Hopes, Disappointments and Expectations 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Expectations for 2024

Happy New Year to you all. 2023 was another ‘Annus Horribilis’, in terms of the ‘next level’ of financial hardship Nigerians experienced, amongst other gloominess like insecurity. I seize this opportunity to express my condolences to the people of Plateau State, on the death of hundreds and the destruction of property, resulting from an attack on Christmas Eve; and to the people of Wusa, Taraba State on a similar attack last week. Hopefully, this year will be better. 

I don’t think there’s any need for me to list my expectations for 2024, because it will simply be a regurgitation of last year’s list. I  believe we all know what we want – good and responsible governance, security, curbing of corruption to a minimal level (realistically, it may not be capable of being totally eradicated), improvement in the economy, healthcare, education, better opportunities and employment for young Nigerians, a reordering or adjustment in the remuneration system of Nigerian workers, that is, for the deserving like the low income Nigerian workers, judicial officers, medical workers to better remunerated, while the undeserving who receive unjustifiable salaries and allowances, receive their fair remuneration, which will obviously mean a pay cut! It makes no sense for majority of Nigerians to be paid less than a living wage, while a few privileged ones are overpaid. It is unconstitutional. See Section 16(2)(c) & (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution).

Many are also looking forward to a restructured Nigeria, complete with true federalism, as opposed to the unitary system we are running now, and hopefully, a referendum and the drawing of a new Constitution of the people by the people for the people, to replace the 1999 Military Constitution.

As we begin 2024, I think that being a fairly new Government, the Tinubu administration should or would have spent the festive season deciding on its goals and focus, and strategising on how to achieve them, especially after many of the key members of the administration just returned from the Climate Conference in Dubai. Not being blind, they obviously saw how oil money, focus, vision and integrity has transformed Dubai in 20 years. If Dubai was like Nigeria, would Government Officials, the Nigerian elite and Nigerians generally, love travelling there? I think not. Not having been welcome in Dubai for quite a while now, many Nigerians seized the opportunity on the guise of attending the Climate Conference, to be on the Government’s entourage, just to be able to visit Dubai. Someone told me that he was pretty sure that out of the 1400 Nigerians that purportedly went for the  Conference, probably 1300 know nothing about climate change! 

We expect that in 2024, this administration will stop the wasteful spending that has become the hallmark of successive Nigerian Governments, and which we really cannot afford. 200 million Nigerians cannot be continuously told to tighten their belts and make sacrifices, while Government remains on a spending spree, lavishing money on luxuries and unnecessary things.

About a year or two ago, I saw a video on social media, in which the main actor said that when our so-called leaders who travel abroad rather regularly say they are travelling, one would imagine that they travel to the village and not Dubai, USA, London, even Rwanda here in Africa, the irony being that, instead of coming back to replicate the positive things that they enjoy in those places, so that their home country can be equally developed and comfortable, they are content to leave Nigeria poor and backward, while they loot the country blind to acquire properties etc in those same countries that they love to visit. I fail to understand it. I thought charity begins at home! And, by the way, Corruption is one of the worst killers of progress and development; it needs to be tackled head on. 

And, to tell the truth, the Tinubu administration doesn’t have to search far in terms of how Nigeria should be, as these goals are clearly stated in Chapter II of the Constitution. Once these goals are met, or well on the way to being met, Nigeria will be a better place. What is the essence of ‘democracy’ without democratic dividends? Or that 20 years after the military left in 1999, Nigerians are worse off today than we were then? Nigerians have reposed confidence in President Bola Tinubu and his ‘Renewed Hope’ Agenda to change this negative narrative, and we are optimistic that we will not be disappointed.

Deficiencies in the Justice Sector

As for we Nigerian Lawyers, our priority should be the revamping and development of our administration of justice sector, so that we can meet global best practices. Enough of some of Lawyers breaching the Rules of Professional Conduct with gusto and aplomb, and facing no consequences. Enough of the opaque manner in which judicial officers are appointed, resulting in some judicial officers who do not quite meet the mark sitting on the Bench; enough of judicial officers turning the law on its head, and giving perverse judgements, as a result of incompetence, compromise and descending into the arena, instead of remaining impartial; enough of the allegations of corruption trailing Senior Lawyers and the Judiciary; Lawyers going on forum shopping sprees, and Judges encouraging them to do so, by hearing such matters and delivering conflicting decisions. Gone are the days when going by the facts of a case, Lawyers could predict the outcome of a case based on law and judicial precedent. 

In 2024, we must embrace science and technology not just in the justice sector, but, generally- for one, we could use technology to man our porous borders. Enough of judicial officers still writing in longhand, as a result of which litigation is slowed down; clumsy or nonexistent investigation by law enforcement agencies. How long are we going to continue doing things in the justice sector, as if we are still in the dark ages? We definitely have a deficiency of science and technology, in our processes. We all know that, in Nigeria, we have a culture of improvisation – in Yoruba, they say “Madam, a le work è!” – “Madam, we can work it”; it is a phrase common to Carpenters, Electricians, Mechanics etc. But, when we project this culture of improvisation into sectors like the medical and justice sectors, it is more dangerous. More often than not, in the medical sector, it may lead to the deaths of patients, while in the justice sector, it may lead to injustice. 

While other countries have moved beyond the old methods of investigation – extracting confessions from suspects under duress, convictions based on solely on conjecture and circumstantial evidence, unreliable eyewitness testimony, with the advent of technology and accurate scientific methods of investigation and detection, Nigeria has remained in a time warp and refused to move with the times. Interviews of suspects are never video recorded, and so-called ‘confessional statements’ are mostly not taken in the presence of Counsel (see Section 9(3) of the Criminal Law of Lagos State 2015)(CLLS)) – which would make for accuracy, and totally eliminate the avoidable trial-within-trial culture. 

The other day, I watched the story of a criminal case in which an American man spent 16 years in prison having been convicted for a rape he didn’t commit, because the victim herself identified him as the perpetrator. With the advent of DNA, he was exonerated when the semen sample obtained from the victim at the time when such testing was still in the trial stages, but was still preserved, was tested all those years later, and the sample turned out to belong to someone else and not him! Victim/eyewitness testimony, is not always true or accurate, and circumstantial evidence can also be just as unreliable. I have even watched cases in true life crime series, in which suspects who were subsequently exonerated by DNA testing initially confessed to crimes they didn’t commit, because they were nervous, or afraid after being arrested, or were simply worn down or threatened by the Police to confess. Has anyone ever wondered why every suspect arrested, has a confessional statement?! See the Anti-Torture Act 2017 (ATA).

Nigeria is still operating in the pre-DNA testing days, as if this technology doesn’t exist. It’s like saying that we will only use the fixed landline telephones of the pre-1990s, and be restricted to receiving only audio calls when we are at fixed locations that have landline telephones, when technology has advanced to GSM on which we can receive audio and video calls anywhere, by means of WhatsApp, FaceTime etc. 

Our courts still seem to improvise and use the “extra-judicial” so-called confessional statements made at Police Stations, mostly not validly taken from suspects/extracted by torture and should be inadmissible (see Section 4 of the ATA), coupled with the testimony of victims, as their own proof beyond reasonable doubt! In 2023! It is as preposterous as a Doctor touching a patient’s forehead, observing that the temperature is high and concluding that the patient has malaria, when it could be something else. There are blood tests readily available, which can accurately pinpoint the presence or otherwise of malaria parasites in a matter of minutes, or other ailments which could cause an elevated body temperature! Why continue with guessing games as if we are in the 19th Century, when we have accurate ways of ascertaining these things, which we are all aware of?! 

X v Y: An Example of a Regressive Legal System 

The other day, I was reading a judgement in the case of a Defendant (Y) who was convicted of the offence of defiling a minor, sexual assault and rape. I discovered that the ‘proof beyond reasonable doubt’ in the verdict of the court, was the usual extra-judicial confessional statement which appeared not to be validly taken from Y and was retracted by Y as soon as he was released on bail, as well as the testimony of the Victim (X) and the prosecution witnesses who never witnessed the alleged incident. By virtue of Section 135(1) of the Evidence Act 2011 (EA), the burden of proof in criminal proceedings is proof beyond reasonable doubt. It is trite law however, that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt or proof to the hilt – see the case of Udo v State (2006) LPELR-3298 (SC) per Aloma Mariam Mukhtar, JSC (later CJN). But, surely, proof beyond reasonable doubt cannot be “he said, she said” – my word against yours; if I’m a bit more dramatic, the Judge will believe me over you? I think not. Let me explain.

Firstly, in reading the judgement, I discovered that the medical report which was tendered as evidence, had no bearing on the case, as X was examined by a Doctor several months after her alleged rape. In fact, X and Y had not been in the same vicinity for months, and the medical report clearly stated that it was based on the alleged rape of X the day before the medical test was conducted. In fact, the judgement stated that the medical report did not link Y to the alleged crime. Though I’m not saying that Y or all suspects are always innocent, I doubt if Y could have been convicted on the same set of facts in USA today, where when a person alleges rape, the victim is taken to the hospital as soon as possible (preferably without cleaning themselves up), so that a rape kit is taken – extraction of semen sample of the perpetrator; examination of the body of the victim to extract third party DNA; clothes worn during the attack etc are also useful. Though in Ogunbayo v State (2007) LPELR-2323(SC) the Supreme Court held inter alia that, in a charge of rape, a Defendant can be convicted on the uncorroborated evidence of the prosecutrix; and it was also held that one of the ways to deduce corroborative evidence is by circumstantial or medical evidence, my contention is that, in this day and age, we should be relying more on medical evidence derived from the accuracy of technology, and gearing our legal system towards taking advantage of innovations that will actually provide proof beyond reasonable doubt in as many cases as possible, ensuring that justice is done, instead of wasting our time on guess work when we no longer need to do so.

Secondly, there was no shred of evidence adduced to prove that X was below the age of 18. In a case of defilement, proof of the victim’s age is crucial, as it forms the basis of the case for defilement, seeing as the Child Rights Act 2003 (CRA) provides that a child is one below the age of 18, and a child is not capable of giving consent. In the case of the defilement of a seven year old child, it would be obvious to the naked eye that such a child cannot be 18, but, in the case of defilement of a 16 year old child, it is not quite as easy to determine, as a 16 year old is probably as physically developed as an 18 year old. It is trite law that, he who alleges must prove – see Section 131(1) of the Evidence Act 2011 and Maihaja v Gaidam (2017) LPELR-42474(SC) per Ejembi Eko, JSC.

In the case of X, who the Prosecution alleged was 16-17 at the time of the alleged rape, nothing was tendered to prove her age – no birth certificate, no school report with her age on it. X simply said she was in a certain class, in a certain year. I submit that being in a class in particular year, cannot be the basis of an accurate representation of one’s age. It can only be, at best, a guide or guess as to the age a person should be. This certainly doesn’t discharge the required burden of proof.

Conclusion 

My point is that, the Tinubu administration must not just resolve to move Nigeria forward, but, be seen to be doing so. This is our expectation for 2024. Nigerians want progress and development, not hardship, promises, motivational speaking and business as usual. As for our justice sector, it also needs to move forward as well, in terms of including science and technology into our processes to meet global best practices and for better justice delivery, transparent and merit based appointment of judicial officers, and above all, an injection of sanity and stability into our legal system, so that the public confidence which has been somewhat eroded, can be restored.