LITERATURE REVIEW AND THEORETICAL FRAMEWORK OF CRIMINAL
PROCEDURE AND PRACTICES
Naturally, everyone was a free born until society created a system and made
people live strictly by its standards.83
Introduction
The administration of criminal justice system is substantially a give-and-take relation existing
between criminal justice institutions comprising the police, the courts, the prisons (otherwise
referred to as correctional home)84 and other ancillary institutions like the Legal Aid Council and
its effect on the society. It covers in its usual manner arrest, investigation, arraignment,
determination of guilt or acquittal, and punishment. Its objectives are crime protection,
prevention and restrain of criminal justice institutions from displaying any unruly treatment to
suspect or defendants. Precisely, it rules are enforced one the one hand to prevent, detect or
protect the society from crime and on the other, its operation takes cognizance of the
constitutional rights of criminal suspect, defendant and victim. In the normal circumstance this
researcher is posit that when any person is alleged of or accused of having committed a crime
and even when caught red handed; proper investigation and proper prosecution, rather than hasty
arrests by the police or ill-informed prosecution, should begin immediately after a report of
commission of offence to the police, before arraignment and trials are institute by the
prosecution at a court with competent jurisdiction in the subject matter, and sentencing by a
magistrate or judge, and appeals either by state or defendant.
The Legal Dictionary defines criminal justice administration as:
The framework of laws and rules that govern the administration of justice in
cases involving an individual who has been accused of a crime, beginning with
the initial investigation of the crime and concluding either with the
unconditional release of the accused by virtue of acquittal (a judgment of not
83 Austin User,(2016) Legacy Empire gets stronger with User‟s Visitor. Japheth Alake ed. in Vanguards,
Thursday August 11, 2016, p. 20.
84 Samba zap (2011), Criminology and Criminal Justice, Reprinted ed. Ibadan, Spectrum Books Limited, P.
173
guilty) or by the imposition of a term of punishment pursuant to a conviction for
the crime85
However, the ACJA under “arrest generally”; it is provided that:
A suspect or a defendant alleged or charged with committing an offence
established by an Act of the National Assembly shall be arrested, investigated,
inquired into, tried or otherwise dealt with according to the provisions of this
Act, except otherwise provided in this Act86
In the context of the ACJA a person who is alleged of committing a crime is to be arrested before
investigation is begun after. This is a serious problem towards the realisation of ACJA‟s goals
and purpose decongestion in prisons and unburdening the workload of the courts. Contrariwise,
this predicts that the procedural due process of law will be abandoned in criminal justice
administration with preference for whatever the law enforcement agencies feels is right.
But Glicksman et al hold the view that:
Procedural due process is a legal doctrine in the United States that requires
government officials to follow fair procedures before depriving a person of life,
liberty, or property. When the government seeks to deprive a person of one of
those interests, procedural due process minimally requires for the government
to afford the person notice, an opportunity to be heard, and a decision made by
a neutral decision maker. Procedural due process is required by the Due
Process Clauses of the Fifth and Fourteenth Amendments to the United States
Constitution.87
Evidently, the focus on crime prevention, trial and punishment based on arrest before
investigation will be very crucial to determine how far the ACJA‟ will succeed or fail. It is
inconceivable to note that criminal trials will not be sustained on arrest except in the existence of
relevant and admissible evidence which can neither be manufactured nor produced outside
investigations. So, Administration of criminal justice should build on the structures of rule of
85 Legal Dictionary Online; Available at http://legal-dictionary.thefreedictionary.com/Criminal+Procedure
retrieved
on 11/08/2016.
86 S. 3 ACJA
87 Glickman, Robert L.; Levy, Richard E. (2010); Administrative Law: Agency Action in Legal
Context. 9781599416106: Foundation Press Available at
https://www.law.cornell.edu/wex/procedural_due_process. retrieved On 11/08/2016.
law. This principle mandated by the Constitution that the government, state or federal, should not
act in such a way that will deny a citizen of a life, liberty, or proprietary interest, without the
person being first given a notice and the opportunity to be heard88.
Against this background, it should be noted that the prevention and determination of criminal
justice is a convergence between law and society. The overall effect on the society where arrests
are began before investigations brings about denial of liberty, congestion of prisons, police
brutality, arrest in lieu and abandonment of cases that necessitated the emergence of the ACJA. It
is not unlikely that the law enforcement will still be observed in breach as in old ways leaving
the society in chaos, disorder and insecurity instead of steering toward enhancing a stable and a
well-organized society. It may definitely therefore deny any remarkable imprint traceable to the
high regard for which the society holds law. It is important to weigh the opposites and therefore
find a middle course, which will be better for all concern.
In this manner, the chapter will review some texts and articles or consider a few theories relevant
to this course and then give brief history of the criminal procedure: law and practice in Nigeria.
Although, one of the problems this research was faced with is that of availability of materials
that have direct consequence on the purpose and imports of the ACJA, which is relatively new
on the stable. Nevertheless, the principles have being in existence before 2015.
Literature Review
In the view of Dambazau who said; “administration of criminal justice is both a legal process and
an academic discipline.89 That as a legal process; “it involves the procedure of processing the
person accused of committing crime from arrest to the final disposal of the case”. Oluwatoyin
Doherty followed this line of reasoning in her work before the former author and holds that:
Criminal Procedure is, therefore, the method laid down by law for the bringing
of a person who is alleged to have committed a crime before a court for trial. It
also deals with the method to be adopted by the court of trial, the powers of the
court of trial, the right of appeal of a person convicted of a crime and the right
88 S36 CFRN
89 Dambazau, A.B. op. cit. p. 174
of the proceedings _the prosecutor.” Finally, it deals with the rules governing
the procedure in the appellate courts. 90
Further in the same view, Clare and Krammer said that:
It is possible to view criminal justice as a sequence of decision-making stages.
Through this system offenders are either passed on to the next stage or diverted
out of the system. This diversion may be due to any number of reasons such as
lack of evidence or desire to reduce the load on the system. Each subsequent
stage of the process is dependent upon the previous stage for its elements; it is
this dependence that best exemplifies the system nature of criminal justice.”
From the preceding, administration of criminal justice is neither considered exhaustively with its
peculiar difficulties nor was diagnoses properly how such problems affect the society. What was
consider is „law‟ and „practice‟, „process‟ and “procedure.‟ In the above views, the
process, the road, and the system were considered paramount. However, the hitches on the roads
and how are they are to be resolve and overcome were not taken into consideration. It is the
consideration of the whole effect of the process and its attendant effect on the society that is the
preoccupation of this researcher. Hence, this research looks exhaustively at the law, its
mechanisms and the effects on ordinary people who may have to traverse that process with
extraordinary burden. On the law, it evaluates its strength and weakness with regards to the
purpose it aimed to achieve. On the mechanisms, it looks at the defects inherent in the criminal
justice institutions and the system as a whole that may likely undermine and clog the wills of the
law from realising justice. And the people or society; what will be the effect during and after the
whole process. Can they and the society pick their scattered life back into one piece or be
scattered irresolvable forever; and will that have achieved the goal of justice?
Further, it is not in doubt that administration of criminal justice is for trying crimes and has or
may have been adopted by courts both at trial and in the appellate as “a sequence of decision-
making stages” where “offenders are being passed from one stage to another.” Considering that
this is not a production line where articles that have no immediate relevance and bearing other
than the goal of the business owner, may be discarded with. This is a harsh treatment of those
who per chance pass that way. However it should be noted that the administration of criminal
90 Doherty, O. op. cit. p.2
justice is not administration of business. In this way, A. B. Mahmoud succinctly describes what
goes in there and stated that:
It can no longer be disputed that our criminal justice system is in a state of
malfunction. It is doubtful that any person can pass through the system as a
suspect or an offender without his/her human and constitutional rights being
violated. In all likelihood, his rights will be violated at every stage of criminal
process, from arrest, detention, trial and punishment. It seems to be the unwritten
law that the indignities, the suffering inflicted on suspects before and during their
trials is part of the system of deterrence in our criminal justice process…and the
malfunctioning of the criminal justice is in part attributable to a faulty
institutional framework. 91
There is no mincing word the system is tired and spent as it cannot assure access to justice and
serves as a rule of law for the operation of the criminal justice institutions and protect the right of
those who pass through it labyrinth. The researcher is of the view that all other factors directly or
ancillary to the realisation of the ACJA‟s goals like the effective management and monitoring
are very important to revive it. Thus, position of proper investigation and dutifulness from all the
criminal justice institution, are most timely needed.
To this effect P. K. Nwokedi JSC (as he then was) 92his opinion pointed out that:
Crime gave rise to the all-important question of what to do about criminal
justice. It has been opined that criminal justice is not merely a two-way traffic
but three traffic, namely; justice for the accused, justice for the victims of crime
and their families and justice for the society at large.
Can it be really said that crime gave rise to what is to be done about criminal justice system?
What of the activities of government; criminal justice institution and the society at large? This
research begs to differ from this view. For one may very well asked whether Olympics Games
are motivated by only its events. If events are use as the yardstick in the modern sense one may
agree but by history it was to abolish wars and encourage unity among the world‟s peoples; to
lay down arms; participate with arm and limbs in a fair and just environment. One could then
afford one‟s imagination to the war in Syria as an event in the Olympics and consider whether it
91Mahmoud, A.B. (1998); Administration Justice and Human Rights in Nigeria; in Administration Justice and
Human Rights in Nigeria, Muhammed Tabiu, ed. (1998) National Human Rights Commission Publication, p. 1.
92 Nocked, P.K. (1997), Towards an Active Criminal Justice System in Muhammed Tabiu, op. cit. p. ix.
will bring joy than the current pain. The basis of criminal procedure which is drawn from the
existence of criminal law is for a just society, stable and well organised for human existence. The
main preoccupation for administration criminal justice is enhancing the society for the wellbeing
of its peoples. This is to consider the behind the scene issues that may have colossal effect on the
process, for example, strike actions pursue by courts employees, inefficiency in the police force
and prison institutions, deployment of judges to handle election petitions or the effect of transfer
of judges on cases before them, which all have incidental effect on the criminal justice system
and the society at large. No law can be said to be auto run even in the developed nations. The
mind or the will of the law is directed by people qualified to do so. Yet incalculable harm; the
lacunae in the law itself and others perpetrated by practitioners not only crimes have occasion
what to do about criminal justice and these challenges warranted re-enactment of the ACJA. If
the prism is only crime then there will be no manifest difference from what is prevalent in the
system today. Let there be better ways to fighting crime that the unusual ways of encouraging it.
Again, it has been said that administration of criminal justice is an academic discipline. The
practical study of criminal justice is dissimilar to criminology, which involves the study of crime
as a social phenomenon, causes of crime, criminal behaviour, and other characteristics of crime.
It was developed as an academic discipline in the 1920s, beginning with Berkeley by police chief
August Vollmer who established a criminal justice course at the University of California,
Berkeley in 1916. Vollmer's work was carried on by his student, Orlando Winfield Wilson,
whose efforts led to professionalise policing and reduce police corruption. The primary focus of
criminal justice in the United States was on policing and police science.93
As an academic discipline Dambazau said that:
Criminal justice studies provide a thorough understanding of the criminal
justice system in relation to the society. Students interested in pursuing
professional careers within the criminal justice system focus on subjects with
concentration on law enforcement, corrections or legal studies.94
93 Savelsberg, Joachim J., Lara L. Cleveland, Ryan D. King; Cleveland; King, (2004). Institutional
Environments and Scholarly Work: American Criminology, 1951-1993". Social Forces. 82 (4): 1275–1302. doi :
10.1353/sof.2004.0093 available at http://sf.oxfordjournals.org/content/82/4/1275 retrieved on 11/10/16.
94 Dambazau, A.B. op. cit. p.174.
Without any form of gainsaying or contradiction administration of criminal justice is not offered
as academic discipline in Nigeria, the research stand corrected. The closest is procedural law and
it is only available at National Institute of Advance Legal Studies (NIALS) operators of Nigerian
Law School (NLS). In that wise aside lawyers and justices, others working in all the criminal
justice institutions; the courts, police force, and the prisons institution know next to nothing
about administration of criminal justice. In such a situation as this, the purpose of the law will be
lost to ignorance: the case of the blind leading the blind, what is expected remains obvious.
In considerations before a decision to remand or bail and other sundry issues, according to
Bamgbose and Akinbiyi that:
The factors, which inform the court‟s decision on whether to release an accused
person on bail or to remand him in custody, are well established. While the
basic concern is the likelihood of the accused not turning up for his trial others
have been adduced as being the possibility of the accused interfering with the
prosecution witnesses, and the likelihood of the accused repeating the offence.
The justification by way of the certainty that the accused person will submit
himself to due process can hardly be doubted, but whatever measured society
may adopt to minimise the risk of the accused person from escaping justice must
also be considered. There are rules which provides for freedom of individual
and the presumption of innocence of the accused person until the contrary is
proved.95
A balance has to be struck between these two conflicting objectives, for ideally,
one should not be compromised in the interest of the other. The courts and other
agencies within the criminal justice system must employ a method of rational
assessment. A rational assessment of approaching the matter the matter is to
categorise offences into those in respect of which, on the one hand, there is a
greater probability of the accused jumping bail and, on the other hand, those
offences in which carry lesser degree of such probability.
A readily, conceivable criterion for drawing such a distinction is the gravity of
the crime alleged and its attendant penalty…while the habitual offender may
jump bail at the prospect of one month‟s imprisonment if found guilty, the
innocent suspect is not likely to do the same in respect of an offence carrying a
95 S.77 EA 2011
term of life imprisonment, especially if he is convinced that he would get
justice96
While the above is an apt description of the problems of administration of criminal justice, which
is the focus of this research, however there are some issues which the authors did not consider in
detail. First, how does the accused person come before the court or the application for an order
for remand or bail? It is presumably that they were arrested of having committed a crime. This
research is of the view that before arrest are even made except those caught in the act, the police
ought to show due diligence first by ascertaining the probable cause, prima facie evidence and
the reasonability behind the arrest. Yes, they have a mandate for crime prevention and an
obligation also not misuse same. In that wise the pre-court activities should be well regulated.
Second, it was consider the innocent suspect in regard to unlikely jumping bail. It is axiomatic
that „what is worth doing is worth doing well.‟ Hence, if proper time was taken; an innocent
man will neither be standing before a court to demand for bail, nor the Law enforcement agency
on their part applying for remand. This is an indictment on the system of administration criminal
justice which needs the stakeholders to go back to the drawing board. Because where innocent
people are arrested indiscriminately without those who abuse the process never ever being
seriously reprimanded, is not good. Third, the authors considered that „if he is convinced that he
would get justice‟. They did not avail the „how he will get justice‟ because being convince alone
does not give justice in the Nigerian environment where cases are prosecuted at the instance of the
body language of who is in the helm of affairs. In between this predicament when to leave the
precinct of criminal justice becomes a tall dream. Obviously, there is a great valley capable of
destroying innocence with a permanent scar. Is it the Investigation Police Officer (IPO) that may not
be around possibly because he has been deployed to another area or is now on transfer;
or the courts‟ employees that will wake up one morning with strike action lasting for three or six
months or the judicial officer who may either be deployed for election petitions or transfer or
promoted. Forgetting in not a hurry is the ubiquitous adjournment from counsel on both sides.
So, passing through the criminal justice system even for those who think they control the levers
of power recognise that it is absurd. On a lighter note; it is akin to passing through a Nigerian
public university system without one form of strike or the other with time running with it.
96 Bamgbose, O. and Akinbiyi, S. (2015), Criminal Law in Nigeria, Evans, Ibadan, pp. 399-400
Furthermore, if the Constitution was followed by these agencies with diligent prosecution; and
the government is desirous of a better approach the parallel between crime prevention and
humane treatment of accused person is not an impossibility to reach a middle point. It is just the
needful that is not being done that characterised the problems in the system. For instance, the
ACJA is photocopy of the ACJL of Lagos State without industry; every provision was adopted
hook, line and sinker with no regards to the constitutional provision, which expectedly the
National Assembly was to expound. The ministry of justice on their part finds it herculean to
reform laws that have become obsolete. While the executive are more in tandem with obeying
laws and courts‟ order in breach!
It follows from the preceding that it is therefore indisputable; the administration of criminal justice
creates countless problems in that it also supports the free use of remand process by judicial officers.
These have developed into factual issues which have overworked the structure couple with the
predominant illiterate members of the society. It is also not without doubt that though the
Constitution on the issue of remand puts the time for remand at 24hours, after which Police bail
could be obtained and periodic report from time to time at the police station.97 Nevertheless the
Police Act98 in its inconsistency restricts its own to „reasonable time‟. While the ACJA‟s
„reasonable time‟ takes a maximum of 56 days99 a case of „too many cooks.‟
Another problem closely associated with remand is that of sureties, sometimes they are sharp
practices, which this research discovered, with who indeed the sureties are. There seems to be
syndicated or professional sureties within the court or police premises who collect money
knowing next to nothing about the accused person they stand in for. These people hire their
services with compromised court employees, who share in the booty, to beat the system. The
proper conditions, Bail Bonds and Recognizance100 for surety101 under the ACJA, are thus
circumvented for mammon.
97 Bamgbose, O. and Akinbiyi, S. op. cit. p.398
98 S.17 Police Act
99 Ss.293-296 ACJA
100 S.170 ACJA
101 S.172 ACJA
Unfortunately, the persons release on bail have been found to come out more hardened and
toughened102 than when they went in. why? The processes inside the criminal justice compound
issues. The Warders in the prison neither helped matters nor ever will differentiate between first
offenders and hardened criminal. They remain completely swallowed together. They mix with
characters; that have displaced the group value with the sub-culture existing within the
penitentiary walls. Aside from this, there is the unfathomable emotional wounds, the tension of
split-up from family, stigmatisation leading to the risk of job lose and the very inability to have a
counsel or consult one. Cases in point abound, aplenty, of innocent victims of remand who
eventually die after some months and some who took vengeance against the society.103
Invariably, therefore, the Authors of Criminal Law in Nigeria observed that:
The unduly protracted nature of trials, resulting from acute congestions in the
court‟s workload, delay by investigators, prosecutors, lawyers, Magistrates and
Judges is a notorious peculiarity of Nigeria‟s Judicial System. cases are known
to be in Court for years, and there are known instances which it has taken the
Ministry of Justice several years to provide legal advice or to decide whether to
prosecute a suspect or not. The problem is further enhance by the fact that there
is neither an age limit nor specific days slated for a person to be detained or
remand while awaiting further directive on his matter. Presently, in the numbers
of person awaiting trial outweigh those already convicted. Some of the persons
awaiting trial have been awaiting trial for as long as four years… whereas the
Maximum under the Constitution is a period of two months for which an
accused may be held in custody without bail. Notably, a survey of the Civil
Liberties Organisation disclosed that the Ikoyi Prison, which was built in 1961
with a capacity for 800 prisoners, held 2,373 prisoners at the end of 1988. Out
of this number, only 293 were convicted prisoners, while those on remand
awaiting trial numbered 2, 029, yet the number increases daily. The adverse
effect of such overcrowding reflects not only on the health and safety of the
inmates, but also on the economy of the nation…
The exceeding problems which this research pinpoints and envisaged that the ACJA is not
completely detailed and exhaustive to remedy with so many intrinsic and inherent contradictions
102 Bamgbose, O. and Akinbiyi, S. op. cit. p. 399
103 Bamgbose, O. and Akinbiyi, S. op. cit. p. 401
within its provisions.104 A house built with inferior materials or cracks on its walls, if nothing is
done will collapse. These problems portray the Nigerian Administration of Criminal Justice
System as one in solidarity with unlawfulness in processes of arrests, detentions, manipulation of
human rights and as such, it runs counter with the ideals of the protection and freedom of the
individual as enshrined in her Constitution: the presumption of innocence and that persons
arraigned for offence, other than capital offences, before a court should be released pending trial
on personal recognition or on completion of an unsecured bond in amount specified be the
court.105
