Why I Stopped Criminal Litigation, and Other Lessons for the Nigeria Criminal Law Regime

Background

As a lawyer, I nurture the interest of going to court and winning cases, criminal cases especially. I don’t want to prosecute or be a government’s lawyer, I want to be the ‘villain’ defending crime suspects anywhere I am practicing law, in Nigeria, the US, Australia, doesn’t matter. However, upon being called to the bar, and having practiced law for 2 years, I experienced a case that changed my belief and interest.

Incidence

My boss called me that morning about a case of a young man like myself (he said he is my age-mate) and handed me the case file. He said, “don’t worry, the prosecution will ask for an adjournment, make sure you get the correct date from the court and put the date in the law firm’s diary.” Just out of curiosity, I asked “why would the prosecution ask for an adjournment?”, my boss replied and explained that “well, the family of the crime victim has collected money from the accused – which is our client I am going to court to represent. Because of the payment, the family of the victim who witnessed the crime, and upon whom the government prosecution predicate their case has continually refused to come to court to help the prosecution in giving testimony so that the accused can be convicted”. He continued that “the case has been in court for the past 4 years, and the accused has been in jail since then, awaiting trial, since the crimes he committed are the two most heinous crimes a person can commit in Nigeria – armed robbery and murder”. “However, anytime the case is called in court, the prosecution always look into the gallery, looking for the victim’s family, and when he can’t find them (unknowingly to him because they have being compensated immensely behind), he would ask the court for an adjournment so he can again go convince the victim’s family to come to court.” The case has continually been adjourned for the past 4 years until that day my boss gave me the case file. He said, so, when I get to court, as usual, the victim’s family will not be in court, and the prosecution will just ask for a date, and I should just minute the date in the law firm’s diary.

While going to court, I opened the case file and tried to familiarize myself with the case the more, it turned out my boss’ summary of the prior incidents in court are correct, it has been lots of adjournment at the prosecution’s instance for the past 4 years. I started thinking about what my boss said while I was about to leave the office, he said: “just do whatever you can, the mother of the accused is poor anyway, she hasn’t been paying court appearance fee”. I reasoned that my boss doesn’t need a case that is non-rewarding to him financially anyway. Armed with my thoughts of willingness to help crime suspects, I told myself on my way to court that I will try and get the accused off the criminal charges today in court. I recalled some legal provisions, and although I know there is a way I could go about it, I don’t know exactly how.

For addition to knowledge purpose, ‘armed robbery’ and ‘murder’ would be the two most heinous crimes in Nigeria considering the sanctions that follow the court finding the accused guilty. For armed robbery, the crime is considered so heinous that it was segregated from the criminal law legislation in Nigeria, and a separate legislation is made for it – Robbery and Firearms (Special Provisions) Act, 1984. The discussions leading to the promulgation of that law from the 1970’s to the 1980s is an upshot of the Nigerian Civil War that ended in early 1970 – when the Biafran people were conquered by Nigeria. The aftermath of the Civil War like in every other war was that guns were in the hands of lots of civilians, and since the war has ended, many civilians who now have nothing to use the guns for turned it to a tool for committing crimes – armed robbery especially. Armed robbery was so rampant in Nigeria between 1970 and 1980, and that period presents the most destructible and notorious armed robbers in Nigeria’s history – including Lawrence Anini, Monday Osunbor, Ishola Oyenusi, Youpelle Dakuro etc. To curb the situation, the then President/Military Head Major-General Muhammadu Buhari (who is also now the Nigerian President) promulgated the Robbery and Firearms (Special Provisions) Act. The actual intendment of that law was to restrict the crime of armed robbery by prescribing what would be an unusual punishment in America’s constitutional law jurisprudence (see especially the last part of the US Constitution’s 8th Amendment). The then Head of State understands the efficacy of punishment which has its function to be “deterrence” – i.e. meting out severe punishment would deter or discourage others from committing a similar crime. What is then the punishment of armed robbery in this new law?, the law verbatim states:

“If—

(a) any offender…is armed with any firearms or any offensive weapon or is in company with any person so armed; or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.

(3) The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct.”

So, the punishment of hanging and death by tieing the convict to a water vessel (in practice) and faced with a firing squad is so unusual in the 1970’s and 80’s that most people refrain from committing the crime of armed robbery. The law has till today caution most Nigerians from committing armed robbery because the punishment for mere robbery (without arms) is just 21 years in prison, but with arms, its death, and the mode of killing the convict is so gruesome. This exactly is the crime my client has committed, he faces death by hanging or facing a firing squad.

I believe the offense of murder attracting execution is classic in most jurisdictions, apart from the recent influence of international organizations and developed jurisdictions – most of whom have or are trying to discourage capital punishment. In Nigeria, capital punishment is still the punishment .for committing murder, so my client faces this punishment as well. Either way, my client is going to die if convicted, only that he might be hanged or tied to a water vessel and made to face a firing squad.

My boss had earlier confirmed that out client actually did commit the offenses, but as usual, in law, the prosecution must still prove that the accused did commit the offense being charged for before the punishment can be meted out.

When I got to court, I approached the prosecuting lawyer about the case, and he skimmed through the gallery, and when he could not find the victim’s family again, he told me, “the victim’s family are not in court again, we would ask the court for another adjournment”. When he told me that, I went to take my seat, and did my research on the position of the law when the prosecution can’t proof their case because important witnesses are absent in court, and have been so absent severally in the past. I discovered the position of the law, and it is favourable to my client, it is that the court can dismiss, but not acquit the accused till when the prosecution would be able to present their case. The difference between ‘dismissal’ and ‘acquittal’ is apt. When a court dismisses a case, the accused can still be re-arrested, and arraigned in court again for the same offense. However, when the accused is acquitted, he cannot be re-arrested or re-arraigned in court for the same offense, as that would offend the constitutional provisions on double jeopardy. I know that a dismissal in our case is tantamount to an acquittal since the witnesses the prosecution built their case on will never come to court, knowing they have been compensated outside the court for their loss. So, I waited till the court clerk called the case.

When the case is called, the prosecution stood and asked the court to adjourn the case because vital witnesses – the victim’s family are not in court. The Judge was writing and asked if I have an objection, I stood and announced to the court I have an objection. The Judge stopped writing, and asked, what is the objection, I said “My Lord, I would like to take this court through a memory lane of this case”, the Judge said “yes”, I proceeded, “My Lord, this case has been in this court for the past 4 years now, with several adjournments every time at the instance of the prosecution, and the reason always is that they don’t have their witnesses in court”. I then reminded the court of the provisions of the Constitution on the presumption of innocence of the accused which inures till the conclusion of the trial. Also, I reminded the court of the main provision in the Criminal Procedure Rules which gives the Judge the power to dismiss the case in this type of instance until when the prosecutor is ready (i.e. find his witnesses, who will come to court on a scheduled date).     

The Judge started writing again, and at that point, I knew I have hit the nail, the Judge then asked, “what is your prayer counsel?”, I responded and said, “My Lord, we pray that this court dismiss this case as the prosecution has displayed inefficiencies in prosecuting a case handed to him at the expense of an accused who is still innocent”. The court agreed and dismissed the case until when the prosecution is ready, and the accused is free to go. When the Judge banged his gavel, I felt a sense of success in my heart. I got my gown pulled by senior lawyers beside and behind me telling me, “counsel, you have done well”, and some saying “you have demonstrated the knowledge of this law”, and the commendations continued. My client was still in the accused stand, he does not know what has just happened, the Judge had to tell him in his local language that he can go home. When he heard that, you can tell the dismay and uncertainty of what he is hearing on his face, he was so confused he had to ask the Judge once again if he meant “go home, like really go home”, the Judge smiled and said, “yes, thank your lawyer”. I told the court “thank you”, and stepped outside the court.

It was outside the court that the thought of confusion fell on me as well. Seeing the jubilation of my client, some of his gang members, and especially that of his mother outside the courtroom. I started thinking about whether I have done my job – as a lawyer – or if I have just released a ‘criminal’ back to the society. I comforted myself with thoughts that I did my job, and there is nothing to be worried about, but the ethical thought of exposing the society to danger – which is a larger cause worth preventing – keep haunting me till date.

Lessons

The first issue I would like to raise flowing from this experience is to question why law firms and lawyers continually charge their clients continually for court appearance fees multiple times for a case that can be resolved in few court appearances. I believe my boss could have done some research as myself, go to court, and argue the same submissions I made, and get the accused off the charge. However, what I experienced in practice is that lawyers tend to (intentionally) elongate the life of a case so as to make more money for themselves. This is plain cheating of the client no matter how you look at it, although subjective, I think the negative effects of cheating is too weighty to engage in such practices.

Another thing, when I learned the victim’s family had collected money and have refused to come to court since then, I fully understood the agitation of those proposing the idea of restorative justice. Restorative justice’s reconciliation tenets – which might include some payments – with the victim especially, has a long way in sustaining the criminal justice, by focusing more on the victim, than the wishes of the government which is fine, incarceration or death penalty. Restorative justice is very controversial, considering the fact that crime suspects can be motivated to commit crimes if they know they will not be totally punished but subjected to restorative justice programs. So, the idea can have a cobra-effect. Still, I believe there is a way restorative justice could be implemented in any criminal justice system to accommodate its flaws because I have seen its effects first-hand. Some crimes might be exempted from the restorative justice program, and crime suspects of heinous crimes might be subjected to both restorative justice programs and still made to face the consequences of their actions in law. The two can work together. In summary, restorative justice is not an idea that should not be included in or embraced by any criminal justice.

Also, considering the fact that my client’s mother is poor, and can hardly pay my law firm’s appearance fee – a factor which makes my boss disinterested in the case – should be a catalyst for more pro bono activities in the society. Lawyers should engage in more pro bono activities, the Bar Association can put this duty on every registered law firm and require they make some submissions of how many pro bono cases they handled every year as done in more developed jurisdictions as the US. Nigerian law firms must be required to do some pro bono cases as a matter of Rules, not just willingness because not every client can afford exorbitant legal fees, and this inability should ordinarily not be the causal factor for shutting these people out from having a fair shake of the justice dice.

Again, the Nigerian criminal justice system must refrain from activities whereby a person is imprisoned for a long period as 4 years plus without a purposeful trial. The law does not permit this. To avoid confusion, the part of the criminal justice referred to here this time is not the police, although they are also guilty of this vice. The concerned aspect of the criminal justice is the court. The court must be advised of the necessity of timely decision of cases brought before it, 4 years is too much for an accused to be held in jail for an offense we are not even sure he committed, especially when the offense(s) the accused is being charged for is/are not ordinarily bailable offense(s). The police also share in this ill, the Nigerian police must have an aspect of their police training that would be focused on legal education, especially constitutional provisions on how long they can hold suspects of crimes before arraignment in court, and when crime suspects should be taken to court etc.

Lastly, the law school education in a religious country as Nigeria, where the majority of students are either Christians or Moslems should have some part of the curriculum that would focus on how prospective lawyers could balance their faith and the law practice. This type of course in the curriculum would teach students on how to manage doing their job as a lawyer, and the (internal) backlash they might get from their religious beliefs. I know that the lack of knowledge as to how to balance this and the fact that I was not expecting such backlash contributed to my now abstinence from litigating criminal matters.