Holding charge practice is one of the chief reason why criminal trial in Nigeria is largely regarded as unfair. Even though much has been said about the illegality and unconstitutionality of the practice in Nigeria’s criminal justice system,3 the practice still persists, maybe on the strength of the Supreme Court decision in Johnson V. Lufadeju.4

The right to fair hearing within a reasonable time is guaranteed by section 36 of the constitution of Nigeria (as amended). By section 36 (4) of the constitution, whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. Additionally Article 6 (d) of the African Charter on Human and Peoples’ Rights, makes provision for the right of an accused person to be tried “within a reasonable time”. Although, the term “reasonable” is nebulous,5 in section 35 (5) of the same constitution the expression “a reasonable time” is defined as period of one (1) day in the case of arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty (40) kilometers, and in any other cases a period of two (2) days or such longer period as, in the circumstances may be considered by the court to be reasonable. Also, what amounts to a reasonable time has been well settled by the Supreme Court, in the case of Ariori v. Elemo6. The Court held, Per Obaseki, JSC thus:
“Reasonable time must mean the period of  time which in the search for justice, does not wear out parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done”7

Whatever period the court may in any circumstance consider reasonable, it is my humble opinion that the quality of justice the court will at any time administer will depend greatly on the time. And it should be borne in mind that criminal justice is such that requires speedy administration, because of its punitive nature. The common slogan, “justice delayed is justice denied” could be given credence when the courts allow the unwholesome practice called “holding charge” to be a bump or even a barricade in the quest to administer criminal justice.

Although every case has to be examined and determined on its own peculiar facts and circumstances, the American court laid down some guiding factors to be considered in construing the delay in prosecuting an accused person. In Baker v. Wingo,8 the court observed as follows:
“Some of the factors which court assess in determining whether a particular defendant has been deprived of his rights. Though, some might express them in different ways, we identify for such factors length of delays, the reason for the delay, the defendants assertion of his rights and prejudice to the defendants.”                

From the above, it is my humble opinion that any delay, particularly a deliberate one for advantage in any guise should weigh heavily against the prosecution. It takes longer time to complete investigation into a case by the police. Sometimes, this is deliberate, while in some cases it could be due to lack of personnel and facilities to conduct proper investigation. Also, legal advice from the office of the director of public prosecution takes longer time to obtain whether or not the police should prosecute the suspect.9

The police however, knowing fully that these are hardly enough excuses for not charging the suspect to court within a reasonable time as provided by the constitution, resort to the amorphous practice called “holding charge” in a bid to pull out of this legal dilemma. Hence, the suspect is hastily arraigned before a magistrate court which the police know lacks jurisdiction to try the offence alleged in order to obtain an order of remand. By this order, the suspect will be remanded in police or prison custody pending whenever the police are done with their investigation into the allegation and probably come up with the proper charge before the proper court or pending when the D.P.P will issue his advice. Until this is done, the suspect is left to languish in police or prison custody indefinitely. This is against the interest of criminal justice, particularly when the life of the suspect is at stake.

Little wonder the Supreme Court in Garuba V. State,10 strongly condemned the inordinate period of two years and two months, which the appellant spent in custody before his trial. It should be emphasis that the expression “within a reasonable time” as used in the constitution was conceived in order to facilitate speedy trial of cases in our courts. The courts therefore should rise to this occasion by striking out cases before them when they find out they lack jurisdiction to entertain the matter11.

Also in the case of Dantata V. Mohammed12 the Supreme Court cautioned thus:
“Care must be taken to ensure that what is supposed to be a machinery of justice should not grind so slowly that persons who stand to benefit by the delay will succeed in converting the machinery of justice to that of in justice.”

It is my reasoning that the right to speedy trial with minimum delay is synonymous with fair trial, as a prerequisite for dispensation of criminal justice under the law. Therefore, it approximates to grave injustice and flagrant violation of human rights to subject an accused to a long and interminable trial.
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