LEGAL REPRESENTATION IN CRIMINAL TRIAL IN NIGERIA
The effectiveness of access to justice is for a person who has been accused of committing a crime to have access to a legal representative to advice and defend him starting from the point he was arrested.
The philosophical basis of the right to counsel was articulated by Samuel Dash, when he said:
Without the assistance of counsel, the defendant is practically powerless to challenge the prosecution. It is the lesson of human experience that even in the case of the most well-intentioned prosecutors, the absence of such a challenge can result in carelessness and failure to review the evidence and properly prepare the case, which makes it easier to convict the innocent.
The importance of the assistance of counsel to an accused person was also underscored by David Fellman in the following words:
Without the assistance of counsel, most persons accused of crimes are not likely to have an adequate defence. A defendant needs a lawyer as urgently as a sick man needs a doctor, and in many instances, more urgently, for while nature often heals the sick without outside aid, it seems to have little concern for the plight of the accused.
The right to access to a lawyer is guaranteed during detention, interrogation, preliminary investigations, trial and appeal.
Section 6 (2) provides that the police officer or the person making the arrest or the police officer in charge of a police station shall inform the suspect of his 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 choice before making, endorsing or writing any statement or answering any question put to him after arrest; and Free legal representation by the Legal Aid Council of Nigeria where applicable.
Section 17 (1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement. Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.
In all capital offences, legal representation is mandatory. Under the ACJA, the Trial will not be rendered a nullity if the accused is afforded a legal practitioner by the Court and he turns down the offer. However, the Court will warn the accused of the implications of his action. An accused person unrepresented by counsel in non-capital offences should be informed of his right to legal representation. He is also entitled to an adjournment where his counsel is unavailable.
Section 349 (1) Where a defendant charged before the court is not represented by a legal practitioner, the court shall inform him of his rights to a legal practitioner of his choice; and enquire from him, whether he wishes to engage his own legal practitioner, or a legal practitioner engaged for him by way of legal aid.
Section 349 (4) provides that where the defendant fails, or is unable to secure a legal practitioner arranged by him after a reasonable time, the Court may direct that a legal practitioner arranged by way of legal aid to represent the defendant.
In furtherance of the need to grant access to justice to defendants, the ACJA made provision for instances a legal practitioner can represent a defendant without paying service or filing fees. Section 349 (5) is to the effect that the Court may assign to any legal practitioner whose place of practice is within the jurisdiction of the court, any case of a defendant who has no legal representation, and the legal practitioner shall undertake the defence of the defendant with all due diligence, in which case, the legal practitioner shall not pay any filing fee or service fee in respect of the case so assigned.
However, section 349 (6) stipulates that where the defendant chooses to represent himself, the court shall inform him of all his rights under the Constitution of the Federal Republic of Nigeria, 1999 and under this Act; and indicate the fact of having so informed the defendant on the record, but a defendant charged with a capital offence or an offence punishable with life imprisonment shall not be allowed to represent and defend himself.
The exception to the right to a defence counsel includes:
- Where the Counsel is under a legal disability or the right is in abeyance e.g. the Counsel is disqualified from practicing or has not paid his practicing fees or that the Counsel is from a foreign jurisdiction and has not fulfilled the immigration requirements to be allowed to appear in Nigerian Courts. Section 8(1). Legal Practitioners Act.