By O.G. Ogbom, Esq.
With due respect to Okutepa, SAN, there is need to apply caution in our efforts to bequeath more powers to persons who have continued to abuse power with disdain. It is disheartening and uninspiring that we still celebrate or justify remnants of colonial laws which should be weeded out of new legislation. That notwithstanding, the said section 484 reads in part:
“Where any person is ordered to be detained during the Governor’s pleasure”
A careful reading of the first arm of the provision would reveal that it does not in any way state whether or not the order wil be made by a court of law, Police, Army, Navy, Vigilantes, etc. It is with no predetermined limit or boundary. Assuming it is to be made by a court of law, which of the courts? A matter as sensitive as detention during Governor’s pleasure i think, should not be left to conjecture or just pleasure as it were. It should be clearly defined to ward off mischief and to ensure that it is not used as a tool for political vendetta.
In his efforts to justify the said provision, Learned Silk relied on section 363(3) of Criminal Procedure Law. The said section states that:
“Where an offender who in opinion of the court had attained the age of seventeen years at the time the offence was committed is found guilty of a capital offence, sentence of death, shall not be pronounced or recorded but in lieu thereof, the court shall order such person to be detained during the pleasure of the Governor and if so ordered, he shall be detained in accordance with the provisions of Part 44 notwithstanding anything to the contrary in any written law”.
As noted earlier, though section 363(3) should ordinarily not have any business with new legislations in Nigeria as it is colonial in nature. But a careful reading of the two provisions i.e sections 363(3) of the Criminal Procedure Law and 484 of Imo State Administration of Criminal Justice Law, would show that they are not on all fours.
While section 363(3) talks about “offenders who are found guilty of a capital offence when they are below seventeen years at the time of the offence and detention in accordance with Part 44, section 484 recklessly and carelessness has nothing to do with court, offence, the age of the offender and how the detention is to be made. This is a far cry from the provisions and cases cited by Learned Silk to buttress his point.
The intention of the Lawmakers might be genuine but the provision says otherwise, as it appears to be in serious breach of Audi alteram partem rule(let the other party be heard).
In Nishizawa v. Jethwani (1984) 12 S.C. 234 at 284 – 285, per Saidu Kawu, JSC., has this to say:
“The principle that no man is to be judged unheard is as “old as the Garden of Eden”.
Im the same vein, it is also important at this point, to highlight the adverse consequences of detention during Governor’s pleasure (indefinite detention) and how it is now handled world over.
In an Australian case of KA v Commonwealth [2014] AusHRC 80, 3 [4], 44 [273]. The Australian Human Rights Commission determined that the rights of two Indigenous men were violated multiple times while they were detained indefinitely in the Alice Springs Correctional Centre after being found unfit to stand trial . In another case of Colleen Egan, ‘Marlon Noble “Victims” Don’t Recall Sex Crimes’, The West Australian (Perth), 18 April 2011, 3. The United Nations Committee on the Rights of Persons with Disabilities (‘CRPD Committee’), took account of ‘the irreparable psychological effects that indefinite detention may have on the detained person’ and considered that the indefinite detention to which Mr Noble was subjected amounts to
inhuman and degrading treatment.
Australia’s unfitness to stand trial laws have been heavily criticised by both the United Nations’ Human Rights Council and its CRPD Committee.
Moving forward a universally accessible justice system, It is critical that an appropriate range of non-custodial options be put in place which would enable the judiciary to make findings of guilt or innocence, and where guilty, to provide an appropriate sentencing response. Of great concern is the fact that without the further development of models of non-custodial sentences, the sentencing needs of offenders with an disability should be made to be hidden through the use of restrictive bail, dismissal orders or placement in institutions.
Maybe, i need to re-emphasize, that Nigeria is indeed a funny country.
O.G. Ogbom, Esq.
Partner, Law Freight Attorneys.
[email protected]
