analysisBy Chijioke Ogham-Emeka
In the last few years, by my reckoning, there are two most important developments in Nigeria's Criminal Justice Sector. First, the landmark decision of the Supreme Court on 30th March 2007 in MRS. E. A. LUFADEJU & ANOR. V EVANGELIST BAYO JOHNSON. Second, the dawn of the epoch of law reforms in administration of criminal justice. The epoch was birthed in the passage of the Administration of Criminal Justice Act at the Federal level and domestication in many States including Lagos State and our host State, Anambra State. Similar bills are presently before more Houses of Assembly or awaiting Governor's Assent. More States are expected to pass their version of Administration of Criminal Justice Law, the standard version of which brought significant innovations into the antiquated provisions in the Criminal Procedure Law.
In LUFADEJU V JOHNSON, the Supreme Court upheld the constitutionality of the procedure for remand as contained in the old Criminal Procedure Law of Lagos State. The case is one of the Public Interest Cases initiated by HURILAWS to draw attention to germane issues in Justice Sector Reform. HURILAWS scored a bull's eye when the Court of Appeal, Lagos Division agreed that the remand procedure of "Holding Charge" was unknown to Nigerian Law and unconstitutional being a violation of the detainee's right to personal liberty.
The facts of the case now reported in (2007) 8 NWLR (Part 1037) 535 are as follows: On 12th January, 1997, Evangelist Bayo Johnson was arrested and detained at the FCID, Alagbon Close, Ikoyi. On 12th March, 1997, he was alongside others taken before a Chief Magistrate and charged with Conspiracy and Treason. The charge was read but plea was not taken. The Chief Magistrate affiormed she lacked jurisdiction, and so refused bail and ordered them to be remanded in police custody. HURILAWS initiated an action in the High Court to enforce Johnson's right to personal liberty. The High Court refused the application on grounds that the remand proceedings were allowed under the then Section 236(3) Criminal Procedure Law (CPL). The Court of Appeal overruled the High Court and quashed the remand proceedings. It famously stated that the concept of 'Holding Charge' was unknown to our law.
The Supreme Court interpreting Section 236(3) CPL and Section 32(1)(c) CFRN 1979 (now Section 35(1)(c) CFRN 1999) however held that the proceedings of 12th March, 1997 was remand proceedings not arraignment proceedings, a type of "Pre-Trial Procedure" allowed by the CPL and protected by Section 32(1)(c) CFRN 1979. Now the extinct Section 236(3) CPL provided thus:
"If any person arrested for any indictable offence is brought before a Magistrate for remand such Magistrate shall remand such person in custody or where applicable grant him bail pending the arraignment of such person before the appropriate court or tribunal" (Emphasis mine)
The extinct Section 32(1)(c) CFRN 1979 which the Supreme Court held validated this provision read thus:
"Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: -
(c) for the purpose of bringing him before a court (in execution of the order of a court) or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. (Emphasis and parenthesis mine)
See also the extant Section 35(1)(C) CFRN 1999
Shorn of irrelevancies, the alleged saving provision of the CFRN will read thus:
"(c) for the purpose of bringing him before a court upon reasonable suspicion of his having committed a criminal offence"
With due respect to their Lordships, I am unable to agree that this provision protects a law which mandatorily enjoins a Magistrate to remand a person arrested and brought before him for remand with a weak bye-line that he may grant bail if it is applicable. With respect, all Section 35(1)(c) appears to protect is the temporary deprivation of the liberty of an individual arrested on suspicion of having committed an offence in order to take him to Court for trial. There is nothing about remand there. The saving for temporary deprivation of liberty is merely to cover the confinement by the Police (for not more than 48 hours) before arraignment. This is in accord with other constitutional provisions. The Supreme Court criticized the reading of a charge in Johnson's Case. Tobi JSC said at page 562 thus:
"Although remand proceedings is not set out in the Criminal Procedure Law, it is known that charge is not read to the accused and therefore no plea is taken. That makes the difference between remand and arraignment" (underlining mine)
Apart from the fact that the upheld practice is not in any written law, it would appear in more practical terms that a practice which allows the police to arrest a person and take him before a Magistrate "for remand" with a mandate to so remand without charge will be wholly unconstitutional and a huge set back to our march to civility and widening of the frontiers of liberty. For sure, the finding of the Supreme Court that "it is known that a charge is not read to the accused" under this procedure, brings the procedure into collateral confrontation with Section 36(6)(a) CFRN 1999, which entitles every accused to be "informed promptly in the language that he understands and in detail of the nature of the offence" with which he stands accused.
Pray, what is an accused person against whom there is no charge being remanded for? What is the justice and fairness in detaining a person in police or prison custody based on mere suspicion by the police? With due respect to their Lordships, I am also of the respectful view that the efforts to distinguish between "Remand Proceedings" and "Arraignment Proceedings" do not significantly lend practical value to the issue. The only material issue perceivable is that the liberty of a person, who may be innocent, is in issue in both concepts. The apex Court took the view that Remand Proceedings is necessary to legalize continued detention at the end of police power to detain to enable the police complete investigation and receive DPP's legal advice. See Mukhtar JSC at page 559 and Akintan JSC at page 566.
A procedure that allows the police to arrest a person and take him to a Magistrate for remand and he is remanded without charge pending investigation and other administrative steps appears to be a reincarnation of the infamous State Security (Detention of Persons) Decree No. 2 in its full tenor. The only difference is that the notorious power of the Chief of General Staff and the Inspector General of Police to sign Detention Orders on 'reasonable suspicion' assumed Judicial flavour as the Magistrate now signs the 'Detention Order' albeit on reasonable suspicion by the police!, probably a worse variant. The apex Court said at page 566 that the Magisterial detention "is usually not for indefinite time" but this appears wrong. An order that a person be detained pending "receipt of DPP's advice" or "arraignment in a Court of competent jurisdiction" is practically indefinite because there is no timeline for the DPP's advice or such arraignment.
The apex Court appears to have been largely swayed by the submission of the Honourable Attorney General of Lagos State that invalidation of remand proceedings "will create a totally chaotic state of affairs" (See Onnoghen JSC at page 569). Thus, his Lordship concluded at page 573 that remand "is designed to aid the administration of justice in this country". The chaotic potentials of respect of right to personal liberty appear to open a new vista: the challenge posed by the weak institutional framework upon which Nigeria's Criminal Justice System is run. I would rather go by the ancient wisdom of the English Ecclesiastes and posit that it is better to have a systemic chaos that allows 99 criminals to go free if the Criminal Justice institutions are not strong enough to try them promptly, than have a system that remands one innocent person without formal charge or trial for months or years. One needs to be the victim or victim's relation or counsel to feel where the pinch. Ndigbo say that "o na abu ebulu ozu onye ozo, o di ka ebu ukwu nku" (literally: where a corpse being conveyed for burial is not one's relation, one merely perceives it as a bundle of firewood).
The pain suffered by victims and family members of innocent remand victims are indescribable. The plot of LUFADEJU was cast in the heydays of General Sani Abacha. No evidence was received by the Magistrate to remand for the grave offence of Treason. It was based on the mere ipse dixit of the police. I almost had an experience in 1994 when a pro-June 12 restiveness broke out in the university. Overzealous policemen broke into the hostels and arrested and hauled students into detention. Thankfully the charge was "riot" and the Magistrate granted bail. It later ended in discharge. Had this been at the psychotic height of that regime characterized by power schizophrenia, an instruction could have come from Abuja to the Police to charge for 'Treason against the C-in-C'. This would have led to a remand for many innocent students picked up by policemen desperate to 'deliver' and not appear supine to their superiors.
The good thing about the ACJ Law is that it contains new provisions on remand. For example Chapter 7 of the ACJ Law, Anambra State makes elaborate provisions on remand. In sum, the law succeeded in giving some human face to remand proceedings. It is not as cold and routine as Section 236(3) CPL. It appears that Section 132(2) recognizes that a Magistrate has options to examine the reasons for arrest and request for remand. This may mean that the Magistrate can refuse request and order release. Section 133 enjoins the Magistrate to issue "appropriate directions for the transmission of the case file and the report and request for remand form to the office of the Attorney General". But 134(5) subtly admits that the Police or DPP have no timelines to do their work while the victim of remand stays in Pre-Trial Detention.
Section 134(1) is gracious enough to fix "time protocol for remand orders". Regrettably therein is the injustice of remand. Initial limit is TWO MONTHS! If "good course is shown" for extension, THREE MONTHS! Thereafter, if probable cause for further remand is not found, bail may be granted. Otherwise, at the expiration of three months, if there is no charge or trial has not commenced, hearing notice will be issued to the Police and/or the DPP with another remand period, FOUR MONTHS! If they attend and request for further time, then what Section 134(6) calls "a final period", FIVE MONTHS! It is after FIVE MONTHS in detention WITHOUT A CHARGE that Section 134(7) finally concedes that the Magistrate shall grant bail with or without application. But this is if "good cause is not shown for the continued remand of the person". If good cause is shown, the Law leaves the Magistrate without regulation in respect of how to find his way to remand beyond FIVE MONTHS! Workshop may find time to brainstorm on whether there are justifiable factors for the police not to conclude investigations and DPP not advise on the arraignment of an arrested person (who may well be innocent) for FIVE MONTHS and if there are, what may be done about them.
Reports from HURILAWS' ongoing prison decongestion projects show that more than 70% of inmates of Onitsha Prison are Pre-Trial Detainees on remand without charge and Awaiting Trial Detainees undergoing trial. It is the same at Kirikiri Prisons where a similar project is ongoing. Convicted inmates in our prisons are less than 30% of the entire prison population. The rights of Pre-Trial Detainees and Awaiting Trial Detainees to personal liberty are the lingering big issues in Administration of Criminal Justice reform and the real issues in Prison Decongestion. We must however agree that there is need to strike a balance between the rights of Detainees and our present system. There is need to reform and strengthen both the investigative and prosecutorial departments of the police. One question would be what challenges delay the DPP's advice? Can it come faster so that trial can commence without remand? How can the Ministry of Justice be strengthened to minister justice rather than injustice?
The Judiciary also needs to be strengthened. Further reform of the legal framework may be necessary to give Magistrates more powers to be able to proceed in more offences. Retraining of Judicial workforce to meet the challenges is necessary. The question will be when a charge finally comes and arraignment concluded, why the subsequent delays? Why the myriad of adjournments? How can trials proceed faster to reduce the Siamese problem of Awaiting Trial Detainees? Do we need more Court rooms, more Magistrates and more Judges to make the system work?
What reforms or legal framework are needed to reduce or stamp out Bar-induced delays? All delays are not from the Bench.
If we leap beyond LUFADEJU, the issue will no longer be that 'Holding Charge' is unknown to our law. The issue now is that 'Remand Proceedings' under the ACJ Law is unconstitutional. It is doubtful if a Pre-Trial Procedure which allows the State to detain an individual without a charge on the orders of a Magistrate for FIVE MONTHS or more does not violate the individual's right to personal liberty and fair hearing under the Nigerian Constitution and the African Charter. This will sooner be tested in the Courts, up to the Supreme Court, on new grounds distinct from the ones considered in LUFADEJU V JOHNSON. One provision of the Constitution that needs to be voraciously tested or re-tested is Section 35(4)(a) CFRN 1999, which provides: "a 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 case of a person who is in custody or is not entitled to 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"
It is one thing to admit what our Constitution allows and another thing to admit that the existing institutional support cannot carry it. If we are primarily ad idem on the scope of the right to personal liberty, then the discussion about what to do about the system and institutions to support due compliance can follow.
Ogham-Emeka, Head of Litigation, Olisa Agbakoba & Associates, writes from Lagos.