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Required proof for criminal allegations: A critique

By Akintayo Iwilade

This piece high lights thoughts on a fundamental statutory misconception that has underlined the treatment of criminal allegations made in election petition proceedings in Nigeria. It engages the historical rationale for the requirement that criminal allegations must be proved beyond reasonable doubt and argues that such is incongruous with election petitions and other variants of civil proceedings.

It is elementary, yet fundamental, that every criminal allegation must be proved beyond all reasonable doubt to ground a conviction. This much is at the heart of many cultures’ developed theories of criminal justice.

However, England’s William Blackstone was the person recorded 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 and on the whole 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.

Instructively, the singular rationale, for the requirement of proving criminal allegations beyond reasonable doubt, was grounded in the social justice imperative of averting the possible tragedies of making innocent people suffer, often irreparably, from State-administered punishments, over ‘crimes’ they did not commit. The ‘proof beyond reasonable doubt’ rule was therefore created for nothing, other than ensuring that “only guilty persons are convicted by the State”.

Understandably, Nigeria’s formalized jurisprudence have 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.

Consequently, 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’.


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