases are lost everyday due to inadequacies and lack of diligent prosecution on the part of the police.
I also suggested that police authority should use lawyers in the police to prosecute cases because some of the prosecutors in the court lack knowledge in law, they did not read law none went to the Law school.
He said some counsel used to hit the police hard on the point of law in the court but the police prosecutor cannot reply on the point of the law because he is not a lawyer and has no knowledge in law.
On the issue of victims of rape to where victims are meant to be responsible for their medical expenses, chief Ogiren said is absolutely wrong adding that state government’s suppose to take responsibility in the treatment of the victim because the victim has been violated and crime said to have been committed is a crime against the state.
According to him some of the cases of rape failed in the court because, when a person alleged to have been raped did go the hospital to medical examination within 24hour in which the offence is committed, the case cannot no longer succeed in court.
This happen simply because the police usually request for money from the victims or their families instead of taking the victim for a test or medical diagnosis and get medical report which will help the case to succeed.
He said despite all the stigma vested on the victims of rape, the Police usually settled rape cases on the table instead of taking them to court. I am of the opinion that any man who could not control his sexual urge if he is arrested should be incarcerated and if this is done people will stop committing offence of rape.
He however, said the punishment of rape is not enough because of the stigma it brought to the innocent victim and immediate family I hereby recommend a total incarceration for suspects. It is my candid opinion that if we start incarcerating suspects on rape cases I believe nobody will do rape again.
As for challenges affecting criminal prosecution in Nigeria, I would say that there are many challenges confronting the Criminal justice system in Nigeria. One of them is the failure of the prosecution to assemble their witnesses and present them to the court during trials. This usually happen at the magistrate or High court where prosecution usually failed to bring their witnesses to the court. This has been a major set back in prosecuting criminal cases and it also affects quick dispensation of cases especially those of capital offences such as murder, armed robbery, kidnapping and rape.
He explained that in any capital offence, if the prosecution failed to bring witnesses to the court to give testimony during trial of any serious offence whenever called upon, such thing normally stall prosecution and quick dispensation of such a case. And that is why we the counsels always face problem in handling those capital offence cases. As you can see the case of rape is very sensitive one to human development and it is one of the most reported cases happening everyday in Nigeria. As I speak to you now, I am handling some rape case and now I am facing a challenge of assembling my witnesses and bring them to the court during trial. I have been to the state Ministry of Justice to ensure that they bring their witnesses and they have not and this has prompted continuous adjournment on the matter.
Also on the side of the defendant, some of them have a way of using every available means to stall prosecution by the way of bribing the prosecution (police). The police usually come to the court to give excuses and this also is a way of frustrating and delaying justice because justice delayed is justice denied.
Incessant adjournment by the prosecution is also another headache which is affecting criminal prosecution in the country and this issues need to be properly addressed. A situation whereby the prosecution refused to bring their witnesses to court and giving unwarranted excuses forced magistrate or a judge to continue to adjoin the case which he said has not help in criminal administrative system in Nigeria.
On possible solution to these enumerated problems, Balogun hinted that the prosecution themselves need to change their attitude in the way and manner they carry out their job and. He stated that there is need for amendment of Police investigatory Laws which specified how the police should carry out investigation on any crime brought before them. According to him if the police carry out proper investigation properly, and in accordance with the laid down rules, the issue of non diligent prosecution will not arise.
While saying there is need for the law enforcement agency to work in harmonious relationship for effective management of criminal justice system, Balogun suggested that those charged with the responsibility of prosecuting cases in court must be well trained with requisite qualification and knowledge in law so as to help quicken the dispensation of justice.
He blamed the unwarranted adjournment during trial of capital offence cases on the side of prosecution, adding that Administration of Criminal justice Act (ACJA) of 2015 and that Of Administration of Criminal justice Law (ACJL) of Ondo State should be a guiding principle for both counsels and prosecution to abide with for overall interest of justice.
He, however called on prosecution, counsels, magistrates and judges to stop every act capable of delaying justice dispensation, adding that accused person remains innocent until proven by a competent court of the land.