Lawyers’ discordant tunes on legality of holding charge
Section 293 (1) specifically says ‘a suspect arrested for an offence, which a magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate court for remand.’
However, section 35 (1) of the 1999 constitution provides that ‘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.’
Subsection (4) of this section, says ‘any 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 -(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail;
or (b) three months from the date of his arrest or detention in the case of a person who has been released on 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 went ahead to define the ‘a reasonable time’ in subsection (5). It says: “(a) 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 (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.”
Foreseeing the breach that may occur in this regard, the constitution in section (6) provides that a person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; adding that “the appropriate authority or person” means an authority or person specified by law.
The editor of an online newspaper, Tim Elombah was arrested alongside his brother, Daniel, on the orders of the Inspector General of Police (IGP), Mr. Ibrahim Idris, for allegedly publishing story that maligned the Police chief.
The Police obtained a remand order to keep Tim for seven days but it allegedly expired and the suspect was still held until an Abuja High court ordered his freedom, after spending 25 days in detention.
Former national General Secretary of the Nigerian Bar Association (NBA), Mr. Philipp Umeh, said the idea of holding charge by the Police and security personnel is an illegal act and unknown to Nigerian laws.
Umeh argued that the issue had since been decided by Nigerian courts and declared as unconstitutional.
“The idea of holding charge is unknown to the Nigerian law. Holding charge is a huge misnomer and the person involved should be held accountable, in that the accused person or whoever is affected should go to court and claim damages for unlawful detention and breach of his fundamental rights,” he said.
According to Umeh, the provisions of section 293 of the ACJA are different from the practice of holding charge.
His words: “If you read that section down, the Magistrate under the ACJA is empowered to grant bail if he deems it necessary or finds that the offence is bailable after considering the facts of the case but if it is a serious offence then the Magistrate can order a remand and the remand would not last more than 30 days.”
Also, an Abuja-based lawyer, Mr. Mike Okorie said the practice of holding charge in the country was archaic.
Chief Mike Ozekhome (SAN) had in an earlier article maintained that holding charge is illegal under Nigerian constitution.
The senior advocate, who cited plethora of decided cases, argued that the National Assembly, which enacted the ACJA are empowered to make laws for the peace, order and good governance of the country and not otherwise.
He insisted that where the National Assembly makes laws that are inconsistent with the provisions of the Constitution, such laws become automatically void to the extent of their inconsistency.
However, Mr. Emeka Okpoko (SAN) said it is easy to declare the practice unconstitutional if taken from the first value. According to him, to justify the reason for holding charge, one needs to think deeply without looking at it at the face value.
He believes that the ACJA intendment is to augment the constitution and strengthen the process of justice administration in the country.
He said: “If you do not think deeper, you can easily run into the conclusion that holding charge is illegal constitutionally. If you look at the challenges that we have as a country, you will find out that the makers of the ACJA section intended to augment the constitution.
“They are aware of the provisions of section 35 of the constitution. I think they considered the reality of our situation. There are circumstances that logistics would even make it difficult to arraign the suspects within that short interval.
If you look at the law literarily in strict sense, yes it is unconstitutional because the constitution is the grundnorm but other rules of interpretation would also come to bear.
But the dean, faculty of law, Lagos State University, Professor Funminiyi Adeleke said the decisions against holding charge by the Supreme Court are no longer valid because they were made when the ACJA was not enacted.
According to him, the rule of interpretation of law is that when a Supreme Court judgment or any judgment at all is made pursuant to a particular law, if that law changes, the decisions won’t be binding again.
He said: “To counter the argument of those who say that section 293 of the ACJA offends section 35 of the constitution, I want to let them know that it is called delegatory clause.
“The delegatory clause states that any law that is reasonably made in a democratic society for the peace, orderliness and good governance, if such a law derogate any of the rights guaranteed in the constitution, that law will still be valid.
“What ACJA is trying to do is to allow speedy trial. If you want to allow speedy trial, you have to put certain measures in place. There are some people that if they just allow them to have their way, they will tamper with evidence or compromise all the witnesses.”
Adeleke argued that if any detention is unlawful, the victim can challenge it and can be entitled to remedy, compensation and public apology as contained in section 35, subsection (6) of the 1999 Constitution.
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