The right of every person charged with an offence to a fair hearing is guaranteed by Section 36(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the Constitution). An integral part of this is the right of every person charged with an offence to be given adequate time and facilities for the preparation of his defence to the criminal charge.

The pertinent question which arose in a recent decision of the Supreme Court in NWEKE v. STATE (2017) LPELR-42103(SC) was whether the right of an accused person to adequate time and facilities under the Constitution is self executory i.e capable of being enforced directly by the person without a positive order of court. In that case, the Appellant, (Nweke)along with four others , was charged for the offences of conspiracy to commit murder and attempted murder. Nweke and his co-accused served a Notice on the Prosecution requesting the latter to produce certain materials for their inspection for the purpose of preparing their defence in accordance with the provisions of Sections 36(6) (b) and (d) of the  Constitution. The said documents were however not produced by the Prosecution. Consequently, Nweke and his co-accused submitted a petition to the Attorney General of the State complaining that the Prosecution was keeping back some documents required in defending the charges brought against them. When there was no response, Nweke and his co-accused filed an application contending that their fundamental right to be given adequate facilities for the preparation of their defence had been violated and that such violation had vitiated the Information and other processes filed by the Prosecution. The High court as well as the Court of Appeal dismissed Nweke’s case which prompted the appeal to the Supreme Court.

The Supreme Court in determining the issue held, amongst other things, that the service on a person of a Notice to Produce an original document does not compel the served party to produce that document. A Notice to Produce only entitles the person seeking the production to rely on secondary copy of the said document in place of the original. It was therefore futile for Nweke to serve a Notice to Produce on the Prosecution when he did not have the secondary copies of the documents which he was seeking the production of.

The Court went ahead to define the term “facilities” used in Section 36(6)(b) of the Constitution to mean

‘resources’ or ‘anything’ which would aid the accused person in preparing his defence to the crimes for which he is charged”

The Court stated that where an accused person wants some facilities which were not made available to him by the Prosecution, a mere request from the accused to the prosecution will not suffice because the Prosecution is not obliged to accede to the request of the accused. The accused person must formally apply to the court for the facilities which he requires for his defence then the Court will make the Order compelling the Prosecution to comply.

This is because, even though the accused has a right to reasonable time and facilities to prepare his defence, that right is not a self executory or absolute right, but one which judicial intervention is required to achieve, as the exercise of such right may need to be weighed by the Court against competing interests such as national security and the need to protect witnesses at risk of reprisal. Therefore, the failure of the Prosecution to furnish Nweke with the documents requested did not automatically amount to a breach of his right to adequate time and facilities to prepare his defence.