MIRANDA RIGHTS-RIGHTS OF VICTIMS OF SELF-INCRIMINATION ....is there a breach to this right?
You must have heard or watched movies where law enforcement agents e.g police arrest someone and tells him or her: "You have the right to remain silent, or anything you say will be used against you in the court of law". You probably may not know why this is said, or how this warning came about. This is no ordinary statement.
This article seeks to educate you on all you need to know about the anove statement and to also balance the conflicts and arguments on whether there has been a breach of the Miranda rights of citizens in Nigeria.
WHAT IS A MIRANDA WARNING?
A Miranda warning is a warning issued to a suspect, letting him or her know of his or her right to remain silent and if such a suspect decides to speak, that whatever he or she says may be used against him or her in the court of law. Thus, a Miranda warning includes the right to remain silent, and the right to legal counsel
ORIGIN OF MIRANDA WARNING
This doctrine was birthed by the United States of America's Landmark Case of Ernesto Miranda V. Arizona.
Miranda who was arrested in 1963 and charged with rape, kidnapping, and robbery was not cautioned or informed of his right to remain silent or have a counsel present before custodial interrogation by the police.
However, Miranda had confessed to committing the crimes, in which he was later sentenced to 20-30 years' imprisonment. On appeal to the Arizona Supreme Court, with a grouse that the police had unconstitutionally obtained the confession, the court upheld the conviction.
He soon appealed to the U.S Supreme Court which ruled in his favor and posited that suspects must be informed of their Fifth Amendment Right against self-incrimination and Sixth Amendment Right to an Attorney before they are questioned.
Self-incrimination itself according to Black's Law Dictionary is a declaration or an act that occurs during an investigation where a person or witness implicates themselves either explicitly or implicitly.
MIRANDA RIGHTS IN OTHER COUNTRIES
- The Indian Constitution provides immunity to an accused against self-incrimination based on the legal maxim "nemo teneteur prodre accussare seipsum", which means "no man is obliged to be a witness to himself".
-In the USA, the Fifth Amendment of the U.S Constitution provides that, "No person shall be compelled in any criminal case, to be a witness against himself".
- In Britain, under Common Law, it is a basic principle that a person accused of any offense shall not be compelled to discover documents that incriminate himself.
MIRANDA RIGHTS IN NIGERIA?
The right to silence in Nigeria originated from the Common law of England. Under the Common Law, any threat, inducement, or force emanating from a person in authority vitiates a confession.
This principle coalesced from the ancient maxim "nemo tenetur seipsum accurate", meaning " no man is bound to accuse himself or no person need accuse himself". This was the English reaction against an investigative and prosecutorial excess known as the "Oathex officio" which was used initially by inquisitors as an investigative and adjudicative weapon to extract confessions and self-incriminating testimony under oath.
The right to remain silent /Miranda right is entrenched in Section 35(2) of the Constitution of the Federal Republic of Nigeria(1999) as amended, which states that:
"Any person who is arrested or detained shall have the right to remain silent or avoid answering any questions until after consultation with a legal practitioner or any other person of his own choice".
Section 36(11) of the same Constitution states:
"No person who is tried for a criminal offense shall be compelled to give evidence at the trial".
In addition to the Constitution, in the 1965 case of Atanda V. Attorney General, the Supreme Court of Nigeria ruled that "no defendant is bound to make a statement to the police,"
One purpose of the right to silence is to protect the citizen from torture and coerced confessions. But over the past years in Nigeria, it is observed that the rights of the suspect have been abruptly trampled upon by the feet of the law enforcement agents during interrogation as there are overwhelming reports of coercion during custodial interrogation of the suspect.
In Effiong Edet George V. State, the appellant resisted various forms of torture for days before he was taken from the cell with six other suspects at night to a lonely spot in Calabar, Crossriver State, Nigeria. All the suspects were chained together. The other six suspects were shot dead by the Police and their blood spilled on the appellant. He then "voluntarily" shouted that he would sign a confession prepared by the police. He was then forced to carry the corpses of the dead suspects into the police vehicle.
The trial Judge held that even if a person is tortured, he would not know the details of the crime. The "confessional" statement was admitted in evidence and the appellant was convicted of murder and sentenced to death. But on appeal by Effiong, the Court of Appeal reversed this decision.
CONTROVERSIES ABOUT THE RIGHT OF SILENCE IN THE CONSTITUTION
The guarantee of Miranda rights in Nigerian Criminal Law is still a controversial issue today.
Section 29 of the Evidence Act 2011 as amended predicates admissibility of confessions on reliability determined by the presence or absence of a confession. Thus the dominant position of courts, is that a confession is not necessarily inadmissible because no caution or warning was preceding the taking of such confession.
There have been arguments that Sections 180(b)(g) and 183(a) of the Evidence Acts, Sections 35(3)(a)(c) and (d) of the NDLEA Act, Sections 28(1) and (10) of the Corrupt Practices and other Related offenses Act 2000 violates the Miranda rights stated in Section 35(2) of the 1999 Constitution of Nigeria.
IS THERE A BREACH OF THE RIGHT TO SILENCE?
It is always bothersome to discover any divergence between a statute/practice and the Constitution; it is even worse if such divergence affects a fundamental human right or civil liberty, such as the right to silence.
In the words of Ani Comfort(LLB) CBL LL.M P.H.D, the principle of the right to silence and privilege against self-incrimination both related to the presumption of innocence, for the reason that an accused person need not say anything throughout the trial as the burden of proof rests squarely on the shoulders of the prosecution
She observed that there is indeed a gradual shift from the tenacious common law principle of placing the burden of proof solely on the prosecution and the right of silence.
Sections 27, 28, and 29 of the EFCC Act and Section 37 of the Corrupt Practices and other Related Offenses Act contain copious provisions on confiscation and forfeiture of assets, whether movable or immovable, upon conviction, in addition to the prescribed penalty. Barr. Comfort noted that the underlying reason for these seizures is to restrain the suspect from further usage of the assets and to ensure their preservation pending the determination of the case.
These provisions prescribing seizures during an investigation on the face of it, appear like a gross abuse of the fundamental right of fair hearing of which the presumption of abuse is an integral part. However, we should not lose sight of the provision of Section 44(2) of the 1999 Constitution dealing with the compulsory acquisition of property. Such seizures are excusable under Section 44(2)(e) and (k), which limits the property right when it relates to the execution of judgments and orders of the court and the temporary taking of possession of the property for any examination or investigation.
Thus, in answering the conflicting question, as long as Section 44(2)(e)(k) still stands in our Constitution, it continues to give validity to the provisions that prescribe confiscation and forfeiture of assets before trial.
JUDICIAL PRECEDENTS ON THE BREACH OF THE FUNDAMENTAL RIGHT TO SILENCE.
Because there are circumstances where obtaining crucial information expeditiously would be in the interest of the public at large, in Okoro V. State, the Supreme Court commented that a court could draw inferences of guilt from the silence of the accused in the face of evidence linking him to the offense.
In the case of Nasiru V. State, the Supreme Court reiterated that the provision of Section 33(11) of the 1979 Constitution does not stop a trial court from commenting on or drawing unfavorable inferences against an accused who fails to testify having regard to the evidence adduced in the case by the prosecution.
In the case of Daniel Sugh V. State, the Court also landed credence on the fact that speaking in one's defense is an instinct.
In respect of this, Bentham noted that "Innocence claims the right of speaking as guilt invokes the privilege of silence".
CONCLUSION
Notwithstanding all the suggestions that the right to silence should be trashed, it is still clear that there could be some suspects who would not say a word for one reason or the other not motivated by guilt.
Section 3 of the Lagos State Administration of Criminal Justice law 2007 (ACJL) now provides that the police officer is obliged to inform the accused person of his right to remain silent or avoid any question until after consultation with a legal practitioner.
Therefore, it is my opinion that the Supreme Court concerning the admonition by the ACJL and the Nigerian Constitution should make this issue a top priority and make laws to uphold the right to silence for the sake of innocent suspects. There should also be a check on the law enforcement agents on the issue of trampling the citizen's Miranda rights.
REFERENCES
-The 1999 Constitution of the Federal Republic of Nigeria (as amended)
-Evidence Act 2011 (as amended)
-www.lawyard.org>legalarticles>mirandarights
-Economic and Financial Crime Commission Act
-Corrupt Practices and Other Related Offences Act
-National Drug Law Enforcement Agency Act
-www.thenigerialawyer.com>is_the_right_to_silence_breached
-Violence Against Persons (Prohibition) Act (VAPP) 2015
-Lagos State Protection Against Domestic Violence Law (PADVC)
AUTHOR:
OGO GLADYS AMARACHI
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