RIGHT TO COUNSEL: A PERUSAL ON THE CONSTITUTIONAL RIGHT
RIGHT TO
COUNSEL:
A PERUSAL ON
THE CONSTITUTIONAL RIGHT[1]
INTRODUCTION
The principle of sovereignty of human rights cannot be
overemphasized, as the concept is said to be universal and accepted by
virtually all states and societies, regardless of historical and other differences.
Thus, in our present world, fundamental human rights have matured into matters
of international concern, no state can therefore claim that the way it treats
its nations is solely within its domestic jurisdiction.
It is safe to note, that of all the rights that can
visibly come under the general discourse of human rights, [2]
we are concerned about the right to life, the right to personal dignity, the
right to liberty, right to fair hearing and in particular, the right to legal
representation by a counsel of one’s choice.
The right to legal representation by a counsel
embodies a realistic recognition of the inability of the average defendant or
accused person to comprehend the legal intricacies of our civil or criminal
justice system and therefore needs legal assistance in that respect so that the
parties can be placed on equal footing and justice wouldn’t only be done, but
seen to have been done in any matter before the court of law.
Precisely,
under our law in Nigeria, the right to legal assistance of representation is
constitutionally provided for [3],
and this right is extended to a citizen implicated in a criminal case, at
pre-trial, trial and post-trial or custodial stage of the proceeding.
RIGHT TO
COUNSEL BEFORE TRIAL
“Any person who is arrested or detained or
detained shall have the right to remain silent or avoid answering any questions
until after
consultation with a legal practitioner or any person of his choice” [4]
It is a pitiable fact that most suspects must have
been brutalized an sometimes, extorted in detention, all in the name of
eliciting information and in most cases, some of these suspects fall prey of
making involuntary statements.
We must note that the provisions of the law [5]
cover pre-trial interrogation by the police immediately after the arrest and
during his detention in the police custody. There is no doubt that the
interrogation of suspects and the interview of witnesses are very important
aspects of our criminal justice administration system. Properly conducted investigation
of an accused person in police custody is to elicit information or evidence of
the author of a crime or its commission. Little wonder, under the said
provisions of the constitution, a person arrested or under detention is
entitled to his lawyer or any other person of his own choice as he may elect to
keep mute until his right is respected under the constitution. UNFORTUNATELY,
subscription to this attracts violation of his fundamental right – the right to
human dignity.
In our accusatorial criminal justice system, it is for
the prosecution to prove the guilty of the accused and not the office of the
accused to do so. Coercive interrogation, geared towards obtaining information
or evidence by whatever means is frowned at.
Consequently, where an accused is alleged to have
owned up or confessed to the commission of a crime, the confession must be
voluntary rather than being involuntary. The court opined in BALOGUN V A. G. FEDERATION [6]
that,
“The issue of
voluntariness of a statement to the police is taken seriously by the courts. If
the statement is not shown to be voluntary, it is not received in evidence on
the ground that it would not be safe to receive a statement made under any
influence of fear or hope of advantage or by oppression.”
While the law guarantees right to counsel at this
interrogation stage i.e. before trial frowns at coercive interrogation and
obtaining of statements from the accused person by force. Police practice,
however shows zealousness on their part to ensure conviction at all cost
without playing according to the rules. Oguntade JSC in SHALLA V STATE [7] opined
that confession must be voluntary and such is a basis for conviction. It has
been observed by learned writers that the police force in Nigeria detests and
resists consultations between suspect and their counsels before and during
interrogation, and that contact with counsel is usually permitted only after
interrogation and taking the statement of the accused. This police practice
should be abated, deprecated and truncated, as it is unconstitutional.
It is important to remind ourselves that in criminal
justice system of the fact that the legal practitioners should be seen as
ministers in the temple of justice. The police should be seen as investigators
and lawyers as prosecutors and not persecutors, the duo are ensued to work as a
tag-team in the realization of the administration of justice.
Still on the interrogation of suspects, there is need
for the police to ensure compliance and observance of internally laid down procedure
of interrogation i.e. JUDGES’ RULE and to ensure that the true import of
requisite caution is accepted and respected, since lack of it may result or
generate to the inadmissibility of statements so obtained and may be fatal to
obtaining a conviction in appropriate cases. In some instances, where the
accused contends that the statement was not made by him, it may lead to trial
within trial. This was confirmed by MARY PETER-ODILI JCA (As He Then Was) in FATILEWA V STATE [8]
RIGHT TO
COUNSEL DURING TRIAL
The rights accused person to defend himself in person
or by a legal practitioner of choice cannot be over-emphasized. The Supreme
Court in R. V UZODIMA [9] that,
“Any provision
of our law, which precludes lawyers from representing an accused person in a
Court of law, shall be null and void for being inconsistent with the
constitution.”
Where the accused is brought before the court without
any representation, the court must therefore inform him that he has a right to
be represented be a counsel because, such rights cannot be waived.
The law provides that every person who is charged with
a criminal offence shall be entitled “to
defend himself in person or by a legal practitioner of his own choice” [10]
The popular case of OBAFEMI AWOLOWO & ORS V. FEDERAL MINISTER OF INTERNAL AFFAIRS [11] explains
more on that point. Now, the legislative intendment as regards the right to
counsel of one’s choice can be said to be that the right is guaranteed to all
not because all could actually enjoy it in terms of financial capability but
those with the ability to do so, should have no interference. Those who are
ignorant or too poor to take advantage of there are been observance to be
responsible for their condition.
However, the law expressly stated that the Court shall
“if practicable” assign a legal practitioner for his defense where a person
accused of a capital offence is not represented. [12]
This legal representation is sine qua non
to fair trial especially to a capital offence. The Supreme Court in JOSEPH V THE STATE[13] concluded
that any conviction arising from failure to comply with the statutory and
constitutional provision regarding the assignment of a counsel cannot stand and
such a conviction will be set aside and a retrial will be ordered. Besides,
such defense (especially in capital offences) must be done with diligence because,
if the matter is handled with a lackadaisical approach, it can’t be seen as a
fair trial. This implies that: the counsel must be rendered to the accused
person, reliable and professional services all through.
As mentioned inter
alia, where an accused with certain limitations elects to represent
himself, he can do so, as long as he confidently waive his right to counsel and
such right is effectively made. Therefore, the accused can terminate such right
at any stage of the proceedings because the contrary will amount to a denial of
such aright if he is not allowed to terminate the service of his lawyer at any
stage of the proceeding and thereafter, he can continue to defend himself, if
he so decides. This was affirmed by the Court of Appeal in ADAMU V A. G. BENDEL STATE.[14]
RIGHT TO
COUNSEL AT POST-TRIAL OR CUSTODIAL STAGES
The right of a counsel’s assess to his client for
consultation ensures even after sentence pending possible appeal or during the
service of court sentence. A quick perusal of the relevant provisions of the
constitution will be quite helpful.
Section 33 (1) [15]
provides that:
“Every person has a right to life, and no one shall be
deprived intentionally of his life, save on the execution of sentence of a
Court in respect of a criminal offence of which he has been found guilty in
Nigeria”
Section 34 (1) [16]
(a)
“Every
individual is entitled to respect for the dignity of his person and accordingly
no person shall be subjected to torture or to inhuman or degrading treatment”
Section 35 (1) [17]
“Every person shall be entitled to his
personal liberty and no person shall be deprived of such liberty save in the
following cases and in accordance with a procedure permitted by law…
a)
In execution of
the sentence or order of a court in respect of a criminal in respect of a
criminal offence of which he has been found guilty”
Section 36 (5) [18]
“Every person who is charged with criminal
offence shall be presumed innocent until he is proven guilty”
Although, litigants are entitled to conduct their
cases either in person or by legal representation, and in case of a defendant
who is in custody or on remand; he shall be allowed the access of a legal
practitioner at a reasonable times; the summary of all the above is that there
is need to prove the guilty of the accused person before the deprivation of his
liberty. For a person to be regarded as proven guilty, he must be allowed to
exhaust his right of appeal. Therefore, where an accused is still in the
process of exhausting his right of appeal, up to the apex court, the sentence
of the court is stayed and cannot be executed. If it is, the state would pay
drastically for the gross injustice. This is the sad case of BELLO V. A.G. STATE.[19]
A prisoner is not completely robbed of constitutional protection merely because
he is lawfully imprisoned for a crime as there is no iron curtain drawn between
the constitution and the prisoners of this country. When a person is convicted
and under the custody of the government i.e. prison authorities, we believe
such a person is nonetheless, entitled to the respect of his right to dignity
of his person. This discourse will not be complete if the responsibility of a
legal practitioner to his client [20]
– the accused is not considered. From the above, a quick reminder points out
that before trial, a counsel should show true dedication and devotion to the
cause of his client.
In ensuring this, he should consult with the accused,
all question of doubt which does not fall in his discretion, respond promptly
to his entire request, and devote adequate expertise in the interest of
justice. Furthermore, the pursuit of bail is advised (especially before
conviction of during appeal). However, the accused must also be restrained from
conducting himself in a manner that can result into breach of the law or
interference with justice.
Generally, on the right to legal representation, it
must note that notwithstanding the fact that the constitutionally and
statutorily provided for, it is not a right that is very widely enjoyed in
Nigeria in practical terms. In the past, reports had shown that out of 49, 505
inmates in 239 prisons, 38,279 (68%) are awaiting trial inmates and 17,656
(32%) have been in prison for five years and above and out of 1,434 inmates on
death row, more than 200 of them have been on row for 15 years. Thus, 65.3% of
the accused persons standing trial before the Nigerian Courts were not defended
by counsels, for a variety of reasons; those that were not allowed to contact a
lawyer are 24.3% and those who not require a lawyer 15.4%. Actually 95.8% of
the accused indicated that being given a choice, rather that contacting a
lawyer upon arrest, prefer contacting a relative or employer. Such attitude
indicates their lack of understanding of advantages of early representation by
counsel. [21]
It is acceptable fact that where citizens are aware of
the benefits of early legal representation, it becomes very difficult for human
rights to be breached as ordinary people themselves are watchdogs for the
protection of their rights. Better still, the government should be seen to
embrace prison decongestion more and the enforcement of this right should be
proclaimed.
1. 1.
O.
O. DARA ESQ, LL.B(HONS), B.L, Solicitor and Advocate, Dele Olaniyan & Co,
Post Office Road Kano. 2011.
2.Universal
Declaration of Human Rights, African Charter of Human and People’s Right, the
Nigerian 1999 Constitution et al.
3.Section 36 6 (c) of the 1999 Constitution.
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