Justice Niki Tobi, then of the Supreme Court, captured the illegality of Holding Charge practice when he said: “The function of the prosecution is not to rush a charge to a magistrate court, a court which has no jurisdiction to try capital 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 charge or not. There is nothing like holding charge.”
Also, the Administration of Criminal Justice Law, ACJL, stipulates that investigation must be concluded before arrest or a remand order, but despite the plethora of court decisions declaring Holding Charge illegal, the police and magistrate courts still indulge in the illegal practice thereby overcrowding the prisons with awaiting trial inmates. In this edition of Law and Human Rights, lawyers expressed concerns over the issue and suggested measures to end the reoccurring practice.
S’Court must be obeyed— Agbakoba, SAN
Former Nigerian Bar Association, NBA, President, Dr Olisa Agbakoba, SAN, said: “My simple view is that the rule of law is supreme and as the Supreme Court has declared, Holding Charge unlawful. It is important to comply.”
Practice fuelled by impunity— Prof Erugo, SAN
Prof. Sam Erugo expressing his view on the issue said: “Yes, there are several judgments declaring Holding Charge illegal, and it has continued only to the extent of the unchecked impunity of some officers.
“Such impunity has no formal or official support, but encouraged somehow by omission, in the failure of the system to punish erring officers.
“There is no argument that most officers of the Force and Security Agencies act with such brazen impunity that suggests failure of control, and ostensibly, failure of rule of law. The question continues to resonate -who will police the Police?
“However, it looks like the old form of Holding Charge is gradually giving way to a new practice flowing from recent Criminal Justice legislations.
“There is a new dimension to Holding Charge following the enactment of the Administration of Criminal Justice Act, ACJA, and the Administration of Criminal Justice Laws in the states.
“These legislations permit the Police and other Security Agencies to obtain court orders to detain criminal suspects for a limited period. Probably, there is nothing wrong in the new practice, but the issue or challenge, to my mind, remains in the abuse of such powers, or impunity in its exercise.
“Related to that challenge is the incompetence or recklessness of some judicial officers who fail to exercise their powers judicially and judiciously in granting such detention orders.
“They should be able to balance the competing interests before granting applications, and especially by protecting the human rights of citizens against clear cases of abuse.”
It’s unknown to law—Adeniji, SAN
Former Lagos State Attorney-General and Commissioner of Justice, Kazeem Adeniji, SAN, said: “A Holding Charge connotes the practice where a charge is laid against an accused person at the Magistrate Court to enable the law enforcement agency complete their investigation and refer the case to Director of Public Prosecutions for legal advice and subsequent prosecution by the Attorney-General before the court with competent jurisdiction.
“In Alhaji Toyin Jimoh V. Commissioner of Police (2004) LPELR-11262 (CA), it was held that holding charge is unknown to Nigerian Law and the accused person detained thereunder is entitled to be released on bail within a reasonable time before trial.
“The above position of our courts necessitated amendments to our criminal procedure laws especially the Administration of Criminal Justice Law of Lagos State, 2007 (further amended in 2011) but now ACJL 2015 which specifically provided for Remand Proceedings in Section 264 granting power to the Magistrate Court to remand a suspect in respect of offences triable on information for 30 days and subsequently another 30 days after which the Magistrate Court shall issue notice to DPP to show cause why the suspect should not be released or in appropriate circumstances, grant bail to the suspect.
“Similar provisions exist in Sections 294 to 295 of the ACJA, 2015 with time limit of 14 days in the first instance and another period not exceeding 14 days. The provisions of the Administration of Criminal Laws are in line with Section 35 (4) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
It’s root cause of prisons congestion —Pedro, SAN
Condemning the practice, former Lagos State Solicitor-General and Permanent Secretary, Ministry of Justice, Lawal Pedro, SAN, said: “Holding charge is unconstitutional and unknown to law but our security agencies usually used it when they rush to the courts with suspects, before looking for evidence to prosecute them.
“The continued use of the Holding Charge by security agencies to detain awaiting trial suspects, is the major cause of the high number of awaiting trial inmates in our correctional centres and the undue delays in the criminal justice administration system of the country.
“This procedure is unacceptable in any democracy where suspect is presumed innocent until proven guilty.
“It is advised that our security agencies should desist from such obnoxious practice and emulate what happens in civilized societies where investigation does not commence with arrest and detention but by discreet surveillance on crime suspects and discreet investigation until such a time when enough evidence would have been obtained for his arrest, interrogation, arraignment and prosecution.”
Practice should be amended —Alliyu, SAN
Yomi Alliyu, SAN, said: “What cannot be done by court pronouncements through judgments could be done by legislation?
“By that I mean that correctional centres should by legislation, be given option on who they admit into their centres.
“The law should be that nobody whose trial is awaiting the decision of another body shall be accepted in these centres and if accepted against the law, the head of that centre shall be liable to three years imprisonment without prejudice to the right of the person thus unlawfully detained to seek remedy in civil courts.”
It renders bail procedure ineffective — Edun
Welfare Secretary of Nigerian Bar Association, NBA, Kunle Edun said: “It is sad that despite the revolutionary provisions in the Administration of Criminal Justice Act and the domesticated versions in the various states in Nigeria, the courts are still grappling with understanding the good intentions of these laws, five years after.
“ACJA has annihilated Holding Charge and every Magistrate Court now has the power to grant bail even in capital offence cases, where the evidence clearly shows that the charge is frivolous.
“More so, the practice of remanding a Defendant after arraignment and adjourning the matter to enable him file bail application in a non-capital offence charge, is not supported by our criminal laws.
“It is a convention that has made useless and ineffective the bail procedure system. By remanding a defendant in a non-capital offence charge, his constitutional right to personal liberty is further infringed upon. ACJA and the various ACJLs put the onus on the Prosecution to show why a Defendant in a non-capital offence charge must not be granted bail.
“The reverse is the case in practice because the onus is shifted to the Defendants. This convention is one of the major reasons we have congested detention centres. There are provisions in ACJA for periodic inspection of detention centres by Judges and Magistrates but most of the state Judiciaries hardly conduct these inspections mainly due to funds constraint.
“This brings to fore the urgent need for financial autonomy for the judiciary. ACJA and the ACJLs of the various states in Nigeria require that criminal cases be heard from day to day where practicable but this has not been the case.
“The dearth of Magistrates and Judges is a huge constraint in the quick dispensation of justice.
“There is need to appoint more Magistrates and Judges to decongest the detention centres, or better still, increase the criminal jurisdiction of Magistrate courts.
It’s evil, unjust — Hannibal
Chariman of African Bar Association, Uwaifo Hannibal said: “Holding Charge is one of the endemic problems facing the justice delivery sector in Nigeria. So despite a plethora of decisions to the contrary, this method of serving justice in criminal cases continues as if it is the normal.
“A lot of factors are responsible. Firstly, those who file the Charges for Capital punishments are from the Attorney-General’s office in the various Justice Ministries, do they not know the law?
“Secondly, with the number of cases clogged in the High Courts and the snail speed of judicial administration, can justice be done and manifestly so in the early stages of filing complaints and charges and the need to keep the accused under legal custody with some form of legal control clothed with legal authority?
“The Magistrate Courts were essentially created to deal with daily adjudication of criminal matters often in a summary way and often times, within the reach of the Police who make daily arrests, investigates and charges.
“The convenience of the Magistrate Court which is not a court of record and has no special procedure requiring expertise as in the higher courts, is the allure that keeps oiling Holding Charge.
“The solution from my perspective, is law reform. We need to do a holistic reform in the Judicial Sector particularly in the Criminal Justice System.”
Magistrates who indulge in the practice must be sanctioned —Akingbolu
Kabir Akingbolu said: “Holding charge as a practice is illegal because it is unknown to our criminal jurisprudence. However, the police with the collusion of Magistrate Courts continue this practice.
“This is very sad because as a result of the ugly practice, many people stay longer than necessary awaiting trials.
“The best solution, I think, is for the lawyers to go against the magistrates who do this by petitioning them to the relevant disciplinary agencies for proper action.
“If the magistrates are not punished for this ominous act, they won’t desist from such terrible act that is affecting our Criminal Justice System negatively.”
It’s reflection of lawlessness —Igbinedion
Senior lecturer in the Department of International Jurispondence, University of Lagos, Dr. Simeon Igbinedion said: “We live in a clime where the subordination of rule of law to the omnibus ‘national security’ and personal rule has been routinised by politicians, government officials and government institutions. The continued indulgence in Holding charge reflects the lawlessness around us. What can be done?
“Let rule of law take its pride of place; let the law and decisions of court be enforced to the letter; let those out to subvert such enforcement be made to face the wrath of the law.”
Magistrates, Police should be trained — Asia
Elvis Asia said: “Holding charge or remand proceeding is not absolutely illegal or unconstitutional. The Administration of Criminal Justice Act and law in most states of the federation, have provisions for remand pending investigation.
“However, there must be strict compliance with the procedure set out in the law. For example, magistrates must ensure that the applications are brought within a reasonable time not more than 24-48 hours after arrest depending on the court distance.
“This is mandatory under the Constitution. Magistrates can also grant bail instead of making a remand order and limited time should be given to enable the court monitor the process, otherwise, they should be set aside. Magistrates must also ensure that there is a clear reasonable ground for the application.
“The present system where magistrates just rubberstamp whatever the police files is the problem. They need to be trained to understand their role in the process. The process can be better managed to maintain the sanctity of the constitution.”
Courts without jurisdiction should decline cases — Ochai
Emmanuel Ochai said: “I think that our Criminal Justice System needs to be reformed. Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as provided for how long a suspect can be detained without being properly arraigned before a court of competent jurisdiction. Unfortunately, some courts still remand suspects on Holding charges which is illegal.
“To curb this menace, legal officers have to be proactive in ensuring that whoever is suspected of committing a criminal offence is brought before a court of competent jurisdiction within a reasonable time and judicial officers should also ensure that they have jurisdiction to try the case before assuming jurisdiction in respect of the said charge.
Erring magistrates should be punished— Adegborioye
Adenrele Adegborioye, said: “Holding charge is illegal and unconstitutional. Any person charged with a bailable or non-capital offence should not be detained beyond the constitutional required period of 24 to 48 hours.
“Our magistrates and police need more training and education about the position of the law as it is wrong for any magistrate to continue to unlawfully detain suspects under Holding charge despite the pronouncement of the Supreme Court on this issue.
“Also, the supervising authorities should not hesitate to discipline any erring Magistrate who still persists in detaining a person accused of an offence under Holding charge without any legally justifiable reason.”
