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 him
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.
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.
Unfortunately, these statutory safeguards have bee
n 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”.
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 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.
ich 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.
…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.
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?
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 .
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 impri
soned 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.
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.
Per Galadima JCA in Ogor v. Kolawole (1985)6 NCLR 534 at 540.
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