Within the framework of criminal justice
administration in Nigeria, members of the Nigerian police force play an
important role in the detection, prevention and investigation of crimes.
However, a very reprehensible and time-consuming police practice is what is
known as a “holding charge”. Thus, in perceived serious cases, the police, who usually
prosecute some cases, often require the advice of the director of public
prosecution on their competence to prosecute a suspect, or whether the justice
ministry would undertake the prosecution of the suspect.
Pending such advice,
and in some instances further investigation, the suspect is normally charged
before magistrate courts or area courts (since the police generally prosecute
cases in such courts) even though these courts have no jurisdiction over such
cases. When an application for the release of the accused person on bail is
made, these courts often reject the application on the ground that, since they have
no jurisdiction over the offences in question they lack jurisdiction to order
the release of the accused person on bail1.
Amazingly, these courts usually order that the accused person be remanded in
prison custody until the requisite advice, which is rarely forthcoming, is
received by the police.
Consequently, this chapter will examine the necessary
implications of this practice by the police and magistrates’ courts on the
speedy administration of criminal justice in Nigeria, on the defence of the
accused, on the Nigeria prison and finally on the fundamental human rights of
the accused persons. This is because those remanded in custody on the basis of
the so called holding charge are sometimes forgotten in custody, or further
investigations of the allegations against them are not accorded due attention.
Such inmates sometimes remain in custody for periods longer than they would
have served if they had been tried, found guilty, and sentenced.
1 See Dakas
C.J Dakas and Francis M. Kwede, Impediments
to the Speedy Dispensation of Criminal Justice in
Nigeria and the Imperative of
Urgent Remedial Action, Jos Bar. Journal vol. I. No. 1. 2003 P. 155.
2 Ibid.
3 See Olawoye v. COP (Supra), Ahmed v. C.O.P
(Supra), Shagari v. COP (Supra), Agundi v. COP (Supra),
Enwere v. COP (Supra), Oshinaya v. COP
(Supra), Chinemelu v. C.O.P (Supra), Onagoruwa v. State
(Supra), Anakwe v. C.O.P (Supra), Adegbite v.
C.O.P. (Supra).
4 Supra.
5 See, for
instance, Nnajiofor v. Ukonu (1989) 2
N.W.L.R (pt. 9) 686, at 695; Unongo v.
Aku (1983) 2 S.C.N.I.R. 332.
6 (1983) 1
SCNLR I at 24-28 and 15-16
7 See also Isiaku Mohammed v. Kano Native Authority
(1968) 1 All NLR 424; Obiaso v.Okoye
(1989) 5
NWLR (pt. 119)
80.
8 407 US
1514, 530 (1972).
9 See Odogu v. Attorney-General of the Federation,
(2002)2 HRLRA P.84
10 (!972) 4
S.C. 118.
11 See Fasakin Foods (Nig) Ltd v. Martins Babatunde Shosanya (2006) MJSCN vol. 7. P. 48 at 52.
Per
Ogbuagu,
JSC; see also Lakanmi v. Adona and 3 Ors
(2003) 4 SCNJ, 348 at 355. Per Kalgo J.S.C.
12 (2005)
SCNJ. P. 17 at 25.
13 See Ukwunnenyi and another v. The State
(1989) 3 N.S.C.C. 42 at 45. Per Oputa
J.S.C.
14 Section
36(5) of the Constitution. See also Article
7 (1) (b) of the African Charter on Human and Peoples’
Right.
15 Dash S., “The Emerging Role and Function of the
Criminal Defence Lawyer”. North
Carolina Review, 47.
(April
1969).
16 See also the dictum of Oputa J.S.C. in Josiah
v. State (1985). I .N.W.L.R (Pt. 1) P 131 at P. 140. See also,
Okoduwa v. State (1988); 2 NWLR (Pt. 76). Nse Udo Nita v. State (1993) NWLR (Pt.
283) P. 512.
17 Fellman
D.; The Defendants Rights Today. (The
University of Wisconsin Press, 1976) P. 208.
18 Trans Bridge Co. Ltd. V. Survey
International Ltd (1986) NWLR (Pt. 37) P. 576 at 596.
19 Showunmi
L.A.; “Reform of Criminal Justice System
and Congestion of Prisons by Awaiting Trial Persons-
Are there Alternative? Paper presented
at the Summit of Stakeholders on the Administration of Justice in
Lagos on 17th June, 2004.
20 T.O.
Ifaturoti (Mrs.), “Nigerian Prisoners and
the Human Rights Campaigns: Some Challenges”. Nigerian
Current Law
Review 1994, P. 87.
21 Civil Liberties Organisation Annual Report in
Nigeria
1999, at P. 200.
22 Taofik
Adedamola, Op. cit at P. 289.
23 See Behind The Wall, A report on Prison
Conditions in Nigerian and Nigerian Prison System. CLO. 1996
edition p.
13.
24 See Behind
The Wall, Ibid, and Quoted in Ignatius
A. Ayua, “Towards a more Appropriate
Sentencing
Policy in Nigeria” in Nigerian Law Reform
Journal No. 3, January, 1983 P. 22.
25 See CLO’s
Report Human Rights in Retreat, 1993, P. 120.
26 The ATP
influx is at the core of our prison
reform formular, for if we can effectively and sufficiently reduce
and control
their inflow into our prisons, then it would be possible with better management
techniques, for
the
available resources to more efficiently serve the needs of deserving inmates.
See Odinkalu A.C. and
Ehonwa L. Behind the Wall-A Report on Prison Conditions
in Nigeria
and the Nigerian Prison system”
(1991) CLO, Lagos PP. 208-2009.
27 See generally section 8 of the United Nations
Standard Minimum Rule for the Treatment of Prisoners; and
Sections 15,
16 and 17 of the Prisons Regulations, made pursuant to the Nigerian Prisons Act
Cap. P. 29
L.F.N 2004.
28 See Lily
Ojo, “The State of the Nigerian Prisons”
being a paper delivered at the National Seminar on Prison
Reform. June 18-20, 1990, P.7.
29 Ikemefuna
Patrick, “The Administration of Nigerian Criminal Justice and Reform of the
Penal Code”, a
Paper
presented at the Conference on Prison Reform Organized by the Metropolitan
Grand Knights of Saint
Mulumba, Lagos. See Vanguard
Newspaper, May 30, 2013.
P. 5.
30 Ibid.
31 Agomo
Uju, “The Prisons Tomorrow Civil Society
Perspective”. A paper Presented at the Reform of
Criminal
Justice System III, Organized by the Lagos State Ministry of Justice on June 16, 2004.
32 Jiti
Ogunye, Criminal Justice System in Nigeria: The Imperative of Plea
Bargaining”, Lawyers’ League for
Human
Rights, August 2005, P. 29.
33 See
Particularly chapter iv of the 1999 Constitution (as amended)..
34 Section
36(1) Ibid.
35 Section
36(5) Ibid.
36 Section
36(6) (a) (b) (c) Ibid.
37 African
Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Cap. A
10, L.F.N. 2004.
38 Osheyire v. British Caledonian Airways Ltd.
(1990) 7 N.W.L.R (Pt. 163) 507. Ogugu v.
State (1994) 9
NWLR (Pt.
366) 1; Abacha v. Fawehinmi (1996) 9
NWLR (Pt. 475) 710 at 745.
39 Cap. C 41
L.F.N 2004 applicable in the 17 States found in the Southern part of Nigeria.
40 Section
9. Ibid.
41 AP 30
Laws of Northern Nigeria 1963.
42 See, For
instance, S. 35 (4) (a) (b) of the Constitution
43 Nwankwo
and Ors. V. The Queen (1959) 2 S. C.N.L.R. 675 (The accused persons, or at
least some of them,
Were
charged to court a year after their arrest and detention by the police). A
study has shown that only
11.5% of
accused persons responded that they were taken to court within 24 hours of
their arrest: M.A.
Ajomo and
I.E. Okagbue (eds). Human Rights and the Administration of Criminal Justice in Nigeria
117-
8(1991).
44 Asakitikpi v. The State (1993) 5 NWLR
(Pt. 296) 641 (Time lag of 14 months between the date the accused
person was
charged to court and the date when the trial commenced): Garba v. The State (1992) 4 S. C 118.
45 Ozuluonye & Ors v. The State (1983)
4 N.C.L.R. 204 (A period of about 4 years); Sambo
v. The State (1989)
I.C.L.R.N
77.
46 Shehu
v. The State (1982) 1 NCR I.
47 Asakitikpi v. The State (Supra).
48 See Adegbite v. C.O.P. (Supra); Musa & 7 ors v. C.O.P (Supra); Obekpa v. C.O.P (Supra).
49 (1982) 4
S.C. 41
50 (1993) 6
NWLR (Pt. 299) 333; See also Ukatu v. C.O.P (2001) FWLR (Pt. 66) 758.
51 Ibid, at PP. 342-343.
52 (1987) 4
NWLR (Pt. 65) 420.
53 (1978)
NSCC 312.
54 439 PA,
584 at 601
55 Matari v.
Dangaladima (1993) 3 NWLR (pt.281) 265; Peenock ltd v. Hotel presidential ltd
(1982) 12 S.C.I
56 See C.A.
Igwe Op.cit p. 284.
57 Glanville
Williams, Text Book of Criminal law, London,
Stevens & sons. 2nd ed; 1983, p.7.
58 Ibid; at p. 11
59 See C.A.
Igwe. Op.cit P. 284
60 Ibid.