Administration of Criminal Justice in Nigeria (2) By Ebun-Olu Adegboruwa, Esq

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No doubt that fundamental innovations have been made to criminal justice administration in Nigeria, through the enactment of the Administration of Criminal Justice Act, ACJA 2015, there is however the need to harmonize many of its controversial sections with other extant legislations, especially the Constitution. In this regard, I will address the contentious issue of remand proceedings.

In the recent past, it became common to hear in police circles and in the premises of the Magistrate’s Court, that certain offences were not bailable, by which it is meant that once you are arrested for any offence that is punishable with death or the like, then the suspect is to rot in police or prison custody, until the prosecutor is ready and willing to commence his prosecution. Some of these offences include armed robbery, kidnapping, murder, treason, drug peddling, etc. The rationale for this policy of no bail for capital offences is that some suspects may be scared or intimidated by the prospect of any conviction and the chances are very high indeed that many of them may attempt to bolt away and avoid their due trials, since the maximum sentence of death could be imposed. So, in the end, even the criminals too are afraid to die.

The practice then was that once the police arrests any suspect for any capital offence, he is kept in police custody in perpetuity and if the family of the suspect should dare demand for his release, the police will then slam him with a holding charge and secure his remand in prison custody. It is called a “holding charge” because the suspect is being arraigned before a Magistrate’s Court that lacks the requisite jurisdiction to try the real offence. So, the temporary charge is meant to “hold” the suspect in prison custody, pending further investigation or advice from the office of the Director of Public Prosecution. Now indeed no one would wish that notorious and hardened armed robbers or kidnappers should be released arbitrarily, to go back to unleash greater terror on their victims and society at large. However, the main challenge is that the police and the authorities have been known to abuse the procedure of holding charge to punish innocent citizens. If husband and wife should have any issue between them, all that any of them needs to punish the other party is to approach the police for a holding charge against the adversary, and once that is done, you can be sure that he will remain in custody for at least one year.

It got to a worrisome point that even human rights activists were not spared in this regard. Indeed, the late Dr Kumolu Johnson was once arrested by the police during a protest and he was promptly arraigned before a Magistrate’s Court on a holding charge. Arguments went back and forth up to the Supreme Court, to challenge the procedure of his remand in prison custody. In the decision of the Court of Appeal on the matter, a new procedure was outlined for remand proceedings, which then gave some limited powers to the presiding Magistrate to review the facts of the case and take a decision in respect of whether or not to grant bail. It was then that the Lagos State Government, pioneered the reform in criminal justice administration by promulgating the Administration of Criminal Justice Law, containing specific provisions on remand proceedings. Human rights activists and some Bar leaders were still not satisfied with these innovations, and they kept pushing for further reforms, until the ACJA was promulgated in 2015.

Now, the thing driving remand proceedings is based on the express provisions of section 36 (4) of the 1999 Constitution which states as follows:

“36 (4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”

The conditions imposed by this mandatory statutory protection for the liberty of citizens, killed all forms of holding charges, as lawyers had argued forcefully in the past that a situation where a suspect is remanded in custody while awaiting the advice of the Director of Public Prosecutions for years, is unconstitutional. And then again, the ‘Court’ or ‘Tribunal’ anticipated in section 36 (4) supra is the competent court with appropriate jurisdiction to try the offence charged. The Magistrate’s Court not being a court of record listed in the Constitution, a holding charge in such a court for the purpose of securing a remand only, is still unconstitutional.

Sections 293 to 297 of ACJA has now outlined the procedure for remand as follows:

By section 293, a Magistrate Court can grant an ex-parte application for remand in respect of an offence for which it lacks jurisdiction to try, and by section 294, such remand can only be granted upon being satisfied that there is a probable cause, meaning that the offence is of a serious nature, the suspect has been involved in the commission of the offence, prima facie and there is reasonable ground for believing that the suspect may abscond or commit further offences if he is not remanded. By section 295, the Magistrate is empowered to grant bail to the suspect, after considering all the circumstances. Section 296 limits the period of remand to fourteen days in the first instance, renewable not more than twice and if after such final renewal there is no formal charge, the Magistrate must discharge the suspect to be released from custody and there shall be no further remand order thereafter.

A lot of controversies have trailed the remand procedure sanctioned by sections 293-297 of ACJA above. First, it is purely escapist and not addressing the real issue underlining the root cause of congestion in the prisons and the courts. As can be seen clearly, the government is struggling with these sections, just to pass the buck. A citizen should not be made to suffer on account of the inabilities and inadequacies of the government, for failure of criminal intelligence, for incapacity for forensic investigation and for lack of trained personnel to handle prosecution for serious offences. Second, the remand proceedings is a clear admission of failure of the criminal justice administration by the government, especially between the investigator and the prosecutor, in this case the police and the office of the Director of Public Prosecution. Third, the remand procedure of sections 293-297 of ACJA still run foul of section 36 (4) of the Constitution, in so far as a suspect is taken before any court that lacks the requisite jurisdiction to try him. No citizen should be made to suffer the consequence of failure of investigation or prosecution. That is double jeopardy!

It should still have been tolerable, should the remand proceedings be adopted to cure the real mischief for which it was intended, mainly as a stop gap for due investigation and eventual prosecution of capital offences. Sadly however, the prosecuting agencies now deploy remand proceedings even for simple offences and common felonies, especially for anti-corruption cases, for advance fee fraud cases and money laundering cases. In very bad cases, the police use remand proceedings for cases of breach of contract! It is my humble view that Magistrate’s Courts should decline all requests for remand outside the capital offences bracket. Now I sympathize with the anti-corruption agencies in this regard. As things are presently, we must find a way to create a distinction that can develop specific legal principles for the prosecution of the anti-corruption cases, whilst emphasizing their non-applicability to other cases, so that law can be deployed in aid of the anti-corruption campaign.

Until our statute books are altered to prescribe the death penalty for corruption cases, we cannot validly import specific remand proceedings meant to address capital offences to tackle money laundering cases punishable with two years imprisonment upon due trial and conviction, whereas the suspect would have spent beyond the period of sentence in custody, under the regime of remand proceedings. The logic in times past, for even considering the remand proceedings for capital offences, were anchored on two fundamental points. First, the suspect may likely escape from custody, given the enormity of the offence. Second, a suspect that may be sentenced to death upon conviction, should not be heard to complain only that he has been remanded for forty-two days maximum period, to allow some synergy between the police and the ministry of justice. Thus, there is no possible world by which we can extend these principles to common felonies of money laundering or corruption, no matter the amount involved. As we currently have it in the anti-corruption cases, it is the investigator that is also the prosecutor, unlike the case of the regular police, where the law requires that the case file should be remitted to the office of the Director of Public Prosecution for his advice, prior to any prosecution. Whether for capital offences or anti-corruption cases, there is no basis for remanding a suspect, when the prosecutor is not ready for his trial.

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