Confessional statement under the nigerian law
By Francis Ogunbowale Esq
The word ‘confession’ in Greek called ‘homologeo’, or in Hebrew called ‘yadhah’ or in latin called ‘confessio’ means to agree, admit, acknowledge or make known an ‘avera’ (i.e., sin) which is damaging to oneself. It is a statement in which the person alleged to have made the statement admits unequivocally in the statement that he or she committed the offence he is charged with. It is a statement by an accused person charged for committing a crime to another, where he admitted or acknowledged his guilt and stated the circumstances.
It is an admission of guilt made to another by a person charged with a crime stating or suggesting that he actually committed the crime at the police station during investigation. It is an acknowledgement of guilt which gives details about the crime upon which the suspect has been charged.
From the above, we can safely conclude that ‘confession’ is an acknowledgment or avowal of sin or an admission of guilt of an offence which is damaging and made by a person charged with a crime, to another, who may be a police officer or someone who is authorized to obtain a statement from a suspect.
Under the Police Act, the police have the power to investigate crime and make arrest. The police even have the power to prosecute minor offences in Magistrate courts. Confessional statement is said to be the best evidence. It is assumed that no one will tell lies against himself and confess to a crime which will be damaging to himself. The law is that the court will act on it, if it is satisfied that the alleged confession is free, voluntary, direct, positive and consistent with the other ascertained facts that have been proved.
Because of the fact that confession is regarded as the best evidence, the police usually go extra mile, using all sorts of unconventional means, to extract confession forcefully or clandestinely, from a suspect, who in law is presumed to be innocent until proved guilty, through extra judicial and corporal means.
In Jide Adelaja V The State, the suspect while showing to court the injury he sustained from the police, testified that ‘…when I was taken to the State Criminal Investigation Department (SCID), I was tortured, I was tied to a pillar, my trouser and dress were removed, they were beating me with cutlass and stick. I had cutlass wound on my arm (he showed the court the wound…’
Similarly, in Samson Fakoya Vs The State, Appellant recounted his ordeal at the State Criminal Investigating Department (SCID), as follows:
…they brought me out after three days to obtain my statement…the police were about 5 or 6…then a police man came with an iron and stick and started beating me with it, then they also plugged iron and started using it on me. All these happened with my hands and legs tied. After tying my hands and legs, a heavy iron metal was put between my hand and my leg and they started burning me with the iron already plugged as well as with the hot iron…’.
Not only this, in Adeneye Oluwarotimi Vs The State, the accused person in his own testimony informed the court that he was staked to a pole, tortured with a cutlass and blood started coming out from his forehead and was forced to thumb print an already prepared statement.
In an attempt to desperately secure conviction for armed robbery, what we now find is that the police usually introduce ‘screw driver’ or ‘bottle’, apparently because they are not difficult to procure, unlike cutlass or gun, and force the accused person to confess to wielding it, to justify the requirement that there was indeed an ‘armed’ robbery.
It should be noted that a mere ‘screw driver’, not ‘metal screw driver’ or ‘bottle’ not being beer or coke bottle, may not qualify to be a ‘weapon’ or an ammunition, capable of causing injury to man. His is because there are screw drivers used for children’s toys and bottles made of rubber or plastic or clay or other tender materials.
Although the court is under an obligation to look at other facts before it, before relying on an alleged confessional statement or conduct ‘trial within trial’ where the suspect alleges police brutality, to ascertain whether the alleged statement is voluntary, this procedure has not been adjudged to be full proof of uncertainties.
The procedure of ‘trial within trial’ is not only time wasting, it overstretches the already over stretched courts, to conduct and preside over another full blown proceeding within the main trial, taking testimonies from both sides, taking oral or written addresses and writing Ruling. Not only this, it doesn’t also allow the suspect and the prosecution to be at par. The suspects who are usually in prison custody for years before trial and have been abandoned by their families because of the stigma, end up testifying for themselves in the impromptu trials, while the prosecution who have fully prepared the Investigating Police Officer (IPO), testify without any precision.
Not only this, the lawyer who is conducting the defence may not also have all the time and capacity for two rigorous trials within one main trial. If all these are considered, then it would be seen that there must be a desperate desire to look outward and check how the problem has been addressed in other jurisdictions.
There is no society that can strive without justice, fair play and due observance of the rule of law. Therefore, there is need for a law reform to address the seeming intimidation and harassment of the police during investigation and the consequent manipulated confession, upon which the court may be asked to convict and sentence an innocent suspect.
Such attempt was made in the Administration of Criminal Justice Law of Lagos State 2011 (ACJL) which provides that before an alleged confession can be admitted, the court must ensure that video recording of the suspect who allegedly made the confession must be tendered and in the absence of that, prosecution must prove that the legal practitioner of the accused person was present during the confession.
There is no doubt that if the above provision of the Lagos State law has been allowed to endure, it would have ameliorated the fears that a suspect may suffer injustice based on the statement not made at all or made as a result of some inhuman degradation.
What truncated the gains that would have been realized from the Lagos State law is the Administration of Criminal Justice Act, (ACJA). It completely whittled down the requirement of video recording or in the alternative, the presence of a legal practitioner, when the accused is making a confession. While the Lagos State law used the word ‘shall’, the federal legislation used the word ‘may’. The implication of this is that while under the Lagos State law, it is mandatory to observe the provision requiring video recording or alternatively the presence of the legal practitioner of the accused, such requirement is discretionary under the federal law.
Unfortunately, the law is that if any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.
Although in the case of Nwakuche Jerry Nnajiofor V Federal Republic of Nigeria (2018) LPELR-43925, the court of appeal displayed a rare judicial activism by defining the word ‘may’ in the Administration of Criminal Justice Act (ACJA) to read ‘shall’ and held that the Economic & Financial Crime Commission (EFCC) was bound to carry out the duty imposed on it by law, the law remains that where a state law is in conflict with the federal law, the federal law endures.
The result of this conflict and the supremacy of the Administration of Criminal Justice Act (ACJA) is that the police now retain their liberty to use unconventional methods to elicit evidence, instead of conducting rigorous investigation according to best practices and world standard. It has also heightened the neglect of the executive to provide modern investigative tools to conduct finger print, DNA and ballistic analysis of crime prevalent in contemporary criminal justice system, across the globe.
At the moment, the police, across board, cannot conduct any serious investigation, although the police command established some special squads such as DCP Abba Kyari’s Inspector General of Police (IGP) Intelligence Response Team (IRT) with the necessary tools to detect crime, the team cannot cover the over 22 million people that make up Nigeria. Lack of capacity and the necessary logistics, no doubt hampers the effectiveness of the police general.
Up till today, the police have not been able to resolve the mystery behind the killing of eminent Nigerians like the former Editor of Newswatch, Chief Dele Giwa; former Attorney General of the Federation, Chief Bola Ige, Odunayo Olagbaju, Eunice Olawale, John Otunba Payne, Mohammed Shuwa, Bisoye Tejuoso, former Editorial Board Chairman of This Day Newspapers, Mr Godwin Agbroko, assassinated on the 22nd of December 2006 at Daleko bridge, Iyana Isolo, Lagos; Former National Vice Chairman of the defunct All Nigerian Peoples Party and President Buhari’s Presidential Campaign Co-Ordinator, Mr Marshall Harry; Former PDP Gubernatorial candidate in Lagos State in 2006, Chief Funso Williams and Former gubernatorial candidate in Ogun State in 2007, Otunba Dipo Dina.
Although many authors have blamed this on the police structure and have called for state police, the point we are making here is that if there is an effective law reform, a front looking investigation policy or framework, coupled with a favourable enabling environment for the police to do their work, there will be more efficiency and good result in police investigation. This will bring a great relief for the courts. Once a criminal knows that he will eventually be caught he will rather not venture in the crime.
At the moment, unless a complainant is ready to fund his investigation, provide sizable mobilization to secure approval for the petition from the superior officers, obtain warrants, provide transportation to the place of arrest and so on, the case file may just remain and probably feast upon by rodents and cockroaches.
Francis Ogunbowale, a Lagos Lawyer, is Counsel in Glassy Gold Solicitors.
