3.1            Introduction
Human rights, as we know them today, assumed formidable dimensions in the Post-World War 11 years, catalyzed by the desire of peoples and nations to redefine, reassert and restore the intrinsic worth and dignity of man after the bitter ravages and savagery of that war. This desire found expression in concrete terms on December 10, 1948 when the General Assembly of the United Nations Organization (UNO) adopted the Universal Declaration of Human Rights.

However, the philosophical foundations of human rights are traceable to the Natural law Theories of the early times1. In their view, Nature endowed man with certain rights which protect and preserve the sacredness of the human person as inviolable, equal to his fellow man, free and independent. The Natural law Theory emphasizes the universal nature of the rights of man. As Niall MacDermott puts it:
Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religious or other differences. These rights, common to all mankind, have a long history many of them finding their origin in religious teachings. But now, in our lifetime, they have been formulated more fully than ever before and agreed to by all peoples from all parts of the world.2                   

Nigeria’s fundamental human rights provisions3 are essentially civil and political in nature apparently on the recommendation of the Willink Commission on Minorities.4 The other categories of rights are represented under the Fundamental Objectives and Directive Principles of State Police5 which are however non justiciable6.

Unfortunately the menace of holding charge has devastating consequences on the fundamental human rights of suspects. The consequences have corresponding effects on Nigeria’s criminal justice system and therefore make the call for far-reaching reforms, an absolute necessity. Thus, this chapter will analyze the affront of holding charge to the accused rights to personal liberty, fair trial within a reasonable time and presumption of innocence etc.
3.2       Meaning of Human Rights

The concept of human rights, like most juristic concepts, evades an apt definition. According to Prof. Nwazuoke7, one point of major agreement, is that the addition of the adjective ‘human’ to rights indicate that the rights in question belong solely to human beings, and all that is needed to have them is human nature. It is on this basis that they have been described as inalienable8.       

In 1945, the nations of the world realized and expressed in the Charter of the United Nations9,  that the future peace of the world depended on the guaranteeing to every man, woman and child of certain fundamental human rights and freedoms. In a succession of Declarations and Charters since then, on almost every continent upon the globe, those rights and freedoms have been enshrined as among the most precious aspirations of the people.

Human rights include (but are not limited to those civil and political rights, which are recognized and protected in the domestic (constitutional) jurisprudence of most modern nations10. Civil and political rights are essentially conceptualized as checks on the abuse of state power, and include the rights to privacy, free movement, personal liberty, free association, equality before the law etc.

Human rights have been described by the Naturalist School of jurisprudence as inalienable and proceeding from the law of nature and not as a gift of any civil authority.11 The philosophical foundations of human rights are traceable to the Natural Law Theories of the early times. In their view, nature endowed man with certain rights that protect and preserve the sacredness of the human person as inviolable, equal to his fellow man, free and independent. The Natural Law Theory emphasizes the universal nature of the rights of man. As Niall MacDermott puts it:
Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religious or other differences. These rights, common to all mankind, have a long history, many of them finding their origin in religious teachings. But now, in our life time, they have been formulated more fully than ever before and agreed to by all peoples from all parts of world.12

It follows from the above, that human rights are the creation of nature. There are right that every individual irrespective of race, religion, ethnic group, sex or disability have been endowed by nature. It is a gift of nature and protected by the constitution. Chapter 11 and IV of the constitution guaranteed them13Prof. Osita Eze defined human rights as:
Demands or claims which individuals or groups make on society, some of which are protected by law and have become part of the lex leta, while others remain aspiration to be attained in the future14.

The apex court had also defined it in the case of Ransome  Kuti V. A. G. Federation15. Per Kayode Eso JSC (as he then was) when he said that human right:

Is a right which stands above the ordinary laws of the land and which is in fact antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution since independent is to have these rights enshrined in the constitution so that the right could be immutable to the extent of the non-immutability of the constitution itself.      
Fundamental rights are rights derived from natural or fundamental law. In Igwe V. Ezeanochie16, it was held to be universal in the sense that all people have and should enjoy them and to be independent in the sense that the exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of fundamental rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life. The fundamental rights law in Nigeria is contained, inter alia, in two major documents. These are the 1999 constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.17

The statute books gave protection to those rights written in there and also provide for their due enforcement. Thus, if any person fells that his or her rights have been breached or contravened by any person or authority, such person is allowed to apply in the high court of the state for redress.18

Regrettably, the activities of the police and magistrate courts are delimiting these rights from the citizens without a due process of law, with the Cankerworm of arbitrary arrest, detention and other forms of unlawful act known as “holding charge”. Many persons arrested and detained for mere suspicion of having committed criminal offence are in different prisons and police custody without due consideration to the law.

Awaiting Trial Persons (ATPS) are a special category of prisoners. They have not been convicted. Nevertheless, they suffer the inconvenience and dehumanization

 That goes with conviction. The predicament of the average ATP in Nigeria must be considered against the backdrop that the prison authorities make little or no preparation for him and therefore make him susceptible to varying degrees of human rights abuses. It is in the light of the foregoing that this research considers the significant impact unlawful detention – awaiting trial has on the fundamental rights of persons who, under the law, are mere suspects.

3.3       The Right to Personal Liberty  
Right to personal liberty is perhaps one of the most cherished of all rights, probably next in importance to the right to life. Professor Stone has well written that:
One of the hallmarks of a free society is the ability of its citizen to go about their business without the need to explain to anyone in authority what they are doing, and without the fear that they may be subject to arbitrary challenge or arrest.19             

According to Dr. Okpara, Okpara,20 every person no matter his or her condition in life views his liberty or physical freedom as a priceless attribute as a human being created in the image of God himself with rational possibilities. Lord Denning in a general sense, defined right to personal liberty as:
“The freedom of every law-abiding citizen to think what he will, to say what he will on his lawful occasions without let or hindrance from any other persons.”.21

The above statement must not be seen as entirely descriptive of personal liberty as it appears not to recognize the limitations on individual rights to personal liberty. The following comments of Justice Pius Aderemi22 attempts to achieve the balance required in formulating an acceptable definition of the right to personal liberty:
Freedom is no doubt the greatest gift or heritage of man. Omnipotence created man and accorded him with divine freedom. Man are born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner without let or hindrance from any other person, private or governmental authorities. It therefore follows that generally, detention of a man by a fellow man is a violation of the law of God and man. I am not oblivious of the fact that they are checks and balances to the series of freedom given to man. To the extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his own freedom is limited….

From the above therefore, right to personal liberty, is the right not to be subjected to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal   justification.23  
In Liversidge V. Anderson,24 Lord Atkin said that “in English law every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act.”

The right to personal liberty is prescribed under section 35 (1) of the constitution as follows;
1.        Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:
(a)       In execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
(b)       By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c)       For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d)       In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their case or treatment or the protection of the community;
(e)       For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
Similarly, Article 6 of the African charter on Human and peoples’ Rights25 provides that:
Every individual shall have the right to liberty and to the security of his person. No one may be deprived his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

 Subsumed in the personal liberty provision are other rights of a custodial detainee. These include the right not to be in custody awaiting trial for a period longer than the maximum period of imprisonment prescribed for the offence26, right to silence,27 rights to be arraigned within a reasonable time28.
The deprivation of personal liberty is unlawful except in the specified cases, and even in the specified cases, it is still unlawful unless law specifically authorizes it. With the sanction of law enacted by the legislature, five types of detention are permitted under the constitutional guarantee of personal liberty, namely protective, corrective custody, detention ordered by a court for non-compliance with a court order, detention in connection with the commission of a criminal offence, preventive detention pursuant to conviction and sentence by a court for a criminal offence.29
Thus, detention is constitutionally permitted when the law in the case of a person reasonably suspected of having committed a criminal offence, authorizes it. But, a person so detained must be brought before a court of law30 within a reasonable time.31 It has been argued that persons detained under holding charges are held for the purpose of being brought before courts in execution of an order of court. But the decision in Shola Abu and 349 Ors v. Commissioner of Police, Lagos State and Ors32 has however punctuated this argument.
According to Justice Olokooba,33
Such orders by magistrates’ courts have however been held unconstitutional above being ultra vires the magistrate…. In other words the applicants have been held not to have been detained in accordance with a procedure permitted by law. They were ordered to be remanded pursuant to a void order. Where this is the case, the order the court ought to make is an order releasing the suspect…      

Justice Olokooba’s clear distinction between detention pursuant to a valid order of court and that following an invalid order is instructive in view of the persistent resort to section 35 of the constitution to justify detention under holding charges. Interestingly, the Shola Abu’s case also considered propriety of detention for the purpose of being brought before a court upon reasonable suspicion of having committed a criminal offence and dealt with it as follows:34
It is the duty of the respondents therefore to prove that applicants are being detained for the purpose of being brought before a court upon reasonable suspicion of their having committed criminal offences. The emphasis here is on “reasonable suspicion” it is also necessary to show that that is the real purpose for which the applicants are being detained. Arresting a citizen, charging him before a court of incompetent jurisdiction in the indeterminate future would not appear to me to demonstrate the reasonableness of the suspicion pursuant to which he has been deprived of his liberty.                   

The judge further maintained that35.
To demonstrate that a citizen is detained pending being brought before a court of law upon reasonable suspicion of a criminal offence, those who claimed to have reasonably suspected him of the offence and apprehended him for that reason must demonstrate the reasonableness of their suspicion by arraigning him before a court of competent jurisdiction, where the reasonableness thereof will tested within a reasonable time.   

This researcher cannot agree more with the learned judge. It remains to add that section 35 (1) of the constitution and Article 6 of the African Charter on Human and Peoples’ Rights guarantee the right to liberty and disclose exceptions but do not contemplate the power of magistrates to make remand orders as contained in Section 264 of the C. J. A. of Lagos State36. As a matter of fact, Article 6, affirms that… no one may be arbitrarily arrested and detained. Consequently, a conflict exists between S. 264 of C. J. A. and S. 35 (1) of the constitutions. Under the principle of supremacy of the constitution as provided in S. 1 (3) of the constitution, the courts have power to declare any provision of any law which is in conflict or inconsistent with the provisions of the constitution whether directly or indirectly void.37 By and large, it should be noted that the liberty of the individual person is central to all the advantages of a civilized society. To therefore deprive an individual of his personal liberty on whatever guise without just cause is a grave step in the process of administration of justice.

3.4       The Right to Fair Trial within Reasonable Time
Notwithstanding the glittering provisions of Nigerian law on the speedy administration of criminal justice in Nigeria, the reality is that the law is honoured more in the breach than in the observance. The chorus ‘justice delayed is justice denied’ has become a senseless nuisance to most of the persons and institution which are intimately connected with the administration of justice in our country and a saddening reminder to those directly affected, of a totally bankrupt system of administration of justice. This is of course extremely sad, since that chorus is absolutely true.38

Section 36 (4) of the constitution provides: Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal, provided that-
(a)       a court or such a tribunal may exclude from its proceeding persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.

(b)       If any proceedings before a court or such tribunal, a minister of the government of the federation or a commissioner of the government of a state satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make             arrangements for evidence relating to that matter to be heard in private and shall take such other actions as may be necessary or expedient to prevent the disclosure of the matter.

Similarly Article 7 (1) (d) of the African Charter Provides that:   
Every individual shall have the right to have his cause heard. This comprises: (d) they right to be tried within a reasonable time by an impartial court or tribunal.

The above provisions as well as Article 10 of the United Nations Universal Declaration on Human Rights39 (UDHR) guarantee fair trial.
Article 10 of the UDHR provides: Every one is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

The right to fair trial within reasonable time40 embodies two important components namely, the right to fair hearing and the right to speedy trial. It is imperative to note that the two components differ fundamentally. While trial is all encompassing, that is, from arraignment to the conclusion of the trial culminating in the announcing of the decision of the court or tribunal; fair hearing entails merely from arraignment to the putting of the case for the defence.41 

What emerged form the brief analysis above is that I am more concerned with fair hearing under this head even though neither of the rights is guaranteed the suspect in the final analysis. Suspects held under the holding charge are not properly arraigned considering that a critical ingredient of the arraignment process is always missing namely, the plea. However, when examined thoroughly, the right to fair hearing gives rise to the following component rights, a few of which become relevant to the current discourse- right to presumption of innocence; 42right to the informed promptly and in detail the nature of the offence charged in the language which the suspect understands;43 right to be given adequate time and faculties for the preparation of his defense44; right to defend himself in person or by counsel of his choice,45 right to examine in person or by his legal practitioner witnesses called by the prosecution or by the defence46.

The purposes of bringing a suspect before a court of competent jurisdiction is to enable the court decide the plausibility of releasing the suspect. Trial within reasonable time is constitutionally stipulated because delay impairs the ability of an accused person to defend himself in view of the fact that a vital witness may have died in the interval or the reelection of the facts by other witnesses may have become blurred.

The duty of ensuring that the right to fair hearing is enjoyed falls squarely on the shoulders of all courts and tribunals established by law and constituted in such a manner as to ensure their independence and impartiality. The courts should therefore refuse recognition to the holding charge practice, where accused persons spend more years undergoing trial than even the maximum period of imprisonment, stipulated under the law, to which they may have been sentenced, if eventually convicted, is most abhorrent and unacceptable in a civilized society governed by laws. If approximates to grave injustice and flagrant violation of human rights to subject an accused person to a long and interminable trial. It inflicts severe harm and damage to the dignity and mental well being of the affected persons, on whom the charge is made to hang on precariously and menacingly, like the mystical sword of Damocles.

3.5       The Right to Presumption of Innocence
A rebuttable presumption of law refers to the inference drawn from specific facts, which are conclusive until disproved by evidence to the contrary47. The concept of presumption of innocence is a rebuttable presumption of law.
Presumption of innocence is exemplified in section 36(5) of the constitution, as follows:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.      

Article 7 (1) (b) of the African Charter similarly provides:
Every individual shall have the right to have his cause heard. This comprises:
(b) The right to be presumed innocent until proved guilty by a competent court or tribunal.

The International Covenant on Civil and Political Rights (ICCPR)48 and UDHR equally has provisions recognizing the presumption of innocence in favour of persons charged with criminal offences. Accordingly, Article 14 of ICCPR provides:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Article 11 of the UDHR also provides:
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence.     

The import of the above provisions is that there is general presumption of innocence in favour of an accused person unless the contrary is proved in a court of competent jurisdiction. Section 145 (2) of the Evidence Act49 states that:
Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.   

The burden of proving the guilt of an accused person rests on the prosecution and the standard of proof is beyond reasonable doubt.50 In the case of Goni V. Bornu Native Authority51 the court held that “it is not the duty of the accused to prove his innocence, it is the duty of the accuser (prosecution to prove his guilty”. This is coterminous with the case of Bhai Chaggan Bhai V. State of Gujurat52 where the Indian Supreme Court held inter alia that:
It is a fundamental principle of criminal jurisprudence that an accused is presumed innocent. Therefore, the burden lies on the prosecution to prove the guilt of an accused beyond reasonable doubt… this general burden never shifts and it always rests on the prosecution.         

In Nigeria, there are many instances in which accused persons are incarcerated in some prisons for very long periods of time without trial. Where an accused person is detained for about two years without trial, would that contravene the presumption of innocence?
            In the case of Musa and 7 ors V. C.O. P53 the appellants were arraigned before the upper Area court, Kabong, Jos, upon allegations in a First Information Report of commission of several offences including culpable homicide punishable with death. The appellants were detained for about 22 months. The Upper Area Court refused their application for bail on the grounds that it lacked the jurisdiction to do so. The High Court also dismissed their application for bail. On appeal, the Court of Appeal held inter alia, that the continued detention of the appellants in prison custody for 22 months is “contrary and contradictory to the age long existing principle of presumption of innocence enshrined in section 36(5) of the 1999 constitution” Obguagu54 J. C. A. held as follows:
... it is now settled, that it is better for one hundred accused persons to go free, than for one person to be punished for an offence he did not commit or had no hand in it’s committal. That is why the provision in section 36 (5) of the 1999 constitution that every person who is charged with an offence shall be presumed innocent until he is proved guilty and this will be, beyond reasonable doubt. Happily, sentiment, have no place in our courts.

Thus,on the authority of Musa V. C.O.P.55 it is submitted that the detention of an accused person for two years, without trial, is a gross violation of the presumption of innocence.56

It should be noted, that the right to bail is essential to the realization of the principle of presumption of innocence provided by the Nigerian constitution and the African Charter on Human and Peoples’ Right. Where the right of an accused person to bail is arbitrarily refused by the court, the provision of presumption of innocence under Nigeria law would be rendered otiose.57 Thus, in the case of Obekpa V. C.O.P58 the court observed that:
It is a constitutional privilege which (an accused person) is entitled to under the constitution… unless the right to bail or freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force.

It follows from the above that 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 The state,59 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 Nigerian air as free and innocent men and women.

It is apposite to note that the days when courts are inclined not to grant bail to accused persons charged with serious criminal offence, such as capital offences, are over in contemporary Nigeria. In the relatively recent case of Adamu Suleiman and Ors V. C. O. P. Plateau state,60 the Supreme Court held, inter alia, that:  “The court can, in appropriate case, grant bail to a person accused of murder.”

The Court per Niki Tobi.61 J. S. C., held that the right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused….  

 According to Paul Adole Ejembi, 62 where an accused person is tried in a court of competent jurisdiction and is discharged and acquitted, the right to presumption of innocence becomes irrebutable, subject to appeal and ought to be given full legal effect. Little wonder the Supreme Court in the case of Onasanya V. The state63 stated that:
… where there is absolutely no evidence against an accused person at the end of the prosecution’s case, the court is under a legal obligation to discharge him at that stage. To do otherwise would be tantamount to placing upon the prisoner the onus of establishing his innocence. This is a contravention of the presumption of innocence enshrined in the constitution. 

It may be deduced in the light of the foregoing, that presumption of innocence presupposes that a person accused of an offence no matter the gravity of the offence, is as innocent as a dove, until the contrary is proved, and such an accused person ought to be treated as an innocent person by all and sundry.

Also, suffice to say here is the fact that the right to presumption of innocence begins at the time of suspicion for crime, and runs through arrest, preferment of charges, and trial. Therefore, Section 264 of the C. J. A of Lagos State,64 violates the presumption of innocence by permitting prolonged detention prior to charge when the case against the suspect has not been settled. The pre-trial process must be premised on the goals of fairness and minimal error. The principles of due process require that a judicial determination in the form of bail hearing should precede the deprivation of liberty at the pre-trial stage. The presumption of innocence should guide the fact finder in that determination and prevent inferences of guilt flowing from the mere fact of arrest.

3.6       The Right to Dignity of Human Person
The dignity to the human person is rated very high in comparison with other rights. Dignity is perhaps the most fundamental attribute of an individual’s personality and this makes it necessary that it should be protected in all circumstances.
Section 34 (1) of the constitution provides:
Every individual is entitled to respect for the dignity of his person and accordingly.                                    

(a)       No person shall be subjected to torture or inhuman or degrading treatment;
(b)       No person shall be held in slavery or servitude;
(c)       No person shall be required to perform forced or compulsory labour.
Similarly, Article 5 of the African Charter of Human Peoples’ Rights provides that:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition to his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, in human or degrading punishment and treatment shall be prohibited. 

The wordings of these provisions are clear and unambiguous and the law is that they should be construed and given their literal interpretation.65
Unfortunately, the above right is respected more in breach than in adherence, when viewed in terms of the deplorable living conditions in our prison, and the manner the law enforcement agencies treat suspects. For in stance, in the case of Mr. Kingsley Ikonna V. Commissioner of Police, Lagos State and 4 ors,66 the applicant was arrested by some policemen who allegedly raided a hotel to arrest a robbery suspect. In a bid to obtain a confessional statement, the applicant was then taken to a detention facility and subjected to physical abuse and torture by the policemen. The court held inter alia: The fundamental rights of citizens are constitutionally guaranteed in Chapter IV of the 1999 constitution, the court has a duty to protect these constitutionally guaranteed rights. In the instant case, the applicant was incarcerated and subjected to severe torture. There is also evidence that the applicant was unlawfully arrested and no attempt has been made by the respondents to prove the lawfulness of the arrest and detention. Therefore, the arrest and detention of the applicant as well as his torture and shooting while in detention and his continued incarceration are flagrant violations of the fundamental rights of the applicant as protected by the provisions of sections 34 and 35 of the constitution and are therefore, illegal and unlawful.        

Also, in the case of Mogaji V. Board of Customs and Excise,67 Adefarasin C. J. held that it is a violation of the constitutional prohibition of inhuman or degrading treatment to organize a raid with use of guns, horse whips, tear-gas, and strike or otherwise injure custodians of such goods. In Alaboh V. Boyles and Anor68, the beating, pushing and submersion with the applicant’s head in a pool of water by the first respondent was held to constitute inhuman and degrading treatment.

A prisoner, as a result of being in prison, is particularly vulnerable to arbitrary and unlawful action. Those who are responsible for his imprisonment should be subject to the scrutiny and control of, and in particular, the ordinary courts of the land.69
Judge Tumin’s postulation is more appropriate for Nigeria considering the prejudice that follows imprisonment. The prisoner, having been neglected by society and the prison system must find some solace in the law and the courts. Accordingly, an International Legal Instrument70 provides that all persons under any form of detention or imprisonment shall be treated in a human manner and with respect for the inherent dignity of the human person.

It should be noted that respect for human dignity is a critical issue in most Nigerian prisons. This is because the fact of imprisonment appears to offer some incentive to impunity for security officers. Torture of prison inmates in Nigeria is the norm than the exception. For instance disrespect for the dignity of a prisoner’s person manifest itself in several aspects of prison life notably classification and housing of prisoners.

Rule 8 of the United Nations Standard Minimum Rules for the Treatment of Prisoners71 to which Nigeria is a signatory provides as follows:
The different categories of prisoners shall be kept in separate institutions taking into account of their sex, age, criminal record, the legal reasons for the detention and the necessities of their treatmen”72       

However, in Nigeria, segregation of prisoners is observed more in breach despite the express provisions of Section 2 (4) of the Prisons Act73 to that effect.
Thus, the Former Director of the Nigerian Prison Service, Mr. Lily Ojo, admitted that there is a problem when he said:
“The problem of overcrowding has not only imposed strains on prison management but has rendered the concept of classification meaningless in our prisons”74

According to D.U. Ekumankama,75 the direct consequences of overcrowding and or congestion of prisons is that even good managers are rendered helpless as there is nothing they can do on their own to solve the problem. The position as reported by the Nigeria law Reform Commission in 198376 is that offenders are locked up under inhuman conditions often with 100 (one hundred) inmates occupying a cell that was meant for at most 20 persons. The prison cells are overcrowded and without good ventilation, and the building erected during the colonial era has no room for extension.

It is humbly submitted that being a prison inmate, does not confer a status of “awaiting death” on the prisoner. Therefore, it is absolutely wrong to bastardly treat inmates anathematically. Consequently the practice of holding charge is incompatible with and therefore significantly impacts suspect’s right to dignity of the human person.

1   See generally Osita Eze: Human Rights in Africa: Some Selected Problems. (Nigerian Institute of
    International Affairs, Lagos, in co-operation with Macmillan Nigeria Publishers Limited, 1984). Ashild
    Samnoy: Human Rights as International Consensus: The Making of the Universal Declaration of Human
   Rights. (Thesis for the Candidate of Philosophy, Department of History university of Bergen; May, 1990).
2 Naill Macdermolt: Opening Address to the International Conference on Human Rights Education in Rural
  Environments, Lagos, Nigeria, 1985. P. 10. For other contributions along this line, see Chukwudifu Oputa:   
  Human Rights in the Political and Legal Culture of Nigeria, at the Second Idigbe Memorial Lectures, 1986,
  P. 45. Chukwuweike Idigbe: Fundamental Rights Provisions of the Constitution, at the all Nigerian Judges
  Conference Papers, 1982, (London, Sweet and Maxwell, 1983) P. 41. Ransome Kuti v. Attorney General of
  the Federation (1985) 2 NWLR (Pt. 6) 211., M. Cranston: “Human Rights Today”, quoted from A.J. Mitre: 
  “Should we Have a Bill of Rights? “(1977) 40 MLR 389 at 392.
3 Chapter IV of the 1999 Constitution (as amended) (herein after referred to as the constitution)
4 Ojo, A., Fundamental Human Rights in Nigeria; The 1963 and 1979 Constitutional Provisions’, Nigerian
   Journal of Contemporary Law (1977-1980); p. 118.
5 Chapter 11 of the Constitution.
6 By virtue of Section 6(6) (c) of the Constitution
7 A.N. Nwazuoke Introduction to Human Rights Law (Abakaliki, Copycraft In’t Ltd, 2006) P.7.
8 Ibid.
9 The League of Nations was the Precursor of the United Nations Organization.
10 See Chapter 1V of the Constitution. 
11 Thomas Jefferson Cited in Henry J. Steiner and Phillip Alston (2000) International Human Rights in
    Context, 2nd Edition, Oxford, P. 325.
12 Niell MacDermott: Opening Address to the International Conference on Human Rights Education in Rural
    Environments, Lagos-Nigeria, 1985, P. 10.
13 Though Chapter 11 is non- justiciable.
14 Osita Eze, Human Right in Africa: Selected Problems (Lagos: Macmillan, 1984) P.5.
15 (1985) 2 NWLR (pt. 6) 211 at 230.
16  (2010) 7 NWLR (Pt. 1192) 61
17 Cap. A 9 L.F.N-2004
18 See S. 46(1) & (2) of the Constitution.
19 Prof. Richard Stone, Textbook on Civil Liberties, Blackstone Press Ltd, London, 1994, P. 29.
20 Dr Okpara Okpara Op.cit P. 139.
21  Lord Denning, Freedom Under The Law (1949) P. 5.
22 Eyu V. State (1988) 2 NWLR (Pt. 78) 602 at 626, paragraphs G-H.
23 E.C.S. Wade, Law of the Constitution, 10th ed.; chapter 5, pp. 207-208. 
24 (1942) A.C. 206 
25 (Ratification and Enforcement) Act, Cap. A 9 L.F . N 2004. The African Charter is part of the laws of
   Nigeria and therefore should be accorded equal weight with it, regard being had to international obligations  
   Nigeria has assumed under the Charter. See Ogugu v. State (1994) 9NWLR (pt. 366) ; Abacha v. Fawehinmi
    (1996) 9 NWLR (Pt. 475) 710 at 745.
26 This is perhaps the most observable lapse in the holding charge Phenomenon. Suspects are kept awaiting
    trial for periods much longer than they would have remained in prison custody if they were convicted for the
    alleged offences.
27 This is the presumption against self-incrimination that is constitutionally recognized under Section 36(1) the
28 Section 36(4) of the Constitution, prescribes two months for persons under custodial arrest and three months
    for other cases. In other words , no person shall be in detention without arraignment for longer than three
29 Nwabueze, B.O. The Presidential Constitution of  Nigeria United Kingdom, C. Hurst & Co. (1982).
30 Court of law must be interpreted to mean a court having jurisdiction to try the offence for which the accused
    person was arraigned before it.
31 Reasonable time is defined in section 36(4) of the constitution
32 Unreported Suit no. IKD/M/18/2003, a decision of the Ikorodu High Court delivered on the 28th of July
33 Ibid, P. 26 of the ruling.
34 Ibid, P. 27 of the ruling
35 Ibid.
36 And other States Laws that has similar provisions.
37  See Ibidokun v. Adaralode (2001) 12 NWLR (pt. 727) 268 at 312.
38  T.A. Aguda, “The Challenge for Nigerian Law and the Nigerian Lawyer in the 21st Century”, a Nigerian
     National Merit Award winners Lecturer, Presented on September 14, 1988, at 3-4.
39 (1948) General Assembly Resolution 2174 (111).
40 Reasonable Time is the Shortest time a cause or matter ought to be heard and determined having regard to
    the dictates of the law and the requirement of fair hearing. Beyond the said period, inordinate delay, which  
   vitiates fair hearing sets in. See Obaseki A.O. (Justice). “Defeating Delay-Case Flow Management; A 
   keynote Address Delivered at a Seminar for Legal Practitioners Organized by continuing Legal Education  
   Association of Nigeria (CLEAN) in Lagos, Nigeria on March 16, 1994 at P. 3.
41 Adeyemi, A.A., Criminal Justice Administration in Nigeria in the Context of the African Charter on Human
    and peoples’ Rights: in Kalu, A. and Osinbajo, Y. (eds.) (1992) Perspectives on Human Rights. PP. 121-141
     at 129.
42 Section 36(5) of the constitution. This right is discussed latter in this work.
43 Ibid, Section 36(6) (a)
44 Ibid, Section 36(6) (b)
45 Ibid, Section 36(6) (c)
46 Ibid, Section 36(6) (d)
47 Bones (ed.) et al Osborn’s concise Law dictionary 9th edition London. Sweet and Maxwell, 2001 p. 297.
48 The ICCPR entered into force on 23rd march 1976.
49 Evidence Act 2011 (amended)
50 Ibid. section 135(1(. See also Musa and Anor v. COP (204) 9 NWLR (Pt. 879) 483 at P. 502; Fayemi v. Oni
    (2009) ALL FWLR (Pt. 493) 1254.
51  (1957) NWLR 40 at 42.
52  (1964) SC 1563.
53 Supra, Pp. 498-499 Para H-F and P. 505 Para A-B Ratio 2.
54 Ibid P. 502
55 Supra.
56 See also Nwankwo & 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).
57 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 Review: An International Human rights Journal 2010.
    vol. 1, No 1 P. 319.
58 (1980) INNLR 113.
59 (1982) 4 SC 41
60 (2008) 8 NWLR (Pt. 1089) P. 298 at PP. 324-327. para A-A.
61 Ibid P. 322 paras D-G.
62  Paul A.E. Op.cit. P. 321.
63 (1979) 6 S C 79.
64 And other similar States Laws that permits remand orders by Magistrate on Indictable Offences.
65 See the case of Triana Ltd v. Universal Trust Bank PLC (2009) 12 NWLR (Pt. 1155)313.
66 (2010) 12 N.M.L.R. (Pt. 1) 365. 
67 (1982) 2 NCLR 552 Pp. 561-562. 
68 (1984) 3 NCLR 830.
69 His Honour Judge Stephen Tumin, Prison Disturbances April 1990: Report of an Enquiry (CM 1456, 1991)
     part 2. 14-294.
70 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or
    Imprisonment, Principle 1-United Nations Document A/43/49 (1988). Principle 6 further declares that
    “Cruel, inhuman or degrading treatment should be interpreted so as to extent the widest possible protection
    against abuses, whether physical or mental, including the holding of a determined or imprisoned person in
    conditions which deprive him, temporarily or permanently of the use of any of his natural services, such as
    sight or  hearing, or his awareness of place and the passing of time”.
71 Adopted by the First United Nation Congress on the Prevention of Crime and the Treatment of Offenders
    held  at Geneva in 1955 and approved by the Economic and Social Council by its Regulations 663 (XXIV)
    of 31st  July 1957 and 2076 (LXII) of 13th May 1977.
72 In adopting the above international regulation, the Prisons Regulations made pursuant to the Prisons Act has
     in  its Sections 15,16 and 17 made similar provisions.
73 Prisons Act Cap. P.29 L.F.N 2004.
74 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.
75 Dennis Ude Ekumankama  Op cit P. 228.
76 Quoted in “Behind The Wall” Published by Civil Liberties Organization in August, 1996. P.1
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