An Analysis of the Jurisprudential Raison D’être of a Remand Order Vis-À-Vis the Right to Personal Liberty in Nigeria

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 By Damilola Obanijesu Oyawole

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 court for remand.[1]

INTRODUCTION

The above pericope from the Administration of Criminal Justice Act 2015 (hereinafter to be referred to as ‘ACJA’) has precipitated a bevy of controversies. The sections (SS. 293-299) have been tagged a smokescreen as they presumptuously create a holding charge which has been declared by the highest Courts of the land an anathema to our laws. More so, the sections seem to be an affront to the venerable and hallowed fundamental human rights enshrined in the Constitution of the Federal Republic of Nigeria (hereinafter to be referred to as ‘the Constitution’), to wit: the right to personal liberty, as they ostensibly promote pre-charge detention. Premised on the foregoing, this article seeks to address these less certain penumbras of the provisions of the ACJA, distinguish between a ‘holding charge’ and a ‘remand order’, take a cursory look at the legality of pre-charge detention in some countries, viz. the United Kingdom, the United States of America, and Australia, and examine the legality vel non of a remand order vis-à-vis the right to personal liberty as enshrined in the Constitution.

A CONSPECTUS ON THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

Before delving into the crux of this article, it is important to note in incisive terms that, the Administration of Criminal Justice Act was enacted to ensure the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim[2] (Emphasis Mine).

It therefore follows that, the Act, which is a law by the National Assembly, seeks to maintain law and order in the society as envisaged in the provision of section 4(2) of the Constitution. Its main purpose is to ensure that there’s an effective system in place for the administration of criminal justice.

DISTINGUISHING BETWEEN A ‘HOLDING CHARGE’ AND A ‘REMAND ORDER’

A holding charge and a remand order are prima facie akin, but they are not coterminous as there exists a fine line between both.

The term ‘holding charge’ is defined by the Black’s Law Dictionary 8th Edition, as “a criminal charge of some minor offences filed to keep the accused in custody while the prosecutor takes time to build a bigger case and prepare a more serious offence.”

From the foregoing, it is limpid that a holding charge is usually filed malafide in other to keep the accused/suspect in custody for a minor offence whilst the police conduct a solid investigation to support a main charge.

The Lawyers’ League for Human Rights, in its publication titled ‘Criminal Justice System in Nigeria: The Imperative of Plea Bargaining,’ also holds the view that holding charge has no statutory foundation in Nigeria’s penal legislation, and explains the concept as a “term used by the legal community in Nigeria to describe a criminal charge that is filed against an accused person by the police before a magistrate court that ostensibly has no statutory power to try the offence charged, but makes an order remanding the person charged in prison custody pending conclusion of investigation or the arraignment of the person in the high court, upon information being filed by the Attorney General.”

A holding charge has been declared by the Courts of the land to be completely illegal, unconstitutional, otiose and of no effect whatsoever in a retinue of cases. See OGOR v KOLAWOLE (1985) 6 NCLR 534 at 539; EYU v THE STATE (1988) 2 NWLR (Pt. 78) 602 at 608; ENWERE v C.O.P (1993) 4 NWLR (Pt.229) 333; ANAEKWE v C.O.P (1996) 3 NWLR 9Pt. 436) 320 at 332; JOHNSON v LUFADEJU (2002) 8 NWLR (Pt. 768) 192 at 217; AGUNDI v C.O.P (2013) ALL FWLR (Pt 660) 1243; SHAGARI v C.O.P (2005) 3 Q.C.C.R, (P. 17 at 36), per Sanusi, JCA

However, a remand order is quite different. It is made to detain a person who has been charged with a crime until trial; such person may be remanded until conviction or acquittal – this is applicable in capital offences. The provisions backing up a remand order are provided for in the Administration of Criminal Justice Act which deals, totally, with the system of administration of criminal justice in Nigeria.

The Supreme Court of Nigeria in Lufadeju v Johnson (2007) 8 NWLR (Pt 1037) P. 562 paras. F-G, defined remand to mean: ‘…To send to prison or send back to prison from a court of law to be tried later after further inquires have been made; often is the phrase “remanded in custody”. It also means to re-commit, on trial, the accused to custody after a preliminary examination.’

A remand order, provided for in the Administration of Criminal Justice Act, seems to be in line with the provision of section 35 (1) of the Constitution, and is designed to aid administration of criminal justice in the country. However, more on that later.

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THE LEGALITY OF PRE-CHARGE DETENTION IN SOME COUNTRIES

THE UNITED KINGDOM

By the provision of section 41(1) of the Police and Criminal Evidence Act of 1984 (PACE), the police is empowered to detain an individual for up to a maximum 24 hours, after which a decision has to be made to either charge to court or release such an individual. However, under section 42(1) of PACE, the 24 hour detention may be extended to a maximum of 36 hours if the police have ‘reasonable grounds’ to believe that the continuous detention of such person is necessary to secure or preserve evidence; that the offence in question is an indictable one and the investigation is being conducted diligently and expeditiously. Any further detention, up to a maximum of 72 hours may only be authorised by a Magistrate, after an application to the Court by the police.

However, schedule 8 of the Terrorism Act 2000 governs the pre-charge detention of those arrested on suspicion of being a terrorist.[3] Legal limitations on the period of time a terrorist suspect can be detained prior to charge run from the time of arrest.[4] After 48 hours, a judicial warrant is required to keep a suspect in detention without charge.[5] A judge can only issue a warrant if satisfied that there are reasonable grounds to believe that (a) it is necessary, inter alia, to obtain or preserve relevant evidence and (b) that the investigation is being conducted diligently and expeditiously.[6] The first judicial warrant would normally authorise detention for up to a maximum of seven days.[7] Further judicial warrants may then be issued, each extending the period by up to seven days. Warrants authorising detention beyond 14 days can only be made by a senior judge. A judicial warrant may not authorise detention for more than 28 days from the time of arrest, meaning that at this point a suspect must be either charged or released.[8] This puts the maximum period of pre-charge detention in terrorism cases at 28 days, and four days for criminal offences unrelated to terrorism.[9]

THE UNITED STATES OF AMERICA

In County of Riverside v. McLaughlin[10], the Court determined that detention, without a specific charge on the basis of probable cause, was constitutionally permissible for less than 48 hours.[11] Thus, a judicial charge on the basis of probable cause within 48 hours of arrest would not constitute an “unreasonable” seizure period under the Fourth Amendment to the Constitution.[12] The U.S. Supreme Court has held that the Fourth Amendment to the Constitution imposes certain limits on the detention of persons prior to a formal charge.[13]

Under U.S. Federal law the maximum period of pre-charge detention for criminal suspects, including those suspected of committing terrorist offences, is 48 hours.

AUSTRALIA

In Australia, a person arrested for a terrorism offence cannot be detained for more than four hours from the time of arrest for the purpose of investigating whether the person committed that offence, or another terrorism offence the investigating official reasonably suspects the person to have committed.[14] The detainee must be released within the period or brought before a judicial officer.

In terrorism cases, the pre-charge detention period can be extended a number of times to a total of 24 hours on application by the investigating official to a judicial officer, normally a magistrate.[15] The limit is 12 hours for other serious offences.[16]

The laws of Australia also provide for dead time. ‘Dead time’ is not included in the periods referred to above. Accordingly, dead time can allow a person to be detained longer than 24 hours but the total amount of time spent questioning the person cannot be longer than 24 hours.[17] There is no statutory cap on the maximum amount of ‘dead time’ that can be authorised. Such ‘dead time’ includes for medical attention, because the detainee is intoxicated or to allow reasonable time for detainee to rest or recuperate; for applying for extensions of questioning time; for an ID parade, etc.

The first and only case in which an extended period of dead time was authorised by a magistrate it led to a person being detained for a total of 12 days without charge.[18] This is considered to be the maximum period of pre-charge detention that would, in practice, be allowed in Australia.

In addition, the Australian Federal Police may obtain a ‘preventative detention order’ to substantially assist in preventing an imminent terrorist attack or to preserve related evidence after a terrorist attack. This allows preventative detention for an initial period of 24 hours, extendable by a further 24 hours.

THE LEGALITY VEL NON OF A REMAND ORDER VIS-À-VIS THE RIGHT TO PERSONAL LIBERTY

The legal enclave has been inundated with arguments reconciling the provisions of the Administration of Criminal Justice Act with that of the Constitution. Arguments have also been advanced that the provisions of ACJA clearly countermand the provisions of the Constitution, and should, therefore, be declared null and void to the extent of its inconsistency. I intend to carry out a detailed analysis of both provisions.

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The provision of section 35(1) of the Constitution is diaphanous and beyond peradventure. For ease of reference, I should allow myself reproduce the section hereunder:

‘Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some case and in accordance with a procedure permitted by law, as outlined in 1(a) to (f)’

From the above pericope, it is clear that every person is entitled to personal liberty. Such liberty is sacrosanct and can only be encroached upon in some cases which are in accordance with a procedure permitted by law. As we shall soon come to see, remanding a person has its procedure which is permitted by sections 293-299 of the ACJA. See OHIZE v C.O.P (2014) LPELR — 23012, per Akomolafe-Wilson, JCA; LUFADEJU v JOHNSON (SUPRA), per Muktar, JSC (as she then was).

However, section 35(1) (c) provides that for the purpose of bringing a person before a court, in execution of the order of a court or upon reasonable suspicion of that person having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence, his personal liberty may be deprived. Furthermore, section 35(4) provides that any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –

  • two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
  • three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

‘A reasonable time’ is defined in S.35(5) to mean:

  • in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
  • in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable. (Emphasis Mine)

From the foregoing, precisely section 35(1) (c), a person’s right to personal liberty can be deprived wherein he is suspected to have committed a criminal offence or to prevent his committing a criminal offence. However, when arrested or detained by the police, it is expected that he be brought before a court of law within a ‘reasonable time.’ The reason for bringing him before a court of law is a bit ambiguous as it could be for arraignment, which is the substratum of a trial, or for obtaining a legal basis to deprive him of his right to personal liberty. If the case is the latter, then it necessary that whilst further investigation is being conducted, due process of law for depriving a person of his right to personal liberty should be followed. Usually though not invariably, investigation surpasses the ‘reasonable time’ which is two days, and for this reason the Constitution provides that such person, whilst investigation is ongoing must not be kept in custody for more than two months in the case of a person who is not entitled to bail – this is most likely applicable in capital offences, and in the event where he has been released on bail, a period of three months from the date of his arrest or detention.

Dovetailing these with the provision of the ACJA, to wit: section 293 which states thus:

‘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 court for remand.’

From the provision of section 293 of the ACJA, a suspect arrested shall within a reasonable time of arrest be brought before a court of law (namely a magistrate court) for remand. We would recall that the provisions of the Constitution provide that an arrested or detained person be brought before a court of law within a reasonable time, either for trial or remand, as section 35 (4) provides, ‘…and if he is not tried…,’ this clearly shows that a person/suspect may be brought before a court of law not to be tried but to obtain a remand order. The ACJA being a specific statute goes further to provide and dilate on one of the ways due process of the law should be followed, that is, an application for a remand be made ex parte, certain things may be taken into consideration when considering if ‘probable cause’ to remand has been shown, the remand shall be for 14 days and may be extended for another 14 days if ‘good cause’ is shown. Where at the expiration of the 28 days, the suspect is still in custody, the law provides that a hearing notice be issued by the Court to any relevant authority in whose custody the suspect is, and the matter can only be adjourned within a stint of 14 days and not exceeding such. Sections 296 (1), (2), (4). Section 296 (5) provides that pursuant to the hearing notice, such relevant authority may show good cause as to why the remand order should be extended for a further 14 days, finally, if need be.

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It must be noted, however, that after the expiration of the stint of 28 days, the court may, on application of the suspect, grant bail. Section 296 (3).

It is submitted that the Administration of Criminal Justice Act has made a remand order legal as it can now be subsumed under a due process permitted by law.

More so, the Constitution provides for the extent of a detention to be: a maximum period of 2 or 3 months as the case may be, colligating this with the provisions of section 296 of the ACJA, having in mind the sum total/maximum number of days allowed for a remand, to wit: 42 days, that is, a period of 14 days at first, another 14 days if ‘good cause’ is shown, and a further 14 days upon the request of the Inspector-General of Police or the Commissioner of Police and the Attorney-General of the Federation, consequent upon the issuance of a hearing notice by the Court (the period allowed for adjourning the matter when a hearing notice is made is hereby excluded), shows that the provisions of the ACJA are ad idem/interlock with that of the Supreme law of the land.

PERORATION

A remand order, sadly, has become indispensable as it is needed to ensure that the detention of criminal suspects, which are not immediately tried because proper investigation is still ongoing, is done according to due process of law.

The tardy grinding of the wheels of justice seems to be the quagmire beleaguering the system as suspects spend time awaiting trial. This can only be dealt with by, putting in place, mechanisms needed for ensuring speedy trials.[19]

It is also important to note that it is banal principle that the Courts have no jurisdiction to question the law making power of the National Assembly and the House of Assembly of States (the Legislature). This is because the power to make laws is vested in them by dint of section 4 of the Constitution, and the Courts cannot by or through the common law divest them of such.[20] However, where a statute or any provision(s) of a statute enacted is in breach of the Constitution, the Courts must step in to declare such statute or provision(s) of such statute otiose.

Damilola is an undergraduate law student of the University of Ilorin. He has a panache for Legal Research, Litigation, Intellectual Property, Cyber Security, Property Law, and Arbitration. He can be reached via obanijesudamil@gmail.com

REFERENCE 

[1] Section 293(1) of the Administration of Criminal Justice Act 2015.

[2] ACJA, S.1(1).

[3] As amended by the Terrorism Act 2006.

[4] Terrorism Act, S.41(3) and Schedule 8, para 36(3B). The police have the power to arrest anyone they suspect of being a terrorist without a judicial warrant (TA, S.41).

[5] TA, S.41(3).

[6] TA, Schedule 8, para 32.

[7] TA, Schedule 8, para 29(3).

[8]TA, Schedule 8, para 36(3)(b)(ii).

[9] Section 44 of the Police and Criminal Evidence Act 1984.

[10] 500 U.S. 44 (1991).

[11] Ibid at 56.

[12] Ibid.

[13] See Gerstein v. Pugh, 420 U.S. 103, 125 (holding that States “must provide a fair and reliable determination of probable cause as a condition for any significant pre-trial restraint of liberty…by a judicial officer either before or promptly after arrest.”).

[14] S.23CA Crimes Act 1914.

[15] S.23DA Crimes Act 1914.

[16] S.23D Crimes Act 1914.

[17] S.23CA Crimes Act 1914.

[18] Dr Haneef was arrested on 2 July 2007 in connection with the failed bomb attacks in the UK. He was charged 12 days later with supporting a terrorist organisation but the Director of Public Prosecutions withdrew the charges on 27 July 2007 because there was insufficient evidence to establish the elements of the offence.

[19] Oti, I. C., 2016, 80 Percent of the Inmates in Nigeria Prisons have not even been tried in Court; Ayade, E. A., 2010, Problems of Prisons Overcrowding in Nigeria: Some lessons from South Africa and America. LLM, Human Rights, Unpublished Thesis, Central European University, Legal Studies Department, Budapest, Hungary.

[20] Ngozi Efobi and Naomi Ekop, Legal Systems in Nigeria: Overview, available at:https://uk.practicallaw.thomsonreuters.com/w-018-0292?transitionType=Default&contextData=(sc.Default)&firstPage=true

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