The judicial stand that it is better for 99 criminals
to go unpunished than for one innocent person to be punished is one of the most
human reasoning on record.13 In
this light, the 1999 constitution (as amended) in order for an accused person
to have adequate facilities for his defense provides that every person who is
charged with a criminal offence shall be presumed to be innocent until he is
proved guilty.14 Also by virtue of
section 36(6) of the constitution, every person who is charged with a criminal
offence shall be entitled to:
a. Be
informed promptly in the language that he understands and in details of the
nature of the offence;
b. Be
given adequate time and facilities for the preparation of his defence;
c. Defend
himself in person or by legal practitioners of his own choice;
d. Examine,
in person or by his legal practitioner, the witnesses called by the prosecution
before any court or tribunal and obtain the attendance and carryout the
examination of witnesses to testify on his behalf before the court or tribunal
on the same conditions as those applying to the witnesses called by the
prosecution, and…
The above fundamental constitutional provisions are
targeted towards ensuring that a suspect or an accused person is accorded every
deserved opportunity to defend himself and prove his innocence before any court
or tribunal in this country. Unfortunately, these provisions have been honoured
more in breach through the practice of holding charge.
Among the above paragraphs of section 36 (6),
paragraph (b) is the most abused or violated. This is because a situation where
the accused person is brought before a court lacking jurisdiction on a charge
sheet which will be read to him without his plea nor bail granted him, but
rather remanded in prison custody cannot by any imagination grant that person
adequate time and facilities for the preparation of his defense at the
appropriate court during his trial.
The corollary of this subjection is eventual plea of
guilt or poor defense, if any, by or on behalf of the accused person. And this
might end in his undeserved conviction.
Furthermore, the right of an
accuse person to examine in person or by a legal practitioner of his choice,
the witnesses called by the prosecution before any court or tribunal and also
to obtain the attendance and carry out the examination of witnesses to testify
on his behalf before the court or tribunal on the same conditions as those
applying to the witnesses called by the prosecution, envisages an opportunity
for the accused to collect evidence both documentary, real and oral as well as
to identify his witness(es) for attendance. But it is obvious that an accuse person
who is remanded in prison custody under a dehumanizing conditions has no time
to look for witness(es), let alone choosing a lawyer that will properly defend
or assist him. The end product of the above scenario is the eventual conviction
and sentence of the accused. Little wonder Samuel Dash15 articulated thus:
“Without the
assistance of counsel, the defendant is practically powerless to challenge the
prosecution. It is the lesson of human experience that even in the case of the
most well intentioned prosecutors, the absence of such a challenge can result
in carelessness and failure to review the evidence and properly prepare the
case, which makes it easier to convict the innocent.”16
The importance of the assistance of counsel to an
accused person was also underscored by David Fellman in the following words:
“Without the assistance of counsel, most persons
accused of crimes are not likely to have an adequate defence. A defendant needs
a lawyer as urgently as a sick man needs a doctor and in many instances, more
urgently, for while nature often heals the sick without outside aid it seems to
have little concern for the plight of the accused.”17
From the foregoing, it is my humble opinion that a
situation where the accused is moved directly to a court room from prison custody
for trial without giving the chance to take advantage of the constitutional provisions,
on ground of holding him charge is condemnable in its entirety and the courts
must stand out against this amorphous practice by the police. The reason is
because trials cannot be regarded as ‘fair’ if defendants lack legal
representation and therefore unable to participate at the trial on an equal
footing with the prosecution. Even where in the discretion of the court, the
accused is not entitled to bail owing to the circumstances surrounding his case,
these rights as provided by the constitution are fundamental to the accused as
a human being and for the interest of fair trial, the court should starve off
any dangerous or unwarranted or stealthy encroachments.
Earlier, Justice Kayode Eso, J. S. C., also stated on
the role of the courts as follows:
…it is the function of judges to keep the law alive in
motion and to make it progressive for the purpose of arriving at the end of
justice without being inhibited by technicalities to find every conceivable and
acceptable way of avoiding narrowness that would spell injustice. Short of a
judge being a legislator, a judge must possess an aggressive stance in
interpreting the law.18