1.1 Background
of the Study
Before
an accused is brought before the Court it should be assumed that the case is
ripe for hearing, not for further investigation. He must not be there on mere
suspicion, which cannot be regarded as reasonable suspicious under the
constitution. If there can be no sensible and prima facie inferences that can
be drawn that an offence has been committed then the accused cannot be deprived
of his liberty even for a second. There cannot be a ‘holding charge” hanging
over an accused in Court pending the completion of investigations into the case
against him1
Also,
Niki Tobi in Onagoruwa v. State2, stated as follows:
In
a good number of cases the police in this country rush to court on what they
generally refer to as a “holding charge” ever before they conduct
investigation. Where the investigation does not succeed in assembling the
relevant evidence to prosecute the accused to secure conviction, the best
discretion is to abandon the matter and throw in the towel. On no account
should the prosecution go out of its way in search for evidence to prosecute
when it is not there.
The
decisions of the two justices excerpted above is pertinent in considering the
police usual excuse that investigations are continuing while the suspect is
kept away in perpetual detention. It is apparently one of the greatest forms of
disservice to suspects, to have them brought before the courts and them proceed
to investigate the allegations leveled against them. It is an indictment on the
system of criminal administration and an affront to the course of justice.
The
administration of criminal justice, involves three institutions, viz: the
Nigerian police force, the courts and prison. The Nigerian Police Force is the
product of the constitution3. One of
the constitutional responsibilities of this body is to ensure that law and
order are maintained in the society, and also to detect and prevent crimes4. Thus, when a crime is committed, the
criminal justice process begins with the police, who have the primary obligation
of investigating the criminal act and apprehending the offender5.
It
follows therefore that the police are empowered by the 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 persecute criminal cases in court. Thus, any police officer may conduct in
person criminal prosecution before any court whether or not the information or
complaint was laid in by the Attorney General of the Federation6
It
should be noted that apart form some Tribunals established to try certain
specialized offences especially during the military era in Nigeria, there are
perhaps three levels of courts in Nigeria in which criminal proceedings may be
instituted. These are the magistrates’ Courts, State High Courts and the
Federal High Court.
Of
these, it seems that it is only at the Magistrate Courts that the police
commence criminal proceedings.
In
the southern states of Nigeria for instance, criminal proceedings may be
commenced in the Magistrates Courts by laying a complaint before a magistrate
whether or not on Oath, that an offence has been committed,7
or by bringing a person arrested without a warrant before the Court upon a
charge contained in a charge sheet specifying the name and occupation of the
person charged, the charge against him and the time and place where the offence
is alleged to have been committed8.
The
main objects of these proceedings are two fold. The first is to bring the
offender to the Court to face his trial,9
while the other object, as provided in section 78(b) of the C.P.A, is to bring
to the notice of the accused the crime for which he is accused. From the above,
it follows that majority of cases are prosecuted by the police at the
Magistrate Court. Thus, immediately a complaint is received at the police
station that a person has committed an offence, the suspect is arrested with or
without a warrant and brought to the station pending further investigation into
the case. At this stage, the police have two constitutional duties to perform
in the smooth administration of justice. They are to grant bail to the suspect
pending the completion of investigation into the case10, or if the alleged offence is of a
serious nature in which bail cannot be granted to arraign the suspect in court
within a reasonable time11.
By
constitutional definitions12
reasonable time is one day where a competent Court exists within 40km radius of
the place of arrest and in other circumstance, two days as the case may be. The
essence of the above provisions is to ensure fair administration of criminal
justice in the country, by respecting the accused person’s rights.
Unfortunately,
these statutory safeguards have been abused by the men of the Nigerian police
force with impunity. Thus, where an offence is committed and it is in the
nature of a capital offence, say, attempted murder, murder, manslaughter or
even treasonable felony, the police would ordinarily arrest such an offender.
It is trite law that the police do not grant bail in capital offender. What
they do in the circumstance is to arraign such offenders before a magistrate
Court whom they are aware has no jurisdiction over capital offences. The magistrate
would in turn, remand these suspects either in police or prison custody,
pending when the police gather enough evidence on the offence allegedly
committed, as well as pending when the matter is taken before a Court of
competent jurisdiction. This is done under the ignoble practice of “holding
charge”.
According
to George O.S.A13, a holding charge is
brought about when the police are investigating a capital or other serious
offence. In this situation the police are always faced with the constitutional
provision of reasonable time within which to charge the matter to court as well
as their legal incapacity of granting bail to the suspect when he could not be
brought to court within time. But since the police are intent in keeping the
suspect in detention pending investigation, the so-called holding charge is an
apparent lawful response to the forgoing legal dilemma. What the police do as a
result is to bring the suspect “before a Court of Law” as required by the
constitution. But the Court, where the police head to, is that of summary
jurisdiction, i.e a magistrate court which in law is incompetent to handle a
capital crime. This ingenious approach is aimed at killing two birds with one
stone: to remove the suspect from police custody and put him in prison custody
through the instrumentality of a court of law, albeit a court of incompetent
jurisdiction. By so doing, the police perceive themselves as not violating the
law. Indeed, if there is any such violation, then the Magistrate’s Court should
bear the responsibility, for the court, after all, should have declined
jurisdiction and send back the suspect to police custody rather than remand him
in prison custody.
Curiously,
this unwholesome practice which the police adopts is permitted by an inferior
law14 in Lagos the offending Law was s.236(3) of the Criminal Procedure Law of Lagos
1994 (now section 264 of the Criminal Justice Administration (Lagos state 2011)
which allowed the Magistrate Court to remand offenders in indictable offences. Surprisingly
also, the Supreme Court out of sentiment have upheld this practice in E.A Lufadeju & Anor. V. Evangelist Bayo
Johnson15.
However,
scholars have criticized this decision of the Supreme Court, and recommend that
it should overrule itself when the opportunity presents itself16. Be it as it may, nothing can justify
the incalculable harm being wrecked on the Nigeria Criminal Justice system by
the holding charge17.
1.2 Statement
of the Problem
… no citizen of this country ought to be detained in
any cell (without being taken to a court of law) for more than 24 hours. We
ought also to finally turn our backs on the colonial argument which saw every
suspect as a criminal who must be detained17.
The
terrible effects of pre-trial incarceration was captured by Galadima J. C. A.
citing the decision in Hartage v.
Hendrick18 taken from paragraph 5.2.10 of Appellant’s
Brief in Bayo Johnson’s case in the following words:
The imprisonment of an accused prior to a
determination of guilt is a rather awesome thing: it costs the taxpayers
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 costs him his job, it restricts his ability
to participate in his own defense, it subjects him to the dehumanization of
prison, it separates him from his family and without trial, it casts over him
an aura of criminal guilt.
Those
very illuminating words clearly encapsulate the dilemma of the Awaiting Trial Prisoners
(detained consequent upon a holding charge) in Nigeria. He is not anticipated
and therefore not provided for in the nation’s budget and has to contend with
the harsh realities of prison life. All these coupled with the fact that he may
turn out to be innocent of the offences for which he is detained inevitably
lead one to the points of interface between the regime of holding charge and
fundamental human rights.
The
utilization of the holding charge as a method of instituting criminal
proceedings amounts to putting the cart before the horse.19 For, rather than carryout proper
investigation, gather sufficient evidence and obtain proper professional legal
advice before filling a charge, the police prosecutors merely arrest and rush
to court on a “holding charge” and hope to stumble on sufficiently
incriminating evidence subsequently. There is no proof of evidence against him
while the “holding charge is continuously held against him like a sword of Damocles.20 Niki Tobi J.C.A21 expressed this sentiment in the
following words:
It is not in my humble view, the function of the
prosecutor… to rush a charge to a magistrate’s court which has no jurisdiction
to try murder cases, and play for time while investigation is in progress. I
have said it before and I will say it again that the unique 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.22
It
is unfortunate to observe that notwithstanding the criticism of this practice
of holding charge by the police due to its negative implications in our
criminal justice system, the practice still persist. It has been shown that
those remanded by the orders of court accounted for about 50% of awaiting trial
Persons (ATPs) in the country and consequently, a major cause of over crowding
and congestion in our prisons.23
Without
fear of contradiction, the consequences of the present system of administration
of criminal justice at the lower bench in Nigerian are punitive and unfair to
the accused person. It need not be emphasize that, by assuming jurisdiction in
such cases where they are incompetent to do so, Magistrates Courts unwittingly
aid the police to continue the detention of suspects under different nomenclature
called prison custody, albeit brought about unlawfully.24
For
instance, criminal suspects who are presumed innocent until the contrary is
proved under the constitution25 are
made prisoners through the machinery of the court under non existing law, and
at times under an inferior law. This practice has created the problem where
relevant provisions of the constitution (especially chapter four), which courts
have the primary responsibility to enforce in any part of Nigeria to be
under-enforced nay breached. Also following the practice of holding charge, the
much touted prison decongestion is more congested than before in the execution
of remand order of the learned magistrates.
As
a rule, Awaiting Trial Persons (ATPs) constitute a significant percentage of
the prison population.26 the
most challenging aspect is that form the moment those remanded under holding
charge steps into the confines of a prison, they are considered “a thing”
beyond the fringe of humanity and, consequently, of humane treatment. They are
beaten, harassed and visited with all kinds of indignities and outrages.
Moreover, the sprawling prison system of Nigeria is not only infested with
myriad of human rights violations, the entire structure seems, indeed,
dependent on these violations for its very survival in its present, ugly form.
Little
wonder Professor Adedokun Adeyemi27 has
described the Nigerian prison system as lacking both deterrent and reformative
value. Accordingly, it has become very costly to the economy, it is physiologically,
psychologically and emotionally destructive, it is socially damaging,
culturally abhorrent and penologically disastrous.28
Adeyemi’s
views are supported by the assertion of H.S. Labo29 that:
…the vast majority of prison inmates belong to the
16-50 year old economically productive bracket most of whom remain in prison
awaiting trial for many years, in a most de-humanizing condition…immense emotional
and psychological stress are common antecedents of the custodial circumstances
of imprisonment.
Finally,
in making the remand order by Magistrate, most victims are not informed of the
charge against them till they are docked. And the court has no inkling of the
facts of the case save as read to the accused in the open court. This has been
described as an unlawful court ordeal proceeding30.
In
my humble view, this practice is a clear breach of law, derogation and affront
to our constitution, which guarantees fundamental human rights,31 and provide for the procedures of
treating criminal suspect in order to ensure fairness. Thus, is it my
submission that magistrate court should not always hesitate in declining to
make any order whatsoever in any holding charge proceeding. This is because the
court has the primary responsibility to uphold fair and impartial proceeding in
line with the extant laws to guarantee proper administration of justice. And it
is trite law that a magistrate has no power to assume jurisdiction in capital
offence, let alone make an order to remand can accused in prison or police
custody.32
1.3 Research Question
Having
studied the practice of holding charge, and how it have served as a clog in the
wheel of effective and efficient administration of our criminal justice in
Nigeria, the following questions have been formulated, with the hope to address
them in the course of this research.
1. What
is the legality of taken a suspect accused of committing a capital offence to
magistrate courts that have no jurisdiction in order to secure a remand order
by the police?
2. If the practice is illegal, then why is
it still in practice?
3. What
is the attitude of the judiciary towards this practice in the course of
interpreting the constitution and administering justice?
4. What
is the attitude of the executive arm of government who enforce the law as regards
courts decision about the practice?
5. What
is the validity of states law that have legalize this practice vis-Ã -vis the
constitution of Nigeria?
6. What
is the legality of remand orders by our magistrate courts on indictable
offences which they lack the jurisdiction to entertain?
7. Whether
by the decision of the Supreme Court in E.A.
Lufadeju and Anor v. Evangelist Bayo Johnson,33 it could be rightly
said that the apex court approves holding charge practice.
1.4 Objective of the Study
It is my paramount objective in this research to do
the followings:
1. To
examine the legal concept of holding charge and remand orders by magistrate
courts.
2. To
examine holding charge as it affect human rights of a suspect as provided in
our constitution.
3. To
unearth the difficulty posed by the practice of holding charge in the
administration of criminal system in Nigeria.
4. To
state the constitutionality or otherwise of the holding charge syndrome.
5. To
examine the effect of holding charge to prison congestion and the inhuman
conditions of prisoners under awaiting trial.
6. To
x-ray case laws and statutes in order to understating the courts’ view on the
holding charge syndrome, and to proffer suggestions on how criminals in Nigeria
should be dealt with.
7. To
provoke wider thoughts on better ways to safeguard the rights of the suspects
as against what is obtainable under holding charge practice.
8. To
proffer solutions to all the problems identified during the research work.
1.5 Research Methodology
In
this research work, the method mostly adopted is doctrinal method, though
empirical method was partly adopted.
The
doctrinal aspect involved reading of voluminous books written by different
legal pundits, which reflects the
essay topic. In addition, a reasonable number of other materials like workshop
papers, journals, conference paper, articles presented in different places and
occasions by legal scholars and human right activists mostly on criminal
justice reform in Nigeria.
The
empirical aspect involved visiting in-mates in the prisons to get relevant information
from them which would be beneficial and helpful in the essay writing.
1.6 Relevance
of the Study
The
study of what the practice of holding charge is, and its effect on the
administration of criminal justice in Nigeria is of utmost importance.
According to the Human Rights Watch 34.
In
numerous countries-including Bangladesh, Chad, the Dominican Republic, Ecuador,
El Salvador, Guatemala, Haiti, Honduras, India, Mali, Nigeria, Pakistan,
Paraguay, Peru, Rwanda, Uganda, Uruguay, and Venezuela-unsentenced prisoners
make up the majority of the prison population. Such detainees may in many
instances be held for years before being judged not guilty of the crime with
which they were charged. They may even be imprisoned for periods longer than
the sentences they would have served had they been found guilty. This state of
affairs not only violates fundamental human rights norms it contributes
significantly to prison overcrowding a problem that is itself at the root of
numerous additional abuses. The lengthy detention of unsentenced prisoners has
its origin in two common phenomena; the denial of pretrial release to criminal
defendants, and the excessive duration of criminal proceedings. Both of these
ingredients in themselves violate international human rights norm but combined
together they constitute a grievous affront to justice… solving the problem of
excessive pretrial detention will require courage innovative thinking, an
overhaul of the code of criminal procedure, strengthening the judiciary and in
particular, increasing its size and efficiency; provisional release laws and
effective substitutes for detention. The precise nature of adopting these
reforms will require careful examination and analysis for them to fit
conformably within a country’s existing legal framework”
The
Human Rights Watch Report quoted above offers very insightful analysis of the
problem of pretrial detention (or holding charge) and possible solutions. Thus,
this research work gives an insight into the implications of holding charge.
Also,
the work gives an insight into the reasons why this practice is common among
the police .One of the reasons, being delay in carrying out of proper
investigation by the Police. Admittedly the police force is handicapped by
numerous logistic constrains such as inadequacy of trained, dedicated and well
motivated officers. The inadequacy of office accommodation, stationery,
transport and communication facilities further limits their efficiency.
Transfer of officers handling a case and the lack of transportation facilities
to bring prisoners to court constitute additional constraints.35
Finally,
this research goes further, to provide possible solutions to curb the menace of
holding charge practice on our legal system, and to provide better approach
towards ensuring that every person’s rights are protected.
1.7 Scope
of the Study
This
research work considered mostly how the awaiting trials arrested and detained
under the guise of holding charge are generally treated. The legality of
holding charge as it affects the provisions of the 1999 constitution (as
amended) especially the human right provisions, the effects of holding charge in
Nigerian prisons. The research work also took a look on the statutory powers of
the police, and factors militating against the police in carrying out their
constitutional functions. And finally, how all these have contributed in
crippling our Criminal Justice Administration.
1.8 Limitation
of the Study
Generally,
in carrying out an effective research work, many hurdles must be encountered.
Thus, in this research, the following problems were experienced:
1. The
time frame was completely inadequate, and therefore, one has to denial himself
many things in order to meet up with the allotted time.
2. Getting
primary and secondary materials was not easy in the course of this research.
3. Money
has always been the problem of most students, let alone a research student.
Therefore, the money needed to facilitate this research work was the greatest
setback in the course of the research work.
1 Per Galadima JCA in Ogor v. Kolawole (1985)6 NCLR 534 at 540.
2 (1993) 7 NWLR (pt. 303) p. 49. at 107.
3 Section 214
of the 1999 Constitution (as amended)
4 Section 4,
Police Act, Cap P. 19 L.F.N, 2004,
5 Waldron, et
al, The Criminal Justice System: An
Introduction p. 44.
6 Section 23
of the Police Act. Op.cit
7 Section
78(a) Criminal Procedure Act Cap 41 LFN 2004 (hereinafter referred to as
C.P.A).
8 Ibid, S. 78(b)
9 Fidelis
Nwadialo, The Criminal Procedure of the
Southern States of Nigeria
(2nd ed.) 1976 at 117
10 Section
17 of the C.P.A
11 Section
18 of the C.P.A
12 Section
35(5) of the 1999 constitution (as amended).
13 Amadi
G.O.S. “Police Powers in Nigeria”.
(A fro-Orbis Publishing Co. Ltd.. Nsukka.
2000)p. 198.
14 I am using “inferior law” advisedly. The
Criminal Procedure Law of Lagos State is inferior to the
constitution of Nigeria
which provides for right to personal liberty and fair healing relevant to this
reflection
15 [2007] 8 NWLR (pt. 1037) 535
16 C.A. Igwe, 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. See also Frank Agbedo, Rights of
Suspects
and Accused Persons under Nigerian Criminal
Law (Lagos,
Crown Law Publication, 2009) P. 253.
17 Nnamani,
J.S.C. “Contemporary Nigeria and the Practice of Law”
p. 8, Paper Presented at the 1990 Annual
Conference
of the Nigeria Bar Association, held in Benin from 27-31 August, 1990.
18 439 P.
A.,584 at 601.
19 Dele
Peters Nigerian Current Legal Problems,
1996-1998) vol. 4 and 5 p. 258
20 Ogor and Ors
V. Kalowole and Anor (supra)
21 Anaekwe v. C.O.P (1996) 3 NWLR (pt. 436)
330
22 Ibid at p. 332
23 www.
Hurilaws.com
24 George
O.S. A, Op cit. p.13
25 Section
36(5) of the 1999 constitution (as amended)
26 As at early September 2003, the number
of ATPS hovered between 55% and 75% of the total population of
all those incarcerated in our prisons. Out
of 40,082 inmates in all of Nigeria’s
prisons, more than half were awaiting
trial. See Uwais M; “The Prisons of
Tomorrow: a Civil Society Perspective”
paper
presented at the 3rd summit of stake holders on
the Administration of Justice in Lagos
on 17th June 2004.
However, by July 2004, the number of
ATPs reached 63% mark. According to a Prisons Assessment Report by the
Controller General of the Nigerian Prisons Service, Mr. Abraham Akpe, submitted
to the Committee on Prison Decongestion,
25,000 Prison Inmates out of a total prison population of 40, 447 are awaiting
trial. Source: Daily Independent Newspaper
of Tuesday, July 20,2004,
P.E6.
27 Adeyemi A.A, Penal Reform in Nigeria:
paper submitted for publication in a new Judicial Order. Essays in
Honour of Justice Akinola Aguda
(unpublished) p.1
28 Ibid
29 Socio-Economic
Burden of Imprisonment: paper presented at the 1st Nigerian
Prison Service /Civil Society
Dialogue on the State of Nigerian
Prisons held at Abuja
on 12th-14th
February, 2002.
30 See C.A Igwe. Op cit. p. 280
31 See Chapter 4 of the 1999 Constitution
(as amended).
32 See Anakwe v. C.O.P (1996) 2 NWLR (pt. 436);
Chinemelu v. C.O.P (1993) 4 NWLR (pt.
390); Onagaruwa
v. The State (1937) NWLR (pt.303) 149’ Enwere v. C.O.P (1993) 6 NWLR (pt. 299)
133
33 Supra
35 Criminal
Justice Reform and Challenge of Holding Charge by Olisa Agbakaoba SAN. Delivered by
HURILAWS p.
9.