HomeContemporary Legal issuesViolation of the Constitution by Security Agencies in Remand Proceedings in Lagos...

Violation of the Constitution by Security Agencies in Remand Proceedings in Lagos State: An Examination of the Role of Magistrates as Enablers

By Elvis Evbaruovbokhanre Asia

Introduction

The detention of suspects using remand orders by security agencies in Nigeria appears to have taken a dangerous curve in recent times. Security agents, acting under influences other than law enforcement, have continued to subvert the law by violating constitutionally guarantee rights of suspect through surreptitiously obtained remand orders. Today, anyone with influence, money and power can engineer the procurement of remand orders against his/her enemies.  What is sadder however is the role of Magistrates in this grave constitutional violation.

Copious academic and judicial ink has been dissipated on the legality or otherwise of remand proceedings. From whatever lens one looks at the subject however, remand proceedings as presently conducted in Magistrates’ courts in Lagos is inconsistent with the Administration of Criminal Justice Law (ACJL) of Lagos State, 2011 as amended[1] and is in clear violation of the fundamental rights to fair hearing and liberty as guaranteed by the Constitution. The practice questions our training in the interpretation and application of the law and the Constitution as lawyers and judges. What is clear is that despite a fairly straight forward legal framework for striking the balance between the rights of citizens and the power of the security agencies to investigate and prosecute alleged offenders, Magistrates appear to have allowed traditional and sentimental considerations in remand proceedings to influence their decisions and thus aid the police in gross abuse of the rights of citizens.

This article examines the practice of remand proceedings in Lagos and postulates that the entire process aids the gross violation of the ACJL on the one hand and the Constitution on the other and therefore should be reviewed.

Administration of Criminal Justice Law and Remand Proceedings in Lagos

The ACJL is the codification of the practice of remand in Lagos state. The Constitutionality of the law is a subject for another day but what is clear is that the law is largely a departure from the old system and genuine attempts have been made to ensure remand proceedings accords reasonably with the dictates of the Constitution.

By virtue of section 264, for a person to be validly remanded, the following circumstances must apply:

  1. The offence for which the person is arrested must be triable on information, i.e., the offence must attract more than two years sentence and the fine must exceed N50, 000 or punishment must be by death[2]. This simply means that the legislators intended remand proceedings to apply only to serious offences.
  2. The application for remand must have been done within a reasonable time of arrest. A reasonable time is not defined by the law; however, it is safe to say that the lawmakers had in mind  the reasonable time provided for in the Constitution which is 1 day or 2 days where the Magistrate Court is far away[3].
  3. Probable cause for the arrest must be shown.[4]This must be proved satisfactorily by the Prosecutor.
  4. The Magistrate must have examined the entire circumstances of the arrest including the nature of the offence, consider the conduct, personality and social circumstances of the person arrested as well as the reasons for the arrest[5].

It is interesting to note that the law gives Magistrates the power to grant bail in the course of consideration of a remand where it has powers to do so. The provision on bail is couched in mandatory terms such that where the offence for which remand is sought is a bailable one, Magistrates are under obligation to grant bail[6]. This is very important in view of the routine way remand applications are considered by Magistrates in Lagos as highlighted below.

A cursory review of the law shows that Magistrates are supposed to be referees with enormous powers to ensure compliance with the constitution in remand proceedings. This much was said by the Court of Appeal in relation to the interpretation of a similar provision of the Administration of Criminal Justice Act in Yenge v. Ag Federation[7] where the court held that the law gives Magistrates powers to ensure compliance with sections 35 and 36 of the Constitution. Unfortunately, Magistrates seems to have abandoned their role in the process thereby aiding the violation of the law and the Constitution.

The Practice of Remand Proceedings in Lagos and Instances of Violation of the ACJL and the Constitution

Nicodemus remand orders

In practice, the police and other security agencies approach Magistrates secretly to grant remand orders. The applications are usually routine and there is a practice called ‘overnight cases’ where these applications are brought and considered without the suspect knowing where they are or even given an opportunity to hire a lawyer for their defence. In fact, from experience, even when the Police and other securities agencies are aware that the suspect is represented by counsel, they will refuse to disclose the proceeding to the lawyers. The Security agents are able to get away with this practice only due to the gross disregard by the Magistrates of the Constitution and the ACJL provisions aimed at safeguarding fundamental human rights of suspects.

Breach of fair hearing.

A common feature of remand proceedings is that the suspect is not heard before the order is made. The Magistrates simply look at what the police have filed and 99.9% of the time grants it without affording the suspect the right to be heard. It is submitted that whatever the nature of a process is and irrespective of the ACJL, where the liberty of a person may be deprived for 30 days or more in any proceeding, the person affected is entitled to be heard before the order is made. The grant of remand orders without a hearing from the suspects is a violation of the natural and Constitutional right to fair hearing. The Constitution provides that a person must be brought before a court of competent jurisdiction within the defined reasonable time. It is inconceivable that constitution could have intended that this Hearing should be ex parte.

Failure to consider the circumstances of arrest

What is common in practice in Lagos is that people are arrested for days, weeks and even months without being taken to the court. The moment a lawyer gets involved, the police rushes to the Magistrate to obtain a remand order.

Section 35 of the Constitution[8] provides that a person arrested must be brought before a court of law within a day or 2 depending on the distance to the nearest court. The ACJL clearly attempted to reflect this constitution mandate when in Section 264 (1); it provides clearly that for the Magistrate to order remand, the application must have been filed within a reasonable time of arrest. This places an obligation on the Magistrate to find out the date of the arrest and order that the date of arrest must be stated in an affidavit in support of the application. It is submitted that no Magistrate in Lagos has the power to order remand where the application was filed outside the constitutionally mandated period of one (1) day. This is because it is very doubtful whether any security agency can claim that they are unable to access a court in Lagos for more than 24 hours[9]. The court should never rubber stamp a gross violation of the constitution in the name of granting remand orders. Once, the suspect was not brought to court within the stipulated time, remand application should never be granted. In such circumstances, bail should be automatically granted.

Another circumstance to be considered is the nature of the punishment for the offence for which a person is alleged to have committed. A situation where the police secure remand over simple offences and in some cases, over civil disputes disguised as criminal offences at the instance of complainants is an eyesore to criminal justice delivery in Lagos and Nigeria. There is a high rise in cases where the police are ‘mobilised’ to secure remand orders for up to thirty (30) days just to punish the suspect or to compel him/her to settle contractual disputes. This is made possible because Magistrates thinks ordering remand is as a matter of course or an administrative duty.

Routine grant and lack of consideration of probable cause

From a combined reading of section 264 of the ACJL outlined above, it is clear that Magistrates are given a serious legal duty and obligation to mandatory scrutinize the application for remand and consider the entire circumstances before granting the order. Unfortunately and for whatever reason, Magistrates simply grant the order as if it is a mere administrative requirement. No serious thought is given to the application and relevant questions are not asked. In one case, the Magistrate was urged to consider the application in the light of the powers vested in it by the law but the strange response was that her duty was just to grant the order and there was nothing she could do. This was very shocking considering the clear letters of the law and the ultimate duty to uphold the constitution of the Federal Republic of Nigeria. It is not enough for the police to simply request for remand orders; they must justify it by ensuring that due process was followed in the arrest and bringing of the suspect to court within the specified time and by proving the existence of a probable cause.

Failure to grant bail

Section 264 (5) provides that where applicable, the Magistrate ‘shall’ grant bail to any person brought for remand pending arraignment. The practice of remand in Lagos hardly pays attention to this provision. A careful reading of the provision suggests that bail is mandatory unless in cases where Magistrates have no power to grant bail.  Bail should therefore be granted by default on terms and conditions sufficient to guarantee investigation unless the Prosecutor is able to establish exceptional circumstances for refusal.

Unreasonable delays

Under the ACJL, remand orders should not exceed 30 days unless good reason is shown for an extension of not more than one month[10] after the expiration of the initial thirty (30) days. These timelines are the maximum periods and not the default time as is the current practice. It is contended that remand orders should be for shorter periods unless for capital or other serious offences where the prosecutors are able to demonstrate the need for extension. This is because, as noted infra, remand or no remand, every person has a constitutional right to be tried in a competent court of jurisdiction within a limited timeframe under the constitution. Magistrates must be careful in determining the duration of remand orders because it may extend beyond the period guaranteed by the Constitution.

Beyond the fact that Magistrates routinely grant thirty (30) days in the first instance, remand proceedings can takes months due to high incidents of court not sitting on adjourned dates or the perennial failure to send duplicate files to the DPP for advice[11]. Imagine a Magistrate who fails to sit on two adjourned dates consecutively, which is in fact common, which would already take the period of remand beyond the contemplation of the ACJL and the Constitution as Magistrates generally adjourn for an average period of one month or more. The period can extend to years where a suspect is unrepresented by counsel or where the registrar is not ‘encouraged’ by the remanded person to transfer the duplicate file to the DPP[12]. This is contrary to the Constitution which contemplates that a person arrested for any offence should be tried within a period of two or three months from the date of arrest or detention[13]. This constitutional period cannot be exceeded under any guise[14]. In MUSA v. C.O.P. JIGAWA STATE[15], the Court of Appeal described as cruel and scandalous a remand proceeding which kept the Appellant in custody for over two years.

The way forward/Conclusion

We currently have a system that allows a disgruntled creditor, business partner or a land grabber to obtain a remand order for thirty (30) days using security agencies as a tool of harassment and intimidation. This needs to be urgently addressed in protection of the fundamental human right to liberty and fair hearing.

The constitution is the ultimate law in Nigeria and ought to be the guiding light in the interpretation of other laws and the conduct of any proceeding by the court. In view of the constitutional right to liberty and fair hearing, the duty of a Magistrate in remand proceedings under the ACJL is a serious obligation which should not be taken lightly but with great circumspection. As noted by the Court of Appeal in Oguji V. Divisional Police Officer C/O Ojo Police Station, Ojo, Lagos State &Ors[16] the personal liberty of an individual is a commodity of an inherently high value and the deprivation is not to be unwittingly trivialized. The way and manner Magistrates conduct remand proceedings trivializes the right to personal liberty and fair hearing and makes mockery of the fundamental rights of citizens. Sadly, it is also inconsistent with the ACJL which tries to ensure compliance with the Constitution[17].

It is hoped that the issues raised will be considered by the Lagos State Judiciary and by extension, the entire country. I have had course to write the Chief Judge of Lagos state on some of these issues with a view to emphasizing the need for training and retraining of Magistrates to protect the ACJL and constitution. I have also taken up these issues with at least three Magistrates in cases involving my clients but the response has always been a case of old habits die hard. Let us review this practice as part of the process of building a sane country.


Elvis is Legal Practitioner, Lagos
elvis.easia@gmail.com
09017163850


Footnotes

[1] See also sections 293 to 299 of the Administration of Criminal Justice Act, 2015

[2] See section 264 (1) & (10)ACJL

[3] See section 264  (1) ACJL and Section 35 (5) of the 1999 Constitution as amended

[4] See section 264 (2)

[5] See section 264 (3) & (4)

[6] See section 264 (

[7] (2021) LPELR-56423(CA)

[8] See section 35 (5) of the 1999 Constitution as amended

[9] See Mbaeyi V. Efcc&Ors (2022) LPELR-57515(CA)

[10] See section 264 (6)

[11] See Ag Lagos State V. Hassan (2016) LPELR-40160(CA)  and Ag Lagos State V. Keita (2016) LPELR-40163(CA) where some of the issues arising from the failure to notify the DPP were considered.

[12] In A.G OF LAGOS STATE v. SANNI & ANOR (2022) LPELR-59000(CA), the 1st Respondent was on remand for over 12 years

[13] See section 35 (4) of the 1999 Constitution as amended.

[14] See Mohammed v. State (2015) 10 NWLR (pt. 1468) 496 at 512 and MUSA v. C.O.P. JIGAWA STATE (2023) LPELR-60504(CA)

[15] (2023) LPELR-60504(CA)

[16] (2021) LPELR-56044(CA),

[17] See A.G OF LAGOS STATE v. SANNI & ANOR (supra)

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