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.

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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.
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