By Estine Okolo

The quality of a nation’s criminal justice system is a reflection of the integrity, of not just those saddled with adjudicating over trials, but also of the entire structures put in place forthe proper administration of justice.The Administration of Criminal Justice Act 2015 is an excellent piece of legislation which many scholars, legal minds and commentatorshavecommended forits several novel provisions and forits ability to fulfil its major aim which is that of quick dispensation of justice.This is due to the fact that several ills and lacunas contained in the previous enactments on the administration of criminal justice were addressed.However, despite the kudos that have trailed the passage of the Administration of Criminal Justice Act 2015, the Act is not without its short comings and it is in the light of this that attention must be drawn to certain aspect of the Act that might require amendments. First and foremost,the short title appears to be a limitation to its applicability in state courts, except when the Act has been domesticated by the interested states. The short tittle states as follows;

“An Act to make provisions for the Administration of Criminal Justice and for Related Matters in the Court of Federal Capital Territory and other Federal Courts in Nigeria 2015”.

When compared with several provisions containedin the body of the Act, there is disparity between the content of the short title and some of the provisions contained in the body of the Act.In some cases, it would appear as if the draftsmen have forgotten that the Act is one made for federal courts or institutions rather than state institutions. No doubt, the mention of courts in the Federal Capital Territory is understandable because it is virtually under the control of the Federal Government of Nigeria. Section 299 of the Constitution of Nigeria 1999 as amended provides as follows;

“Theprovisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation: and accordingly (a) all the legislative powers, the executive powers and the Judicial powers vested in the House of Assembly, the Governor of a State, and in the court of a State shall respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja.”

There are glaring provisions in the Administration of Criminal Justice Act 2015 where the National Assembly made lawsbinding state courts, institutions or office occupied by persons, whereas going by the short title, the Act is meant only to be applicable to court of the Federation Capital Territory and other Federal Courts. This amount to legislative despotism. In other words, some provisions of the Administration of Criminal Justice Act 2015 are contradictory of the short title.Specifically section 29 (2) of the Administration of Criminal Justice  Act 2015 provides that the Commissioner of Police of State or any agency authorized to arrest an offender shall remit quarterly to the Attorney- General of that state, records of arrest without warrant in relation to state offences or arrest within state. To my mind, this provision is an attempt by the federal law makers to make law on an issue that pertain to state offences and this negates the spirit of truefederalism.

The provision on electronic recording of statements of suspect is an issue. Considering the level of illiteracy in Nigeria, ignorance as to the rights of the suspect, our technological development and the daily song of the federal government about paucity of funds, the provision and maintenance of the equipment would pose great challenge to the police because of the capital intensivenature of maintainingsuch equipment. In most cases, confessional statements are usually denied by the suspect, thereby leaving the court with no option than to conduct trial within trial. Also, the recording of confessional statement by the police is discretionary and not mandatory .Section 15(4) of the Act captures it all .It states thus;

“Where a suspect volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on retrievable video means”

The making of electronically recorded confessional statement optional only succeeded in creating a loophole which is susceptible tobeing exploited by not only the police butother government departments involved in recording statement of suspects.

Section 106 of the Administration of Criminal Justice Act 2015 provides that subject the provisions of the powers of the Attorney General of the Federation to prosecute any matter, prosecution of cases shall only be undertaken by the Attorney General of the Federation or law officer in his ministry, a legal practitioner authorized by the Attorney General of the Federation or a legal practitioner authorized to prosecute by this Act or any Act other Act of the National Assembly. One is tempted to jump into the conclusion thatpolicemen and personnel of other agencies who are not lawyers but involved in arrest and prosecution of offenders can no longer prosecute offenders before any court of law. The gap created by this provision must be filled as quickly as possible by employing lawyers. Failure to do so is capable of creating serious   problems in future occasioned by shortage of prosecutors who are lawyers. The Administration of Criminal Justice Act 2015 does not help the situation by its failure to specifically repeal section 23 of the Police Act which empowered thepolice toprosecute offenders in court of a law. Section 23 of the Police Act Cap P19states as follows;-

Subject to the provisions of Section 174 and 211 of the Constitution ofthe Federal Republic of Nigeria 1999 (which relates to the powers of the Attorney General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria),any police officer may conduct in person all prosecutions before any court, whether or not the information or complaint is laid in his name

No doubt, both laws are of the National Assembly and meant to serve differentpurposes. However, one would haveexpected that the provisions of the Administration of Criminal Justice Act 2015 would have specifically repeal section 23 of the Police Acts. It is my humble opinion that as long as the section on the powers of the Police to prosecute has not been repealed, then the Police right to prosecute offender is still subsisting.Even if section 23 of the Police Act had been repealed by the Administration of Criminal Justice Act 2015,the provisions of sections 174 and 211 of the Constitution of Nigeria 1999 as amended would still be there for a defendant in criminal trial  to contend with.

The Act also provides that the Director of Public Prosecution should issue legal advice brought to him within two weeks of receiving the case file. Even though this provision appears commendable,two weeks might be too short for quality legal advice, especially in a complicated legal matter that requires not just acting on a file, but may involve consultations. Besides the issue mentioned above, there is no specific time with which the case file must be forwarded by the Police to the Director of Public Prosecutions. In other words, the Police can decide to keep the file as long as they can, before sending it for the Director of Public Prosecutions legaladvice. Failure to provide for a time frame within which the case file must be forwarded to the relevant officer for the advice will impactnegatively on the quick dispensation of justice.

It is my humble opinion that section 396 (7) of the Administration of Criminal Justice Act 2015,is a challenge on the Constitution of Nigeria and in  a subtle way saying that irrespective of the constitutional provisions, it should have its way.It states as follows;

Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall here dispensation to continue to sit as a High Court Judge, only for the purpose of concluding any part heard criminal matter pending before him and shall conclude the same within a reasonable time, provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.

The section above is contrary to the constitutional provisions on the appointment of Justices of the Court of Appeal.  Under the Constitution of Nigeria 1999 (as amended),on appointment as aJudge or Justice of the Court of Appeal, such a person shall assume the duties of his office. The mode and qualification for appointing a justice of the Court of Appeal and that of the HighCourt are different.For a Justice of the Court of Appeal to continue to sit as a Federal High Court or Federal Capital Territory HighJudge under the law, after his appointment or elevation to the Court of Appeal under the guise of completing part heard matters,raises not only jurisdictional but also constitutional questions.Though the intentions of the drafters of thelaw may be good, but it violates all reasonable legal grounds for such provision. Particularly when the provision of section 396 (7) of the Administration of Criminal Justices Act 2015 is placed side by side with section 257 (1) of the Constitution of the Federal Republic of Nigeria (as amended), the constitutional violation is even moreglaring. Itstates as follows;

Subject to the provisions of section 251 and any other provisions of this constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High court of the Federal Capital Territory, Abujashall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privileges, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving  or relating to any penalty, forfeiture punishment or other liability in respect of an offence committed by any person

Section 255(1) & (2) of the Constitution of Nigeria 1999 (as amended) provides that there shall be a High Court of Federal Capital Territory, Abuja and that the High Court of the Federal Capital Territory shall consist of;(a)A Chief Judge of the High Court of the Federal Capital Territory, Abuja(b)  such number of Judges of the High Court as may be prescribed by an Act of the National Assembly. This same position is also replicated with respect to Federal High Court and its Judges.A similar provision is made under the constitutional provision on the High Court of a State.  The question to ask in this case, is whether the Administration of Criminal Justice Act 2015, a Federal law made for Federal Courts,can increase the numbers of Judges ofthe same Federal Courts through the backdoor (whether temporally or not) in total disregard to the constitutional provisions, under the guise of ithelping the avoidance of delay in the administration of criminal justice system.Another issue likely to arise under the Administration of Criminal Justice Act 2015 is in relation to section 492 (3) which provides that;

Where there are no express provisions in this Act the court may apply any procedure that will meet the Justice of the case

This provision is not only vague but it issusceptible to abuse. If not defined, theprovision will be subject to the whim and caprices of whoever is presiding over a case.This can lead to different judgments on an issue, even though similar, but no express provision is made in the Act.

The provision of section 319 creates a vacuum in the sense thatit provides for the power of court to order payment of expenses or compensation, but was not specific on where to place or what to do with the person who has failed to pay compensation.If the person is to be kept in prison, the aim of the Administration of CriminalJustice Act 2015, which is to ensure decongestion of prison would have been defeated. But imprisonment for such an individual is a mere speculation even though it provided that payment of compensation may include any other punishment, it does not state what will happen to the convict if payment is not made.

The provisions onholding charge as contained in the Administration of Criminal Justice Act 2015 should be expunged from the Act. Situations bothering on holding charge can be found in sections 99 (b), 293 and 294 of the Administration of Criminal Justice Act 2015. Apart from several judgments of the courtsthat have declared holding charge as unconstitutional and that it violates the principle of presumption of innocence, giving legal effect or justification to holding charge is a serious setback too many for our criminal justice system . To my mind, it is not of any help to an accused person. A situation where a suspect is arraignedfor remand purpose in a court which does not have jurisdiction to hear the substantivematter and possibly without substantial evidence to establish the crime against the suspect at the time of arraignment, while the state or the agency shop for evidence to nail the accused person, after the suspect has been remanded in prison custody does not promote fairness or rules of equity.

In conclusion, even though the Administration of Criminal Justice Act 2015, contains daring innovations which are expected to help promote quick dispensation of justice, some of the contents are in contrast with some constitutional provisions and established judicial pronouncements .There is need to take another look at the Administration of Criminal Justice Act 2015, with a view to addressing someissues containedtherein.

ESTINE OKOLO ESQ, a LegalPractitioner, contributed this piece from Osogbo, Osun State.