Lawyer Challenges ACJA, Says Clause Providing Trial In Absentia Unconstitutional



Story by Gbenga Ogunbufunmi


A Lagos-based lawyer, Gideon Okebu, has filed a suit before a Federal High Court, Lagos, seeking an order expunging a section of the Administration of Criminal Act (ACJA), which provides for the trial of any defendant in absentia.

Okebu in a suit marked FHC/L/CS/150/19, listed the Attorney-General of the Federation (AGF) and the National Assembly as the first and second respondents.

The lawyer also wants the court to declare that the second ambit of Section 354(4) of ACJA 2015, which provides trial in absentia as a gross violation of his rights and general public’s constitutional rights to fair hearing as contained in Section 36(4) and 36(6)(d) of the Constitution of Nigeria, 1999 (as amended).

He also wants the court to declare as null and void the said second ambit of section 352(4) of ACJA 2015, for being inconsistent with the provision and spirit of the 1999 Constitution (as amended) and interpreted by the Supreme Court.

The applicant further ask the court to direct the defendants jointly or severally to pay him the sum of N2 million been the cost of instituting the suit.

The lawyer stated that one of the ground for the reliefs sought is that by virtue of Sections 36(6)(d) of the Constitution of Nigeria, 1999, any Nigerian who is charged with a criminal offence shall be entitled to fair hearing and entitled to be examined in person or by his legal practitioner witnesses called by the prosecution before any court in Nigeria.

He also stated that the procedure for trial in absentia as provided for by Section 352(4) of ACJA 2015, circumvents the guaranteed constitutional provisions and procedures for fair hearing as laid down in the Constitution.

Okebu in an affidavit in support of the suit averred that the 1999 Constitution of Nigeria came into force on the 29th May, 1999, wherein himself and other peoples of Nigeria resolved that the Constitution would be Supreme. Adding that I am aware that the Constitution of Nigeria provides for the rights of persons charged with criminal offences and some of the procedures to be followed in criminal trials.

He also stated that he is aware that Superior Courts of record in Nigeria including the Supreme Court, have interpreted the rights and procedures constitutionally provided for in criminal trial.

The plaintiff also stated that himself and other Nigerians had prior to the year 2015, been given the right to be present in Court during every criminal proceeding to which we are parties or representatives. And that on 13th May 2015, when the Administration of Criminal Justice Act 2015 was passed by the second Defendant into law, the second ambit of Section 352(4) of the said Act made it possible for the criminal trial of any Nigerian to go on in his absence up until conviction.

And that pursuant to Section 352(4) of the Administration of Criminal Justice Act, online news reports, on 20th November 2018, reported that a Nigerian was tried in his absence despite the explanations put forward by his Counsel.

He also stated that on 22nd November 2018, he watched a live broadcast of a program called “Journalist Handout”, where a number of Nigerians expressed their disapprobation about the trial in absentia procedure and further expressed general resentments about the Criminal justice System, which a majority of the Nigerians who called in on the program regarded as highly vindictive and offensive to the rule of law.

He stated that his right as a Nigerian citizen, as well as his right as a legal practitioner to be present and/or represent his Clients in every criminal proceeding, is prejudiced by the trial in absentia procedure. Adding that the legitimacy of the Criminal Justice System and the hopes of the common man and the general public are all affected by trial in absentia.

Okebu, while urging the court to grant the declarations and order sought, said he deposed to the affidavit in good faith conscientiously and objectively believing same to be true and in accordance with the Oaths Act 2004.

No date has been fixed for hearing of the matter.

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