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Holding Charge Syndrome; A Challenge In The Administration Of Criminal Justice In Nigeria

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 HOLDING CHARGE SYNDROME; A CHALLENGE IN THE ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA

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.

CHARACTERIZATION

  1. Title page.
  2. Certification page.

iii.       Approval page.

  1. Dedication.
  2. Acknowledgements.
  3. Table of Contents.

vii.      Table of Statutes.

viii.     Table of Cases.

  1. Abbreviations.
  2. 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.

  1. 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).

  1. 214…………………………………………………………
  2. 35(5)…………………………………………………………
  3. 35(4)…………………………………………………………
  4. 35(4) and (5)…………………………………………………………
  5. 35(7) (a)…………………………………………………………
  6. 35(6)…………………………………………………………
  7. 35(1) …………………………………………………………
  8. 36(6) (a) (b) (c)…………………………………………………
  9. 35(1) …………………………………………………………
  10. 46(1) (2)…………………………………………………
  11. 1(3) …………………………………………………………
  12. 36(6) (a-d) …………………………………………………
  13. 34(1) …………………………………………………………
  14. 36(4) …………………………………………………………
  15. 6(6)(c) …………………………………………………………
  16. Criminal code Act, Cap C. 38 L.E.N. 2004
  17. 37(1)……………………………………….

S.316

S.38

  1. Criminal Procedure Act (Cap. 41 L.F.N 2004
  2. 78 (a) (b)
  3. 17
  4. 18
  5. 118

S.9

  1. Criminal Procedure Code AP 30 Laws of Northern Nigeria 1963.
  2. 129
  3. Criminal Procedure law Cap 33 laws of Lagos state, Nigeria 1994.
  4. 236(3)……………………..
  5. Criminal Justice Administration (Lagos State) 2011.
  6. 264 (1)
  7. 264 (10) (a-c)
  8. Criminal Procedure Law Cap. 49 Laws of Bendel State 1976 (as amended by the criminal procedure (Amendment) law 1991.
  9. 236 (3)
  10. Evidence Act 2011 (amended
  11. 145(2)
  12. 135 (1)
  13. International covenant on civil and political Rights. 1966.

Art. 14.

  1. Police Act Cap. P. 19 L.F.N 2004.

S.4

  1. 23
  2. Prisons Act Cap. P. 29 L.F.N 2004
  3. Robbery and Firearms (special provisions Act Cap. R.11 L.F.N 2004.

S.1(2)

  1. 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-à-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.

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