SECTION 396 OF ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015: A LEGISLATIVE WISHFUL THINKING?
The Administration of Criminal Justice Act (ACJA) was promulgated on 13th May, 2015. Before then, the Lagos State House of Assembly had promulgated the Administration of Criminal Justice Law (ACJL) on 8th August, 2011. Without
acknowledging the ACJL, the ACJA substantially copied the provisions of the ACJL. One is always tempted to classify what the National Assembly did as ‘legislative plagiarism’, but we continue to live in pretence as if all is well with the promulgation of the said Act; contending, as it were, that the Federal Act covers the field.
One of the sections copied from the ACJL, 2011 and incorporated into the ACJA, 2015 is Section 396. The subsections that call for attention in this discourse are subsections (3), (4), (5), (6) and (7) of Section 396. For ease of reference, the said subsections read thus:
(3) Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial.
(4) Where day-to-day trial is impracticable after arraignment, no party shall be entitled to more than five adjournments from arraignment to final judgment provided that the interval between each adjournment shall not exceed 14 working days.
(5) Where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournments each, the interval between one adjournment to another shall not exceed seven days inclusive of weekends.
(6) In all circumstances, the court may award reasonable costs in order to discourage frivolous adjournments.
(7) Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time:
Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.
WHAT IS LAW?
Before embarking on any further critique of the exposition of these subsections, it is apt to state that law should not be treated or defined in abstract terms; law cannot operate from within a void; law should be treated as a vessel that has its own life, soul and spirit; it is both physical and spiritual.
Over the ages, philosophers have postulated many theories of law, and I have stated somewhere else that there seem to be as many definitions of law as there are schools of jurisprudence. To Thomas Aquinas, a leading light of the Natural Law School, law is “nothing else than an ordinance of reason for the common good, made by him who has care of the community”. To the Positivist School of Thought, law is law, whether good or bad, moral or immoral. According to John Austin, “every law simply and strictly so called, is set directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein the person or body is sovereign or supreme.” 3 In the view of H.L.A Hart, “while a command backed by a sanction can explain our “being obliged” to do something, it can never “put us under an obligation to do it.” 4 Hart’s concept of law is based on the idea that wherever there is law, human conduct is made in some sense non-optional or obligatory; he thus makes distinction between a command and an obligation to do something, slightly disagreeing with the summary of John Austin’s theory to the effect that “law is the command of the uncommanded commander.”
To the Realist School of Jurisprudence, headed by Roscoe Pound, “the main function of law is that of social engineering.”
IS SECTION 396 OF THE ACJA A COMMAND?
For the purpose of this discourse and considering the limit of same, it is apt to restrict our definition of law within the confines of the Natural Law School, the Positivist theory and the social engineering ideology. Let us agree for a moment that Section 396 of the ACJA is a command, but is there an obligation to obey it? Even if there is an obligation to obey it, can it be obeyed or complied without any infraction? Let us also bear in mind that the sanction is directed to three sets of people, that is, the defendant, the Judge or Judex and remotely, counsel appearing in the matter; “the command” inherent or latent is targeted at the court or Judex for he is the one before whom a plea is taken, leading to arraignment; he is the one who is being commanded to conduct trial on day to day basis; he is the officer who is also directed by law not to allow for more than five adjournments, from arraignment to final judgment, and who should not grant an adjournment exceeding seven days, including weekends, between one adjournment to another; he is the one that is being mandated to award cost in criminal proceedings, even against the prosecutor, and he is also the one who is being dictated to come back to deal with any part-heard criminal matter, as a trial Judge, even after elevation to the Court of Appeal. Assuming, the matter is still not
completed as at the time he is a Justice of the Court of Appeal, and he is further elevated to Supreme Court, he should come back to the High Court and sit as trial Judge!
LAWYERS AND THE LAW
It is rather unfortunate that in our clime today, the legal profession is no longer what it used to be in the recent past- dynamic, brilliant, resourceful, research-oriented, forward looking, objective, sober and reflective. Nowadays, lawyers cherry pick their critiques of judgments, legislations, actions and inactions of government, depending on where their personal interests lie. Interpretation or defence of human rights or abuse of same by counsel is subject to the overriding interests at stake at any particular occasion, rather than a robust defence of human rights abuses on a wholesome scale, notwithstanding the parties involved.
WHAT DOES THE CONSTITUTION SAY?
Now, Section 4(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the Constitution) provides that:
“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or
by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunal established by the law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the Jurisdiction of the court of law or of a judicial tribunal established by law.”
SECTION 396 INFRINGES THE CONSTITUTION
Against the clear mandate of the afore-quoted constitutional provision, it is clear that Section 396 of the ACJA constitutes an unnecessary infraction on judicial authority. The courts are now subjected to the dictates of the National Assembly, and like the biblical Pontius Pilate, to always say that their hands are tied by the command of
the said section. Clinically considered, subsection (4) dictates the number of adjournments a Judge of a superior court of record shall grant – not more than five; the section also directs a Judge not to grant an adjournment that exceeds seven days, including weekends. Unequivocally, this is a legislative judgment on its own. Subsections (4) and (5) are, undoubtedly impracticable, if not impossible to comply with. In the celebrated case of Unongo v Aku, the Supreme Court declared Sections 129(3) and 140(2) of the Electoral Act, 1982 ultra vires, null and void on the
grounds, amongst others, that the said provisions constitute an unjustifiable interference with the judicial functions of the courts and in breach of the entrenched doctrine of separation of powers in the Constitution. The court further held that the exercise of judicial functions and the organization of judicial actions, except in so far as the constitution has made provisions on them, must be left to the court; and that the period necessary to complete hearings in a case, having regard to the nature of that case, the preparations and research necessary before judgment is given, are all matters within judicial control with which the legislature cannot and ought not to interfere. It is submitted that the legislation which the Supreme Court nullified in the Unongo v Aku case supra was/is not as stringent or dictatorial as the provisions of Section 396 of the ACJA. Yet, a good number of lawyers continue to celebrate the ACJA, particularly Section 396 and other worrisome sections of the Act, including Section
306, which is now being interpreted and applied to divest a superior court of record of its age-long inherent discretion of whether to stay or not stay proceedings. See the recent decision of the Supreme Court in Metuh v FRN and also the recent unreported ruling of the Court of Appeal in Appeal No: CA/A/44C/2019 – Justice Walter Nkanu Samuel Onnoghen v. FRN . These are very trying and challenging times for the legal profession.
DISCONNECT BETWEEN SECTION 396 AND REALITY
With much respect to the National Assembly, there was and still is a total disconnect between the wordings of subsections (3), (4) and (5) with the reality of our environment, particularly the typical court environment in Nigeria, including the number of cases an average Nigerian Judge handles in a day, the inconducive and choking court rooms within which the Judges operate or adjudicate, the lack of personnel, both professional and administrative to aid and promote the speedy administration of justice, the competing causes that call for the Judges’ attention, the decaying and/or collapsing infrastructure doting the entire court room precincts in Nigeria, particularly in the High Courts, both Federal and State and, more particularly, at the Federal High Court Lagos, Judicial Division, where a sizeable percentage of the criminal cases are tried.
THE BURDEN ON A TYPICAL NIGERIAN JUDGE
It is common knowledge that a typical Nigerian Judge does not have less than twenty cases on his cause list daily. Some of these cases are civil, while others are criminal. Like the criminal cases, the civil ones also command utmost urgency and speedy adjudication. I am not persuaded that a criminal cause demands more attention than a civil one, but assuming for a second that a particular Judex is faced with five criminal causes in a day, how is it humanly possible for him to comply with subsection (3), which mandates him to embark on trial on a day to day basis, until he delivers his judgment? Assuming further that, that particular Judex has only five criminal causes to contend with, is it possible for him to take the five criminal causes contemporaneously on day to day basis until trial is concluded or until judgment is delivered? Is the Judge a superman? Within the court room itself, does the legislature consider the nasty environment of a typical Nigerian court, where the Judex contends with files and court registrars on one hand, while lawyers and litigants are packed like sardines within a small cubicle on the other hand, which is tagged a court room? Let us assume further that a particular Judge possesses herculean strength and wants to work twenty-four hours a day, what does he do in the midst of intermittent power failure in his court, in his chambers and residence? Let us pause for a moment and ask some questions about the National Assembly itself, to wit, does the National Assembly sit on a day to day basis? How many months in a year does the National Assembly actually sit? When it comes to consideration of important bills, including the appropriation bill which is so central to the economy of the nation, does the National Assembly sit on day to day basis? It would be recalled that despite the fact that the National Assembly was inaugurated on 11 th June, 2019, it proceeded on vacation immediately after the inauguration, resumed long thereafter to approve the constitution of its committees
and proceeded on vacation again; reconvened thereafter to screen the ministerial nominees, and proceeded on another leave till 26th September, 2018!
GRANTING OF ADJOURNMENT IS COURT’S PREROGATIVE
While subsection (5) would appear to appreciate the impracticability to conclude a criminal proceeding within a particular legislative ordained period, it further compounds the problem by decreeing that the Judex shall not grant an adjournment which exceeds seven days, including weekends. In a situation where it is impossible for the prosecution to bring the defendant to court, or where the defendant is incapacitated or admitted into a hospital, with a doctor’s report to corroborate his incapacitation, does the legislature still expect a Judge not to grant an adjournment that exceeds seven days, including weekends? In a typical criminal trial in Nigeria, the prosecution will ask for not less than seven to ten adjournments, amending the charge from time to time, and in some cases, repeatedly filing additional proofs of evidence. What does the adjudicating Judge do in the circumstance? Does he terminate the case after five adjournments from the prosecution? If he does, will there not be an instantaneous uproar, demanding the crucifixion of that particular Judge? Subsection (6) directs the Judge to award cost in order to discourage frivolous adjournments. More often than not, prosecuting counsel ask for adjournments, giving one reason or the other. Who pays the cost whenever a Judge awards cost against the prosecution? Is it the state or the counsel? The law is well settled that granting or refusing an adjournment is at the discretion of the Judge, and that an appellate court would not readily interfere with that discretion.
IMPOSSIBILITY OF COMPLIANCE
By and large, subsections (3), (4), (5), and (6) are unnecessary, impracticable and impossible. No wonder, they have been more observed in breach than in compliance. No law should command the impossible, and neither should the Legislature promulgate any law in vain. It can safely be posited that subsections (3), (4), (5) and (6) represent some wishful thinking or at best, a fanciful ideology which has been incorporated into our statute without juxtaposing same with the peculiarities of our environment.
SUBSECTION (7) CONSIDERED
Subsection (7) provides thus:
“Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated
to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of
concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time:
Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.”
This subsection is very curious in several respects; it is a baffling innovation in our legislation. Each of the Federal and State High Court laws defines who a Judge of the respective High Court is. The Constitution is also clear on who a Judge is. Section 253 of the Constitution provides that “The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court”. It is submitted that subsection (7) is an unconstitutional provision, as it breaches or derogates from the clear provision of section 253 of the Constitution on when a Federal High Court is duly constituted. Upon being sworn in as a Justice of the Court of Appeal, any
particular Judge of the High Court ceases to be a member or Justice of the Federal High Court. Our case law is replete with decisions of our appellate courts on this issue, including Sodeinde v State and Ogbunyiya & Ors. V. Okudo & Ors. Each of the Court of Appeal and the Supreme Court Acts also defines who a Justice of the Court is. Section 494 of the ACJA unambiguously defines ‘Chief Judge’ to mean “a Chief Judge of a High Court and the President of the National Industrial Court; where applicable”; it also defines ‘High Court’ to mean “Federal High Court or the High Court of the Federal Capital Territory”; it further defines ‘Judge’ as a “Judge of the High Court or a Judge of the National Industrial Court and Area Court presided by legal practitioners”. Within the context of the ACJA, a Justice of the Court of Appeal is not a Judge of the High Court. The proviso to subsection (7) is rather intriguing as that particular Judge is being made to serve two masters- the High Court and the Court of Appeal. The poor Judge is put in a quagmire, while both the counsel and litigants are in a fix. Who does the Judge answer to? Is it the Chief Judge of the Federal High Court or the President of the Court of Appeal? Assuming the litigant or prosecution has any reason to complain against the Judge, where does any of them direct his complaint? Is it also to the Chief Judge or the President of the Court of Appeal? While on the bench of the Court of Appeal, as a sitting Justice of the Court of Appeal, the same Judex goes back to the Federal High Court to complete a part-heard criminal matter and an appeal is lodged at the Court of Appeal, how does the appellant describe him in his Notice of Appeal? Will he be described as a Judge of the Federal High Court or a Justice of the Court of Appeal? Arguendo, assuming the Justice of the Court of Appeal who comes back to High Court to conclude a part-heard matter is elevated to the Supreme Court during the interregnum, will he still come back to the High Court to complete the part-heard matter? These and other curious questions ordinarily arise from the unusual prescription of subsection (7).
CONFUSION CREATED BY SECTION 396
It can safely be submitted that section 396 of the ACJA has introduced and indeed brought more confusion to the administration of criminal justice in Nigeria. The National Assembly did not do any thorough or painstaking job before promulgating the Act. It is an ill wind that blows nobody any good. From every angle one may look at it, it is a bad legislative piece, which cannot be enforced, because it is incapable of enforcement.
Law properly so called, is expected to be an instrument of societal control. It should have a mission, vision and destination. Good laws, where so properly enacted, should have adequate means of enforcement, meaning that good laws still need to be activated before they can be enforced. If this is the position with good laws, what then happens to curious and bad laws as exemplified by Section 396 of the ACJA? They are virtually dead before arrival; and in the words of William Shakespeare, they are “full of sound and fury, signifying nothing.” Section 396 of the ACJA is not a law made for man to comply with, but a law made in the very abstract. It is a knee-jerk legislation which is not working and cannot work. Law and man must flow at the same frequency and also operate in tandem. It is high time we started a rethink on how to enact a realistic and workable legislation for the administration of criminal justice in Nigeria. In every respect, particularly the practical application of Section 396, the ACJA is not a workable law.