The old order where suspects were sent to magistrates courts and were remanded in custody on a holding charge pending the advice of the Director of Public Prosecutions (DPP) is here again with the enactment of the Administration of Criminal Justice Act, 2015, which was signed into law by former President Goodluck Ebele Jonathan before leaving office.
Under Part 30, Sections 293 to 299, provisions are made to take a suspect to custody within 14 days, made returnable within the same period by a Magistrates Court who has no jurisdiction to try the suspect. The old times, indeed, are back, which was the reason why Nigerian Prisons and other detention centres are still overflowing with awaiting trial inmates that caused all courts of competent jurisdiction, including the Supreme Court to knock down the Holding Charge instrument, as it was, in the eye of the law, constituting a nuisance. The issue now is to interrogate the practicability of the new remand order without relapsing into the old practice of filling the prisons with unwanted guests, at the same time making sure the good intention of the new law is not abused. Lagos lawyer, Moyosore Onigbanjo (SAN) in this interview with JOSEPH ONYEKWERE examines the implications and the way out. He also expresses his views on the argument about creating special courts for the trial of corruption cases, among others.

What is the legal implication of holding suspects on remand?

THE Supreme Court and several courts in the land had in the past, when holding charge was operational, held that holding charge is unconstitutional and that there is nothing like holding charge. And they have advised courts, especially magistrates courts and high courts to stop holding people on holding charge. But unfortunately, the practice is still very prevalent especially in the lower courts. I think it is high time that the NJC (National Judicial Council) looked into this and start taking disciplinary actions against courts which still remand people on the old order.

How does this remand operate?

It is when you bring an accused to the Magistrates Court and maybe the magistrate doesn’t have jurisdiction, yet it issues remand order. When Police arrest somebody, they take him to the Magistrate court for a remand. But there is nothing like that. You must charge the person on specific matter. You can’t hold him, saying, ‘I want to hold this man pending the investigation of the allegations against him’. If you want to arrest somebody, the law is clear that you cannot hold the person before taking him to court.

When you are taking him to court, you must charge him for the offence and if you must not charge him for the offence, then, you must give him administrative bail. If you are afraid that he would not show up, you must give him conditions and ensure that he has sureties that would produce him when you need him, not that you would take him to Magistrate court and the Magistrate would remand him in perpetuity into Prison custody. That is why the Prisons are congested. All those cases in which the Police or any other prosecuting agency is not ready to prosecute, it hides under the remand syndrome. This is constituting a nuisance to the

Prison authorities because you have so many people there on remand.

Are there decisions of the Supreme Court or other courts that strongly struck down this expedient leeway practice?

There are many cases. There is Lufadeju and Johnson. There are many and they kept repeating it time and time again that there is nothing like remand. A Magistrate or a Judge of a high court cannot remand somebody in Prison. Remand means that you are sending somebody to Prison until further enquiries are made. It is unconstitutional. You must charge him and let him know the charges against him.

When he is charged, his lawyers will file for his bail. That is the way to go. Not when you know that you have no jurisdiction, you say even though I have no jurisdiction, go and stay in Prison. It is illegal, unconstitutional and should not be condoned.

How do we differentiate between suspects sent directly on remand and those sent to the office of the Attorney General for advice?

It is the same thing. Let’s say there is a fracas somewhere, the Police would go there and arrest people without conducting any investigation. Let’s say somebody is unfortunate to be at the scene at that time, they would arrest him and when his people begin to make enquiries or there is political pressure, they would carry all of them to court and say keep them remanded pending DPP’s advice. You can only send somebody to Prison custody pursuant to a specific charge that he has breached the criminal procedure law or administration of Criminal Justice Act.

You cannot just pick me up on the street today, take me to court and now say the court should keep me pending the DPP’s advice. That is unconstitutional. What they are doing is that even before the DPP makes up his mind whether the accused has a case to answer or not, they will go and keep him in the cooler. That is what is congesting the Prisons. So at the end of the day, if the DPP says there is no case for him to answer, you have unlawfully kept him there.

Such people can sue the Police for damages and wrongful detention. They can bring a fundamental right enforcement action for the breach of their fundamental rights. It is so prevalent in the Magistrate courts. Until the NJC begins to discipline these Magistrates, they won’t stop, also, the Police authorities should train their officers, particularly, prosecutors to stop sending people for a remand.  If you know a man is suspected of committing murder or treason, you don’t take him to Magistrate court when you know it doesn’t have jurisdiction and say you are keeping him on remand. Sending someone to Prison on remand is illegal.

Do you think the establishment of anti-corruption courts will fast-track trials of corruption cases?

We cannot keep creating special courts any time we crisis, otherwise, there will no end to it. We have crisis in elections and created election petition tribunals. If we have electoral violence, we create electoral violence tribunal. Then when we have fraud, we create fraud tribunal. That will go ad infinitum. We have the courts. The courts are set up to look into all these cases. What we have to do is to make the process work faster. If we say that for one reason or the other, corruption cases are not moving very fast in the regular courts and so we want to create special courts, those problems would soon follow us to the special courts. Then what do we do? But if we fix the problems in the high courts, then we have resolved the problem that would have led us to create special courts.

It is only in Nigeria that we create different kind of courts. I believe that the courts we have are adequate to take care of all these situations. But we just have to remove the bottlenecks that are clog in the wheels of justice administration. The only reason why people say we should create special courts is that the cases are not moving fast. But if the cases move, then there will be no need to create the special court. I believe that rather than create special courts. We should revamp and rework the system.

What are these bottlenecks you speak about?

It is this issue of interlocutory appeals which has been tackled in the Administration of Criminal Justice Act, (ACJA). What you find even in civil cases is that once a case is filed, a preliminary objection is filed. Once the preliminary objection is dismissed, it leads to appeal and to stay of proceedings. If you eliminate that completely, it means that once a case is started, there is no room or ground for stopping it and then the case moves faster.

Another thing to do, though it is in the new law is that once you start a criminal trial, it must go on from day to day until it is concluded. We need to deal with these issues fast. A new Administration of Criminal Justice Act is there. We need to enforce it to the letter. Before this new law, you will observe that we were using laws made in 1950.

Meanwhile, the people you are trying to prosecute are using 21st-century technology to tackle you. For example, under the old criminal laws that we have, there is nothing called cyber crime or internet fraud. But they are there now. So legislations must catch up with advancement in technology, reality on the ground. The courts must be geared towards making things work. I should not go for a criminal trial and the case would not go on because of lack of power supply.

All those little things need to be taken care of such that it can only be an earthquake or serious terrorism act that can hinder cases from going on. Lawyers too, must be up and doing. If a criminal case is set down for trial, the lawyers involved must be made to understand that under no circumstance will you get an adjournment because you cannot come. The case must go on and if you must not come, make sure you send someone else. If we close all these loopholes, you will see that every other case will make progress.

Do you approve of the criteria used to appoint lawyers to the Bench of the high courts?

I know that in the last appointments made, the process took better scrutiny than previous appointments. Before the former CJN, Aloma Muktar left office, NJC under her, put in place new guidelines. These new guidelines were used for this new set of appointees to the Bench of the Federal High Court. It shows that the screening was more rigorous than before. But even at that, we can still go further to improve on subsequent appointments.