In the first half of the year 2017, the news media in Nigeria was agog with the headline making and shattering story of the death, in Port Harcourt, of a delivery man who works for one of the country’s online retailers. According to media reports, the young family man was allegedly abducted and thereafter killed in the most depraved and gruesome manner by some customers, who had earlier ordered the products being delivered, when they could not pay for same.

The police was invited and they swiftly commenced investigation into the matter. As part of the investigation process the suspects, two young men and a lady, who looked very odd in terms of their choice of fashion – not that it matters, were arrested at the scene of the alleged crime and subsequently taken to the station. A few weeks after the arrest was made, the media once again reported that the suspects were arraigned before a Chief Magistrate’s Court. They were charged principally with the offence of murder before that court. They could not take their plea because the court lacked the jurisdiction to try the offence of murder. In the circumstances, the Chief Magistrate ordered that the suspects be remanded in prison custody. Meantime, their file was transferred to the Director of Public Prosecution (DPP), Ministry of Justice, Rivers State, for legal advice.

What I have briefly set out in the paragraph above is what is regarded in legal parlance as a ‘holding charge’. However, some lawyers are of the opinion that the concept of a ‘holding charge’ does not exist under Nigerian law. They cite the cases of Olawoye vs. C.O.P (2006) 2 NWLR (Pt 965) Pg 427, Enwere vs. C.O.P (1993) 6 NWLR (Pt 299) Pg 333 and similar other cases in support of the proposition. While that view is respected, the issue being discussed in this piece is not nomenclature, legal terminology or the likes. No, far from it! The essence of this polemic is an attempt at interrogating decades’ long practice by the police – a practice which has grave implications for the respect for and protection of the constitutionally guaranteed rights of all Nigerians.

It goes without saying that the police are statutorily empowered to maintain law and order. It is equally beyond discussion that they are mandated to investigate crimes when they are suspected to have been committed. See ss4, 24, Police Act, Cap P19, LFN, 2004. To be clear, I do not have any serious problem with the fact that the police cannot fully investigate certain offences within a very short time or within the time the victim would love for it to be concluded. This is because; the world over, certain offences are executed in a planned, calculated and complex manner. As such, investigating such offences becomes serious business and requires a good deal of time. Hence, the need to detain suspects who are arrested in the course of investigation for longer. My quarrel, however, is with the fact that after more than half a century of Nigeria’s independence, the police are still unable to conclude investigations into simple offences and thereafter charge the suspects before the appropriate courts.

In failing to diligently conduct their investigation, the police therefore bring themselves closely within the provisions of s35(1), (4), (5) and s36(1) CFRN, 1999 (as amended) which guarantee the right to personal liberty and that of fair hearing for every person resident in Nigeria. However, in order to undo the effect of those sections, the police then swiftly take the suspects to a Magistrate’s Court. In doing so, the police usually charge the suspects with a more serious crime. The purpose for the police doing do so is something I cannot wrap my head around; it has left me scratching my head for a long while. Well, it appears an independent enquiry has to be conducted for that reason. Nevertheless, the view may be offered that the practice may not be unconnected with the use of the police to settle personal scores and, more importantly, a troubling dearth of professionalism within the police which compels them to take the easy way out most of the time. I should be quick to add that unprofessionalism is a malaise that permeates the entire strata of the Nigerian society.

In spite of the grave misgivings expressed above, the Supreme Court weighed in on the situation in the case of Lufadeju vs. Johnson (2007) 8 NWLR (Pt 1037) 535. In that case, the apex court, Per Akintan, JSC, at page 566, para A-D of the report, after clarifying that the above practice is remand proceedings had this to say: “….It is necessary to state that section 236(3) of the Criminal Procedure Law is aimed at ensuring judicial control of those arrested by the Police on criminal allegations. The power of the Police to detain a suspect is restricted by the law to specific number of days. They are therefore required within the period to bring the suspect before a court for the purpose of an order for further remand, if need be. The appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the Police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offence. The Magistrate would consider whether to grant or refuse the accused bail. Where bail is refused…the right of the accused to approach a High Court for bail is usually available to him.” The Court, Per Onnoghen, JSC, at page 573, para B of the report, concluded the point when he stated that: “I hold the view that section 236(3) of the CPL is not unconstitutional….If anything the said section clearly complements the provisions of…the constitution and is designed to aid the administration of criminal justice in this country”.

While the Supreme Court’s position above makes eminent legal and common sense, it appears to me that it encourages the police to continue in this ignoble practice; creates a situation where our prisons are congested and in the long term results in the violation of the constitutionally guaranteed rights of the citizens. An example will drive home the point being made. A person is suspected of committing the crime of say, armed robbery. He is brought by the police a few days after his arrest to the Magistrate’s Court which obviously does not have jurisdiction to try the offence. The Magistrate, without allowing the suspect take his plea remands him in prison custody pending legal advice from the DPP to whom the case file is referred. Nigeria, as most people will agree, is a highly confounding address. Due to this peculiar trait, the DPP is unable to transmit the legal advice within the timeframe ordered by the court because the suspect’s family is unable to ‘shake body’ and this is assuming the suspect even has a family that is interested in the matter. Along the line and due to the passage of vast amounts of time, the case file is misplaced or untraceable. And so, what results is that the suspect remains in prison custody awaiting a trial that in the great majority of cases never comes, utterly frustrated and broken. This is the single most important reason we have a lot of ‘awaiting trial’ cases within the prison system.

In a good number of cases, the offence alleged is not as serious as armed robbery. In those situations which do not carry the death penalty or life imprisonment, we find suspects serving out the entire prison term prescribed for the offence they were initially charged with while still awaiting trial and with practically no idea when their ordeal will be over! What system can be more diabolical than this, please? And who says every charge will be proved to the standard required by law; who says every defendant will be found guilty! In certain cases, some suspects may even be innocent of the charges against them especially when we take the favourite pastime, I believe, standard procedure, of the police into consideration: raids. The only saving grace for suspects in cases like this is the goodwill of either the President, Governor or the Chief Judge of a State while exercising the powers conferred on each by ss175, 212 CFRN, 1999 (as amended)) and s1 Criminal Justice (Release from Custody) (Special Provisions) Act, Cap C40, LFN 2004, respectively. It should be appreciated that these powers are seldom exercised. When they are even exercised on those rare occasions when we celebrate ‘democracy day’ or ‘independence day’ how many suspects in prison custody actually benefit from it? Unfortunately, precious little! Accordingly, those left behind will continue to look up to the metaphorical ‘hills’ from whence their help may come some time, some day, whatever.

This very sad state of affairs has led no less a personality than the Chief Judge of Ogun State, Hon. Justice Olatokunbo Olopade, to lament bitterly. The Chief Judge sometime in 2017 visited prison facilities in Oba, Ilaro, Sagamu, Ijebu-Ode and Ibara. In the course of the tour, the Chief Judge freed a number of prisoners. In doing so, the Chief Judge noted that the negligence of the legal department of the Nigeria Police Force was responsible for the prolonged detention of many suspects and inmates. She observed that many suspects have been in prison custody for years and in some cases unjustly because the police have refused to do what is proper. After assessing the entire situation for herself, the Chief Judge poignantly concluded thus: ‘I did not release you because you are innocent or guilty, but because your case files cannot be found’.

The views expressed in this work should not be misunderstood. This is in no way an excuse for crime and criminality. It is similarly not aimed at treating crime with kid’s gloves. No way! To the contrary, I believe that the highest punishment provided by our penal framework should be visited on those who have decided to take to crime and who by so doing ceaselessly torment our communities with a mindlessness that is unfathomable. But very importantly, these people must first and foremost be found guilty of committing the offences alleged by a competent court of law. In fact, in appropriate cases, I believe that the death sentence should be imposed on those adjudged to be deserving of same. I have no apologies for this. The argument whether or not it deters criminality is neither here nor there. It is absolutely baseless! Nevertheless, it is the contention here that in our fight of or attempt to eradicate crime from our society we all, but especially the courts, the police and other critical stakeholders, must always find ways to respect the humanity in the suspected criminal. Our failing to do so will only leave us in great despair following our inability to break free from what will turn out to be vicious cycle.

D. Nengim, Esq.

Is a legal practitioner and writes from Port Harcourt. He can be reached on:


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