Required proof for criminal allegations in election petitions
JULY 1, 2013
Chief Justice of Nigeria, Aloma Mukhtar
It is elementary, yet fundamental, that every criminal allegation must be proved beyond all reasonable doubt to earn a conviction. This much is at the heart of developed theories of criminal justice in many cultures.
However, England’s William Blackstone was quoted to have said, “better that ten guilty persons escape than that one innocent suffer”. Lord Sankey, of the English House of Lords, subsequently summarised the core postulation through his famous ‘Golden Thread’ speech that, “Throughout the web of the English Criminal Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…If at the end of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner,…..the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge and where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained” Woolmington v DPP (1935) AC 462.
Here, the point must be made that the evolvement of such strict standards was never a product of voluntary benevolence from the old English State. Rather, the evolvement reflects an enduring by-product of centuries of bloody mass agitations against arbitrary arrests, detentions and convictions, carried out by the State and those who arrogated and wielded its powers. The bloody contestations arguably produced human rights documents like the Magna Carta 1213, the Bill of Rights, the American Declaration of Independence 1776, etc. The contents of these have since been reproduced into several National Constitutions and other documents of Universal significance, like the United Nations Declaration of Human and Peoples Rights of 1948. Suffice to say, therefore, that the ‘proof beyond reasonable doubt’ doctrine evolved from unrelenting human struggles against the arbitrary exercise of powers by the State and its agents.
The ‘proof beyond reasonable doubt’ rule was therefore created for nothing, other than to ensure that “only guilty persons are convicted by the state”.
Understandably, Nigeria’s formalised jurisprudence has followed in the tradition espoused by England’s Common Law theorists. Section 138(1) of the old Evidence Act explicitly codified the ‘proof beyond reasonable doubt doctrine’ and it appears to be the statutory foundation upon which Nigerian case laws, on the extent of the applicability of the ‘proof beyond reasonable doubt principle’, evolved over the years.
As a result, there have been thousands of cases where it has been repeatedly held that the standard of proof in criminal proceedings must be ‘proof beyond reasonable doubt’.
But conversely, in civil proceedings, the standard of proof is that of ‘preponderance of evidence upon the balance of probabilities’. The adjudicator is required to place the admissible evidence of the contending sides on an imaginary scale and thereafter, give judgment in favour of the side on which the scale weighs positively heavier (A.R Mogaji & Ors v. R. Odofin (1978) 4 S.C. 91, etc).
However, by Section 135(1) of the Evidence Act, 2011, the statutory requirement is that where there is an allegation of crime in civil proceedings, it must be proved beyond reasonable doubt.
While the logic of its continued application to criminal proceedings remain near faultless, even if sometimes occasioning ‘unintended injustice’, the extension of the same stringent standard of proof, to criminal allegations made in civil proceedings (and shockingly, even Election Petitions), suggests a gross legislative and jurisprudential misconception of the origination and core essence of the ‘proof beyond reasonable doubt principle’.
Like we argued earlier, the strict rule was developed to ensure “only guilty persons are convicted by the state”. Therefore, it is the end goal of a proceeding that should ordinarily determine the standard of proof to be applied. The ‘strict rule’ ought only to apply where the end goal of a proceeding seeks conviction of a citizen by the state and not where the end goal is a pursuit of compensatory damages, injunctive/restorative reliefs, declarations, restitutive orders etc; such as are often sought in civil and election petition proceedings respectively.
Sound logic is therefore diminished when a plaintiff, claimant or petitioner is required (just to obtain compensatory damages, injunctive/restorative reliefs, declarations etc), to demonstrate the wholesome prosecutorial powers of the state to arrest, gather, investigate and even confiscate required ‘proof beyond reasonable doubt evidence’. It becomes more untenable when it is considered that such plaintiff, claimant or petitioner hardly ever possesses the supportive privileges and ‘investigative infrastructure’ available, often exclusively, to the state.
It must be adequately realised that election petitions are a unique branch of civil disputes that strive to determine whether the sovereign will of the people prevailed or was subverted in an electoral process. Thus, the central focus of an election petition is certainly not the criminal conviction of so-called electoral offenders but, the broader determination of whether the declared outcome of an electoral contest was wholly reflective of the majority’s votes or otherwise. An election tribunal should therefore only seek to determine the extent to which the popular will is reflected in electoral outcomes and do clear substantial justice thereof.
The election petition proceeding is never equal to a criminal trial. The petitioner can thus never assume a state prosecutor’s role nor can any respondent be deemed an accused person standing criminal trial before the election tribunal. As such, the evidential ‘inconvenience and complexities’, required of a criminal trial, ought never to have found accomodation in election petition proceedings no matter the nature of the allegations forming the claims.
Going further, one may ask what does proving an allegation beyond reasonable doubt entail?
First, a crime must be proven to have been committed and secondly, it is very important to establish that the ‘accused’ was directly or constructively culpable in the said crime committed. The proof must also be established in such manner as to point to no other culpable direction but the accused person’s.
Accordingly, where the proof is not to be followed by a conviction by the state, the proof beyond reasonable doubt requirement becomes incongruous, illogical and bereft of any rationally sound or even identifiable jurisprudential roots. This is because civil proceedings (including election petitions), are obviously devoid of the fundamental components and requirements of a criminal trial; and more so, the eventual outcomes, and procedural niceties of both, are very clearly distinct.
Now, even if the election tribunal recommends some ‘indicted’ persons for criminal trial, will such recommendation abridge the indicted persons’ right to presumption of innocence (notwithstanding that the election tribunal had already deemed them liable), if they eventually face criminal prosecution? No! Do the fundamental components, like summons; drafting of charges; preferring of Information; plea taking and mandatory recording of plea; bail Issues; mandatory presence of accused person throughout trial; acquittal; conviction; allocutus; sentencing etc, which all distinguish criminal trials from civil ones, ever find place in election eetitions which are uncontrovertibly civil in their procedural rules and final outcomes sought? No!
It is arguable that the courts may have created the concept of ‘severance of pleadings’, under civil proceedings, to mitigate the injustice that often result from the narrow insistence on the onerous proof beyond reasonable doubt standard for so-called criminal allegations made in civil disputes.
The concept stipulates that the judex must attempt to separate the pleadings with criminal imputations from those without; and thereafter do justice to both- using the two different statutory proof standards respectively. In Arab Bank Ltd v. Ross (1952) 2 Q.B. 216 at p. 229, Lord Denning attempted a simplification of the position, when he humored that; “Even with ordinary common sense, if I happen to find my lost coat with AB, and on a claim for the recovery thereof, I alleged that AB stole the coat, the fact that I could not prove AB to be the thief does not deny me the recovery of my coat once I establish the coat to be mine and not AB’s”.
Following the Omoboriowo v. Ajasin (supra) authority, the Court of Appeal held, in Aregbesola v Oyinlola, that “The interpretation of the foregoing authority presupposes that application of section 137(1) of the Evidence Act to a civil case depends on the contents of the pleadings of each case. In other words, if the averments alleging the commission of a crime are severable and if following such act of severance, the petitioners’ pleadings still contain sufficient averments which suffice and disclose a cause of action devoid of criminal imputation against any of the parties to the proceedings, then the burden of proof laying on the petitioner is not of a criminal nature beyond reasonable doubt but that which requires proof on preponderance of evidence. The principle of severance in cases of this nature is of great significance and has been emphasised by their Lordships as seen in the case of Omoboriowo v Ajasin (supra).
In other words, the determining factor is whether the allegations, if severed and put into two separate compartments can be sustained as an entity. If the answer is positive, then proof of one is not dependent on the other but side by side. The crucial determinant factor certainly is dependent on the pleadings of the parties”.
On the severance concept, the key point is simply that pleadings are to be ‘severed’ into two places- the ones with criminal imputations on the one hand and the ones without, on the other. The ones with criminal imputations will require the proof beyond reasonable doubt standard to succeed while the ones without, will be resolved on the balance of probabilities upon preponderance of evidence. If upon severance, a civil claim still rests solely upon the pleadings containing criminal imputations, the standard will be proof beyond reasonable doubt, failing which the claim also fails.
Severance seems useful only where there are other pleadings devoid of criminal imputations and which have the suit’s main justiciable claims attached to them. To therefore argue, that the concept of severance of pleadings has cured whatever injustice the proof beyond reasonable doubt doctrine introduced into Election petitions, would be another fatal misconception.
Given the dire need for true democracy in Nigeria, it is difficult to contemplate how election petitions often get bugged by such statutory incoherence and illogicality. It is however hoped that the legislature, and thereafter; my Lords at the Supreme Court, may be persuaded to reverse the decades-old trend, of requiring proof beyond reasonable doubt to establish allegations of crime made in civil proceedings, especially election petitions- at the earliest opportunity.
At the very least, it is humbly proposed that another standard of proof be creatively invented to deal with criminal allegations made in civil proceedings, especially Election Petitions. Or crimes could be delineated and varying standards of proof made applicable, to varying degrees of criminal allegations, according to the gravity of whatever is alleged.
But pending whatever new standards that may eventually evolve, the proof beyond reasonable doubt requirement, within civil proceedings (especially election petitions), must continually be described and derided for what it is- an unfortunate statutory and jurisprudential misconception, a clog in the democratic wheel.
Moving forward, the legislature may consider enacting another phrase, such as ‘highly probable’, to become statutorily sufficient to determine the proof or otherwise of so-called criminal allegations made in election petitions.
•Iwilade is a Lagos-based legal practitioner
No comments:
Post a Comment