PRE-EMPTIVE HUMAN RIGHTS ENFORCEMENT APPLICATIONS: A MERE SHENANIGAN TO FRUSTRATE THE CRIMINAL JUSTICE PROCESS?


​The hub of this discussion is to appraise the criminal justice system vis-à-vis the enforcement of human rights in the course of criminal proceedings.It is needless to say that the Constitution of the Federal Republic of Nigeria, 1999 robustly provides for the fundamental rights of citizens and this is in consonance with the provisions of other international instruments which extol the need for citizens to enjoy their rights undisturbed, as it affects their wellbeing. This is commendable as it behooves a democratic system. However, what is of major concern are the Human Rights provisions which are invoked during criminal proceedings to ensure that citizens are not flagrantly reduced to nothingness without recourse to their rights even as accused persons. Of concern in this regard are provisions such as sections 35 and 36 of the Constitution of Nigeria, 1999. While section 35 protects citizens’ rights to personal liberty,section 36 enjoins state authorities to afford to an accused person the right to fair hearing during court proceedings.

Over the years, it has not escaped the right of the observant that the dichotomy that exists between the rich and the poor extends to the enforcement of human rights particularly when and how these rights are enforced. It has always been the lot of the common man to be stripped of his rights especially during criminal proceedings. For instance, during the course of arrest, detention, investigation and prosecution, the men of straw are subjected to manhandling, different sorts of violation of their constitutionally guaranteed rights including the right to bail, egress from detention bars and so on.In the light of the fact that low-profile citizens of the country are barely in the know of their rights, coupled with their inability to employ the services oflegal practitioners to defend their rights, they cannot keep a stiff upper lip and choose discretion as the better part of valour. On the other hand, top profile personalities in recent times, not to mention the far past, have appeared to be quick on the uptake in legal issues. In the face of serious criminal charges, they remain unruffled because they have the machinery of the law at their beck and call. They activate the process of the law speedily to stall the administration of justice and or even jeopardize the entire proceedings. Arrests detentions and prosecutions have been stayed effortlessly by these eminent persons who seek several injunctive reliefs in their favour. The reliefs they seek offer them a longer rope to perambulate in the face of serious punishable offences, as opposed to citizens of no means.   

Of more serious concern is the act of preempting the violation of fundamental rights of these top profile persons by the law enforcement agents. They have been cases of these persons seeking injunctions to restrain law enforcement agencies from instituting arrests, investigations and or even prosecutions on account of it violating their rights. One will be forced to wonder what rights are being violated as their actions at best appear to be a deviation from the exercise of common sense. Rather shamefully, the courts have been generous in granting them these reliefs which ostensibly jettison the administration of justice and frustrate the   machinery of the law against them.  Injunction had been granted, for instance, to Peter Odili, former Rivers State Governor, restraining the Economic and Financial Crimes Commission (EFCC) from conducting any arrest investigation or prosecution in his regard. The court gave him the leeway by way of a perpetual injunction to escape criminal prosecution. These actions have so far incited the public to vent criticisms on the judiciary as a whole. It is platitudinous therefore to hear members of the public say that lawyers, top-profile personalities and even the Nigerian courts are all together in the web of the unlawful acts; this is appalling! The precarious position now is that we cannot even say that the courts are totally exempt from these sordid acts.

Consequently, the afore-explained actions lead us to a number of issues necessary to be deliberated upon:   

Does an arrest, investigation and or prosecution generally violate the rights of accused persons and at what point can an application for the enforcement of human rights be said to be a proper response to an impending arrest, investigation and or prosecution?

Foremost, it will be unhealthy to hastily conclude that an arrest, investigation and or prosecution generally violate the rights of an accused person. It is lawful to institute an arrest when there is reasonable suspicion of the commission of a crime by an individual. The power of arrest is recognised in section 20 of the Police Act, 2004. Thus, it amounts to no violation of the rights of a person if an arrest is done in the right procedure. Ancillary to an arrest is investigation and prosecution when inexcusable. When the law enforcement body laid down rules under the Police Act and the Criminal Procedure Act, it suffices no violation of the right of an accused. A police officer who conducts an arrest and detains an accused must ensure adherence tothe abundant provisions of section 35 of the Constitution of Nigeria, 1999 which guaranteeliberty personal and stipulate the permissible period for which a suspect can be detained. More often than not, this right has not been given considerable thought. Some detainees spend up to a month without being charged to court or even being duly notified of their rights and in addition, they are manhandled. Some are arrested and taken to ‘Mobile Courts’ particularly on minor offences and embossed with guilt, without giving the accused persons the right to defend themselves. This is in gross violation of section 36 of the Constitution of Nigeria, 1999. This appears to disregard the rights of the accused which are constitutionally provides for.

An arrest, investigation and or prosecution do not constitute a violation of the rights of an accused person and to hold otherwise will be an unfair affront on the powers of arrests and investigations conducted by the law enforcement agencies in the country.

On the second limb of the issue, the proper point for an application for the enforcement of human rights as a response to an impending arrest, investigation or prosecution logically appears to be when there is a violation of such rights or to stretch it a little, when there are reasonable grounds to believe that such rights are being violated. As a point for discussion, proper understanding of the issue forces one to conclude safely that there cannot be an “application” for the “enforcement” of a right which is not being or has not been infringed upon. One can only apply to enforce a right that can reasonably be said to have been infringed. It is (rather illogical to pre-empt such in the eyes of an objective bystander) any accusation levelled against them and the corollary acts of arrest and investigation as violations of their rights. Many of these persons have cried wolf of their innocence yet they have refused to submit totally to judicial determination of their purported innocence, rather, they meteorically jump the gun, seek injunctions to restrain further investigations and motions for prosecution, with a view to escaping it altogether. If it is not an injunction, then it is an issue of jurisdiction to stay indicting investigations and consequently jeopardize the entire proceedings. What is the ratiocination behind the perpetual injunction granted to a former governor, for instance? Why does the court appear to be blind to the ruse employed by these persons? Are the courts hands in glove with these persons in their shady escapades? These are the questions that have been put forward by members of the public who have refused to stomach such outcries.

An application for the enforcement of a right only makes sense when such rights in question need to be enforced. A right should be violated before the court is called upon to enforce such rights. The judiciary must be careful not to inveigle itself. This business of trifling but far-reaching applications do not augur well with the general public for two reasons: firstly, it is suggestive that the judiciary cannot be said to be independent enough to allow justice take its course; secondly, it evinces that the rich can wrap the entire judicial process around their fingers and   get it over with. A society that attends to such construable suggestions from the actions of the rich in preempting violations and attacking it with support from the courts cannot repose so much confidence in the judiciary. Thus, it is of immense importance that such actions should be curbed.

Another issue that is open to deliberation is the question of whether there is any connection between enforcement of human rights and criminal processes carried out in apparent regularity with legally prescribed procedures? 

The proper answer to the above issue would seem to be in the affirmative. This is essentially because when criminal processes are carried out, In line with the accused persons’ constitutional human rights, there is an apparent connection.  However, it cannot be taken for granted that all criminal trials must be in line with the accused person’s fundamental rights. 

In the light of the above, a common ground has to be reached. Hence, if in the course of a criminal trial or investigation, there is a reason for an accused person to be detained beyond the constitutionally guaranteed 48 Hours? in apparent violation of section 35(4) of the Constitution of Nigeria, 1999, the prudent thing for the law enforcement agencies to do would be for them to secure permission from a court of competent jurisdiction and that way, their action would be within the bounds of the law.

Also if an accused feels that his investigation, and trial is being done inconsistently with the provisions of the law, he may also do well to secure a court order impressing it on the law enforcement agency to carry out his trial in line with provisions of the law. The problem however is the fact that there is so much imbalance on the response to such actions to secure court orders as it now depends on the pedestal of the person; the rich easily seek these court orders to enforce their rights while, on the other hand, the poor find it difficult to seek such orders. This, is would appear to the objective bystander, to be the result of their inability to throw Sob to Cerberus; where it is necessary, denies them of such opportunities.

 An ancillary issue that stems up from the above is whether an accused  person should be concerned, whether real or perceived that their constitutional safeguards in Criminal trials were not being protected by the trial judge, where would the proper  forum for seeking the protection of the rights being violated? Should it be before the trial court or another court of coordinate jurisdiction or a matter to be raised on appeal?

There is always a real or perceived danger, whether borne out of current realities or sheer mischief by the accused persons that their fundamental rights are being violated by the law enforcement agencies and subsequently, not being protected by the trial judge. Due to deceptive human nature, such feelings might be waived at first. However, on a  deeper look, there might actually be real substance in such claims. While it is important for us to waive frivolous and mischievous feelings and suspicions as regards the violation of fundamental rights, we must not also treat with levity, such real possibilities of human rights violations in the course of criminal trials.

Hence, where the accused feels that his rights are being violated, the ideal thing to do would be to seek the protection of the courts. Where and when this protection is to be sought is a question of the accused person’s feelings and instincts. For instance, in the course of the ongoing trial of the leader of the indigenous people of Biafra, Nnamdi Kanu, he openly expressed doubts as to the credibility of the presiding trial judge and the judge rightly stepped down from the case for another judge to continue the trial.

So, the accused person, it would appear to an ordinary   man of reasonable prudence, is free to strive for the enforcement of his fundamental rights at any point and any court where he chooses. However, in his quest to ensure the enforcement of his rights and in the courts’ quest to ensure that an accused person’s fundamental rights are not violated, the proper things for the court to do would be to direct the law enforcement agencies to carry out the trial, in line with constitutionally guaranteed safeguards, and so for the presiding judge or any other court of the accused person’s choice, as the case may be, to ensure that under his watch, the rights of an accused person standing trial are upheld.

However, under no circumstances should an accused person’s trial be truncated??   On the ground of fears of fundamental rights violations. At best, the trial judge or any other judge should use his good offices to ensure the enforcement of these rights and not to truncate the trial. Evidently, it is bleeding obvious that law is yet to transform into social order. The need to sacrifice the law together with laid down procedures, on the altar of personally perceived violations of one’s fundamental rights should be curbed especially by the courts which give room for such inurbane conducts. 

In conclusion and in pursuance of the sacrosanct nature of the constitution, fundamental rights of citizens must be preserved by all means. The law enforcement agencies must always bear this in mind. However this should never be a yardstick for staying court proceedings and thwarting the efforts of those designated to administer justice. It is indeed an unpalatable sign to the society, hence the more serious need to allow a smooth running of the criminal justice system clearly devoid of disruptions; a need to consider and espouse public policy, to keep to the law in the course of preserving the rights of anyone called in question, high or low profile, notwithstanding. 

Mr. Possible 

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