Introduction:

Sixty-five percent of the prison populations in Nigeria are awaiting trial inmates. With an estimated average 50 percent overpopulation rate in our prisons, awaiting trial syndrome accounts largely for the over population problems in our prison system.

Most of the awaiting trial inmates are kept in prison under the remand procedure popularly called holding charge. By this practice, Magistrates who do not have jurisdiction to try or grant bail to accused persons charged for felony, can remand such persons in prison pending the conclusion of investigation by the police or proper arraignment of such persons in a competent court.

It does not matter that no evidence connects the accused person with the crime for which he is charged; rather the only trigger for this remand order is a police charge sheet accusing the person in question of committing a crime. This state of affairs has been the major problem of our criminal justice system, not just because of the overpopulation crisis it creates in our prison but also for the brazen disregard for the fundamental rights of the accused persons that it occasions.

In a rather surprising decision of the Supreme Court in LUFADEJU V BAYO JOHNSON, the holding charge as practised under section 236(6) of the Lagos State Criminal Procedure Rules was held to be legal and complementary to the provisions of section 32 of 1979 Constitution (now section 35 of 1999 Constitution). By implication of this judgment the earlier advocacy premised on the unconstitutionality of the holding charge as held earlier by the Court of Appeal is no longer tenable. However, whatever may be the constitutional status of the holding charge practice, the problems occasioned by the blind detention of accused persons persist and this forms the crux of this write up and our advocacy for the reform of the holding charge practice.

We acknowledge that a remand procedure, which enables the system to keep an eye on accused persons to ensure that they are brought before the court for trial, is proper. However where this system lacks an inbuilt review process and where accused persons cannot challenge nor the police show evidence why such an order can be made, then the constitutional right of individuals is put at risk. There must be a balance between effective policing/investigation and the rights of accused persons.

This is the primary case decided by the Supreme Court regarding the extant remand procedure in the country. It is an appeal against the Court of Appeal judgment delivered on June 13, 2001.

The fact of the case is that the respondent, Evangelist Bayo Johnson with others were arrested and detained at the State Criminal Investigation Department (SCID), Alagbon, Lagos, on January 12 1997. The respondent sought bail, but the appellant (the magistrate) said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. As a result of this refusal of bail and the remand in custody, the respondent sought a judicial review in the High Court. The learned judge of the High Court ruled that by virtue of section 236(3) of the Criminal Procedure Law, the 1st appellant was authorised to remand persons who may have been arrested for indictable offence. Dissatisfied with the decision, the respondent appealed to the Court of Appeal, who in turn allowed the appeal. The respondents in that appeal now appealed to the Supreme Court, having been aggrieved by the decision of the Court of Appeal.

Two questions were presented before the court; one bordering on whether the proceedings at the magistrate court was arraignment for which the court lacked jurisdiction and secondly whether the provisions of the section 236(3) of the CPL contravenes section 32 of the 1979 Constitution. The Supreme Court answered both questions in the negative and allowed the appeal. It declared that there was no conflict between section 236(3) of the Lagos State Criminal Procedure Law and section 32 of the 1979 Constitution. In the view of the court the remand order of the magistrate court satisfies the constitutional requirement for lawful detention and section 236(3) complements rather than contravenes the Constitution.

By this judgment, remand procedure under the Lagos State Laws is constitutional but the stamp of constitutionality does not extend to the hardships and abuse suffered by accused persons under this procedure.

The police and other security agencies in the country have the duty of investigating crime and prosecuting offenders in some cases. The process of investigation is no doubt cumbersome and in some cases the system is confronted with the problem of a suspect fleeing or in some cases tampering with investigation. Thus the remand procedure was introduced to ensure that an accused person in a deserving case is kept in detention to enable the police conclude investigation as to whether or not such a person can be arraigned.

Involving the Judiciary in this detention process presupposes availability of judicial oversight and proper monitoring process to ensure that innocent people and even accused persons are not unduly kept in prison for a long time. However as noble as this rationale may be, what is obtainable shows that in most cases where the remand order has been invoked, nothing in the face of it connects the remanded person with the offence. Again, the review process of this remand order can only be triggered when the accused person approaches the High Court to seek for bail. As such the system works against the accused persons and occasions gross human rights abuses.

Various important safety nets are missing from the remand procedure as presently practised:

1. The magistrate who grants remand order does not inquire into the connection between the suspect and the crime. Conversely, an accused person is not heard before he is remanded. In effect, individuals who have nothing whatsoever to do with a crime can be detained indefinitely for a crime they know nothing about.

2. There is no report-back mechanism to enable the magistrate know whether the accused person has been charged to court or the length of detention of the accused person.

3. In circumstances where the accused requests bail, magistrates especially in capital cases decline jurisdiction to grant bail to the same person they detained.

4. The police appear to have unfettered powers to keep the accused person as long as they want, even when the delay in arraignment is entirely their fault.

In effect the holding charge practice in Nigeria continues to pose serious human rights challenges. It is important to mention at this point that there are many recorded cases of detention where the threat of holding charge has been employed by the police to extort money from individuals. In some other cases, individuals have been kept in prison for years under holding charge for crimes they did not commit.

It is the primary duty of government to respect and protect the rights of its citizens. This duty behoves of government to adopt policies and laws that give practical effect to the rights of individuals. In an academic sense, remand procedures ensure judicial participation in the denial of right of liberty; however the practical contents of this procedure show that right of liberty of accused persons are left to the nearly unfettered discretions of police officers. The result of this practice has been long detention, overcrowding in the prisons and in some cases detention of innocent persons on trumped up charges. What is at risk here is not just the question of right to liberty but also the dignity of the human person, right to fair hearing and other fundamental rights.

On the basis of the obvious inadequacies with the extant remand regime, we recommend the following amendment in the remand procedures across the country.

1. A review of the remand procedure to ensure that the magistrate is presented with evidence to support reasonable suspicion by the police before a remand order can be made.

2. Automatic periodic review of remand orders by the magistrate to evaluate the progress of the case within stipulated constitutional timelines (section 35 (4) of the 199 Constitution).

3. Immediate release of accused persons when they have been held beyond the constitutionally stipulated time frame (section 35(4)).

4. Magistrates should be empowered by law to vary remand orders in deserving circumstances.

5. Extension of remand orders can only be applied where it is absolutely necessary.

The Nigerian Bar Association (NBA) is disposed to work with willing stakeholders to effect a proper review of the remand procedures to ensure that it protects individual rights. Together we can make human rights a reality in Nigeria.