The Advocate, Not The Accomplice: Reconceptualizing The Role Of The Criminal Defence Counsel In The Administration Of Justice In Nigeria -By Ishie-Johnson Emmanuel

ABSTRACT

Public perception in Nigeria often equates criminal defence with complicity in crime. Lawyers who defend persons accused of armed robbery, kidnapping, terrorism or grand corruption are labeled as unethical, immoral or “lawyers for criminals.” This paper deconstructs that stigma. Anchored on Section 36(5) and 36(6)(c) of the 1999 Constitution (as amended), the Administration of Criminal Justice Act 2015, and the Rules of Professional Conduct 2023, it argues that the defence counsel defends the Constitution and due process, not criminality. Without a fearless and independent defence Bar, the adversarial system collapses and the presumption of innocence becomes illusory. Using doctrinal methodology, case law and jurisprudential analysis, this paper reconceptualizes the defence counsel as a minister in the temple of justice.

Keywords:  Criminal Defence, Presumption of Innocence, Fair Hearing, ACJA, Cab-Rank Rule, Legal Ethics

1.0 INTRODUCTION

A refrain has become common in Nigerian social discourse: “How can a self-respecting lawyer defend a known armed robber, kidnapper, or corrupt politician?” The question, though emotionally understandable, reveals a fundamental ignorance of the role of law in a constitutional democracy.

Nigeria operates an adversarial criminal justice system. In this system, the State, with its monopoly of coercive powers, investigative apparatus, and resources, must prove its case against an individual beyond reasonable doubt. The defence counsel stands as the constitutional buffer between State power and individual liberty. To stigmatize that role is to stigmatize the Constitution itself.

This paper seeks to achieve three objectives: (i) to clarify the true jurisprudential role of criminal defence counsel; (ii) to examine the constitutional, statutory and ethical foundations of that role in Nigeria; and (iii) to propose a reconceptualization that restores dignity to criminal defence practice.

2.0 CONCEPTUAL FRAMEWORK

2.1 Who is the Criminal Defence Counsel?

The defence counsel is a legal practitioner who represents a suspect, defendant or accused person at the investigation stage, trial, and appeal. This includes private counsel briefed and paid, counsel assigned by court under ACJA 2015 s.267 and s.349 for indigent defendants and capital offences, and counsel from the Legal Aid Council of Nigeria under the Legal Aid Act 2011.

2.2 The Advocate vs. The Accomplice

An accomplice, under s.7 and 8 of the Criminal Code Act and s.7 of the Penal Code Act, is one who aids, abets, counsels or procures the commission of an offence. His liability is participatory and criminal.

An advocate’s role is post-offence and procedural. He does not share mens rea with his client. His duty is to test the prosecution’s case, ensure admissible evidence is used, and that procedure is followed. As an officer of the court, he is expressly prohibited from manufacturing evidence, misleading the court, or encouraging perjury. He must act with the highest degree of good faith and due diligence.

3.0 LEGAL FOUNDATIONS IN NIGERIA

3.1 The Constitution of the Federal Republic of Nigeria 1999

This is the fons et origo.

– S.36(5): Every person charged with a criminal offence shall be presumed to be innocent until proved guilty. The presumption is not a favour; it is a constitutional command.

– S.36(6)(c): Right to defend himself in person or by a legal practitioner of his own choice.

– S.36(6)(b) & (e): Right to adequate time and facilities to prepare defence and to examine witnesses.

– S.36(1) & (4): Right to fair hearing within reasonable time by an independent court.

3.2 The Administration of Criminal Justice Act 2015

ACJA is the primary procedural code. Key provisions:

– S.6: Prohibits arrest in lieu, ensures humane treatment.

– S.106: Burden of proof is beyond reasonable doubt on prosecution.

– * S.267 & 349: Mandatory provision of counsel for capital offences and indigent defendants.

– * S.396: Prohibits interlocutory appeals designed to stall criminal trials, but preserves defence rights.

3.3 Legal Practitioners Act and Rules of Professional Conduct for Legal Practitioners 2023

– LPA S.9(3): A legal practitioner shall not be liable for anything done in good faith as counsel.

– RPC Rule 24:The Cab-Rank Rule – A lawyer shall not refuse a brief because of his personal view on the guilt of the client or because the case is unpopular. This rule, borrowed from English law, is the ultimate guarantor of access to justice.

– RPC Rules 14, 30, 32: Duty of devotion, competence, to avoid dishonourable tactics, and to not mislead the court.

4.0 JURISPRUDENTIAL JUSTIFICATION

Why defend the guilty? Jurisprudence gives four answers:

1. Due Process Theory (Rawls, Dworkin) Justice is not only about the right outcome but the right process. A conviction obtained without due process is itself injustice.
2. Libertarian Theory :

The defence counsel prevents State tyranny. As Justice Black said, the right to counsel is the right that makes all other rights meaningful.

3. Epistemic Theory: Truth-finding in adversarial system requires vigorous contest. Cross-examination is the greatest engine for discovery of truth.
4. Human Dignity Theory : Even the worst offender retains human dignity and constitutional rights.

5.0 JUDICIAL ATTITUDE: NIGERIAN CASE LAW

Nigerian courts have consistently defended the defence role:

– Josiah v. State (2017) LPELR-42089 (SC): Supreme Court held that failure to assign counsel in a capital offence vitiates the trial. Defence is not a privilege.

– Mohammed Abacha v. State (2002) 11 NWLR (Pt 779) 437: Court emphasized right to counsel of choice.

– Ubani v. State (2003) 18 NWLR (Pt 851) 224: Court held that vigorous defence, even of a brutal murderer, is not immorality but professional duty.

– State v. Ilori & Others (1983) 1 SCNLR 94: On presumption of innocence and burden of proof.

– R. v. Thomas (1958) FSC 21: Early authority that it is better for nine guilty to escape than one innocent to suffer.

The courts have also sanctioned misconduct: where counsel knowingly puts forward a false alibi or fabricated evidence, he ceases to be an advocate and becomes an accomplice, liable for perversion of justice.

6.0 THE STIGMA AND ITS CONSEQUENCES

The stigma manifests in three ways in Nigeria:

1. Societal Media trials, public insults, threats to lawyers defending politicians or accused  kidnappers.
2. Police harassment of defence lawyers at stations, labeling them as “lawyers of criminals.”
3. Intra-Professional Young lawyers avoid criminal litigation for corporate briefs, leading to weak criminal bar and congested prisons with 70% awaiting trial.

This stigma violates the very concept of legal representation and collapses the entire adversarial system.

7.0 RECONCEPTUALIZATION: ADVOCATE AS GUARDIAN OF JUSTICE

We must move from three misconceptions to three truths:

Misconception  Reality

Defence lawyer defends crime              Defence lawyer defends Constitution and procedure

Defending a criminal makes you criminal              Presumption of innocence means no one is criminal until court says so

Good lawyer should not defend bad person              Good lawyer must defend any person, because rights are for all

The reconceptualized role is therefore:

1. a) Guardian of Due Process
2. b) Officer of the Court with loyalty to client
3. c) Equalizer against State power
4. d) Guarantor that punishment is legitimate

8.0 CHALLENGES TO EFFECTIVE CRIMINAL DEFENCE IN NIGERIA

1. Poor funding of Legal Aid Council.
2. Police obstruction and lack of access to clients in custody.
3. Delay in ACJA implementation across States (many still use CPC/CPA).
4. Public pressure and lack of witness protection making cross-examination difficult.
5. Economic disincentive — criminal briefs pay poorly compared to commercial practice.

9.0 RECOMMENDATIONS

1. Curriculum Reform: Faculties of Law should teach Legal Ethics and Clinical Legal Education as practical, not theoretical courses.
2. Enforcement of Cab-Rank Rule NBA should protect lawyers who take unpopular briefs.
3. Strengthen Legal Aid

Increase budgetary allocation, adopt Public Defender system as in Lagos State.

4. Public Enlightenment NBA, FIDA, and civil society should educate public that defence is constitutional duty.
5. Judicial Activism Courts must continue to nullify trials conducted without adequate defence.

10.0 CONCLUSION

The criminal defence counsel does not ask the court to say no crime was committed. He asks: “Has the prosecution proved, by lawful evidence, beyond reasonable doubt, that this accused committed this crime, in the manner prescribed by law?”

If the answer is no, the acquittal is not a failure of justice; it is justice itself.

The advocate is not the accomplice. He is the last line that separates constitutional democracy from police state. To defend him is to defend the Constitution.

BIBLIOGRAPHY

Statutes

– Constitution of the Federal Republic of Nigeria 1999 (as amended)

– Administration of Criminal Justice Act 2015

– Legal Practitioners Act, Cap L11 LFN 2004

– Rules of Professional Conduct for Legal Practitioners 2023

– Legal Aid Act 2011

Case Law

– Josiah v. State (2017) LPELR-42089 (SC)

– Mohammed Abacha v. State (2002) NWLR

– Ubani v. State (2003) NWLR

– State v. Ilori (1983) SCNLR

Books & Articles

– Nnamdi Dimgba, _The Criminal Defence Bar in Nigeria_

– J. Ade Ipaye, _Due Process in Criminal Justice_

Ishie-Johnson Emmanuel Esq. Writes from Ishie-Johnson and Associates

Email: emmajohnsonace@gmail.com

Phone No: 08033816237, 08023186281