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CHAPTER FOUR

4.0 THE LEGAL PROCESSING OF A CAPITAL OFFENDER: AN

ASSESSMENT OF THE COMPLIANCE WITH THE DUE PROCESS

REQUIREMENTS.

4.1 INTRODUCTION

A capital offender comes into contact with the criminal justice system usually

through the police. The Nigerian Constitution,1and other domestic

legislations and international instruments, empower the police to arrest

anybody who violates suspected of having committed a criminal offence,

including a capital offender. Having set the ball rolling through the process of

arrest, other criminal justice processes, like detention, searches and

interrogation, and bail, in rare cases, which will be discussed later in this

chapter (all of which are components of investigation), will follow.

Thereafter, the criminal offender is arraigned and put up for trial.

Upon conviction, the court pronounces sentence and the convict is remanded

in the prison custody, pending the execution of the sentence of the court.

There are basically three key players involved in the legal processing

systems. These are the police, the courts and the prisons. However, there

are certain constitutional safeguards which are stipulated towards ensuring

that a capital offender is justifiably convicted, and even executed. These are

the due process requirements, otherwise called the fair hearing in the

processing of a capital offender, and these processes permeate the pre-trial,

trial, and post trial stages.

1 Section 35(1) Constitution of the Federal Republic of Nigeria 1999, Promulgation Act

Cap. C23, Laws of Federation of Nigeria 2004, as amended in 2010 and 2011. See also

Section 4 of the Police Act, Cap P.19 Laws of Federation 2004, Also, see section 10

Criminal Procedure Act, (0p cit), and section 27 Criminal Procedure Code (0p cit).

224

A fair trial is a basic element of the notion of the rule of law,2and the

principle of due process and the rule of law are fundamental to the

protection of human rights.3 At the centre of any legal system, therefore,

must be a medium by which legal rights are ensured, and breaches

remedied through the process of a fair trial in court, as the law becomes

useless without effective remedy.4 After all, the maxim is : ubi jus, ibi

remedium. Hence, the fairness of the legal process is the foundation stone

for the substantive protection against State power. Though, the term due

process is not used in any statute in Nigeria5, unlike in the United States of

America,6 yet, its underlying values give essence to the Nigerian criminal

process.

Section 33 of the Constitution of Nigeria merely authorizes a deprivation of

life in the execution of the sentence of a court in respect of criminal offence

for which such person has been found guilty.7 However, a lot of abuses have

been observed in the bid of the State to carry out the provisions of this

section.

Inasmuch as there are certain restrictions on the rights of a capital offender

against the wider interest of the State, the constitutional due process and

elementary justice require that the judicial functions of trial and sentencing

2 Ovey, C & White, R., The European Convention on Human Rights. (New York: Oxford

University Press, 2002) p.139. 3 Clayton, R & Tomlinson, H., Fair Trial Rights. (New York: Oxford University Press,

2001) p.2. 4 Davis, H., Human Rights and Civil Liberties. (Devon: Willan Publishing, 2003) p.146. 5 Atsenuwa, A.V., Due Process in Criminal Cases in Obilade, A.O. & Braxton, G. (eds),

Due Process of Law. (South University Law Centre, Baton Rouge, Louisiana, 70813,

and Faculty of Law University of Lagos, Lagos, 1994), p.51. 6 See the 5th, 6th and 7th Amendments to the Constitution of the United States of

America. 7 See Section 33(1) CFRN 1999, (Op cit), as amended in 2010 and 2011.

225

be conducted with fundamental fairness, especially, where the irreversible

sanction of the death penalty is involved.8

There is no doubt that the increased concern about the use of the death

penalty in the world, and Nigeria especially, is partly as a result of the death

penalty being imposed after trials that do not conform to internat ional and

domestic fair trial standards. In other words, many capital trials in Nigeria

fall short of standards for fair trial. Capital offenders are kept too long in

detention without arraignment, and in some cases, defendants have no

access to legal assistance during trials. Also, capital prisoners have been

known to have been executed while their appeals were still pending.9

In some of its resolutions, the U.N General Assembly has pointed out the

importance of respecting fair trial standards in death penalty cases by all

countries.10Also, the U.N Special Rapporteur on extra-judicial, summary or

arbitrary executions has reiterated that:

Proceedings leading to the imposition of capital punishment must

conform to the highest standards of independence, competence,

objectivity and impartiality of judges and juries in accordance

with the pertinent international legal instruments. All defendants

facing the imposition of capital punishment must benefit from

the services of a competent defence counsel at every stage of

the proceedings. Defendants must be presumed innocent until

their guilt have been proved beyond a reasonable doubt, in strict

application of the highest standards for the gathering and

8 American Civil Liberty Union The Case Against the Death Penalty

http://www.aclu.org/deathpenalty.cfm?ID=9082&c=17 (accessed 20 May 2011). 9 See Aliu Bello v. A.G Oyo State (Supra).

10 Resolutions 2393 (XXIII) of 26 November 1968 and 35/172 of 15 December 1980.

226

assessment of evidence. In addition, all mitigating factors must

be taken into account.11

Also, in Resolution 1996/15 of 23 July 1996, the U.N ECOSOC encouraged

U.N Member States in which the death penalty has not yet been abolished to

ensure that defendants facing a possible death sentence are given all

guarantees to ensure a fair trial, bearing in mind the U.N. Standards for a

fair trial. It is, therefore, instructive to note that compliance with due

process requirements for capital trials is very imperative, as failure to

respect fair trial standards in capital trials increases the likelihood of

innocent defenders being sentenced to death, and subsequently executed. It

can also lead to abuse of the whole trial process.

This chapter, therefore, aims at analyzing the extent of compliance, by the

various stakeholders, with the due process requirements in the legal

processing of a capital offender, and this shall be done by the appraisal of

the compliance from pre-trial, trial and post trial stages.

4.2 PRE-TRIAL RIGHTS OF A CAPITAL OFFENDER

These are the rights that enure to a capital offender from the point of arrest,

through detention, interrogation, and bail, in rare cases, up to arraignment.

Hence, the rights range from arrest to arraignment in a court of competent

jurisdiction.

11 Report by the Special Rapporteur on extra-judicial, summary or arbitrary executions,

U.N Doc. E/CN.4/1997/60, 24 December 1996, para. 81. The European Court on

Human Rights has also emphasized how important it is to respect fair trial rights. In

Deicort v. Belgium (1970) 1EHRR 355, the court stated that in a democratic society

within the meaning of the Convention, the right to a fair administration of justice holds

such a prominent place that a restrictive interpretation of Article 6(1) would not

correspond to the aim and purpose of that provision (para. 25). See subsequent cases

where the Court has pointed out the imperative nature of fair trial rights like Collozza

and Rubinat v. Italy (1985) 7 EHRR 516 and Zana v. Turkey (1998) 4 BHRC 241.

227

Just like any criminal suspect, a capital offence suspect is also entitled to the

pre-trial rights that are guaranteed in the Constitution.12 Also, in the

international arena, the U.D.H.R. prohibits arbitrary arrest and detention.13

Also, the ICCPR guarantees everyone the right to liberty and security of

person,14 which are also relevant at the pre-trial phase. It further provides

that anyone who is arrested shall be informed, at the time of arrest, the

reasons for his arrest15. The Article further guarantees the right of anyone

arrested or detained, including capital offence arrestee or detainee on a

criminal charge to be brought properly before a judge or other officer

authorised by law to exercise judicial power.16

There are pre-trial safeguards that have been enumerated in the U.N,

Resolutions as they are relevant to capital cases. These include; The Code of

Conduct for Law Enforcement Officials,17 the Principles on the Prevention of

Arbitrary Arrest and Detention18 and the Basic Principles on the Use of Force

and Firearms by the Law Enforcement Officials19. Procedural safeguards for

fair trial at the pre-trial phase for criminal suspects, including capital offence

suspects are also contained in the African Charter of Human and Peoples’

12 See Section 35 CFRN 1999, (Op cit), as amended in 2010 and 2011. 13 See Article 9, U.D.H.R (Op cit). 14 See Article 9(1) (Ibid). 15 See Article 9(2) (Ibid). 16 See Article 9(3) (Ibid). 17 UN.GA Res. 34/169 of 17 December 1979. U.N Doc A/34/46 (1979). 18 See UN.GA Res. 34/169 of 17 December 1979, and Adeyemi, A. A., “United Nations

Human Right Instruments and the Criminal Justice Norms and Standards”, in

Bassiouni, M & Motala, Z., (eds), The Protection of Human Rights in African Criminal

Proceedings (Dordrecht: Martinus Nijhoff Publishers, 1995), p.3. 19 See UN G.A Res. 45/121 of 14 December 1990, UN Doc. A/Conf/144/28/Rev.1 at 112

(1990).

228

Rights,20 which provides for the protection of an arrestee’s right to liberty

and security of person. It prohibits arbitrary arrests and detentions.

In relation to the pre-trial rights in Nigeria, section 35(1) of the Constitution

21 guarantees the right to personal liberty, and provides that every person

shall be entitled to his personal liberty, and that no person shall be deprived

of such liberty save in the circumstances stated under the sub-sections

which are contained in section 35 (1) (a)-(f). However, the most commonly

abused of the stipulated limitations of this right is section 35 (1) (c) which

authorizes the deprivation of a person’s liberty upon reasonable suspicion of

his having committed a criminal offence, or to such extent as may be

reasonably necessary to prevent his committing a criminal offence. This

brings to fore, the police powers of arrest and detention.22

Hence, in the determination of the reasonableness of suspicion in the

exercise of police powers, the circumstances of the case should be such that

a reasonable man, acting without passion or prejudice, would fairly have

suspected the person of having committed the offence23. Thus, in the

Zimbabwean case of Bull v. Attorney-General24, the Supreme Court of

Zimbabwe held that the question whether there was reasonable suspicion of

20 See Article 6 of the ACHPR (Op Cit). This provision has, however, been criticized by

Viljoen on the ground of inexhaustiveness. It has been contended that Art. 6 of ACHPR

does not adequately deal with detention and trial, especially the pre-trial phase. See

Viljoen, F., “Introduction to the African Commission and the Regional Human Rights

Systems” in Heyns, C (ed.) Human Rights in Africa. (Leiden: Martinus Nijhoff

Publishers, 2004) p.404. See also Heyns, C.,”Civil and Political Rights in African

Charter” in Evans, M & Murray, R (eds.) The African Charter on Human and People’s

Rights: The System in Practice, 1986-2000, (Cambridge: Cambridge University Press,

2002), p.155. 21 CFRN 1999, as amended in 2010 and 2011. (See also Principle 17 of the United

Nations Body of Principles for the Protection of all Persons under Any form of Detention

or Imprisonment. 22 See Ogbu, O.N., Human Rights, Law and Practice in Nigeria: An Introduction (Enugu,

Nigeria: Cidjap Press, 1999) p.110. 23 See Shaaban Bin Hussein v. Chong Fook Kam (1970) AC 942, P.C., at 948. 24 (1987) LRC Constitutional and Administrative Law Reports, 509, S.C.

229

commission of an offence was to be tested objectively, and the court must

be informed of the grounds of the suspicion. The detainee in that case was,

therefore, ordered to be released because the State could not offer any

cogent basis for his arrest and detention than a mere conjecture.

However, any person, whose liberty is curtailed, pursuant to the restriction

in Section 35(1)(c) of the Constitution is still entitled to enjoy certain rights

upon his detention.25 Hence, any person who is arrested or detained shall

have the right to remain or avoid answering any question until after

consultation with a legal practitioner or any person of his own choice.26

There are two rights that are envisaged under this provision. The first one is

the right to be silent during interrogations, until after consulting somebody;

and the second is the right to have the advice of a counsel before answering

questions put to the suspect by his interrogators. The word until used in the

section appears to infer the meaning that this right ceases to exist after

consultation with a lawyer or some other person. This, however, is not so, as

the accused person may elect to speak or not to speak through his lawyer or

other person. In fact, he has the right to remain silent even throughout the

trial, leaving the burden of proving his guilt on the prosecution.27

25 It is also imperative to note that a person cannot be detained by proxy. It has been

held in A.C.B v. Okonkwo (1997) 1 NWLR (Pt. 480)195. C.A, Per Niki Tobi (JCA, as he

then was) that there is no law that permits the police to arrest a mother for an offence

committed or purportedly committed by the son. Hence, criminal responsibility is

personal and not vicarious. It is to be noted that the Nigerian Police are averse to the

requirement availing a suspect of the right to consult or liaise with a counsel during

the process of interrogation, on the ground that, it serves as a clog to Police efficient

interrogation. The police feel that there is possibility of counsel advising the suspect to

keep mute, thereby making interrogation practically difficult. Consequently, police

interrogation of suspect hardly takes place after consultation by the suspect, with his

counsel or relation. Indeed, investigating police officers exhibit open hostility to

counsel who show up in the police station to consult with suspects before or during

interrogation. 26 Section 35(2) CFRN 1999(Op cit), as amended in 2010 and 2011. 27 See Mowoe, K. M., Constitutional Law in Nigeria, (Malthouse Press Limited, 2008), p.

329. See also, Adekunle v. State (2006) 43 WRN 1 at 34.

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But then, within the context of the Nigerian Criminal Justice System today,

situations have so changed to the point that the right to silence can hardly

ever be justified again, especially when a person is accused of a serious

offence like murder. In the case of Daniel Sugh v. The State,28 the appellant,

who was accused of culpable homicide, punishable with death, failed to write

statement at the police station in the exercise of his right to silence.

However, the appellant purported to adduce evidence during the trial that

the deceased was actually killed by the PW.5 in the case. The trial Court

decried the attitude of the appellant in withholding vital evidence, which

affected the course of the investigation at the time he was to make his

statement to the police, at the earliest opportunity.

The Supreme Court held that it was the provision of Section 236(1)(c) of the

CPC that gave the trial Court the latitude to draw inference from the attitude

of the appellant, while relying on his right to silence pursuant to section 33

(1) of the Constitution.29 According to Obaseki JSC,

If one person sees another in the very act of committing a

crime and that person who saw the other is accused of

having committed the crime, arrested, and charged, the

normal expected reaction is for him to open his mouth at

the earliest opportunity and explain that he was mistakenly

accused and identified. It is unusual that he should keep his

mouth shut, go through the exercise of arrest, police

investigation, of being charged and arraigned before the

court and evidence led against him by the prosecution,

without giving an indication that he was wrongly identified

and that the proper accused person is a prosecution witness.

28 (1988) 2 NWLR ( Pt. 77) 475 – 495. 29 CFRN 1979. See section 35 (2) CFRN 1999 (Op cit), as amended in 2010 and 2011.

231

The Supreme Court held further that section 236(1) of the CPC was not

inconsistent with section 33(1) of the CFRN 1979,30 but that it was rather

complimentary. The Supreme Court held that the trial Court was right in

drawing inference in the circumstance of the case. The trial Court in drawing

its inference pursuant to section 236 (1)( c) of the CPC, said that it did not

believe the evidence of the 1st accused person,(appellant) that the deceased

was killed mistakenly by the PW.5. It is submitted that the trial Court was

right, to so hold, in the circumstance of the case. It is trite that the

assessment of the credibility of a witness is a matter within the province of

the trial Court, as it is only that court that has the advantage of seeing,

watching and observing the witness in the witness box. The trial Court

therefore, has the liberty and privilege of believing him and accepting his

evidence, either as a whole or in part, in preference to the evidence adduced

by the defence. In attestation of the above position, Oputa, JSC,

convincingly posited in Adelumola v. The State31 that belief can only be

questioned on appeal if it is obviously against the logical drift of the evidence

considered as a whole or against the impact of the wave of probabilities

disclosed by the evidence.

Consequently, it is further submitted that the contention of the learned

counsel to the appellant in Sugh’s Case32 has not demonstrated that the

concurrent findings of facts by the trial and Appeal Courts respectively, are

perverse and could not logically follow from evidence. Hence, the question of

determination whether a witness is believed is predicated on the

circumstances surrounding the event or incident under consideration, the

consistency of the reaction of the witness in response to the incident

according to the general known behaviour of rational human beings, and

30 Section 35 (2) CFRN 1999 (Op cit), as amended in 2010 and 2011. 31 (1988) 1 NWLR (Pt. 73) 690. 32 (Supra).

232

quite importantly, the credibility and integrity of the witness, depending on

the fact, whether the witness is liable to suffer any prejudice by stating the

facts of the situation.

Arguably, and in consonance with the above reasoning of the Supreme

Court, it has been contended by Adeyemi that the constitutional provision on

the right to silence is contra cultural.33 The right to silence, when fully

exercised by the accused person, may sometimes hamper police

investigation, for example, where he reveals some new information at the

trial which rather implicates or exonerates him. Against this backdrop, the

Criminal Law Revision Committee, commenting on the British situation,

recommended that this right be reviewed such that the court or jury can be

allowed to draw inferences from the accused persons’ silence.34

It suffices to state that the right to remain silent or avoid answering

questions until after consultation with a legal practitioner or other person of

one’s choice is a right against self-incrimination. Evidence of facts obtained

involuntarily from the accused in contradiction of this section will be

inadmissible.35

The need for a detained person to consult a legal practitioner before he

makes statement to the authority holding him in detention is not

unconnected with the fact that, with the aid of a legal practitioner, he can

have the opportunity of establishing his innocence at the earliest possible

33 Adeyemi, A. A., “The Place of Customary Law in Criminal Justice Administration” in

Osinbajo. Y. (ed), Towards a Restatement of Customary Law. p. 215. 34 11th Report on Evidence (General Assembly, Cmnd, 4991, 1972). It is to be noted

that the recommendation of the committee is yet to be implemented. See Mowoe, K.

M., Constitutional Law in Nigeria (Op cit), p.329. It is also instructive to note that trial

judge in Sugh’s Case (Supra) drew inference from the accused person’s silence and

rightly convicted him, a conviction upheld by the Supreme Court. 35 See Kim v. State (1992) 4 NWLR (Pt 233) 17.

233

time without having to undergo trial. Thus, with the guiding hand of a legal

practitioner, or any other person of his choice, the detained person may be

able to avoid contradictions in his statements, and utilize the earliest

opportunity to exculpate himself.36

However, this right is flagrantly abused by the interrogating officers,

especially, as a result of the ignorance of detainees about the existence of

this right. Atsenuwa37 has, therefore, noted that the failure of the police to

inform the detainees of this right greatly heightened the problem.

Sometimes also, the relations do not know the whereabouts of the

detainees, and the violation of this right is made more rampant in the

Southern Nigeria, due to the fact that the police are not bound to administer

the words of caution to suspects.38

Usually, suspects who are arrested and detained in connection with capital

offences are not allowed to contact their relations and in most cases, legal

practitioners are disallowed from consulting with their clients.39 Occasionally,

when they are allowed, police stay within ear shot, a practice that has been

decried by Osipitan.40

36 See the Draft Manual for Lower Court Judges on Human Rights and Administration of

Justice in Nigeria, prepared by the Civil Liberty Organisation in Lagos. p.27. 37 Atsenuwa, A.V., Due Process in Criminal Cases (Op Cit.) p.59. Note that the recently

enacted Administration of Criminal Justice Law in Lagos State in 2007 has taken care

of this problem. Section 3 of the law mandates the police to inform the accused person

of his right to remain silent or avoid answering any question until after consultation

with a legal practitioner or any person of his own choice. 38 See Okeke v. State (2003) 2 SCNJ p.199. 39 Ani, C.C., The Right to Fair Hearing and the Criminal Process in Nigeria: A Study of the

Lagos Metropolis, a Ph.D Thesis submitted to the School of Postgraduate Studies,

University of Lagos in 2009 p.276. 40 Osipitan, T., “Safeguarding the Right to Counsel”. JHRLP (1993) VOl.3, Nos 1,2 and 3.

p.146.

234

It is submitted that this practice runs foul of the international standards.41In

R v. Mallison,42 the court of Appeal of New Zealand held that the key point of

the right to consult a lawyer without delay was that it was to be exercised

before the legitimate interests of the person who was arrested were

jeopardised. Hence, the right to be informed of the right to consult with a

lawyer must be accorded to a suspect, immediately on arrest. The right to

remain silent, therefore, renders unconstitutional, the practice of using

torture to extract confessional statements from persons who are under

arrest and detention.

Any person who is arrested or detained shall be informed in writing within 24

hours (and in a language he understands) of the facts and grounds for his

arrest.43 The essence of this safeguard is adumbrated by Viscount Simmons

in the English case of Christie v. Leachinsky44 when he said:

The requirement that he should be so informed turns on the

elementary proposition that in this country, a person is prima

facie entitled to his freedom and is only required to submit to

restraints on his freedom if he knows in substance, the reason

why it is claimed that this restraint should be imposed.

41 See for example Principle 18 of the United Nations Body of Principles for the Protection

of All Persons Under Any Form Detention or Imprisonment, (Op cit), which provides

that interviews between a detained person and counsel may be within sight, but not

within hearing of a law enforcement official. Article 14(3)(b) of ICCPR stipulates that a

suspect has a right to communicate confidentially with his counsel while in detention.

See also, Prison regulation 45, which provides that prisoners shall be allowed to

communicate with their lawyers. See Section 7 of the Prisons Act, Cap 29, Laws of

Federation, 2004. Regulation 62 specifically provides for capital offenders. 42 (1993) 19 CLB Vol.1 p.64. 43 See Section 35(3) CFRN 1999 (Op cit.), as amended in 2010 and 2011. See also,

Article 9 of the ICCPR 1966. Also, see Principles 10 and 14 of the Body of Principles for

the Protection of Persons under any form of Detention or Imprisonment 1988. 44 (1974) A.C 573 pp. 587-588.

235

In Leachinsky’s case, a police constable arrested a person for receiving

stolen goods without telling him of the grounds of his arrest. The arrest was

declared unlawful.

The purpose of this safeguard is that the detained person should have the

warrant shown or read to him (where the arrest is with a warrant) or

informed of facts and grounds of his arrest within 24 hours in writing (if the

arrest is without warrant). It is submitted that since the purview of this

study is on capital offenders, the arrest is supposed to be with warrant,

unless if the suspect is caught infrangrante delicto. 45

However, it is observed that this provision is being honoured by the police in

Nigeria in its breach rather than in its compliance as detainees are never

informed of their offences or grounds of arrest in writing, except when the

charge is preferred against them in the court. Thus, in the Zimbabwean case

of Minister of Home Affairs and Anor v. Austin and Anor46, the Supreme

court of Zimbabwe held that, in drawing up the grounds of detention, it was

incumbent upon the detaining authorities to appreciate that the detainee

must be furnished with sufficient information or particulars to enable him to

prepare his case and to make effective representation before a review

tribunal. Hence, the court concluded that a bare statement that the detainee

was a spy was not sufficient.

The most controversial of the pre-trial rights of a criminal suspect, especially

that of a capital offence suspect, is the provision that relates to limit of time

45 It must be noted that the information contemplated here is at the point of arrest,

unlike the information upon arraignment which is as contained in the charge sheet.

See Atsenuwa, A.V., The Due Process (Op cit), where the learned professor

distinguished between the provisions of Section 35(3) and Section 36(6) (a) of CFRN

1999, as amended in 2010 and 2011. 46 (1987) LRC 567 (5); (1988) CLB (January) p.47.

236

within which a suspect who is detained pursuant to section 35(1)(c) can be

remanded. The gist of Section 35(4) of the constitution is that the person

arrested pursuant to Section 35(1)(c) must be brought to court within a

reasonable time. Reasonable time in this context has been further stated to

be one day, where there is a court of competent jurisdiction within a radius

of 40 kilometres,47 and where there is no such court, reasonable time is

construed as two days.48

The police should, under no circumstance, detain a suspect for more than

two days without taking him to court, except in respect of capital offences.49

On being taken to court,50 the court should consider bail for the suspect, but

can, on reasonable grounds, remand the suspect in custody pending trial.

However, the Constitution further provides that, where trial will exceed 2

months from the date of arrest, even if the person in custody is not

ordinarily entitled to bail, he should be released on bai l.51And also for those

who are already on bail, if trial exceeds three months, the Constitution 52

provides that they should either unconditionally or on such conditions be

released to ensure their further appearance. It is submitted that the

preceding provision is superfluous, because someone who is on bail is

already enjoying his temporary freedom on terms. Hence, he does not

require any other release on terms to ensure his appearance.

47 Section 35(5)(a) CFRN 1999, as amended in 2010 and 2011. 48 Section 35(5)(b) (ibid), see also Adeyemi, A.A., “The Right to Fair and Prompt Trial

under the Law” in Mohammed Tabiu (ed). Administration of Criminal Justice and

Human Rights in Nigeria. A publication of the National Human Rights Commission

1997, p. 35. 49 Section 35(7) (Ibid). 50 Of competent jurisdiction. To prevent incidence of Holding charge syndrome. 51 Section 35(4)(a)(ibid). 52 Section 35(4)(b)(ibid).

237

The judicial interpretation of Section 35(4) (a) & (b) came to fore in the

Nigerian case of Onu Obekpa v. C.O.P53 where the applicant, who was

arrested and arraigned before a Magistrate Court for theft, had his

application for bail refused; and the prosecutor, opposing the applicant’s

bail, on appeal, was trying to invoke the provision of Section 35(4)(a) on the

ground that the detention has not exceeded two months. Idoko, J; held that:

Bail to a person accused of an offence other than a capital

offence is a basic right and undoubtedly, the right to be

released before trial is much more basic if the trial is going to

last for more than two months for non-capital offences.

It would appear that capital offence suspects are being excluded from the

umbrage of the constitutional guarantee of presumption of innocence

because of the totality of the provisions in Section 35. Section 35(7)

expressly exclude a capital offence suspect from the protection against

endless incarceration without trial.

The requirement that a person who is not tried within a reasonable time

should be released is routinely violated in Nigeria, especially against capital

offence detainees. Incidence of indiscriminate arrests and inordinate delays

in the criminal justice system in Nigeria are rampant. The investigation

carried out by the Constitutional Rights Project in 1996 revealed that more

than sixty percent of Nigeria’s prison population are awaiting tria l, and

several have been held in prison custody without trial for periods of between

two to twelve years.54 Also, Amnesty International has reported that the

53 (1980) 1 NCLR 113, 285. Bailable under Section 341(2) of CPC. 54 See Nwakwo, C. et al., The Failure of Prosecution:A Report on the Prosecution of

Criminal Suspects in Nigeria. (Lagos: CRP, 1996), p.3.

238

pre-trial detention period in Nigeria for capital offence suspects is rarely less

than five years in some States and in others, over ten years.55

The practice in Nigeria is that a person arrested for a criminal offence,

especially where the offence attracts capital punishment, or where the

accused has elected to be tried in the High Court for an indictable offence, is

taken to the Magistrate Court which has no jurisdiction (under what is known

as Holding Charge) to be remanded in prison custody, pending the

investigation of the case or pending preferment of information by the

Attorney-General.56

In most cases, the police will not forward the case file to the Attorney-

General until after several years, and where the case file is forwarded, the

Attorney-General (or DPP) may not prefer the Information for years while

the accused remains in detention. In this situation, the accused is detained

endlessly under deplorable conditions.

In August 2004, at the instance of the Ikorodu Bar Association, the High

Court granted the order releasing some of the detainees in the case of Shola

Abu and 349 Ors v. C.O.P Lagos & 2 Ors,57 a case in which each of the 350

applicants who were yet to be properly arraigned in court as at May 2004

55 Amnesty International. Nigeria: The Death Penalty and women under the Nigerian

Penal Systems AI Index: AFR 44/007/2004, 10 February 2004. See also the Report of

the National Co-ordinator of Nigeria on the Application of the Death Penalty, Jude Ilo,

presented at the First International Conference on the Application of the Death Penalty

in Commonwealth Africa, in Entebbe, Uganda, from 10-11 May 2004. 56 See for example, Section 236 of the Criminal Procedure Act (Op cit), which provides

that: if during any proceeding before a court , it becomes necessary to adjourn the

hearing of the same, the court may from time to time…by its warrant , remand him to

prison or other suitable place of security for any time not normally exceeding eight

days but if necessary for such longer period as the court may consider advisable… . See

also, Johnson v. Lufadeju (2002) 8 NWLR (Pt 768). p.192. 57 (Unreported) Suit No IKD/M/18/03. Judgment delivered in 2006.

239

had been in detention for at least eleven years without trial, having been

arrested for various capital offences, mostly murder and armed robbery.

Under this dispensation, the police need not show any evidence that links

the accused person to the crime, as the court also gives no time limit for the

arraignment of such person.58 This practice works as a blank cheque given

to the police to keep the accused persons in prison for as long as they may

want, without trial. This is irrespective of the accused person’s innocence or

guilt. The practice also portrays the inefficiency of the Nigerian police, and

confers a statutory stamp on such inefficiency. The implication of this,

therefore, is that the police have been used to wreak injustice and

intimidation on helpless Nigerian, and this largely contributes to the

degenerating problems of prison congestion.

One will often wonder the kind of injustice these men have gone through in

the hands of the State. The pathetic fact is that if their innocence is

subsequently established, it may hold no meaning for them again.59 Hence,

where is justice?

The Nigerian courts have, in recent times, come down heavily against the

Holding Charge practice. In Enwere v. C.O.P,60 the appellant, who was

arrested and charged with murder, was arraigned before a magistrate who

refused bail on the ground of want of jurisdiction, and thereby ordered the

appellant to be remanded in prison custody. Having been further refused bail

by the High Court, the appellant later appealed to the Court of Appeal. The

58 See, however, the recent reform in the Administration of Criminal Justice Laws of

Lagos State, 2007. 59 See the case of Bodunrin Baruwa v. State (Supra). 60 (1993) 6 NWLR (Pt 299) 333. See also Onagoruwa v. State (1993) 7 NWLR (Pt 303)

49; Andrew Ogor & Ors v. His Worship Mr E. Komolafe & C.O.P (1985) 6 NWLR 534.

Also, see Johnson v. Lufadeju (2002) 8 NWLR (Pt 768), 192.

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Court of Appeal held, inter alia, that a Holding Charge is unknown to

Nigerian law, and that an accused person detained there under is entitled to

be released on bail within a reasonable time before trial. Onu J.C.A.,

commendably said:

I hold that this act constituted improper use of power or a

flagrant abuse of power by the police for which they stand

condemned. This particular abuse of power is all the more

condemnable when it is known that there have not been

exhibited proofs of witnesses evidence evidencing police

desire to prosecute the appellant placed before the trial court.

The courage displayed by Justice Kessington of the Lagos High Court in

Ayinla & 191 Ors v. A.G Lagos State & Ors61 is also commendable. In a sheer

display of judicial activism, the learned judge granted bail to the applicants

who have been remanded for periods ranging from 5 months to 9 years for

capital offences. He said:

… such detention must be in accordance with Section 32(4)62

of the Constitution which demands that accused be brought to

trial within a reasonable time … Section 32(7),63which

excludes the application of S. 32(4) to capital offences is an

unintended clog in the administration of justice… it is curable

through judicial activism.

This writer cannot agree more with the learned jurist.

61 Suit No M/115/94 (Unreported) Lagos High Court. 62 Now section 35(4) of CFRN 1999, as amended in 2010 and 2011, then, section 32(4)

of the 1979 Constitution. 63 Section 35(7) CFRN 1999 (ibid).

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It is submitted that unless the right to bail before trial is preserved, the

presumption of innocence which is secured after centuries of struggles would

lose its values. The constitutional right to presumption of innocence should,

therefore, be invoked in capital offence cases, where a prima facie case has

not been established against the accused person.

4.3.0 DUE PROCESS AT THE TRIAL STAGE

The trial rights are the rights which a capital offender is entitled to, from the

time of arraignment up till the time of conviction and sentence. For the

purpose of this Study, the researcher shall analyse the prisoner’s rights in

relation to fair hearing/trial within a reasonable time by an impartial or

independent tribunal or court, presumption of innocence, adequate time and

facility for defence, and right to mandatory legal assistance.

4.3.1 FAIR HEARING/TRIAL WITHIN A REASONABLE TIME IN THE

PUBLIC BEFORE A COURT OR TRIBUNAL.

The right to be tried within a reasonable time is of a constitutional value of

supreme importance which must be interpreted in a broad and creative

manner.64 Hence, trials held within a reasonable time have intrinsic value

because, if the accused person is innocent, he should be acquitted with the

minimum disruption to his social and family relationships. If guilty, however,

the accused should be convicted and an appropriate sentence be imposed

without unreasonable delay.65

64 Smyth v. Uhsewokunze (1998) 4 LRC 120, 1296. 65 See Re Mlambo (1993) 2 LRC 28 at 34 e-f (Supreme Court of Zimbabwe). Note that in

Mohammed v. Kano N.A, Ademola CJN trying to distinguish between fair hearing and

fair trial said: it has been suggested that a fair hearing does not mean a fair trial. We

think fair hearing must involve a fair trial and a fair trial of a case consists of the whole

hearing.

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The distinction between fair hearing and fair trial was succinctly made by

Adeyemi when he said: while trial is all encompassing, that is, from

arraignment to the conclusion of the trial, culminating in the announcing of

the decision of the court or tribunal, hearing, on the other hand, entails

merely from arraignment to the putting of the case for defence.66 Hence fair

hearing is embedded in fair trial, and as such, fair trial is a genre of which

fair hearing is a specie.

The test of fairness in a trial process has been prescribed by the Supreme

Court in Nigeria, in the case of Effiom v. The State,67 where the essential

elements of fair hearing were listed as; easy access to the court, the right to

be heard, the impartiality of the adjudicating process, the principles of nemo

judex in causa sua and whether there is inordinate delay in delivering

judgment.

Section 36 of the Constitution68 makes elaborate provisions aimed at

safeguarding, not only the fair hearing/trial, but also a right to be tried

within a reasonable time in criminal trials. A person charged with a criminal

offence is entitled to a fair hearing in public within a reasonable time by a

court or tribunal.69 Since the conviction for a criminal offence and the

imposition of a sentence, therefore, pertain exclusively to judicial power,

66 Adeyemi, A. A., “Criminal Justice Administration in Nigeria in the Context of the African

Charter on Human and Peoples’ Rights” in Perspectives on Human Rights, Awa Kalu

and Yemi Osinbajo (eds.), 1992, pp. 121 – 141 at 129. 67 (1995) 1 NWLR (Pt 373) p.507 at 575. 68 CFRN 1999,(Op cit), as amended in 2010 and 2011. See also Article 7 of the ACHPR. 69 See Section 36(4) ibid. It must be noted here that the court or tribunal stated

here,must be of competent jurisdiction. One must quickly point out here the difference

between Section 35(4) and Section 36(4) of the Constitution. While the former

contemplates the pre-trial right of arraignment within a reasonable time, the latter

contemplates trial within a reasonable time at the t rial phase from arraignment to

sentence.

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only a court that is qualified under Section 6 of the Constitution to exercise

judicial power can convict and sentence for a criminal offence.70

In the case of Orioge v. A.G Ondo State,71 it was maintained that the two

principles of natural justice are inherent in the provision for fair hearing, but

the provision goes beyond the rule of natural justice. The distinction had

earlier been succinctly made by Lord Denning in Breen v. A.E.U,72 to wit:

It will be seen that they are analogous to those required by

natural justice but not necessarily identical. In particular, a

procedure may be fair although there has not been a hearing

of the kind normally required by natural justice. Conversely,

fairness may sometimes impose a higher standard than that

required by natural justice. Thus, the giving of reasons for

decisions is probably not required by natural justice but, it

has been said, may be required by fairness…

The rule of natural justice is anchored on two pillars viz: a man shall not be

a judge in his own cause, and let the other side be heard.73 In expressing

the foundation for the second pillar stated above, Fortescue J. said:

I remember to have heard it observed by a very learned

man upon such occasion, that even God himself did not pass

sentence on Adam before he was called upon to make his

70 Nwabueze, B.O., The Presidential Constitution of Nigeria (London: C. Hurst & Co,

1982) p. 431. 71 (1982) 3 NCLR 743. 72 (1971) 2 QB 175, 191. 73 Usually expressed in the latin maxims (Nemo judex in causa sua and Audi alteram

partem respectively).

244

defence. For God said Adam, why hast thou eaten of the

fruit whereof I command you that thou shall not eat?74

Also, the development of the modern law on the rule against interest and

bias is based on the principle of law enunciated by Lord Hewart, C.J., in R.v

Sussex J.J exp. Mc Carthy,75 where the learned Chief Justice said:

It is not merely of importance but it is of fundamental

importance that justice should not only be done, but should

manifestly and undoubtedly be seen to be done.

This arm of natural justice requires that a person should not be a judge in a

case in which he is interested. Hence, any pecuniary interest, no matter how

small, is sufficient to disqualify a judge from adjudicating in a matter, even if

he was not influenced by the interest.76 A judge, like Ceaser’s wife, must

therefore be above suspicion. The same disqualification is also applicable if

the judge has any form of bias or likelihood of same. The test, therefore, is

whether there is a reasonable suspicion of bias, should be looked at from the

objective standpoint of a reasonable person, and not from the standpoint of

an aggrieved party.77

74 R. v. Chancellor, University of Cambridge (Dr Bentley’s Case) (1723) 1 Str. 557.

However, a court of law can convict an accused person who chooses to say nothing in

his defence. See Section 287 CPA,(Op cit). 75 (1924) KB 256. See also M.K.O Abiola v. The Federal Republic of Nigeria (1995) 7

NWLR (Pt 405) p.1. 76 Deduwa v. Okorodudu (1976) 9/10 S.E 329. 77 See Nnamdi Azikiwe University v. Nwafor (1999) 1 NWLR (Pts 584-588) 116, where

the Court of Appeal held, in an examination malpractice case, that the members of the

examinations committee who saw the alleged acts of malpractice committed by the

respondents acted as judges in their own cause by also participating actively in the

deliberation of the Senate that suspended the respondent. It was further held that any

blood ties, business association, commercial links, personal hostility, personal

friendship, professional or vocational relationships are sufficient to disqualify a judge

from adjudicating on a matter. The dictum of Lord Nolan in Re Pinochet is also very

instructive, where his Lordship held: where the impartiality of a judge is in question,

the appearance of the matter is just as important as the reality.(2000) 1 AC 119-147,

ILR, at 135.

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The fair hearing envisaged by Section 36(4) of the Constitution must be

commenced and concluded within a reasonable time by a court or tribunal;

and the question, whether a trial is conducted within a reasonable time,

depends on the circumstances of each particular case.78

The crucial question about the right to be tried within a reasonable time is

the determination of when a trial commences. In the case of Godspower

Asakitipi v. The State,79 where the appellant was tried and convicted for

armed robbery by the Bendel State High Court, the Supreme Court held that

trial in a criminal case commences with arraignment, which in turn, consists

of the charging of the accused or reading over the charge to the accused

person and taking his plea thereon. The appellant was purportedly arraigned

on the 8th of February 1982 for an offence committed on 6th July 1981 when

he was arrested. The charge was not read to him and no plea taken. The

case was adjourned for 18 times between February 1982 and 8th March 1983

before he was properly arraigned before a High Court on the 10th March

1983, and judgment was delivered on the 31st March 1983. On appeal, the

appellant contended that he was not tried within a reasonable time. While

the Supreme Court deprecated the delay from 6th July 1981 to 10th March

1983, it held, however, that irrespective of the fact that the accused was

brought to court 18 times before his plea was taken, trial in the case did not

commence until the 10th of March 1983. Consequently, the whole trial

process lasted for only 20 days, which cannot be said to be unreasonable in

the circumstance of the case.80

The rationale for requesting speedy trial has always been that delay in trials

impairs the ability of the accused person to defend himself, through the fact

78 See Okeke v. The State (2003) 15 NWLR (Pt 842) p.25 at 84-85. 79 (1993) 6 SCNJ 201. 80 In civil cases, however, time begins to run from when the action is instituted until final

judgment. See Chief Osigwe Egbo v. Chief Titus Agbara (1991) 1 NWLR (Pt 481) 293.

246

that a vital witness may have died in the interval, or that the recollection of

the facts by other witness may have become blurred.81 Also, there is the

further danger of the trial Judge losing his impression of the demeanour of

the witnesses after the lapse of a long time, during which he has also to

watch the demeanour of witnesses in a variety of other cases.82 The courts

have, therefore, always felt that undue delay in criminal trials is fraught with

the danger of miscarriage of justice.83

The reasonable time for the consideration and delivery of judgment by the

court depends on the time an active, healthy and mentally alert judge takes

to read and consider the evidence and write his judgment with full and

complete consciousness of all the impressions of witnesses at the trial .

Hence, the Supreme Court has held that reasonable time must mean the

period of time which, in the search for justice, does not wear out the parties

and their witnesses, and which is required to ensure that justice is not only

done, but appears to reasonable persons, to have been done.84 Thus, a

period of time which dims or leads to loss of the memory of the judge about

his impression of the case and that of the witnesses is certainly too long and

unreasonable. However, a party who is guilty of delay should be estopped

from relying on his own default to the prejudice of the other party.

81 See United States v. Ewell (1966) 383 U.S, 116, at p.120. 82 Per Idigbe Jsc, in Akpor v. Iguoriguo (1979) 1 LRN p.115 83 See Kakara & Or. v. Imonike (1974) 1 All NLR 83, p.384 84 See Egbo v. Agbara (Supra). Okpaluba has laid down three purposes of having a trial

within a reasonable time. These are (1) To protect the accused against prolonged

imprisonment, (2) To protect the neutralizing anxiety and public suspicion which

leaving a case hanging on the neck of the accused may engender, and (3) To prevent

the disappearance of the means of proving innocence or guilt as a result of loss of

evidence and the dulling out of memory. See Okpaluba, C., Right to fair Hearing in

Nigeria (Lagos; Shelter International Ltd) p.101.

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The situation in Nigeria is such that delay in criminal matters, especially for

trials of capital offences, may be caused by many factors. Olawoye85 has

identified some factors that militate against speedy trials in criminal cases.

These include the delay from the Ministry of Justice in filing information and

proofs of evidence, police request for adjournment to enable completion of

investigation or for the production of witnesses, shortage of judges and

staff, indifference and laziness of lawyers, indisposition of judges and

magistrates, persistent absence of counsel in court, personnel transfer,

corruption and inadequate and obsolete facilities.

However, when the human rights of individuals are at stake, deficiencies in

the criminal justice system cannot be used to justify violations of such

rights. It is instructive from the UN. Human Rights Committee’s decision in

Lubuto v. Zambia that a state cannot use its economic situation to justify

violations of minimum human rights standards, including violations of fair

trial rights. 86

In the area of trial within a reasonable time, the Nigerian judiciary can be

said to have failed woefully. This is because judicial determination of

disputes takes such a long time that in some cases, both the witnesses and

the litigants die before a case is finally determined. Today, instances abound

of court proceedings commenced more than fifteen years back which are yet

to reach the trial stage.87 In many cases, favourable judgments obtained

85 Olawoye, C.O., “The Problem of Delay in the Administration of Criminal Justice”, in

Adeyemi, A.A (ed.), The Criminal Process, (University of Lagos Press, 1977). p.147.

See also Adeyemi, A.A., “Police and Human Rights in a Democratic Nigeria” in David,

P.R., (ed.) Politica Criminal Derechos Humnaos Y. Systemas Juridicos En El Siglo XXI

(Ediciones Depal Belenios Aires, 2001), p.19. 86 Communication No 390/1990, UN Doc CCPR/C/55/D/390/1990/Rev.1, 31 October

1995 para 73. In this case, the Human Rights Committee found a period of eight years

between arrest and final decision of the court to be incompatible with the requirements

of Article 14(3) of the ICCPR. 87 Ogbu, O.N., (Op cit) p.156.

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after a long and sometimes protracted trial, through the hierarchy of courts,

tend to lose their flavour, principally because the res has undergone some

irreversible and unproductive changes in the process.88

The Supreme Court of Nigeria has identified four factors, and the effect they

may have on a trial, in order to determine reasonable time in relation to a

criminal trial. These are the length of delay in trial, the reasons given by the

prosecution for the delay, the responsibility of the accused for asserting his

rights, and the prejudice to which the accused may be exposed.89

In Ozulonye & 11 ors v. State,90 the trial took four years to conclude, and

there were more than ten accused persons. The trial judge went on transfer

to another judicial division, and was later transferred back, to find that the

case remained where he had left it. He then concluded it.

It was held, on appeal, that the trial court could not possibly recollect the

evidence given at the trial, due to effluxion of time. The court held further

that the trial judge lost track of the facts of the case, and concluded that the

accused was not given a fair trial within a reasonable time.

However, in the case of Okeke v. The State,91 the trial of the accused person

took six years to conclude, though the main exhibits at the trial were the

accused person’s voluntary statement. On appeal against his conviction, the

88 Jegede, M.I., Whats wrong with the Law? (Lagos: Nigerian Institute of Advanced Legal

Studies, 1993) 41. 89 See Effiom v. The State. (Supra). 90 (1983) 4 NCLR P.204. In that case, the appellants were arrested in 1973 for arson,

information filed against them in 1976 and trial concluded in 1980. The appellate

court set aside the judgment for unmitigated delay, which presumably would have led

to the inability of the judge to retain the impression or demeanour of the witnesses in

the case. See also Pagnoulle (on behalf of Mazou) v. Cameroon. Communication

39/90, 10th Annual Activity Report 1996-1997; (2000) AHRLR 57 para 19. 91 (Supra).

249

Supreme Court held that the main exhibits at the trial were the accused

person’s voluntary statements, that all the evidence given at the trial could

be recollected by the trial judge by re-reading the record of proceedings,

and that consequently, the trial judge did not lose track of the facts due to

effluxion of time.92

It would be seen from the above two cases that it is not really the length of

time of the delay in the trial process that can warrant a setting aside of the

lower court’s judgment by the appellate courts, but a consideration of

combination of factors enumerated in Effiom’s case. The appellate courts

have also been reluctant in a lot of instances to set aside judgments if the

delay does not occasion any injustice to the accused person.93

Section 36(4) of the Constitution also stipulates that the trial, which must

be conducted within a reasonable time, should be in public. The publicity of a

trial is one of the hallmarks of fairness. Members of the public are, therefore,

not prohibited from attending criminal trials, even when they are not parties

to the proceedings.94Osipitan, has therefore, rightly asserted that the

92 Individual States have taken steps to accelerate the trial systems in their respective

jurisdictions. For example, the Lagos State enacted the New Lagos State

Administration of Criminal Justice Law of Lagos State.(2007). 93 For example, the provision of Section 294 CFRN 1999 (Op cit), as amended in 2010

and 2011, is to regulate the time frame within which a court should deliver its

judgments after the final addresses of counsel. However, the three months time frame

stipulated would not necessarily invalidate a judgment delivered out of time, if there is

no evidence of a miscarriage of justice. It is submitted that the courts should go

beyond the issue of miscarriage of justice and make pronouncements that will reduce

the agony of facing a trial, especially a capital trial for an unreasonably lengthy period. 94 This requirement must have been premised on the fact that justice must not only be

done, but must be seen to be manifestly done. See R.v. Sussex (1924) 1 KB 256. The

dictum of Lord Nolan in Re Pinochet (Supra) is also apposite here, where his Lordship

held: Where the impartiality of a judge is in question, the appearance of the matter is

just as important as the reality.

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requirement of open trial and public justice remains the cornerstone of the

adversary trial system95.

The provision for public trial ensures that the judge himself, while trying a

case, will be on trial. Also, the citizen is safeguarded from the risk of being

convicted unduly in a secret trial, and that the executive does not employ

hide and seek measures to manipulate or coerce the courts into convicting

innocent persons. The court or tribunal must be open and accessible to the

members of the public, as far as it can conveniently accommodate them.96

However, children are generally prohibited from attending court during

criminal trials.97

In the case of Iwuoha v. Okoroike,98 it was held that one of the attributes of

fair hearing is that the proceeding shall be held in public, and all concerned

shall have access to and be informed of such a place in public hearing. Also

in Willy John v. R., it was held that the requirement is satisfied if the public

have access to the trial, even though the proceedings were not held in the

regular court room, but a trial, which the public had no access to, is a

nullity. 99

There are provisos to the right to public trial. A court or tribunal may

exclude from its proceedings, persons other than the parties thereto or their

legal practitioners, in the interest of defence, public safety, public order,

public morality, the welfare of persons who have not attained the age of 18,

the protection of the private lives of the parties, or such situation as it may

95 Osipitan,T.,”Issues in Nigeria’s Law of Evidence” Obilade. A & Braxton .G (eds) Due

Process of Law, Southern University Law Centre, (Baton Rouge, Louisiana, 70813 and

Faculty of Law, University of Lagos, 1994) p.96 96 Section 203 CPA (Op cit). 97 Section 206 CPA (Ibid). 98 Iwuoha v. Okoroike (1996) 2 NWLR (Pt 7) 231 at 235. 99 See Biffo v. R. 1960 E.A 965.

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consider necessary, by reason of special circumstances in which publicity

would be contrary to the interest of justice.100 Under the claim of State

privilege, a minister or commissioner may object to the production of certain

documents in the public, and where the court is satisfied, the document will

be inspected privately, and the court has to take measures preventing its

disclosure.101

The right to public trial of citizens was usually violated during the military

regimes especially by military tribunals. These tribunals can be said to be

everything but independent or fair. For example, the trials of persons

allegedly connected with the April 22, 1990 coup were conducted by a

military tribunal in utmost secrecy. Journalists, human rights groups and

other independent bodies were shut out from the proceedings. In the end,

42 persons were executed by firing squad. Another example was the trial of

Major General Zamani Lekwot and six others in connection with the Zango

Kataf disturbances. The Defence Counsel, Chief G.O.K Ajayi, had to withdraw

from the case due to lack of fair hearing. At the end, Lekwot and four others

were sentenced to death.102

The requirement of trial within a reasonable time in a court or tribunal in

Section 36(4) of the Constitution envisages courts or tribunals of competent

jurisdiction, where the impartiality, independence and neutrality of the

judges are guaranteed.103 The competence of a court or tribunal refers to

100 See Draft Manual for Lower Court Judges (Op cit). 101 Section 36(4)(b) CFRN 1999,as amended in 2010 and 2011. 102 Ogbu, O.N., Human Rights, Law and Practice in Nigeria (Op cit,) p.346. See

Newswatch Magazine, Feb., 15, 1993, p.16. More recently, Ken Saro Wiwa and others

suffered similar fate in trials that were devoid of fair hearing, as defence counsel

withdrew appearances and the accused were convicted, sentenced to death and

hurriedly executed. 103 For courts of competent jurisdiction, see Section 6 CFRN 1999, as amended in 2010

and 2011. See also the case of Madukolu v. Nkemdilim (1962) All NLR 1, on when a

court can be said to be of competent jurisdiction.

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the appropriate personnel, subject matter, territorial and temporal

jurisdiction of a court in a given case. The reference to the tribunal’s

establishment by law presupposes that the court has been established by

the normal law-making body of the legal system in question.

It is submitted that the provision of the Constitution under review stresses

the indispensability of the twin pillar requirements of the independence and

impartiality of such tribunals. It is, however, doubtful if a tribunal that

convicted a person without the due process of criminal procedure can be

said to have satisfied this requirement.104

It was quite perturbing, that the presiding judge in Ken Saro Wiwa’s case, in

a display of flagrant disregard for due process said:

…the criminal procedure Acts are designed to afford an accused

safeguards…it is not clearly the intention of the framers of the

Decrees (Military) to provide the accused with such escape

route to freedom.105

It is submitted that the above quotation is patently at variance with the

requirements of independence and impartiality of a tribunal, and as such,

the execution order by the said tribunal could not be said to constitute a

specie of the exceptions contained in Section 33(1) of the Constitution.

Though it was perpetrated under the cloak of judicial process, it constituted

nothing short of judicial murder.

104 On the 6th February 1995, Ken Saro Wiwa and fourteen other activists were charged

before a Special Military Tribunal headed by Justice Ibrahim Auta, with the murder of

four Ogoni chiefs. See the Civil Disturbances (Special Tribunal) Decree 2 of 1987. 105 See Mbeke-Ekanem, T., Beyond the Execution, Understanding the Ethnic and Military

Politics in Nigeria ( CSS Press, 2000) p.147.

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In order to be independent, a tribunal must have been established to

perform adjudicative functions. Independence also presupposes that the

judiciary is independent of the executive and legislative branches, and that

judges are impartial and competent.

The United Nations Human Rights Commission had noted the existence in

many countries, including Nigeria, of military or special courts which try

civilians, and it is of the view that this could present serious problems as far

as the equitable, impartial and independent administration of justice is

concerned. The concern here stemmed from the fact that, such courts are

established to enable exceptional procedures to be applied, which do not

comply with normal standards of justice.106

In Akinfe v. State,107 the Supreme Court held the quality of a judge to be:

…impartial unto dismissal and even unto death, be objective

in his thought and in his action, be experienced, not just only

in the law, but also, and more importantly, in the affairs of

life, be full of erudition, be well read in other disciplines, be

wiser, be uncompromisingly independent and fearless.

Also the Supreme Court, Per Oputa J.S.C in the case of State v.

Aibangbee108 said:

The role of a trial court is to hear evidence, to evaluate

evidence, to believe or disbelieve witnesses, to make findings

of fact based on the credibility of the witnesses who testified

106 See Article 14 ICCPR (Op cit). See also paragraph 5 of the Basic Principles on the

Independence of the Judiciary which provides that: Every one shall have the right to

be tried by ordinary courts or tribunals using established legal procedures. 107 Akinfe v. State (1988) 3 NWLR (Pt. 85) 729. 108 State v. Aibangbee (1983) 3 NWLR (Pt 84) 548.

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and to decide the merits of the case based on the findings.

When a trial court acts on speculation rather than on the

evidence, then it has abandoned its proper role. No trial court

has a right to draw conclusions of fact outside the available

evidence; otherwise, such conclusion will be regarded as

perverse.

It is submitted from the foregoing, that a court, for the purpose of trials in

capital cases especially, should accord the accused person a fair hearing in

the public, within a reasonable time and that such court should be impartial.

Our judges also, like Ceaser’s wife, should be above suspicion. Lord Nolan

asserted in Pinochet’s Case, that Where the impartiality of a judge is in

question, the appearance of the matter is just as important as the reality.109

4.3.2 TRIAL RIGHT OF PRESUMPTION OF INNOCENCE

The Nigerian Constitution provides:

Every person who is charged with a criminal offence shall be

presumed to be innocent until he is proved guilty.110

This provision places the burden generally on the prosecution to prove the

guilt of an accused person, and this must be proved beyond reasonable

doubt. A court, therefore, has to conduct the trial without forming an opinion

on the guilt or innocence of the accused person in advance. It, therefore,

follows that the right to be presumed innocent by a court of law requires

that the respondent State, for instance, should not make open statements,

109 Re Pinochet (2000) 1 AC 119-147, ILR, at 135. 110 See Section 36(5) CFRN 1999, as amended in 2010 and 2011.

255

prior to and during the trials, in press conference or at public gatherings,

regarding the guilt of the accused person.111

Consequently, a disregard of the procedural constitutional guarantee of the

presumption of innocence in criminal trials was displayed by the Head of

State during the Zango Kataf crisis, when he said:

…this moment can be described as the darkest chapter in the

nation’s history …all the accused persons would be considered

guilty until they are proved otherwise.112

An offshoot of the constitutional guarantee of the presumption of innocence

is the right to bail pending the trial of accused persons. It is, therefore, clear

that the continued detention of an accused person, pending the conclusion of

a fairly long trial, negates the right to the presumption of innocence,

especially where the accused person is eventually adjudged to be innocent of

the charge by the trial judge.113

In Nigeria, the position on the grant of bail generally is as contained in the

Criminal Procedure Act,114 which provides:

111 This right was blatantly violated by the Nigerian Government in the case of

International Pen and Others (on behalf of Saro Wiwa) v. Nigeria. Communication 137/94,

154/96 and 161/97, 12th Annual Activity Report: 1998-1999, Add.113, 1 November 1999,

para 18. 112 See The News Magazine of 8th March 1993, at p.10. 113 See Article 7(1)(b) of the African Charter on Human and People’s Rights, to be read

together with Article 9(3) of the ICCPR. It must be noted that the African Commission

has recognized the right to bail in the Principles and Guidelines on the Right to a Fair

Trial and Legal Aid in Africa. 114 See Section 118 Criminal Procedure Act (Op cit). However, the Criminal Procedure

Code, which is applicable in the Northern parts of Nigeria, expressly made capital

offences non-bailable. See section 341(1) of the CPC (Op cit).

256

(a) A person charged with any offence punishable with death shall not

be admitted to bail except by a judge of the High Court;

(b) Where a person is charged with any felony other than that

punishable with death, the court may, if it thinks fit, admit him to

bail;

(c) Where a person is charged with any offence other than those

referred to in the last preceding sub-sections, the court shall admit

him to bail unless it sees good reason to the contrary.115

Hence, the combined effect of the above provisions is that in non-felonious

offences, bail is to be granted as a matter of course. In felonies, bail shall be

granted within the discretion of the court; while in capital offences, only the

High Courts have original jurisdictions, and such may only be granted

sparingly.116

The position of the Nigerian courts on bail in capital cases is that it is very

unusual, though not impossible, for a capital offender to be admitted to bail

during trial. This was aptly expressed by the Supreme Court in the leading

case of Oladele v. State117 and a number of other cases.118 However, the

problem with the Nigerian courts is the lack of uniformity in the exercise of

discretion by the various courts. Hence, from the line of cases decided by

115 See Ugwumba v. C.O.P (1974) ECSLR, 362, where the court said: The grant of bail is

mandatory unless the court sees good reasons to the contrary. The court stated

further that the good reasons must be adduced by the prosecutor. See also Ogunniran,

I.,”The Right to Bail in Capital Offences: An Appraisal” (2005) 8(2) UBLJ p.109. 116 Note that section 35(7) CFRN 1999, as amended in 2010 and 2011, also exempts

those detained for the commission of capital offences from the provisions on the right

to speedy arraignment which are contained in the preceding sub-sections. Also, in the

twin cases of Francis Fashehin v. C.O.P (1995) 7 NWLR (Pt. 410) at 755 and Okpe &

Anor v. The State (1994) 5 NWLR (Pt 345) p.490, it has been held that it is a general

principle that, in murder cases, bail is not granted except by a judge of the High Court . 117 (1999) 1 NWLR (Pt 209) 294. 118 See Mohammed Abacha v. State. (2002) 32 WRN 1, 336. Omisore v. State(2008)

NCC 60.

257

the Nigerian courts so far on bail in capital offences, there have been

obvious inconsistencies in their approaches.

In the case of Mohammed Abacha v. State,119 a case of murder and

conspiracy to commit murder, where the applicant adduced a modicum of

evidence of ill health to support his application, bail was refused. However,

in Iyiola Omisore v. State120, where the applicant did not adduce any

stronger

evidence, the application was granted.121 It is, therefore, an infraction of a

capital offender’s right to the presumption of innocence to be refused bail

simply because bail pending trial in capital cases is not to be granted ex

debito justitiae.122

In the case of The State v. Okafor & 14 Ors.,123 Egbuna .J, succinctly

enumerated the factors to be considered in granting bail thus:

(1) The cogency of the facts against the applicant.

(2) The gravity of the offence charged.

(3) The severity of the punishment to be meted to the accused person

if convicted.

(4) The availability of the accused to stand trial if he is granted bail.

(5) ......the likelihood of the trial not being taken for a long time......

119 (Supra). 120 (Supra). 121 The exercise of discretion in Omisore’s Case should be distinguished from the

discretion exercised in granting bail in the case of Fawehinmi v. State (1990) 5 NWLR

(Pt 112) 336, where the medical evidence adduced could be said to constitute

exceptional circumstances. 122 See Omodara v. State (2004) 1 NWLR (Pt.853) 80. 123 (1964) E.N.L.R, 96.

258

In relation to bail in capital offences, the courts have placed much emphasis

on the first of the above enumerated factors, i.e, the cogency of the facts

against the applicant. Hence, in C.O.P v. Akinpelu & 10 Ors., 124bail was

granted, in a murder case which was punishable with capital punishment, on

the ground that the prosecution failed to disprove the applicant’s alibi.

Johnson .J, therefore, held that the prosecution’s evidence against the

applicants was not cogent. Thus, the question as to who bears the burden of

establishing the cogency or otherwise of the evidence against the applicant

for bail was clearly resolved by Umezinwa .J, in the case of Dike & 4 Ors v.

C.O.P,125 where his Lordship established the rule clearly that the onus is on

the party who opposes the application for bail to provide some prima facie

evidence to show that the case against the applicant is likely to succeed, and

that the accused or prisoner is not likely to appear to face his trial, if

admitted to bail.126

It has been observed that in the few examined cases on bail applications in

capital offences, such applications have been unjustly refused by the

respective trial courts only to be granted by the respective courts of

appeal.127 Consequently, it is suggested that regardless of whether the

offence is capital or not, an accused person should be admitted to bail after

satisfying the conditions laid down by the courts128 as classified by

Adeyemi129. That will be the only way of complying with the fair trial

124 (1972) 2 U.I..L.R, Part III, 330 at 335. 125 (1972) E.N.L.R 467 at 468 126 Adeyemi, A. A., “The Place of Bail in Our Criminal Process”, Chap. 15, Nigeria

Criminal Process (1977), A. A. Adeyemi (ed) University of Lagos Press, pp. 239 – 241. 127 See Enwere v. C.O.P (1993) 6 NWLR (Pt.299) 333. Anaekwe v. C.O.P (1996) 3 NWLR

(Pt.436) 335 and Ani v. State (2002) 10 NWLR (Pt.776) 644 SC. 128 See for example Enwere v. C.O.P (Supra). 129 Adeyemi, A.A., “The Place of Bail in Our Criminal Process” in A. Adeyemi (ed.) The

Criminal Process (1977) p.237. He classified the factors as (1) The likelihood of the

applicant being available to stand his trial; (2) The seriousness of the charge being

preferred against the applicant, and (3) The strength of the evidence against the

applicant. See also, Mohammed Abacha v. State (Supra).

259

safeguard entrenched for the protection of the right to presumption of

innocence.

4.3.3 ADEQUATE TIME AND FACILITY TO PREPARE FOR DEFENCE

The Constitution130 further provides:

Every person who is charged with a criminal offence shall

be given adequate time and facilities for the preparation of

his defence.

The above provision implies that a capital offender be afforded sufficient

time to prepare for his defence. However, what constitutes adequate time

depends on the circumstances of each case. Hence, an accused person

should not be refused an adjournment where such an adjournment is

necessary. For instance,a refusal of an application by the accused person for

adjournment to arrange for a counsel, will amount to a breach of Section

36(6)(b) of the Constitution.131

However, where a request for adjournment is not based on reasonable

grounds, and if granting such will lead to protracted trial that may make the

judge lose his impression of the case, his impression of the witnesses and

the advantage of hearing and seeing the witnesses, such requests for

adjournment ought not to be granted.132

On the issue of being afforded adequate facility for the preparation of the

defence, it implies that an accused person should have access to materials

130 Section 36(6)(b) CFRN 1999, as amended in 2010 and 2011. 131 Ogbu, O.N, Human Rights, Law and Practice in Nigeria: An Introduction (Cidjap Press:

1999) p.162. See also Gopa v. IGP (1962) 1 NWLR , 430. 132 See Shempfe v. C.O.P (1962) NWLR 87. See also Ariori v. Elemo (1983) 1 SCNLR 1.

260

that are necessary for the preparation of his or her defence.133 The facilities

include access to documents and other evidence that the accused person

requires to prepare his or her case, as well as the opportunity to engage and

communicate with counsel.134 The Supreme Court has held that a person

accused of a capital offence has a right to have his defence conducted by a

legal practitioner assigned by the court, if he is unable to procure the

services of one.135

However, this has not been the case in Nigeria. There have been reported

instances of prosecution’s reluctance to share information with the defence

lawyers, and in some cases, allegations of the prosecution suppressing

information that are favourable to the accused person, also abound.136

Also, the fact that an accused person should be tried within a reasonable

time, does not mean that the accused person should not be given adequate

time to prepare his or her defence, nor does it preclude the carrying-out of

full investigation on his case. Thus, in Uganda in the year 2002, two soldiers

were executed after an emergency Field Court Martial, which reportedly

lasted for two hours and 36 minutes, and failed to allow for full investigation

of their case, pronounced death sentences on them.137 Hence, because of

the severity of the punishment to be inflicted on a capital offender, it is

important that this particular fair trial safeguard is observed at all times,

otherwise it will not attune with due process.

133 See Guideline N(3) of the African Commission’s Principles and Guidelines. 134 CCPR, General Comment No 13, para. 9. 135 See Josiah v. State (1985) 1 NWLR (Pt 1) 125. 136 Report of the National Co-Ordinator of Nigeria on the Application of Death Penalty.

Jude Ilo, presented at the first International Conference on the Application of the

Death Penalty in Commonwealth Africa in Entebbe, Uganda, from 10-11 May 2004. 137 See Amnesty International, Amnesty International Report (2003) 258.

261

4.3.4 RIGHT TO MANDATORY LEGAL ASSISTANCE.

The Constitution provides:

Every person who is charged with a criminal offence shall

be entitled to defend himself in person or by legal

practitioner of his own choice.138

The above provision implies that a capital offender be afforded the right to

engage a counsel of his choice while facing a capital trial. This right is very

important because it is a fundamental pillar of the administration of

justice.139

The right guarantees accused persons three rights, namely, to defend

themselves in person,140 to defend themselves through legal practitioners of

their choice,141 and, in certain circumstances, to be given free legal

assistance. Free legal assistance is, however, dependent on the interest of

justice, and the insufficiency of means to procure the services of a counsel.

The irony of the foregoing, therefore, is that capital trials have been

conducted in some African countries, including Nigeria, in instances where

138 Section 36(6)(c) CFRN 1999, (Op cit), as amended in 2010 and 2011. Thus, the

Supreme Court has declared unconstitutional section 28 of the Area Court Edict 1967,

which prohibits the appearance of a legal practitioner to represent an accused person

before that court. See R.v. Uzodinma (1982) 1 NCR 27. 139 Finkelstein, M., The Right to Counsel (Toronto: Butterworths, 1988) p.1. 140 In Atake v. Afejuku (1994) 9 NWLR (Pt 368) 379. The Supreme Court held that, by

virtue of section 256(2) of the 1979 Constitution, a retired judicial officer cannot

appear in or act as legal practitioner again in Nigeria, but can appear in person when

he is a party to the litigation. See also Fawehinmi v. The Legal Practitioners’

Disciplinary Committee.(1985) 2 NWLR (Pt.7) 300. 141 It has been held that such a legal practitioner must be one who is under no disability

of whatever nature under the existing law, rules and regulations of the Government.

See Awolowo v. Minister of Internal Affairs (1966) 1 ANLR, 178.

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the accused person had no legal representation, was refused legal

representation, or was provided with an incompetent defence counsel.142

In capital trials, the Constitutions of some African countries provide explicitly

that an accused person be provided with legal representation at State

expense, if he or she cannot afford one.143 In Nigeria, the Criminal Procedure

Act compels the State to assign a counsel to an accused person facing a

capital charge, if he cannot afford one.144 Thus, in the Supreme Court case

of Nwambe v. The State145, the Supreme Court held that assignment of a

counsel to an accused person who cannot afford one, pursuant to the

provisions of section 352 of the CPA, is not a breach of the right to be

represented by counsel of one’s choice, but that failure to assign counsel to

a person that is charged with capital offence is clearly a breach of the right

to fair hearing.

It is indubitable that capital trials are very expensive, and that most people

charged with capital offences cannot afford the fees of experienced counsel.

Consequently, they are assigned counsel, who are later found to be

inexperienced, and who are not versed in issues of capital trials. Hatchard

and Coldham, have, therefore, contended that without effective

representation, an accused person cannot be said to have had a fair trial.146

142 Chenwi, L., Towards the Abolition of the Death Penalty in Africa:A Human

RightsPerspective (Pulp,2007), p.180. This is a blatant violation of Article 7(1)(c) of

the African Charter. 143 For example, Article 20 (5) of the, Constitution of Ethiopia, 1995, Article 24(3)(d) of

the Constitution of Gambia, 2001, and Article 42(2)(f)(v) of the Constitution of

Malawi, 2001. 144 Section 352, Criminal Procedure Act (Op cit). 145 See also, the Nigerian case of Josiah v. State (Supra), where the court stated that a

capital offender is entitled to a legal practitioner assigned by the State if he cannot

afford to procure one by himself. 146 Hatchard, J & Coldham, S., “Commonwealth Africa”, in P. Hodgkinson & A.

Rutherford (eds.), Capital Punishment: Global Issues and Prospects (Op cit), p.164.

263

The most remarkable instance of ineffective legal representation in America

was in the case of Burdine v. Johnson.147 Burdine was convicted of capital

murder in Texas after a trial lasting three days. It was established that

Burdine’s defence counsel had slept during parts of thirteen hours that the

trial had taken place. Yet, the Federal Court of Appeal for the 5th Circuit held,

by a majority, that although counsel had slept, the appellant had failed to

prove that the lawyer had slept during the consequential parts of the trial.

The right of a capital offender to mandatory legal assistance entitles the

accused person to effective legal representation, as ineffective legal

representation has been construed as no representation at all.148

In the Nigerian case of Udofia v. State,149 the Supreme Court held that fair

hearing was denied when an accused person was represented improperly,

ineffectively and half-heartedly. Oputa, JSC said:

“Counsel who shoulders the very heavy burden of

defending an accused person, charged with murder,

the gravest of all charges, an accused person on trial

for his life, should devote himself completely to his

task, whatever he himself may think of the charge.

He should lay aside every other duty, so that he may

completely, and the better, watch the interest of the

accused. He should take infinite pains to be properly

and thoroughly prepared by acquainting himself fully

147 (2000) 231 F.3d 950 (5th Cir. Texas). 148 In Republic v. Mbushuu & Anor (1994) 2 LRC 335, 353, the court stated that most

poor persons in Tanzania do not obtain good legal representation, as lawyers on dock

briefs, who are paid very little, defend them. Hence, as a result of poor

remuneration, the defence counsel may not exert enough effort in such cases. 149 (1988) 3 NWLR (Pt 84) 533, A counsel attached to the Legal Aid Council was

assigned to defend the capital offender in the case. He was absent on most of the

adjournment dates. Another counsel assigned, was also present on very few

occasions and while present, he failed to cross examine the prosecutions’ witnesses

during the trial. At a stage in the matter, a youth corps member attempted to

appear for the accused person, but was disallowed by the court.

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with the facts and circumstances of his client’s

case.”150

It is submitted that the right to have one’s case or defence conducted

by a legal practitioner, inevitably imposes an obligation on that legal

practitioner, otherwise, that right becomes hollow, illusory and

meaningless.

It must also be noted that the right of an accused person to legal assistance

requires that the counsel representing the accused person should not be

intimidated during trial. Intimidation and harassment of counsel, to the

extent that they withdraw from a case, would amount to a violation of the

right to counsel. It is imperative, therefore, to underscore that if after such

withdrawal, the accused person is not given opportunity to procure the

services of another counsel, or another counsel be procured for him or her,

the accused person’s right to be represented by counsel of his or her choice

is violated.151

Other variants of the violation of a capital offender’s right to due process

include the denial of access to interpreter (where necessary). The

Constitution also provides that:

Every person who is charged with a criminal offence shall be

entitled to have without payment, the assistance of an

interpreter if he cannot understand the language used at the

trial of the offence.152

150 These sentiments are echoed and re-echoed in Rules 7 & 8 of the Rules of

Professional Conduct in the Legal Profession made pursuant to the Legal Practitioners’

Act of 1975. 151 See The Constitutional Rights Project (in respect of Lekwot and Others v.

Nigeria).Communication 87/93, 8th Annual Activity Report: 1994-1995; (2000) AHRLR

183(ACHPR 1995) para. 12. 152 Section 36(6)(e) CFRN 1999, as amended in 2010 and 2011.

265

It has, however, been held in Gwonto v. The State153 that it is the duty of

such an accused person to inform the court that he requires an

interpreter.154

4.4 POST TRIAL RIGHTS

Upon conviction, a capital offender is still entitled to certain rights and there

must be adherence to due process in such situations. Such rights include the

right to appeal to a higher judicial body, right to seek pardon or

commutation of sentences, and if the conviction is upheld, the right be

subjected to minimum suffering in the execution of the death sentence. It is,

however, a common knowledge that these rights are more observed in their

breaches than in their compliance, especially, in Nigeria.

4.4.1 RIGHT TO APPEAL TO A HIGHER JUDICIAL BODY

Article 14(5) of the ICCPR states:

Everyone convicted of a crime shall have the right to his

conviction and sentence being reviewed by a higher tribunal

according to law.155

153 (1983) 1 NCLR 142. 154 For the right to interpreter in capital trials, see the Supreme Court cases of Sunday

Udosen v. The State (2007) 4 NWLR (Pt.1023)125, and Nwachukwu v. State (2002) 2

NWLR (Pt.782) 543. 155 For an overview of the International Safeguards Pertaining to the Right to Appeal, see

Amnesty International, International Standards on the Death Penalty, January 2006,

AI Index:ACT 50/001/2006. The UN Safeguard No 6, as amended in 1989, also states:

Anyone sentenced to death shall have the right to appeal to a court of higher

jurisdiction, and steps should be taken to ensure that such appeals shall become

mandatory.

266

Consequently, the UNHRC has stated that the imposition of the death

sentence without the possibility of appeal is incompatible with the ICCPR.156

The right to appeal in capital cases is also enshrined in the African Charter

.157 Thus, the right to appeal or review to a higher court at the minimum,

implies the opportunity to have adequate reappraisal of every case, and an

informed decision on it.158Osipitan has also contended that the right to

appeal against the decisions of trial courts and tribunals is a cardinal

principle of the administration of criminal justice. He posited further that an

appeal aims at the production of just results, compelling lower courts and

tribunals to be judicial,reasonable and to apply the law uniformly.159 The

severity of the punishment of the death sentence, therefore, makes it

imperative for a condemned prisoner to be afforded a right of judicial review

of his conviction.

The mandatory provision for appeal is not universal. While in most countries,

it is mandatory for death sentences to be automatically reviewed by a court

of appeal on questions of law, procedure, fact and severity of penalty, in

other countries, it is not.160

In Nigeria, inasmuch as there are provisions that entitle a condemned

prisoner to apply for appellate review of his case, it is, however, not 156 See HRC, Uganda U.N Doc. CCPR/CO/80/UGA, 4 May 2004 para. 13. 157 Article 7(1)(a) ACHPR (Op cit). 158 See S. v. Ntuli (1996) 1 BCLR 141.

159 Osipitan, T., “Administration of Criminal Justice: Fair Trial, Presumption of Innocence

and the Special Military Tribunals”, J.A Omotola and A.A Adeogun (eds .), Law and

Development, Faculty of Law, University of Lagos, (1987), p319 160 For example, appellate review of the death penalty is automatic in the entire

retentionist American States, as well as under Federal Law. However, appellate review

of the death sentence is not automatic or mandatory in the retentionist countries, like

Barbados, Burundi, Jamaica, Guinea, Japan, Morocco and Nigeria, inter alia. See the

Official Records of the General Assembly, 55th Session. Supp. No 40. 1 (A)/55/40)

para. 110.

267

mandatory.161 In most jurisdictions in America, the appellate review is at the

expense of the State, whilst in Nigeria and some other countries, the capital

offenders bear the cost of their appeals. Also, the right to mandatory legal

representation does not extend to post conviction stage.

Instances of the violation of the due process also abound in the history of

Nigeria where citizens have been executed for offences committed when the

offences were not yet capitalized.162

The right of appeal to higher courts has been further denied in Nigeria in the

past, not only where the executions were carried out swiftly, but also, where

the law setting up the court/tribunal did not provide for such right. In July

1984, Dafaru Oluwole and seven others were sentenced to death by the

Robbery and Firearms Tribunal in Kwara State.163 Despite their protests and

claims of innocence, they were executed by firing squad the next day. This

was because the then Robbery Act did not provide for a right of appeal to

higher court.164

A corollary to the right of a condemned prisoner to exercise his appellate

right is the requirement that he should be afforded adequate time to process

his appeal, so as not to be executed hastily. In 1996, the Economic and

161 See Sections 272, 241(e) and 233(d) CFRN 1999 (Op cit), as amended in 2010 and

2011, for the constitutional guarantee of right of appeal which emanates from the High

Courts, through the Court of Appeal, to the Supreme Court in capital cases. 162 In July 1984, the Federal Military Government promulgated the Special Tribunal

(Miscellaneous Offences) Decree 20 of 1984, but backdated the commencement date

to December 31st 1983. The trio of Benard Ogedengbe, Lawal Ojuolape and Bartholomew

Owoh, who had committed drug trafficking offences before July 1984, were tried,

convicted and executed under the Decree. (The Decree was subsequently repealed in

1986). 163 Amnesty International, When the State Kills, (Op cit), 1989. 164 In response to public outcry, the Federal Government promulgated the Civil

Disturbances (Amendment) Decree of 1996, which introduced appeals for such trials.

268

Social Council called upon Member States in which the death penalty may be

carried out:

to allow adequate time for the completion of appeal to a

court of higher jurisdiction and for the completion of appeal

proceedings as well as petitions for clemency in order to

effectively apply rules 5 and 8 of the Safeguards

guaranteeing protection of the rights of those facing the

death penalty.165

Consequently, the U.N Special Rapporteur on Extrajudicial, Summary or

Arbitrary Executions has recommended:

that states establish in their internal legislation a period of at

least six months before a death sentence imposed by a court

of first instance can be carried out, so as to allow adequate

time for the preparation of appeals to a court of higher

jurisdiction and petitions for clemency.166

Despite the above provisions, a lot of condemned prisoners have been

executed in Nigeria without affording them the opportunity of preparing an

appeal.167 It is submitted that execution of condemned prisoners without

having been given adequate time to appeal, or while they were still trying to

appeal, constitutes a violation of the post-trial due process right.

165 Economic and Social Council Resolution 1996/15, 3. 166 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions:

E/CN.4/1996/4. 25 January 1996. para. 556. 167 See Constitutional Rights Project (in respect of Akanmu and Others v. Nigeria).

Communication 60/91, 8th Annual Activity Report: 1994-1995 (2000) AHRLR 180

(ACHPR 1995) para. 13. See also Constitutional Rights Project (in respect of Lekwot

and Others v. Nigeria) Communication 137/94, 139/94, 154/96 and 161/97, 12th

Annual Activity Report: 1998-1999 (2002) AHRLR 1998 para. 93.

269

Furthermore, there is a stipulation that the death sentence cannot be carried

out while a condemned prisoner’s appeal is pending.168 Yet, in Nigeria, in the

case of Aliu Bello & 13 Ors v. A.G Oyo State,169 where the major contention

was the legality of the execution of the death sentence on Nosiru Bello, Aliu

Bello’s brother, for armed robbery by the Oyo State Government while his

appeal against conviction was pending. The appellants, being the junior

brother and other relations of the deceased, instituted the action for a claim

for damages for unlawful execution. The Supreme Court held that the

execution of the deceased was wrongful and illegal, and restored the

damages awarded by the trial court. In the same vein, the United Nations

Human Rights Committee had made it clear in various cases that the

execution of a prisoner when the sentence was still under chal lenge in the

courts of a State Party to the ICCPR constitutes a violation of Articles 6(1)

and 6(2) of the Covenant.170

Another procedural abuse in post-trial process of a capital offender is in the

time taken for appeals to be decided. As noted by the Amnesty

International:

…too short a time will not allow for an adequate appeal

process or for further evidence of the possible innocence of

the person to emerge. However, prolonged period on death

row… leave the individual facing the constant strain of living

with the fear of execution almost always in harsh prison

conditions.171

168 Safeguard 8 of the Safeguards Guaanteeing Protection of the Rights of Those Facing

the Death Penalty adopted by the U.N Economic and Social Council in 1984. 169 (1986) 5 NWLR (Pt.45) 826 at 860. 170 See, for example, Ashby v. Trinidad and Tobago, views of the HRC, Communication No

580/1994, UN Doc CCPR/C/74/D/580/1994, para. 10.8. 171 Amnesty International, Will this day be my Last?:The Death Penalty in Japan (July

2006) AI Index: ASA 22/006/2006, p.8. See also Johnson, R., Condemned to Die: Life

270

In Jamaica, the UNHRC found an appeal that lasted for seven years in Pratt

v. Jamaica172 to be a violation of due process, and also a cruel and unusual

punishment. Also, in Japan, 11 prisoners were executed in year 2000, and

their appeals took between 10 to 16 years. In the United States, the system

of State and Federal appeals almost inevitably allows many years to pass,

often spent on the death row before execution.173

This procedural abuse is also prevalent in Nigeria, as it takes an average

period of 10 years for an appeal of a condemned prisoner to be heard from

the court of first instance to the Supreme Court. It has been reported that

the 500 prisoners on death row in 2004 had been there for average of 10

and 15 years. Also, from a study conducted by this researcher in july 2010,

it was discovered that at least nineteen inmates have been on the death row

for up to ten years and above.174

Similarly, the Civil Liberty Organization of Nigeria has reported discovering

inmates on the death row in Nigeria, who have gone insane from the

intolerable pressures of awaiting execution for as long as 20 years.175

Under Sentence of Death. (New York, Elsevier Publishing Co. 1981), p.21. Johnson

narrated that in a study he conducted in the United States, it was found that prisoners

under sentence of death often experienced severe depression, apathy, loss of sense of

reality and both physical and mental deterioration. 172 UN Doc. A/44/40 (1989), See also Antoine, R.M.B., “The Judicial Committee of the

Privy Council- An Inadequate Remedy for Death Row Prisoners” in International and

Comparative Law Quarterly 41(1992) pp 179-190 at 180. Also, Schabas,

W.A.,”Execution Delayed, Execution Denied”, in Criminal Law Forum 5. (1994), pp.

180-193 at 181-182. 173 Hood, R and Hoyle, C., The Death Penalty (Op cit), p.255. 174 See the Report of the National Study Group on Death Penalty, submitted in Dec.

2004.The researcher gathered data from the Statistics Department of the Nigerian

Prisons Service Headquartes in July 2010, which contain the list of nineteen

condemned prisoners who have spent above ten years on the death row in Nigeria .

See Table 4.0 in Chapter 5 of this work. 175 Report on Human Conditions and Human Rights Abuses at Kirikiri Maximum Security

Prison, (March 1990) p.30.

271

The U.N Special Rapporteur, Philip Alston, was also told in 2006 that the

average time spent on the death row was 20 years, out of which nothing

less than 10 years were spent on the prosecution of appeal, with at least one

prisoner having been on the death row since 1981, which amounted toa

period of 25 years on the death row for the prisoner.176 In the Nigerian case

of Bodunrin Baruwa v. The State177, the Court of Appeal acquitted Bodunrin

Baruwa in 1996 after he had spent 16 years in prison for a murder he did

not commit. Substantial part of the 16 years was spent on the prosecution of

the appeal. The appellant challenged his conviction by a Lagos High Court for

murder, and the death sentence passed on him. The Court of Appeal

lamented that he would leave custody amazed at the way the law had been

used to work extreme injustice and hardship on him and his family.

The foregoing aptly exemplifies the abuse of the due process requirements

for a condemned prisoner who decides to exercise his appellate rights.

It is suggested that there should be a mandatory time limit within which the

lower courts should forward record of proceedings in capital cases to the

appellate courts. This will go a long way in eliminating the factors that make

the criminal process to be agonizingly slow. Our appellate courts should

realize that capital cases ought to be treated with celerity, and that a

condemned person has the right to be put out of his misery as quickly as

possible. We should be guided by the admonition of Lord Griffith in Pratt and

Morgan’s case thus:

176 UN DOC.E/CN 4/2006/53/Add.4, 7 January 2006, para. 30. 177 (1996) 7 NWLR (Pt 460) 302 CA. Edmund Okoro’s appeal also lasted between 1985 to

2001- a period of 16 years- by which time the Court of Appeal ruled that he was

innocent. See Okoro and 66 Others v. Comptroller General of Prisons Service

(Unreported). FHC/E/M51/98.

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… a state that wishes to retain capital punishment must accept

the responsibility of ensuring that the execution follows as

swiftly as practicable after sentence, allowing a reasonable

time for appeal and consideration of reprieve.178

4.4.2 RIGHT TO SEEK PARDON OR COMMUTATION

Pardon179 or commutation is the last hope of a prisoner under a sentence of

death. It usually comes after a prisoner has exhausted all his appellate

rights. In most States, it is exercised by the Chief Executive of the country in

which the death sentence is imposed; while in others, some bodies could be

empowered to exercise pardon or commutation.

The President or other body in charge acts, on his behalf, or on its own

initiative, or on the presentation of a petition by the convicted person to be

considered for pardon or clemency, to grant clemency. Through the exercise

of clemency, a death sentence can be set aside, which usually takes the

form of a decision to commute the sentence to a lesser punishment.180

Pardon or commutation is important in that it can be used to mitigate the

harshness of punishment, correct possible errors in the trials or to

compensate for the rigidity of the criminal law by giving consideration to

factors relevant to an individual case for which the law makes no allowance.

The right to seek pardon or commutation is guaranteed under Article 6(4) of

the ICCPR and UN Safeguard No 7. The two provisions both stipulate in

almost identical wordings, that:

178 (Supra) at p.786 179 Otherwise called clemency. 180 See Chenwi, L., Towards the Abolition of Death Penalty in Africa (Op cit), p.185.

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Anyone sentenced to death shall have the right to seek

pardon or commutation of sentence. Hence, amnesty, pardon

or commutation of the sentence of death may be granted in

all cases of capital punishment.181

Consequently, the UNHRC has stated that the imposition of the death

sentence, without the possibility to seek pardon or commutation of the

sentence, is incompatible with the ICCPR.182 It can thus be inferred from the

foregoing that a full and proper use of the clemency process is essential to

guaranteeing fairness in the administration of the death penalty.

The right is also provided for in national constitutions and laws of African

States. For example, in Tanzania, a person sentenced to death can appeal to

the President to commute the sentence.183 The President relies on the

judgment and notes of evidence taken during the trial to arrive at a decision.

Also, the President of Uganda has the power, on the advice of the Federal

Advisory Committee on the Prerogative of Mercy, to grant any person

convicted of an offence a pardon either absolutely or subject to lawful

conditions.184

The extent to which this right is observed in Nigeria is not pronounced. As

soon as a court pronounces a sentence of death on a convict, the court shall

transmit to the Minister or Commissioner designated to advise the President

181 Note that Amnesty is not mentioned in Safeguard No 7. 182 Concluding observations of the HRC: Uganda, UN. Doc. CCPR/CO/80/UGA,

4 May 2004, para. 13. 183 See Section 325(3) of the Tanzanian Criminal Procedure Act of 1985. 184 Article 121(1) of the Constitution of Uganda 1995. Article 121(5) requires that after a

person has been sentenced to death, the trial judge or person presiding over the court

or tribunal submits a written report of the case, and other relevant information, to the

Advisory Committee on the Prerogative of Mercy.

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or Governor on the exercise of prerogative of mercy the following

documents:

(i) A certified copy of the record of proceedings at the trial;

(ii) A copy of a certificate to the effect that sentence of death has

been pronounced upon the person named in the certificate; and

(iii) A report in writing signed by him containing recommendation

and observation (with respect to the convicted person and his

trial) that he thinks fit to make.185

Also, where a person has been sentenced to death and he;

(i) Has not appealed within the time prescribed by law or;

(ii) Has unsuccessfully appealed against the conviction or;

(iii) Having filed a notice of appeal and has failed to prosecute such

appeal, the Minister or Commissioner, as the case may be, shall

consider the report made by the trial court in respect of the

convicted person.

The Minister or the Commissioner, usually the Attorney-General, shall refer

the report to the body that is responsible for exercising the prerogative of

mercy. The Attorney-General may then recommend, on the basis of the

recommendation contained in the Committee’s Report, to the President or

the Governor that:

(i) The convicted person be pardoned

(ii) The sentence be commuted to life imprisonment or

(iii) The sentence is commuted to any specific period.

185 Sections 371 CPA & 294(1) CPC (Op cit).

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Otherwise, the Attorney-General may recommend that the sentence be

carried out.186

The Federal Advisory Council on the Prerogative of Mercy is the Council of

State,187 and the States of the Federation are empowered by the

Constitution to establish an Advisory Council on the Prerogative of Mercy.188

Thus in Okeke v. State,189 the Supreme Court, in refusing an application for

mercy, held:

(i) That the recommendation of mercy for convicted persons are

matters within the province of the committee on the prerogative

of mercy; and

(ii) That it is to that body that a convicted person, if he so desires,

may direct his application for consideration.

It is instructive, however, that a sentence of death shall not be executed

unless and until the President or Governor, as the case may be, has

confirmed it.190

The power to grant pardon or commutation is discretionary, as the Chief

Executive-Officer, that is, the President or Governor, is not bound to follow

the recommendation of the Advisory Committee or the trial judge. Hence,

the extent to which this discretion is exercised is questionable, as the

clemency process varies from country to country. While some apply a

generous standard, others apply a less liberal standard.

186 Sections 371 (e) & (f) CPA & 295 CPC (Op cit). 187 Section 175 (2) CFRN 1999 (Op cit), as amended in 2010 and 2011. 188 Section 212(2) CFRN 1999 ibid. 189 (2003) 15 NWLR (Pt 842) 25. 190 Osamor, B., Fundamentals of Criminal Procedure Law in Nigeria (Op cit), pp. 387-388.

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Moreover, in Africa, there is a dearth of information on the extent to which

the power of the prerogative of mercy is exercised, since in most African

States, the process is shrouded in secrecy. This is a matter of discomfiture,

and allows for arbitrariness in the exercise of clemency and disparity in the

granting of pardon or clemency.191

Against the backdrop of the secrecy and lack of uniformity in the

considerations for pardon by States, the Amnesty International has noted

that:

It is an illusion to suppose that the inherent arbitrariness and

fallibility of human justice can somehow be made right by a

process which itself is arbitrary.192

It has also been suggested by Chenwi193 that, since pardons are not only an

executive issue, they can also be granted by way of renouncing retribution

or pardon from the victim or the victim’s families in countries that apply

Islamic law, as renunciation of the right to retribution in return for payment

of blood money is equivalent to commutation of the death penalty.194

4.4.3 RIGHT TO BE SUBJECTED TO MINIMUM SUFFERING IN THE

EXECUTION OF THE DEATH SENTENCE.

In 1984, there was sufficient international consensus for the U.N Economic

and Social Council to adopt a Safeguard for the Protection of the Rights of

191 The Inter-American Commission on Human Rights has found a violation of the right to

life in a case where the applicant was not given an effective and adequate

opportunity to participate in the mercy process. See Aitken v. Jamaica. Case 12. 275

Report No 58/02, 21 October 2002. 192 Amnesty International, When the State Kills.....The Death Penalty v. Human Rights

(1989) p.34. 193 Chenwi, L., Towards the Abolition of the Death Penalty in Africa. (Op cit) p.187. 194 See the 3rd Periodic Report of Libya, para. 129, and Section 38(1) of the Penal Code of

Sudan respectively.

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Those Facing the Death Penalty in countries that are yet to abolish capital

punishment.195 The safeguard declared:

…where capital punishment occurs, it shall be carried out so

as to inflict the minimum possible suffering.196

Consequently, Member States in which the death penalty may still be carried

out were urged to effectively apply the Standard Minimum Rules for the

Treatment of Prisoners, in order to keep to a minimum the suffering of

prisoners under sentence of death, and to avoid any exacerbation of such

suffering.197

However, contrary to the aforementioned stipulations, the due process rights

of the condemned prisoner facing execution of death, have been flouted with

impunity. Species of due process abuse include the aspect of the death row,

condition of the cells of condemned prisoners, the agonizing methods of

execution, and instances of publicity of executions in certain jurisdictions.

The unique horror of the death penalty is that, from the moment the

sentence of death is pronounced, the prisoner is forced to contemplate the

prospect of being taken away to be put to death at an appointed time.198

Prolonged confinement on the death row subjects prisoners to treatment

that does not respect their human dignity, thus amounting to cruel, inhuman

195 Safeguard No.9. 196 In 1996, the Economic and Social Council made it explicit that this also applied to

those under sentence of death awaiting their fate. 197 The Commission on Human Rights later strengthened this prescription when, in

Resolution 2004/67, it urged Member States to ensure that, where capital punishment

occurs, it shall not be carried out in public or in any other degrading manner. 198 Amnesty International, When the State Kills (Op cit), (1989), 61.

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and degrading treatment.199 Schmidt had also likened the death row

phenomenon to a situation of treating individuals sentenced to death and

awaiting executions for many years under particularly harsh conditions of

detention.200

The death penalty, when preceded by long confinement and administered

bureaucratically, therefore, dehumanizes both the agents and recipients of

this punishment, and amounts to a form of torture. Furthermore, the

conditions in which condemned prisoners are kept, exacerbate the inherently

cruel, inhuman and degrading experience of being under the sentence of

death awaiting execution.

The prisoner is, therefore, ensnared in a dehumanizing environment from

the moment he enters the cell, and this invariably leads to physical and

mental deterioration. The conditions are inhumane, as the prisoner is not

treated with humanity and with respect for his dignity.

On the mode of execution constituting a violation of due process right that is

enshrined in Safeguard 9 above, it has been vehemently argued earlier in

this work that there is no method that is entirely painless, as cases of

botched executions abound in the more favoured modern methods of

execution.201

The incidence of publicity of execution has also been widely decried as a

violation of the due process right for being incompatible with human

199 Hudson, P.,” Does the Death Row Phenomenon Violate a Prisoner’s Human Rights

Under International Law?” (2000) 11 European Journal of International Law, 817. 200 Schmidt, M., “The Death Row Phenomenon: A Comparative Analysis” in T. Orlin et al

(eds)(The Jurisprudence of Human Rights Law: A Comparative Interpretative Approach

(Turku: Institute of Human Rights, Abo Akademi University,2000), pp 47-48. 201 That is; electrocution, lethal injection and cyanide gas.

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dignity.202 Yet, executions have taken place in the public in recent times in

countries, including Nigeria.203 There is no doubt that all these foregoing

instances constitute the abuse of due process right of a condemned prisoner

at the post-trial stage.

4.5 CONCLUSION

In this chapter, the writer has endeavoured to analyse the plethora of abuse

of the due process rights of a condemned prisoner, right from the pre-trial,

through the trial, to the post trial stages.

Sequel to the foregoing, it is suggested that, in view of the avalanche of

violations of a condemned prisoner’s rights, the Nigerian Government should

take steps towards complying with the various domestic and international

instruments that guarantee the observance of due process as applicable to

persons facing the sentence of death and the execution of the death penalty.

202 UN.Doc. No CCPR/C/79/Add.65. 24th July 1996, para.16 referring to public executions

in Nigeria. 203 Amnesty International reported at least eighty-six public executions in Nigeria over the

first eight months of 1995. It was reported that on the 8th of September of that year,

eighteen persons were executed in a sports stadium in Warri, Nigeria for armed

robbery offences. See Nigeria: 32 Prisoners Convicted of Armed Robbery. AI Index:

AFR 44/17/95.