ABSTRACT
In Nigerian public discourse, a lawyer who represents a person accused of heinous crimes is often viewed with suspicion, labelled as a defender of criminals, or morally compromised. This societal misconception conflates legal representation with moral endorsement of crime. This article critically examines the jurisprudential and constitutional foundations of criminal defence lawyering in Nigeria.
It argues that the role of the defence counsel is not to defend crime, but to defend the Constitution, to uphold due process, and to ensure that the state proves its case beyond reasonable doubt as required by law. 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 for Legal Practitioners 2023, the paper contends that without a fearless defence Bar, the entire adversarial system collapses. The lawyer is a minister in the temple of justice, not an accomplice to crime.
Keywords: Criminal Defence, Presumption of Innocence, Legal Representation, Professional Ethics, ACJA, Cab-Rank Rule
- INTRODUCTION
A common refrain in Nigeria is: “How can you, a Christian, a good man, defend an armed robber, a kidnapper, or a corrupt politician?” The question, though emotionally understandable, reveals a fundamental ignorance of the role of law in a constitutional democracy.
The Nigerian legal system is adversarial, not inquisitorial. It is built on the premise that the State, with all its powers, must prove its case against an individual, and that individual, no matter how odious the allegation, must be given a fair opportunity to be heard. The defence counsel stands as the buffer between state power and individual liberty. To stigmatize that role is to stigmatize the Constitution itself. This article seeks to deconstruct this stigma.
- THE CONSTITUTIONAL AND STATUTORY FOUNDATION OF CRIMINAL DEFENCE
The right to defence counsel is not a privilege granted by the State; it is a fundamental human right.
(a) The Presumption of Innocence: Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed innocent until proved guilty. Until a court of competent jurisdiction pronounces guilt, the accused is not a criminal in the eyes of the law. A lawyer therefore represents an _accused person_, not a criminal. Calling an accused a criminal before conviction is itself unconstitutional.
(b) The Right to Counsel of Choice: Section 36(6)(c) guarantees the right to defend himself in person or by a legal practitioner of his own choice. This is reinforced by Section 349 of the Administration of Criminal Justice Act 2015, which provides that a defendant is entitled to legal representation.
(c) The Rules of Professional Conduct: Rule 1 of the RPC 2023 states that a lawyer is a minister in the temple of justice. Rule 19 makes it clear that a lawyer shall not refuse to represent a client on the ground of his personal opinion of the guilt of that client. The Cab-Rank Rule, inherited from English legal ethics, provides that a barrister must accept any brief in his area of practice, subject to fee, without picking and choosing based on disgust.
- THE LAWYER AS REPRESENTATIVE, NOT DEFENDER OF CRIME: THE JURISPRUDENTIAL DISTINCTION
There is a critical philosophical difference between representing a person and endorsing his alleged conduct.
The defence lawyer does not say to the court, “My client did not commit armed robbery and armed robbery is good.” The lawyer says, “My client says he did not commit armed robbery, and even if he did, the prosecution must prove it beyond reasonable doubt, with admissible evidence, obtained lawfully, and with due process.”
As Lord Williams observed, the duty of the defence counsel is to put the prosecution to strict proof, to test evidence, to protect the accused from torture, from illegally obtained confessions, and from mob justice. The lawyer defends the process, not the crime.
This is why in R v. McKenzie, the court held that even the most hated accused deserves counsel. Without counsel, there can be no fair trial, and without a fair trial, there is no justice.
- WHY SOCIETY GETS IT WRONG: THE ROOTS OF THE STIGMA
The stigma arises from three factors: First, Ignorance of the Adversarial System: Nigerians, influenced by media trials, believe the lawyer’s job is to free the guilty through technicalities. They fail to understand that technicalities are constitutional safeguards.
Second, Moral Sentimentalism: In cases of murder, rape, or corruption, emotions run high. The public wants instant conviction. The lawyer who delays that by asking for proof is seen as an enemy of the people.
Third, Conduct of Some Lawyers: It must be admitted that some lawyers cross ethical lines — coaching witnesses to lie, suborning perjury, or obstructing justice. Rule 32 of RPC 2023 prohibits this. When lawyers do this, they fuel the stigma. But abuse of a profession does not define the profession.
- CASE LAW AND JUDICIAL ATTITUDES
Nigerian courts have consistently upheld the nobility of defence. In Udoh v. The State (1988) 3 NWLR (Pt 82) 316, the Supreme Court set aside a conviction where the accused was denied counsel. In Josiah v. The State (1985) 1 NWLR Pt 1, the Court held that denial of legal representation amounts to denial of fair hearing.
The Supreme Court in Mekwunye v. Imoukhuede (2019) reiterated that legal representation is the cornerstone of justice. Internationally, in Powell v. Alabama (1932), the US Supreme Court established that the right to counsel is fundamental to due process.
- THE DANGER OF THE STIGMA TO DEMOCRACY
When lawyers are afraid to take criminal briefs for fear of public labelling, EFCC cases, kidnapping cases, or terrorism cases, what happens is that the poor and the hated go undefended. This leads to:
(a) Wrongful convictions of innocent persons.
(b) Torture-induced confessions going unchallenged.
(c) Mob justice replacing rule of law.
(d) Erosion of the Bar’s independence.
A society where no lawyer wants to defend an accused is a society on the path to tyranny.
- RECOMMENDATIONS
(a) Legal Education Reform: Law faculties and the Nigerian Law School must teach Legal Ethics and Criminal Defence as a practical skill, emphasizing that defence is a constitutional duty, not moral endorsement. The model of the Innocence Project should be introduced in Nigerian universities.
(b) NBA Public Enlightenment: The Nigerian Bar Association should embark on public sensitization that defence counsel are ministers of justice. Media should be engaged to explain the presumption of innocence.
(c) Strict Enforcement of RPC: The Legal Practitioners Disciplinary Committee (LPDC) must punish lawyers who actually defend crime by fabricating evidence, to separate the ethical from the unethical, so the public can see the difference.
(d) State-Funded Legal Aid Expansion: The Legal Aid Council of Nigeria must be better funded under the Legal Aid Act 2011 so that even the most hated accused gets representation without relying on private lawyers who fear stigma.
(e) Judicial Protection: Judges must protect defence counsel in open court from harassment and must not equate defence counsel’s argument with personal opinion of counsel.
- CONCLUSION
The lawyer who represents a person accused of a crime is not defending crime; he is defending the Constitution. He is defending the idea that no person should be condemned without a fair hearing, that evidence must be tested, and that state power must be checked.
If we condemn lawyers for representing accused persons, we condemn the very Constitution that protects us all. Today it is an armed robber who needs a lawyer; tomorrow it could be a journalist, a businessman, or an innocent citizen falsely accused.
The defence Bar must therefore be fearless, ethical, and proud of its role. The stigma is misconceived. It is born of ignorance. It is the duty of scholars, judges, and the Bar itself to correct it. For as long as Section 36 of the Constitution remains, criminal defence is not a dirty job — it is the noblest duty of the legal profession.
REFERENCES
- Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(5).
- Ibid s 36(6)(c).
- Administration of Criminal Justice Act 2015, s 349.
- Rules of Professional Conduct for Legal Practitioners 2023, r 1.
- Ibid r 19.
- Rondel v Worsley 1 AC 191.[1969]
- R v McKenzie 1 WLR 327.[1954]
- Powell v Alabama 287 US 45 (1932).
- Udoh v The State (1988) 3 NWLR (Pt 82) 316.
- Josiah v The State (1985) 1 NWLR Pt 1, 125.
- Mekwunye v Imoukhuede (2019) LPELR-47732 (SC).
- Legal Aid Act 2011, s 8.
- D A Ijalaye, ‘The Role of the Defence Counsel in Criminal Justice’ (2018) 12 Nigerian Bar Journal 45.
- P Okonkwo, Criminal Procedure and Ethics in Nigeria (2nd edn, Princeton 2021) 89.
- Y Ma, ‘The Cab-Rank Rule and Defence Ethics’ (2020) 4 Journal of Professional Legal Ethics 112.
- Amnesty International, Nigeria: Torture and Fair Trial Report (2022).
- J H Wigmore, Evidence and Due Process (Little Brown 2019) 23.
Author
Ishie-Johnson Emmanuel Esq. Writes from Ishie-Johnson and Associates. He can be reached at: Email: [email protected]Or Phone No: 08033816237, 08023186281