HOLDING CHARGE AND THE PROVISION OF THE CONSTITUTION ON FUNDAMENTAL HUMAN RIGHT.
HOLDING CHARGE AND THE PROVISION OF THE CONSTITUTION ON FUNDAMENTAL HUMAN RIGHT.
Lord Sulaimon Amina Tolulope
Faculty of Law
ADEKUNLE AJASIN UNIVERSITY, AKUNGBA-AKOKO.
ABSTRACT
Fundamental rights are those basic rights which accrue to every citizen of a country, essential for natural human enjoyment of his social space and are provided for in the constitution. They are rights that deserves maximum protection from infringement, hence there constitutional backing, provision in international treaties and enforceability in court upon situations of an actual breach or threat of a breach. On the other hand, an holding charge is an application made to the court by a prosecutor, requesting for the incarceration and detention of a defendant or a suspects pending the completion of investigation and drafting of a formal charge for the prosecution of the accused. This act is provided for in section 293 of the Administration of Criminal Justice Act (ACJA). The aforementioned section provides that: a suspect arrested for an offence which a magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate for remand.
The provision of the ACJA on holding charge as well as the provision of the constitution on fundamental human right as often come in question in the place of academically rhetorics between scholars of law, students of law and legal practitioners as well. With this in view, this article shall look to examine the concept of Holding charge as provided in the ACJA in relations to the constitution, and fully having in mind the supremacy clause of the Constitution as the ultimate law in section 1 of the CFRN, the validity of the provision of Holding charge in the ACJA.
INTRODUCTION
Fundamental rights are those rights which accrue to every citizen of a country and are provided for in the constitution. They are rights that deserves maximum protection from infringement, they have constitutional backing and are enforceable in court upon an actual breach or threat of breach. As a result of this, they are considered as being claims of their own distinct kind (sui generis) and thus enjoy distinct procedural rules and fast-tracked time frame for litigation. However, this looks more theoretical than practical. According to some authors, “the mere rules or paper are not sufficient to ensure maximum protection of fundamental rights; the judiciary, the executive and the citizenry must be held accountable and be the custodian of those rights provided for in the constitution”. The “right to personal liberty” is one of those rights and it is provided for in section 35 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) as amended. As discussed above, it is enforceable in court upon a breach. This article would be concentrating on the concept of “Holding Charge” as to whether or not it constitutes a breach of a person’s right to personal liberty as contained in the section 35 of the 1999 CFRN.
Holding Charge as defined by Blacks Law Dictionary is “a criminal charge of some minor offence filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charge”. Holding Charge and eventual detention or remand of an accused person forms part of the pre-trial stage of the Criminal Justice system. The concept “Holding Charge” have been widely defined, explained and criticized by both appellate courts and writers. In an interview granted to the Guardian Newspaper by Moyosore Onigbanjo SAN in January 2016, the learned silk opined that “the supreme court and several courts as in the past, where holding charge was operational, held that holding charge is unconstitutional and that there is nothing like holding charge. Thus, courts especially the magistrates courts and High courts were advised to stop holding people on holding charge.
The concept “holding charge” is defined as a charge brought by the police, law enforcement officers against an accused person before a lower court which has no jurisdiction to try such offence charged pending the receipt of legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court (court of competent jurisdiction). Most often, it has been observed that most law enforcement officers do not carry out investigation before arrest and detention of a suspect or accused. However, Nigerian courts have constantly declared this “arrest-before-investigation” rather than “investigation-before-arrest” (as done in civilized jurisprudence of the world) as anomalous, unconstitutional and illegal. This action has been seen to deprive the person of his right of personal liberty and as seen in the case of Ohize v. C.O.P, Per Akomolafe-wilson, J.C.A. emphasized the sanctity of a citizen’s personal liberty as follows; the constitutional right to personal liberty of a person is sacrosanct, even for an accused person.
Following the above, section 293 of the Administrative of Criminal Justice Act (ACJA) has been constantly criticized as unconstitutional and inconsistent with section 35 of the constitution as it seems to give support to the concept of ‘holding charge’and ‘pre-trial detention’. The section provides that a suspect arrested for an offence which a magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate for remand. The main issue to be examined in this section is that whether a magistrate court who has no jurisdiction to try the substantive case when it is ready, has the legal power to make remand order. Also, why would a case be brought before a court when it has no jurisdiction to try such case. Is such magistrate court “a court of competent jurisdiction” as envisaged in section 35(5)(a) of the constitution?. At this point, it is important to note that the jurisdiction of the each courts has been clearly specified and provided for in the constitution.
However, it is of note that the section 293 of the ACJA was designed to operate in the context of reasonable suspicion that the suspect has committed a criminal offence under section 35(1)(c) of the constitution and this ought to dance to the constitutional tune of both section 35(4) and (5)(a) which defined reasonable time in the context of the availability of a “court of competent jurisdiction”. Thus against section 293 of the ACJA, it is of utmost importance to consider the fact that the availability of “court of competent jurisdiction” within a radius of forty kilometer restricted the definition of “reasonable time” to a period of one day, but section 35(5)(b) allows for a longer period of two days or more in the circumstances as considered by the court to be reasonable, putting in mind that the liberty of a citizen is at stake.
Contrary to section 293 of the ACJA, where a magistrate court has no jurisdiction to try the substantive case when it is ready, it is not the “court of competent jurisdiction” being referred to in the constitution. As Basil Momudu Esq. puts it; where a court has no jurisdiction with respect to any matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. Thus, the court’s judicial power can only be exercised where it has the jurisdiction. See the case of F.R.N. v. Maishanu. However, even in a “court of competent jurisdiction”, pre-trial detention is not in order where there is no reasonable suspicion as it is a trite law that suspicion no matter how grave cannot grant a conviction. Also, as held in section35(4); a bail is meant to secure the release of a person arrested, detained or charged with the commission of a criminal offence in such a manner that will ensure he appears for trial at a later date. An accused is not meant to be detained ad infinitum.
Following the above, it could be inferred that where an accused is detained or arrested, such accused person should be brought before a competent court and tried within a reasonable period of time, thus, an accused person whom has been detained longer than the period specified for in the constitution would amount as a breach of his fundamental right. However, it is so sad that the provisions of the constitution have been deviated from as this is no longer the case in recent times. Many people detained are not even aware of their fundamental rights provided for in the constitution, they end up serving ‘years’ in detention before they are tried in court. No wonder, Nigerian prisons have more pre-trial detainees than those actually serving their sentence.
The case of Sikiru Alade v. F.R.N. is good example of holding charge, pre-trial detention and its consequences, a breach of fundamental rights. The case was tried in the ECOWAS Court of Justice, Suit No:ECW/CCJ/APP/05/11, where the court held that Alade’s detention for over almost ten years without trial or charge violated his rights under the African Charter of Human and People’s Rights. Although the concept of ‘holding charge’, pre-trial detention have been criticized by courts and writers, it is still practiced till date.
CONCLUSION
The concept of Holding charge and its provision in the Administration of Criminal Justice Act, s.293 is not a total aberration to the provision of the constitution, but must be entertained in the Nigerian Legal system with absolute caution so as not to hurt the citizens of our country. Its degree of inconsistency on the other hand of s.293 Administration of Criminal Justice Act, with the constitution, will only come to play on the ability of a court without jurisdiction to grant the holding charges as provided in the former. It is respectfully submitted, that a magistrate court without jurisdiction in the first place, should not be allowed to grant an holding charge on a criminal case which is outside its ambit. According to the Supreme court in the case of Madikolu v Nkedilim (1962) the court will only be properly constituted to adjudicate over a matter, where the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction by the court thereof, hence it is argued that the granting of a holding charge by a Magistrate court with no jurisdiction as to the substantive suit is an aberration.
Furthermore, the incarceration of a suspect through pre-trial detention should be done with caution, no matter its motive or notion, or else it will be totally inconsistent with the provisions of the constitution in section 35. Such detention must falls within the exceptions provided under s.35(1)(c) of presentation before a court of competent jurisdiction within a reasonable time and nothing less should be granted.
Also, the concept of holding charges could give undue advantage to a prosecutor with little diligence in his investigation, by granting him more time to investigate his “suspicion" which may span beyond a reasonable time, at the detriment of the remanded person whom according to section 36(5) of the CFRN is presumed innocent until proven guilty. It is therefore submitted, that the court should only grant the holding charge on conditions that satisfies section 35(1)(a-c).
