CONTINUED…
In the celebrated case of LUFADEJU Vs JOHNSON (2007) 8 NWLR PT 1037 P 535, the Supreme Court overturned the decision of the Court of Appeal and stated that the presiding Magistrate’s exercise of powers in remanding the Respondent could not be held to be a holding charge. Section 236 of the Criminal Procedure Laws of Lagos State 1994 inter alia came up for interpretation and the apex court found for the Appellant, stating that the actions of the Magistrate were in tandem with S. 236. Earlier at the Court of Appeal in JOHNSON Vs LUFADEJU (2002) 8 NWLR PT 768 P 192, the CA panel held the remand to be on holding charge and declared it unlawful thereby making order for the release of the Appellant there.
The euphoria that followed the CA decision was short-lived because of the apex court intervention. The euphoria was expected because of the menace which the holding charge practice had become.
Section 236(6) of the CPL Lagos State 1994 states, ‘If any person arrested for any indictable offence is brought before any Magistrate for remand, such Magistrate shall remand such person in custody or where applicable grant bail to him pending the arraignment of such person before the appropriate Court or tribunal for trial.’
With the reforms in the criminal justice administration system, the Administration of Criminal Justice law (ACJL) of Lagos State 2007 repealed and replaced the Criminal Procedure Law 1994. In 2015, the ACJL 2007 was repealed and reenacted. An amendment of this law came in 2021. At the Federal level, the Administration of Criminal Justice Act (ACJA) was passed into law in 2015.
On the issue of remand, Section 293 to 299 of the ACJA makes salient provisions. Section 296(1) – (7) outlines the time and protocol for remand proceedings. What stands out in the provisions is that remand of suspects who are charged with indictable offences cannot be made sine die; they cannot be kept indefinitely in custody pending when the DPP’s advice is received. The ACJA provides for a maximum period of three 14 day cycles after which the Magistrate must release the suspect if the State is not forth coming with the legal advice. A Magistrate has no discretion in the matter.
Similarly, the ACJL Lagos State has somewhat similar provisions. Section 264 provides for a two 30 day cycle and an additional grace for further extension of the remand order ostensibly for the same 30 days upon the Magistrate being satisfied that the DPP and Commissioner of Police by invitation via a hearing notice, have shown good cause why the further extension should be made. In the absence of such good cause, the Magistrate is obliged to release the suspect.
The defect that the ACJL and ACJA seek to cure is the indefinite remand of suspects who are charged on indictable offences. The CPL made provisions for remand but did not provide a window through which the suspects could obtain reprieve. Sadly, however this provision of the ACJL and ACJA empowering Magistrates to do the needful is not being explored. The result is the despicable situation whereby suspects are still remanded in prison custody on indictable offences awaiting DPP’s advice for years. A visit to the various custodial facilities would confirm this. Presently, we have three applications pending before various High Courts of Lagos State in which the fundamental rights of the applicants are being enforced. Some of the applicants have stayed for 10 years awaiting DPP’s advice. This is the shocking reality of our Criminal Justice system. The Holding Charge practice is still alive and kicking. It is a mammoth albatross on the neck of lady liberty and as long as this practice continues Nigeria will not be reckoned with in terms of values, ideals and principles of effective justice system.
The following are recommended;
First, a strict application of the provisions of the ACJA and ACJL by Presiding Magistrates in this context is apt. Where a law provides for a procedure for doing a thing, no other way will suffice. In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614) 334, 352 the Court of Appeal per Salami, JCA said, ‘It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.’ The practice whereby lay prosecutors apply and get adjournments indefinitely in remand cases is deplorable. Presiding Magistrates should apply the relevant provisions of the Act and various State laws in upholding the rights of the suspects which is the original intendment of the makers of the law. Pandering to the endless excuses of the DPP and the Police will further aggravate the situation. Legal provisions for reforms must be matched with the will power to execute same.
Second, the office of the DPP must work out ways to issue the legal advice and where applicable, file the information within the cycle provided by the relevant Sections of the law. If the makers of the law provide for a time frame for the doing of an act, it means the act is achievable within the said period. For instance, while acknowledging that the Lagos State Government has brought reforms in the office of its DPP, much more needs to be done considering the population, the rate of crime and even more, the horrible reputation of the Police. In this context, it takes about a year or more for a legal advice to be issued by the DPP. Many legal practitioners have had cause to deplore the delay. With the vast pool of human and financial resources at its disposal, Lagos State as well as other States could employ more lawyers to meet the ever increasing needs of justice. Alternatively, volunteer lawyers from the NGOs and academia could form a reserve pool of hands to handle case files and get the legal advice to be issued timeously. This recommendation may not be adopted unless the Magistrates begin to exercise their powers as already stated earlier and release the remanded suspects after the time provided for in the law.
Third, the Chief Judge can issue practice directions guiding this area of criminal justice specifically. The directions will contain specific guidelines in tandem with the provisions of the law. Presiding Magistrates would need to make weekly returns on cases of remand before their courts. The report will form a basis to assess the extent of conformity with the practice directions.
Fourth, the Police should on weekly periods make details of all persons arrested on indictable offences available to the key stakeholders in the justice system for easy monitoring. These include the DPP, the office of the State Chief Judge, the Administration of criminal justice monitoring committee, the Legal Aid Council and other participants in the system. In this regard, NGOs and CSOs come in key. With such massive pressure on the Police, instances where innocent persons are picked up and detained on trumped up indictable offences without any shred of evidence in the case file will be reduced drastically. Allied to this, administrative and other sanctions will have to be recommended to be meted to any Police officer who assists in the perversion of justice in the context of this discourse. The fact that no disciplinary actions are taken against the arresting and investigating officers who perpetrate this injustice has constantly emboldened the others to continue with the appalling act. Nothing could be more unconscionable than having an innocent person stay for 10 years awaiting DPP’s advice and the case file is nowhere to be found. Even more dreadful is the situation where after many years awaiting the advice, the advice says that the suspect has no case to answer because the evidence in the case file does not disclose an offence as per the charge he is remanded for.
Fifth, in the interim as an ad hoc measure, the State Chief Judge should convoke a stakeholders meeting and as a matter of urgency address the teeming suspects who are awaiting DPP’s advice in our custodial centers. Where the case files of suspects are not available, bail or outright release should be granted to these suspects without much ado. A cue should be taken from the approach adopted by a former Chief Judge of Lagos State, Hon Justice Ade Alabi (Rtd) in the decongestion of prisons during His Lordship’s tenure as the State Chief Judge. His Lordship approached the malaise with self-assurance and in collaboration with others, applied the full weight of his office in granting reprieve to the suspects awaiting DPP’s advice.
In concluding this first part, strident efforts should be made by all concerned to unshackle our criminal justice system and enable it trudge to its destination of true justice. William Scott Downey said, ‘Law without Justice is a wound without a cure.’