Concerns over holding charge in Nigeria

Justice Mukhtar identified this as one of the reasons for undue delays in the criminal justice administration system in the country.Those present  at a special session organised by the Supreme Court to mark the commencement of the 2013/2014 Legal Year, as well as the inauguration of 17 new Senior Advocates of Nigeria in Abuja, where […]

Justice Mukhtar identified this as one of the reasons for undue delays in the criminal justice administration system in the country.
Those present  at a special session organised by the Supreme Court to mark the commencement of the 2013/2014 Legal Year, as well as the inauguration of 17 new Senior Advocates of Nigeria in Abuja, where Mukhtar took the security agencies to the cleaners didn’t agree less with the fearless judge.
She fired the salvo: “It is common knowledge that our security agencies usually rush to the courts with suspects, before looking for evidence to prosecute them. The persistent use of the ‘holding charge’ by these agencies to detain awaiting trial suspects, is a major contributor to the high number of cases pending in our courts.”
No one was more eligible to evaluate the dangerous dimension the concept of holding charge is undergoing as well as name the culprits than the former CJN, who virtually lived all her life within the precinct of the nation’s judicial system.
In Nigeria, security agents have turned themselves into Frankenstein monsters in an attempt to confine suspects into solitary confinement under the guise of holding charge and searching for more evidence to establish the culpability of the accused.
The Black’s Law Dictionary, defines holding charge as a criminal charge of some minor offences filed to keep the accused in custody while the persecutor takes time to build a bigger case and prepare a more serious offence.
But Olisa Agbakoba, SAN, and Stanley Ibe, in their book, ‘Travesty of Justice-An advocacy Manual Against the Holding Charge,’ said neither the constitution of the country nor any other existing law in force in Nigeria defines a holding charge.
Justice Ayorinde .J, said in his verdict in a case between Ogor Vs Kaolawole that Nigeria’s  constitution or any other existing law in force does not provide for a holding charge.
Justice Onu J. of the Court of Appeal, in a case between Enwerem Vs C.OP, submitted that:  “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.’’
Similarly, in Onagoruwa Vs The State, Justice Niki Tobi, submitted that: “It is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute, which is a forerunner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge.
“In a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge, even before they conduct investigations although there is nothing known in law as a holding charge.’’
A publication of the Lawyers’ League for Human Rights titled “Criminal Justice System in Nigeria: The Imperative of Plea Bargaining’’, said holding charge has no statutory firmament in Nigeria’s penal legislation and can’t be used to hold suspect.
It said ‘‘that the term is used by the legal community in Nigeria to describe a criminal charge that is filed by the police before a magistrate’s court against an accused person just for the purpose of securing an order of his remand in a police custody pending the conclusion of investigation or a criminal charge that is filed against an accused person by the police before a magistrate’s court that ostensibly has no statutory power to try the offence charged, but makes an order, remanding the person charged in prison custody pending the conclusion of investigation or the arraignment of the person in the high court, upon information being filed by the Attorney General.”
Agbakoba and Stanley Ibe said in the book that the magistrate courts in Lagos derive legislative impetus for holding charge from Section 236(3) of the Criminal Procedure Law, which provides that: ‘’If any person arrested for any 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 for trial.’’
Justice Mukhtar identified the practice as one of the reasons for undue delays in the criminal justice administration system in the country.
She said the practice of holding charge is a far cry from what obtains in other democracies, where discrete surveillance is placed on crime suspects who are painstakingly stalked by security agents, until such a time when enough evidence would have been obtained for their arrest, arraignment and prosecution.
“But in Nigeria, suspects are promptly arrested and often times arraigned in court, even when no evidence for prosecution has been gathered.
“The backlash from such failure of proper investigation by our security agencies is the resultant hike in the number of cases pending in the courts,” she said.
Justice Mukhtar warned that “an extreme consequence of these glaring lapses may lie in the loss of confidence in our domestic justice administration system which rubbishes our often brandished favourable investment climate and translate to a huge disincentive to potential foreign investors in Nigeria.”
Mr. Jiti Ogunye, Executive Director, Lawyers’ League for Human Rights also contends that holding charge is one of the chief reasons why criminal trial in Nigeria is largely regarded as unfair.  They are one of the causes of the large number of awaiting trial inmates in Nigeria’s prison, and as such a major source of congestion of prisons.
Malam Yusuf Ali (SAN), who faulted the law enforcement agencies in Nigeria, saying they lacked adequate training and equipment to perform well, said the problem was not new in Nigeria as it had always been in the system.
“You only arraign a citizen when a strong lead is established. You don’t arraign a citizen and then start looking for evidence. That is part of the problems with criminal procedure code.”
Sadly, many have been remanded for weeks on the orders of magistrate courts that ordinarily have no power or jurisdiction to adjudicate on the matter or exercise such holding charge, despite the illegality of the charge and its practice in Nigeria.
Perhaps, this explains why some state governors or the serving Chief Judge of Lagos State are always willing to grant amnesty to some prisoners or awaiting trial inmates when there is an opportunity to do so.
Be as it may, the  continuous use of holding charge in the country contravenes  right to personal liberty as  guaranteed by Section 35 of the  1999 Constitution.
Section 35(4) of the constitution states that  any person who is arrested or detained for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicions of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent him committing a criminal offence,
shall be brought before a court of law within a reasonable time; and if not tried within a period of two months from the date of arrest or detention, in case of a person who is in custody or is not entitled to bail, or three months, from the date of his arrest or detention.  In case of a person who has been released on bail, he shall without prejudice to any further proceedings that may be brought against him be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
There are concerns that the judicial sector cannot watch helplessly while the use of holding charge lingers and destroys the fabric of the third estate of the realm in the country.
Justice Mukhtar said in order to stop the use of holding charge in Nigeria, there is need for an overhaul of the country’s criminal laws, which she described as “archaic and culturally irrelevant.”
“To exhaust complete remedy in a case, that is from trial court to Supreme Court, could take up to 20 years with the original litigants dead and substituted and in some cases the substitutes also dead and substituted,” she said.
A Lagos lawyer, Dada Martins, was of the opinion that  the  country’s criminal code system needs to be revolutionised in order to stem the use of holding charge.
According to him, the revolution will involve educating the police against the inherent danger in hasty filing of suit against a suspect in magistrate’s courts when such officer is yet to establish prima facie case against the accused.
He also explained that such revolution would spell out jurisdiction of the magistrate’s courts and the need to dismiss suits they lack jurisdiction to hear in order to fast track justice delivery system in the country.
There is no doubt that if the crusade against the continuous use of holding charge is won, Nigeria would begin a salutary march to accelerated justice delivery system  and bolster the image of the third estate of the realm as the last hope of common man in the country.