Sadly, holding charge is a daily reality in Nigeria’s criminal justice system despite several courts’ decisions to the effect that the practice is unconstitutional and unknown to our criminal justice system. Prevalence of this practice suggests attempts by the police, other law enforcement agencies even the Attorneys-General at forcing it down our throats.
Holding charge is simply a practice where a person accused of an offence which a magistrate court does not have jurisdiction to try is brought by the police or other law enforcement agents before the magistrate court for the purpose of being remanded in the prison pending conclusion of investigations or the issuance of the Director of Public Prosecutions’ (“DPP”) advice for him/her to be subsequently charged/arraigned before the appropriate court[1].
I usually wonder why magistrate court that will readily decline to entertain a civil action where it lacks jurisdiction will entertain a criminal action when it lacks jurisdiction despite fundamental rights being at stake?
In an attempt to arm-twist the courts’ decisions to the effect that holding charge is unconstitutional and a violation of the accused’s right to personal liberty, the legislators both at the federal and the state levels have through their respective administration of criminal justice laws made provisions to “legalise” holding charge. For example, Sections 293 to 299 of the Administration of Criminal Justice Act 2015 (“ACJA”) gave the magistrate courts power to remand an accused in custody pending when appropriate charge will be brought before the appropriate court with jurisdiction or pending DPP’s advice. Sections 264 to 266 of the Lagos State Administration of Criminal Justice Law 2011 (as amended) also provide for this procedure, and Section 306 to 312 of the Administration of Criminal Justice and Other Related Matters Law of Ogun State 2017.
Though these provisions set out time limits for the remand order to subsist, reality has shown the time limits only exist on paper, and that these provisions have been used as weapons for violations of accused persons’ rights to personal liberty, fair hearing and the right to presumption of innocence. Needful to mention the fact that purported derogation of the right to personal liberty which these provisions attempt to achieve will even fail the test set in Section 45(2) of the 1999 Constitution (as amended). In a matter, a suspect is detained in a police station for several weeks for the purpose of investigation. The police officers afraid of running out of time, approach the magistrate court despite knowing full well that the magistrate court does not have jurisdiction to try the offence, to “validate” further detention of the suspect. In some cases, investigations have been concluded but these police officers will still file a charge at the magistrate court for a remand order to further keep the suspect in prison custody, then duplicate the case file and send to the office of the Attorney General for the DPP’s advice. From the beginning, the police officers and the magistrate know that for such an offence, the appropriate authority to consider and commence criminal proceedings is the office of the Attorney General. The “drama” seems like the police buying time for the prosecution, specifically the Attorney-General at the expense of a suspect’s right to personal liberty and other rights.
After obtaining the remand order from the magistrate court, an accused can be in prison custody for another seven (7) months even more without being arraigned in the appropriate court. Unfortunately, the fact that a person’s liberty is at stake is not enough to expedite the process for issuance of the DPP’s advice. After all, any suspect must have met other suspects on the queue for the DPP’s legal advice. It is even worse where the DPP’s advice is eventually issued after several months that it states there is no prima facie case against the accused. In most cases, accused persons in these shoes do not look back to enforce their fundamental rights which have been breached. As we are aware, media reports have shown cases where suspects are being accused of offences they never committed, where police arrested persons unjustly and eventually hooked them with holding charge to the extent that some accused who have no business in being in prison have been forgotten there.
In fact, a look at some proofs of evidence will show a reasonable man that the charges preferred are dead on arrival, but state’s resources and time will still be expended pursuing shadows. The accused will be made to suffer in detention for months even years. Some will even have holding charge hanging around their necks for years. It is even more painful that despite the provisions of the Constitution and decisions of superior courts declaring holding charge unconstitutional, the Magistrates faced with making a remand order despite lack of jurisdiction to entertain the charge will still go ahead to do so. This is despite the fact that the magistrate courts are also courts of law established by statute to apply the law to cases.
On what is expected of magistrate courts in this circumstance, the Court of Appeal in Charles v COP Abia State[1] stated thus:
“…Any accused who has been arraigned before a Court of law is the property of the Court and not that of the prosecuting authority. As such the Court must be watchful in ensuring that the rights of the accused are not trampled upon by prolonging his detention in the course of prosecuting his case. Doing this will negate the constitutional safeguards of the rights of the accused to trial within reasonable time…Thus as rightly observed by his lordship in the judgment which view I also subscribe to, no Court should shy away from calling out any authority which attempts or engages in acts that are in clear violation of the rights of the citizens…” Per Ibrahim Wakili Jauro, JCA.
Thus, to address these worrisome circumstances especially eliminating the practice of holding charge which is still prevalent, the following are recommended:
1. That law officers from the offices of the Attorneys-General be stationed in police stations. They are to work with the police on every criminal complaint, screen out frivolous complaints and give legal advice. Where a suspect is arrested, legal advice should be issued timely pursuant to which the law officer in the police station will file an information at the appropriate court where necessary. This is like getting the Attorneys-General closer to the beginning of the road of criminal justice. The states should employ more competent lawyers if short of man power to carry out this task. With a law officer at the police stations, DPP’s advice should be issued on time and appropriate charge preferred at the appropriate court. This will even give the law officer opportunity to meet and interrogate the witnesses at the earliest time.
2. Based on the fact that DPP’s advice is to state that there is a prima facie against a suspect, a period of about 24 hours should be set for the issuance of same, and an information preferred at the appropriate court within 24 hours after issuance of the DPP’s advice. Where there is no prima facie case, the suspect is let go at the police station rather than being let go after spending months in prison based on a holding charge.
2. The legal department of the Nigeria Police Force should work together with officers from the offices of the Attorneys-General stationed in the police stations in the screening processes, timely drafting and issuance of legal advice. After all, the legal advice is to state whether or not there is a prima facie case against the suspect on the basis of which he will be charged before the appropriate court if necessary which should not be difficult to do.
3. Officers of the National Human Rights Commission should be following up at the police stations and magistrate courts to monitor cases where holding charge is being practiced and those involved in the illegal procedure should be called out and sanctioned.
4. Civil Society Organisations should be involved in this process particularly monitoring criminal cases brought to the magistrate courts.
5. States’ judiciary should ensure Magistrates carry out their tasks and apply the law without fear or favour. Magistrates should be allowed to uphold the Constitution, decisions of higher courts on holding charge and fundamental human rights above the administrative requirements expecting them to entertain holding charge in their courts.
6. There should be increase in manpower and training of persons involved in the criminal justice system from the point of search, arrest till the end of the process in all cases.
These I believe will help decongest the prisons and prevent wastage of public resources to remand suspects in prisons who at the end DPP’s advice will find no prima facie case against. Practicality of these suggestions should be considered and adjustments made where necessary to move our criminal justice forward.
#opinion
[1] In Charles v COP Abia State (2021) LPELR-56547(CA). Oguji v Divisional Police Officer C/O Ojo Police Station, Ojo, Lagos State & Ors (2021) LPELR-56044, Anaekwe v COP (1996) 3 NWLR (Pt. 436) 320, Enwere v COP (1993) 6 NWLR Pt. 299) 333.
[1] (2021) LPELR-56044 (CA).