CRIMINAL PROCEDURES IN NIGERIA

Criminal Procedure Law, Law and Justice

Jurnal Hukum Universitas Negeri Semarang

Prospect and Challenges of Criminal

Procedures in Nigeria: A Review

Babajide Olatoye Ilo1 , Adekunbi Folashade Imosemi2

1,2
Babcock University, Nigeria
Ilishan-Remo, Ogun, 121103, Nigeria

[email protected]

ARTICLE INFORMATION
History of Article
Submitted : May 17, 2022
Revised : June 21, 2022
Accepted : August 25, 2022

Copyrights
Copyrights is on Author(s), and publishing rights on Publisher. This work
is licensed under a Creative Commons Attribution-NonCommercial-
ShareAlike 4.0 International License.

Conflicting Interest Statement

All authors declared that there is no potential conflict of interest on publishing this article.

Funding
None

Publishing Ethical and Originality Statement

All authors declared that this work is original and has never been published in any form
and in any media, nor is it under consideration for publication in any journal, and all sources
cited in this work refer to the basic standards of scientific citation.

Cite this article as:

Ilo, B. O., & Imosemi, A. F. (2022). Prospect and Challenges of Criminal
Procedures in Nigeria: A Review. Unnes Law Journal: Jurnal Hukum Universitas
Negeri Semarang, 8(2), 279-312. https://doi.org/10.15294/ulj.v8i2.56482

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 UNNES LAW JOURNAL 8(2) 2022
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Jurnal Hukum Universitas Negeri Semarang

Prospect and Challenges of Criminal

Procedures in Nigeria: A Review

Babajide Olatoye Ilo, Adekunbi Folashade Imosemi

ABSTRACT. Criminal Justice Procedure (CJP) can be described as the collective

means through which a person accused of an offence passes until the accusations
have been disposed of or the assessed punishment concluded. Arguably, CJP in
Nigeria took an enviable turn around with the enactment of a new principal
enactment, Administration of Criminal Justice Act (ACJA) which has repositioned
the CJP in Nigeria by addressing the seemingly inadequacies in Criminal Procedure
Act (CPA) and Criminal Procedure Code (CPC), harmonizing the CPA and CPC,
codifying most age-long judicial pronouncements on CPA and CPC and addressing
human rights abuses in erstwhile applicable laws thereby catapulting the CJP in
Nigeria to an enviable position in the comity of nations. Recent judicial
pronouncements in Nigeria on ACJA are worrisome and questions the readiness of
the Judiciary as a stakeholder in Criminal Justice System to address the menace of
delay in criminal trials which the ACJA aimed to address by introducing novel
provisions target towards speedy dispensation of justice in criminal trials. The
research methodology used in this study is systematic review and normative, by
analyzing principal and secondary enactments in Nigerian CJP with judicial
interpretations. While emphasizing the prospects of the ACJA, this paper also
highlighted the challenges and suggested solutions to same. Despite its defects, the
ACJA is a landmark development in the Nigerian Criminal Justice Procedure and
all States of the Federation are therefore enjoined to domesticate the law.

KEYWORDS. Criminal Law, Criminal Justice System, Human Rights, Criminal

Procedure Law

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YWORDS. Child Labor; Elimination of the Worst Forms of Child Labor

Prospect and Challenges of Criminal

Procedures in Nigeria: A Review

Babajide Olatoye Ilo, Adekunbi Folashade Imosemi

Introduction

Criminal procedure deals with the set of rules governing the series of
proceedings through which the government enforces substantive criminal
law. Criminal Justice Procedure can be described as the collective means
through which a person accused of an offence passes until the accusations
have been disposed of or the assessed punishment concluded. The system
typically has three components i.e., law enforcement which includes police
and other law enforcements institutions, the judicial process [judges,
magistrates, prosecutors, defense lawyers], and correctional service centers
[prison officials, probation officers, parole officers]. The importance of
criminal justice to the smooth running of any society cannot be over
emphasized. Indeed, an effective criminal justice system is regarded by many
as fundamental to the maintenance of law and order. However, the Nigerian
criminal justice procedure despite the laudable introduction of the
Administration of Criminal Justice Act to replace the archaic Criminal
Procedure Act and the Criminal Procedure Code hitherto is not without its
own challenges cutting across all institutions in the administration of justice
The Administration of Criminal Justice Act 2015 (ACJA) was enacted
at a time the Nigerian Criminal Justice Procedure had attracted so much

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criticism and disdain from within and outside Nigeria. 1 Obviously, the
Nigeria Police Force was regarded as inept, oppressive and constantly in
violation of human rights; the Courts were poorly furnished; and the prisons
were over congested. These conditions were in gross violation of the human
rights guaranteed by the Constitution of the Federal Republic of Nigeria 1999
(as amended). One of the reasons why the conditions continued was that the
repealed Criminal Procedure Act in the South and Criminal Procedure Code
in the North, which by far pre-dated the 1999 Constitution, were obsolete,
lax and out of step with regards to democratic and modern trends. 2
Consequently, the need to reform the laws was absolutely imperative. Many
other jurisdictions in Africa that had colonial influence, like South Africa and
Ghana, had already gone ahead with regards to reforming their Criminal
Justice Procedure.
This paper does not boast of pointing out all the prospects and
challenges in the Criminal Justice Procedure in Nigeria for want of time and
space but would highlight only some of the mischiefs engendered by the
repealed pieces of legislation. It therefore discusses the concept of criminal
justice procedure and analyses the various mischiefs existing previously in
the Criminal Justice Procedure which have been addressed by the ACJA
including areas such as arrest, arraignment, bail, plea bargaining and
sentencing. The various challenges to be weathered in the effective
implementation of the legislation as well as those present in the Act itself are
also examined. Consequently, recommendations in this regard were made.
Before delving into the details of the paper, it is important to state that
the ACJA applies to criminal trials for offenses established by an Act of the
National Assembly and other offences punishable in the Federal Capital
Territory (FCT).3 It therefore means that the Act applies to federal courts
including the Federal High Court, the High Court of the FCT and the
Magistrate Court of the FCT. Whereas Lagos, Ogun, Anambra and a few

1
Amnesty International UK, ‘Nigeria: Criminal Justice System is a “Conveyor Belt of
Injustice” says Amnesty’; 26 February 2008 https://www.amnesty.org.uk/press-
releases/nigeria-criminal-justice-system-conveyor-belt-injustice-says-amnesty
accessed January 20, 2022.
2
The Criminal Procedure Act (CPA) which was for the Southern part of Nigeria was
enacted in 1902 whereas the Criminal Procedure Code (CPC) of the North was enacted
in 1960.
3
Administration of Criminal Justice Act 2015 (ACJA), s. 2(1).

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other States 4 have enacted an Administration of Criminal Justice Law

(ACJL), all other States still make use of the CPA and CPC in criminal trials.

Statement of the Problem

Arguably, Criminal Justice Procedure in Nigeria took an enviable turn
around with the enactment of a new principal enactment, ACJA which has
repositioned the Criminal Justice Procedure in Nigeria by addressing the
seemingly inadequacies in CPA and CPC, harmonizing the CPA and CPC,
codifying most age-long judicial pronouncements on CPA and CPC and
addressing human rights abuses in erstwhile applicable laws thereby
catapulting the Criminal Justice Procedure in Nigeria to an enviable position
in the comity of nations. Recent judicial pronouncements in Nigeria on ACJA
are worrisome and questions the readiness of the Judiciary as a stakeholder
in Criminal Justice System to address the menace of delay in criminal trials
which the ACJA aimed to address by introducing novel provisions target
towards speedy dispensation of justice in criminal trials. Of more concern is
the continue practice of Holden charge now known as remand proceedings
under the new Act which is nothing but abuse of court processes since a
criminal procedure in offences punishable with capital punishment or
offences which Magistrate Courts do not have jurisdiction can be commence
summarily in the High Court, why not employ that procedure and take a bull
by the horn?

Methods
The research methodology used in this study is systematic review and
normative, carried out by examining or analyzing principal and secondary
enactments in Nigerian Criminal Justice Procedure with judicial
interpretation by exploring criminal adjectival law as a set of positive rules
or norms in the statutory procedural system that regulates the Criminal
Justice Procedure which is the main problem this research aimed to address.
Especially by analyzing the Administration of Criminal Justice Act and other
most recent enactments relevant to criminal justice administration in Nigeria.

4
Lagos State was the first state in Nigeria to pass the Administration of Criminal Justice
Law in 2007 and has recently passed the Administration of Criminal Justice
(Amendment Law), 2021; Administration of Criminal Justice and other Related Matters
Law, Ogun State 2017, Administration of Criminal Justice Law 2010, Anambra State.

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The study also attempted a comparative study of the Criminal Justice

Procedure in the People’s Republic of China and Canada. The
recommendations consist of what is legally permissible (legal approach) and
sociological requests (socio-logical approach). The technique of tracing legal
materials used document study techniques and the legal materials that have
been collected were analyzed qualitatively.

What is Criminal Justice System?

The Criminal Justice system is ‘an apparatus the society uses to enforce
the standards of conduct necessary to protect individuals and the
community’.5 It is the sum total of society’s activities to defend itself against
the actions it describes as criminal.6 It also refers to that integral fusion of
machineries of government that aim to enforce law and redress crime. The
machineries are the law enforcement agents which control and prevent crime.
These include the Police,7 the Chief Law Officer/Prosecutor,8 Judiciary9 and
Correctional Service Centers. 10 Adebayo says that the Criminal Justice
System is an ‘institution and practices of Government whose main focus is
to mitigate and deter crime, uphold social control and sanction individuals
who violate the set laws of a specific state with rehabilitation and criminal
penalties’.11 Owasanoye and Ani have described the relationship between the
functionaries in the CJS as a ‘symbiotic relationship’.12 Any defect at any
point frustrates the whole system which has a single identity. 13 It therefore

5
The President’s Commission on Law Enforcement and Administration of Justice, The
Challenge of Crime in a Free Society (United States Government Printing Office,
Washington D. C., February 1967), p. 7.
6
F. Adler, G.O.W. Mueller & W.S. Laufer, Criminal Justice: An Introduction (2 nd Ed,
McGraw Hill Higher Education, 2000) p.7.
7
Constitution of the Federal Republic of Nigeria 1999 (CFRN), s.214.
8
CFRN 1999, ss 174 & 211.
9
CFRN 1999, s.6.
10
Nigerian Correctional Service Act 2019 s.1.
11
A.M Adebayo, Administration of Criminal Justices System in Nigeria, (Lagos:
Princeton Publishing Co, 2012), p.2.
12
B. Owasanoye & C. Ani, ‘Improving Case Management Coordination Amongst the
Police, Prosecution and Court’ http://www.nials-
nigeria.org/journals/Bolaji%20Owasanoye%20%20andchinyere.pdf accessed January
20, 2022.
13
See also H. Okoeguale, ‘Criminal Justice in Nigeria: The Need for Administrative
Dexterity’ (2015) 1 ABUAD Journal of Public and International Law (AJPIL), pp. 226-
227.

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becomes obvious that the CJS is a machinery of government whose aim is to

prevent crime by punishing same.14
In Nigeria, the criminal justice system is therefore the whole gamut of
criminal laws (substantive and adjectival), the institutions which include the
Nigeria Police Force, the Attorney-General and Minister/Commissioner for
Justice including prosecuting law officers, the Judiciary and the Nigeria
Correctional Service Centers. All these are required to work hand in hand to
address crime. The scope of this paper is limited to the institutions
aforementioned as well as the procedural aspect of the criminal law.

Theoretical Framework
One of the ways in which law can be viewed as instrument of social
control is that it prescribes punishment for offences. 15 But many jurists,
philosophers and theorists have argued differently on penal measures melted
out on the offenders. I critically examined briefly some of these theories with
a view to determining their prospects and challenges in criminal justice
proceedings in Nigeria. This segment will briefly discuss the various theories
that are currently being applied in most Nigerian courts ranging from
retribution to deterrence, restraint doctrine and the theory of retribution or
reformation.16

1. Retribution theory
The theory of retribution is premised on revenge. The essence of the
theory is to make the offender suffer for the offence committed just like the
Mosaic law of an eye for an eye. 17 The theory punishes the offender for
choosing to commit the criminal act and to face the consequences. However,
many scholars have criticized the theory that punishment will not bring back
the victim for instance in the case of murder. The theory of retribution does
not contemplate forgiveness which is enshrined as a divine mandate in the
14
Ifeoluwa Olubiyi and Hilary Okoeguale, ‘Nigeria Criminal Justice System: Prospects
and Challenges of the Administration of Criminal Justice Act 2015’ (2016) vol. 1
African Journal of Criminal Law and Jurisprudence p. 3.
15
Abiola Sanni, Introduction to Nigerian Legal Method, (ed. 1999) p.34.
https://ir.unilag.edu.ng/bitstream/handle/123456789/8359/INTRODUCTION%20TO
%20NIGERIA%20LEGAL%20METHOD.pdf?sequence=1 accessed January 21, 2022.
16
Bilz, Kenworthey, and John M. Darley, ‘What's Wrong with Harmless Theories of
Punishment’, (2004) 79 Chi.-Kent L. Rev. 1215.
17
This is the Mosaic Law mentioned in the Holy Bible (Exodus Chapter 22 verse 24)
when Moses was the leader of Israelites.

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Holy Bible. Retribution involves looking back at the injury caused by the
offender. 18 It has an element of vengeance for paying back for what the
offender has caused or done. In the view of Salmond, one may conclude that
punishment is imposed in order to relieve the public’s indignant feelings,19
or to mark with what revulsion they regard the crime.20 In its application, a
more severe punishment may be imposed for an offence with a view to pay
the offender what he has caused to the victim and public at large. Thus,
writers seem to have criticized this theory more than other but as mentioned
by Okonkwo, ‘its importance should not be ignored, because it does form a
substantial part of many people’s beliefs about punishment in respect of
many “serious” crimes.21
Retribution favors the principle of fair deserts. Thus, the condition for
punishing an offender is when the state is convinced that he actually
committed the offence though determining fairness is another issue.22 What
must be borne in mind is that the offence for which the offender is tried must
be written down in a law.23 Again, similar cases must be treated in the same
way since there are different capabilities to commit crimes as well as
exceptions of criminal responsibility24 applicable to offenders.25

2. Deterrence theory
This theory is based on the utilitarian principle propounded by Jeremy
Benthan.26 According to him, a man is governed by two principles-pain and

18
Cf. Hart, Punishment and the Elimination of Responsibility (1961) Hobhouse Memorial
Lecture).
19
Cf. Salmond, Jurisprudence (11th ed.) 121.
20
Okonkwo and Naish on Criminal Law in Nigeria, (2nd ed. Spectrum Books Limited
2002) p. 28.
21
Ibid p. 29.
22
Hart, Op. Cit. p. 27.
23
CFRN s. 36(12); Aoko v Fagbemi (1961) 1 All NLR 400.
24
Criminal Code Act Cap. C.38 LFN, 2004, s. 24-32; Penal Code Act, Cap. P3 LFN 2004,
s. 51-56 contain various exceptions to criminal liability.
25
Thus, in Maizako v Superintendent General of Police [1960] W.R.N.L.R. 188, the
sentence of one accused was upheld because he had a record of burglary but that of the
other was reduced because he had no previous conviction. Similarly, in Enahoro v R
[1965] NMLR 265 at 283, sentence imposed on ‘lieutenant’ was reduced because it was
heavier than that imposed on ‘leader’. The court of law further held in the case of
Thomas [1964] Crim. L.R. 22 that a man, who already had a conviction for a similar
offence before he committed the second one, does not deserve to be treated with
leniency.
26
Bronsteen John, Christopher Buccafusco, and Jonathan Masur, ‘Happiness and
punishment’ (2009) The University of Chicago Law Review pp. 1037-1082.

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joy.27 Thus, deterrence is to have an eye for the future. Although the critics
of this theory believe otherwise that deterrence does not really deter in the
real sense especially when passion or psychology is involved. They believe
deterrence is against justice even though the court of law could glaringly
increase the punishment of an offender in order to deter people. Deterrence
may be general or special. A general deterrence is described as a goal of
criminal law generally or of a specific conviction and sentence, to discourage
people from committing crimes. On the other hand, special deterrence is
where a specific conviction and sentence is used to dissuade the offender
from committing crimes in the future.28 There is no doubt that what the theory
of deterrence seeks to achieve is part of the prospects and challenges of
criminal procedure in Nigeria with introduction of lofty provisions in the
ACJA aimed at achieving these goals. However, the ACJL is not all of
deterrence. The perspective that is closely connected to it is the intention to
dissuade the offender from committing crimes in the future.

3. Restraint theory
Restraint proposes that the best way to deal with an offender is to take
him out of the society. Restraint emphasizes confinement, abridgement or
limitation of the offender from having access to commit the crime the second
time.29 The idea is to remove an offender from society, making it physically
impossible (or at least very difficult) for him or her to commit further crimes
against the public while serving a sentence.30 Restraint works as long as the
offenders remain locked up. There is no question that incapacitation reduces
crime rates by some unknown degree. The problem is that it is very
expensive. Restraint carries high costs not only in terms of building and
operating prisons, but also in terms of disrupting families when family
members are locked up.31

27
J Kolber Adam, ‘The Subjective Experience of Punishment’ (2009) 109 Columbia Law
Review 109 p. 182.
28
A Brayan Garner, Black Law Dictionary, 5th edition, p. 514
29
Garner Op. Cit. p. 1429.
30
Theories of Punishment’, https://www.cliffsnotes.com/study-guides/criminal-
justice/sentencing/theories-of-punishment Accessed January 21 2022.
31
S Frase Richard, ‘Punishment Purposes’ (2005) Stanford Law Review pp. 67-83;
Robinson, Paul H, ‘Ongoing Revolution in Punishment Theory: Doing Justice as
Controlling Crime’, (2010) 42 The Ariz. St. LJ p. 1089.

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4. Rehabilitation or Reformation theory

This theory emphasizes the need to change the offender for better. It
aims at re-orientating the attitude of the offender from further committing
another offence. The school of thought urges the legislators to make laws that
will make the prison system efficient for a proper rehabilitation and
reformation. At the end of the process, the offender is better than when he/she
was apprehended. Rehabilitation and reformation appear to be the aim of
Nigerian legislators when the Prison Act was repealed and a new
Correctional Service Centre Act was introduced with far reaching provisions
aimed at rehabilitating convicts and inmates in Nigeria. Rehabilitation should
involve education, re-orientation, reformation, redemption, forgiveness and
transformation. Even where punishment is unavoidably imposed, the weight
of such punishment should not be felt because of the way it is being
measured. The accused should feel he is better at the end of the terms of
sentencing.32

Prospects of Criminal Procedure in Nigeria

Lagos State blaze the trail in the history of criminal justice procedure
in Nigeria by the introduction of the Administration of criminal Justice Law
which marks the turning point in the criminal adjectival law in Nigeria.33
Other States like Anambra follow suit and the Federal Government of Nigeria
in 2015 enacted the Administration of Criminal Justice Act.34 Although the
provisions of the Criminal Procedure Act (CPA) and the Criminal Procedure
Code (CPC) did not prima facie encourage human rights violations, the
loopholes in the laws and indeed some of the provisions had been exploited
to produce human rights abuses and associated vices in the Criminal
procedures in Nigeria.35 The ACJA was introduced to address some of these
issues. It is instructive to state early that the Act has introduced the use of the
expression ‘defendant’ for persons being prosecuted in criminal matters
instead of the previous expression ‘accused person’.36 This may be in line
with the general intendment of the Act which is to protect and preserve the

32
Cullen, Francis T., and Paul Gendreau, ‘Assessing correctional rehabilitation: Policy,
practice, and prospects,’ (2000) 3.1 Criminal Justice pp.299-370.
33
Administration of Criminal Procedure Law of Lagos State 2007.
34
Administration of Criminal Justice Act (ACJL).
35
CPA s. 10 (1) (i).
36
ACJA 2015, s.494(1). Defendant means 'any person against whom a complaint, charge
or information is made'.

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human dignity of the person being prosecuted. For the purpose of clarity, the
discussion on the prospects and challenges of Criminal procedure in Nigeria
shall be divided into the following segments: arrest; arraignment, pre-trial
detention and trial; plea bargaining; bail; and sentencing/punishment.

1. Investigation / Arrest
On the issue of arrests, the Constitution provides that every person shall
be entitled to his personal liberty and no person shall be deprived of such
liberty save in the following cases and in accordance with a procedure
permitted by law which includes but not limited to:
... the purpose of bringing him before a court in execution of the order
of a court or 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 …37
Most often than not, the liberty of individuals was interfered with
during investigation and criminal trials under the old law in Nigeria. The
purpose as stated by the Constitution is to ensure that the suspect is brought
to court to stand his trial. Therefore, the event by which a person suspected
to have committed a criminal offence loses his liberty is referred to as arrest.
Arrest has been defined by the House of Lords in the case of Holgate
Mohammed v Duke38 as a continuing act which starts with the arrester taking
a person into custody and continues until the person restrained is either
released from custody or having been brought before a Magistrate is
remanded in custody by the judicial act of the Magistrate. It is trite that no
person can be unlawfully arrested and detained when he has committed no
offence. On the other hand, a person who has committed a criminal offence
or reasonably suspected to have done so, may be arrested for the purpose of
being arraigned in a Court of law.39 Furthermore, it was stated that the lawful
arrest does not merely mean taking a person into custody; the person arrested
must know at the time he is being arrested or very soon thereafter (when
reasonably practicable) the reason of his arrest.40
The Police, under the old regime, had the power to arrest with or
without warrant a person whom he had reasonable grounds to believe had,

37
CFRN 1999, s. 35 (1) (c); COP & Ors v Isaac & Ors (2018) LPELR 44879 (CA).
38
Holgate Mohammed v Duke Vol. 79 Cr. App. Report 120.
39
Okonkwo & Ors. v Anyadiegwu & Ors. (2020) LPELR – 50581 (CA).
40
Okafor & Ors v IGP, Police Force Headquarters, Abuja & Ors (2021) LCN/15498 (CA).

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was about to, or was committing a crime. 41 The powers conferred on the
Police to arrest also extended to instances where a person had no ostensible
means of subsistence and could not give a satisfactory account of himself.
The latter provision was rather arbitrary as it was significantly subjective to
the discretion of the Police willing to arrest a person. This arbitrary powers
donated by the repealed law to the police, led to a situation whereby arrest
became a norm which then triggered investigation rather than the proper
procedure of investigation leading to the arrest of suspects. Again, relatives
of suspects were arbitrarily arrested.42 To further energize the police in this
regard, it was stated in the case of Dallison v Caffrey43 that a police officer is
not liable for false imprisonment if he arrests an individual who has not
committed a crime so long as he had reasonable ground to believe that the
individual committed a crime. The only legal restraint in the instance of
arbitrary arrest was the constitutional provision which restricted the time
frame for detaining a suspect.44 However, this was inadequate as arbitrary
arrests including the arrest of relatives of suspects continued. It was also
reported that some of the suspects taken by the police were usually summarily
executed and then labeled armed robbery suspects.45 These had a far reaching
effect of disrupting the criminal justice process and eventually caused severe
injustice especially to innocent citizens.46
Thus, exploiting these enormous powers, suspects were usually arrested
and if no incriminating material or information is obtained, they were forced
to make confessional statements and sometimes killed extra-judicially. In
some occasions, the Police demand for money from complainants or victims
of crime before embarking on investigation. To curb these indiscriminate

41
CPA s. 10 (1) & (2) and CPC s.26 which empowers the police to arrest without warrant
where the crime is being committed in his presence. See also Police Act, Cap C19 Laws
of the Federation of Nigeria, 2004, s.24.
42
A Nwapa, ‘Building and Sustaining Change: Pretrial Detention Reform in Nigeria’ in
Justice Initiatives (2008 Spring, Open Society Justice Initiative) p. 88.
43
Dallison v Caffrey (1964) 2 All E.R. 1208.
44
CFRN 1999, s.35 (5).
45
Network on Police Reform in Nigeria and Open Society Justice Initiative, Criminal
Force: Torture, Abuse and Extrajudicial Killings by the Nigeria Police Force (Open
Society Institute, New York, U.S.A., 2010) p. 59.
46
An example is the famous ‘Apo 6 killings’, where the victims were tagged robbers,
which statement the Police later corrected and apologized 6 months after the citizens
were killed and after the Justice Goodluck’s Commission recommended that all the
officers be prosecuted. Ibid p. 60 – 61; see also Network on Police Reform in Nigeria,
‘Criminal Force: An Interim Report On The Nigeria Police Force’
http://www.noprin.org/NoprinPoliceSummary-10-Dec-07.pdf p.4 Accessed January 23
2022.

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arrests which usually led to torture and sometimes death of suspects, the
ACJA provides a system of accountability whereby records of arrests are
documented and forwarded to the Attorney-General of the Federation (AGF)
in case of Federal offences and Attorney-General of various States in case of
State offences.47 The Administration of Criminal Justice and Other Related
Matters Law of Ogun State, 2017 (ACJL) approaches the issue of
accountability quite differently. It provides 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 working 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.48 With this in place, it becomes compelling, at least, to ensure that
suspects arrested do not get killed in custody or kept for an inordinately long
period. In addition, apart from the ACJA and the ACJL prohibiting arrest in
lieu,49 s. 8 of the ACJA requires suspects to be treated with human dignity.
In order to guard against torture, the ACJA provides that a legal practitioner
of the suspect’s choice may be present while he is being interrogated.50
I must also mention the swift response of the National Assembly to
bring the archaic Police Act 2004 in line with Administration of Criminal
Justice Act by addressing the salient loopholes which had led to human rights
abuses in Nigeria with the repeal of the Police Act 2004 by the introduction
of The Nigeria Police Force (Establishment) Act, 2020 (‘the new Act’) which
came into force on the 17th of September 2020.51 The general objective of the
new Act is to provide an effective police service that is based on the
principles of accountability and transparency, protection of human rights, and
partnership with other security agencies. In achieving this objective, the Act
did not only improve on the provisions of the erstwhile Act, it has its own
novel provisions. For instance, the erstwhile Police Act was silent on the
power of the police to arrest for a civil wrong, this void was abused by a lot
of police officers and citizens alike as Police meddled in and even became an
instrument of torment or oppression in purely civil matters. The new Act has

47
ACJA, 2015, s.29 (1) requires the Inspector General of Police to make quarterly reports
on arrests made to the Attorney-General of the Federation.
48
Administration of Criminal Justice and Other Related Matters Law of Ogun State 2017,
s. 35 (1).
49
ACJL Ogun State 2017, s.9 (1) and ACJA 2015, s,7. Arrest in lieu refers to the practice
of the police in arresting relatives of a suspect or defendants in place of the suspect or
defendant.
50
ACJA, 2015, s.17 (2). Unfortunately, this is not a mandatory requirement.
51
The Nigeria Police Force (Establishment) Act, 2020.

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specifically prohibited the Police from arresting a person merely on a civil

wrong or breach of contract.52 This is to further give effect to the provisions
of Section 8(2) of the Administration of Criminal Justice Act, 2015 which
has a similar provision.53
Furthermore, the new Police Force Act makes provisions for certain
rights that accrue to a person who is arrested. With the coming into effect of
the New Act, the Police officer making an arrest has a duty to inform the
suspect of his/her rights to remain silent or avoid answering any question
until after consultation with a legal practitioner or any other person of his
own choice; consult a legal practitioner of his own choice before making,
endorsing or writing any statement or answering any question put to him after
the arrest; and free legal representation by the Legal Aid Council of Nigeria
or other organizations where applicable.54 While this notification of rights
was often done discretionarily before now, the New Act has now made it
mandatory. Prior to now, it was possible, in fact, it was commonplace for a
person to be arrested and denied the right to inform his/her people that he has
been taken into custody; but not anymore! With the new Act, when a person
is arrested and is being kept in custody, the Police have a duty to inform the
next of kin or any other relative of the suspect of the arrest, at no cost to the
suspect.55
As part of ensuring that the New Act is in conformity with, and gives
effect to the ACJA, 2015, the New Act has now prohibited the arrest of a
person in place of a suspect.56 Consequently, a son cannot be arrested in place
of his father and a wife cannot be arrested in place of her husband where the
husband is the suspect. A person who is arrested must also be granted the
right to the dignity of the human person as guaranteed in the 1999
Constitution. He must not be subjected to any form of torture, cruel, inhuman,
or degrading treatment.57 This provision is also included in Section 8(1) of
the Administration of Criminal Justice Act, 2015.58

52
Mezue & Anor. v Okolo & Ors. (2019) LPELR-47666 (CA); Police Force
(Establishment) Act, 2020 s. 32 (2).
53
ACJA s. 8 (2).
54
Police Force (Establishment) Act, 2020 s. 35 (2).
55
Ibid s. 35 (3).
56
Ibid s. 36.
57
Ibid s. 37.
58
ACJA s. 8 (1).

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2. Arraignment, Pre-Trial Detention and Trial

Arraignment is the process whereby a person alleged to have committed
an offence is confronted/accused with a formal charge containing the offence
he is alleged to have committed in a court of competent jurisdiction,
whereupon the defendant is required to make a plea of guilty or not guilty.59
Where the defendant pleads guilty to a charge which does not attract the
capital punishment, and the presiding judge or magistrate satisfies himself
that the defendant understands the charges, the court can convict and sentence
him accordingly.60 Where the charge brought upon the defendant attracts the
capital punishment, a plea of ‘not guilty’ is entered for him even if he pleads
guilty.61 In any case, where a defendant pleads ‘not guilty’, he is considered
to have put himself to trial. 62 Needless to say therefore, that arraignment
begins the trial of a defendant, which can be done only in a court having
jurisdiction; where there is no arraignment, trial cannot commence.63
In the celebrated case of Shola Abu & 349 Ors v C.O.P, Lagos State,64
the court espoused the principle thus:
… to demonstrate that a citizen is detained pending being brought
before a court of law upon reasonable suspicion of a criminal offence, those
who claim to have reasonably suspected him of the offence and apprehended
him for that reason must demonstrate the reasonableness of their suspicion
by arraigning him before a court of competent jurisdiction, where the
reasonableness thereof will be tested within a reasonable time.
The above is a re-statement of the constitutional provision which
requires a detainee to be brought before a court of law within a reasonable
time for the detainee to stand his trial.65 Where arraignment is not done within
a reasonable time and the suspect is kept in detention, his continual pre-trial
detention constitutes a violation of his right to personal liberty. In stating the
ills of pre-trial detention, the Court stated in the case of Hartage v Hendrick66
as follows:

59
Lufadeju & Anor. v Johnson (2007) LPELR-1795 (SC).
60
ACJA 2015, s. 274 (2).
61
Ibid s. 274 (3).
62
CPC, ss. 187 & 188, CPA, s. 271 and the extant s. 273 of the ACJA 2015.
63
Nwadike v The State (2015) LPELR – 24550 (CA).
64
Shola Abu & 349 Ors v C.O.P, Lagos State (Unreported Suit No IKD/M/18 2003, ruling
delivered on 28/07/2004 at the Lagos State High Court, Ikorodu Division).
65
CFRN 1999, s. 35 (4)
66
Hartage v Hendrick (1970) 439 PA 584 p. 601.

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...the imprisonment of an accused person prior to the

determination of guilt is a rather awesome thing: it costs tax
payers tremendous sums of money; it deprives the affected
individual of his most precious freedom and liberty; it
deprives him of the ability to support himself and his family,
it quite possibly costs him his job, it restricts his ability to
participate in his own defence, it subjects him to the
dehumanization of prison, it separates him from his family
and without trial it casts over him the aura of criminality and
guilt.

Pre-trial detention is rife in Nigeria as Amnesty International confirms

that 65% of detainees in Nigeria prisons have never been convicted of any
crime. 67 This situation was largely encouraged by the holding charge
phenomenon. Holding charge arises when the police present a suspect before
a Magistrate or Area Court for a criminal charge over which the judicial
officer has no jurisdiction, and the police obtain from that judicial officer, the
authority to remand the suspect even though there was no arraignment. The
practice of holding charge has been grossly abused as the Police uses it as an
alternative to thorough investigation. Niki Tobi (JCA, as he then was) in the
case of Onagoruwa v The State 68 observed in relation to the practice of
holding charge:
… in a good number of cases, the police in this country rush to court
on what they generally refer to as ‘holding charge’ ever before they conduct
investigation. Where investigation does not succeed in assembling the
relevant evidence to prosecute the accused to secure conviction, the best thing
to do is to throw in the towel.69
Unfortunately, in the practice of holding charge there is usually no
arraignment before a suspect is remanded in prison custody, since the court
which grants the remand order lacks the jurisdiction to try the matter. This
appears to be condoning laxity on the part of the prosecution. It is trite law
that jurisdiction is very fundamental in any proceeding in court whether
criminal or civil; yet this important concept is waived by S. 306 of the
Administration of Criminal Justice and Other Related Matters Law of Ogun
State 2017 which provides that a Magistrate could remand a person brought
before him if that person is suspected to have committed a capital offence.70

67
Amnesty International UK Op. Cit. n1.
68
Onagoruwa v The State [1993] 7 NWLR (Pt 303) 49.
69
Ibid at p. 10,7 par. E
70
ACJL Ogun State, s. 306.

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It is however incumbent on the prosecution to bring a suspect to trial within

a reasonable time by arraigning the suspect before a court of competent
jurisdiction so as to warrant detention. One of the reasons proffered for
holding charge or remand proceedings as it presently called, is the fact that
the legal advice of the Attorney-General may be required to commence
prosecution; so while the defendant is being remanded, his legal advice may
be prepared. This argument is not tenable because the Police Act empowers
the Police to prosecute criminal cases even without legal advice and up to the
Supreme Court.71 This position has been confirmed in the case of Federal
Republic of Nigeria v Osahon.72
The stance of the apex court on the issue of holding charge seems to
offer no relief. In the case of Johnson v. Lufadeju,73 the Court of Appeal, had
declared that the provision of section 236 (3) of the Criminal Procedure Law
which gives legislative impetus to Magistrates to remand suspects in prison
custody while awaiting a charge as unconstitutional. This position remained
until an appeal in the case of Lufadeju by the Attorney General of Lagos State
went to the Supreme Court. The Supreme Court laid to rest the issue of
holding charge.74 The court’s decision inter alia was that section 236 (3) of
the CPL of Lagos is not unconstitutional; it complements the provisions of
the Constitution and that it is designed to aid the administration of criminal
justice in the country. The court also held that a remand is usually not for an
indefinite time, but where a remand is too long a suspect can approach the
High Court to review the remand order of the Magistrate. Recognizing the
debilitating effect of holding charge but insisting on its relevance, the
practice has been re-enacted in the ACJA with some modifications. section
293 of the ACJA allows an application for remand order to be made ex parte
while section 294 provides that the Magistrate is empowered to make the
remand order having satisfied himself that there is good cause to grant
same.75 In addition, and contrary to what was obtainable, section 295 of the
ACJA empowers the Magistrate to grant bail with respect to a holding
charge.76 Again, section 296 provides a maximum period of 56 days within

71
Police Force (Establishment) Act, 2020 s. 66.
72
(2006) 4 MJSC 1. Although the new ACJA in its s. 106 insists on legal practitioner, it
may be concluded that a legal practitioner in the employment of the Police Force is
eligible to prosecute albeit subject to the powers of the Attorney-General.
73
Johnson v Lufadeju [2002] 8 NWLR (Pt 768) 192.
74
Lufadeju & Anor v Johnson [2007] 8 NWLR (Pt 1037) 535.
75
ACJA ss.293 and 294.
76
Ibid s.295.

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which a defendant may be remanded pending the filing of a proper charge.77

If by the end of the time frame stipulated the charge is yet to be filed, the
Magistrate is left with no option but to discharge the suspect.78

3. Plea Bargaining
As stated earlier, a plea of not guilty is considered to mean that the
defendant puts himself to the trial. Accordingly, trial commences.
Considering the length of time in pre-trial as stated above and the expense
thereof, plea bargain has been introduced by the ACJA. This innovation
creates an option for the Police who have over the years relied almost
absolutely on obtaining confessional statements from suspects in order to
secure a conviction but unfortunately, they only succeeded in achieving the
very opposite. The nature of the plea bargain introduced by the ACJA is such
that it may be heard before trial79 or during the trial but before the defendant
opens his defence.80
The ACJA further provides the pre-condition to entering into a plea
bargain where trial has commenced which includes: where the evidence of
the prosecution is insufficient to prove the offence beyond reasonable doubt;
where the defendant is willing to make restitution to the victim or his
representative; and where the defendant has fully cooperated with the
prosecution in obtaining evidence for the prosecution of other offenders.81 In
the same vein, the prosecutor and defendant or his legal practitioner may,
before the plea of the defendant is taken, enter into an agreement as to the
terms of the plea bargain and a proportionate sentence to be imposed.82 The
effect or advantages of plea bargain includes speedy disposal of cases,
obtaining pieces of evidence which would otherwise have been impossible to
obtain, amongst others. This will go a long way in assisting the investigator
in unraveling criminal organizations and specifically in this context, avoid
torture and inadmissible confessional statements.

4. Bail
The segment of this paper on the sub-heading is limited to bail in capital
offences. Over the years under the CPA and CPC, the courts in the execution

77
Ibid s. 296.
78
Ibid s. 296 (6).
79
Ibid s. 270 (4).
80
Ibid s. 270 (2).
81
Ibid s. 270 (2) (a) – (c).
82
Ibid, s. 270 (4) (a) & (b)

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of their judicial powers had made repeated pronouncements as to the

‘exceptional circumstances’ where a defendant charged with a capital offence
may be admitted to bail. The circumstances include ill health and long delay
in prosecution.83 Consequently, where a defendant fails to prove that he is so
ill as to warrant medical treatment outside the prison walls, he would be
unable to get an order admitting him to bail. This was the position of the
Supreme Court in the case of Abacha v The State.84 Although this continued
to be the attitude of the courts in an application for bail, it may be said that
the rule stating the exceptional circumstance where bail may be granted in a
trial for capital offence was mainly a creation of the court. The innovation in
this regard by the ACJA, therefore, was that the above position is now
codified.85
The controversy as to whether women could stand as sureties in a bail
application has also been laid to rest by the ACJA. Section 167(3) of the Act
provides that ‘no person shall be denied, prevented or restricted from entering
into any recognition or standing as surety for any defendant or application on
the ground only that the person is a woman’.86 It is therefore clear that the
criminal procedure does not discriminate between a man and a woman in this
respect. Women can stand as sureties. This will enable suspects or defendants
to be able to fulfil their bail conditions more easily. In order to further aid
defendants who find it difficult for various reasons to fulfil their bail
conditions, the ACJA provides for the registration of bondspersons. The
Chief Judge of the High Court can make regulation for the registration and
licensing of corporate bodies or persons to act as bondspersons within the
jurisdiction of the court where they are registered. 87 Such person can
thereafter engage in bail bond services within that jurisdiction thereby aiding
in the decongestion of prisons with regard to persons already granted bail but
could not fulfil the conditions.

5. Sentencing and Punishments

Previously, under the provisions of the CPA and CPC, the contemplated
punishments for offences upon conviction were restricted to imprisonment,

83
Abacha v The State [2002] 5 NWLR (Pt. 761) 638; Bamaiyi v The State [2001] 8
NWLR (Pt 715) p. 270.
84
Ibid
85
ACJA 2015, s. 161 (2) (a) – (b).
86
Ibid s. 167(3).
87
Ibid, s. 187(1)

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fines, caning, 88 haddi lashing 89 and death sentence. 90 The horizon of the
criminal justice in terms of punishment has now been expanded by the ACJA
to include probation, suspended sentence, compensation for loss occasioned
by the victim, the cost of prosecution and community service.91 It is worthy
of mention here that section 452 of the ACJA now removes the procedure for
trial of a child offender from the mainstream criminal procedure. The
procedure to be adopted thereby is the one provided by the Child’s Rights
Act 2003.92 All the new sentencing options are in line with the foregoing
theories which includes preventing the convict from committing the offence
in future; restraining the convict from committing more offences,
rehabilitating the convict, deterring the public from committing the offence,
educating the public as regards conducts that are acceptable, retribution, and
compensation for the victim of the offence.93 Furthermore, in pronouncing a
sentence, the court must take the factors contained in section 416 (2) into
consideration, which factors include but not limited to the merit of each case;
the principles requiring the reformation of a convict; restraint from passing
the maximum punishment on a first offender; the convict’s antecedents.94
In view of the increased option for punishing convicts, it is safe to say
that prison congestion would subside if these options are faithfully practiced.
In addition, the ACJA provides for the establishment of a central criminal
records registry by the Nigeria Police Force.95 In order to make this feasible,
there shall be established a criminal records registry at each State Police
Command. The State and Federal Capital Territory Police Command are to
ensure that decisions of the court in all criminal trials are transmitted to the
central criminal records registry within 30 days of the judgement. This is to
avoid the situation that came up in the trial of James Onanefe Ibori wherein
he argued that he was not the same James Onanefe Ibori that had been

88
CPA, s. 308 makes provision for the procedure for caning.
89
CPC, s.307.
90
CPA, s.366 provides that subject to the provision of any law stipulating a specific
punishment with respect to a crime upon conviction, the provisions shall apply to death
sentence, imprisonment, caning and fine. Sections 268, 269 and 270 of the CPA provide
for restitution of properties to the owners but this could not be the only punishment
imposed.
91
ACJL, s. 460 (2).
92
Child’s Right Act, 2003.
93
Ibid, s. 401.
94
Ibid, s. 416 (2).
95
Ibid, s. 16.

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convicted for a crime in another case and that it was a case of mistaken
identity.96

Challenges of Criminal Procedure in Nigeria

Indeed, the enactments of ACJA, Police Force (Establishment) Act and
Nigerian Correctional Service Act is a laudable development in the
administration of criminal justice and Criminal procedure in Nigeria. There
are, however, certain challenges that shall be encountered in their
implementation as well as certain defects still existing in the principal
enactment i.e. ACJA which need to be improved or ameliorated. It must be
noted that the CPA and CPC were in operation as principal enactments for
more than a century; this means that the stakeholders in the criminal justice
system have been used to the old way of doing things. It would therefore take
some time for everyone to adjust to the new law. Nevertheless, this change
of orientation needs not take an eternity. There should be consistent and
rigorous training on the ACJA for judges, magistrates, police officers, prison
officers, lawyers, Economic and Financial Crimes Commission (EFCC) and
Independent Corrupt Practices Commission (ICPC) officials, National Drug
Law Enforcement Agency (NDLEA) officials and every other stakeholder in
the criminal justice system.
Another main challenge that may militate against the effective
implementation of the ACJA is lack of adequate funds. A lot of things under
the Act presuppose that funds shall be available to the police, courts, office
of the AG and many others. For instance, the requirement that the statement
of suspects should be recorded electronically implies that the police and other
crime investigating authorities shall be provided with recording devices. The
courts must also be equipped with electronic and information technology
devices and those necessary to play the electronically recorded statement.
Government must therefore be willing and ready to provide sufficient funds
for the implementation of this Act. This is essential as it must allocate
resources to ensure that the rights of the Nigerian citizen are protected via an
effective implementation of the ACJA.
The creation of a criminal registry at each police command and a central
criminal registry also implies that there should be constant power supply and
internet service where this is to be done electronically. A manual or paper

96
See also Agbi v Ogbeh [2003] 15 NWLR (Pt 844) 493; Agbi v Ogbeh [2005] 8 NWLR
(Pt 926) 40.

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central registry will definitely be cumbersome, difficult to achieve, slow and

ineffective. Yet, there is epileptic power supply and the internet connection
is usually unstable, unreliable and expensive to procure. Many other
government agencies that have also switched to a central database like the
Federal Road Safety Corp (FRSC) and the Nigerian Immigration Service
(NIS) still face the challenge of slow or non-existent internet connection
thereby making transactions and applications in these agencies slow. The
nation cannot afford for a similar situation to plague the central criminal
registry.

Utilizing Science in Criminal Investigation in

Nigeria
Criminal investigation is an important part of the entire criminal justice
system, such that its absence may lead to delay in the administration of
justice, stalled trials, victimization of innocent citizens and encouraging the
escape of offenders from paying for their misdeeds.97 Although a defendant
can be convicted on the basis of one or a combination of the three methods
established by the courts over the years, 98 it is desirable from a Nigerian
standpoint, that a more exhaustive process leading to convictions is
maintained. This is because although a defendant may be convicted solely on
his own confessional statement, for instance, it is desirable to have some
evidence outside the confession that would make it probable that the
confession was true.99 This is where the issue of forensic science comes into
play.100 By the provisions of the Evidence Act,101 when the Court has to form
an opinion upon a point of foreign law, customary law or custom, or of
science or art, or as to identity of handwriting or finger impressions, the
opinions upon that point of persons specially skilled in such foreign law,

97
Imosemi & Kupoluyi, ‘Ensuring an Effective Criminal Trial and Investigation by the
Nigeria Police Force: Challenges and Prospects,’ [2017] (5)(4) International Journal of
Innovative Legal & Political Studies, 21-28.
98
Cletus & Anor. v Nigerian Navy (2019) LPELR-49355 CA.
99
Dinie v The State [2007] 9 NWLR PT 1038; See also Nwaebonyi v The State [1994] 5
NWLR PT 343 at 130.
100
Mohammed Amali and Noose Nwafor-Orizu, ‘Need for Forensic Science in the
Criminal Investigation Process in Nigeria’
https://ir.nilds.gov.ng/bitstream/handle/123456789/410/NEED%20FOR%20FORENS
IC%20SCIENCE%20IN%20THE%20CRIMINAL.pdf?sequence=1 p. 185 accessed
January 31, 2022.
101
Section 68(1).

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customary law or custom, or science or art, or in questions as to identity of

handwriting or finger impressions are admissible.102
Forensic analysis is vital to criminal investigation because a person
cannot be at the scene of a crime without leaving something behind, and
cannot leave the scene of a crime without taking something with them.103
Knowledge of forensic tools and services provides the investigator with the
ability to recognize and seize evidence opportunities that would not
otherwise be possible. Forensic analysis takes many forms namely physical
matching, fingerprint matching, hair and fibre analysis, ballistic analysis,
blood splatter analysis, DNA analysis, forensic pathology, chemical analysis,
and forensic anthropology.104 Other forms are forensic entomology, forensic
odontology, forensic engineering, criminal profiling, geographic profiling,
forensic data analysis, and forensic document analysis.
Various types of physical evidence are found at almost every crime
scene, and they are the sorts of evidence that can assist an investigator by
directing them to develop a sense of how the crime was committed. Tool
marks where a door was forced open can indicate a point of entry, shoe prints
can show a path of travel, and bloodstains can indicate an area where conflict
occurred. Each of these pieces of physical evidence is a valuable exhibit
capable of providing general information about spatial relationships between
objects, people, and events. In addition, the application of forensic
examination and analysis could turn any of these exhibits into a potential
means of solving the crime. DNA analysis is another form of science that is
very vital to criminal investigators. It plays a large role in advanced societies
in convicting the guilty and exonerating those wrongly accused or
convicted.105 DNA evidence is a powerful tool because, with the exception
of identical twins, no two people have the same DNA.106

Comparsion with Prospects and challenges of

Criminal Justice Procedure in China
Compared with the Criminal Procedure Law adopted in 1979, solely
using non-adversarial or inquisitorial controls, 1996 CPL appears to be a

102
Okafor v Effiong [2017] LPELR-42699 (CA).
103
Petherick, W A Forensic Criminology (Elsevier Academic Press, 2010).
104
Mohammed Amali Op. Cit. p. 186.
105
‘Understanding DNA Evidence: A Guide for victim service providers’ <https://
www.ncjrs.gov/pdffiles/nij/bc000657.pdf> accessed January 31, 2022.
106
Ibid.

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milestone to China’s reform on procedural systems partly because of

establishing the adversarial approach to criminal justice. This seems to be a
major change on the legal tradition and procedural system of the inquisitorial
mode in criminal trial, though retaining non-adversarial elements to be
further reformed, in such aspects as an imbalanced structure among the three
parties, lacking rights guarantee of the accused without an equal role and so
on. Since the shift of an adversarial approach is mainly featured with
dependence on the accused and its relationship with other parties in trial, the
rights to the accused in criminal litigation could be a key focus of
comprehensive attention on the use of non-adversarial controls in the present
legislation of Chinese criminal procedure.107
The CPL 1996 has improved procedural rights of the accused,
especially those facing the death penalty, on the basis of the relevant
provisions in the Criminal Procedure Law of the PRC in 1979. These rights
could be divided into three categories in light of their nature and function on
the designed structure and expected balance among the three parties in
criminal procedures. The first and foremost is a series of rights concerning
the defense or legal aid, which is used for the defending party to oppose the
accusing one, explicitly including but not limited to the rights to appearance
and cross-examination of witnesses at the core of fair trial and criminal
justice. The second is the right to request that a judicial body examine, change
or withdraw disadvantageous acts, decisions or judgments of another body,
such as that to appeal, to present a petition, to demand withdrawals,108 to
apply for reconsideration and to file charges against judges,109 procurators
and investigators.110 The third relates to the principles of equality before the
law, 111 no conviction without a PC’s sentence according to law, 112 and a
public, independent and fair trial. Despite the possibility of being helpful to
prevent miscarriages of criminal justice to a certain degree, the improvements
seem to be limited in the sense of non-adversarial elements remained and

107
Jiang Na, ‘China’s Long March towards the Adversarial System: Establishment and
Development’ (2014) 2 (4) Intel Prop Rights 2: 123 p. 4 doi:10.4172/2375-
4516.1000123 https://www.walshmedicalmedia.com/open-access/chinas-long-march-
towards-the-adversarial-system-establishment-and-development-ipr.1000123.pdf
accessed January 25 2022.
108
Criminal Procedure Law 1996 art 28.
109
Ibid, art 30.
110
Ibid, art 14.
111
Ibid, art 6.
112
Ibid, art 12.

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adversarial controls used in form, potentially detrimental to the legislative

intentions of rights guarantee and procedural balance.

Significant shortcomings in all procedures

The CPL 1996 provides for a system of legal aid in the process of
criminal cases.113 But this system is limited to the trial of cases only, rather
than all of the stages of criminal proceedings, and compulsorily applicable to
such several categories as those facing the death penalty, the blind, deaf or
mute, minor defendants, without any entrusted lawyer. This is likely to
undermine the protection of the interests of criminal suspects or defendants
and even lead to unfair trials and misjudged cases. Moreover, there still
remain some limitations to the relevant provisions, which seems to denigrate
the practice of the right to a defence and even remove the balance between
both parties of the accused and prosecution in several primary aspects.
Firstly, there is the intervening time between when the investigation begins
and when the lawyer starts.114 During this time the advisors cannot provide
the legal service in preparing the criminal defence. The criminal suspects
have to defend themselves at that stage.
Secondly, defence lawyers cannot read judicial documents or technical
testimonials until the PP’s examination for prosecution, neither can other
defenders read these documents without permission of the PP (People’s
Procuratorate). Accordingly, they appear not to obtain the main evidence
materials, but only opinions recommending prosecution and testimonials
considered important to defence. Meanwhile, the lawyers can collect the
factual material concerning the alleged crimes, as other defenders can with
the permission of the PC (People’s Court). However, the problem is that there
is no explicit provision in the laws or judicial interpretations concerned, to
clearly specify what constitutes this material. This appears to prevent them
from reading all the materials which might be necessary for them to have a
good preparation of defence in trial of the case.
The third limitation is on required conditions for the investigation to
obtain evidence. With the consent of witnesses and other units or individuals
concerned, defence lawyers may obtain information from them, which
inevitably means that some witnesses may refuse. This tends to go against
the duty to testify of ‘those who have information about a case’ pursuant to

113
Ibid, art 34.
114
Jiang Na Op Cit p. 3

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CPL 1996 Article 48.115 Additionally, it is the case with the difficulties for
defence lawyers in collecting information from the victim, their relatives, and
witnesses provided by the victim. This lies in the fact that both their consent
and the permission of the PP or PC are prerequisites. Without specific
applicable conditions, the PP or PC seems arbitrarily to permit or refuse the
defence lawyers’ application for investigation to obtain evidence or inform
witnesses about giving testimony in court. These also appear to remove the
balance between the accused and the PP.

Remained problems in alternative procedures

In the procedure for second instance, as one of alternative procedures
conditionally applicable to all criminal cases, the hearing approach directly
influences the quality of second-instance sentences. CPL 1996 Article 187
provides for the public hearing as the primary approach and the written
examination and interrogation as the secondary. Specifically, ‘the people’s
court of second instance shall form a collegial panel and open a court session
to hear the case of appeal. Where the collegial panel believes that the facts of
the crime are clear after consulting case files, interrogating and questioning
the parties, defenders and agents’ ad litem, it may decide not to open a court
session. With respect to a case against which a protest is lodged by the
people’s procuratorate, the people’s court of second instance shall open a
court session to hear the case’. The public hearing appears to favour
correcting misjudged cases more than the written examination, whereas the
above combination of both approaches tends not to fully ensure the right of
the accused to cross-examination or to a public hearing. The procedure for
review of death sentences is a special system, contributing to a fair trial in
hearing capital cases, but CPL 1996 Articles 199 to 202 do not mention its
specific content, approach or term, in explicitly addressing details, and thus
leave much room for application of various approaches to the procedure.
As Interpretation of the SPC on Some issues in Enforcement of the CPL
1996 stipulates that the HPCs (Higher People’s Courts) review death
sentences with a suspension of execution by means of reviewing files without
a public hearing, both the SPC and HPCs tend to review death sentences
written by law or regulation. While this approach tends to improve efficiency,
and saves both time and resources in reviewing death sentences, the

115
CPL art 48.

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defending party is unlikely to participate in the process or argue his or her

own opinions. Inevitably in cases where there is no arraignment, there is little
or no chance of the defendants exposing other criminal suspects or crimes
before the court, or no legal bases for changing original sentences.
Moreover, the procedure of trial supervision, used for correction of all
misjudged criminal cases, has limitations on the conditions for its initiation.
The PCs that initiate this procedure are likely not to provide a fair and
impartial trial for criminal judgments, but to lead to more miscarriages of
justice. As a requirement for the initiation, there must be definite errors in the
judgments. However, what amounts to such errors is unclear as there are no
explicit provisions setting this out, consequently leaving much room for the
PCs or PPs to randomly decide whether to initiate the procedure or not.116
Moreover, the legal process of examination by the PCs or PPs appears to be
another obstacle to the defending party’s successful start of the retrial
procedure by appeals. It tends to be difficult for this party under
disadvantaged circumstances to effectively exercise such legal rights and
properly start this procedure for correction of wrongful convictions.

Development of the Adversarial System

Despite no clear articulation of the presumption of innocence, the CPL
1996 amendment take a positive step to clearly place the burden of proving
defendants’ guilty on the prosecutor as a principle. Amended Article 48
provides that ‘the onus of proof that a defendant is guilty shall be on the
public prosecutor in a public prosecution case’, but with an exception
unspecified and open to a broad interpretation. Also, amended Article 35
removes the word ‘proving’ from the responsibility of the defender, whereas
a new change on such wording maybe limited in its practical impact, without
expression of presumed innocence or the right to silence. Furthermore, a new
procedure allowing courts to call investigators to explain the legality of
evidence (amended Article 56), to call on prosecutors to provide evidence of
the legality of evidence (amended Article 55), and to require a witness
statement to be examined and verified in court before it can serve as the basis
for deciding a case (amended Article 59), is intended to safeguard the right
of a defendant and his or her lawyers to apply to the court for excluding
evidence illegally gathered as they allege, in amended Article 56.

116
Jiang Na Op. Cit p. 4.

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Criminal Justice Procedure in Canada

Judges make decisions based on evidence presented by the parties.
While they can ask questions of a witness during a hearing, the judge is not
permitted to descend into the fray and take on the role of counsel. The
Canadian justice system is based mainly on the British adversarial system.117
The Criminal Code, which includes infractions that could be subject to
criminal prosecution, is a competence of the Parliament of Canada who alone
can legislate. Law enforcement is under provincial jurisdiction; each of the
10 provinces has its own legal system. The Canadian system also follows the
principles of Common Law. One of the fundamental principles of the
Canadian system is the presumption of innocence. The accused is always
presumed innocent until proven guilty and the burden of proof lies with the
Crown prosecutor who must prove beyond all reasonable doubt that the
accused has committed the crime (actus reus) and had criminal intent (mens
rea).
A lawyer may choose to present a defence, but he can also seek to raise
a reasonable doubt about the evidence. In most trials it is the judge who
decides whether the accused is guilty, but anyone accused of an offense
punishable by a prison term of 5 years or more (e.g., murder, robbery, etc.)
can exercise their right to be tried by a jury of 12 people. 118 In this case, the
jurors assess the evidence and the judge acts as legal advisor and explains the
rules of law. In all cases, the sentencing is up to the judge who is guided by
a number of principles (proportionality, harmonization and individualization
of sentences and also moderation). The Criminal Code provides maximal
penalties for each offense but they are rarely, if ever, imposed. 119 The
Criminal Code also provides mandatory minimum sentences for a number of
offenses. For offenses for which there is no mandatory sentence, judges are
free to choose the type of sentence they wish to impose (imprisonment,
conditional sentence, probation, fines, etc.,) provided they do not exceed the

117
Coughlan Stephen, ‘The “Adversary System”: Rhetoric or Reality?(1993) Canadian
journal of law and society, 8(2), 139–170.p.
142 doi:10.1017/s0829320100003203 https://sci-
hub.hkvisa.net/10.1017/s0829320100003203 accessed January 25, 2022.
118
Leclerc Charles and Jean-Francois Boivin, ‘Trends in the criminal justice system in
Canada (2014)’, In Lowes D. & Das D. ‘Trends in the Judiciary: interviews with judges
from Around the World’ (volume 2), Taylor & Francis Group London: CRC Press
pp.281-295.
119
Gerry Ferguson, ‘A Review of the Principles and Purposes of Sentencing in Sections
718-718.21 of the Criminal Code’ (2016) Department of Justice Canada
https://www.justice.gc.ca/eng/rp-pr/jr/rppss-eodpa/RSD_2016-eng.pdf accessed
January 25, 2022.

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maximum allowed. In reality most criminal cases are settled by a guilty plea
from the defendant. It is estimated that in nearly 90 % of cases there is no
trial because the accused pleads guilty.120 In most of these cases, the two
parties present a single penalty recommendation to the judge. The judge's
role is then to determine if the accused is un-coerced to plead guilty and if
the proposed recommendation is reasonable. Judges are guided in their
decision by judgments from the Appeal Court: they can only reject an
agreement if it is ‘unreasonable’, ‘against the public interest’ or if it ’would
bring the administration of justice into disrepute’. In the vast majority of
cases, judges endorse the recommendation of the lawyers.

Conclusion
The enactment of the ACJA is indeed the greatest revolution in the
Nigerian Criminal Justice Procedure and the list of areas of reform in the
criminal justice procedure is in no way exhaustive. There are still many more
problems that are not enumerated. What is however certain is that the general
consequence of these problems has been a non-performing criminal justice
procedure system leading to a denial of justice either to the defendant or the
victim. These new legislations particularly the ACJA replaces the extant ones
which existed for over a century. A critical examination of the provisions of
the ACJA reveals that on the whole it seeks to ensure a criminal justice
system which respects the dignity of accused persons, pursues restorative and
not only retributive justice and speedy dispensation of criminal cases. The
Act is however not free from challenges in its implementation as well as some
non-laudable provisions. While analyzing the mischief the ACJA has cured,
this paper has highlighted these challenges and suggested solutions to same.
Despite its defects, the ACJA is a landmark development in the Nigerian
Criminal Justice Procedure and all States of the Federation are therefore
enjoined to enact it in their jurisdiction.

120
Verdun-Jones and Adamira Tijerino, ‘Four Models of Victim Involvement during Plea
Negotiations: Bridging the Gap between Legal Reforms and Current Legal Practice’
(2004) 46 Canadian Journal of Criminology pp. 471-500 DOI:10.3138/cjccj.46.4.471
https://www.researchgate.net/publication/264041606_Four_Models_of_Victim_Invol
vement_during_Plea_Negotiations_Bridging_the_Gap_between_Legal_Reforms_and
Current_Legal_Practice accessed January 25, 2022.

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Recommendations
Even though there is a new dimension to Holden Charge following the
enactment of the ACJA, and the ACJL in the states, which permits the Police
and other Security Agencies to obtain court orders to detain criminal suspects
for a limited period. Probably, there is nothing illegal in the new practice, but
the challenge, to my mind, remains in the abuse of such powers, or impunity
in its exercise. Related to that challenge is the incompetence or recklessness
of some judicial workers who fail to exercise their powers judicially and
judiciously in granting such detention orders. They should be able to balance
the competing interests before granting applications, and especially by
protecting the human rights of citizens against clear cases of abuse.
One important lesson Nigeria can take from the inquisitorial system of
the People’s Republic of China is the procedure of second instance whereby
all cases where the People’s Court imposed a death penalty are automatically
sent to the Supreme People’s Court by way of appeal whether or not the
convict appeal against the judgment for review. This will ensure that justice
is better served in such cases in Nigeria since some of those convicts are
indigent who could not even afford an appeal of the decision of High Court
to the Court of Appeal not to mention the decision of the Court of Appeal to
the Supreme Court. Such costs are to be borne by the state.
ACJA and her counterparts in Nigeria have repositioned the CJP in
Nigeria with novel and lofty provisions that seems more like utopia, but they
are not utopia or cosmetic provisions if Governments at all levels in Nigeria
provide funds for the implementation of those provisions and establishment
of monitoring institutions or committees of the performance of the law in
Nigeria. A lot also need to be done on public awareness, for the citizens to
be aware of the new possibilities in the new law on one hand, and public
institutions on the other hand on the need to ensure the Act and her
counterparts achieved the desired overall objective of speedy dispensation of
justice as justice delayed is justice denied.

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“In the criminal law [...]

imprisonment should be
resorted to only after the
most anxious
consideration.”

Pius Langa

312