THE DOCTRINE OF FAIR HEARING AND SECTION 271 OF THE CRIMINAL CODE
By Uwandu Ikedi
The principle of fair hearing as enshrined in the 1999 Constitution is often illustrated by the twin pillar of justice expressed in the Latin maxims: Nemo Judex in Causa Sua( meaning that a person shall not be a judge in his own cause).see Gani Fawehinmi V. Legal Practitioners Disciplinary Committee (1985)2 NWLR (pt7)300 at 308.
The second pillar which is Audi Alterem Partem (meaning that no man shall be condemned unheard or without having an opportunity of being heard). See P. R. P V. independent National Electoral Commission (2004)All FWLR (pt209).
Section 271 of the Criminal Code provides that “when a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested” section 36(1) of the 1999 Constitution provides that “in the determinations of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to to secure its independence and impartiality”
A critical look at provisions of section 271 will reveal that it violates the fundamental rights of fair hearing which is provided for in 36 of the constitution. Section 1(3) of the Constitution provides that “if any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall to the extent of its inconsistency be void”. Section 271 confers a lot of power to the law enforcement agents, by that section the peace or police officer is made the accuser, the prosecutor, the judge and the executor. This, in all sense does not ensure justice, it is within the power of the court to decide when an offence is punishable with death or imprisonment for seven years or more as provided in section 271 of the Criminal Code.
Under section 36(5) every person who is accused or charged with a criminal offence, no matter how heinous shall be presumed innocent until he is proved guilty. See the case of Okoro V. The State (1988)12 SCNJ 191. The burden of establishing the guilt of a defendant rest throughout on the prosecution. It is only upon the proof beyond reasonable doubt that the burden is shifted on to the defendant. Section 271 has subdued section 36(5) besides section 36(5) is a constitutional provision which should prevail over section 271.
To this effect, the court has held in Ogundoyin V. Adeyemi (2001) FWLR (pt 71)1741 at p. 1754, that a trial is a judicial examination and determination of issues between the parties in accordance with the law of the land. A fair trial therefore, implies a trial by an impartial and disinterested court or tribunal in a regular procedure, especially, a criminal trial which the accused person’s constitutional and legal rights are respected. In Ezechukwu V. Onwuka (2005)All FWLR (pt280)1514 at pp. 1542, the Court of Appeal pointed out that “Fair hearing is a hearing which is fair to all parties to the suit, whether the plaintiff, defendant, the prosecutor, or the defence. It is a doctrine of substance hearing, rather…whether a party entitled to be heard has been given an opportunity of being heard… Fair hearing entails doing during the course of a trial all that will make an impartial observer to believe that trial has been balanced…to both sides….”
The principle that the judge who presides over a matter should not himself be interested in the subject matter of the litigation is intended to ensure that decisions are taken purely on judicial grounds uninfluenced by motives of self-interest.
It is important to note that the provisions of section 271 is barbaric and pose a serious threat to our criminal justice system. However, it is submitted that these principles of natural justice (nemo judex in causa sua and audi alterem partem) are an integral and separable part of fair hearing provision guaranteed by section 36(1) of the 1999 Constitution. The fact being that the rule of fair hearing is not a technical doctrine. It is one of substance as it overrides all contrary provisions in any law of the land such as section 271 of the Criminal Code. A breach of the doctrine of fair hearing in a judicial enquiry renders the action unconstitutional, illegal and liable to be set aside. See the case of Oyakhere V. The State (2006)All FWLR (pt305)703 at p. 716.
Uwandu Ikedi I.
Faculty of Law(ESUT)
uwanduikedi@gmail.com
