5.1 Observations
The
following observations have been made in this research work which dealt with
the challenges of holding charge practice by the police in the administration
of criminal justice in Nigeria. Firstly,
the police no doubt are empowered by statutes apart from their general duties
of preservation of Law and order, protection of life and property, enforcement of
law and order, detecting and prevention of crimes, also to prosecute criminal
cases in court. Infact, the prosecution powers of the police in all courts in
Nigeria have gained judicial validation in the case of Olusemo V. Commissioner of Police1.
And majority of these prosecutions are carried out or at least started by the
police at the Magistrate Court. But the police more often than not drag
suspects to magistrate court on indictable offences to secure remand order
before proceeding on investigation. This is notwithstanding that the magistrate
lacks jurisdiction on those offences. Through the order of the magistrate such
an accused or suspect is remanded in prison till God knows when.
However,
the constitution of Nigeria grants the suspect or accused person certain rights.
For instance, the accused is presumed innocent until proven guilty. He or she
is entitled to be represented by a counsel of his or her choice. He or she has
a right to bail except in few circumstances where bail is not allowed, because
of the gravity of the offence or for other reasonable cause. The accused has a
right to speedy trial because of the cardinal principle of law that ‘justice
delayed is justice denied’.
Thus,
it is my humble opinion that this practice by the police and any law
sanctioning it is illegal and unconstitutional. As it offend the provisions of
the constitution.2
Secondly,
by using the instrument of holding charge, the police usually keep the suspect
in detention, whilst evidence of guilt are sought. This practice is the main
cause of congestion in Nigerian prisons. Many people that are not supposed to
be in prison are there because of a failure of investigation. As a corollary,
this has increased the government spending in equipping and maintaining little
amenities in the prisons.
Finally,
the research work discussed the judgment of the Supreme Court in the case of Mrs. E.A Lufadeju and Anor.V. Evangelist
Bayo Johnson3, wherein the court
held that the provision of Section 236(3) of the Criminal Procedure Law. Cap.
33, vol. 2 Laws of Lagos State 19944 did not
conflict with the provisions of the constitution. And thereby held valid a
remand order made by Magistrate Court pursuant to that section, even though the
magistrate court lacked jurisdiction to entertain the substantive matter.
During
the examination of this case, I observed that the apex Court based its judgment
on no point of law. The court was in want of where to lay its hand and finally
introduced what it called remand proceedings which the Court per
Niki Tobi said that “Although
remand proceedings is not set out in the Criminal Procedure Law, it is known
that the charge is not read to the accused and therefore no plea taken…” What the
court was saying is that apart from the arraignment of the suspect or an
accused, which is the genesis of criminal trial, a suspect could also be
brought to the court for the purpose of conducting remand proceedings, and in
the proceedings, the magistrate Court will be faced with two options, one to
remand an accused or to grant bail to him.
In my
humble opinion, this position is legally wrong because in a capital offence
where the magistrate lacked the requisite jurisdiction, the law is that it
cannot make any order whatsoever. Again the remand proceeding is not provided
for either in the constitution or in any criminal procedure enactment to the
best of my knowledge except in Lagos State.
A
forensic insight into the case shows that the apex court was only trying to
protect the bench. The court, was angry over the fact that Mrs. Lufadeju, the
appellant, and the magistrate who made the order of remand in performance of
her judicial functions was sued personally for damages over what she did in her
official capacity. The respondent was asking for damages of N5,000.000.00 (five
million naira) from the appellant for illegal detention. Thus, the sentiment to
protect the bench was considered.
Obviously,
if the action were maintained against the Attorney General of Lagos state or
even in the name of the Lagos state government, the apex court would not have
held that such order made by the Magistrate Court as valid. This is because in
cases decided by these justices when they were at the Court of Appeal, they
have held that such an order made by the magistrate court when it had no
jurisdiction is a nullity, more especially when the order was made and will
result to an unwarranted denial of an accused right to liberty. Thus, in Anakwe v. C.O.P5 Niki Tobi JSC while in the
Court of Appeal held:
“The function of the prosecution is not to rush a
charge to a magistrate court, a court which has no jurisdiction to entertain a
matter such as to try murder cases, any play for time while investigation is in
progress. I have said it before, and I will say it again that the uniquely
police phraseology of a holding charge is not known to our criminal law and
jurisprudence. It is either a charge or not. There is nothing like a holding charge”.
This statement was made in response to the order of
remand of the magistrate court to detain the appellant pending the completion
of investigation by the police. This is the same thing with what happened in Lufadeju’s case, an indefinite order of
remand for police to investigate. With due respect, that too amount to a
holding charge, which the learned justice said is not known to our criminal law
and jurisprudence.
5.2 Recommendations:
The holding charge practice represents the single most
critical challenge for criminal justice reforms in Nigeria. It is therefore
imperative for any government desirous of lasting change to tackle the problem.
Accordingly, I hereby recommend the following reform initiatives to eliminate
the menace of holding charge from Nigeria’s criminal justice system.
1. State Legislatures: States’ legislative
houses in Nigeria should endeavour to initiate the process of reform of their
respective state pretrial detention laws. Thus, the Borno State experience is
worthy of emulation, where the former Chief Judge, Hon. Justice K.M Kolo,
worked with the committee on Administration of Justice to discard the holding
charge from the state’s criminal justice system. Accordingly, magistrate courts
in Borno State are no longer used as remanding centre for persons accused of
capital offences. All capital offences are now at the first instance filled
before a high court judge…6 Also,
recently the Chief Justice of Ebonyi State Justice alloy Nwakwo declared on 8th
of November, 2013 the abolition of holding charge practice in Ebonyi State
Legal system. This was made during the marking of the 2013/2014 legal year in
Ebonyi State. Henceforth in Ebonyi State, no Awaiting Trial Person shall stay
more than 120 days in detention. I do recommend that other state government
should emulate this good gesture, to enhance fair criminal justice
administration.
2. Government (Federal and State): The
Government is expected to play a leading and perhaps dominant role in curbing
holding charge syndrome. It is my submission that the prosperity of any nation
is not measured in monetary terms alone. At the global level, the observance
and protection of international human rights norms are fast becoming the
parameter for accepting a nation as a member of comity of nations. Therefore,
since the members of the police force are more involved in crime investigation
and detection, the state should consider seriously, the imperativeness of
reactivating and equipping the force. The police authorities have been blamed
for a large number of awaiting trial men in the nation’s prisons in that they
often fail to complete investigations on time, In the absence of the requisite
tools of trade for the police and improved condition of service, the ‘holding
charge” may tarry in Nigeria for long. To perform effectively and efficiently
therefore, the government should, as a matter of urgency attend to the diverse
problems confronting the police.
Also,
the Federal Government should pay greater attention to the prisons and
prisoners. Prisons must be made to rehabilitate and reform inmates. Basic
recreational and vocational facilities should be provided in all prison.
Improvement in the quality and quantity of food provided for prisoners is
necessary just as improvement in prison infrastructure and facilities.
Finally,
the Federal government should revitalize, re-organise and re-invigorate the
Legal Aid Scheme to provide free legal representation to indigent citizens with
a view to reducing incidences of long-term incarceration on account of absence
of legal representation.
3. The Bar and Bench: The Bar and
Bench, as partners in progress in the administration of justice, must
re-dedicate themselves to promoting justice and fairness. Accordingly, magistrates
must refrain form either entertaining maters over which they lack jurisdiction
or indeed making consequential orders thereon. The Bar, for its part, must take
more proactive steps in the direction of pro-bono cases, and public interest
litigation. Interestingly, the 2009 Fundamental Human Rights (Enforcement
Procedure) Rules have relaxed the issue of locus
standi.
Also,
Chief Judges should intensify jail delivery exercises in all the states. This
will ensure that the prisons are rid off of inmates without plausible grounds
of incarceration and guarantee some sanity in the prison system. Thus, the jail
delivery exercise embarked upon by Ebonyi State Chief Judge, Justice Alloy
Nwankwo on 24th-25th of July, 2013, which led to the
release of fifty-five (55) inmates is commendable.7
4. Ministries of Justice (Federal and State):
The office of the Director of Public Prosecutions (DPP) should be made
independent of the civil service bureaucracy to enhance efficiency. I suggest
the reinforcement of the professional staff of the office of the DPP. This, it
is hoped will engender timely rendering of legal advice on case files referred
to them by the police for advice. It is worth emphasizing however, that the
government must be prepared to offer better incentives to encourage lawyers to
work in the ministries of justice.
5. The Police: The Police
force should intensify efforts at human rights education for officers and men.
Police officers must also stick to their traditional functions with a bias in
favour of timely investigation and prosecution where desirable.
Prosecution
of cases within the police force should be made the exclusive preserve of
trained legal practitioners. This should provide some leverage for accused
persons in the sense that reasonable standards of respect for fundamental rights
and freedoms will be expected. Mr. Fola Anthur-Worrey, the former Attorney
General of Lagos State had suggested that the legal department of the Police
Force should be better equipped with seasoned lawyers who can then render
advice on some case files8. For it is
not unusual for the police, in holding or remand charges, to inform the
magistrate court of non-receipt of legal advice and thus, request for an
adjournment. In this situation it is the suspect whose incarceration is
prolonged that ultimately suffers.
As a
corollary to the above, I humbly recommend that the Magistrate court should be
clothed with jurisdiction to entertain capital offences so that they can have
power both to remand and to grant bail when necessary. We all know that what
usually happens is that immediately the accused is brought to the court the
jurisdiction of such court becomes an issue. We all see that all efforts to deter
the police form taking an accused person or suspect to the magistrate court
when it lacked jurisdiction have not worked. So, if the jurisdiction of the
magistrate court is increased, it cannot only issue order or remand, but also
grant bail. This is because, now the magistrate cannot grant bail nor issue order
of remand because it has jurisdiction at all, and once the police bring the
suspect the only option left for the court are the once it has no jurisdiction,
but it must do one to avoid this dilemma,, it is necessary that the
jurisdiction of the court be increased.
It
must be emphasis that to observe the constitutionally guaranteed right to
personal liberty and other human rights, the magistrate must not hesitate in
releasing accused persons when they have been held beyond the constitutionally
stipulated time frame.
6. The
police should be encouraged to speed up investigation of case and consequently
more personnel should be employed in these directions for the smooth
administration of justice. There is the need for well trained investigating
personnel.
7. Periodic
legal training of personnel involved in prosecution of cases in their
employment should be undertaken regularly.
8. There
should be periodic review of cases handled by magistrate and those found
wanting in abusing their powers can be sanctioned. Sanctions can involve
reprimand, suspension, removal and dismissal depending on the gravity of the
offences. This periodic exercise should also apply to men of the police force
who often always has the duty of investigating and starting the locomotive
wheel of the criminal justice system.
The
police institution is therefore, a sieving institution. It sieves, using the
barometer of “probable cause or Reasonable suspicion” to decide whether the
suspect should enter the second criminal justice institution or not. The police
institution more often than not is criticized for its lackluster role in
sieving suspects. Evidence gathering is untidy and almost always the police are
not willing to let a suspect go, even when the scale of probable or reasonable
cause tilts in favor of the suspect.
It
should be noted that the prison personnel’s are not exempted form this
scrutiny. It is well known that well over 65-70% of prison population in
Nigeria falls within the class of awaiting trial persons (ATPs). Any person
that is conversant with Nigerian prisons know that this class of people suffer
more than convicts. They are subjected to unimaginable indignities, even when
they have not been convicted of any offence.
9. There is
need for workshops, seminars, conferences to be held for the three cardinal
institutions in the administration of criminal justice system in Nigeria, viz: the Police, Court, and Prison to
enable them avail themselves and update their knowledge of current trends in
the administration of criminal justice especially when it involves the
fundamental human rights of the suspect or accused person.
10. Civil Society organizations: civil
society organizations have very crucial roles to play in the fight against the
menace of holding charges. The key role is that of education and enlightenment.
Majority of our people do not have access to basic human rights education and
are therefore unable to appreciate the intricate connection between respect for
rights and good governance. It is therefore for civil society groups to take
the initiative to provide quality human rights education to citizens.
Another
possibility exists in the area of litigation to test the effectiveness of
legislative and executive actions aimed at eliminating the scourge of holding
charge. Civil society groups could assist with getting the cases to courts to
facilitate the process.
It is
my expectation that the recommendations in this work will be adhered to, so
that the concept of ‘remand proceeding and holding charge’ shall be
discouraged. This is because history beckons on the present generation of leaders
at all levels in the country to decongest the prisons, offer a ray of hope to
an otherwise hopeless generations of prisoners, improve the machinery of
criminal justice and bequeath an enduring legacy of humane prison and criminal
justice system to the next generation.
5.3 Conclusion
In this research project, I have attempted to examine the challenge of
holding charge practice to the administration of criminal justice in Nigeria.
The flimsy reasons adopted to justify the practice, its illegality, and how the
practice has greatly affected the constitutional rights of suspects charged
with criminal offences.
The
research went on to consider the constitutional rights of suspect or accused
persons. And also some of the factors that militate against the Nigerian police
force in discharging their statutory duties, especially as regard the area of
prompt investigation and prosecution of cases.
The
syndrome of holding charge which contributes greatly in the falling standard in
the Administration of Criminal Justice in Nigeria is an illegal charge, unknown
to the constitution. Therefore the sentimental judgment of the Nigerian Supreme
Court in Lufadeju’s case should be reconsidered. Although the law lacks the
precision and exactness of science, yet its scientific development is one
exercise from precedent to precedent. It is my humble submission that the
approval of remand proceeding or holding charge by the apex court is
unconstitutional.
It is
my hope that the suggestions I proffered in this research work will in no small
measure assist and improve the administration of criminal justice in Nigeria
and the menace of the holding charge syndrome as presently experienced will be
a tale of the past.
BIBLIOGRAPHY
A BOOKS
Denning Lord.
Freedom the Law, (1949)
Dennis Ude. E.,
Criminology and penology, A. Nigerian perspective. Aba, New word publishers
ltd 2002.
Eze Malemi, Law
of Torts. Lagos, Princeton publishing co. 2008.
Eze Malemi, the
Nigerian constitutional Law, Lagos, Princeton publishing Co; 2010.
Fellman D., The
Defendants’ Rights to day, the University of Wisconsin press. 1976.
Fidelis Nwadialo, the
criminal procedure of the Southern State of Nigeria. Ethiope publishing
corporation Ring Road, Benin City 1976.
George O.S Amadi, police
power in Nigeria. Afro-orbis publishing co. ltd. Nsukka. 2000.
Glanville Williams, Textbook on criminal law. London, Stevens and Sons 2nd
Ed. 1983.
Jadesola O. A. Introduction
to the constitution of the Federal Republic of Nigeria. Mis publishers, Lagos 2004.
Nwabueze, B.O; The
presidential constitution of Nigeria, United kingdom C. Hurst and c/o. 1982
Nwazuoke A. N., Introduction
to Human Rights Law. Abakaliki, Copycraft International ltd 2006.
Obande. F. Ogbuinya, Understanding the concept of jurisdiction in the Nigeria Legal system.
Enugu snap press ltd 2008.
Odinkalu A.C & Ehonwa L., Behind the wall. A Report on prison conditions in Nigeria and the
Nigerian prison system. (1991) C. L. O. Lagos.
Okaro C., The scope and impact of police power of
prosecution in the administration of Criminal Justice, in Solomon E. A. et
al (Ed) policing Nigeria in the 21st century, Spectrum Books ltd.
2007
Okpara, Human
Rights law & practice in Nigeria. Chenglo ltd 158.2ik Avenue, Uwani
Enugu. 2005.
Osita Eze, Human
Rights in Africa, selected problems. Lagos, Macmillan Publishers 1984.
Richards stone, Textbook
on Civil Liberty. Blackstone press ltd. London publishers, 1994.
Steiner H. & Alston P., International Human rights in context, (2000) 2nd
Edition, Oxford England.
B JOURNALS/ARTICLES
Adeyemi .A., ‘The
Criminal Justice Administration in Nigeria in the context of the African
charter on Human and People’s Rights; in Kalu & Osinbajo (Eds.)
perspective on Human Rights (1992).
Agomo M. A., & I. E. Okagbue, Human Rights and Administration of Justice in Nigeria. (1991) N. I.
A. L. S.
Adedamola T., The
police and holding charge syndrome; issues and challenges; Nigerian Bar
Journal 2003.
Oakas (.J.O. & Francis M. K., Impediments to the speedy dispensation of criminal justice in Nigeria
& the imperative of urgent remedial action, Jos Bar Journal vol. No. 1.
2003.
Dash S., The
Emerging Role & function of the criminal defence lawyer; North Carolina
Review, 1969.
Dele Peters, The
place of the Holding charge in Nigerians criminal Jurisprudence, Nigeria current
Legal problems (1996-1998). Vol. 4 & 5.
Ifaturoti T. O., Nigeria
prisoners and the Human Rights (campaigns, some challenges,
Nigerian Current Law Review 1994.
Igwe C. A; ‘A
Legal Review of the Administration of criminal Justice in the magistrate court
of Ebonyi state; Ebonyi state University Law Journal (2011) vol. 4 No.1.
Jiti Ogunye, Criminal
Justice system in Nigeria; the imperative of plea Bargaining ; Lawyers’
league for Human Rights 2005.
Okany M. C., ‘The
continuation of ouster clauses in Nigeria Law after 1999; A Beneficial
Wrongdoing, in Ajanwachukwu M. A; & Faga H. P; (Eds.) contemporary
legal thoughts; Essays in Honour of chief Jossy C. E. Izu prints, Abakaliki,
2008.
Ojo A; ‘Fundamental Human Rights in Nigeria, the 1963
& 1979 constitutional provisions; Nigerian journal of Contemporary Law,
(1977-1980).
Olisa Agbakola; Travesty of Justice; An Advocacy
manual Against Holding charge: (2009) HURILAWS, Lagos.
Paul A. E. ‘The legal Effect of the principle of
presumption of innocence under Nigerian law, the rights of an accused person in
perspective. Human Rights Journal, An International Human Rights Journal (2010)
vol. No. 1.
R. A. C. E; Achara; Justice According to Law and the
process; A Glance at two of Justice Akpabio’s Decisions. Unizik Law Journal,
vol. 4. No. 1
(C) Paper.
Adeyemi A; ‘Penal Reform in Nigeria” paper submitted
for publication in” A New Judicial order; Essays in Honour of justice Akinola Aguda
(unpublished ).
Agomo U. C., “The prison’s tomorrow, civic society
perspective; paper presented at a Reform of criminal Justice summit organized
by the Lagos state ministry of justice from 16th -17th June
2004.
Aguda T. A.
“The challenge for Nigeria Law & the
Nigeria Lawyer in the 21st century” A Nigerian National Merit Award
Winner Lecture, presented on September 14, 1988.
Ali Aisha M. “Effects of Delay in the Administration of
Justice (causes, Effects & Solutions) paper presented at the two day
workshop for police and other stake holders in the administration of justice
for Effective case-flow management for Access to Justice in Maiduguri Borno
state organized by National council of Women’s Societies (NCWS) and Giz Germany
on 31st May 2004.
Ikemefuna Patrick, “The Administration of Nigerian Criminal
Justice & Reform of the Penal Code” a paper presented at the conference on
prison Reform organized by the metropolitan grand knights of Saint Mulumba,
Lagos, 2013.
Lily Ojo. “The state of the Nigerian prisons being a
paper delivered at the national seminar on prison reform. June 18-20, 1990.
Niall McDermott; opening address to the international
conference on “Human Rights Education in Rural Environments”, Lagos. 1985.
Nnamani J. S. C.” Contemporary Nigeria and the
practice of law” paper presented at the 1990 Annual conference of the NBA in
Benin from 27-31 August 1990.
“Socio – Economic Burden of Imprisonment” paper
presented at the 1st Nigeria prison service/civil Society Dialogue
on the state of Nigerian Prisons held in Abuja from 12th -14th
February 2002.
Showunmi L.A; “Reform of Criminal Justice system,
Congestion of prisons by A.T. P.S- Are there Alternative? “Paper Presented at there
form of Criminal Justice summit Organized by the Lagos state ministry of
Justice from 16th -17th June 2004.
“Towards a Humane Prison System” submission by the
civil liberties organization to the Nigeria human rights commission, July 1996.
Uwais Manyam, “The prisons of tomorrow; A civil society
respective”, paper presented at the reform of criminal justice summit justice
from 16th-17th June, 2004 (Ω) Newspapers
The Guardian Newspaper of Tuesday, July 15, 2004.
The Vanguard Newspaper of Thursday 30th
May, 2013.
The Punch Newspaper of Friday 23rd January,
1998.
The Daily
Independent Newspaper of Tuesdays July 20th
2004
INTERNET.
http://www.humaniaws.com.
http://www.citizensadvosteconm.
1 (1998) 11
N.W.L.R (Pt. 575) 547.
2 See Ogor v. Kolawole (Supra), Enwerem v. C.O.P
(Supra), Adegbite v. C.O.P (Supra0
3 Supra
4 Now section
264(1) of the Criminal Justice Administration
5 Supra
6 See Ali Aisha M., ‘Effects of Delay in the Administration of Justice (Causes, Effects and
Solutions)’ Paper
Presented at
a two day Workshop for Police and other stake holders in the Administration of
Justice for
Effective
Case-flow Management for Access to Justice in Maiduguri, Borno State Organized by the
National
Council of
Women’s Societies (NCWS) and GTZ (Germany) on 31st May, 2004.
7 See www.citizens
advocate.
8See the
Punch Newspaper Friday 23rd January, 1998
at page 12.