ACJA Amendment: Kalu’s Bill gets accolades,recommendations at public hearing
From Kenneth Udeh, Abuja
A Bill to amend the Administration of Criminal Justice Act (ACJA) to create a criminal justice administration legislation that is both more effective and more humane has been commended by stakeholders which included Government Agencies, civil rights organisations ,amongst others.
While applauding the motive of the bill and its sponsor (Senator Orji Kalu) , stakeholders at Wednesday’s public hearing also presented their recommendations to some provisions of sections of the proposed amendment of the criminal justice act.
The public hearing of bill entitled, ‘Administration of Criminal Justice Act 2015 (Amendment) Bill, 2020 (SB: 465) organised by the Senate Committee on Judiciary, Human Rights and Legal Matters; and Anti-Corruption and Financial Crimes , witnessed the attendance of Federal Government security agencies which include: Nigerian Correctional services (NCS), the Nigerian Navy, the Nigerian Navy, National Security Adviser (NSA), Nigerian Immigration Services (NIS), Nigerian Airforce (NAF), the Economic and Financial Crimes Commission among others.
In his presentation on the legislative proposals, the Chief of Army Staff, Lieutenant General Faruk Yahaya commended the motive; he however sought the replacement of some words to Section 14 (3) of the ACJA .
General Yahaya who was represented by the Nigerian Army’s Director of Legal services, Major Mahmood Wambai, said the proposed amendment to Section 14(3) of ACJA which seeks to replace the words ; “shall be done in the presence of” with the words “shall be done within the sighting distance of” should be replaced.
According to him The word ‘shall’ could be replaced with ‘may’ to now read thus ; “may be done within the sighting distance of”. He stressed that this will give the detaining officer in custody of the detainee the power to determine the circumstances to permit unrestricted communication between the detainee and any other person.
He added that it will also aid the use of eavesdropping devices during such communications. He said “The circumstances here could include the nature of the allegation against the detainee, his/her criminal history and the status of the visitor”.
On the amendment to Section 17 , subsection 3, the Nation’s Army opposed the inclusion of a new paragraph which reads “such an interpreter shall be at the instance and choice of the suspect held in custody “.
The Army held that it is always the constitutional responsibility of the State to provide an interpreter in all proceedings where a suspect does not understand the language of the Court , stressing that the responsibility should not be shifted to the Suspect who could end up choosing an interpreter that may do his/her biddings”.
Making further recommendations the Nigerian Army also sought for another inclusion to the proposed amendment to Section 172 of ACJA which seeks to add the words; “either orally or by a motion on notice ” before the words; “on application to court “. The Army suggested that the following words could be added; “subject to the discretion of the Judge” after the proposed amendment. This according to Yahaya will confer the judge the powers to direct that such application shall be on notice in appropriate cases.
Lauding the initiative to amend the ACJA , office of the National Security , Babagana Monguno described the amendment as a welcome development. Babagana was represented by the Spokesperson of the NSA, Zakari Usman.
The Nigerian Correctional Service in a submission by its Controller-General of Corrections, Haliru Nababa applauded the proposed legislative amendment to the ACJA. In its submission the NCS agreed with the amendments sections ; 8(4) , 14, 17, and sections 162.
Haliru who was represented by a top official of the NCS at the public hearing however opposed the amendments to Sections 223 and section 229, he maintained that the section does not infringe on the principle of fair hearing. He said ” it does not in any way make the hearing time unreasonable, and has not interfered with the independence and impartiality of a court or other tribunal established by law “.
On its part the Nigerian Navy through its Chief of Naval Staff , Vice Admiral AZ Gambo, disagreed with the deletion of Paragraph 6 section 223 and 229.
Gambo represented by Navy’s Director of Admin ,Rear Admiral Kennedy Egbuchulam stated that section of the ACJA proposed to be deleted have similar provisions in Sections 226(6) and 142 of the Penal Code Act and Armed Forces Act Laws of the Federation of Nigeria respectively.
The paragraph 6 of the bill is seeking to delete the provisions of Sections 223 and 229 of the Administration of the Criminal Justice Act (ACJA) 2015 reads that; “where a defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed although he was not charged with it” and “where a defendant is charged with an offence relating to property and the evidence establishes the commission by him with respect to the same property of another offence, he may be convicted of that other offence although he was not charged with it”.
According to the Nigerian Navy the intention of the above provisions is that an accused person can be convicted for similar or kindred offences based on evidence on record. Gambo said the extant provisions of the ACJA sought to be deleted do not constitute a breach of the right of fair hearing of an accused person.
Rendering special commendations to the bill’s sponsor, Senator Orji Uzor Kalu, Centre for socio-legal studies described the proposed amendments sought by the bill as highly laudable and commendable.
In a speech read by the centre’s President Prof. Yemi Akinseye – George, SAN the bill’s amendment will address the emerging developments and judicial pronouncements on some of the provisions of the extant Act.
He said ” As it is intended to address the aspect of concern, noticed in the course of implementing the Administration of Criminal Justice Act,2015″.
Earlier in his remark, sponsor of the bill , the senate Chief Whip, Orji Uzor Kalu, said the legislative proposal seeks to amend the Administration of Criminal Justice Act of 2015,the Sections contradicting the principles of fair hearing and court jurisdiction as provided in the Constitution. This he said is to avert some loggerheads between the administration of criminal justice Act and the constitution.
Kalu who was represented at the event by Senator Abdu Kwari maintained that the nation’s constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
Kalu emphasised that in line with the provision of the constitution, all authorities in Nigeria shall conform to the constitutional provision.” Therefore the administration of criminal Justice Act shall conform with the supreme provision of the constitution 1999 as amended.
“Each legal norm of the society derives its validity from the basic norm. Any other law that is inconsistent with the provisions of the constitution must give way or abate.” The Court has also held that- “The constitution of a nation is the ‘fons et origo’ not only of the Jurisprudence but also of the legal system” kalu said .
Stressing further Kalu said the various High Court Rules and Court of Appeal Rules have provisions with regard to the position of pending cases,when judges are elevated . More often the position is for the matter to start denovo.
He added that ; Although the constitution says in Section 252(2) that the National Assembly will by law make provision conferring upon the Federal High Court additional powers to those conferred by the Constitution, yet there exist a lacuna in respect of the position of an elevated judge from the High Court to the Court of Appeal(that is there is a gap that needs to be filled).
He said ” it will be advisable that the Act be amended to expressly handle the gap created when judges are elevated to the next bench be given the right or powers to conclude part heard cases on elevation before moving to the next level.
“Our judicial system recognizes and applies the rule of stare decisis, meaning rules of precedent and hierarchy of courts. Moreso our courts are classified according to the Constitution and other extant laws ,we should clearly demarcate or clearly spell out jurisdiction of court to avoid contradiction and uncertainty”, the Senate Chief Whip added.
Explaining further the Senate chief whip reiterated the aspiration of the legislative amendment is to create a criminal justice administration legislation that is both more effective and more humane.
In his words ; “By “more effective,” I mean that we should respond to crime in ways that produce socially desirable results—greater safety, less fear, less suffering, greater respect for the rule of law and less injustice—and that we do so efficiently, investing our precious financial and human resources in ways that maximize the results we desire.
“By “more humane,” I mean we should respond to crime in ways that recognize the humanity of those victimized by crime, those arrested and convicted of crime, and others who experience the ripple effects of crime and our justice system. This affirmation of humanity, as I see it, incorporates values we hold dear in our democracy, such as equal protection of the laws, access to the rights guaranteed by our Constitution, and our fundamental belief in the dignity of the individual.”
Recall that the ACJA Amendment bill passed first reading on 30th June,2020. It also passed the Second Reading on 8th December,2020.