Abstract
The security agencies especially the Nigerian police Force is empowered by the section 4 of the police Act 2004 and various judicial dictato carry out investigations, arrest and prosecute any person alleged to have committed an offence or on reasonable suspicion of having committed an offence before any court of law in Nigeria,including the Supreme court. However,the letters of these salient provisions are yet to attain full implementation as the police have lamentably limited their cases to the Magistrates’ court and other inferior courts of record. This article x-rays the holding charge concept, its constitutionality and setbacks to the accused person standing trials before these courts .It mirrors further,the negative effect the concept of holding charge has meted out on suspects yet to be tried thereby impugning the right to be presumed innocent until proven guilty by a court of competent jurisdiction as enshrined in the Constitution of the Federal Republic 1999.This article examines the power of remand imbued on the Magistrates’ court within the ambit of the Administration of Criminal justice Act(ACJA) of 2015 by virtue of sections 293-299,which provision is in pari materia in the various states of the Federation that have enacted the Administration of Criminal Justice Law in their jurisdictions.
Introduction
A holding charge otherwise known as a remand order is defined by the Black’s Law Dictionary to mean a criminal charge of some minor offence filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare a more serious charge. Thus a holding charge is a charge brought by the Police or other law enforcement officer against an accused person before an inferior court that lacks jurisdiction to try the offence charged ,pending the receipt of legal advice from the Office of the Director of Public Prosecutions, to recommend the accused person’s trial in a court of competent jurisdiction or tribunal set up to try the particular offence.
Juxtaposedly, the enabling provisions of the Constitution of the Federal Republic of Nigeria 1999 guarantees the accused person the right to be presumed innocent until proven guiltyand to be arraigned in a court of law within a reasonable time.The expression reasonable time is defined in the provision to mean;
in any other case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers,a period of one day;and
in any other case a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.
At this point,it could be drawn that the provisions of the Administration of Criminal Justice Act 2015 which mutatis mutandis is in pari materia with the provisions of the Administration of Criminal Justice Law(ACJL) of Enugu state 2017 appears to be inconsistent with the provisions of the grundnorm,the Constitution of the Federal Republic 1999.Thus the purpose of this article is to inquire into,investigate and scrutinize this seeming inconsistency and try to strike a balance if any,between perspectives, while also examining the provisions of the ACJA 2015 and the ACJL,Enugu state 2017 vis a vis the provisions of the CFRN 1999.
ARGUMENTS IN FAVOUR OF HOLDING CHARGE
Pundits and protagonists of the holding charge concept have variously supported their assertions with both case laws and statutory provisions. Accordingly, section 293(1)of the ACJA provides;
“A suspect for an offence which a magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate court for remand.”
Similarly, section 223 of the ACJL,Enugu state provides;
“A person arrested for an offence which the magistrate has no jurisdiction to grant bail shall within a reasonable time of arrest be brought before a magistrate for remand.”
Advocates for this practice claim that it ensure judicial control of those arrested by the Police on criminal allegations and allows investigators and prosecutors more time to prepare for the arraignment of the suspect before the appropriate court.The rationale for the practice was laid down in the Supreme court case of Lufadeju v.Johnson inter alia;
Where there is strong suspicion that the suspects committed an indictable offence
Where there is the need to lawfully and properly keep them in custody
Police investigation sometimes take time
Sometimes there is the fear of a likelihood of committing same or other offences
There is likelihood of interference with investigations
While the process continues or is concluded,the legal advice of the Ministry of Justice is sought.
Dilating further,the court in the above case held that the practice of holding charge is not unconstitutional,but rather it complements the provisions of Section 35(4) of CFRN 1999 and
is designed to aid the administration of criminal justice in the country.
CONFLICT OF RATIOS
It is not in doubt that the intention of the legislators in enacting the ACJA and sister legislations was not to curtail,abridge,whittle down,truncate,abrogate or take away the much cherished rights,freedoms and liberties duly granted to the citizen by theCRFN 1999(As amended).
The National Assembly has no fiat to abrogate or diminish constitutionally guaranteed rights of any citizen under the guise of making laws. It is trite principle of law as copiously replicated in a plethora of cases, that the National Assembly or the State Houses of Assembly in enacting laws cannot exceed the powers donated to it by the Constitution nor can it make laws that ousts or purports to oust the jurisdiction of the courts.
Thus when the National Assembly makes laws that are inconsistent with the provisions of the constitution, such laws become automatically void to the extent of their inconsistency.
Moreover there are litany of cases decided subsequently after that given in the case of Lufadeju v. Johnson(supra) that condemn the practice of holding charge in our jurisprudence.Recent judgements of the Court of Appeal have deviated from this decision of the Supreme court in a number of cases where it was held that the concept of a holding charge is unconstitutional and an aberration.
Thus in Olawoye v.C.O.P,the Court of Appeal per Abdullahi JCA held;
“Holding charge is unknown to Nigerian law and an accused person detained thereunder is entitled to release on bail within a reasonable time before trial moreso in a non-capital offence”
Dilating further in Shagari v.COP (Summary judgement of Sanusi and Ogbuagu),the Court of Appeal held that
“ Holding charge has no place in Nigerian judicial system. Persons detained under an ‘illegal’, ‘unlawful’, and ‘ unconstitutional’ document tagged ‘holding charge’, must unhesitatingly be released on bail.”
In this case, the appellants were arraigned before a chief magistrate court, which certainly lacked jurisdiction in homicide cases 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 to bail ,but by continuing to detain them on a “holding charge” was not a judicious and judicial exercise of discretion.
Finally,in the case of Onagoruwa v.The State Justice Niki Tobi,JCA as he then was, held:
“It is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute,which is the precursor to the charge decision,it must have at its disposal all the evidence to support the charge.”
ABUSE OF THE CONCEPT
Indeed the legality or otherwise of the holding charge concept has caused some ripples in the Nigerian jurisprudential waters among scholars and practitioners alike, however ,one cannot deny the continued application of the holding charge in our legal stratosphere. Thus even if one is to accede to the claims of protagonists in favour of the concept, we cannot develop a blind eye to the level of its abuse by security agencies. The ACJA and ACJL Enugu state provided circumspective and thorough guidelines when applying the holding charge but these guidelines are observed more in breach .
The statutes create a time protocol within which a person detained on holding charge shall be formally charged before a court of competent jurisdiction but the security agencies ignore these provisions after securing the detention of the suspect and abandon the cases which in turn has led to prison congestion as the bulk of prison inmates are those in Awaiting-trial(ATM).
CONCLUSION
In the light of the foregoing, it can be drawn by deductive logic that the holding charge provision is constituting a bottleneck to the smooth and effective running of the Nigerian judicial system. Even though one may laud the objectives of the concept, it has become an encumbrance to the quick dispensation of justice in the country due to its misapplication.
The level of abuse of the concept by the security agencies cannot be overlooked, and this is the raison d’etre for questioning the application of the concept and its constitutionality, which many even the courts have condemned as being totally against the spirit and letters of the Constitution of the Federation 1999(As amended).
RECOMMENDATIONS
In the light of the flagrant abuse and corruption of the practice of the holding charge concept by the security agencies especially the Police and the Economic and Financial Crimes Commission,a lawyer handling a matter for a suspect should construe the entire ramifications of the case before applying for the bail or discharge of the suspect. Thus if it is apparent that the prosecution have obtained the remand order solely to incarcerate or persecute the suspect, counsel must make this known to the court as the courts have constantly frowned at such practices.
Furthermore,when the security agencies have paucity of evidence to prosecute an alleged offender,they should not obtain a remand order to detain the suspect pending investigation. The adversarial system of our jurisprudence does not permit this incongr
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