Tuesday, 22 May 2018

RIGHT TO BE TRIED FOR ONLY AN OFFENCE KNOWN TO LAW

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The purpose of this article is three-fold; the first is to provide information on the right of a person to be tried for only an offence known to law in Nigeria, to re-visit the case of Okafor V. Lagos State Government, using the decision of the Appeal Court in that case to explain the right to be tried for only an offence known to law and to highlight some important aspects of the case.

The right to fair hearing is a right guaranteed under the Constitution of the Federal Republic of Nigeria. Under this right, there are some constitutional safeguards put in place by the Constitution in furtherance of this right, one of such safeguards is the right not to be tried for an offence unknown to law. This right is guaranteed b y section 36(12) of the Constitution , the section provides that
 
 a person shall not be convicted of a criminal offence UNLESS that offence is defined and the penalty thereof is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a state, any subsidiary legislation or instrument under the provisions of a law.
 
A crime or offence is any act or omission prohibited by a written law. If a person does an act which a law prohibits or fails to do an act which the law mandates, such a person can be said to have committed a crime and may be charged to court accordingly for the commission of an offence. The implication of this is that before any person can be charged with an offence and convicted for the commission of that offence, there must be a written law which can be referred to. The written law which defines an Act or Omission as a crime could be either a law that is enacted by the National Assembly, or a law enacted by a state house of assembly, or it could be a law made by the Local Government authority or a bye law; that is a law made pursuant to another law.  The simple requirement of the law is that no act or omission can be referred to as a crime unless a written law says so.

It is not enough that the written law should prohibit an act or mandate the doing of an act, the punishment for that offence must be provided by that law or another written law.

The rationale behind the requirement of the law that what constitutes an offence and its punishment  should be certain is simply to ensure certainty and avoid speculation on what constitutes an offence and its punishment. The Court of Appeal once stated that what constitutes an offence cannot be left to conjecture at the whims and caprices of those conferred with authority to enforce laws.

In the unfortunate event that you are arrested or charged with the commission of an offence by any law enforcement agency, even if  you are yet to be charged to court, it is important to ask the arresting officer the reason for your arrest and the offence for which you have been charged. You might not be able to tell right away if the offence is one provided for under the law or not, but when you get in touch with a lawyer, your lawyer would be able to tell you if the crime you have been charged with is one known to our laws.

The law does not permit you to be arrested for a non-existent crime neither does it permit you to be charged and convicted for a non-existent crime. When this happens, there is a remedy under the law.

THE ENVIRONMENTAL SANITATION CASE [OKAFOR V. LAGOS STATE]

The facts of the case are as follows: On the 25th of May 2013, the appellant (that is Okafor) was arrested for loitering  and violating the restriction on movement directive imposed on the last Saturday of every month by the Lagos State government. The last Saturday of every month has been set aside as a day for environmental sanitation in Lagos State. On that day, movement is usually restricted between 7:am and 10:00am.After she was arrested, she was taken before a Special Offences Court where she pleaded guilty to wandering, loitering, and walking about thereby flouting the directive restricting movement during environmental sanitation exercise. She was accordingly found guilty by the court and fined the sum of , she paid the fine and afterwards filed an action for the enforcement of her Fundamental right; this was because she had been convicted for an offence which no written law provided for.

This article would not focus on the other rights which she sought to enforce and which the court upheld. This article would restrict itself to the right to fair hearing which was breached when the Lagos State Special Offences Court found her guilty of loitering and flouting environmental sanitation directive.

It is important to remember the provisions of section 36(12) which was reproduced above which in substance is to the effect that no person can be punished for any crime that is not contained in any written law and for which there is no prescribed punishment. This provision of the law is the thrust of this article and it is the fulcrum on which the decision in Okafor's case lies.

The court affirmed that every citizen of Nigeria has a right to fair hearing and further stated that the right to fair hearing is one which is guaranteed by the constitution. This right is a fundamental right.

Lagos State conceded the point that the directive that all residents of Lagos State must remain in their houses during the sanitation is not contained in any written law, they however argued that since it was a directive of the Governor, that makes it law and it is therefore enforceable.

The Court of Appeal rejected the argument that a Governor's directive is tantamount to law, the Court said
 
I shudder at this submission........I find it shocking that the disobedience of the directive of the governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the appellant and the fine imposed on her

The Court finally held that in the absence of any written law prohibiting the movement of Lagosians and compelling them to stay in doors on the last Saturday of every month within the hours of 7:00am and 10:00am, the purported trial and conviction of the Appellant for violating the Environmental sanitation directive is unlawful, illegal and unconstitutional. The court also held that the directive restricting the movement of Lagosians on the last Saturday of every Month is unlawful, Illegal and unconstitutional. The court also instructed that the Appellant be refunded the amount she paid as fine for flouting the directive on movement when she was convicted by the Special Offences Court set up by Lagos State.

The decision in this case goes a long way to affirm one of the principles of our law which is that where there is a right there is a remedy; that is when that right is infringed. The decision in this case is a victory not just for the Appellant but for countless  Nigerians who have been unlawfully punished for acts which did not constitute any offence under our law.
 

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