(PART TWO) WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE FROM ARRESTS AND UNLAWFUL DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART TWO

UNDERSTANDING THE BASIC STRUCTURE OF THE POWER OF THE STATE TO ARREST, DETAIN AND TRIAL A PERSON:

You must first understand the structure of the power of the state to arrest, detain and trial a person accused of committing a crime and possibly imprison him upon conviction.

The best way to understand that power system is to know that the government, which is the principal machinery for expression of the sovereign state, is divided into three arms: (a) the legislature, (b) the executive and (c) the judiciary. This is basic information we learned in elementary school, but it has a practical application in the way these critical functions of the state are performed in real terms.

Even though the legislature made the laws upon which you are being arrested, it is actually the Executive and the Judiciary that play a direct role in your arrest, detention and trial and punishment upon conviction. These two arms of government, through their respective agencies, manage and superintend the system of administration of justice, otherwise known as the criminal justice system of a country.

The challenge is whether a criminal justice system is governed by rule of law or by personal discretions of those who administer the system. The answer is that both discretions and rules apply. However, the ideal is to have less of discretions and more of rules. In more advanced countries, there is a higher level of rule of law and less of discretions. Rule of law is more conducive with justice than the executive discretions. Due process is better observed when there is rule of law than when there is discretion.

There is more discretion with decisions made by the Executive than with decisions made by the courts, even though you would often hear the term judicial discretion.

The constitution, together with the rules and the laws, has actually assigned different responsibilities to the Executive and the Judiciary in the administration of justice. The problem is that most of the time in Nigeria, the Executive does not understand the limit to its role or simply does not want to be limited to the role assigned to it by the constitution. We see these problems when the police and the EFCC, whose work is to arrest and arraign a suspect before the judge for a bail hearing, decide to detain the suspect under the pretext of continuing investigation, while trying to grant him administrative instead of a bail by the court. In some glaring cases, the EFCC and the police try to negotiate a settlement between the suspect and the complainants, rather than allow the court to hear the case on the merit. In such situation, the EFCC or the police are assuming the functions of the court.

Apart from the substantive roles assigned to each organ, the Constitution also prescribed or implied certain time frame within which the Executive should perform its role and hand over to the judiciary. In other words, the Constitution and the laws set out the manner in which various events in the administration of justice are to be sequenced and relative to themselves. We see the sequencing problem when, for instance, the police or EFCC would arrest a person before any investigation is done. The law actually requires investigation to be done before arrest is to occur in most cases. But the Nigerian police and the EFCC alter this order of events set by the law and move backward rather than forward.

Just for clarity sake, you must bear in mind that the Executive and the Judiciary depend on each other in the administration of justice. It is a system of interdependency that continues throughout the operation of the system. To illustrate this: even where the suspect has been charged to court and has been admitted to bail by the court, the court could still rely on the Executive to perform its tasks. For instance, if a person admitted to bail fails to show up for trial on the date set for trial, the court would issue a bench warrant for his arrest, which would direct the Executive (the police) to arrest the suspect and bring him to court. If the suspect is arrested, it is largely up to the discretion of the police as to where to detain him and when to take him to court. Also, even after the court has found the suspect guilty, the court would depend on the Executive (the prison authority) to punish the suspect (now the convicted person). So, bear in the back of your mind that the entire system of criminal justice requires the mutual interdependency of the Executive and the Judiciary.

The genius of justice and due process is to make sure that each arm of government is restricted to its roles and that such roles are performed in the sequence and timeframe prescribed or implied by the constitution and the laws of the land. Remember that since there is greater use of discretion in the Executive branch, a person who has been wrongly accused or who has been abusively arrested by the Executive would want his case to go the Judiciary where it would be treated in accordance with rules, and less discretion. The opposite is the case if the accused is really a bad person who has a lot of money and connection. Such a person would want his case to linger at the Executive level where there is a lot of discretion and he could easily buy the decisions of the officials in the Executive arm of government. But for the purpose of this piece, let us assume that everybody arrested wants to observe his due process rights and speedy access to the courts.

POINT OF ENTRY INTO THE JUSTICE SYSTEM: A person’s first encounter with the criminal justice system is usually when the police or the EFCC arrests him or whatever agency in the Executive is doing the arresting. But sometimes, a person may encounter the system before he gets arrested or without being arrested eventually. For instance, when the police or the EFCC invites you for an interview at their offices. You are not yet a suspect, but rather a person of interest to law enforcement.

There are other people who encounter the system without being suspects. Such people are witnesses to a criminal case and people who stood sureties for suspects on bail. These people are not suspects, but they are closely involved in a criminal case that their roles could change the outcome for the suspect. We shall leave them out of this discussion. But do not forget them, as they are very important in the process. So, let us go to that point where you encounter the criminal justice system.

YOU OR YOUR RELATIVES ARE ABOUT TO BE ARRESTED: It doesn’t really make a difference how it happened exactly. But once you are not allowed to leave the police presence and carry on with your business, you are under arrest. There are various details in the rules as to what constitutes arrest, and there is a difference between lawful arrest and unlawful arrest. But we shall leave most of those details at this pint. Let us also exclude the brief period of detention by the roadside when the policemen pull you over. A lot of the time, you are invited to the EFCC or police station because they told you they need information from you about somebody else or about an event. However, at the end of your visit to the station, you may be told that you cannot leave. If that happens, then you are under arrest. This process could be manipulated or abused where the police officers try to detain you, not because they believe you are suspect, but rather simply to force your family members to pay them money.

Once it enters into the mind of the Nigerian officer or the EFCC officer to arrest and detain you, he would immediately begin to formulate some theories and put things in paper to justify your detention. Indeed, they could falsely accuse you of a crime to justify your detention. And in most cases, he begins to set up strategies to extort money from your family members or to please the person who complained against you. They could ask you to make a written statement. They could tell you that you only need to make a statement in order for you to go home. But that is only a trick most of the time.

You should probably not make any such statement, though it is also possible that an honest police officer would be impressed that you promptly answered his questions without objection. In general, it is safer not to answer any question. And if forced to answer questions, you must let your lawyer know you were forced, and your lawyer must protest against the use of force to obtain information at the earliest opportunity; and your lawyer must let the court know in a proper and timely manner.

This is probably something many people don’t understand. They are so eager to go home, so afraid of being detained, so scared of what would happen to them; that they mistakenly assume that it is safe to make a statement at the police station or EFCC office. DON’T MAKE ANY STATEMENT. TELL THEM YOU NEED TO SPEAK WITH YOUR LAWYER FIRST. If they threaten not to release you unless you made a statement, don’t buy that. It is a trick to set you up to justify your detention. Even if they release you after you have made a statement, your statement could still justify your being re-arrested and detained later, and because you made such statements before you spoke to your lawyer, you boxed yourself in somehow.

Some people believe that they are well educated and that they could write good English and that they are innocent and have nothing to fear, therefore they could give a written statement on the spot. That is wrong. The fact is that the more innocent you are, the less prepared you are to make any statement because you have no idea what happened. You have no idea how the various people involved are connected. It may not be the person you thought was under suspicion that really is. Also, that statement you are about to make may be your real first step to plunging yourself into what you don’t know. SO PLEASE REFUSE TO MAKE ANY SUCH STATEMENT UNTIL YOU HAVE SPOKEN TO A LAWYER. If the officer chides you with the blackmailing remark: “Oh, if you are innocent, why do you need a lawyer?” don’t fall for that.

Sometimes, they tell you that you have not been arrested and that you are only a witness. Be careful here. That is a slippery slope. A person who has been arrested has more active due process rights than a person who has not been arrested. It is often the arrest that triggers your due process rights. If you look at Section 35 (2) and (3), of the Constitution of Nigeria, 1999, you would see that the due process rights stated there are meant for the arrested or detained person, and until you are arrested, you may not assert those rights. However, you should still refuse to make any statements even as a witness. Let them arrest you and then you could assert those rights.

Section 35 (2) and (3) provide as follows:

“(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

“(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”

Note that the above provisions of the Constitution speak of any person “who is arrested or detained” and not about any person who is about to be arrested or to be detained. So knowing whether you have been arrested or detained is critical, and a lot of the times, Nigerian law enforcement agents want to keep in guessing your status.

It is probably better for you to be arrested and you assert your rights than for you to think that you have not been arrested and you give up the above due process rights. In fact, Subsections (2) and (3) of the above provision are Nigeria’s equivalent of the American Miranda rights. So you are better off refusing to make any statement on the spot. They ought not to arrest you just for refusing to make a statement. And if they arrest you, that means they would have arrested you anyway, but then armed with self-implicating statement against yourself.”

(TO BE CONTINUED)

WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE OF ARRESTS AND DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART ONE:

INTRODUCTION: The method and procedure I advanced in this thesis explain two contradictory phenomena. First: when the EFCC or the Nigerian police arrests ex-Governors or highly placed figures, none of them stays more than five days in EFCC cell before being released. Second: when they arrest ordinary or lowly placed people, they could be locked up for up to six months in detention.

The difference is that the ex-Governors could afford expensive lawyers who would normally follow the procedure I recommend here, whereas the average people, if they are able to hire lawyers, hire those lawyers that for one reason or the other fail to follow these steps.

The Governors and the other powerful people know in advance that they are going to be arrested. They see it coming. They prepare for it. They have their lawyers ready. Those lawyers are thus able to file papers immediately their privileged clients get arrested and, sometimes, even before they are arrested. Such timely or preemptive lawyering forces the EFCC or the police to follow the constitution and arraign the rich and influential clients within 24 or 48 hours after they were arrested. And the court takes over and grants bail.

Once you are able to move your case quickly from the Executive to the Judicial arm of the state, you eliminate much of the political and non-legal motivations behind your arrest and detention. The judicial outcome is predictable because it follows legal principles and procedures that are largely non-personal, whereas the outcome of executive actions or decisions is based more on a much unpredictable and highly personalized discretionary process. Thus, moving your case timely from the Executive to the Judiciary is the key to justice. And the greatest challenge in the Nigeria’s criminal justice system is being able to make that transition fast enough.

Even in cases like Speaker Dimeji Bankole’s case, where the Presidency was perceived to be the driving force, and Ifeanyi Ubah’s case, where a well-coordinated and combined corporate interests like Access Bank Plc. and Coscharis Group with significant elements of political power to back them up, drove the entire process; the suspects were able to come out of detention within a relatively short time period. What made the difference was that the suspects were rich and could afford to hire lawyers who followed the procedural steps set out in this paper.

Poor people cannot afford the same quality of legal representation. And they languish in detention needlessly. But it is not really a matter of how rich or how poor you are. My recommendations here are meant to level the playing field and even a poor person with a lawyer of average competence can avoid being locked up for a long time in detention.

Thus, this is to share with you something you need to know in order to help yourself or your friends and relatives if you were to get arrested by the police, the EFCC or the other agencies in Nigeria. And please, don’t be so naïve as to think that this does not concern you. It does. Unlike most other countries in the world, if you live in Nigeria or you are in Nigeria, you don’t really have to do something wrong in order to be arrested. Indeed, the people who do bad things in Nigeria are less likely to be arrested because the real bad people know and plan in advance how to avoid arrests. It is probably the innocent and unsuspecting people like you that get arrested in Nigeria.

WHY IS IT IMPORTANT TO TALK ABOUT THIS TOPIC?

One thing we all have in common in Nigeria, apart from death, is that any of us can be arrested, detained and tried by the State. This is an equal opportunity misfortune. That is to say; it does not matter whether you are rich or poor, educated or uneducated, connected or not connected. You can get arrested anytime in Nigeria. And when arrested, you will face the ugly side of the Nigerian criminal justice. Awolowo was arrested. Gani Fawehinmi was arrested many times. General Oladipo Diya was arrested and condemned to die. General Obasanjo was arrested and condemned to die. General Yar’adua was arrested and he died in prison. If these powerful men could get arrested, then you too could.

Some people make the mistake of thinking that they are so peaceful, so laid-back, too quiet, always at home, always minding their business, don’t drink alcohol, don’t smoke cigarette, don’t womanize; and that they would never do anything to get arrested. That’s not true. You will be deluding yourself to think that way. For instance, the Blackberry phone you are using, which you bought second-hand, has been reported stolen and the police are tracking that phone without you knowing it. Your employer has just been arrested by the EFCC and they are looking for his secretary to arrest her too, just to pressure your employer. And you happen to be that secretary. In Nigeria, the police would arrest you if they are looking for your husband, your son, your brother, your sister, your employer, your co-worker, your relatives, and cannot find them. Such an illegal detention is meant to force the person the police are looking for to turn himself in.

They can arrest a church functionary if they can’t find the Pastor. You only have to be unlucky and in a wrong place at a wrong time to be arrested. You could be set up and be arrested just because somebody else is interested in your boyfriend or in your girlfriend. If you don’t pay rent to your landlord, your landlord could report you to the police to be an armed-robber. If you don’t bribe the police and other government officials, you could get arrested on a trumped up charge. If you live in Washington, for instance, and you quarrel with the wife of the Nigerian Ambassador in Washington, you could get arrested when you visit Nigeria or your relatives could get arrested in Nigeria for that.

Even if you are so lucky never to get arrested in Nigeria, your relative may get arrested. Once arrested, you are faced with the criminal justice system. From my experience, it may not be the arrested person that worries the most when there has been an arrest. It is the relatives. It is the girlfriend. It is the wife. It is the siblings and parents. It is the friends that have to run around in confusion over what to do.

Most of the time that I got called upon to intervene as a lawyer after an arrest has occurred, it was not the arrested person that contacted me. Rather, it is the family members that do the worrying and the running around. So, you need to read what I have to say here about the criminal justice, as it may help you in the future.

If you are a lawyer, particularly the young lawyers, please pay attention to what I am about to share with you here. It would help your clients and it would make your work easy. If you are not a lawyer, that’s even better. Even if you plan to hire a lawyer, it helps if you know what I am about to share with you. Then you can know what to tell your lawyer and what to expect of him when you hire him or her.

(TO BE CONTINUED):

GOVERNOR SULLIVAN CHIME – THE FACTS, THE FICTION, AND THE STORM.

If you are a Governor of a State in Nigeria, everything about you could assume dimensions that are uncommon. And if you are Governor Chime, every rain could become a storm. This assessment is clear and present in the controversy involving the Governor of Enugu State and his wife.

It started by way of a publication by a tabloid/gossip online news website, which painted a picture of a governor’s wife in distress. According to the publication, Mrs. Chime, the First Lady of Enugu State, was in a lockdown, imprisoned in her own home by no other person than her husband, with the support of her family members, including her parents and siblings.

According to the petition allegedly written by Mrs. Chime, she has four key grievances. First, she could leave the Governor’s residence because the Governor had threatened to disown the son she had with the Governor if she left. So, presumably she stayed on in the residence against her will just in order to preserve the Governor’s paternity over their son. Second, she has not had conjugal union with her husband since 2010. Third, her husband, the Governor, does not give her pocket money, and all the money she gets is certain payment made to her as allowance to the First Lady by the State Government. Presumably, the Governor did not stop such allowance going to her. Fourth, she is not quite satisfied with her doctors because they prescribe medicine that she feels worsens her situation. Presumably, Mrs. Chime’s petition admitted that there was need for her to be attended to by physicians, only that she is not satisfied with the treatment she received from them.

On the basis of these grievances, Mrs. Chime’s alleged petition cried out to the human right community, urging it to come to her rescue. Once the alleged petition made it to the public, the rumors began to make the round that the Governor’s wife has some mental health problem. Indeed, her petition admitted that she was suffering from acute depression and she felt suicidal. The counter stories portrayed the Governor’s wife as sick and lacking in credibility. Indeed, there seems to be a consensus that she is not well, and that the reason she is presumably kept within the walls of the residence was as a result of her condition.

As would be expected, given the personalities involved, this matter has generated significant public reaction. First, it has assumed the tone of discussion of the deeply embedded gender inequality in the Nigerian society. There is a view that the Governor’s wife ought to have been sent overseas for the treatment of whatever illness she suffer. That view is particularly serious in Enugu State given that the Governor had extensive treatment overseas last year. So, why not such treatment for the wife, many are wont to ask?

There have been some further developments in this matter. First, Femi Falana, a senior lawyer in Nigeria, has announced that he would be representing Mrs. Chime as her counsel. Second, Nigeria’s usually ineffective Human Rights Commission has sent a letter to the Governor demanding to have access to his wife. Equally of importance is the fact that the Governor, flanked by Mrs. Chime and her brothers and other family members gave a press conference denying the allegations that Mrs. Chime has been imprisoned in her house. In the said press conference, Mrs. Chime made a statement, denying the petition alleged to have been written by her and openly stated that she never hired Mr. Falana to be her lawyer and that she had no intentions to hire him.

With the Foregoing position of facts and scenarios, this controversy is very much set for analysis.

As a basic point of consideration, no one can protect Mrs. Chime from her own family, given the circumstances. Even if the Governor were to let her out (if one insists she is under lock and key), she would have to look up to her family to care for her. And that is the same family that is staunchly with the Governor.

Nigeria does not have a program to care for you if all your family members reject you. Indeed, no doctor and no court would allow anybody else to make decisions for Mrs. Chime apart from her husband or relatives. And if she is so sick, she cannot be allowed to make any important decisions for herself. She would be lacking the mental capacity to retain the services of a lawyer. The only lawyer she may have would be one appointed by Chime or her family.

Can Falana represent Mrs. Chime even without being engaged by either Mrs. Chime or her legal representatives? The answer is definitely no, except in the rare event that a court appoints a guardian ad litem for her. That possibility is so unlikely it could safely be ruled out.

It is important that Nigeria’s new rules for the enforcement of constitutional rights has made away with the requirement of locus standi (an archaic rule that denies access to litigants unless they could show that that controversy involves them in some special capacity). It implies that a person seeking to enforce a fundamental right does not have to be a direct victim of the right violation.

But the significance of the changes in the rules should not be misunderstood. The fundamental right of a person to a counsel of his/her choice has not been replaced by that rule. The changes to the rule relates to the parties to litigation and their right to sue, not to the right of a lawyer to impose himself on an unwilling client. So, we must not assume that Mr. Falana could force himself on Mrs. Chime based on the new enforcement rules.

The right to a lawyer of one’s choice is so entrenched in the Constitution that it cannot be taken away by implication of a procedural rule established to enforce that right. And if we observe that rule here, the question is who excises the choice or decision-making power for Mrs. Chime? It cannot be any lawyer that wants to do so. It cannot be any government commission that wants to do so. It is she or her family.

If there is doubt as to whether she could make such decision herself or through her legal representatives, then mental capacity becomes a foundational issue to be addressed. Who determines whether she has the capacity to make that decision herself? Again it is not simply any lawyer that wants to do so or any commission that wants to do so. It is her next of kin and family members, otherwise her legal representatives. So, as long as her husband and her family are united on that, it is extremely difficult for anyone to intervene legally.

The position of the human right commission demanding access to Mrs. Chime is a fundamental mistake in law. The commission cannot have such access without first addressing the question of legal capacity. Indeed, if Mrs. Chime is suffering from mental sickness, the human right commission may not be qualified to meet her. The only competent people to meet her outside her family members are medical doctors. In such case whatever words or statements made by Mrs. Chime could only be intelligible to a competent medical officers. The idea that she could sit down with the commission or Falana to discuss anything is so inconsistent with logic and common sense.

From a human point of view, if your wife or daughter is suffering from mental sickness, the right thing to do is not to put her before a panel of journalists or lawyers and allow them to chat with her so they would determine if she is well or not. They lack the capacity to make such determination. It is right and proper from the family members of a mentally sick patient to avoid her coming in contact with strangers except for the course of such patient’s treatment.

In light of the foregoing overall, one must view the position of the Governor far more favorably than has been the case. First, the fact that the Governor and the lady's family members are united in this takes care of a lot of things because even if the woman is left on her own, it is her family members and her doctors that would determine the best place for her to be. And they think it is the Governor's residence.

Second, once Mrs. Chime is attended to by doctors, those doctors would make the best medical decision about her. They would determine what course of treatment to give her. So, all the talk of her getting medical treatment overseas is a decision only her medical doctors should help make, and not for the public to make it.

Third, it is important to note that nobody has yet complained that violence is used against Mrs. Chime.

Fourth, there is no motive on the part o the Governor to lock his wife up out of malice towards her. Indeed, it seems easier for governor to divorce his wife immediately he saw she was sick. So, it would seem that the Governor is being a good husband by sticking to his wife in health and in sickness as required by his marital vow.

The situation could change if there is an indication that a crime is being committed against Mrs. Chime in that residence. But in that case, the police would come in. If the Nigerian police believe that crime is being committed either by Mrs. Chime or against her, the police will have right to go to court obtain a warrant and gain access to the Governor's bedroom if necessary.

While we consider all these options, let us not lose sight of the state of Nigerian law, which will decide a lot of these things. As the law is today, Mrs. Chime may actually depend on her family members to enforce her rights. There is very little the Government could do to help protect her from her husband and family working together.

By the way, from all indications, I should be quick to recognize the rights o this woman, and to protect her if these rights are violated or being violated. However, I am sensitive to the various shades of argument that seem to be proceeding outside the margins of law.

On my recommendation to the Governor, if there is a medical concern, there should first be an independent medical evaluation to determine her capacity for anything. The human right commission members are not doctors. They would not even be able to make any determination regarding her capacity. There is no way the Governor would allow non-medical personnel access to his wife if she were mentally sick. If my child or wife were mentally sick, I would not allow a non-medical personnel to come and interview her.