ABSTRACT
The
criminal justice system revolves around three cardinal institutions: the
police, court and prison. These institutions are partners in our failing
criminal justice system, due to some practices that are inimical to the
interest of society. Thus, the incalculable harm being wrecked on the Nigerian
criminal justice system by the holding charge practice cannot be justified.
Holding charge which involves the bringing of a suspect before an inferior
Court that lacks jurisdiction to try him or her for the primary purpose of
securing a remand order, in order to look for a prima facie evidence in support
of the allegation against the suspect and thereafter abandon him or her in
prison under the pretext of awaiting trial, leaves one to wonder whether the
presumption of innocence is tenable in Nigeria.
This is because under this
practice, an accused is presumed guilty until he or she proves his innocence.
Also, the crisis of congestion in our prison is the result of the holding
charge practice. It is trite, that jurisdiction is the life-wire of any
litigation whether civil or criminal and the base on which adjudication rest.
It follows that there is obviously an anomaly in bringing a suspect for remand
before a magistrate who has no power to impose penalty for the indictable
offence allegedly committed by the suspect. Therefore, the practice by
magistrate courts who lacked Jurisdiction in indictable offence, but goes on to
remand the suspect under holding charge have been considered unconstitutional,
because it is a threat to the accused person’s rights to personal liberty,
dignity, and fair hearing granted by the 1999 constitution (as amended).
However, some states laws have given the magistrate court the impetus to
continue with this harmful practice without regard to the provisions of the
grundnorm. Consequently, this research work, in chapter one will take a look at
the historical inception of holding charge; chapter two will focus on the meaning
of the monster called holding charge, the reason for its adoption and the
illegality. Chapter three will discuss on the rights of accused persons and how
holding charge have thwarted its realization. Chapter four will examine the
effect of holding charge in the criminal justice administration in Nigeria. The
last chapter contains observation and recommendation, mainly on abrogation of
all the laws that gave magistrate courts powers to remand suspects on
indictable offences even when they have no jurisdiction.
CHAPTERIZATION
i. Title page.
ii. Certification page.
iii. Approval page.
iv. Dedication.
v. Acknowledgements.
vi. Table of Contents.
vii. Table of Statutes.
viii. Table of Cases.
ix. Abbreviations.
x. Abstract.
1.0 CHAPTER
ONE: GENERAL INTRODUCTION
1.1 Background
of the Study
1.2 Statement
of the Problem
1.3 Research
Questions
1.4 Objectives
of the Study
1.5 Research
Methodology
1.6 Relevance
of the Study
1.7 Scope
of the Study
1.8 Limitation
of the Study
2.0 CHAPTER
TWO: THE HOLDING CHARGE PRACTICE
2.1 Introduction
2.2 The
meaning of holding charge
2.3 The
reasons for adopting holding charge
2.4 The
procedures that enabled holding charge
2.5 Can
holding charge practice be justified?
2.6 The
illegality of holding charge
3.0 CHAPTER
THREE: HOLDING
CHARGE AND THE
RIGHTS OF SUSPECTS
3.1 Introduction
3.2 The
meaning of human rights
3.3 The
rights to personal liberty
3.4 The
right to fair trial within reasonable time
3.5 The
right to presumption of innocence
3.6 The
right to dignity of human person
4.0 CHAPTER
FOUR: THE EFFECT OF HOLDING CHARGE
PRACTICE
4.1 Introduction
4.2 The
effect on speedy administration of justice in Nigeria
4.3 The
effect on the defence of the accused person
4.4 The
effect on Nigeria prisons
4.5 The
effect on fundamental human rights
5.0 CHAPTER
FIVE: CONCLUSIONS
5.1 Observations
5.2 Recommendations
5.3 Conclusion
Bibliography
LIST OF ABBREVIATIONS
ALL. N. L. R. –
ALL Nigeria Law Report
Cap. –
Chapter
CCHCJ –
Certified Copier of High Court
(of Lagos
State) Judgments)
C.P.A –
Criminal Procedure Act.
C.P.C – Criminal Procedure Code.
F.W.L.R. –
Federation Weekly Law Report
H.R.L.A
– Human Rights Law Assistance.
H.R.L.R.A.
– Human Rights Law Reports of
African
M.J.S.C.N –
Monthly Judgment of the Supreme
Court of
Nigeria
N.C.C. –
Nigerian Criminal cases.
N.C.CL. –
Nigeria. Constitutional Law
Reports
N.M.L.R. –
Nigeria Monthly Law Reports
N.N.L.R. –
Northern Nigeria Law Reports
N.R.N.L.R – Northern Region of Nigeria Law
Reports
N.S.C.C. – Nigerian supreme court case
N.S.C.C. –
Nigeria supreme court case
N.S.C.Q.R. – Nigeria Supreme Court innately reports.
S.C. – Nigeria Supreme court.
S.C.N.J
– Supreme court of Nigeria Judgment
S.C.N. L. R. –
Supreme court of Nigeria Law
re[ports
U.S.
– United States
W.R.N - Week Reports of Nigeria
TABLE OF CASES
A.G Bendel State V. A. G. Fed & 22 Ors (1982) AU
NLR 85 SC.
A.G Lagos State V. Dosunmu (1989) 6 S.N.J (pt. 11)
134.179.
A.G. Abia State V. A.G. Fed. (2002) 6 NWLR (pt. 763)
391.
A.G. Anambra State V.AG. Fed. (2005) 22 NSC QR (pt.
11) 574
Abacha V. Fawehinni (1996) a NWLR (pt 475) 710 – 745
Achene V. The State (1991) 8 NWLR (pt. 424) 412
Action Congress V. Kaigama (2008) 8 NWLR (pt. 1088) 165
Adamu Suleima V. C.O.P. Plateau State (2008) 8 NWLR
(pt. 1089) 298-324.
Adegbite V.C.O.P (2006) 51 W.R.N. PP. 186-187.
Agundi V. C.O.P. (2013) All F.W.L.R (pt. 660) 1243
A-h Ondo State V. A. G. Fed. (2002) 9 NWLR (pt. 772)
141
Ahmed V. C.O.P, Bauchi State (2012) 9 NWLR (pt. 1304)
104
Alaboh V. Boyles & Anor (1984) 3 NCLR 830
Alliance for Democracy V. Peter Ayodele Fayose (2005)
10 NWLR/ (pt. 932) 151.
Anaekwe V. C. O. P. (1996) 3 NWLR (Pt. 436) 330
Ani V. The State (2002), 11 WRN 53.
Apadi V. Banuso
(2008) 13 NWLR (pt. 1103) 204
Ariori V.. Elemo (1983) I SCNLR I at 24-28
Asakitikpi V. The State (1993) 5 NWLR (pt. 296) 61
Bhai Chaggan Bhai v. State of Gujurat (1964) S.C.
1563.
Bola Kale V. The State (2006) 1 NWLR (pt. 962) 507
Chief Great Ovedje Ogbonu v. Chief James OnANEFE Ibori
& 27 Ors (2005) 13 NWLR (pt. 942) 310.
Chinemelu V. C.O.P (1993) 4 NWLR (pt. 390) 141
Chinemelu V. C.O.P. (1995) 4 NWLR (pt. 390) 467.
Dantata V. The Police (1958) NRNLR 3.
Dantata. V. Mohammed (2005) SCNJ 17-25.
Doherty V. Balewa (1961) AU N.L.R 604. S.C.
E. A. Lufadeju & Anor. V. Evangelist Bayo Johnson
(2007) 8 NWLR (pt. 1037) 535.
Edet V. State (2008) 14 NWLR (pt. 1106) 52.
EFCC V. Ekeocha (2008) 14 NWLR (pt. 1106) 161.
Emezue V. Okolo & Ors (1978) 312
Emezue V. Okolo (1978) 1. L.R.N. 236.
Enwere V. C.O.P. (1993) 6 NWLR (pt. 299) 133
Erekanure V. The State (1993) 8 NWLR 385.
Eyu v. State (1988) 2 NWLR (pt. 78) 602-626.
Fasakin Food (Nig.) itd. V. Martins Babatunde
shosanyaa (2006) IMJSCN (No. 7) 48-52.
Fayemi v. Oni 92009) All FWLR (pt. 493) 1254.
FCE, Pankshin v. Pusmut (2008) 12 NWLR (pt 1101) 405.
Fyouzughu v. A g Benue State (2005) 5 NWLR (pt. 918)
226-248.
Garba v. Federal Civil Service Commission (1988) INWLR
(pt. 449) 124.
Garuba v. state (19972) 4 S.C. 118
Goniv. Bornu Native authority 91957) NWLR 40-42
Hartage V. Hendric 439 PA, 584 at 601.
Hartage V. Hendrick 439 PA, 584 – 601
Ibidokun v. Adaralode (2001) 12 NWLR (pt. 727)
268-312.
Igwe v. Ezeanochie 92010 7 NWLR (pt. 1192) 61.
Jimoh V. C.O.P (2004) 17 NWLR (pt. 902) 389.
Josiah V. state (1988)2 NWLR (pt. 1)131-140.
Kingsley Ikonav. Co. p Lagos state & 4 ors (2010)
12 N. M. L. R. (pt. 1) 365.
Lakanmi V. Adoma & 3 ors (2003) 4 SCNJ 348.
Liversidge v. Anderson (1942) A.C. 206.
Madukolu V. Nkemdilim (1961) N.S.C.C (vol. 2) 374 –
380
Marbury V. Madison 5 U. S. 154 (1803).
Matari V.
Dangaladima (1993) 3 NWLR (pt. 281) 265.
Mogaji V. Board of customs and exercise (1982) 2 NCLR
552.
Mohammed & Ors V. C.o.p. (1987) 4NWLR (pt. 65) 420
Musa & Anor v. C.O.P (2004) 9 NWLR (pt. 879)
483-502.
Njikonye V. M.T. N. Nigeria Communication Ltd. (2008)
9 NWLR (pt. 1092) 339.
NNPC V. Tijani (2006) 17 NWLR (pt. 1007) 29.
Nse Udo Ntita v. State (1993) NWLR (Pt. 283) 512.
Nwankwo & Ors v. the queen (1959) 2.5 C.N.R. 675.
Obekpa v. C.O.P (1980) I.N.L.R. 11.
Odogu V.A.G of
the Federation (2002) 2 HRLRA 84
Ogor V. Kolawole (1985) 6 NCLR 534-540
Ogugu v. State (1994) 9 NWLR (pt. 366)1.
Ogugu v. State 91994) 9 Nwlr (pt. 3661).
Okoduwa v. State (1988) 2 NWLR (pt. 76) 512.
Olawoye & 4 Ors. V C.O.P (2006) 2 NWLR (pt. 965)
427.
Olusemo v. C.O.P (1998) II NWLR (pt. 575) 547.
Omokeloye V. State (1989) 1 C.L.R.N. 150
Onagoruwa V. State (1993) 7 NWLR (pt. 303) 49
Onasanya v. the State (1979) 6 S.C 79.Trigra Ltd. V.
Universal Trust Bank PLC (2009) 12 NWLR (pt. 1155) 313.
Ononye V. Odita (2008) 10 NWLR (pt. 1096) 483.
Osheyire v. British Caledonian airways Ltd. (1990) 7
NWLR (pt. 163) 507.
Ozuinonye & Ors. V. the State (1983) 4 NCLR 204.
Peanock ltd V. Hotel presidential (1982) 12 S.Cl
Ransome Kuti v. a. G Federation 91985) 2 NWLR (pt.6)
211-230.
Rossek V. A.C.B. (1993) 10 S.C.N.J 20 at 116.
Saidu v. the state (1982) 4 S. C. 41
Sambo v. The State (1989) ICLR B 77.
Shagari V. C.O.P (2007) 5 NWLR (pt. 901) 1.
Shehu v. the state (1982) INCRI.
Shola Abu & 349 Ors v. C.O.P Lagos State & ors
(Unreported) Suit No. 1 KD (M/18/2003.
Trans Bridge co. Ltd. V. Survey International Ltd.
(1986) NWLR (Pt. 37) 576.
U.B.A Trustees Ltd. V. Niger Ceramic Ltd. (1987) 3
NWLR (pt. 62) 623.
Ukatu v. C.O.P (2001) FWLR (pt. 66) 758.
Ukwunnenyi & Anor. V. the state (1989) 2NSCC 42
Utih V. Onuyivwe (1999) 1 NWLR (pt. 166) 166-206.
Uwaje Nnabuife & Anor V. C.A. Maidoi & Anor
(2007) LPELR.
WEC V. Balarabe (2003) 3 NWLR (pt. 806) 72 Sc.
Madukolu V. Nkemdilim (1961) N. S. C.C. (VOL. 2) 374-380
Doherty V. Balewa (1961) AN N.L.R 604 S. C.
Marbury V. Madison 5 V. S 154 (1803).
NNPC V. Tijani (2006) 17 NWLR (pt. 1007) 29.
Onoye V. Odita (2008) 10 NWLR (pt. 1096) 483.
Njikonye V. M.T.N. Nigeria Communication Ltd (2008) 9
NWLR (pt. 1092).
TABLE OF
STATUTES
African Charter on Human and peoples’ rights
(ratification and Enforcement) Act Cap. A9 L.F.N 2004.
Art 6 ………………………………………………..
Art 7(1)(d)..……………………………………………..
Art 7(1)(b) ………………………………………………..
Art 5 ………………………………………………..
Art 6
(d)………………………………………………..
Art 7 ………………………………………………..
Constitution of the federal Republic of Nigeria, 1999
(as amended).
S. 214…………………………………………………………
S. 35(5)…………………………………………………………
S. 35(4)…………………………………………………………
S. 35(4) and (5)…………………………………………………………
S. 35(7) (a)…………………………………………………………
S. 35(6)…………………………………………………………
S. 35(1) …………………………………………………………
S. 36(6) (a) (b) (c)…………………………………………………
S. 35(1) …………………………………………………………
S. 46(1) (2)…………………………………………………
S. 1(3) …………………………………………………………
S. 36(6) (a-d) …………………………………………………
S. 34(1) …………………………………………………………
S. 36(4) …………………………………………………………
S. 6(6)(c) …………………………………………………………
3. Criminal
code Act, Cap C. 38 L.E.N. 2004
S. 37(1)……………………………………….
S.316
S.38
4. Criminal
Procedure Act (Cap. 41 L.F.N 2004
S. 78 (a) (b)
S. 17
S. 18
S. 118
S.9
5. Criminal
Procedure Code AP 30 Laws of Northern Nigeria 1963.
S. 129
6. Criminal
Procedure law Cap 33 laws of Lagos state, Nigeria 1994.
S. 236(3)……………………..
7. Criminal
Justice Administration (Lagos State) 2011.
S.
264 (1)
S.
264 (10) (a-c)
8. Criminal
Procedure Law Cap. 49 Laws of Bendel State 1976 (as amended by the criminal
procedure (Amendment) law 1991.
S.
236 (3)
9. Evidence
Act 2011 (amended
S.
145(2)
S.
135 (1)
10. International
covenant on civil and political Rights. 1966.
Art.
14.
11. Police
Act Cap. P. 19 L.F.N 2004.
S.4
S. 23
12. Prisons
Act Cap. P. 29 L.F.N 2004
13. Robbery
and Firearms (special provisions Act Cap. R.11 L.F.N 2004.
S.1(2)
14. Universal
Declaration of Human rights 1948.
Art
10.
CHAPTER ONE: GENERAL INTRODUCTION
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.A[13], 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.
CHAPTER TWO:
THE HOLDING CHARGE PRACTICE
THE HOLDING CHARGE PRACTICE IN CRIMINAL LAW | MEANING
| REASONS | PROCEDURES | ILLEGALITY PRACTICE
Introduction
The police institution is the first institution that a
criminal suspect comes in contact with. Whatever becomes his or her fate will
be determined to a large extent by the way the police go about its 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 role in sieving suspects. Evidence gathering is untidy and more often
than not the police are not willing to let a suspect go even when the scale of
probable or reasonable cause tilt in his favour. Using the instrument of
holding charge, the police usually keep the suspect in detention, whilst
evidence of guilt is sought. This practice is the main causes of congestion in
Nigerian prison. Many people are not supposed to be in prison are there because
of failure of investigation. Thus, this chapter will focus on the meaning of
holding charge, the reasons for its adoption, the procedures that enabled it,
whether the practice can be justified, and the unconstitutionality of the
practice.
Meaning of
Holding Charge
Neither
the constitution nor any other existing law1
in force in Nigeria defines the concept of holding charge. Accordingly, there
is no authoritative definition of the term. Ayorinde J, agreed with this assertion in Ogor
v. Kolawole2 when he said that: “Our constitution or any other existing law
in force in this country does not provide
for a holding charge…”
Onu J.C.A made a similar observation in Chief Pat Enwere V.C.O.P3, and proffered the following solution:
“As the Constitution of the Federal Republic of
Nigeria 1979, or any other existing law in force in this country does not
provide for a “holding charge”, an accused ought to be released on bail within
reasonable time before trial…”
Notwithstanding
the absence of any constitutional or statutory definition of the holding
charge, the practice exists and portents grave danger to the criminal justice
system. In order to capture the essence of the practice, the following
definition will suffice, a holding charge arises where a person brought before
a magistrate or Area Court for a criminal charge (usually on capital offences)
is remanded in prison custody to await commencement of his prosecution. It is
the outcome of police inability to investigate and prosecute crime within the
time stipulated by the law.4 The
practice is predominant in the inferior courts of records, particularly the
magistrate (In southern States) and the Area Court (in the Northern States5.
According
to Bryan A, Garner6, holding
charge means a criminal charge of some minor offense filed to keep the accused
in custody while prosecutors take time to build a bigger case and prepare more
serious charges. It follows that holding charge is a creation of police
prosecutors7. The intention of the
police is to detain the suspect for as long as investigation into the case
lasts including the outcome of the DPP’s advice and until there is a final
decision whether or not to take the case to a competent Court8.
Holding
charge has also been explained as a charge brought against an accused person in
a court without jurisdiction to try the offence charged pending the receipt of
legal advice from the office of the director of Public prosecutions for the
accused person’s trial in the court of competent jurisdiction or tribunal set
up to try the particular offence9. It is
also called remand charge i.e a charge brought before a magistrate for the sole
purpose of obtaining a remand order or where applicable and appropriate, an
order for bail.10
From
the foregoing therefore, holding charge is understood to mean a system of bringing
an accused person before an inferior Court that lack jurisdiction to try him or
her for the primary aim of securing a remand order and thereafter abandon him or
her in prison custody under the pretence of awaiting trial. A procedure is
tantamount to a holding charge if the suspect is charged to a court that
obviously lacks jurisdiction to try the substantive offence and the said Court
makes an order remanding the accused in custody without plea11in lieu of striking out the charge for
want of jurisdiction.
Thus,
holding charge proceedings are usually instituted in the magistrate courts12 by police prosecutors. They are common
in respect of such heinous crimes carrying capital punishment as treason13, murder14
instigating invasion of Nigeria15, and armed
robbery,16 and such other offences
triable by various miscellaneous offences tribunals. It is the practice of
police prosecutors in a holding charge proceeding to arraign the accused before
a magistrate court. The accused is neither expected nor allow to plea to the
charge. Instead the police prosecutor applies for an adjournment for the
purpose of forwarding the case file to the office of the DPP for legal advice.
Thereafter the accused is remanded17
in prison custody on the order of the magistrate pending a receipt of legal
advice.
Unfortunately,
the legal advice may not be forthcoming for a period of a year or more. In the interim, the accused continues to
languish in prison custody. Accused persons in this category constitute the
bulk of the “Awaiting Trial Men” (ATM). Also, when a decision is finally taken
to prosecute, the actual filing of information in the High Court or at the
appropriate tribunal may yet take a much longer period. In all these cases, it
is the accused whose rights are violently abused who suffers.
The
utilization of the holding charge as a method of instituting criminal
proceedings amounts to putting the cart before the horse. For, rather than
carry out proper investigation, gather sufficient evidence and obtain proper
professional legal advice before filing a charge, the police prosecutors merely
arrest and rush to court on a “holding charge” and hope to stumble on sufficiently
incriminating evidence subsequently18.There
is no proof of evidence, no formal charge and the accused is least aware of the
quantum of evidence against him while the “holding charge” is continuously held
against him like a sword of Damocles19.
In Bola Kale v. The State20,
the court of Appeal expressed this sentiment in the following words:
“It is an aberration and an abuse of judicial process
for an accused person to be arraigned before a magistrate for an offence over
which it has no jurisdiction only for the accused person to be remanded in
prison custody and not tried or properly charged before a competent court for
trial. It will be an infraction on the rights to fair haring and liberty of the
accused person.”
It follows that lack of jurisdiction is often the
subject matter of remand order by the magistrates’ courts where the suspect is
brought before it on holding charge.
2.2 Reasons for Adopting Holding Charge
Having discussed that holding charge was invented into
our criminal justice administration by the police, the question is, what are
the reasons for adopting such an unwholesome practice? Below have been
identified as reasons in adopting the holding charge by police prosecutors.
1. To
circumvent the constitutional provision of reasonable time within which to
bring the suspect to a court21. Most
often than not, the police are aware of the constitutional provision of
reasonable time within which to bring a suspect to court. But this obligation
is feasible only when or after full investigation into the alleged crime
committed by the suspect. In any case, the police are desirous of keeping the
suspect in confinement pending the completion of investigation. This is because
to them, they cannot investigate a crime and interrogate suspects within such a
short period of time, as provided in the constitution. Thus, they are of the
view that “there is no case that can
be cracked within 24 hours unless it is a traffic offence”22
In the words of a former Attorney General and Minister
of Justice of the Federation, Dr. Olu Onagoruwa, holding charge is
“… a ploy resorted to by the police to cover their
inefficiency or down right illegality by keeping arrested persons in detention
beyond the constitutional limitation”23.
Holding charge is therefore a perceived lawful respond
to this dilemma. 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. The police doing this perceive
themselves as not violating the law24.
Thus, they have acknowledged that holding charge was borne out of the need to
get suspect out of their custody without violating their guaranteed rights to
personal liberty25.
2. The
legal incapacity of the police to grant bail to criminal suspect with respect
to certain criminal offences like murder, armed robbery and treasonable felony
etc. This is because the law considered these offences by their nature to be
serious and they are punishable with death.26.
However, it should be noted that the seriousness of an
offence does not depend on the imagination of the police officer. In Emezue v. Okolo27 the court held that offences like attempted
murder, rape, burglary, arson are serious offences. For these reasons where the
police wish to detain a suspect beyond a reasonable time without being accused
of violating the 24 or 48 hours as the case may be, provided by the
constitution they have to bring him before a magistrate court for the purpose
of obtaining remand order. The order if obtained will be the authority for
further detention of the suspect while investigation into the case last.
The former Inspector General of police, Sunday
Ehindaro, who before his appointment was a Deputy Inspector-General of police
and head of Legal Department of the police force, has written that:
There are those who have committed or reasonably
suspected of committing indictable or non-bailable offences such as murder or
armed robbery and the police need them in custody to complete investigation.
The law in some states like Lagos and Anambra provides that such detainee
should be taken to a magistrate’s court for the purpose of remand…, often
times, when the police resort to taking such suspect before a magistrate’s court
pending the conclusion of investigations, the charge is coined a “Holding
charge28…
In many cases such persons are not granted bail
because the offence is the most serious, known to criminal law. It is therefore
not unexpected that the basic law, i.e the constitution would not permit the
release of such an accused within three months of arrest or detention.29.
From the above, it is obvious that the main reason for
adopting holding charge by police prosecutors depends on the seriousness of the
offence. The police looked at holding charge as a last resort during
investigation, till the suspect is arraigned to a court of competent
jurisdiction for his trial.
The
procedures that enabled holding charge
In Nigeria, two procedures have been identified as
necessitating the practice of holding charge. The first is the procedure
established by the observance of laws made to empower the magistrate courts or
to increase the jurisdiction of the magistrate court in respect of capital
offences. The second is the procedure established by practice to advert ills.
Procedures
established by law
Over the years, some states in Nigeria have enacted
laws with intent to increase the jurisdiction of the magistrate court, but in
essence are establishing the practice of holding charge. For instance in Lagos
state, there is Section 236 (3) of the Criminal Procedure Law30, the effect of which the supreme court
held holding charge legal in the case of Lufadeju
v. Johnson31.
According to S. 264(1) of the C.J.A of Lagos State:
Any person arrested for any triable on information
offence shall within a reasonable time of arrest be brought before a magistrate
for remand and the magistrate shall have powers to remand such a person after
examining the reasons for the arrest exhibited in the request form filed by the
police, and if satisfied that there is probable cause to remand such persons
pending legal advice of the Director of public prosecutor or arraignment of
such person before the appropriate court or tribunal.
According to subsection (2);
Where applicable, a magistrate shall grant bail to any
person brought before him pursuant to sub section (1) of this section pending
the arraignment of such person before the appropriate court or tribunal.
Sub section (10) provide thus:
“In this section unless the context otherwise
requires, “offences triable on information” means any offence:-
(a) Which
on conviction shall be punished by a term of imprisonment exceeding two (2)
years.
(b) Which
on conviction shall be punished by imposition of a fine-exceeding fifty
thousand (N50,000.00)naira; or
(c) Which
on conviction shall be punished by death.
Also, by virtue of section 236(3) of the Criminal
Procedure Law32, trial magistrates or president of Area Customary Court are
empowered to remand accused person in cases where they do not have jurisdiction
to try the offenders. Thus, in the case of Uwaje
Nnabuife and Anor v. CA. Maidoi-l, esq. & Anor33. The Court of Appeal upheld this
provision when it decided thus:
This appeal emanated and got it roots from the
proceedings in the Chief Magistrate Court Owa-Oyibu in Delta State when the
appellants were arrested at Mbiri on the 21st day of November 2004
and later charged to the chief magistrate court Owa-Oyibu for the offence of
conspiracy and armed robbery punishable under SS. 516 and 402 of the criminal
code.
The chief magistrate declined jurisdiction to try the
appellants but remanded the appellants. The appellants challenged the order
made by the chief magistrate at the High Court of Justice Owa-Oyibu, Delta
State. The trial Judge Osasi J. on 15th June 2005 dismissed the case
of the appellants. Dissatisfied with the decision of the High Court has
appealed to this court.
In conclusion, the learned Justices held the appeal to
be unmeritorious. The appeal was dismissed and the decision of Ogisi J,
delivered on 19/6/2005 was affirmed. It should be noted that the court relied
heavily on the apex court decision in Lufadeju
v. Johnson.
Procedures
established by practice
Apart from the power of the police to grant bail to a
suspect pending the completion of investigation under S. 17 or pending trial under
S. 18 of C.P.A, it often arraigns accused persons before magistrate courts upon
a holding charge. As already defined, holding charge is the practice of
preferring charges especially in respect of capital offences against accused
persons in magistrate courts even when such courts are obviously incompetent to
try such offences.
Admittedly, the process of investigating crime and
prosecuting offenders by the police is no doubt cumbersome and in some case the
system is confronted with the problem of suspect fleeing or in some case
tampering with investigation. For instance, in Dantata v. The Police,
the application of the accused person for bail was refused on the ground that
he earlier on offered a bribe to the police in order to retrieve evidence of
the offence while in police custody.
Thus, the remand procedure was introduced to ensure
that accused person in deserving cases are kept in detention to enable the
police conclude investigation as to whether or not such person can be
arraigned. The procedure in this respect is that upon the arraignment of the
accused, the presiding judicial officer will order that the accused be remanded
in prison custody without the plea of the accused being taken. The duration of
the remand is until the arraignment of the accused person in a competent court.
Apparently, this practice has been resorted to by the
police to circumvent the provisions of section 35(4)35 which provides to the effect that any
person arrested or detained must be brought before a court of law having jurisdiction
in respect of such offences within a reasonable time. Another aspect of this
procedure also practiced by the police is that when the police arrest and
detain a person suspected of committing a serious offence and thereafter they
find themselves in serious legal problem where they do not know what to do with
the accused. A prima facie evidence in support of the allegation against the
suspect may be unavailable but there is hope that as the detention continues,
reliable evidence might be possible 36
In order to avoid actions for unlawful detention37 or false imprisonment38, they rush the accused to the court of
law. The court is usually the magistrate court which the police know very well
that it lacked jurisdiction to hear the matter. The intention of the police
usually is to detain the suspect by the order of the magistrate for as long as
investigation into the case last including the outcome of the D.P.P’s advice
and until there is final decision whether or not to take the case to a
competent Court.39
As rightly pointed out by Faga H.P,40 the fallacy of this form of holding
charge is that the accused person is only
purported to be arraigned, while in true fact, there is no proper
arraignment. The procedure for a valid arraignment must be in conformity with
section 215 of the C.P.A, and as stated in Lufadeju
v. Johnson41, wherein the Supreme
Court outlined the requirement for a valid arraignment to be:
(a) The
accused must be placed before the court unfiltered unless the court shall see
cause otherwise to order.
(b) The
charge or information must be read over and explain to the satisfaction of the
court by the registrar or other officer of the court.
(c) It must
be read and explained to him in the language he understands.
(d) The
accused must be called upon to plead thereto unless there exist any valid
reason to do otherwise such as objection for want of service where the accused
is entitled by law to service of a copy of the information and the court is
satisfied that he has in fact not been duly served therewith.
The court went further to say that the above stated
requirements of the law are mandatory and must therefore be strictly complied
in all criminal trials. As they have been specifically provided to guarantee
the fair trial of an accused person and to safeguard his interest at such a
trial, failure to satisfy any of them will render the whole trial defective,
null and void.42.
Therefore, since there is no taking of plea in the
remand procedures, it is not a proper arraignment. The magistrate court only
takes cognizance of the offence, which it has no jurisdiction to try. In Omoteloye v. State,43the Court of Appeal per Salami JCA held that a criminal trial commences with the proper
arraignment of the accused before the court. Where there is no arraignment but
a mere cognizance of an offence, it is really doubtful that the provisions of
section 35(4) (5) of the 1999 CFRN is complied with. In such a case, the
accused person cannot be said to be properly brought before any court of
competent jurisdiction as required by the constitution44.
The problem with holding charge is not only that the
court before which the accused is brought lack jurisdiction, the court in
addition to the want of jurisdiction makes orders in respect to such offences
which it has no jurisdiction for the remand of the accused person pending the
time the accused will be brought before a
competent Court. This practice is totally wrong, unlawful,
unconstitutional and unreasonable.
2.4 Can holding Charge be Justify?
It is trite that two equally important Model Criminal Processes
compete for primacy in every criminal adjudication system to wit; Due Process Model
and the Crime Control Model. But the Due Process Model is supreme over the Crime
Control Model45. This is because the crime
control model operates within the ambit of law, that is Due Process Model
although the aim of the latter (due process model) is to achieve the former
(crime control model)46. Thus,
no matter how involved the procedure, no matter how slow the process; no matter
how inconvenient the outcome, a court to be truly such, must insist on
protecting a citizen unless and until he or she is brought within the legally
defined scope of a sanction.47
In a nutshell, crime control model of criminal justice
administration emphasis the repression of crime and protection of the victim’s
right. It maintains that the accused should be presumed guilty while the law
enforcement agents be empowered to investigate, arrest, search, seize and
prosecute with less legal technicalities. The proponent contends that certain
individual rights must be sacrificed for the common good. On the other hand,
proponents of due process model insist on informed consideration and respect
for individual rights and fundamental fairness under the law.
From the above, it goes without saying that holding
charge originated form the crime control model. But it should be noted that
Crime Control Model of criminal justice administration suffices a reason for
remand order. To them capital offences are heinous crimes, and from the vantage
point of public order and safety, court acts passionately to protect the
society from the grievous harms of individuals with presumed high criminal
propensity- the recidivists. Therefore, the accused is remanded for his safety
and deterrence, as a warning to others (general deterrence), and for the safety
of the society at large.
Thus, according to D. Peter48, it was in the face of the increasing
number of persons suspected of having committed heinous and capital offence, and
the trial of whom might not commence within a reasonable time, that the Lagos
State government in 1979 promulgated the Administration of Justice
(Miscellaneous) provisions Edict.49 This
Edit amended Section 236 of the Criminal Procedure Law50
of Lagos State by adding a subsection 3 to that section. The amendment which
was incorporated into the 1994 Laws of Lagos State51 provides as follows:
S.236 (3)52 if any person arrested
for any indictable offence is brought before magistrate for remand, such
magistrate shall remand such person in custody or where applicable, grant him
bail pending the arraignment of such person before the appropriate court for
trial.
According to Fora Arthur-Worrey, former Director of
Public Prosecution in Lagos State53, the
amendment became inevitable in view of the length of time it takes for the
police to complete investigation into the crime and more often than not, the
trial delays which the frequent transfer of Investigation Police Officers
across the country cause. Thus, it became imperative to find a legally
justifiable basis for the detention of suspect, especially when the detention
is beyond the limit permitted by the constitution.
It has been asserted that the nation’s police force
may be said to be a reflection of the society, and the Nigerian police force
does not appear to derogate from this assertion. Multi-tudinal problems,54 confront the Nigerian police and thwarts
its efforts to quick and successful crime investigation and prosecution. These
diverse problems range form lack of personnel or adequately trained personnel,
poor remuneration and lack of requisite equipment and infrastructure to
engender motivation, commitment and efficiency. The combination of all these
result in a situation of nonchalance, and lackadaisical attitude on the part of
the police to crime investigation. Hence, the resort to filing of the “holding
charge” in a court lacking jurisdiction and the resultant gross violation of
human rights of the person concerned.55
Even when the case file is eventually sent to the
appropriate department of the Ministry of Justice for legal advice, it
sometimes merely marks another phase of delayed justice for the accused person.
The cause of delay here is not uncommonly associated with the fact that some
ministries of justice are not just under-staffed56
but are also cash strapped. Thus, apart from inadequate personnel, mundane
things required to keep an office functioning such as files etc are sometimes
not available.
This eventually results in unnecessary delay in the
issuance of legal advice by the professional staff of the ministries. And when
a decision is finally taken to prosecute, the actual filing of information in
the High court or at the appropriate tribunal may yet take a much longer
period. In all cases, is the accused whose rights are violently abuse who
suffers. From the above analysis, can it
be said that holding charge practice is justifiable? It should be noted that
Section 36 [57] provides for due
process model while the holding charge procedure is in the class of crime
control model. Therefore, nothing shall be accepted as a reason for the express
breach of the provisions of the constitution. Thus, holding charge is
unconstitutional, and it is preposterous to argue that the remand of an accused
presumed to be innocent will deter others at large58
Our criminal jurisprudence is consistent with the law
of personal criminal responsibility. However, the holding charge perfidy, life
some ouster clauses in our laws, may be described as a “beneficial wrongdoing”59 it is in the class of crime control
model of the administration of criminal justice.
2.5 The Illegality of Holding Charge
The 1999 constitution contains copious provisions
guaranteeing the rights of an accused person before, during and after trial in
a court of law. Section 36(1) of the
constitution (as amended) provides as follows:
In the determination of his civil rights and
obligations including any question or determination by or against any
government or authority a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by law and constituted
in such a manner as to secure its independence and impartiality.
According to the constitution also, every person who
is charged with a criminal offence shall be presumed to be innocent until he is
proved guilty. In the same vein, every person who is charged with a criminal
offence shall be entitled to be informed promptly in the language that he
understands and in detail the nature of the offence, be given adequate time and
facilities for the preparation of his defence, and to defend himself in person
or by legal practitioner of his own choice60.
Also, the same constitution guarantees the right to
personal liberty61, with certain
limitations thus by virtue of section 35(4) (a-b)62 any person arrested or detained of any
criminal offence, may be released conditionally or unconditionally, to avail
him the opportunity of appearance to stand trial at a time and place specified.
However, it is unfortunate to observe that
notwithstanding these glittering provisions of the Constitution on the fair and
speedy administration of criminal justice in Nigeria, the reality is that the law
is honoured more in breach than in the observance.
Suffice it to state that the process whereby the
accused person is denied speedy trial for a criminal allegation leveled against
him is a breach of he constitutional provisions that provide fair trial for the
accused person within a reasonable time is more germane considering the fact that
the accused person is still presumed innocent until the contrary is proved.63
Moreso, a practice where the accused person is brought
before an incompetent court on a charge sheet which is read to him without his
plea nor bail granted to him (even though the offence maybe bailable) but
remanded in prison or police custody cannot by any stretch of imagination be
regarded as an arraignment but a holding charge which offends the personal
liberty of the accused person as guaranteed by the constitution. Thus, the
court in a plethora of cases had decided that holding charge is illegal and
unknown to our criminal jurisprudence. For instance, in Shagari v. C.O.P64 it
was held that holding charge is unknown to Nigerian law and any person or an
accused person detained thereunder is entitled to be released on bail within a
reasonable time before trial. The court went ahead to say that a holding charge
has no place in Nigerian judicial system, and persons detained under an
“illegal”, “unlawful”, and “unconstitutional” document tagged “holding charge”
must un-hesitantly be released on bail. In the instant case, the appellants
were arraigned before a Chief magistrate’s Court, which certainly lacked
jurisdiction in homicide cases/offences and there was no formal charge framed
against them accompanied by proof of evidence as at the time the High Court heard
their motion for bail. The above amounted to special circumstance for the High
court to admit them on bail, but by continuing to detain them on a “holding
charge” was not a judicious and judicial exercise of discretion, said the
Court.
Also in Ahmed v.
C.O.P, Bauchi State,65 the
appellant was arrested alongside other accused persons on allegation of having
committed criminal conspiracy, mischief, causing grievous hurt and culpable
homicide punishable with death. The appellant and his co-accused were arraigned
before the Chief Magistrate Court I, Bauchi vide first information reports in
terms of the criminal allegations. The chief magistrate ordered the appellant
to be remanded in prison custody. The appellant then filed an application at
the High Court for bail pending arraignment before a Court of competent
jurisdiction. The High court refused the application, and the appellant
appealed to the court of Appeal. Allowing the appeal, the Court held inter alia: A holding charge is unknown
to Nigerian law, it is illegal and unconstitutional. An accused person detained
thereunder, is entitled to be released on bail within a reasonable time before
trial. In the case, per Oredola JCA at pages 128-129 stated:
It is both a notorious fact and an established law,
that allegation of culpaple homicide shall be triable in the High court of the
state concerned. In this regard, where jurisdiction to try alleged offenders is
vested by law in the High Court, the taking to or arraignment of an alleged
offender before a Chief Magistrate court is tantamount to “holding charge”
which has been strongly and soundly condemned and described as illegal and
unconstitutional,... in the instant case, the chief magistrate had no
jurisdiction to try the case, the chief Magistrate had no jurisdiction to try
the case of culpable homicide punishable with death. Additionally, no such
charge has been place or filed before the High court at the time the application
for bail was made, considered and refused by the lower court….
From
the above cases, the illegality of holding charge have been expose, and
therefore, an accused person ought to be released on bail within a reasonable
time before trial.66
It should be stated at this juncture that much as the
enormous task of crime prevention, detention and investigations must be
appreciated, I do not think that, that is enough reason to be used as a cover
to give legal validity to undue detention of a citizen pending police
investigation. Therefore, we should not sacrifice the fundamental right to
personal liberty of presumably innocent citizens on the altar of crime
prevention and detention. These rights are age long and inalienable. Nnamani,
J.S.C.,67emphasized this point when he observed:
… 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 detained.
Earlier in Ogbuawunmi
v. Federal A.G & ors68 Adefarasin, C.J. stated:
However much the requirement that persons suspected of
crime should not be detained for more than 24 hours may hamper investigations,
it must be rigidly observed… I have taken trouble to discuss here the powers of
the police with regard to custody of suspected offenders because the practice
to detain them for longer period than is prescribed by law is widespread.
These
statements, though made over decades ago, are still very much relevant today as
the police still persist in detaining suspects for a period longer than
stipulated by our laws under the cover of a holding charge. For this reason
Nnamani, J.S.C, advised:
We have to develop a practice of encouraging the police
to take these persons to Magistrate’s Court on holding charges for either bail
or lawful remand. I also call on the Inspector-General to effectively halt this
phenomenon by instituting a scheme that enables senior police officers to
maintain constant supervision of personnel in the outlying commands69
However,
it is unfortunate to note that section 264 of the C.J.A is meant to empower any
magistrate court in Lagos state to remand even where it lacks the jurisdiction
to try the offence70. Subsection
(1) provides as follows:
Any person arrested for any triable on information
offence shall within a reasonable time of arrest be brought before a Magistrate
for remand and the magistrate shall have Powers to remand such a person after
examining the reasons for the arrests exhibited in the request form filed by
the police and if satisfied that there is probable cause to remand such person
pending legal advice of the Director of public prosecution or arraignment of
such person before the appropriate court or tribunal.
According to subsection (10) of section 264, unless
the context otherwise requires, “offences triable on information means any
offence”:-
(a) Which
on conviction shall be punished by a term of imprisonment exceeding two(2)
years;
(b) Which
on conviction shall be punished by imposition of a fine exceeding fifty
thousand (N50,000,00) naira, or
(c) Which
on conviction shall be punished by death.
The above provision approves that where a suspect is
brought before a magistrate on a murder charge, the court can remand the
suspect when such court lacks the jurisdiction to even try the offence.
In any case, my concern with the above provision is
its tendency of luring the police into sleeping over a proceeding that can keep
a person charged with an offence in custody indefinitely on the ground of
further investigation or inquires before arraignment in the appropriate court
or tribunal. What I rather consider awful is the cheap opportunities statutory
provision like this and its likes can provide for the police to buy time while
the accused person languishes in prison custody. More worrisome is the fact
that the police hardly conclude investigation
and when concluded may not have prima facie evidence in support of the
allegation, hence rushing to court to secure remand order is the only perceived
lawful means of playing for time. This practice is also sometimes employed by
the police to punish the accused person where they have interest in the matter
or case. I am particularly concerned not with what these laws intend to achieve
with provisions of these nature, but with what the police would want to achieve
with them.
It is submitted that the laws should be repeated72. It is unconstitutional and violates
SS.35 and 36 of the constitution. The constitution is the fundamental and
supreme law of Nigeria. It is the highest law in Nigeria and it is the
foundation law on which every other law in Nigeria rest. The constitution is
the embodiment of rule of law and the foundation of rule of law, because it
establishes the rule of law. The constitution is supreme and its provisions
bind all authorities and persons in Nigeria. The action of any authority or persons
which contravenes the constitution is unconstitutional, null and void and of no
effect whatsoever, and such act is liable to be set aside by court73.
Section 1(3) of the Constitution provides that if any law is
inconsistent with the provisions of the constitution, the constitution shall
prevail, and that other law shall to the extent of the inconsistency be void.74 The laws that provide for holding
charge by allowing magistrates to remand on indictable offence is against the
right to personal liberty of the suspect that guarantees fair trial within a
reasonable time.
It follows therefore, that the usual orders by the
magistrate that the accused person should be remanded in prison custody without
his plea and bail is wrong.
According to Obande F. Ogbuinya,75 a Court devoid of jurisdiction over a
matter is willy-nilly bound to make an order in respect thereof. These burden
duty of court-affects civil and criminal matters. Thus, jurisdiction is very
important and indispensable in the determination of justice. It is the hub of
all judicial processes so much that the validity or otherwise of any proceeding
turns on its existence or non existence. Bairamian, L.J. in the celebrated case
of Madukolu v. Nkemdilim76 did not brake at marshaling the
vital ingredients of jurisdiction. His Lordship summed them up by profferring
the sore aftermath of defects in jurisdiction. Hear him:
Any defect in competence is fatal, for the proceedings
are a nullity, however well conducted and decoded: the defect is extrinsic to
adjudication. If the court is competent, the proceedings are not a nullity.77
Justice Kayode Eso pointed out;
“The substratum of a court is no doubt jurisdiction.
Without it, the ‘labourers’ therein, that is both litigants and counsel on the
one hand, and the judge on the other hand, labour in vain”78
In like manner, in Utih
v. Onoyivwe79 Justice
Bello states that
“Jurisdiction is blood that gives life to the survival
of an action in a court of law and without jurisdiction, the action will be
like an animal that has been drained of its blood”
Of equal significance is the pronouncement of Justice
Akpata to the effect that :
“A court with jurisdiction builds on a solid
foundation because jurisdiction is the bedrock on which court proceedings are
based, but when a court lacks jurisdiction and continues to hear and determine
judicial proceedings, it builds on quicksand and all proceedings and steps
taken on it will not stand”80
From the foregoing, it is trite law that once a court
observed that it has no jurisdiction to
entertain a matter the proper order to make is to struck out the matter and not
to remand the suspect because any subsequent proceeding or order made by the
court is a nullity and consequently void81
It follows therefore that the C.J.A of Lagos state and other states laws which
provide for the remand of an accused person notwithstanding that the court lacks
jurisdiction to try the substantive offence is against the tenet of fair
administration of criminal justice in Nigeria. It is unfortunate to observe
however, that the practice of holding charge has been upheld by the apex court,
thereby validating states law that provide for remand order.
In Mrs. E.A
Lufadeju & Anor v. Evangelist Bayo Johnson82
the respondent was arrested on 12th January, 1997 for conspiracy
to commit treason and the commission of reasonable felony. He was taken along
with eleven (11) others before the 1st appellant. Mrs. E.A Lufadeju,
Chief magistrate grade 1 on 12th march, 1997. The charge was read
but the plea of the accused was not taken. The 1st appellant refused
oral application for the bail of the respondent on the ground that she lacked
the power to entertain and consider a bail application in respect of a capital
offence as treason. However, the 1st appellant ordered that the
respondent among others be remanded in custody at the Force (CID), Alagbon.
Consequently, the respondent filed an application at
the High court for his bail, damages and a declaration that his detention on
the remand order of the magistrate was unconstitutional. The application was
dismissed. The High court rather declared the remand order as valid, being remand
proceedings under Section 236 (3) of the Criminal Procedure Law, cap 33, Vol. 2,
laws of Lagos State 1994 which
provides; if any person arrested for an indictable offence is brought before
any magistrate for remand. Such magistrate shall remand such person in custody
or where applicable grant bail to him pending the arraignment of such person
before the appropriate court or tribunal.
The respondent was dissatisfied with the decision of
the High Court and he appealed to the court of Appeal which allowed the appeal.
The Court of Appeal specifically held as follows.
(a) That
the learned judge was not right to have upheld the remand order of the learned
magistrate;
(b) That
there was an obvious jurisdictional error on the face of the record of
proceedings;
(c) That
the learned magistrate had no Jurisdiction over treason as rightly admitted;
(d) That
the learned magistrate unlawfully used the mechanism of the holding charge to
remand the appellant83
Surprisingly the Supreme Court, on further appeal,
reversed the decision of Court of Appeal. The apex court held that remand
proceeding is known to law and therefore lawful. The court was swayed into
judicial sentiment, with respect be cause the learned magistrate was joined to
be condemned into damages in her personal capacity84 The pronouncement of Nike Tobi J.S.C
and Onnoghen, J.S.C are relevant in this regard. According to Justice Niki Tobi85
…should the slip result in condemning the 1st
appellant to damages, I ask? Should a slip of a magistrate not be corrected by
the system of appeal, I ask again? When did it become the law that when a magistrate
commits an error in procedure, the remedy available to the aggrieved party is
to sue for damages? I must express my
discomfort when a magistrate is sued for damages in the performance of judicial
duties. I see in this appeal such a situation. The 1st appellant
performed her duties as a magistrate in the administration of criminal justice
and I feel bad that she was sued in the
person. While I agree or concede that there are instances where a
magistrate could be sued. I do not see any abuse of judicial power on the part
of the 1st appellant. A magistrate could be wrong in the
interpretation of the enabling laws but that should not give rise to an action
in damages. The proper step to take is appeal against the decision of the
magistrate and not to file an action in damages.
Per Onnoghen J.S.C86
on his own part stated thus:
…if it was not enough for him to sue the Hon. Attorney
General of Lagos state, learned counsel for the respondent could have joined
the Chief Registrar in the action not to proceed against the 1st
appellant personally. If what has been
done by learned counsel for the respondent is intended to intimidate or
embarrass the bench, I believe he has failed in the mission as the bench can
neither be intimidated not embarrassed in the discharge of its responsibilities
under the constitution of this nation.If
anything I hold the view that it is rather the learned counsel for the
respondent that should be embarrassed by personalizing what is in reality not
personal.(Italise is mine in the above pronouncements)
Notwithstanding the obvious sentiments in the above
decision, there are valid and must be obeyed till set aside87 by virtue of the doctrine of judicial
precedent. Thus, in U.B.A Trustees Ltd v.
Niger Ceramic Ltd88 Nnaemeka Agu
J.S.C (as he then was ) said:
In our hierarchical system of court, the law is in the
final analysis of what the Supreme Court says it is; once they have decided a
point of law, their decision as by the doctrine of stare decisis is binding on all other courts in the country. The
farthest to which any court can go is to criticize but apply it.
But it may be queried thus; what becomes of the ideas
contained in the decision of the Supreme Court in Rossek v. A.C.B89 where
it was stated:
“Certainty ought not be maintained on the alter of
erroneous construction clearly at variance with the express words and
intentions of the provision construed. A docile adherence to the rule of
binding precedent even where the decision is found to be erroneous is more
productive of injustice.”
It is on this premise that I maintain that holding
charge procedure is illegal and all orders proceeding therefrom are nullities.
This view is supported by the recent decision of the Appeal Court in the case
of Agundi v. C. O.P90 where it held that it is unconstitutional for
a magistrate court to take cognizance of an offence, remand a suspect into
prison custody and make binding orders when the court lacks the requisite
jurisdiction to entertain such matters.
However, it have been reasoned that when the
opportunity presents itself, the Supreme Court should seize same to affirm the
unconstitutionality of holding charge91.
And also that any law that sections holding charge should be interpreted
narrowly, strictly and restrictively against the party seeking to rely on it
and more liberally and sympathetically in favour of the accused person who is
being deprived of his constitutional rights upon reliance on the said statute.92 Thus, the correct attitude of court in
interpreting legislations which adversely affects the rights of a citizen is to
construe the statute fortissine contra
preferetes to avoid injustice and advance the protection of the rights of
the citizens.93
CHAPTER THREE
HOLDING CHARGE AND THE RIGHTS OF
SUSPECTS IN A POLICE CELL | CRIMINAL LAW3.1 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 them13 Prof.
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 1983 [76] 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.
CHAPTER FOUR
THE EFFECT
OF HOLDING CHARGE PRACTICE
4.1 INTRODUCTION
Within the framework of criminal justice
administration in Nigeria, members of the Nigerian police force play an
important role in the detection, prevention and investigation of crimes.
However, a very reprehensible and time-consuming police practice is what is
known as a “holding charge”. Thus, in perceived serious cases, the police, who usually
prosecute some cases, often require the advice of the director of public
prosecution on their competence to prosecute a suspect, or whether the justice
ministry would undertake the prosecution of the suspect. Pending such advice,
and in some instances further investigation, the suspect is normally charged
before magistrate courts or area courts (since the police generally prosecute
cases in such courts) even though these courts have no jurisdiction over such
cases. When an application for the release of the accused person on bail is
made, these courts often reject the application on the ground that, since they have
no jurisdiction over the offences in question they lack jurisdiction to order
the release of the accused person on bail1.
Amazingly, these courts usually order that the accused person be remanded in
prison custody until the requisite advice, which is rarely forthcoming, is
received by the police.2
Consequently, this chapter will examine the necessary
implications of this practice by the police and magistrates’ courts on the
speedy administration of criminal justice in Nigeria, on the defence of the
accused, on the Nigeria prison and finally on the fundamental human rights of
the accused persons. This is because those remanded in custody on the basis of
the so called holding charge are sometimes forgotten in custody, or further
investigations of the allegations against them are not accorded due attention.
Such inmates sometimes remain in custody for periods longer than they would
have served if they had been tried, found guilty, and sentenced.
4.2 THE EFFECT ON SPEEDY ADMINISTRATION OF
CRIMINAL JUSTICE IN NIGERIA
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.
4.3 The Effect on the Defence of the Accused
Person
The judicial stand that it is better for 99 criminals
to go unpunished than for one innocent person to be punished is one of the most
human reasoning on record.13 In
this light, the 1999 constitution (as amended) in order for an accused person
to have adequate facilities for his defense provides that every person who is charged
with a criminal offence shall be presumed to be innocent until he is proved
guilty.14 Also by virtue of
section 36(6) of the constitution, every person who is charged with a criminal
offence shall be entitled to:
a. Be
informed promptly in the language that he understands and in details of the
nature of the offence;
b. Be
given adequate time and facilities for the preparation of his defence;
c. Defend
himself in person or by legal practitioners of his own choice;
d. Examine,
in person or by his legal practitioner, the witnesses called by the prosecution
before any court or tribunal and obtain the attendance and carryout the
examination of witnesses to testify on his behalf before the court or tribunal
on the same conditions as those applying to the witnesses called by the
prosecution, and…
The above fundamental constitutional provisions are
targeted towards ensuring that a suspect or an accused person is accorded every
deserved opportunity to defend himself and prove his innocence before any court
or tribunal in this country. Unfortunately, these provisions have been honoured
more in breach through the practice of holding charge.
Among the above paragraphs of section 36 (6),
paragraph (b) is the most abused or violated. This is because a situation where
the accused person is brought before a court lacking jurisdiction on a charge
sheet which will be read to him without his plea nor bail granted him, but
rather remanded in prison custody cannot by any imagination grant that person
adequate time and facilities for the preparation of his defense at the
appropriate court during his trial.
The corollary of this subjection is eventual plea of
guilt or poor defense, if any, by or on behalf of the accused person. And this
might end in his undeserved conviction.
Furthermore, the right of an
accuse person to examine in person or by a legal practitioner of his choice,
the witnesses called by the prosecution before any court or tribunal and also
to obtain the attendance and carry out the examination of witnesses to testify
on his behalf before the court or tribunal on the same conditions as those
applying to the witnesses called by the prosecution, envisages an opportunity
for the accused to collect evidence both documentary, real and oral as well as
to identify his witness(es) for attendance. But it is obvious that an accuse person
who is remanded in prison custody under a dehumanizing conditions has no time
to look for witness(es), let alone choosing a lawyer that will properly defend
or assist him. The end product of the above scenario is the eventual conviction
and sentence of the accused. Little wonder Samuel Dash15 articulated thus:
“Without the
assistance of counsel, the defendant is practically powerless to challenge the
prosecution. It is the lesson of human experience that even in the case of the
most well intentioned prosecutors, the absence of such a challenge can result
in carelessness and failure to review the evidence and properly prepare the
case, which makes it easier to convict the innocent.”16
The importance of the assistance of counsel to an
accused person was also underscored by David Fellman in the following words:
“Without the assistance of counsel, most persons
accused of crimes are not likely to have an adequate defence. A defendant needs
a lawyer as urgently as a sick man needs a doctor and in many instances, more
urgently, for while nature often heals the sick without outside aid it seems to
have little concern for the plight of the accused.”17
From the foregoing, it is my humble opinion that a
situation where the accused is moved directly to a court room from prison
custody for trial without giving the chance to take advantage of the
constitutional provisions, on ground of holding him charge is condemnable in
its entirety and the courts must stand out against this amorphous practice by
the police. The reason is because trials cannot be regarded as ‘fair’ if
defendants lack legal representation and therefore unable to participate at the
trial on an equal footing with the prosecution. Even where in the discretion of
the court, the accused is not entitled to bail owing to the circumstances
surrounding his case, these rights as provided by the constitution are fundamental
to the accused as a human being and for the interest of fair trial, the court
should starve off any dangerous or unwarranted or stealthy encroachments.
Earlier, Justice Kayode Eso, J. S. C., also stated on
the role of the courts as follows:
…it is the function of judges to keep the law alive in
motion and to make it progressive for the purpose of arriving at the end of
justice without being inhibited by technicalities to find every conceivable and
acceptable way of avoiding narrowness that would spell injustice. Short of a
judge being a legislator, a judge must possess an aggressive stance in
interpreting the law.18
4.4 THE EFFECT ON NIGERIA PRISON
The prison inmates consist of both those awaiting
trial and those convicted of their various offences. However, in most cases, as
we can see later, the awaiting trial inmates in prisons outnumber those already
convicted. We must also note that those awaiting trial are and remain innocent until
they are convicted by a court or tribunal for committing an offence under the
law.
According to Showunmi,19
an awaiting trial person (ATP) is someone remanded by an order of a court or
tribunal in prison custody in order to ensure his availability before the
detaining authority in due course for the hearing of his case to prove or
establish his innocence or quality. Awaiting trial persons constitute a
significant percentage of the Nigerian prison population. And many factors are
responsible for it, among which is the police practice of holding charge.
Holding charge is one of the causes of the large
number of awaiting trial inmates in Nigerian prisons and as such a major source
of congestion of prisons. Over congestion of prisons in Nigeria is extremely
acute. Both convicted prisoners and those awaiting trial are all dumped
together in the same cells. The greater proportions of prisoners in Nigerian
prisons are those awaiting trial, those remanded by the orders of courts.20 Those remanded by the orders of the
courts accounted for about sixty-seven percent of prison population. Due to
mainly administrative reasons such as lack of transportation to take the prisoners
to court, absence of counsel, unwillingness of magistrates to go on with the
case because of lack of jurisdiction, many of these remand prisoner remain in
prison for prolonged period of time without trial.21 Consequently, the prisoners are
incarcerated indefinitely under harsh and inhuman conditions even where they
have not been found guilty.22
The Civil Liberties Organization has described the
condition of Nigerian prisons in the following words:
“Behind the wall of practically every prison in
Nigeria is a slum where men and women too literally live on top of each other.
From prison to prison the housing conditions consistently reveal themselves to
be wretched and in human.”23
In line with the above observation, Hon. Justice
Alhassan Idoko of the blessed memory had in 1981 said24
They reveal a complete picture of dehumanizing
conditions. Convicts and even those awaiting trial are caged and cramped together
in cells meant for either only one person or fewer persons than are hoarded there.
The sloppings (sic) and stench all around defy solution and the considerable regimentation
throughout the period of the prison sentence has less of a therapeutic value.
The report given by Civil Liberties Organization (CLO)
on the sanitary conditions of the Nigerian prisons is relevant in this context.
The report states:
The state of sanitation and hygiene in the prisons was
quite appalling. Water shortage was acute. Inmates were usually unable to take
their baths for several days and had even less access to water for washing clothes.
Toiletries were a luxury. Bed bugs, cockroaches, rats and mosquitoes bred freely.
Ventilation was poor because most cells either had no window at all or their
windows were sealed in an attempt to prevent prison escapes.25
Suffice
to note at this juncture that different actors fuel the holding charge
phenomenon in the criminal justice system in Nigeria notably, the police, the
judiciary and the prisons. The police have the statutory function of effecting
arrest of suspects, initiating prosecution, conducting investigation and
arraigning suspects in appropriate courts of law. 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, stationary,
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. The ministries of
justice are similarly faced with the problems of acute shortage of dedicated,
honest and well-trained state counsel thus necessitating calls for adjournment
of cases. The courts have to grapple with inadequacy of judges and magistrates,
logistic constrains such as few secretarial staff, manual recording of court
proceedings and insufficient library resources for research, corruptive tendencies
and poor conditions of service. However, frequent resort to imprisonment as
sentencing option even for the most minor offences, under-utilization of the
powers of prerogative of mercy and bail are often cited as additional reasons
for delays in conclusion of cases by the courts. The overall implication is to
prolong the stay of detainees in prison awaiting trial.
Prison congestion is partly responsible for the
seemingly insufficient infrastructural amenities in Nigerian prisons. Prison
facilities are stretched to the limits by the unchecked population explosion.26
Furthermore, congestion in the prisons results to failure on the part of the
authorities to attempt classification of prisoners as required by local and
international rules.27 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.”28
Perhaps, one obvious cause of prison and police cell
congestion is arbitrary arrests and detention on ground of holding charge under
discussion. Recently, it has been shown that out of the total of 45,000 inmates
in the Nigerian prison about 30,000 are awaiting trail which has made the
prisons to be congested.29 For
instance, the Ikoyi prisons was designed to accommodate 400 inmates but as at
today there are about 1,600 inmates in the prison, while some have spent up to
10 years without trial and others have spent 5 to 19 years on trial.30 Also, Abakaliki prisons have been
rated to have the total number of 583 inmates, with awaiting trial persons of
413, which is a 70% 31 awaiting
trial inmate. Finally, the writer’s personal visit to Abakaliki prison on 6th
June, 2013, showed that only 47 prisoners were convicted while 694 are awaiting
trial persons, notwithstanding that the maximum capacity of the prison is just 387.
As
regard congestion in police cells, there is no gain saying the fact that police
lack adequate cells to detain suspects. While prisons congestion is an issue
that constantly attracts attention in Nigerian criminal justice discourse,
little or no attention is paid to the congestion of police cells and the ways and
manners in which the police deal with the congestion.
Thus,
Jiti Ogunye32 observed that owing to
poor crime intelligence gathering, police officers usually commence their
investigation after affecting arrests, and this accounts for congestion in
police cells. He went further to state that arrest are not made when
investigation is at an advanced stage, rather, arrests are made at the beginning
of investigation by the police and advised that pre-arrest intelligence can
help in limiting the number of days in which criminal suspects are kept in
police custody.
4.5 THE EFFECT OF HOLDING CHARGE ON FUNDAMENTAL
HUMAN RIGHTS
As I
have noted earlier, Nigerian law33 is replete with provisions
guaranteeing the rights of an accused person before, during and after trial in
a court of law. For instance, the constitution provides that a person in the
determination of his civil rights and obligations including any question or determination
by or against any government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal established by law
and constituted in such manner as to secure its independence and impartiality,34 that every person who is charged with
a criminal offence shall be presumed to be innocent until he is proved guilty.35 Also that every person who is charged with
a criminal offence shall be entitled to be informed in the language that he
understands and in detail the nature of the offence, be given adequate time and
facilities for the preparation of his defence and to defend himself in person
or by legal practitioner of his own choice.36
The
importance of the rights of an accused person has also been universally recognized
and subsequently incorporated into our laws.37
The efficacy and applicability of the African Charter on Human and Peoples’
Rights have been acknowledged by our courts in several cases.38 Thus, Article 7 of the Charter provides:
1. Every
individual shall have the right to have his case heard. This comprises.
a. The
right to an appeal to competent national organs against acts violating his
fundamental rights as recognized and guaranteed by conventions, laws,
regulations and customs in force;
b. The
right to be presumed innocent until proved guilty by a competent court or tribunal;
c. The
right to defence, including the right to be defended by counsel of his choice;
d. The
right to be tried within a reasonable time by an impartial court or tribunal.
From
the foregoing, it goes without saying the fact that a detainee is not rendered “rightness”
by reason only of an allegation of a crime against him. This is because
suspects are not convicts, they are neither to be viewed nor treated as such.
Thus, the Nigerian criminal procedure Act39
provides that any person who is arrested shall be taken with all reasonable
dispatch to a police station or other place for the reception of arrested
persons, and shall without delay be informed of the charge against him. Any
such person while in custody shall be given reasonable facilities for obtaining
legal advice, taking steps to furnish bail, and otherwise making arrangements
for his defence or release.40 In
the Northern States of Nigeria, the state of affairs under the criminal
procedure code41 is
similar but clearer. According to section 129 (1) of the code, wherever it
appear that an investigation… cannot be completed within 24 hours of the
arrival of an accused or suspected person at the police station the officer in
charge of the police station, shall release or discharge him or send him as
soon as practicable to the nearest court competent to take cognizance of the
offence.
The
sum total of this and preceding prescriptions is the proper treatment of detainee.
From the language of the law, any delay occasioned by the inability of the
state to bring the detainee to trial within a reasonable time may, depending on
the circumstances, cause his release.42
It is
unfortunate to observe that notwithstanding the glittering provisions of
Nigerian law on the speedy administration of criminal justice in Nigeria, the
reality is that the law is honored more in the breach than in the observance.
Numerous cases abound on delays:
a. From
the arrest of a suspect to the institution of criminal proceedings against him/her.43
b. From
the institution of criminal proceedings to the commencement of hearing of the
evidence of witnesses;44
c. From
the commencement of hearing to the conclusion of finial addresses;45
d. From
final addresses to the delivery of judgment;46
and
e. From
the delivery of judgment by the trial court to the determination of an appeal against
the decision.47
It
will suffice to say that the process whereby the accused person is denied a
speedy trial for a criminal allegation leveled against him is a breach of the
constitutional provision that provides for the accused person fair trial within
a reasonable time. The trial within a reasonable time is more germane considering
the fact that the accused person is still presumed innocent until the contrary
is proved.48
The
provision of presumption of innocence under Nigerian law can only be
efficacious if accused persons awaiting trial are admitted to bail. In the case
of Saidu V. State,49 Obaseki J. S. C. (as he then was) held as follows:
It does not give the court any joy to see offenders
escape the penalty they richly deserve but until they are proved under the
appropriate law in our law court, they are entitled to walk about in our
streets and tread the Nigerian soil and breath the Nigeria air as frees and
innocent men and women.
In the case of Chief
Pat Enwerem v. Commissioner of Police,50
the court of appeal (Port-Harcourt Division) condemned the practice of holding
charge syndrome and stated that it is unknown to Nigerian law and an accused
person detained there under is entitled to be released on bail within a
reasonable time before trial more so in non-capital offence,
In
the above case the appellant on allegation of murder and unlawful killing of a
member of Abia State House of Assembly, on application under the Fundamental Rights
(Enforcement Procedure Rules), the appellant was released on bail by the High
Court of Cross River State. Later, the police re-arrested the appellant and arraigned
him before Isuikwuato magistrate court on a charge of murder. The learned
magistrate declined jurisdiction yet remanded the accused person/appellant at
Ishikwuato police station. An application to the High Court for bail was refused.
On appeal to the Court of Appeal, the Court held:
Happily, by our constitution and government, this
country cannot operate a ‘Police state’… Want of jurisdiction on the part of
the magistrate… does not justify appellant’s prolonged incarceration … In a
free country like ours the action of the law enforcement Agencies concerned with
this matter was barbaric, a contravention of section 31(1) (a), 32 and 6 (6) (a)
of the constitution.51
Also, in Mohammed
& Ors V. C.O.P 52, the appellants
were arraigned before a chief magistrate’s court in Zaria on a first
information report in which they were alleged to have committed culpable
homicide punishable with death contrary to section 221 of the Penal Code. Upon
a motion for bail on behalf of the appellants, they were released. After about
seven months, the magistrate revoked the bail and remanded appellants in prison
custody. The appellants subsequently filed an ex parte motion in the high court seeking inter alia the enforcement of their fundamental rights. The application
was refused. On appeal, the Court of Appeal held that an accused was entitled
to the protection of his personal liberty if he was in prison custody or
detention following an accusation of the commission of an offence by invoking
section 32 of the 1979 constitution.
The
facts in Emezue v. Okolo & Ors53 suggest that detention even for a
limited period may be unlawful. The appellant claimed against the respondents
the sum of N2,000 as damages for unlawful detention in the police station at
Umuahia. The respondents who were all police officers applied to the court for
an order dismissing appellant’s claims on the ground that it disclosed no cause
of action. That application was granted. On appeal to the Supreme Court it was
held inter alia that the appellant
having alleged that he was detained for about 48 hours, his statement of claim disclosed
a cause of action for wrongful detention with respect to the excess. It is
submitted that these pronouncements favours constitutionalism and the
enforcement of rights.
Therefore,
any protracted prosecutions and undue remand orders even where there are
sufficient grounds to grant the accused bail is nothing but a disguised holding
charge strategy targeted at victimizing suspects especially those that refused
to grease the palms of unscrupulous officers. This is a serous affront on the
suspects constitutionally guaranteed right to personal liberty, far hearing, presumption
of innocence, fair trial etc.
The terrible effects of pre-trial incarceration have
been eloquently stated in the case of Hartage
v. Hendric54 as follows:
The imprisonment of an accused prior to determination
of guilt is a rather awesome thing. It cost the tax payers tremendous sums of
money; it deprives the affected individual of his most precious freedom and
liberty; it deprives him of his ability to support himself and his family; it
quite possibly cost him his job; it restricts his ability to participate in his
own defence; it subjects him to the dehumanization of prison; it separates him
from his family and without trial it cast over him aura of criminality and
guilt.
It has been held that once a court
observed that it has no jurisdiction to entertain a matter, the proper order to
make is to strike out the case or charge and not to remand the suspect because
any subsequent proceeding or order made by the court is a nullity and
consequently void.55
It is
axiomatic that the degree of liberty obtainable in any society depends
ultimately on the attitude of the court. Therefore, the court should interpret
any law sanctioning holding charge narrowly, strictly and restrictively against
the party seeking to rely on it and more liberally and sympathetically in
favour of the accused person who is being deprived of the accused prison who is being deprived of
his constitutional right upon reliance on the state statute.56
According
to Glanville Williams, the manner of administration of criminal justice depends,
“too much on the decision of the Police and other prosecutors taken in private
and without effective control”.57 The
police often “over charge, perhaps because they are not sure of the facts and
wish to preserve all their options”.58
This is true of most of the police prosecutors. The only purpose is to halt
expeditious prosecution of criminal cases. In view of this, court needs to be
less willing to exercise its powers in favour of the prosecution in such
circumstances. Rather, the court should courageously strike out such cases for
want of jurisdiction59.
No
doubts, capital offences are vile and punishment for such offences is of
necessity the mark of society’s revulsion. Yet only the guilty should be
punished. The slightest punishment of presumed innocent citizen under the guise
of a Holding charge is of greater severity than the death sentence of a
murderer. It is submitted that the least toleration of improper police practice
is worse evil than the occasional escape of a criminal. The view is that the
court cannot aid the police to adopt unconstitutional means to discharge its
statutory duties.60
CHAPTER FIVE
CONCLUSION
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 1994 - 4
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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& 1979 constitutional provisions; Nigerian journal of Contemporary Law,
(1977-1980).
Olisa Agbakola; Travesty of Justice; An Advocacy
manual Against Holding charge: (2009) HURILAWS, Lagos.
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 Journal, An International Human Rights Journal (2010)
vol. No. 1.
R. A. C. E; Achara; Justice According to Law and the
process; A Glance at two of Justice Akpabio’s Decisions. Unizik Law Journal,
vol. 4. No. 1
(C) Paper.
Adeyemi A; ‘Penal Reform in Nigeria” paper submitted
for publication in” A New Judicial order; Essays in Honour of justice Akinola Aguda
(unpublished ).
Agomo U. C., “The prison’s tomorrow, civic society
perspective; paper presented at a Reform of criminal Justice summit organized
by the Lagos state ministry of justice from 16th -17th June
2004.
Aguda T. A.
“The challenge for Nigeria Law & the
Nigeria Lawyer in the 21st century” A Nigerian National Merit Award
Winner Lecture, presented on September 14, 1988.
Ali Aisha M. “Effects of Delay in the Administration of
Justice (causes, Effects & Solutions) paper presented at the 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 National council of Women’s Societies (NCWS) and Giz Germany
on 31st May 2004.
Ikemefuna Patrick, “The Administration of Nigerian Criminal
Justice & Reform of the Penal Code” a paper presented at the conference on
prison Reform organized by the metropolitan grand knights of Saint Mulumba,
Lagos, 2013.
Lily Ojo. “The state of the Nigerian prisons being a
paper delivered at the national seminar on prison reform. June 18-20, 1990.
Niall McDermott; opening address to the international
conference on “Human Rights Education in Rural Environments”, Lagos. 1985.
Nnamani J. S. C.” Contemporary Nigeria and the
practice of law” paper presented at the 1990 Annual conference of the NBA in
Benin from 27-31 August 1990.
“Socio – Economic Burden of Imprisonment” paper
presented at the 1st Nigeria prison service/civil Society Dialogue
on the state of Nigerian Prisons held in Abuja from 12th -14th
February 2002.
Showunmi L.A; “Reform of Criminal Justice system,
Congestion of prisons by A.T. P.S- Are there Alternative? “Paper Presented at there
form of Criminal Justice summit Organized by the Lagos state ministry of
Justice from 16th -17th June 2004.
“Towards a Humane Prison System” submission by the
civil liberties organization to the Nigeria human rights commission, July 1996.
Uwais Manyam, “The prisons of tomorrow; A civil society
respective”, paper presented at the reform of criminal justice summit justice
from 16th-17th June, 2004 (Ω) Newspapers
The Guardian Newspaper of Tuesday, July 15, 2004.
The Vanguard Newspaper of Thursday 30th
May, 2013.
The Punch Newspaper of Friday 23rd January,
1998.
The Daily
Independent Newspaper of Tuesdays July 20th
2004
(a) Internet.
Http://www.humaniaws.com.
http://www.citizensadvosteconm.
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.
1 Such as
the Criminal Procedure Act, and the Criminal Procedure Code.
2 Supra at P. 539
3 (1993)
6NWLR (Pt.299) 333 at341 Paragraph G.
4 See
Section 35 (4) of the 1999 Constitution (as amended).
5 Towards a Humane Prison System.
Submission by the Civil Liberties Organization to the Nigerian Human
Rights
Commission, July 1996; in Tabiu, M. (ed.) (1998), Administration of Criminal Justice and Human
Rights in Nigeria, Chapter Five, PP.
64-74 at P. 67.
6 Black’s
Law Dictionary, West Publishing co; Texas
9th ed., 2009, P. 800.
7 See Anekwe v. C.O.P ( supra) at p.332.
8 Dr. Okpara
Okpara, Human Rights Law and Practice in Nigeria.
(Chenglo Ltd. Enugu,
2005.) p. 164.
9 D. Peter Op. cit p. 256.
10 Ibid
11 Plea to a charge is an essential ingredient
of a trial. See Achene v. The State
(1991) 8 NWLR 424;
Erekanure v. The State (1993) 8 NWLR 385
and Olawoye and 4 ors v. C.O.P (2006)
2NWLR (Pt 965) 427
and p. 442
paragraph G-H.
12 For various grades and criminal jurisdiction
of Magistrates’ Courts in Nigeria,
See generally, Toyin
Doherty: Criminal Procedure in Nigeria.Blackstone
Press Limited.1990
13 Criminal
Code Act, Cap. C.38, L.F.N, 2004. S 37 (1).
14 Ibid, S. 316
15 Ibid, S. 38
16 Robbery
and Firearms (Special provisions) Act. Cap R. II L.F.N 2004, S.I (2). Cf. Criminal code, S.
402.
17 Remand
orders are the usual orders made by the magistrate in a holding charge
proceedings, though where
applicable,
the suspect may be admitted to bail. This is not just because the crimes
involved are capital in
nature but
because the magistrate court concerned has neither jurisdiction to try the
accused nor grant bail to
him pending
trial at the proper forum. See Fidelis Nwadiaolo, The Criminal Procedure of the Southern
States
of Nigeria
(2nd ed). And see also Toyin Doherty, Criminal Procedure in Nigeria, Blackstone Press
Limited.1990.
18 Dele P., Op.cit p. 258.
19 Ogor & ors v. Kolawole and Anor (supra).
20 (2006) I
NWLR ((Pt.962) 507 at p. 765.
21 Section 35 (4) and (5) of the 1999
Constitution (as amended) see also H.P. Faga: “Right to Liberty:
Emerging
Issues in the Pretrial Process in Nigeria (2006) Abakaliki Bar
Journal vol. I pp. 170-171.
22 See O. Onagoruwa, “The Nigerian Police, Rule of Law and Our constitutional Order,
2007.
23 See Annual Report, 1994, A Civil Liberties
Organization’s Report on the State of Human Right
in Nigeria.
P. 16
24 George O.S. Amadi, op.cit p. 198.
25 C. Okaro; The
Scope and Impact of Police Power of Prosecution in the Administration of
Criminal Justice, in Solomon
E.A et
al (ed.) Policing Nigeria
in the 21st Century, (Spectra Books limited, 2007) p. 114.
26 Section
118 C.P.A, S. 35 (7) of the 1999
Constitution (as amended).
27 (1979) I
L.R.N 236
28 The
Guardian Newspaper on Today, July
15, 2004 p. 2
29 Prof.
Jadesola O.A; Introduction to the
Constitution of the Federal Republic of Nigeria
(Lagos, M.J
Publisher,
2004) p.80.
30 Cap 33
vol. 3, Laws of Lagos State, 1994 (Now S. 264 of the Criminal Justice Administration (Lagos State,
2011.,hereinafter referred to as C J.A)
31 (Supra).
33 (2007)
LPELR-CA/B/262/05.
35 1999
Constitution of the Federal Republic of Nigeria (as amended)
36 G.O.S.
Amadi Op. cit p. 198
37 Under section 35(6) of the constitution
38 False
imprisonment is any detention, bodily restraint, denial of personal liberty of
freedom of movement of a
person in
any place and in any form without lawful justification. See Ese M. Law of Tort, (Lagos, Princeton
Publishing
Co, 2008) p. 132
39 Dr.
Okpara Okpara Op.cit p. 155
40 Op.cit
p. 171
41 Supra
p. 555
42 See also Asakitikpi
v. The State (1993) 5 NWLR (pt. 296) 641, where is was held that a criminal
trial
commence with
the arraignment of the accused person and arraignment in turn consist of the
charging of the
accused or
reading over the charge to the accused person and taking his plea therein.
45 see C.A
Igwe Op. cit p. 277
46 Ibid
47 R.A.C. E;
Achara, Justice According to law and Due
Process:A Glance at Two of Justice
Akpbio’s
Decisions. Unizik Law Journal vol. 4 No.
1, p. 276
48 Op. Cit P. 263
49 No 401
1979.
50 Cap. 32
laws of Lagos State
51 See
Criminal Procedure Law vol. 2 Laws of Lagos
State, 1994(Now Criminal Justice
Administration, Lagos
State,
2011.C.J.A).
52 Now
section 264(1) of the C.J.A
53 See D.
Peter. Op.cit. P. 264.
54 See
generally, Akinyede, G.B.A.,” The Bar,
The Police and The Judiciary” (1958) Nigerian Law, Journal, vol. 1
No. 1. Johnson Adeyemi, “Nigerian Police. The Limit of Oppression”. The Legal Practitioners
Review vol. 1,
No. 2, and
see also O. Ohonbamu .The Dilemma of
Police Organization Under a Federal System: The Nigerian
Example (1972) Nigerian Law Journal
vol. 6
55 D. peter Op. cit. 257.
56 The salaries
and general conditions of service of State Attorneys are not encouraging enough
to attract legal
practitioners to accept appointments in the Ministries of Justice. For
instance, lawyers in the Ogun State Ministry
of Justice
had to embark on strike action to press for increased salaries and enhances
remunerations. See the
Guardian
Newspaper, Tuesday June 3rd, 1997, p.3
57 Of the
1999 Constitution (as amended)
58 C.A. Igwe
Op cit P. 293
59 M.C.
Okany “The Continuation of Ouster Clause
in Nigerian Law after 1999: A Beneficial Wrong Doing” in
Chief M.A. Ajanwachuku & H.P. Faga (eds).
Contemporary Legal Thoughts: Essay in Honour of Chief Jossy C.
Eze Corps
Legal Aid Scheme Abakaliki, 2008. pp. 337-338.
60 Section
36 (6) (a) (b) (c) of the Constitution.
61 Section
35 of the Constitution
62 Of the
same Constitution
63 See Adegbite v. C.O.P (2006) 51 W.R.N PP.186
and 187
64 (2007) 5
NWLR (pt. 1027) 272
65 (2012) 9
NWLR (pt. 13041 104. See also Enwere v.
C.O.P (1993) 6 NWLR (pt. 279) 333; Oshinaya
v.
C.O.P (2004) 17 NWLR (pt. 901)1; Chinemelu v.C.O.P. (1995) 4 N WLR
(pt.390) 467. Jimoh v. C.O.P
(2004) 17
NWLR (pt. 902) 389.
66 See Ani
v. The state (2002) 11 WRN 53; Jimoh
v. C.O. P (2005) ALL FWLR (pt. 243) p.648
67 Op. cit P. 8
68 (1973)
CCHCH. 52
69 Op cit P. 9, also reported in G.O.S
Amadi Op. cit p. 200
70 Criminal
Justice Administration (Lagos
State) 2011
72 T.
Adedamola, , Nigerian Bar Journal, vol. I No 3, 2003. p. 299.
73 E.
Malemi, the Nigeria Constitutional law
(Lagos,Princeton Publishing Co.,2010) p.125
74 See A.G Abia State v. A.G Federation (2002) 6 NWLR (Pt.
763) 391; INEC v. Balarabe (2003) 3
NWLR
(pt. 806) P.
72 Sc; A.G Bendel State v. A.G Fed. & 22 Ors
(1982) All NLR 85 SC; Doherty v. Balewa
(1961) All
NLR 604 SC; Marbury v. Madison
5 US 154 (1803); A.G Ondo
State v. A.G Fed. (2002) 9 NWLR
(pt. 772)
75 Understanding the Concept of Jurisdiction in
the Nigerian Legal System (Enugu, Snaap Press Ltd, 2008)
p. 414
76 (1961) NSCC (Vol. 2) 374@380.
77 See also NNPC
v. Tijani (2006) 17 NWLR (pt.1007)29.
Ononye v. Odota (2008) 10NWLR (Pt.1096)483;
Action Congress v. Kaigama (2008) 8 NWLR
(pt. 1088) 165; Njikonye v. MTN Nigeria
Communication
Limited (2008) 9 NWLR (Pt. 1092)339, FCE, Pankshin v. Pusmut (2008) 12 NWLR
(Pt. 1101) 405: Apadi
v. Banuso (2008)14 NWLR (pt.1103) 204; Edet v. State (2008) 14 NWLR (pt.
1106)52; EFCC v. Ekeocha
(2008)14NWLR(pt. 1106) 161
78 See Attorney General of Lagos State
v. Dosunmu (1989) 6. S.C.N..J. (pt.11) 134 at 179.
79 (1991)
1. N.W.L.R (pt. 166) 166 at 206.
80 State v. Onagoruwa (1992) C.S.C.D. 17,
at 19
81 Matari v. Dangaldima (1993) 3 NWLR (Pt.
281) 265.
82 Supra
83 Supra at p. 550 paragraphs D-F.
84 C.A.
Igwe Op.cit p. 283.
85 At page
564, paras. D-G. It is unfortunate to observe that Niki Tobi who had in a good
number of Cases
maintained at
the Court of Appeal that holding charge was illegal; could not stand for
justice in this case.
86 At page
194, paras. F-H
87 See A.G., Anambra State
v. A.G of the Federation (2005) 22 NSCQR (pt. 11) 574. at P. 592: Alliance of
Democracy v. Peter Ayodele Fayose & 4
Ors (2005) 10 NWLR (Pt. 932) 151 P. 188.
89 (1993)
10 S.C. N.J 20 at 116.
90 (2013)
All FWLR (pt. 660) 1243.See also Ahmed v.
C.O.P Bauchi State (2012) 9 NWLR (pt. 1304) 104.
91 See C.A
Igwe. Op.cit P. 283
92 Ibid
93 Chief
Great Ovadje Ogboru v. Chief
James Onanere Ibori
and 27 Ors (2005)13NWLR (pt.942)310 at P..393
paras A-C;Garba v. Federal Civil Service Commission
(1988)1NWLR (pt.449);Fyouzughul v. A.G
Benue
State (2005)5NWLR
(pt.918)226 at P.248
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
Constitution.
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
months.
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
2004.
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
1 See Dakas
C.J Dakas and Francis M. Kwede, Impediments
to the Speedy Dispensation of Criminal Justice in
Nigeria and the Imperative of
Urgent Remedial Action, Jos Bar. Journal vol. I. No. 1. 2003 P. 155.
2 Ibid.
3 See Olawoye v. COP (Supra), Ahmed v. C.O.P
(Supra), Shagari v. COP (Supra), Agundi v. COP (Supra),
Enwere v. COP (Supra), Oshinaya v. COP (Supra),
Chinemelu v. C.O.P (Supra), Onagoruwa v. State
(Supra), Anakwe v. C.O.P (Supra), Adegbite v.
C.O.P. (Supra).
4 Supra.
5 See, for
instance, Nnajiofor v. Ukonu (1989) 2
N.W.L.R (pt. 9) 686, at 695; Unongo v.
Aku (1983) 2 S.C.N.I.R. 332.
6 (1983) 1
SCNLR I at 24-28 and 15-16
7 See also Isiaku Mohammed v. Kano Native Authority
(1968) 1 All NLR 424; Obiaso v.Okoye
(1989) 5
NWLR (pt. 119)
80.
8 407 US
1514, 530 (1972).
9 See Odogu v. Attorney-General of the Federation,
(2002)2 HRLRA P.84
10 (!972) 4
S.C. 118.
11 See Fasakin Foods (Nig) Ltd v. Martins Babatunde Shosanya (2006) MJSCN vol. 7. P. 48 at 52.
Per
Ogbuagu,
JSC; see also Lakanmi v. Adona and 3 Ors
(2003) 4 SCNJ, 348 at 355. Per Kalgo J.S.C.
12 (2005)
SCNJ. P. 17 at 25.
13 See Ukwunnenyi and another v. The State
(1989) 3 N.S.C.C. 42 at 45. Per Oputa
J.S.C.
14 Section
36(5) of the Constitution. See also Article
7 (1) (b) of the African Charter on Human and Peoples’
Right.
15 Dash S.,
“The Emerging Role and Function of the
Criminal Defence Lawyer”. North
Carolina Review, 47.
(April
1969).
16 See also the dictum of Oputa J.S.C. in Josiah
v. State (1985). I .N.W.L.R (Pt. 1) P 131 at P. 140. See also,
Okoduwa
v. State (1988); 2 NWLR (Pt. 76). Nse
Udo Nita v. State (1993) NWLR (Pt. 283) P. 512.
17 Fellman
D.; The Defendants Rights Today. (The
University of Wisconsin Press, 1976) P. 208.
18 Trans Bridge Co. Ltd. V. Survey
International Ltd (1986) NWLR (Pt. 37) P. 576 at 596.
19 Showunmi
L.A.; “Reform of Criminal Justice System
and Congestion of Prisons by Awaiting Trial Persons-
Are there Alternative? Paper presented
at the Summit of Stakeholders on the Administration of Justice in
Lagos on 17th June, 2004.
20 T.O.
Ifaturoti (Mrs.), “Nigerian Prisoners and
the Human Rights Campaigns: Some Challenges”. Nigerian
Current Law
Review 1994, P. 87.
21 Civil Liberties Organisation Annual Report in
Nigeria
1999, at P. 200.
22 Taofik
Adedamola, Op. cit at P. 289.
23 See Behind The Wall, A report on Prison
Conditions in Nigerian and Nigerian Prison System. CLO. 1996
edition p.
13.
24 See Behind
The Wall, Ibid, and Quoted in Ignatius
A. Ayua, “Towards a more Appropriate
Sentencing
Policy in Nigeria” in Nigerian Law Reform
Journal No. 3, January, 1983 P. 22.
25 See
CLO’s Report Human Rights in Retreat, 1993, P. 120.
26 The ATP
influx is at the core of our prison
reform formular, for if we can effectively and sufficiently reduce
and control
their inflow into our prisons, then it would be possible with better management
techniques, for
the
available resources to more efficiently serve the needs of deserving inmates.
See Odinkalu A.C. and
Ehonwa L. Behind the Wall-A Report on Prison
Conditions in Nigeria
and the Nigerian Prison system”
(1991) CLO, Lagos PP. 208-2009.
27 See generally section 8 of the United Nations
Standard Minimum Rule for the Treatment of Prisoners; and
Sections 15,
16 and 17 of the Prisons Regulations, made pursuant to the Nigerian Prisons Act
Cap. P. 29
L.F.N 2004.
28 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.
29 Ikemefuna
Patrick, “The Administration of Nigerian Criminal Justice and Reform of the
Penal Code”, a
Paper
presented at the Conference on Prison Reform Organized by the Metropolitan
Grand Knights of Saint
Mulumba, Lagos. See Vanguard
Newspaper, May 30, 2013.
P. 5.
30 Ibid.
31 Agomo
Uju, “The Prisons Tomorrow Civil Society
Perspective”. A paper Presented at the Reform of
Criminal
Justice System III, Organized by the Lagos State Ministry of Justice on June 16, 2004.
32 Jiti
Ogunye, Criminal Justice System in Nigeria: The Imperative of Plea
Bargaining”, Lawyers’ League for
Human
Rights, August 2005, P. 29.
33 See
Particularly chapter iv of the 1999 Constitution (as amended)..
34 Section
36(1) Ibid.
35 Section
36(5) Ibid.
36 Section
36(6) (a) (b) (c) Ibid.
37 African
Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Cap. A
10, L.F.N. 2004.
38 Osheyire
v. British Caledonian Airways Ltd. (1990) 7 N.W.L.R (Pt. 163) 507. Ogugu v. State (1994) 9
NWLR (Pt.
366) 1; Abacha v. Fawehinmi (1996) 9
NWLR (Pt. 475) 710 at 745.
39 Cap. C
41 L.F.N 2004 applicable in the 17 States found in the Southern part of Nigeria.
40 Section
9. Ibid.
41 AP 30
Laws of Northern Nigeria 1963.
42 See, For
instance, S. 35 (4) (a) (b) of the Constitution
43 Nwankwo
and Ors. V. The Queen (1959) 2 S. C.N.L.R. 675 (The accused persons, or at
least some of them,
Were charged
to court a year after their arrest and detention by the police). A study has
shown that only
11.5% of
accused persons responded that they were taken to court within 24 hours of
their arrest: M.A.
Ajomo and
I.E. Okagbue (eds). Human Rights and the Administration of Criminal Justice in Nigeria
117-
8(1991).
44 Asakitikpi v. The State (1993) 5 NWLR
(Pt. 296) 641 (Time lag of 14 months between the date the accused
person was
charged to court and the date when the trial commenced): Garba v. The State (1992) 4 S. C 118.
45 Ozuluonye & Ors v. The State (1983)
4 N.C.L.R. 204 (A period of about 4 years); Sambo
v. The State (1989)
I.C.L.R.N
77.
46 Shehu v. The State (1982) 1 NCR I.
47 Asakitikpi v. The State (Supra).
48 See Adegbite v. C.O.P. (Supra); Musa & 7 ors v. C.O.P (Supra); Obekpa v. C.O.P (Supra).
49 (1982) 4
S.C. 41
50 (1993) 6
NWLR (Pt. 299) 333; See also Ukatu v. C.O.P (2001) FWLR (Pt. 66) 758.
51 Ibid, at PP. 342-343.
52 (1987) 4
NWLR (Pt. 65) 420.
53 (1978)
NSCC 312.
54 439 PA,
584 at 601
55 Matari
v. Dangaladima (1993) 3 NWLR (pt.281) 265; Peenock ltd v. Hotel presidential
ltd (1982) 12 S.C.I
56 See C.A.
Igwe Op.cit p. 284.
57
Glanville Williams, Text Book of Criminal law, London, Stevens & sons. 2nd
ed; 1983, p.7.
58 Ibid; at p. 11
59 See C.A.
Igwe. Op.cit P. 284
60 Ibid.
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.