As I
have noted earlier, Nigerian law33 is replete with provisions
guaranteeing the rights of an accused person before, during and after trial in
a court of law. For instance, the constitution provides that a person in the
determination of his civil rights and obligations including any question or determination
by or against any government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal established by law
and constituted in such manner as to secure its independence and impartiality,34 that every person who is charged with
a criminal offence shall be presumed to be innocent until he is proved guilty.35
Also that every person who is charged with
a criminal offence shall be entitled to be informed in the language that he
understands and in detail the nature of the offence, be given adequate time and
facilities for the preparation of his defence and to defend himself in person
or by legal practitioner of his own choice.36
The
importance of the rights of an accused person has also been universally recognized
and subsequently incorporated into our laws.37
The efficacy and applicability of the African Charter on Human and Peoples’
Rights have been acknowledged by our courts in several cases.38 Thus, Article 7 of the Charter provides:
1. Every
individual shall have the right to have his case heard. This comprises.
a. The
right to an appeal to competent national organs against acts violating his
fundamental rights as recognized and guaranteed by conventions, laws,
regulations and customs in force;
b. The
right to be presumed innocent until proved guilty by a competent court or tribunal;
c. The
right to defence, including the right to be defended by counsel of his choice;
d. The
right to be tried within a reasonable time by an impartial court or tribunal.
From
the foregoing, it goes without saying the fact that a detainee is not rendered “rightness”
by reason only of an allegation of a crime against him. This is because
suspects are not convicts, they are neither to be viewed nor treated as such.
Thus, the Nigerian criminal procedure Act39
provides that any person who is arrested shall be taken with all reasonable
dispatch to a police station or other place for the reception of arrested
persons, and shall without delay be informed of the charge against him. Any such
person while in custody shall be given reasonable facilities for obtaining legal
advice, taking steps to furnish bail, and otherwise making arrangements for his
defence or release.40 In the Northern States
of Nigeria, the state of affairs under the criminal procedure code41 is similar but clearer. According to
section 129 (1) of the code, wherever it appear that an investigation… cannot
be completed within 24 hours of the arrival of an accused or suspected person
at the police station the officer in charge of the police station, shall
release or discharge him or send him as soon as practicable to the nearest
court competent to take cognizance of the offence.
The
sum total of this and preceding prescriptions is the proper treatment of detainee.
From the language of the law, any delay occasioned by the inability of the
state to bring the detainee to trial within a reasonable time may, depending on
the circumstances, cause his release.42
It is
unfortunate to observe that notwithstanding the glittering provisions of
Nigerian law on the speedy administration of criminal justice in Nigeria, the
reality is that the law is honored more in the breach than in the observance.
Numerous cases abound on delays:
a. From
the arrest of a suspect to the institution of criminal proceedings against him/her.43
b. From
the institution of criminal proceedings to the commencement of hearing of the
evidence of witnesses;44
c. From
the commencement of hearing to the conclusion of finial addresses;45
d. From
final addresses to the delivery of judgment;46
and
e. From
the delivery of judgment by the trial court to the determination of an appeal against
the decision.47
It
will suffice to say that the process whereby the accused person is denied a
speedy trial for a criminal allegation leveled against him is a breach of the
constitutional provision that provides for the accused person fair trial within
a reasonable time. The trial within a reasonable time is more germane considering
the fact that the accused person is still presumed innocent until the contrary
is proved.48
The
provision of presumption of innocence under Nigerian law can only be
efficacious if accused persons awaiting trial are admitted to bail. In the case
of Saidu V. State,49 Obaseki J. S. C. (as he then was) held as follows:
It does not give the court any joy to see offenders
escape the penalty they richly deserve but until they are proved under the
appropriate law in our law court, they are entitled to walk about in our
streets and tread the Nigerian soil and breath the Nigeria air as frees and
innocent men and women.
In the case of Chief
Pat Enwerem v. Commissioner of Police,50
the court of appeal (Port-Harcourt Division) condemned the practice of holding
charge syndrome and stated that it is unknown to Nigerian law and an accused
person detained there under is entitled to be released on bail within a
reasonable time before trial more so in non-capital offence,
In
the above case the appellant on allegation of murder and unlawful killing of a
member of Abia State House of Assembly, on application under the Fundamental Rights
(Enforcement Procedure Rules), the appellant was released on bail by the High
Court of Cross River State. Later, the police re-arrested the appellant and arraigned
him before Isuikwuato magistrate court on a charge of murder. The learned
magistrate declined jurisdiction yet remanded the accused person/appellant at
Ishikwuato police station. An application to the High Court for bail was refused.
On appeal to the Court of Appeal, the Court held:
Happily, by our constitution and government, this
country cannot operate a ‘Police state’… Want of jurisdiction on the part of
the magistrate… does not justify appellant’s prolonged incarceration … In a
free country like ours the action of the law enforcement Agencies concerned with
this matter was barbaric, a contravention of section 31(1) (a), 32 and 6 (6) (a)
of the constitution.51
Also, in Mohammed
& Ors V. C.O.P52, the appellants
were arraigned before a chief magistrate’s court in Zaria on a first information
report in which they were alleged to have committed culpable homicide
punishable with death contrary to section 221 of the Penal Code. Upon a motion
for bail on behalf of the appellants, they were released. After about seven
months, the magistrate revoked the bail and remanded appellants in prison custody.
The appellants subsequently filed an ex parte
motion in the high court seeking inter
alia the enforcement of their fundamental rights. The application was refused.
On appeal, the Court of Appeal held that an accused was entitled to the
protection of his personal liberty if he was in prison custody or detention following
an accusation of the commission of an offence by invoking section 32 of the
1979 constitution.
The
facts in Emezue v. Okolo & Ors53
suggest that detention even for a limited period may be unlawful. The appellant
claimed against the respondents the sum of N2,000 as damages for unlawful detention
in the police station at Umuahia. The respondents who were all police officers
applied to the court for an order dismissing appellant’s claims on the ground that
it disclosed no cause of action. That application was granted. On appeal to the
Supreme Court it was held inter alia that
the appellant having alleged that he was detained for about 48 hours, his
statement of claim disclosed a cause of action for wrongful detention with
respect to the excess. It is submitted that these pronouncements favours constitutionalism
and the enforcement of rights.
Therefore,
any protracted prosecutions and undue remand orders even where there are
sufficient grounds to grant the accused bail is nothing but a disguised holding
charge strategy targeted at victimizing suspects especially those that refused
to grease the palms of unscrupulous officers. This is a serous affront on the
suspects constitutionally guaranteed right to personal liberty, far hearing, presumption
of innocence, fair trial etc.
The terrible effects of pre-trial incarceration have
been eloquently stated in the case of Hartage
v. Hendric54 as follows:
The imprisonment of an accused prior to determination
of guilt is a rather awesome thing. It cost the tax payers tremendous sums of
money; it deprives the affected individual of his most precious freedom and
liberty; it deprives him of his ability to support himself and his family; it
quite possibly cost him his job; it restricts his ability to participate in his
own defence; it subjects him to the dehumanization of prison; it separates him
from his family and without trial it cast over him aura of criminality and
guilt.
It has been held that once a court
observed that it has no jurisdiction to entertain a matter, the proper order to
make is to strike out the case or charge and not to remand the suspect because
any subsequent proceeding or order made by the court is a nullity and
consequently void.55
It is
axiomatic that the degree of liberty obtainable in any society depends
ultimately on the attitude of the court. Therefore, the court should interpret
any law sanctioning holding charge narrowly, strictly and restrictively against
the party seeking to rely on it and more liberally and sympathetically in
favour of the accused person who is being deprived of the accused prison who is being deprived of
his constitutional right upon reliance on the state statute.56
According
to Glanville Williams, the manner of administration of criminal justice depends,
“too much on the decision of the Police and other prosecutors taken in private
and without effective control”.57 The
police often “over charge, perhaps because they are not sure of the facts and
wish to preserve all their options”.58
This is true of most of the police prosecutors. The only purpose is to halt
expeditious prosecution of criminal cases. In view of this, court needs to be
less willing to exercise its powers in favour of the prosecution in such
circumstances. Rather, the court should courageously strike out such cases for
want of jurisdiction59.
No
doubts, capital offences are vile and punishment for such offences is of
necessity the mark of society’s revulsion. Yet only the guilty should be
punished. The slightest punishment of presumed innocent citizen under the guise
of a Holding charge is of greater severity than the death sentence of a
murderer. It is submitted that the least toleration of improper police practice
is worse evil than the occasional escape of a criminal. The view is that the
court cannot aid the police to adopt unconstitutional means to discharge its
statutory duties.60
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.