“A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime.”
Section 28, of the EVIDENCE ACT (E.A), 2011.
There are instances where a suspect in a criminal investigation volunteers to make a statement before, during or after interrogation by the police. Such statement being volunteered is known as Confessional Statement. This type of confession is otherwise known as extra-judicial confession because it was made prior to arraignment before a judge or magistrate. For it to be admitted as evidence of admission for commission of a crime by the court, it should be a voluntary and unsolicited act on the part of a suspect. Section 29(1)-(3) of the E.A forbids the admissibility of a confessional statement if made under coercion, oppression, deception, inducement by person in position of authority.
The Police and security institutions have gained some notoriety globally and especially in developing countries like Nigeria in the extreme measures often taken in order to secure conviction at all cost by using coercive or deceptive means to obtain statements from suspects. Instances abound where suspects were tortured into making self-implicating confessional statements. There are also instances where police officers write implicating statements on behalf of a suspect and ask the suspect to append signature. This, the police perpetrate to cater for their hurriedly concluded investigations.
Frequently the Police arrest before investigation and rarely after investigation. This method often makes it impossible to obtain enough facts to present before the court. Many people have been convicted based on confessions obtained in such reprehensible manners. The Nigerian Courts have at various times taken judicial notice of this fact and are occasionally ready to discountenance confessions obtained in such manner. These are subject to the competence of the lawyer representing a defendant in court and the discretion of the judge. The judge will call for Trial-within-trial otherwise known as mini-trial when a party raises objection as regards the admissibility of such confessional statement allegedly obtained under use of force. Some defendants, unilaterally or under the guidance of their associates or legal practitioners have also used the technicality and notoriety of the police to disown confessions voluntarily made and occasionally get freed back into the society after commission of crime. Those who have fleeced public resources vide embezzlement are therefore allowed back into the society with unfettered access to the stolen funds.
The Supreme Court of Nigeria defined Confessional Statement in IDOKO v. THE STATE (2017) LPELR-48002(SC) “A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See section 28 of the Evidence Act, 2011. A confessional statement is sufficient to ground conviction if proved to be voluntary, positive, unequivocal and amounts to an admission of guilt.” It is in awareness of this fact that Nigeria’s Administration of Criminal Justice Act (2015), hereinafter referred to as ACJA, provided as follow:
- (1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
(2) Such statement may be taken in the presence of a legal practitioner of 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 official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Recording of statement of suspect. Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.
(3) Where a suspect does not understand or speak or write in the English language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement.
(4) The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement.
(5) The suspect referred to in subsection (1) of this section shall also endorse the statement with his full particulars.
Although a Federal Enactment, the same provisions have been replicated in most states in the Southern part of the country. Subsection 2 above requires that Confessional statement “…may be taken…” thereby making it optional in the presence of a legal practitioner; for a suspect who can afford the service of one even though it a notorious fact that perpetrators of crimes are often indigent. Alternatively, where he cannot afford to retain service of a lawyer, in the presence of an officer of the Legal Aid Council of Nigeria (although Legal Aid offices in most states of the federation were understaffed and not motivated to render such services); an official of a Civil Society Organization or a Justice of the Peace, or any other person of his choice. Notwithstanding the fact an average police officer in Nigeria rarely and grudgingly tolerate the presence of a lawyer why taking the statement of suspects talk less of a private citizen.
Section (3) of the ACJA has another interesting provision in that for suspects whose means of communication is not English language, an interpreter must be provided who shall take down statement’s in the English language then interpret to the suspect in a language he or she understands. Nothing was stated as regards the background of the interpreter or who shall remunerate such interpreters where need be. What is common all around the country is that it is policemen that act as interpreters and recorders. Therefore raising question as regards the veracity and voluntariness of statements recorded on behalf of a suspect. Such statements are often recorded in English language. It would have been better if such statements were recorded in a language understood by the suspect and thereafter translated into English Language. So both can be compared by the court when need be. Sanction is also provided for interpreters who recorded contrary to what was volunteered by the suspect.
The forgoing shortfalls of the extant provisions of ACJA show that it lacks relevant administrative machinery to be effectively implemented. Despite the presumption of innocence until proven otherwise, an accused person is therefore still subject to the whims and caprices of the police and the unresponsiveness of the criminal justice system. As stated earlier, most states in the Southern part of Nigeria have Administration of Criminal Justice Law (ACJL) similar to the ACJA provisions with slight modifications. For example, Section 9 (3) of the Lagos State ACJL 2015, provides as follow:
“Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice."
The drafters of this law inserted a more contemporary provision that mandates that a legal practitioner must be present or there must be video recording of confessional statements volunteered by a suspect. This is a nearly fool proof provision. The operative word is “shall” unlike the ACJA were it is “may.” Although most police divisions in Lagos State do not have interrogation rooms equipped with video recording facilities. This has been well taken care of by the insistence that such statement must be taken in the presence of a legal practitioner when it is to be written. The Court of Appeal thoroughly and copiously dissect the jurisprudential justification for this commendable provisions of the Lagos State ACJL 2015 in AWELLE v. PEOPLE OF LAGOS STATE (2016) LPELR-41395(CA):
"Section 9 (3) of the Administration of Criminal Justice Law of Lagos State reads: " Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice."
The above provision of the law is no doubt among other reforms initiated under the 2011 Law for efficient administration of criminal justice in the polity. The provision was made primarily to ensure that the constitutional rights of suspects cum accused persons are safeguarded and also to enhance the capacity of law enforcement practitioners to act within the bounds of the law in the discharge of their duties. The provision undoubtedly seeks to ensure that the statement of the suspect was not taken under duress or undue pressure by the prosecution. The essence of obtaining statement from an accused should apparently be to determine whether or not an offence has been committed by the suspect or accused person and also to ascertain whether it is the accused person that committed the offence alleged by the complainant. The mandatory provision of Section 9(3) of the Law is clear that the statement must be taken either in the presence of the suspect's or accused person's lawyer or video recorded where the legal practitioner is not present. This provision is intended to curb the numerous cases of forceful extraction of statement by police officers anchored on humiliation, intimidation, torture and unlawful extortions inflicted on suspects on regular basis in some of our police stations across the country. Where an enactment as Section 9(3) of the ACJL in the instant case, contains mandatory provisions, it is required that whatever act that is provided therein must be strictly complied with. There is no place for the exercise of discretion. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. See YUSUF v. THE STATE [2011] 18 NWLR (Pt. 1279) 853." Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA.
The dictum of the learned judge clearly advances the course of criminal justice in Nigeria. It is hoped that the ACJA will be amended to have similar provisions. The insistence of video recording or presence of a legal practitioner will go a long way in giving credibility to the whole process. The law governing the recording of confessional statement has not created necessary administrative machinery to ensure that the confession of a suspect is truly his or confession in respect to the commission of a crime.