OTHER CONSTITUTIONAL PROVISIONS ON FAIR HEARING

[Olajire Deborah]

Other Constitutional Provisions On Fair Hearing

1. A criminal offence must be alive when it was committed: The Constitution provides that no person shall be held guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence. This means that no criminal law shall have retroactive effect. For instance, let’s say a law was made in February this year which forbids drinking alcohol; it is against the Constitution to charge a person under that law for the alcohol which he drank in January this year or at any other earlier time when it was not yet an offence to drink alcohol. This is because the law against alcohol was not alive as at the time he drank it.

2. No heavier penalty than the penalty in force when offence was committed: The Constitution provides that it is unlawful to impose a penalty for a criminal offence heavier than the penalty in force at the time the offence was committed. Let us use our above example again. Let us assume that it was a criminal offence punishable with one month imprisonment to drink alcohol as at January this year. Then, in February this year, the punishment was increased to 3 months’ imprisonment. If somebody was arrested in February because he drank alcohol in January, the punishment against him would be one month which is the punishment in force as at the time he committed the offence. He cannot be sentenced to 3 months even if he was only arrested in February for the offence, because the penalty for the offence in February is heavier than the penalty in January when he committed the offence.

3. No double jeopardy: under the Constitution, no person who shows that he had previously been tried for a criminal offence and either convicted or acquitted can again be tried for that same offence or a similar one except by a superior court. For example, John was charged before a court of law for assault and was tried by that court and eventually sentenced to imprisonment for that offence. He cannot be tried again in the future for that same offence or a similar offence having the same ingredients as the one for which he was convicted. The same principle applies even if he was discharged and acquitted by the court. This is the rule against double jeopardy. The law would not allow a person to suffer twice for the same offence.
But, take note that for the rule to apply, the following conditions must be met:
a. The court or tribunal which tried the accused person the very first time must have been a court of competent jurisdiction; i.e., it must have been established and recognized by law to try such cases.
b. The accused person must have been convicted or acquitted by the court of that offence. Acquittal is different from when an accused person is merely discharged and asked to go, probably because the prosecution is not diligent about the case or the witnesses were not coming to court. That is a mere discharge and the accused person may still be tried in future for that same offence. But, acquittal is when the trial was fully conducted and the court gives judgment declaring that the accused person is innocent of the charges against him and, consequently sets him free. This is what is covered by the rule against double jeopardy.
c. The accused person must provide the evidence that he indeed was convicted or acquitted by a previous court. This he can do by producing certified true copies of the former judgment.
d. The rule will only apply where the accused person is charged for the same offence as before or a similar offence which has the same ingredients as the one before. He will be charged and tried again if he commits another criminal offence not related to the first one.

4. Pardon: The Constitution provides that no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence. Pardon here means official pardon by the President, Governor of a State or the Chief Judge.

5. No compulsory evidence at trial: The Constitution states that any person who is tried for a criminal offence cannot be compelled to give evidence at the trial. So, if the accused person so desires, he may choose not to say anything during the trial or may call any other witness aside himself.

6. Unwritten law: The Constitution states that no person can be convicted of any criminal offence unless the following conditions are met:
a. The offence for which he is charged must be clearly defined;
b. A penalty for the offence is prescribed in a written law;
c. Such laws must be either an Act of the National Assembly, or law of a State or any subsidiary legislation or instrument as provided for by law.

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