An Analysis of the Provision of Section 232 of the Administration of Criminal Justice Act 2015

CONTRIBUTED BY CHIKEZIE M. IWU

INTRODUCTION

In recent times, improvements in law enforcement have brought observer assurance worries to the fore and Nigeria’s law enforcement agencies have been stood up to with witness terrorizing. To provide a statutory basis for protecting witnesses, the Nation included witness protection provisions in various laws at various times and a perfect example is Section 232 of the Administration of Criminal Justice Act 2015 (ACJA). This law provides protective measures for crimes like terrorism, economic and financial crimes, human trafficking, and sexual offences.

As an important source of evidence, a witness’s testimony is where a person has firsthand knowledge of what happened at the crime scene or who is aware of other important details that are significant to the case.

This article delves into discussing who is a witness under the Act, the objective of Sec. 232 ACJA, and the significance of concealing the identity of witnesses in criminal proceedings.

A WITNESS UNDER ACJA 2015

Under the Act, there is no specific definition of who is a witness. However, Section 175 of Evidence Act 2011 is titled ‘Who may testify‘, under Part XI (WITNESSES) of the Act and describes persons who can and can’t testify in Court and Section 255 of the ACJA states that “subject to the provisions of any other law, examination of witnesses shall be in accordance with the provisions of the Evidence Act”^[1]. This simply means only persons under the category of persons that can testify in Court can be called witnesses in a trial.

Under ACJA 2015, Persons in Court may be required to give evidence though not summoned and this is according to Section 248 of the Administration of Criminal Justice Act 2015, “A person present in Court and compellable as a witness, whether a party or not, in a cause, may be compelled by a Court to give evidence, and produce any document in his possession, or in his power, in the same manner, and subject to the same rules as if he had been summoned to attend and give evidence, or to produce the document and may be punished in like manner for any refusal to obey the order of the Court”^[2].

Lastly, a witness from the various laws cited above can be said to be a Person who comes to Court and swears under oath to give truthful evidence. One who is competent, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue at the trial.

OBJECTIVE OF SECTION 232 ACJA 2015

The objective of Section 232 of the Administration of Criminal Justice Act 2015 is the procedure for trial on charges for certain offenses. So far there, is a deliberate effort under the ACJA 2015 to transform the criminal justice system to a system that prioritizes the needs of victims of crimes, witnesses, vulnerable persons, and society. Though it is at the discretion of the Honourable Court where it deems it necessary, it gives significant confidence and reliance on witness testimonies in prosecuting the crimes under the Act.

Section 232 of the Act lists a plethora of circumstances in which a witness should be protected and explicitly addresses the significance of witness protection.

The Witnesses are permitted to give evidence on camera including:

(a) Sexually related offenses,

(b) Terrorism offenses,

(d) Trafficking in Persons and related offenses, and

(e) any other offence in respect of which an Act of the National Assembly

permits the use of such protective measures or as the Judge may consider

appropriate in the circumstances.

(a) Receive evidence by video link.

(b) Permit the witness to be screened or masked.

(d) Any other measure that the Court considers appropriate in the circumstance.

Nevertheless, in a recent case, the Court construed Section 232 as inapplicable to justify the use of a mask to cover the face of a witness as this would interfere with the ability of the judge to have recourse to the witnesses’ demeanour to assess the credibility of the testimony. Curiously however the same Court reportedly allowed the witness to be screened from the view of members of the public other than the judge, the defendant, and the counsel.^[3]

CONCEALING THE IDENTITY OF WITNESSES

The safety of a witness who is responsible for oral testimony in the prosecution of crimes has hardly received statutory consideration. The overall effect of this lack of protection for witnesses has resulted in the unfortunate striking out of cases involving heinous crimes by the Courts, as witnesses often refuse to testify due to the absence of a system designed to cater to their protection by the State. Hence, witnesses and their relatives often lack the confidence to testify in proceedings

Section 232 of the Act lists a wide range of possible scenarios where the witness should be protected and permits witnesses to some offenses to give evidence on camera. These include sexual-related offenses and trafficking in persons and related offenses, and any other offense in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstance^[4].

Under this provision, the name and identity of the victims of such offenses or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets^[5]. It further provides that where in any proceedings the Court determines that it is necessary to protect the identity of the victim or a witness, the Court may receive evidence by video link, permit the witness to be screened or masked, receive a written deposition of expert evidence and take any other measure that the Court considers appropriate in the circumstance. This will be so where the proceedings relate to an offense against or any conduct contrary to decency or morality.

The Act is fiercely protective of these provisions as it further provides in Section 232(5) that anyone who contravenes the provisions stating that the names, addresses, telephone numbers, and identity of the victims of such offenses or witnesses shall not be disclosed, shall have committed an offense and liable on conviction to a minimum of one-year imprisonment^[6].

It is trite in Law to note the dictum of Oputa J.S.C (as he then was) in the case of Godwin Josiah v the State, wherein he stated that:

Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even, only a two-way traffic. It is justice for the defendant accused of a heinous crime of murder; it is justice for the victim, the murdered man, i.e. the deceased ‘whose blood is crying to the high heavens for vengeance’; and finally it is justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of… that justice which seeks only to protect the appellant is not even-handed justice… but justice sacrificed at the shrine of guilt.^[7]

Drawing an inference from the dictum of Oputa JSC as he then was, gives a clear light on the importance of justice for all parties involved in a case and this is emphasized on the level of intimidation that results from the part of witnesses before now and with protective measures having been implemented in Nigeria, it now facilitates witness cooperation to secure justice for everyone.

CONCLUSION

As part of the purposes of the ACJA 2015 is to address the issue of witness protection among others, the protection of witnesses at every level of the criminal procedure, starting with the investigation, during the course of the trials, and trial proper is of utmost importance until such protection is no longer necessary. It is important to end the protection in a way that won’t put the witness’ interests in jeopardy.