OVERVIEW OF CRIMINAL PROCEDURE CODE IN NIGERIA
The Criminal Procedure Code (CPC) was enacted by the Northern Regional Government in 1963 as Cap 30, Laws of Northern Nigeria, 1963 to govern criminal proceedings in the Northern region of Nigeria, now consisting of the following states: Adamawa, Bauchi, Benue, Bornu, Gombe, Jigawa, Kaduna, Kano, Kastina, Kebbi, Kogi, Kwara, Nasarawa, Niger, Plateau, Sokoto, Taraba, Yobe and Zamfara. The provisions of the Criminal Procedure Code (CPC) have been re-enacted by the affected states as Criminal Procedure Code Laws of the Various States.
Chapter II of the code provides for the constitution of criminal courts; it outlined six classes of criminal courts in Northern Nigeria: the High Court, four classes of Magistrates‟ Courts, and “native courts established or deemed to have been established in Northern Nigeria under any law.” Chapter III, on the powers of criminal courts, specifies in great detail (in conjunction with Appendix A to the Code, a lengthy table) the different powers of the six classes of courts to try offences and to impose sentences of varying severity. Chapter XVII, on preliminary inquiry and commitment for trial to the high court, defines the “inquisitorial” powers of Magistrates‟ Courts. Chapter XVIII deals with TRIALS BY THE HIGH COURT. Chapter XXXIII deals with TRIALS IN NATIVE COURTS.
Although many details of the Criminal procedure Code differed from the Criminal Procedure Act of Nigeria the ‘(revolutionary)’ aspects of the Code were really confined to two main matters:
(a) The Code would apply to all High and magistrates’ courts, but only parts of it would bind native courts, who would be guided ” by the remainder of the Code, except for those parts which were specifically stated to apply to some other class of courts.
(b) The responsibility for drafting charges was removed from the police in cases brought before magistrates’ courts and native courts and was laid upon the court itself, which would draft a charge only after a prima facie case had been established by oral evidence.
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 right to access to a lawyer is guaranteed during detention, interrogation, preliminary investigations, trial and appeal.
Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner, the court shall assign a legal practitioner for his defence. In all capital offences, legal representation is mandatory.
The code only made provisions for legal representation for accused persons who are standing trial for offences punishable with death sentence. In any other case not having death sentence as penalty, the accused is meant to represent himself or hire the service of a lawyer. The code never took into consideration the financial status of the accused persons in the society to avail them free legal services as provided for in the Legal Aid Act.
A legal practitioner shall have the right to practise in the High Court or in a magistrate’s court in accordance with the provisions of the Legal Practitioners Act, 1962. Section 390 of the code provides that no legal practitioner shall be permitted to appear to act for or to assist any party before a native court. It is the submission of the researcher that this provision is inconsistent with the constitutional right of counsel as provided in Section 36 (6) (c) of the constitution.
An accused person is entitled to the constitutional right of adequate time and facilities for his defence. In respecting this right, the Court is to grant an adjournment to the accused in order to secure a Counsel or witnesses in support of his case. In a case involving a capital offence, the Court must grant the adjournment sought.
In providing adequate facilities for the defence, the accused is to be given copies of the Charge, Statements of the Witnesses and Proof of Evidence by the Prosecution. Where a witness is absent and an adjournment is sought, the accused must satisfy the Court that:
- The witness is material to his case.
- The accused has not been guilty of negligence in procuring the witnesses attendance
- There is reasonable expectation that he can procure the witness at the next adjourned date.
If an accused person does not understand the language of the Court, he is to be provided with an interpreter without cost. The interpreter must be competent in both languages. The interpreter must interpret whatever is said by the complainants, witnesses and the Court sentence by sentence.
The Court must ensure that the interpreter does not have any relationship with the parties or any other connection to the case. Where there is a failure to provide an interpreter, the proceedings will be declared void, the accused conviction will be quashed and a re-trial will be ordered. The accused is, however, to inform the Court timeously that an interpreter is needed otherwise he is deemed to have waived it.
An interpreter in any proceedings before the Court or Justice of Peace under the CPCL must be bound by oath or affirmation. An interpreter cannot be used where the accused person understands the language of the Court.
Where an accused is represented by counsel at trial, and the need for an interpreter is never raised, it cannot be a ground for setting a conviction aside. The issue of denial of the right to an interpreter can only be raised on appeal if it was claimed at the Court of trial and denied. An interpreter is available only on the request of the accused.
The criminal procedure code seems to have a human face in that whenever it appears to the court that a person who is so dangerously ill that and there is a possibility that he may not recover and he is able and willing to give evidence relating to any offence, the court may take in writing the statement of such person and may invite him to take an oath as to the truth of the statement.
When a statement is taken in, the court shall certify that the statement is a correct record of the statement made by such person. The court shall record its reason for proceeding under this section and shall also record thereon the date and place of taking the statement.
Furthermore, it is barefaced that the criminal procedure code in its quest to see that justice is done looks beyond the distance barrier of witnesses in any case. Section 245 of the code provides that whenever in the course of any judicial proceeding under this Criminal Procedure Code it appears to the court that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expose or inconvenience which in, the circumstance of the case would be unreasonable, such court may dispense with his attendance and may issue a commission to any court within the local limits of whose jurisdiction such witness resides to take his evidence.
The court issuing a commission under section 245 may send any interrogatories in writing submitted by the prosecution or the defence or prepared by itself which it deems relevant to the questions at issue to the court to which the commission is directed which shall examine the witness upon such interrogatories.
The prosecutor and the accused may appear in person or by counsel before the court taking evidence on commission and examine, cross-examine, as the case may be, such witness; Provided that where the court taking evidence on commission is a native court no counsel shall be entitled to appear.
A commission shall be addressed to a court and not personally to an officer of the court and, if the record or extracts from the record are not sent with the commission, sufficient information shall be given to enable the examining court to understand the points upon which the evidence of the witness is required.
This code recognises the need to stop arbitrary arrest and in order to discourage such act; the persons that put the law in motion unnecessarily will incur financial liability or jail term not exceeding three months in default of such payment.
Section 166 (1) of the Code states that if, in any case instituted by complaint as defined in the Criminal Procedure Code or upon information given to a member of a police force or a court and heard under the chapter, the court discharges or acquits the accused and is satisfied that the accusation against him was frivolous or vexatious, the court may in its discretion by its order of discharge or acquittal direct the complainant or informant to pay to the accused, or to each of the accused when there are more than one, such compensation not exceeding twenty-five pounds to each such accusation as the court thinks fit and may award a term of imprisonment not exceeding three months in the aggregate in default of payment, and the provisions of sections 74 and 75 of the Penal Code shall apply as if such compensation were a fine.
The right to bail is one of those constitutional rights that inure an accused person under our criminal law. Bail although a constitutional right is only temporary, conditional and discretionary and can only be granted if the Applicant shows why such discretion should be exercised in his favour.
Section 341 (1) Persons accused of an offence punishable with death shall not be released on bail. (2) Persons accused of an offence punishable with imprisonment for a term exceeding three years shall not ordinarily be released on bail; nevertheless the court may upon application release on bail a person accused as aforesaid if it considers – (a) that by reason of the granting of bail the proper investigation of the offence would not be prejudiced; and (b) that no serious risk of the accused escaping from justice would be occasioned; and (c) that no grounds exist for believing that the accused, if released, would commit an offence. (3) Notwithstanding anything contained in subsections (1) and (2), if it appears to the court that there are not reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiry, such person may, pending such inquiry, be released on bail.
By judicial interpretation of the provisions of section 341(2) and 342 of the criminal procedure code, it appears settled law that when a judge is considering whether to release an applicant on bail pending trial, the following are paramount- viz:- (a) the nature of the charge; (b) the evidence by which it is supported; (b) the sentence which by law may be passed in the event of a conviction; (d) the probability that the accused will appear to take his trial. This section leaves the issue of bail at the discretion of the trial judge. This discretion must be exercised judicially and judiciously as it is a part of law of equity.
The right of bail, a constitutional right, is contractual in nature. The contractual nature of bail is provided for in section 345 of the criminal Procedure Code. The section provides that before any person is released under section 340, 341 or 342 he shall execute a bond for such sum of money as the officer in charge of the police station or the court thinks sufficient on condition that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court and if he is released on bail the sureties shall execute the same or another bond or other bonds containing conditions to the same effect.
The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bailability of the accused depends largely on the weight the court attaches to one or several of the criteria open to it in any given case.
The determination of the criteria is quite important becaus4e the liberty of the individual stands or falls by the decision of the court. The duty is on the judge entertaining such an allegation for bail to ensure that the applicant’s continued detention is well supported and justified by evidence disclosed in the proof of evidence.