Lawyers divided over “holding charge

A coalition, Civil Societies Network Against Corruption (CSNAC), has petitioned the National Judicial Council (NJC), over the directive by the Chief Judge (CJ)of the Federal Capital Territory, (FCT) High Court, Abuja, Justice Ishaq Bello, barring magistrate courts from issuing remand orders for the detention of suspects.

The petition, signed by the coalition’s chairman, Olanrewaju Suraju, noted that the directive from Bello is an u‎tter violation of section 293 of the Administration of Criminal Justice Act,(ACJA) 2015.

However, another group of lawyers under the umbrella of “international Society for Civil Liberties & the Rule of Law”

In a swift reaction said that CJ Ishaq Bello deserves commendation and not condemnation.
According to them, the Nigerian criminal accusation, investigation, arrest, detention, prosecution, sentencing and conviction or acquittal visited against citizens alleged to be in conflict with the law by the country’s criminal law enforcers and the court; is strictly and clearly guided by the three offense classifications and their sentencing categories.

“Also criminal offenses in Nigeria are easily determined by sentencing or punishment categories.
Emeka Umeagbalasi, Board Chairman International Society for Civil Liberties & the Rule of Law said that it is constitutionally and statutorily prohibited for a citizen accused of committing an offense of money laundering to be arrested and detained as a capital punishment offender or armed robbery suspect or treasonable felon.
“This is also reinforced by Section 35 (5) (a) (b) of the 1999 Constitution to the effect that no non capital offense offender and related grave crime offender should be arrested and detained beyond 24/48hrs without trial. “That is to say those who are alleged to have committed offenses under lesser felonies, misdemeanors and simple offenses must not be detained beyond 24/48hrs without trial.

“Other citizens alleged to have committed capital offenses and related grave crimes like arson; rape, manslaughter, etc may be arrested and detained without trial for maximum of 60 days. “This is provided in Section 35 (4) (a) of the 1999 Constitution. The spirit and letters of Section 293 (1) of the Administration of Criminal Justice Act (ACJ) of 2015, which CJ Ishaq Bello was falsely accused of violated, are expressly laid on the fact that a citizen arrested over capital punishment and associated grave offense must not be detained beyond 24/48hrs without a magistrate court remand. This explains why the same Section says: “a suspect arrested for an offense which a magistrate has no jurisdiction to try (capital offenses and related grave offenses), shall, within a reasonable time of arrest (24/48hrs: see Section 35 (5) (a) of the 1999 Constitution)), be brought before a magistrate court for remand”. Section 293 (1) of the ACJ Act of 2015 under reference was originally and unambiguously designed to address the menace of Holden Charge; whereby the criminal justice enforcers in the country engage in reckless arrest and long detention without trial of their captives by dumping them in perpetual detention after “arraigning them before magistrate courts lacking jurisdiction in trying them for offenses leveled against them”.

The group stressed that the CJ Ishaq Bello was correct and grounded to have issued the ban. “The clear and unambiguous message following this is that magistrate courts have no business issuing remand orders to EFCC operatives for the purpose of detaining longer than constitutionally permitted, citizens accused of committing economic and financial crimes in Nigeria, which are classified by the Criminal Code Act of 2004 as well as the EFCC Act of 2004 as lesser felony or misdemeanor offenses; judicially punishable by three years imprisonment. This is more so when the EFCC is constitutionally and statutorily prohibited from arresting, detaining and prosecuting alleged capital punishment offenders and others alleged to be involved in committing other grave street criminal offenses.

“Resorting to pretrial brigandage and recklessness under the guise of fighting corruption must be fought and crushed in Nigeria with utter alacrity. Reckless resort to or use of magistrate court remand to clamp economic and financial crimes suspects into long pretrial detention can boomerang, leading to prosecutorial lose of the alleged offense by the EFCC”.

Yet some other lawyers also believed that the ACJA has not only given impetus to but has also come to regulate the practice of “holding charge”.

Based on section 293 of the ACJA 2015 the Economic and Financial Crimes Commission (EFCC) has been obtaining remand orders from magistrate courts to detain criminal suspects pending their arraignment in the courts. Since many of the suspects arrested in connection with the criminal diversion of billions of naira the EFCC has applied to magistrates in the federal capital territory. In exercise of their powers under the law the magistrates have granted the remand orders.

As the EFCC has charged such suspects to court upon the conclusion of investigation no court has declared illegal the order granted by any of the magistrate courts.

A case in point is the detention of some suspects who have publicly admitted that they collected billions of naira for political campaigns from the over $2 billion appropriated by the national assembly for buying arms to fight the dangerous boko haram sect.

The “holding charge”, according to Chief Leonard Dan Nzadon, is a retrogressive measure which whittles down the fundamental human rights of the suspect to personal liberty as guaranteed under Section 35 of the 1999 constitution as amended.

“The underlying consideration in all matters of a criminal nature which necessitate arraignment ought to be the extant provisions of the Law and the need for strict compliance therewith. Our problem is not one of being overwhelmed by the number of criminal cases but one of a lack of will to comply with the provisions of the Law. If a matter relates to the liberty of the citizen, the Courts ought to be on 24/7 hour service”.

According to Eze Onyekpere, Section 293 to 299 of the ACJA 2015 seems to have legalized the otherwise illegal holding charge by empowering a magistrate to make a remand order in an offence in which he has no jurisdiction to try. The power of remand is for 14 days in the first instance, renewable on two subsequent occasions of 14 days each and no more. Thus, the remand can be for a period of 42 days. “It appears to me that this section contradicts the whole gamut of section 35 of the 1999 Constitution on the right to personal liberty, especially subsection 5 which demands bringing a suspect to court for trial within a reasonable time of one day in the case of an arrest or detention in any place where there is a court of competent jurisdiction with a forty kilometre radius or two days or such longer period considered by the court as reasonable in any other case.

The provisos in subsection 7 of section 35 of the Constitution clearly state the exceptions to the general rule. It is therefore my considered view that an ordinary Act of the National Assembly cannot amend the Constitution or take precedence over it. See section 1, subsection 3 of the Constitution. Moreover, such draconian provision of the Administration of Justice Act cannot qualify as a law which is reasonably justifiable in a democratic society and clearly reverses the presumption of innocence”, he said.

On his part, an Abuja based lawyer, Barrister Adam Olori-Aje said that “the hallmark of civil society is the freedom of its citizens’. He said that Great men and women in history all over the world including our country Nigeria fought with their blood to guarantee same. His words, ‘the practice of holding charge has long been vilified and condemned in our judicial system. The archaic practice of arresting a suspect before or during the pendency of investigation of a complaint against him or her is grossly condemnable. It encourages nothing but growth of anarchical tendencies and misuse of powers by people in authority’.

‘A suspect is entitled to a fair trial within a reasonable time. That is the purport of Section 36(4) of the 1999 constitution as amended. Right to speedy trial is fundamental. This is because the accused or suspect is entitled to know his fate as soon as possible so that the curtailing of his liberty for the period of the trial can be minimised. The case of OKEKE VS. STATE 2003 FWLR PT. 159 at 1381 is very instructive in this respect”.