In this analysis, lawyer and public affairs commentator WAHAB SHITTU suggests what should be done to make the investigations of criminal cases stress-free and how to make the prosecutions of perpetrators of heinous crimes conclusive.
The searchlight on all categories of law enforcement agents – Police, anti-graft agencies, Department of State Services (DSS) and other intelligent agencies have assumed lately increasing dimension given the declared war of the present administration against corruption and the urgent need to stamp out all forms of criminalities whether occurring in the past, present or the future.
In many instances, Nigerians have expressed frustrations with the process blaming the state for not being able to bring alleged perpetrators of heinous offences to book. The blame game has shifted from the police to the lawyers with some other elements also pointing accusing fingers in the direction of the judiciary.
This intervention is designed to highlight some of the basic elements that could deliver successful prosecutions starting of course with the primacy of effective and efficient investigations and what ought to be put in place to achieve this objective. Investigation must focus on basic tenets such as identifying who committed the criminal act and gathering sufficient evidence to secure a conviction.
The element of effective and efficient investigation is particularly very important given the fact that investigation is the gateway to the courts and unless it performs adequately, the quality of subsequent justice will be poor.
- No case should be taken to court without proper investigation no matter the extent of public outcry.
- Emphasis should be placed on investigation-led arrests as opposed to arrest-led investigations.
- Arraignment of suspects in court should be based on verifiable, conclusive and supportable findings arising from diligent investigations.
- Investigators must be available at all times to give evidence in proof of the outcomes of the investigations.
- Investigators must carry out all necessary steps including obtaining all relevant evidential materials in support of investigations.
It is also important to guarantee the security and welfare of investigators including potential witnesses as well as sensitive documents in aid of the trial process. More importantly, that the investigation process is adequately monitored to forestall compromise and severe sanctions should apply in the event of breaches.
The other element that should be guaranteed is the security of evidential materials recovered during investigations, if possible, ensuring that such materials do not fall into private hands who could be subject of attacks targeting of course the recovery of those documents.
It is also important to constantly test the character, integrity and moral standards of investigators including ensuring availability of up to date training programmes for investigators. There should also be stiffer penalties available to officers who deliberately bungled investigations for pecuniary or other vested interests. My final take on this is to call for a code of ethics to be put in place for all categories of investigators as a policy framework
Investigations play a crucial role in our criminal jurisprudence as they form the basis for all prosecutions and trials. There is no investigative judge under the Nigerian legal system – the legal process is initiated by the prosecutor on the basis of the information received or obtained from sources, such as individuals, governments, international, inter-governmental or non-governmental organisations, or African Union (AU) qua United Nations (UN) organs.
Once the prosecutor is satisfied that there are reasonable grounds to believe that crimes within the jurisdiction of the court/tribunal have been committed, an investigation begins. By this token, the prosecutor is imbued with the responsibility of collecting evidence and information used for issuing indictment against suspected perpetrators; the prosecutor has the power to summon and question suspects, victims and witnesses, collect evidence and conduct on-sight investigations. In doing so, the prosecutor may seek the assistance of the state authorities concerned and such authorities are under obligation to cooperate with investigations and prosecutions.
A fair and effective criminal justice system, an integral part of which is crime investigation built public confidence and underscores respect for law and order. In essence, crime investigation is the process by which the perpetrator of a crime, or intended crime, is identified through the gathering of facts/evidence, although it may also involve an assessment of whether a crime has been committed in the first place. Investigation can be reactive i.e. applied to crimes that have already taken place or proactive), i.e. targeting a particular criminal or forestalling a criminal activity planned for the future. In this light, an effective investigation and efficient investigator are a necessary prerequisite for the prosecution to charge a defendant.
Prosecution can charge defendants with two types of individual criminal responsibility. The first is for personally planning, instigating, ordering, committing or aiding and abetting in a crime. Such responsibility encompasses the doctrine of joint criminal enterprise, which has often been used to describe situations where several persons having a common purpose embark on criminal activities.
The second is for being in the position of authority and knowing or having reason to know that a subordinate or subordinates were about to commit or had committed such crimes but failed to prevent or punish them. This is otherwise known as superior responsibility. In other words, in the commission of a crime, there are usually the principal offenders and the secondary offenders. The Principal offenders are usually the ones whose act is the most immediate cause of the actus reus. Secondary parties are usually those who aid, abet, counsel or procure the commission of a crime.
To conduct criminal investigations effectively, an investigator will need considerable powers. These include the power to detain a suspect; seize property as evidence; search for evidence; both in premises and on persons; interview suspects (and, in doing so, question their honesty and character, which in some countries, may otherwise be considered to be an act of defamation, a criminal offence); require samples, such as fingerprints and DNA, and to take photographs; run identification procedures; interview witnesses, including victims; ask members of the public questions; keep and maintain personal and confidential information; use technical and personal surveillance and use other intrusive means to observe persons; work undercover (i.e. pretend to be someone else) or use informants; protect and relocate witnesses; undertake otherwise illegal activity, such as possess illegal substances, carry weapons, force entry to property, or monitor illegal internet traffic.
Increasingly, an investigator also needs to be able to call on international assistance in order to track the activities of criminals across internationally borders. There are normally international organisations and bi-lateral agreements in existence that can offer support, but such facilities need to be accessible and viable for any investigator working at a local level.
In addition to developing an understanding of the strengths and weaknesses of a state’s approach to the investigation of crime by police, the assessor should be able to identify opportunities for reform and development. Technical assistance in the area of police investigation in the context of a broader strategic framework may include work that will enhance drafting or amendment; implementation and monitoring of relevant legal framework, including codes of conduct and/or criminal procedure; development of forensic science capacity; enhancement of investigation skills and standards, especially in specialist areas, such as financial investigation, cyber-crime, interviewing techniques; equipment and processes for proper and secure handling of evidence and exhibits; enhancement of identification procedures, including use of photo-fit, photo identification, and identification parades; rules, guidelines and training on use of covert surveillance and informants; transmission of good practice in interviewing suspects; relevant guidelines and training materials.
The jurisprudence of investigations and investigators in the Nigeria political landscape appeared to have been swept under the carpets until the recent reassured declaration by the President to re-open previous crimes, this is against the backdrop of the purpose/essence of criminal law which is to punish and deter the culprits.
The list of murder and assassinated victims in Nigeria seems to be swelling with the Police seeming lost. I wonder whether it is a case of conspiracy or outright lousiness. Check the list: Dele Giwa, Dipo Dina, Bola Ige, Moshood Abiola, Funsho Williams, Dr. Ayo Daramola, Kehinde Fasuba, Chukwuma Ogbueli, Odunayo Olagbaju, Pa Alfred Rewane, Chief Dikibo, Harry Marshal, Suliat Adedeji, Kudirat Abiola, Tunde Oladepo, Omololu Falobi, Godwin Agbroko, Abayomi Ogundeji, Bayo Ohu and Edo Sule Ugbagwu.
The pain of losing these Nigerians so early and so cruelly remains fresh in our memory. Its stabs us each time we remember that the vacuum they have created will never be filled again. In this wise, investigations and investigators should be at the front burner of championing the cause of justice by fetching out and prosecute the perpetrators of this illegality.
Investigators deal with many different categories of witnesses during the investigation, including victims and survivors, experts, internationals and insiders. Victim or survivor witnesses are a crucial source of evidence as they are in a position to describe what took place and identify those involved.
This is critical in the preparation of the indictment and can often lead to new sources of evidence. Actually finding the first witness can sometimes be difficult. Investigations often started years after the events took place, and witnesses might have moved away or died. The passage of time and the removal to a location far from where the events unfolded can dull the memory of some witnesses.
Often, while the evidence given will show who was directly involved, those identified tend to be lower level suspects, and eyewitness evidence cannot identify where the orders came from, or who the commanding officers were. Finally, a witness may decide not to testify because they wish to forget the events that took place, or they are psychologically unable to give evidence. They may also fear intimidation or reprisals.
Expert witnesses are connected to the investigation in some manner but were not directly involved in the events. It can include, for example, military and political analysts called to provide a background to what was taking place across the country or to interpret document collections, or scientific researchers who may have helped uncover evidence such as mass graves or examined crucial aspects of the evidence such as DNA samples.
International witnesses include diplomats or foreign military officers who were active in the conflict area at the time and can often provide valuable information to the investigators, especially if they held meetings with the suspects or other high-ranking civilian or military officials. They may, for instance, be able to provide proof that the suspect was informed about certain atrocities or military operations. Insider witnesses can provide valuable evidence in linking the accused to the crime base through direct or circumstantial evidence.
Insider witnesses tend to be either witnesses with “blood on their hands”, or those who have been privy to the orders given.
Investigation is a core duty of policing. Interviewing victims, witnesses and suspects is central to the success of an investigation and the highest standards need to be upheld. Forces need to develop and maintain the valuable resource of a skilled interviewer. Interviews that are conducted professionally and quality assured realise several benefits.
In particular, they can direct an investigation and gather material, which in turn can lead to a prosecution or early release of an innocent person, support the prosecution case, thereby saving time, money and resources and increase public confidence in the police service, particularly with witnesses and victims of crimes who come into direct contact with the police.
Without the accounts of those who played a central role in the crime, or those who have witnessed an important aspect of the commission of a crime, other sources of material such as Close Circuit Television (CCTV) images, fingerprints and forensic material, although extremely important, may have little value. Conducting investigative interviews is, therefore, a crucial element of the process of investigation.
The foregoing may have shown the urgent need to pay closer attention to the quality of investigations, otherwise, public outcry targeting bungled prosecutions would be meaningless as the law court, not being a charity organisation, can only act on the basis of the quality of materials placed before the judex.
