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)
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)
No comments:
Post a Comment