Nigeria’s adversarial justice system, pitches the prosecutor against the defense, in a fierce evidential ‘duel’ as to the guilt or otherwise of an accused person. That leaves a stand-alone bench to determine – on the basis of the weight of evidence – whether the accused person is innocent or guilty. This tradition was inherited from the British common law. The ‘fate’ of an accused person therefore rest solely on the bench – a single Judge at first instance trial – who applies the facts to the law, to arrive at a conviction or acquittal. This practise has never seriously been questioned whether jurisprudentially, procedurally or if it works justice for accused persons. Although there are further destinations of appeals, i.e. from the decision of a Magistrate, to a single high court Judge. If dissatisfied, appeals lie further from the high court Judge, to the Court of Appeal sitting as a 3 Justices panel; finally, to the Supreme Court, constituted by a 5 man panel of Justices. There are calls for the US and civil law style trial by judge and jury, but this has so far not gained sufficient currency to warrant an interrogation of the state of the present criminal justice system in Nigeria.
The rot from within the system
It is conservatively estimated that the average waiting trial period between arrest and eventual conclusion – sentence or acquittal – is put at 5 to 7 years. A number of reasons have been adduced for this prolonged delay: these range from policing constraints; poor investigation; the work of the police not syncing with those of the prison services and court; the notoriously slow prosecutorial decision making process by the police and the ministry of justice. The result is that, the number of persons held and awaiting trial in preventive detention at police and prison detention centers, is put at well over 30,000. The outcome is court congestion, where magistrates end up only having cases for ‘mention’ and adjourning others, most times for mundane reasons like the absence of the investigating police officer; a missing case file; failure by witnesses to attend court; or client failing to put counsel in funds – 70% of accused persons are indigent. Also, the antics and delay tactics of counsels does not help matters –bad lawyering.
Will trial by jury help ameliorate these anomalies?
The impediments to the quality of justice delivered, as described above is systemic. It involves virtually all agencies of the administration of justice – from the police to prisons, judicial officers, and importantly, the failure of the executive branch of government to see through the implementation of recommendations by countless Committees and Commissions. It will be absurd and simplistic to assume that merely introducing trial by jury will rectify this systemic problem. However, jury trial is one of the many initiatives that could be combined with others, to reset the system and get it to work as smoothly as possible.
Trial by judge and jury is composed of a single trial judge who gives legal advise on matters of law and procedure, and provides legal direction to the jury members. The members of the jury are left to determine the facts and then come to conclusions of either guilt or acquittal. Jurors are ‘ordinary citizens’ competitively selected randomly. They are not required to have legal knowledge, nor be connected with the accused persons or case in any anyway. They are also scrutinized by counsels should they find any reason to do so. A jury is usually composed of 12 members who must deliberate consensually to arrive at a verdict of guilty or not guilty, on the strength of the evidence and facts presented in open court. A split decision will usually mean that the decision of the majority prevails. Exceptionally, if the jury is evenly split, or unable to collectively arrive at a decision, the trial is stalemated and a retrial ordered.
The big advantage of trial by jury is that, the accused person is being ‘judged’ by ordinary citizens like him. It undermines a lot of the legal niceties and undue delays. It considerably reduces and quickly resolves the technical aspect of the trial procedure and administrative issues in a practical way. It is possible jury trial will help to deal with some of these anomalies. But jury trial will have its own drawbacks given the novelty of the procedure; the mechanics of putting it in place; jury selection process; the proper or overlapping role of Judge and jury. One way of getting round this would be a staggered implementation process, initially limited, either to certain high profile cases, or type of offences; indeed, it could be test run in designated states of the federation. With the right mix of personnel and legal framework to back it up, this is achievable.
Conclusion and looking ahead
It is by no means suggested here that the introduction of trial by jury will be the cure-all panacea for the broken criminal justice system in Nigeria. Corruption –institutional and personal; poor investigative skills, all play equally significant roles. What is strongly advocated is the possibility of reworking the justice system to be more ‘people friendly’. The system is so detached from Nigerians. At the state level, Judges and Magistrates are ‘appointed’ unlike in the US where they are ‘elected’ by the people. The judiciary is lumped with, and viewed as a state institution, and like all state institutions in Nigeria, it is viewed from the perspective of the ‘we’ versus ‘them’ mentality. Nigerians are so disconnected from the system that they regard institutions as the enemy. The judiciary is an independent arm of government. There should be clear separation of powers and ‘purpose’. Justice must be seen to be manifestly and transparently delivered. Jury trial might just be one way of guaranteeing that, going forward.