Systemic Violation of the Fundamental Rights of Persons Awaiting Trial and the Evils of the Holding Charge Doctrine Under Nigerian Laws.

Like other accused persons, those who are held in prison custody while awaiting their trial are presumed innocent until the contrary is proved. By virtue of the 1999 constitution of the Federal Republic of Nigeria (As amended), awaiting trial persons (ATPs) are entitled to enjoy other fundamental rights apart from the rights to personal liberty and freedom of movement. Since awaiting trial persons are usually not allowed the same level of freedom and care accorded to a convict within the walls of the prison, they usually face a “necessary evil” while they await the hearing and conclusion of their trial. One of the roots of the evil is well captured in a statement credited to Mr. Chuks Afujie, the Assistant Comptroller General in charge of Social Welfare who purportedly stated during an interview that “awaiting trial persons are not seen as the prison service’s responsibility [thus] they are not usually allowed to participate in training programmes”. We cannot therefore deny the fact that the act of locking persons awaiting trial behind the bar is a systemic violation of their rights.

Some of the statutory rights and duties of prison inmates are spelt out in the Nigerian Prisons and Correctional Service Act and recent records attest to the fact that the prisons in Nigeria are getting better in terms of reformation through skill acquisition programmes, flexible education for inmates, and provision of recreational facilities. Unfortunately, the position of awaiting trial persons is not well clarified in the Act. This is in contradiction with the United Nations Standard Minimum Rules for the Treatment of Inmates (particularly the rules dealing with awaiting trial persons- see subheading “C” under Part II)

Having not been tried or convicted, awaiting trial persons are not supposed to be kept with convicted prisoners. It is perhaps in appreciation of this fact that the Administration of Justice Commission Act established the Administration of Justice Commission to among other functions … make sure that persons awaiting trial are as far as possible, not detained in prison custody. The reality is however otherwise as they are sometimes kept in the same compartment or at close range with convicts.

It has also been established that awaiting trial persons constitute the majority population in the Nigeria prisons. During a recent visit to Kirikiri maximum prison in Lagos, it was revealed that some of the inmates are still awaiting DPP’s advice and have practically been forgotten in closed bar; they cannot participate in activities which a convict partakes in and have little or no entitlement to the welfare packages (especially food) in the prison. Another case study is Kuje Prison in Abuja where some of the awaiting trial persons include Boko Haram suspects who are still awaiting their trial since 2012. It may therefore be inferred that Government’s desire to restrict the movement of suspects during investigation, plus the statutory audacity conferred on Magistrate/ Area courts to commit accused persons who have been charged with capital offences to prison pending their trial are the root causes of the population menace. 

The latter reason stated above has actually birth a new form of injustice known as “Holding charge doctrine” by which awaiting trial persons are kept in prison pending the final determination of police investigation and DPP’s advice, or arraignment before a court of competent jurisdiction. The former Chief Justice of Nigeria, Justice Dahiru Musdapher (Rtd.) must have observed in quietness the plight of some of the victims of holding charges in his address at the opening ceremony of the fifth annual general conference of the Nigerian Bar Association when he said “as often, in the case when he (awaiting trial person) is set free because he has no case, he goes home in shame, a damaged man, without apology, (and) without compensation”. Does it end at the point? I do not think so because Magistrates being unmindful that such persons need a rehabilitation plan to fit back into the society usually fail to make a consequential order on their rehabilitation, which is one of the reasons for the increase in the rate of crimes in the society.

The doctrine of “holding charge” emanated in a bid to evade Section 34 (4) of the 1999 Constitution which provides inter alia that “Any person who is arrested or detained… shall be brought before a court of law within a reasonable time” 

The constitution goes further to provide in subsection 5 that “… the expression “a reasonable time” means-… in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and … in any other case, a period of two days or such longer period as in circumstances may be considered by the court to be reasonable.”

Arising from the above constitutional provision, and due to the fact that magistrate courts are courts of summary trials, such suspects are paraded before the Magistrate who does not have the jurisdiction to try or grant bail to the suspects charged for felony, but assumes the jurisdiction to hold that the suspects be remanded pending the conclusion of police investigation, D.P.P’s advice, or proper arraignment before a court of competent jurisdiction.

The evil that holding charge portrays is enormous, and with the greatest sense of humility to their Lordships, it is so disheartening that the Supreme Court has upheld the validity of the holding charge practice in the case of Lufadeju & Anor. V. Johnson (2007) 3 S.C. (Pt. 11) 134. In that case, their Lordships pronounced on the holding charge as practiced under section 236 (6) of the Lagos state Criminal Procedure Rules as being legal and complementary to the provisions of section 32 0f the 1979 constitution (now Section 35 of the 1999 Constitution). Although there are other cases where the practice of holding charge has been declared illegal (for instance Ogor & anor. v Kolawole (1983) 1 NCR 342, Akokhia v COP Lagos (1984) 5 NCLR 836), the decision in Lufadeju’s case seems to be the present law in Nigeria on this subject matter. We may therefore not be able to shy away from the need for a reform in our criminal jurisprudence so as to remedy the blatant disregard for the fundamental rights of awaiting trial persons in Nigerian prisons.

In an unassuming manner, and with the greatest sense of respect to their Lordships, the practice by which accused persons are put behind bars when on the face of the charge, there is nothing connecting them with the offence amounts to injustice. What does the Magistrate do when a holding charge is brought before him/her? He/she merely ascertains whether a charge has been drawn or not. At the Magistrate’s discretion, he/she may or may not even look into the substance of the charge, neither may the Magistrate deem it appropriate to find out what the nexus is between the suspect and the alleged crime- not because he/she does not want to know, but because it will amount to a futile exercise to commence the journey of advocacy which is destined to capsize due to lack of jurisdiction. One may therefore ask- if a law (as in this case) empowers an authority to suspend a person’s right to liberty, does it not by necessity impose an additional burden on that authority to follow up on its order (s) so that the right to fair hearing is not denied the remanded person? To this extent, it is only plausible that where a court assumes jurisdiction to remand an accused person, it should of necessity have a consequential and an inherent jurisdiction to follow up on the progress of police investigation so that its order is not subject to abuse to do injustice and trample on the rights of persons.

The plight of awaiting trial persons is a global one, except that it features at different levels in different countries depending on the level of development and the crimes rate.

At the Eighth UN Congress on the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), the congress adopted some rules in a bid to remedy the plights of awaiting trial persons in detention.

The International Covenant on Civil and Political Rights provides that it shall not be the general rule that persons awaiting trial shall be detained in custody, but that their release may be subject to guarantees to appear for trial.

Consequent on the above, many countries have strived to put in place mechanisms in line with the U.N’s standard. Examples include the introduction of paralegals in Malawi prisons, the overriding fundamental right approach in South Africa, and the Uttar Pradesh, India approach, which resulted in the release of about 13,000 ATPs. 

The plights of awaiting trial persons demand urgent intervention not only to safe the government the cost of accommodating them in detention through tax payers money, but more importantly because the protection of their fundamental freedoms most especially that of liberty is important inasmuch as they are still presumed innocent until found guilty. To this end, we must come to terms with the fact that awaiting trial detention affects in one way or the other all members of the society, and it is therefore important to review our criminal jurisprudence to plaster the gaps in our walls. 

* EYITAYO OGUNYEMI is an Associate at Falana & Falana's Chambers. He is the President of D'Paralegal Academy- a consultancy institution which also teaches elementary principles of law to the public. He is the initiator of "The People's Parliament"- a forum committed to imparting the society with the knowledge of their constitutional rights and duties.  Questions may be directed to eyitayoogunyemi@gmail.com (+234-806-0623-454) or asked directly in the comment box below.

THE WORLD AFTER 9/11 ATTACKS

Last week (9/11), the world remembered again the date it stood still as an extremist group hijacked four airlines and carried out suicide attacks against targets in the United States. For the United States, it was the history of “the day when the foundation of their biggest buildings were shaken”- but not the very heart of the people. For the rest of the world, it was the history of the date when International human rights took on a new shape and men from different creeds of the earth together with one voice said “NO” to the scourge of terrorism and its baggage. 

The 9/11 attacks more than being a shocker was also an eye opener to the world that terrorism is taking on a new shape and the strategies for fighting it ought to be fine-tuned. It brought to bare questions relating to the protection of people’s rights in the face of terrorism, and also exposed the inadequacies of the United Nations’ Charter particularly the fact that it is unrealistic to subject the provision which allows “the use of armed forces in the common interest” to an objective test.

In the United States, the situation of detainees in the U.S. Military base in Guantanamo Bay, Cuba became of immense concern. According to Amnesty International, “a few Guantanamo detainees face trial under a military commission system that does not meet international fair trial standards”. In China, a source revealed that a number of extremists were executed for crimes ranging from setting up a terrorist outfit and illegally making explosives to attacking police officers and killing government officials. Until the abduction of some girls in Chibok, Nigeria, there were series of allegations of abuse of human rights by foreign government against Nigeria and its treatment of Boko Haram insurgence; In the year Two Thousand and Twelve, the Nigeria Armed Force was alleged to have opened attack on residents of communities where Boko Haram members operated most, and allegedly held many in detention without charge or trial.

The fight against terrorism has also become a cloak under which stronger countries and their allies invade and topple “undemocratic” governments in other sovereign Nations. A major example is the U.S. led invasion of Iraq which was allegedly tainted with a lot of human rights abuses. Describing the aftermath of the invasion, Kofi Annan (former U.N’s Secretary General) recorded in his memoir that: in the course of the decade following the invasion an estimated 115,000 Iraqi civilians died in the ensuing anarchy and civil war; more than 10,000 coalition soldiers were killed or wounded; and some 4 million people were made refugees or were internally displaced. (See Pg. 318 “Interventions”).

Amidst all these concerns, have we exhaustively answered the questions that demand answers? Who is a terrorist? What kind of attack qualifies as “terrorism”? What about the question of “motive” and “intention”, do they count in adjudging a person as a terrorist? And the last question I will turn to is that of whether or not terrorists have an entitlement to rights which are due to other humans?

9/11 attacks have happened, what we make of it is what matters. For those who hold so fervently to their beliefs and therefore feel that they must use every means to make others live as they do, 9/11 may to them be a heroic display of some extremists, but for Zak Ebrahim; who happens to be the son of a terrorist, “the son does not have to follow the ways of his father because he is not his father”, for the rest of the world, the message of peace must be preached, and the road to it is personal decision and deliberate campaign rooted in diplomacy and non violence.

* Eyitayo Ogunyemi is an Associate at FALANA & FALANA'S CHAMBERS. He is the president of D'Paralegal Academy- A consultancy institution which also teaches elementary principles of law to the public. He is the initiator of "The People's Parliament"- a forum committed to imparting the society with the knowledge of their constitutional rights and duties.

ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIA (For Laymen)

Does every wrong give birth to a violation of one’s fundamental right?

A client once shared the story of how his mother refused to disclose who his father is, and he concluded “I want to enforce my Right to know my father!” In this sense, he has a Right, but is it fundamental? This is why it is essential for every layman to understand first that not every wrong will amount to a violation of one’s Rights, and not all Rights are fundamental and therefore enforceable.

There are debates on the issue of whether it will not amount to a misnomer to classify certain rights as being “fundamental” while others are simply regarded as “human rights” (but we can leave the debate to lawyers). However, it seems to be well established that those rights that are expressly permitted by the law of a nation and declared to be enforceable are the Rights that qualify as being “fundamental”.

For a Right to be enforceable therefore, the first thing to find out is whether the Right is expressly provided for or incorporated and declared to be enforceable as a fundamental right. To this extent, everybody is obliged to have a copy each of the 1999 Constitution, the African Charter on Human and Peoples’ Rights, and the Fundamental Rights (Enforcement Procedures) Rules 2009; these are the principal documents that will give every person a basic understanding of their enforceable rights and how to go about the enforcement of those rights.

Where an act tantamount to a violation of one’s fundamental right is being, has being, or is likely to be contravened, a person may apply to a High Court in that State for Judicial redress. Sometimes, the violation may spread across different States, in that situation, the person may choose to apply to Court in any of the States through his or her Legal Attorney. The documents to be filed in Court and the specific Court to approach whether Federal High Court or a State High Court ought to be sorted out by the Legal Attorney, but a person applying for the protection of his or her fundamental right may concern him or herself with jotting the facts of the infringement, keeping records that may serve as evidence in the course of judicial proceedings (e.g. pictures), and narrating the story in details to a Legal Attorney so as to receive professional guide and advice on the competence of the alleged infringement. A person may initiate an action (as the Applicant) for the enforcement of his/her fundamental right or that of another person. When approaching the court on behalf of another person, the guiding principle is that the Applicant is either acting in his own interest; on behalf of another person; as a member of, or in the interest of a group or class of persons; in the public interest, and/or as an Association acting in the interest of its members or other individuals or groups.

Certain Rights are applicable to citizens alone (under the 1999 Constitution). They are: right to privacy and family life, right to freedom of movement, right to freedom from discrimination, and right to acquire and own immovable property anywhere in Nigeria. Non citizens are not totally shut out by the provisions, but may enjoy some of the provisions not as a right, but as a matter of privilege upon the fulfilment of necessary conditions. Having incorporated the African Charter, it is evident that non citizens can enforce the above stated citizens’ rights under the Charter without any recourse to the 1999 Constitution; however, non citizens can only enjoy the provisions within the context, and scope of the Charter.

Upon hearing the Application and apart from the prayers sought by an Applicant, the Judge may make such order or orders as may be just and expedient in the circumstance.

Questions may be directed to eyitayoogunyemi@gmail.com (+234-806-0623-454) or asked directly in the comment box below.

This article has been prepared by Eyitayo Ogunyemi for information purposes only and does not and is not in any way to be substituted for a legal advice,