SEQUEL TO PART ONE AND TWO.
5. Right to Defend Himself Personally or by Legal Practitioner of Choice
Most persons do not even know that they have a constitutional right to defend themselves personally, in any civil or criminal matter. Section 36(6)(c) of the Constitution entitles an accused person to defend himself in person or by legal practitioners of his own choice. This means that the defendant could elect to be his own lawyer throughout the trial. In more developed societies in the west, private persons represent themselves. However, representing oneself entails a good and working knowledge of the law which most Nigerians are lacking. Of course, in a society as ours one would usually prefer the professionalism, dexterity and expertise of a trial lawyer thus an accused also has the right to retain Counsel. That is, a right to be represented by a lawyer. It is noteworthy that the if an accused hires a foreign lawyer, the lawyer will be subject to the requirements for practicing in Nigeria and immigration rules. See Awolowo v. Federal Minister of Internal Affairs (1962) L.L.R. 177. Also, where an accused has no money to hire a lawyer, the government shall provide a lawyer for him under the Legal Aid Act.
6. Right to Cross Examine Prosecution Witness
An accused has a right by paragraph (d) of subsection (6) of section 36 of the Constitution to cross-examine all the witnesses called by the prosecution to give evidence against the accused. Cross-examination entails questioning the prosecution witness(es) on statements made by them under oath with the aim of discrediting him, by making him incapable of believe and thereby strengthening the case of the defence. The accused also has a right to call and examine in chief his own witness(es). In Sule Koya Fulani v. Mohammed Mani Rafawa & Ors (2013) AELR 1544 (CA) the Court of Appeal held that:
• “Without doubt, one of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a trial is the right of a party to cross-examine the witnesses presented by his adversary.
There are copious provisions in sections 214 (2),215 (1) & (2), 216, 217, 219 and 223 of the Evidence Act 2011 dealing with the right of cross-examination of witnesses. In Independent National Electoral Commission v. Ifeanyi (2010) 1 NWLR (pt 1174) 98, the Court of Appeal stated: “The defendant or respondent, as the case may be, is at liberty, after the plaintiff or petitioner has called his witnesses who gave evidence-in-chief… to cross-examine the witnesses by putting many questions as are material to his own case and to test whether or not the witnesses are speaking the truth. Indeed, the respondent could even be “cross” with the witnesses under cross-examination as the name implies.” The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross- examined and also to afford the cross- examining party the opportunity of stating or presenting his case through the witness of the opponent.”
7. Right to an Interpreter
Section 36(6)(e) also inheres in a defendant or accused a right to have an interpreter, free of charge, where the defendant does not understand the language used in the court. The Court of Appeal in Umaru Sunday v. Federal Republic of Nigeria (2013) AELR 1340 (CA) stated that Inherent in the requirement of a valid arraignment is Section 36(6)(e) of the Constitution of the Federal Republic of Nigeria which makes it mandatory in all criminal trials that an accused who is standing trial for an offence who does not understand the language of the court shall be entitled to have, without payment, the assistance of an interpreter. See Segun Ogunsanya vs. The State (2011) 12 NWLR (PART 1261) 401.
8. Right to Dignity of Human Person and Freedom from Torture
It is settled law that an accused person is presumed innocent until proven guilty. This necessarily means that notwithstanding the fact that a criminal charge hangs over his head, an accused person is entitled to the dignity of his person. Thus, under no circumstance is an accused person to be subjected to torture or any other form of inhuman or degrading treatment. Section 34(1) therefore provides that every individual is entitled to respect for the dignity of his person, and accordingly – (a) no person shall be subject to torture or to inhuman or degrading treatment; (b) no person shall he held in slavery or servitude. Clearly, no law enforcement personnel or agency has the right to torture any accused person, whether he is in detention or not. Even more, even if the accused person is eventually convicted of the criminal offence by a court of competent jurisdiction, he is still entitled to the right to dignity of his person and freedom from torture or inhuman treatment of any kind. In Peter Nemi v. A.G. Lagos State (1996) 6 NWLR (Pt. 452) 42 where the rights of prisoners on death row, to humane treatment, was brought before the court. The Court of Appeal held that prisoners have enforceable rights as citizens and suggested that prolonged incarceration of convicted prisoners on death row could constitute breach of their right to dignified and humane treatment and therefore upheld the rights of a condemned prisoner on death row to seek redress against inhuman treatment.
9. Right to Remain Silent
Section 35(2) of the Constitution provides that “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.” An accused person is therefore under no obligation to talk unless and until he communicates with his lawyer or any other person if his choice.
10. Right to Bail in Appropriate Cases
A person who has been accused of a criminal offence, arrested and charged for same is constitutionally entitled to bail in appropriate circumstances. Section 158 of the ACJA provides that “When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this Part, be entitled to bail.” The Administration of Criminal Justice Act further provides in section 161 that:
(1) A suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a Judge of the High Court, under exceptional circumstances.
(2) For the purpose of exercise of discretion in subsection (1) of this section, “exceptional circumstance” include:
(a) ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government hospital;
(b) extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or
(c) any other circumstances that the Judge may, in the particular facts of the case, consider exceptional.
Section 162 also provides that “a defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the court, be released on bail except in any of the following circumstances:
(a) where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;
(b) attempt to evade his trial;
(c) attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;
(d) attempt to conceal or destroy evidence;
(e) prejudice the proper investigation of the offence; or
(f) undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.”
Section 163 on its part states that “In any other circumstance other than those referred to in sections 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court sees reasons to the contrary. See also sections 164 and 165 of the ACJA 2015; see Part 19 of the ACJA generally and section 35(4) & (7) of the Constitution.
It is clear from the foregoing, that notwithstanding that a person is accused of a criminal offence, the Constitution still recognizes and accrues certain rights to him. It is therefore an actionable wrong and may be fatal to the criminal prosecution for the Police or any other law enforcement agency to purport to, or to actually infringe on any of these rights. The Police and other law enforcement agencies must therefore perform their duties within permissible limits of the law.