Officers under scrutiny: Supreme Court ruling that checkmated operatives’ excesses

The Nigerian prosecution process has turned over a new leaf following the recent Supreme Court ruling that requires all law enforcement agencies to videotape suspects in criminal cases while making confessional statements, UTHMAN SALAMI writes

The Nigerian legal system is not new to the Administration of Criminal Justice Act, which has already been domesticated by several states. As the country develops, its legal system is being reviewed to adapt to innovations, particularly the use of technology in justice dispensation.

One such development was seen on Wednesday, October 30, 2024, when a self-identified investigative journalist known as PIDOMNIGERIA shared a police wireless message on X.com, prominently displaying his watermark.

Sharing the message on his handle, he advised his followers to refrain from making any statement that could potentially implicate them in court while at a police station unless their lawyers or family members were present.

The police wireless message shared along with his warning dated October 20, 2024, with reference number AR:4280/BRS/X/VOL.3/208 reads, “Confessional statement; be informed that the Supreme Court had that it is mandatory for police officers to video record suspects while making confessional statements.” The police can use cell phones to record and later transfer it to a compact disc and attach it to the case file for prosecution.

“Alternatively, the police should stop restraining suspects’ lawyers from being present when suspects are making statements, as the law says. A suspect should make a statement in the presence of his lawyer or anyone related to him. The lawyer or relatives of the suspect who witnessed the statement must sign and write his name as a witness at the bottom of the statement.”

The police chiefs across the country were further asked by the wireless message, which was posted on @PIDOMNIGERIA, to make sure that the subject matter was taught in lectures and to enforce strict adherence to the mandate.

Several police sources have confirmed the authenticity of the orders, highlighting that deceitful confessions from suspects play a crucial role in the latest prosecution procedures.

A senior police officer, who wished to remain anonymous due to the delicate nature of the subject, told our correspondent that the police hierarchy reviews its prosecutorial procedures every year to ensure they are up to date with new developments and the evolving times.

Our correspondent’s findings from Supreme Court decisions, police sources, and legal experts on Thursday further revealed that the new procedure was to curb the highhandedness of law enforcement agency agents in obtaining a confession or admission from suspects through torture or other methods.

Subsequent findings revealed that the decision was made to eliminate cases of suspects retracting their confessions and to safeguard a criminal suspect’s constitutional rights against the extensive and potentially abusive powers of law enforcement officers.

Section 17(2) of the Administration of Criminal Justice Act of 2015 states that a confessional statement is deemed illegal if it was made in discretion or if the legislative obligation was not followed.

Section 17(2) of ACJA, 2015 reads, “Such statement may be taken in the presence of a Legal Practitioner or his choice, or where he has no Legal Practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an officer of a Civil Society Organisation or a Justice of the Peace or any other person of his choice, provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except to discharge his role as a Legal Practitioner.”

In examining several Supreme Court rulings on the subject, one notable case stands out: F.R.N. v. Akaeze [2024] 12 NWLR (Pt. 1951). The decisive moment for the overzealous prosecutors came with the Supreme Court judge’s ruling in Akaeze’s case, which was sourced from the website of Koriat & Co., a commercial legal firm based in Nigeria.

In 2015, Akaeze, with two other defendants, was charged with two counts of conspiracy and failing to declare $102,885 to officers of the Nigeria Customs Service at the Murtala Muhammed International Airport in Lagos.

On May 20, 2016, the court mandated a trial-within-trial proceeding after the prosecution sought to introduce the respondent’s extrajudicial statements through a prosecution witness. The defendant strongly opposed this action, referencing Sections 15(4) and 17(2) of the ACJA, 2015.

The case dragged on until 2024 when the Supreme Court issued a mischief rule. Justice Helen Moronkeji Ogunwumiju, one of the judges, stated that the law should prohibit “alleged confessions extracted through torture and duress imposed on a defendant” to prevent retractions and ensure justice. The court further ruled that any confessional statement recorded “in violation of the aforementioned provision is ineffective. It is null and void.”

While calls to the Force spokesperson Muyiwa Adejobi and Lagos State Police Command spokesperson, Benjamin Hundeyin, regarding the judgement and police directives went unanswered, police sources who pleaded anonymity clarified that contrary to public perception, the wireless message only pertains to cases where suspects voluntarily admit guilt or acknowledge their involvement in a crime.
Notably, our correspondent learnt that when a suspect makes statements other than confessions, procedures such as video recording or the presence of solicitors or family members might not be required.

A senior police source in Lagos State, speaking anonymously with our correspondent about the new mandate following the Supreme Court judgement, stated that the directive aimed to prevent suspects from retracting their confessions.

The cop stated, “As Nigeria progresses, the law must also evolve to accommodate changes brought by development, particularly advancements in technology. We have what is known as the Administration of Criminal Justice Act, which governs the prosecution and detention of suspects.

“The Act is periodically reviewed to incorporate new developments. The directive is part of the latest amendments to the Act.

“When a suspect makes a confessional statement admitting to a crime, prosecuting officers are required to video-record the statement and transfer it to a CD. This ensures that, when the case goes to court, the confession cannot be retracted.

“This measure eliminates any suspicion or impression that the suspect was coerced into making the statement. Additionally, the statement must be made in the presence of the suspect’s lawyer.”

The officer did note, however, that one of the difficulties investigators encounter when probing crimes and obtaining confessions from suspects is the dishonesty of lawyers who consistently advise their clients against making confessions, even when there is proof that their clients committed the crime in question.

“When suspects are even prepared to confess to a crime, their attorneys often warn them that telling the truth to the police will result in a jail term. Therefore, getting a suspect to make confessional admissions in front of their solicitors is challenging,” the cop added.

Another police officer in Ogun State who craved similar anonymity because of a lack of authorisation to speak for the police force informed our correspondent that the intelligence of the Investigating Police Officer handling the case has a significant impact on how feasible the directives would be applied.

The cop said, “The feasibility of using video as evidence in confessional statements depends on the IPO’s legal expertise. In certain situations, some colleagues may go above and beyond to support their claims.

“Taking confessional statements involves several procedures. In the past, when such situations arose, a senior police officer would be present during the statement, which would be recorded and later presented in court. This process is distinct from other types of investigations.

Clarifying the Supreme Court judgement and police directive, a managing partner at Pelican Crest LP in Oyo State, Sile Obasa, explained that Section 17(2) of the ACJA applies to all cases handled by law enforcement officers, including anti-graft agencies, the Department of State Services, and others, regardless of whether the statement is confessional or not.

He said, “The origin is the ACJA, mandating the law enforcement agencies to ensure that any statement from a suspect is properly recorded and made in the presence of a lawyer. The ACJA is domesticated across the 36 states of the federation.

“This issue was brought before the Supreme Court, which issued a verdict aimed at curbing excesses by law enforcement officers. Here’s the point: when interrogating a suspect without video recording or the presence of their lawyer or a relative, can you be certain they won’t make a coerced confessional statement? And should officers then be able to use such a statement to prosecute?”

Also, human rights lawyer, Collins Aigbogun, urged law enforcement officers to apply the law consistently in all cases to prevent criminal offences from being dismissed due to failures in following due process by investigative officers.

“It is essential for a lawyer to be present for every confessional statement. If the suspect cannot afford a lawyer, the state is obligated to provide one. Additionally, the suspect should be cautioned before making such a statement.

“If due process is not followed, the accused may claim that the statement was made under duress, that they did not make the statement at all, or that the police dictated the statement to them, which could result in the case being dismissed,” said Aigbogun.

As stressed by other legal practitioners, it is imperative that law enforcement officials strictly follow the law and execute the new Supreme Court ruling consistently, without picking and choosing when and where to enforce it.