STATUTORY PROVISIONS RELATING TO OBTAINING CONFESSIONAL STATEMENT IN NIGERIA
a. Evidence Act, 2011
Section 29 of the Evidence Act states that if, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is presented to the Court that the confession was or may have been obtained through the following;
(a) By oppression of the person who made it: or
(b) In consequence of anything said or done which was likely, in the circumstances existing at that time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be used against him. This is unless the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was obtained in a manner contrary to the provisions of this section.
The key word in the above provision is oppression. In the decided case of Balogun V. A.G Federation Uwaifo JCA (as he then was) aptly captured the meaning of oppression in the following words
It is oppression for a state security agency to take a suspect or accused into custody in respect of a matter having nothing to do with the security of the state and insist on a statement particularly under circumstances and in an atmosphere which instils fear not only on the suspect but also in the Police Officer called in to take the statement. It is my view that the Court have a duty to discourage this.
Oppression in relation to obtaining confessional statements by law enforcement agencies includes all forms of torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. In the case of COP V Alozie, the Supreme Court held that the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, and threat.
Whether Inducement or Promise of Secrecy Amounts to Threat under the Evidence Act, 2011:
Section 31 of the Evidence Act provides that if a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy or in consequence of a deception practised on the defendant for the purpose of obtaining it or when he was drunk or it was made in answer to questions which he need not have answered or because he was not warned that he was not bound to make such statement and that evidence of it might be given. In regards to Section 31 of the Evidence Act, relevancy is the hallmark of the admissibility of confession which flows from the promise of secrecy.
b. Administration of Criminal Justice Act, 2015
The Administration of Criminal Justice Act came into force in 2015 with several reforms and innovations in the Nigerian Criminal System. The clear aim of the Act is to ensure that the system of administration of Criminal Justice in Nigeria promotes efficient management of Criminal Justice Institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interests of suspects, the defendant, and the victim. One such innovation is with respect to the procedure of obtaining confessional statements from an accused person. Section 15(4) of the Act holds to the effect that where an arrested suspect volunteers to give a confessional statement, he shall be recorded in writing and may also be recorded electronically on a retrievable video compact disc or such other audio-visual means Section 17 of the Administration of Criminal Justice Act, 2015 provides as follows:
(1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken if he so wishes to make the statement
(b) 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 Officer of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal 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
(c) 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 particulars
The purpose of Sections 15(4) and 17(2) of the ACJA, 2015 is to curb the excesses of powers perpetuated by Investigating Police Officers in the course of taking confessional statements from suspects and to obviate the necessity of conducting a trial-within-trial which has been observed to be time wasting in the administration of justice. In interpreting the above statutory provision, the Court of Appeal held in Oguntoyinbo V, FRN, to the effect that once there is a complaint that a confessional statement was not made voluntarily and it is shown to the Court that Section 17(2) of ACJA was breached, rather than enforced by law enforcement agents as required by Section 1 of the same statute, in the sense that where the persons mentioned in Section 17(2) are available and willing to be present in the statement taking exercise but yet prevented by law enforcement agents, the Court ought to, and should as a matter of course, rule such disputed confessional statement to have been made involuntarily and therefore inadmissible in evidence.
However, in the more recent case of Elewanna V. State, the Court of Appeal held to the effect that the provisions of Section 15(4), 17(1) and 17(2) of the Administration of Criminal Justice Act do not apply to the admissibility of Confessional Statements that are governed by the provisions of Sections 28 and 29 of the Evidence Act. The Court further stated that the reason for the above is that the admissibility of confessional statements is solely governed by the Evidence Act, a Federal Act of general application and therefore the inputs of the Administration of Criminal Justice Act as in the provisions of Sections 15(4), 17(1) and 17(2) of the ACJA in relation to the admissibility of confessional statements are not mandatory. The ACJA is basically a procedural Act but in a sense a teleological enactment containing provisions that could be considered ideal and useful as the society progresses. So for now, the admissibility of confessional statements in Nigeria is governed by the provisions of Sections 28 and 29 of the Evidence Act and not the ACJA.”
Clearly, the above interpretations show the conflict between the two statutory provisions that regulate the admissibility of confessional statements in Nigeria. It is recommended that there should be a legislative amendment in this regard in order to bring about a uniform procedure for obtaining confessional statements from suspects.