By Mofoluwawo Oluwapelumi Mojolaoluwa
Criminal litigation can be a daunting task in Nigeria, especially for a prosecutor. Not necessarily because of the duty of proving the accused person guilty or disproving the accused person’s innocence which is rather straightforward from this side of the fence; but because of the avoidable and unnecessary impediments applicable to the prosecution, and the prosecution alone. Between 2021 and 2022, I worked for nineteen months as a prosecutor in the department of public prosecutions of a south west State in Nigeria. I worked in a team of four. While I was not the lead on any of the thirty cases or more that my team handled, my work bothered around facilitating witness presence in court, filing and moving innocuous applications, tracking paperwork, and deputizing for the team lead. This piece is a reflection of my experience.
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Asides the generally applicable bottlenecks of absentee defendants due to poor communication with correctional facilities, lack of counsel on the side of the defendant which sometimes means that a matter is mentioned and adjourned several times before going to trial, absentee defendant counsel, preliminary applications which means that the court has to hear and rule on such before trial can proceed; a challenge peculiar to criminal litigation is the ‘prosecution’s lack of witnesses’. I use this term loosely in an attempt to reflect the disposition of the defense and other stakeholders in a criminal trial. You see, the issue is not necessarily that the prosecution does not want to prosecute. This is how things unfold in the prosecution’s camp. When a file is assigned to a prosecutor, he studies the file, prepares counter-affidavits to any applications, and begins to assemble witnesses.
The witnesses in most cases are a mixture of civilian witnesses- laymen and expert witnesses alike, and investigating police officers (IPO). For instance in a rape case, you would normally need the primary IPO and any other IPO, the victim/complainant, their legal guardians (where under aged), eyewitnesses, the doctor who prepared a medical report during police investigation, the photographer (if photos were taken) etc. The prosecutor begins to call, text, and write to witnesses, thank God for technology. In some instances, a long time would have passed between when the matter was first reported and when trial commences, so he has to remind the witnesses of the case/story before even securing a promise to attend court. Civilian witnesses often indicate a surprise that the case has been filed in court, express little faith in any tangible results, indicate that they are no longer interested in the matter, have moved out of jurisdiction, or have a job that will not give them time off. Some go ahead to ask what is in it for them. A tough question to answer.
The Nigerian criminal justice system is more punitive than compensatory- not really the ideal. If you have had your TV stolen for instance and the thief is caught, the focus is not to retrieve and return your TV to you. It is never recovered in most instances. Where it is recovered, it is kept in evidence for as long as the case lasts which could mean years. Spoilage, depreciation, just forget about it. Yes, a conviction will punish the thief and deter others, but why should the victim not be catered to? How about the woman whose son had been murdered, who sorrowfully told me to never call her again? The man whose bike was stolen at gun point, who then showed up at an identification parade and identified the robbers, but whose bike was never recovered?
For police witness, communication is a great challenge. The IPO will not move an inch except he receives official signal to do so. This means that official letters have to be written to his commanding officer weeks ahead asking that he/she be released to testify in court. This also means that a reminder letter has to be sent when the date is close, and reminder phone calls made to the officer a day before trial. What if he comes to court and the court adjourns because defense did not show up or officials of the appropriate correctional facility did not bring the defendant, the prosecutor has to repeat the entire process. If he does not, if he relies on a mere phone call, he may be setting up for maximum disappointment. I once tracked down and elicited a firm promise from an elusive IPO to testify as the final police witness in a murder trial only to be stood up on trial day.
When I reached out to him, and reminded him of his promise just the day before, he informed me he had been assigned to an outpost duty, election monitoring in another state, that morning. Sometimes the IPO is giving testimony in another court, sometimes he has been posted to another state or even out of the country, My team once found out an officer had been posted out on a peacekeeping mission in another African country, after several letters to the police and visits to the police station. These are some of the challenges the prosecution faces in bringing witnesses to court. The interesting thing is, none of these efforts matter so long as the witness is not in court, in the box giving testimony, prosecution is ‘nonchalant, lackadaisical and lazy’. For expert witnesses, they do not have the luxury of getting off work each adjourned date, and when they come to court and are kept all day, who compensates them for what they might have made on their own jobs, if they had not come to court?
When prosecution finally succeeds in bringing its witnesses to court, there is no guarantee that trial will proceed according to expectation. A judge may rise early to go to another official function, may not sit at all due to ill health, a protracted trial may deprive other matters of time of day, the defense may not show up, may show up not ready for trial, or not ready to cross examine, the defendant or one of the defendants may be absent. These factors render a prosecution witness’s court attendance useless and necessitate a repeat attendance. In some instances, witnesses become elusive afterwards. Sometimes, the other side gets to them after the first appearance, and they are compromised or scared away. Witness protection is at the moment, a mirage in Nigeria, despite the provisions of 232 of the administration of criminal justice act (ACJA). S246 which proscribes witness absenteeism is more decorative than helpful. Although, section 251 made provisions for prosecution witness expenses and 253 provides for witness compensation at the expense of the party seeking or occasioning an adjournment, this letters of the law are hardly given effect. What then is the way forward?
The Nigerian criminal justice system must begin to lean towards being compensatory and not merely retributive. A witness should not have to ask the prosecution what they stand to gain as that should be obvious and guaranteed. Police going beyond mere arrests to retrieve proceeds of crime and return same to their owners/victim, adequate compensation for time and resources expended to attend court, fail proof witness protection. The criminal justice system should be pro-witness, and not just anticrime. Parties who stall trial must be made to compensate witness. Sections 251 and 253 and 246 of the ACJA must be thoroughly implemented. Expert witnesses must also be compensated for what they might have made if they had spent their day on the job and not in some courthouse, giving evidence. While some Nigerian states already have specialized criminal courts, all states must subscribe to it as a matter of expediency. That way, the court docket is streamlined and criminal trial can be expedited. Aside that, in non specialized courtrooms, priority must be given to criminal matters on the cause list. That will reduce incidences of fruitless court attendance by witnesses, witness compromise and witness fatigue/weariness. An internal reward system must be instituted within the police force to encourage IPOs to follow their cases through by giving evidence in court. IPOs must undergo specific court attendance preparatory sessions on dress code, conduct, communication, language and precision on the witness stand. An IPO whose colleague was a no show on a trial day insisted that said colleague deliberately shied away from court, because he was afraid of taking the stands. Police witness must be given strict ethical trainings on non compromise and rewarded for efficient evidence giving whether the case results in a conviction or not.
There must be an improved synergy between the department of public prosecutions and the police force. Securing witness attendance in court should not be the responsibility of the prosecutor alone, the police as the first contact in most criminal matters, must also do their best to ensure their own presence and that of civilian witnesses in court. After all, they took the statements of these witnesses in the first place. The police force must set up a working mechanism to ensure an IPO’s availability within jurisdiction, to give evidence in court, while the matter subsists.
An argument against incentivizing prosecution witness is that of swaying them to give evidence in favour of prosecution as opposed to giving honest and credible testimony. This piece is not proposing a bribery or witness corruption method, no. The incentives must be those which facilitate witness presence in court, as espoused hitherto. Incentives which reinforce the witness’s faith in the justice system, and enlists them as an integral and well catered to part of the system. To all intents and purposes, crime prosecution must be viewed by all stakeholders aforementioned, as a concerted effort. This is the way to overcome the challenge of tardy criminal justice at the prosecution’s instance, and ensure speedy and thorough criminal trials.
Mojolaoluwa is a Nigerian Lawyer and can be reached at houseoflivingstones@gmail.com
