Our laws are not what they ought to be. Aside that, our decadence, stagnation and retrogression are so deep, so much so that our courts, the sole responsibility of which is implementing these laws, without fear or favor, affection or ill-will, scarcely mind administering them even as they are. Express provisions of the law are, consequently, brazenly ignored, with resort being made to what they call ‘prevailing conventions and practice’, which, in truth, is nothing but whims and caprices.
One can therefore safely maintain that with our legal system nothing is right. And this is the beginning and the end of such discussions. There is nothing further. One may, however, take a particular point, a particular aspect, in this rotten system of adjudication, depending on the demand of the moment, and highlight, draw attention to, and condemn that particular point and aspect vis-à-vis its negative impact, the injustice, the uncertainty and the arbitrariness it gives rise to.
Delay is one of the constant features of our legal system. It is, one may say, what pushes many away from our courts, turning to them only as a last resort, when all other alternatives have been explored and tried, or that there are simply no such alternatives. To put up with the system, one will inevitably suffer disappointment and exasperation, sapped energy resulting into insipidity. And at the end of it all, one will realize that nothing is worth anything. And the ‘victory’, if any comes at all, is nothing but Pyrrhic.
The decision to forgo one’s rights, however, is, generally speaking, only available in civil cases, cases that do not involve the commission of criminal offence. Where a commission of crime is involved, one cannot but suffer and put up with the system with all its deficiencies, arbitrariness and total disregard to anything just. And as our criminal justice system has no place for the victim of the offence, it is the persons suspected of having committed the offence that turned round to become the victims of the system. And nowhere is this phenomenon manifested more than the ‘awaiting trial syndrome’. This is a heartless, brutal and inhuman process whereby a person alleged to have committed a crime is held in prison, without being taken to the appropriate court that can determine their innocence or guilt. Those falling into this abyss are in most cases suspected with the commission of murder, robbery or rape. It is not uncommon to see a person in this category spending several years in jail, hoping for trial, with the state, through the ministry of justice, unwilling to prosecute them and, at the same time, unwilling to let them go. Few things, if any, can be more unjust than this.
This nagging problem persists not because the relevant laws are defective or inadequate. As a matter of fact, the situation has been well taken care of by no less an authority than the Constitution itself, supplemented by the provisions of the Criminal Procedure Code, the code that laid down the process of criminal trials from arrest of a suspect to the passing of judgment. The code is the one applicable in the nineteen northern states.
To begin with the Constitution, the Supreme Law of the land, its provision, under section 34, says that a person arrested or detained, in relation to any allegation of having committed a crime, must be taken to a court that can determine their case ‘within a reasonable time’. And the constitution does not leave the expression ‘reasonable time’ vague, but goes ahead and delineates it as a period that will in no circumstance exceed three months.
The Criminal Procedure Code (CPC in short), mandates the police, under section 129, to take a person arrested, on suspicion of having committed an offence, to the appropriate court for their case to be heard and determined. And that, according to the section, should be done within forty-eight hours. Where, however, investigation into the case has not, or cannot be, completed within the timeframe given, the section provides that a judicial intervention be sought. The police are obligated to obtain a court’s permission to hold such a person, for good and cogent reasons, longer than the stipulated forty-eight hours. And the court itself, the section further lays down, cannot grant this permission to the police for a period that exceeds fifteen days. In case the police are unable to conclude investigation at the end of those fifteen days, the court is empowered to take over from there by committing the suspect to prison custody, and even that only where the court is satisfied that there is indeed a need for further inquiry into the allegation hinged upon the detained suspect. We are not yet done with section 129. We will turn back to it later.
For several years, allegations of rape, in particular child rape, have been recurrent in Kano. The media, the electronic ones especially, relentlessly inundate the society with the issue, regardless of the negative effects that it would have on the social psyche as well as its propensity to trigger up weather effects. An opportunity is hence presented to those looking for one: the NGOs, the CSOs and the rest. Pressure was mounted upon the courts and the State House of Assembly. The latter had to, in 2014, amend the Penal Code by making fourteen years the minimum punishment for the offence, in addition to the N200, 000.00 (Two Hundred Thousand Naira) the accused person, upon conviction, would pay to the victim.
There is nothing wrong for a legislature to amend any law. The tragedy, however, is when the courts are by circumstances forced to circumvent the law. And this exactly is the situation now in Kano. Allegations of rape are treated as conclusive, with the accused persons being presumed guilty, dumped into the gaol with no opportunity or chance for them to ‘prove their innocence’. The Constitution and every known principle of law, as well as all the precepts for justice, are consequently turned on their heads.
Sometimes last year, a group of lawyers, the Platform for Justice, to which I belong, wrote a memorandum, after a thorough research comprising numerous case studies, showcasing the dangers and anomalies brought about by this trend. The memorandum, initially intended to be submitted to the Chief Judge of Kano State, points it out that the unwritten policy of presuming persons alleged to have committed rape guilty, and treating them as such, has opened a Pandora’s Box. It has opened a window of opportunities for bribery and corruption to thrive as the accused and their relatives would rather have the case ‘settled’ with the police than letting it go to the court. Besides, the trend can be, and is in fact being, utilized in settling personal scores as all that one needs to do to have someone else imprisoned, with no prospects of coming out in any foreseeable future, is to accuse that person of having committed rape. We encounter this among the cases we reviewed.
The group, however, dropped the idea of submitting any memo as later findings made it apparent that the policy is deliberate, the anomalies and the dangers are known and the solutions are there but will simply not be applied. Sending the memo, the group realized, would not serve any purpose as the solution we sought to provide had already been provided under the same section 129 of the CPC, to which reference has been made earlier. The section provides that a person detained by the court for the police’s inability to conclude investigation within fifteen days, can only be so detained for a period not exceeding ninety days.
The above provision could have ended it all. But that was not to be. Certainly not under a legal system which, to borrow from Philip Slater, an American sociologist, in his The Well of Loneliness: American Culture at the Breaking Point, ‘has a class bias’. ‘While a poor man may get several years for a hundred-dollar holdup’, he further wrote, ‘a rich man will seldom get more than a few months for stealing a hundred thousand’. ‘(Most judges and law enforcement officials)’, he continued, ‘seem to argue that the rich and the powerful are punished enough by losing their jobs and being publicly humiliated, whereas the poor is humiliated already; they have nothing to lose. A month or two in jail for a rich man, even if he has stolen millions, betrayed the public trust, and caused the death of innocent (people), is viewed as cruel and unusual punishment’. If this could be said of the functional American legal system, responsible American judges and dutiful American law enforcement agents, much worse deserve to be said of their Nigerian counterparts.
And that is just the truth. A visit to our prisons will make this reality dawn upon you. The trend we are complaining about is itself allowed to go unchecked and unaddressed because almost all the victims, that is the objects of the allegations, are poor, abjectly poor. And in most instances the allegations are frivolous and spurious. Consequently, the convictions secured, in cases that manage to go to the appropriate court, are dismally disproportionate to the number of allegations made.
And the now discharged and acquitted person will just go with no remedy offered him for all the months and years he spent languishing in prison. While amending the law, the Kano State House of Assembly bothered not to take that into consideration. And why should they? They are politicians. They tilt to where the popular opinion tilts, regardless of its merit or lack of it.
What is more surprising, disheartening even, is that the Kano State Ministry of Justice is the major culprit in this whole mess. This is because it is the ministry’s responsibility to take the suspects to the appropriate court, the State High Court in this case, after examining the police investigation and forming an opinion that a reasonable case, presentable to the court, has been disclosed against the suspect.
The police may be evil; as a matter of fact it is. But in this endemic problem of indefinitely keeping people that are constitutionally presumed to be innocent languishing in prison, the whole blame falls on the ministry, regrettably a body of lawyers purposely employed to promote the cause of justice. Perhaps they know it not that our sense of justice and fairness is better assessed and appreciated not by the way we treat the law-abiding and the upright but by the way we treat the deviants and the miscreants.
As at now, with the way things are going, justice will just remain an illusion. A mere mirage that seems to be there while in fact it is not.