Criminal Law, Criminal Justice Administration, Procedural Law, Fair Hearing, Correctional Centres, Trial in Absentia, ACJA, Bail.
Trial in Absentia: A Panacea to the Problem of Overcrowding and Its Attendant Consequences at Correctional Centres in Nigeria.
Upper Customary Court Judge, Kaduna State Judiciary, Nigeria.
It was recently reported[2] that the Federal Government is spending over N22billion in 2023 to feed the 75,507[3] prisoners in its 244 overcrowded custodial centres across the nation. Indisputably, this sum, which constitutes a large chunk of the Federal Ministry of Interior’s budget, could be put to other uses such as the reformation of inmates. Another significant but disturbing fact revealed in the report is that Awaiting Trial Inmates (ATI) constitute 70% of the centres' population. This paper explores the innovative procedure of the trial of an accused person in absentia as one of the viable solutions to the myriad of problems bedevilling the Nigerian Custodial Centres in particular and the administration of criminal justice in general. It is unarguable that adherence to this innovative provision of the Administration of Criminal Justice Act, 2015 (ACJA)[4] will occasion a impressionable reduction in the number of inmates at the custodial centres by more half. This will ensure that the centres are populated by only those who need to be there[5] and funds resultantly freed by their release will be utilized by the Nigeria Correctional Service (NCS) to meet its other objectives[6] , especially its non-custodial services.[7]
One of the innovative features in the ACJA is the provision for the continuation of the trial of an accused and his conviction in absentia.[8] His presence is mandatory only when he is to be sentenced.[9] Of course, his plea must have been taken and he has been released on bail. It is inferable that if the verdict in the case is a discharge and or acquittal, his presence might not even be required.[10] It is noteworthy that bail is available to all accused persons.[11] In fact, under certain circumstances, even a person accused of committing an offence punishable with death may be granted bail.[12] The following are the statutory exceptions to a Court’s refusal to release on bail a person alleged to have committed an offence which attracts imprisonment for a term in excess of 3 years:[13]
There is reasonable ground to believe that the defendant will commit another offence if released on bail. The operative words here are “reasonable ground”. There has to be presented to the court sufficient justification to warrant the denial of bail to the accused.
The likelihood that the accused will attempt to evade his trial. This condition is apparently overshadowed as the Court is now empowered to continue the trial of the accused in his absence.
That the accused will attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case. This requires some degree of proof, too, if the prosecution hopes to succeed in persuading the Court to deny bail to the accused. Mere stating that the accused will do the acts will not be sufficient.
That the accused will attempt to conceal or destroy evidence. The prosecution will also be required to provide some prima facie evidence to ground their objection to bail being granted to the accused upon this ground. One of such reasons could be a previous attempt by the accused to conceal or destroy evidence prior to his arrest and arraignment.
That the accused will prejudice the proper investigation of the offence. Just as in point (4), there has to be evidence that the accused had attempted to do so or an evidence to convince the court of the accused person’s likelihood to do so.
That the accused will undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system. This is an omnibus provision which shows the inexhaustive nature of the foregoing exceptions. It gives the prosecution the leverage to raise other circumstances apart from the foregoing with which to attempt to persuade the Court to deny bail to the accused.
Another exception to an accused being released on bail is when the alleged offence is a capital offence which is not bailable as of right. However, an accused may still plead with the Court to exercise its discretion to grant bail.[14] Notably, all Courts below the High Court do not have jurisdiction over these offences.
The foregoing buttresses the fact that in the administration of criminal justice, all possible steps are to be taken to keep all ATI out of correctional centres until their matter ends with a term of imprisonment where that is the desirable, suitable and only imposable sentence. The power of the State Controller of Correctional Service to reject intake of prisoners when a correctional facility has exceeded its maximum capacity[15] is a veritable tool that could be invoked to remind other stakeholders in the administration of criminal justice to duly perform their functions in accordance with the law.
Apparently, the law favours the release of an accused on bail to face his trial than in his being remanded, especially before a conviction and a sentence of imprisonment. The law equally places a burden on the prosecution to persuade the Court not to release the accused on bail. This is commendable as it will ensure that a person’s right to freedom is not whimsically denied when he is entitled to be released on bail, an act in sync with the presumption of innocence in his favour and the purpose of the procedural law.[16]
It is indisputable that participation in a hearing is a fundamental right of a defendant. However, the continuation of his trial in absentia will not infringe on this right as provision has been made for his participation but he opted not to take advantage of it. In John v State,[17] the Court cited the decision of the Supreme Court in Newswatch Communications Ltd v Atta[18] where it was held that:
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing...A trial Judge can indulge a party in the judicial process for sometime but not for all times.
Trial in absentia will definitely achieve this purpose as the accused is at liberty to determine his lot in the case against him.
The trial of accused persons in absentia is also a way of guaranteeing their right to the presumption of innocence. Their being gainfully engaged during the pendency of their trial will be of more value to them accused and the society than keeping them behind bars and catering for them with scarce resources which could be better utilized in meeting the other needs of Correctional Centres.
It is indisputable that the trial of accused persons in their absence is a commendable provision in tune with global trend in the administration of criminal justice. The magnitude of the impact on the efficacy and efficiency of service delivery at Correctional Centres, in the aftermath of compliance with this procedure, will be significant. Therefore, as a way of reducing the cost of prosecution which necessarily includes the welfare of ATIs, they could be left to their fate while their trial continues. When their presence is required at judgment stage, it will cost less to execute the warrant for their arrest if they fail to appear after being notified of the date of decision. It is hoped that all stakeholders will endeavour to comply with all the provisions of the procedural law in order to ensure and enhance the administration of criminal justice
Endnotes
Upper Customary Court, Gwantu, Kaduna State, Nigeria. Email: samailaemmanuelj@gmail.com
“FG to spend N22.44bn on Feeding prison inmates” https://barristerng.com/fg-to-spendn22-44bn-on-feeding-prison-inmates/
It is noteworthy that this number fluctuates daily as fresh persons are remanded by the Courts weekly. A collation of data to ascertain the average number of accused persons remanded each week will give a more realistic figure.
ACJA 2015
The section provides that “sentencing to a term of imprisonment shall apply only to those offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail.” See ACJA 2015 s416(2)(k); ACJL 2017 s423(2)(k) and similar provision in other States’ ACJLs.
NCS Act, 2019, s2 7
ibid. s38
ACJA 2015, s352(4); ACJL of Kaduna State 2017 (as amended) s363(4)
ibid. 352(5); ACJL 2017 (as amended), s363(5)
Section 352(5) provides that, “The Court shall impose a sentence only when the defendant is arrested or surrenders to the custody of the court.” If the verdict is not a conviction and there will be no sentence to be imposed, it appears that the presence of the accused is not mandatory during judgment delivery.
ACJA 2015, s158
ibid. s161
ACJL 2017 s175
ACJA s161
NCS Act s12(8)
ACJA 2015 s1; ACJL 2017 s4
(2015) LPELR-40424 (CA)
(2006) 4 S.C. (PT 11) 114, (2006) 12 NWLR (PT 993) 144
Originally published by HW Emmanuel J. Samaila on Linkedin
Oyemaja Law.