Enhancing Transparency and Accountability in the Judicial Sector

ENHANCING TRANSPARENCY AND ACCOUNTABILITY IN THE JUDICIAL SECTOR

METHODOLOGY WORKSHOP

Date 5th September 2017, Venue: Best Western Plus Ikeja Lagos Hotel, Ikeja, Lagos Nigeria

Background

The Rule of Law and Empowerment Initiative also known as Partners West Africa Nigeria (PWAN) organized a one day methodology workshop in furtherance of the “Enhancing Transparency and Accountability in the judicial sector.

The project will observe the level of compliance of the Administration of Criminal Justice Act (ACJ ACT) 2015 and the Administration of Criminal Justice Law, 2011 and 2015 in courts across the FCT, Lagos and Ondo State. It will also enhance integrity in the Nigerian judicial sector through court observation and will promote the implementation of the ACJ Act/Law in the FCT, Ondo and Lagos.

The methodology workshop was organized to review the suggested sections of the Administration of Criminal Justice Act/Law, 2011 and 2015, the approach of the court observation, case monitoring and court user survey questionnaire forms currently being used in the FCT and make necessary adjustments to adapt content of the ACJ/Law and suit the context of Lagos and Ondo states. The participants also reviewed the strategy and criteria for recruiting observers and supervisors for the project.

INTRODUCTORY SESSION

The workshop commence with an opening remark from the Program Manager PWA-Nigeria, Barbara s. Maigari. She began by briefly talking about the Social Accountability in the judicial sector project and that this project is an improvement on the Social Accountability project through the observation of Specific sections and requirements of the Administration of Criminal Justice Law at the state level and Act at the Federal level for a period of 3years. Her remarks were alsofollowed by a brief introduction of the organization mission statement and program areas by the Executive Director Kemi Okenyodo. She further went on to talk about the Rule of Law program area which basically looks at mainstreaming accountability and good governance within the criminal justice system in Nigeria.

SESSION 1

Review of the proposed sections of the ACJ Act/Law2011 and 2015

This session was anchored by Barrister Esther Uzoma, a human rights activist and the National Coordinator of Proactive Gender Initiative (PGI). The review was to enable all participants to take a second look at the section so that it will enhance or impede criminal administration of adjudication.

Remittance of quarterly report by IGP/CP to Attorney General

(Section 29 (1) ACJ Act, Section 23 OF ACJL 2015)

The ACJ Act requires that “the Inspector General of police and the head of every agency authorized by law to make arrest shall remit quarterly report to the Attorney General of the Federation a record of all arrests made with or without warrant in relation to federal offences within Nigeria.

ACJL 2015 requires that the Commissioner of Police in State and head of every agency authorized by law to make arrest within a state shall remit quarterly report to the Attorney General of that state a record of all arrests made with or without warrant in relation to states offences within the state.

There are ambiguities as to whichagencies are authorized to make an arrest? A number of agencies were listed including state policing agencies such, Karauta in Kano, Oduduwa Peoples’ Congress Boys – Lagos, federal level agencies like Economic and Financial Crime Commission (EFCC), Institute of Corrupt Practices commission(ICPC), Nigerian Immigration Service (NIS), the Lagos state Traffic Management Agency (LATSMA) , the National Agency for Food and Drug Administration and Control (NAFDAC), Standard Organization of Nigeria (SON), Etc. It was suggested that observers should

• Interview all the Security agencies that are authorized by law to make arrest
• Observe if all this agencies authorized by law are remitting quarterly reports of all arrest made by them to the Attorney general of the federation.

Reporting of arrest by Police to Magistrate

(Section 33 ACJA, Sec 28 ACJL 2015)

This section of the ACJ Act says that An officer in charge of a police station or an official in charge of an agency authorized to make arrest shall on the last day of every month report to the nearest magistrate the cases of all suspects arrested without warrant within the limits of their respective stations or agency whether the suspects have been admitted to bail or not. This section and section 29 of the Act are kind of related because it talks about reporting criminal arrest being made. The FCT has only one Magistrate jurisdiction to try criminal cases, therefore there’s a limit to the number of criminal cases tried. Therefore because of this problem the participant were concerned as to how the observers will observe the compliance of the police making this report. But, the CJ has set up a team of four 4) Magistrates to attend to the problem of one magistrate court criminal jurisdiction.

For ACJL 2015 the requirement is for the officer in charge of a police station or any authorized agency to make arrest shall on last working day of every month report of arrest to the nearest Magistrate. on this section observers should

• Observe if at all the magistrates carry out these inspections to the police station often
• Observe the administrative workability of this section if at all the magistrate adheres to this.

Execution of warrant and procedures including public holidays and sundays

(Section 43 (1))

Section 43 (1)of the ACJA says that a warrant of arrest may be executed on any day, including a Sunday or public holiday.

(2) A warrant of arrest may be executed by any police officer at any time and in any state other than within the actual court room in which a court is sitting.

(3) Informing a suspect of his warrant of arrest.

Sub (4): A suspect arrested on a warrant of arrest shall, subject to the provisions of the constitution of the federal republic of Nigeria, sections 44 and 45 of this Act be brought before the court that issued the warrant of arrest. In connection to section 29 the question still remains onwho has the power to make arrest; is it the police or other state security agencies?

To clarify this, a definition of who a police officer is was pointed out and it says; “A police officer includes any member of the Nigerian police force established by the police act or where the context so agrees shall any officer or any law enforcement agencies established by the Act. Therefore all security agencies have authority to make an arrest. The executive Director PWA-Nigeria further pointed out that this is an issue that is not being brought to the forefront of the public space as to who has the authentic power or authority to make arrest, so a factsheet should clarify that the Law says that all Security agencies established under the police act has authority to make arrest with or without warrant in case it is not being seen and would help in the implementation of policies. On the Basis of this,

• The observers should see the warrant of arrest
• Observers should be designated to Police stations and magistrate courts
• Observers should ask lawyers how often they make use of section 43, 44 and 45 of the ACJ Act.
• The Observers should enlighten and educate the Magistrate on these sections mostly section 45.

Expenses of witness for the prosecution broadly

(Section 251-252 ACJA 2015, SECTION 228-230 ACJL 2015)

Where a person attends court as a state witness, the witness shall be entitled to payment of such reasonable expenses as may be prescribed

Where a person attends court as a witness to give evidence for the defense, the court may in its discretion on application, order payment by the Registrar to such witness of the court such sum of money, as it may deem reasonable and sufficient to compensate the witness for the expenses he reasonably incurred in attending the court. This session talks about the expense for the witness whether the witness is either for the defense or prosecution, the tragedy in this section is, the state does not pay money. On the other hand looking at 486,487,488 and 490 of the ACJA it states that prescribed fees are paid in any proceedings before the court, it was said that the Chief Judge set up a committee to come up with a schedule of fee for witness, but as it is now there’s no schedule of fees pursuant to the ACJA. The state also cannot be penalized for any infringement of the Act relating to payment of witness fees.

Ondo 2015

Where a person attends court as a witness to give evidence for the prosecution or as an expert witness to the court in any criminal proceeding, the court shall order payment by the Registrar of his cost and expenses together with compensation for his loss of time which he incurred in attending the court.

230: The amount of the expenses and compensation payable to any witness attending before the court shall be ascertained by the registrar, certified under his hand and shall be paid to the witness out of the relevant vote as appropriate to the Chief Judge. The Observer on this section will therefore;

• Observers should demand through the registry record to know how much is being paid to witnesses and if this fees are actually being paid
• Observe number of witnesses.
• Observe schedule of fee based on states
• Observe how often the witnesses are reimbursed
• Observe if witnesses are aware of being entitled to a fee for being a witness
• Observe witness expense

Time of summoning parties upon information

(Section 390)

The Sheriff or other proper officer shall on receipt of the information and notice of trial, serve the person named in the notice at least seven working days before the date specified on the notice.

• Observer should interrogate the defendant to know when he was serve, if he/she was serve within the seven days’ notice period as specified in the ACJA, So as to know the number of cases or number of defendants who were served notice of trial at the right time.

Time for Raising certain Objections, day-to-day trial and adjournments.

Section 396 (3-5)

(3) Upon arraignment the trial of the defendant shall proceed from day-to-day until the conclusion of the trial

(4) Where day-to-day trial is impracticable after arraignment, no party shall be entitled to more than five adjournments from arraignment to final judgement: provided always that the interval between each adjournment shall not exceed fourteen working days

5) States that after both parties have exhausted their 5 adjournments, any further adjournment will take place within seven days inclusive of weekends.

6)States that the court can award a reasonable fine to parties who are obstructing the speedy delivery of justice with frivolous adjournments.

There’s a lot of latitude to this sections. First of all trial of defendant on a day to day, entitled to more than five adjournments is not practicable. Therefore Observers should observer how many days the matter was called due to the absence of the prosecution, if they have exhausted all their options under section 396 (3) (4) (5) accused should be granted bail if he or she is in custody.

Form of notice of trial

(Section 255)

The Registrar or his deputy or any other person directed by the court, shall endorse on, or annex to, every information and every copy delivered to the sheriff or proper officer, for service, a notice of trial, such notice shall specify the particular sessions at which the party is to be tried on the information and shall be in the following form, or as near to that as may be:

This section also talks about the notice of trial because ACJA is built on Lagos law, so therefore observers should observe how often the notice is being given

Particulars of Instituting Criminal Proceedings in Magistrates’ court

(Section 78 (1) ACJL 2011)

Says that proceedings in the Magistrate court maybe instituted by bringing a person arrested with or without a warrant before the court upon a charge of contained in the charge sheet, specifying the name and the occupation of the person charged, the charge against him, date, place where the offence is alleged to have been committed. Also the charge sheet shall be signed by a law officer or a police officer in charge of the case.

• Observer should observe all the details that are in the FIR concerning this law
• Observe who is signing the charge sheet

Presence of defendant at trial

(Section 208: subject to 217ACJL 2011)

Every defendant shall subject to section 217, be present in court during the whole of his trial unless he misconduct himself by so interrupting the proceedings or otherwise as to render his presence impracticable.

This section says that every defendant shall be present in court during trial unless he misconducts himself, therefore what is defined as misconduct? There’s no objective definition of misconduct in this context. It will be interesting to know what magistrate will consider a misconduct in court that will warrant a defendant to be absent in court.

Observer should observe what the magistrate considers misconduct in court.

Counsel for the Prosecution and for Defendant

(Section 209 ACJL2011)

(1) The prosecution and the defendant shall be entitled to conduct their respective cases in person or by legal practitioners, (2) where the defendant is in custody or remand he shall be allowed access to legal practitioner at all reasonable times.

Observer should observe if the rights of the defendant to have access to his/her legal practitioner or counsel at all reasonable time is adhered to because it will enhance the administration of criminal justice if the legal and quality of access granted to the defendant are being observed by the security agencies or the court.

Non-Appearance of Prosecutor.

(Section 232 ACJL 2011)

If when the case is called and the defendant appears voluntarily in obedience to the summons or is brought before the court under a warrant and the prosecutor on the satisfaction of the court had due notice of the time and place of hearing does not appear in person or in the manner authorized by any written law, the court shall dismiss the case unless the court having received a reasonable excuse for the nonappearance of the persecutor or his representative or for other sufficient reason deemed fit to adjourned the hearing of the cases to some future date upon such term as the court shall deem just.

• Observer should observe how many times the prosecutor was absent and how many times the application was made and who is causing the delay
• Observe how many times the defense prayed that the matter be dismiss pursuant to the absence of the prosecutor.

Non-Appearance of defendant’s Counsel and Non-Appearance of Defendant

(Section 233, 235 ACJL 2011)

Where the legal representative of the defendant seizes to appear in court the court shall after a reasonable period of nonappearance enquire from the defendant if he wishes to engage another counsel arraigned by him or a counsel engaged by way of lead way

When a case is called in which summons has been issued and the defendant does not appear and no sufficient excuse is offered for his absence, then the court, if satisfied that the summons has been duly served, shall issue a warrant, called a bench warrant, for his arrest or if not satisfied that the summons has been duly served, the court shall adjourn the hearing of the case to some future date, in order that proper service shall be effected or until the defendant be arrested as the case may be.

• Observer should observe the number of adjournments
• And how long the defense counsel was absent in court
• Observe the reasons the defendant is absence especially people who are in custody

Date and place of hearing

(Section 231 ACJL 2011)

On the date and at the place mentioned in the summons or is brought before the court under a warrant, as the case may be, the case in which the summons or warrant was issued shall be mentioned for hearing in the court. The observer shall

• Observe why the defendants didn’t appear in court, mostly for defendants who are in custody

Prisoner shall be tried at once

(Section 256ACJL 2011)

Nothing shall prevent any person in custody or tried as awaiting trial at the opening of or during any session from being tried if he had been served with the copy of information and notice of trial not less than three days before the date upon which he is to be tried. Observer should observe that the notice of trial is served within the said date.

Arraignment, Time for Raising Certain Objections

(260: (1), (2) ACJL 2011)

The person to be tried upon information shall be arraigned in accordance with the provisions of sections 211 and 216 of this law

2) An objection to the sufficiency of evidence closely in view of evidence to the information shall not be raised before the close of the prosecution’s case, no more stay of proceedings, bring preliminary of objection in your address.

• Observers should therefore observe how often objections are raised about this section particularly if it’spolitically based

• Look at the difference between corruption cases and political cases

Remand Within Reasonable time