Sunday, 28 September 2014

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.