The Illegality Of Holden Charge By Sam Okolie

The immortals words of the revered Jurist has resonated fairly in the Nigeria judicial sphere, as aptly provided for by the double constitutional provisions of presumption of innocence in section 36(5) of the constitution, and the individual liberty of a person under section 35(1) of the 1999 constitution. However a major clog and encumbrance to these constitutional provisions of personal liberty and presumption of innocence is the concept of “Holden charge.” Holden charge simply put is a situation where the police or any other law enforcement agency, arrest and detain a person suspected or alleged to have committed a crime and then rush to court especially the magistrate court to get a detention order to keep the person in prison custody for a long period of time beyond the constitutional provision pending trial. Black’s Law Dictionary defines the term “holding charge” as a criminal charge of some minor offence filed to keep the accused in custody while the prosecutor takes time to build a bigger case and prepare more serious offence. JUDICIAL PRONOUNCEMENT The courts, especially the Supreme Court, have in a plethora and gazillion of decided cases held that the concept of “holding charge” is patently illegal and unconstitutional. In ONAGORUWA VS THE STATE (1993) 7NWLR (Pt 303), the Court of Appeal, per Niki Tobi J.C.A, as he then was, held: “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.” The court further stated that in a good number of cases, the police in this country rush to court on what they generally refer to as holding charge, even before they conduct investigations, though there is nothing known to Law as “holding charge”. Also in the case of SHAGARI VS C.O.P (2007) 5 NWLR (pt 1027) 275 at 298 para c-g 302 the court Per Ogbuagu J.C.A held “A holding charge is unknown to Nigerian law and any person or an accused person detained under an “illegal”, ‘unlawful’ and “unconstitutional” document tagged holding charge, must be released on bail. Furthermore, in BOLA KACE V THE STATE (2006) INWLR (pt 962) 507 at P. 765, the court expressed the same views in the following words: “It is an aberration and an abuse of judicial process for an accused person to be arraigned before a Magistrate Court for an offence over which it has no jurisdiction, only for the accused person to be remanded in prison custody and not tried or properly charged before a competent court for trial. It will be an infraction on the right to fair hearing and liberty of the accused person.” LEGISLATIVE ENACTMENT In what appears to be a legislative usurpation of the powers and authorities of the court, the National assembly via the enactment of the Administration Of Criminal Justice Act 2015, in sections 293-299 of the Act, appears to render nugatory the decisions of the courts as regards to “Holden charge”, by empowering the law enforcement agencies to arrest and detain a person in custody beyond the constitutional provisions. Also the Administration of Criminal Justice Law Lagos State 2011 appears to give an open cheque to the law enforcement agents to arrest and detain a suspect under the guise of holding charge. See Section 264 of the ACJL provision CASE STUDY The negative effect of “Holden charge” will be illustrated using two case scenario that have happened in the past, to exemplify the foul effect of Holden charge and pre trial remand. The cases are SIKIRU ALADE: He was arrested on 9th march 2003, and forcefully taken to Ketu police station where he was detained. Six weeks later (15th may 2003) he was taken to court by way of holding charge on allegation of armed robbery. The court ordered his remand in prison, and he was not returned to any court of competent jurisdiction, and thereafter remained in prison for 9 yrs 6 month without a trial or formal charge before any court of law. Eventually on application at the ECOWAS court of justice, the court held that his detention for almost 10 yrs without trial violate his right under the African Charter on Human and Peoples Right. He was eventually released on 18th September 2012. HYGENUS AJIBO: He was accused of murder and arrested in 1997, where he was remanded under Holden charge and spent 16 years from the date of his remand in prison custody without trial until he was eventually granted bail on the 17th February, 2014 pending the determination of his trial.  There are also avalanche and plethora of cases like this in our prisons that have not received the needed attention OPINIONS There has been a lot of condemnation as regard the concept of Holden charge. One of the most vociferous critics of this concept is the learned silk, Mike Ozekhome SAN. In an article published in Premium Times, the Learned silk opined that the concept of Holden charges is illegal and the provisions of the ACJA in support of holding charge is unconstitutional. Also from familiar quarters, the former chief Justice of Nigeria Mariam Mukhtar on a session held to mark the 2013/2014 legal year stated that; it is common knowledge that our security agencies usually rush  to court with suspect before looking for evidence to prosecute them. This procedure is a far cry from what obtains in other democracies, where discrete surveillance is placed on crime suspect who are painstakingly stalked by security agent, until such a time when evidence would have been obtained for their arrest, arraignment and prosecution.]]>