CRIMINAL JUSTICE REFORM AND CHALLENGE OF HOLDING

CHARGE

By Olisa Agbakoba SAN

In my earlier reflection on the Prison Amendment Bill, which was published in the THISDAY and
GUARDIAN Law Columns of March 12 and 18, 2002 respectively, I took the view that our major
problem lies in absence of a political will to implement the avalanche of laws-statutory and judicial
that target prison reform in Nigeria.

In this article, my primary objective is to demonstrate how the absence of a political will has robbed
us of the fruit of a landmark decision that primarily targets the reform of the Nigeria Prison and in
fact, the reform of our failing criminal justice system. The decision I shall be reviewing is the Court
of Appeal decision in the case of Evangelist Bayo Johnson Vs Attorney General of Lagos State
(Suit No, CA/L/334M/97)

I have also deemed it necessary, to open up discussions on our tripod criminal justice institutions,
with the aim of highlighting some of the maladies that stand on the way of criminal justice in
Nigeria. Other issues of reforms, like the dilemma of the victim of crime in Nigeria will receive a
more detailed attention in my next series of articles.

Criminal Justice System and Distortion of Holding charge.

The criminal justice system revolves around three cardinal institutions: The Police, Court and
Prison.

The Police institution is the first institution that a criminal suspect comes in contact with. Whatever
becomes his or her fate will be determined to a large extent by the way the Police goes about its
duty of investigating and starting the locomotive wheel of the criminal justice system. The Police
institution is therefore, a sieving institution. It sieves, using the barometer of “Probable Cause or
Reasonable Suspicion” to decide whether the suspect should enter the second criminal justice
institution or not. The Police institution is criticized for its lackluster role in sieving suspects.
Evidence gathering is untidy and more often than not, the Police is not willing to let a suspect go,
even when the scale of probable or reasonable cause tilts in favor of the suspect. Using the
instrument of holding charge, the Police usually keeps the suspect in detention, whilst evidence of
guilt are sought. This practice is the main cause of congestion in Nigerian prisons. Many people that
are not supposed to be in prison are there because of a failure of investigation.

If the police is able to present a prima facie case against the suspect, to enable it secure a favorable
advice from the Director of Public Prosecution, the suspect leaves the first institution to the second
ie the Court.

Once the suspect enters the second institution, the Court, the suspect becomes an accused. The
Constitution of Nigeria grants the accused certain rights. For instance, the accused is presumed
innocent until proven guilty. He or she is entitled to be represented by a counsel of his or her choice.
He or she has a right to bail except in few circumstances where bail is not allowed because of the
gravity of the offence or for other reasonable cause. The accused has a right to speedy trial because
of the cardinal principle of law that “ Justice delayed is justice denied”

In dealing with the accused, the Court has been reminded by the distinguished jurist, Mr Justice,
Oputa, that in a criminal trial, justice is tripartite: justice to the accused; justice to the society and
justice to the victim. Oputa’s statement clearly illustrates the latitude of criminal trials and their
intended beneficiaries. It is important to note that unlike the case in civil litigation, criminal trial is
not only between the accused and the victim.

Crime is an onslaught on society which is why the State has a role in law enforcement,
investigation and prosecution. In Nigeria, The state’s role has become so overbearing to extent that
the victim is forgotten. This is why a friend who was recently robbed asked:
“ Now that the robbers have been arrested and are standing trial, will I be able to recover my stolen
goods and properties after their conviction?” I retorted that the bitter truth is that Nigeria criminal
justice system does not recognize any right of the victim. Effective criminal justice systems of the
type Oputa spoke recognizes the victim, the victim is indeed central. How do we restructure the
Nigerian Criminal Justice to cater for the victim of crime? Is it not time we started thinking of a
working Criminal Injuries Compensation Board?

The third institution, the Prison becomes relevant after the conviction of accused. Here, the
accused becomes a convict. He or she is usually sent to the prison to serve a time. The cardinal
essence of prison is reformation. It is hoped that the within the time the convict passes through the
prison, he or she would be reformed and be accepted back to the society. At this point, the convict is
called a prisoner.

But we must get this point clear. Prison is not only inhabited by convicts. There is a class of
prisoners referred to as Awaiting Trial Persons. Just as the name suggests they are in prison
awaiting their trial. In Nigeria, their trials may take many years to commence and many more years
to end. It is well known that well over 60% of prison population in Nigeria falls within this class of
Awaiting Trial. Any person that is conversant with Nigeria Prisons know that this class of people
suffer more than the convicts. They are subjected to unimaginable indignities, even when they have
not be convicted of any offence. One then begins to wonder whether the presumption of innocence
of the accused is tenable in Nigeria. Based on the facts before us is it not safer to say that in Nigeria,
an accused is presumed guilty until he or she proves his innocence?

WHAT IS HOLDING CHARGE?

This is a system of bringing an accused before an inferior court that lacks jurisdiction to try him or
her for the primary purpose of securing a remand order and thereafter abandon him or her in prison
under the pretence of awaiting trial.

I shall explain this more graphically:

Ichie Okeke was relaxing with his wife in their executive bedroom on January 3, 2002. The time
was 9. 30 pm.

A fierce looking man emerged from no- where wielding a pump action gun. He asked no question
and demanded nothing. According to Okeke’s wife, the unwanted visitor merely pointed the nozzle
towards her husband, pulled the trigger and snuffed life out of Ichie Okeke.
The offence of Murder, a felony that carries the penalty of death on conviction has been committed.
Following a complaint laid by Okeke’s wife, the Police swings into action in search of the killers.

Mr A is suspected of committing the offence.

Mr A is taken to the first institution discussed above, the police institution.

For the police to proceed to Court, they need evidence as the court does not convict on mere
suspicion and rumor. The police has a constitutional burden to bring the suspect to court within a
specified time or on the alternative leave him or her to go.
In order to obviate this constitutional requirement, the police rushes to a Magistrate Court, which
lacks the jurisdiction to entertain a murder case. The primary aim of the police is however, to obtain
a remand order from an incompetent court and then keep the accused in prison on the pretence of
awaiting trial. It is a pretence because the accused cannot be said to be awaiting trial when he has
not been arraigned, his plea has not been taken.

Curiously, this unwholesome practice which the police adopts is permitted by an inferior law. In
Lagos State, the offending law is Section 236(3) of the Criminal Procedure Law of Lagos,
hereinafter referred to as CPL. I am using “inferior law” advisedly. The CPL which was introduced
by Edict No 14, 1984 of Lagos State is inferior to the constitution of Nigeria which provides for
Right to personal liberty and fair hearing relevant to this reflection.

It is also important to note that the CPL is a product of that aberrant military era that is remarkable
for the havoc it wrecked on the Rule of Law and our collective psyche.

In a country, where the police and other criminal justice institutions are virtually in crisis, the CPL
becomes an instrument for further destabilization of a crisis ridden justice system. The Police will
always tell you that they do not have gadgets to aid criminal investigation. If you want to drag the
argument further, you will be reminded that their salaries and allowances re yet to be paid. If you
are among those who go beyond what people say to read demeanor and appearance, you cannot but
start believing that all is not well with this important institution. What of the tattered boots and
uniform; the hungry look and absent-mindedness?

But all those cannot justify the incalculable harm being wrecked on the Nigeria Criminal Justice
System by the holding charge. The crisis of congestion in our prison is the result of the holding
charge, further exacerbated by the snail’s pace of criminal trial in Nigeria.

The other day, I was at the Ikoyi and Kirikiri Prisons in Lagos in furtherance of HURILAWS’ Jail
Delivery Project and I shuddered at the reality of imprisonment in Nigeria. A majority of people in
those prisons are Awaiting Trial. Most of them are accused of capital offences, yet their cases are
still in Magistrate Courts. My heart bled at the level of idleness in our prisons. How can a society
afford to keep a vibrant class of her people in such idleness? Can’t these prisons be turned to soap
manufacturing industries; where the prisoners will become employees of a special kind. Yes, of a
special kind because although they will be entitled to a certain percentage of their wages, which will
be saved for them, the other percentage will be used by the state in feeding them. I also thought of
the need for educating these young men and women. The process of rehabilitation must start from
the prison. I was impressed to see some of the inmates in tailoring unit, but I found out they have
inadequate sowing machines. I also thought of the desirability of teaching the prisoners the secrets
of information technology. Is it a crime for a prisoner to be computer literate? Is it a crime for him
or her to have an e mail address and have access to his or her mail? Can the prison have a website
that we all can access? I thought…I thought…

But the question that has to be answered is: Is the practice of holding charge constitutional? This
question is now a rhetorical one having been answered on June 13, 2001 by the Court of Appeal,
Lagos. A decision from Court of Appeal carries a high precedence because in the hierarchy of
courts the Court of Appeal is second after the Supreme Court.

RE: COURT OF APPEAL JUDGEMENT IN BAYO JOHNSON Vs A.G OF LAGOS

STATE.

This is one out of the several cases of HURILAWS under its strategic Impact Litigation Project.
The facts of the case is interesting as they are relevant to our exercise here.

On 12/1/97, the Appellant, Evangelist Bayo Johnson was arrested and detained at the C.I.D
Alagbon, Lagos. On 12/3/97, two months after, he was charged with 11 others before the Chief
Magistrate Grade 1 for conspiracy to commit treason and treasonable felony. HURILAWS made an
oral application for bail of the accused but bail application was refused by the Chief Magistrate on
the ground that the charge is one involving a capital offence which the Magistrate Court has no
jurisdiction to entertain. The magistrate went further, however, to order the remand of the
appellant at the C.ID pending the filing of information and arraignment before the High Court.

Note: that the scenario painted above fits properly into our explanation of what holding
charge implies.

The Magistrate’s remand order being dissatisfactory, was appealed against in the High Court. The
High Court was specifically asked to quash the remand order, since section 236(3), which permits
the holding charge is unconstitutional, being a breach of the constitutional guarantee of liberty. The
Lagos State High Court in a ruling dated 3/6/97 refused the application and dismissed it.

We proceeded to the Court of Appeal, Lagos. One of the issues for determination was: whether
section 236(3) of the CPL is constitutional.
The Court of Appeal held unequivocally that section 236(3) of CPL is unconstitutional.
In laying down the Law, the court made several monumental statements, like the following:

“ Before an accused is brought before the court it should be assumed that the case is ripe for
hearing, not for further investigation. He must not be there on mere suspicion which cannot
be regarded as reasonable suspicion under section 35 of the constitution”

Re-echoing the obiter dictum of NIKI TOBI in the case of ONAGORUWA Vs STATE (1993) 7
N.WL.R Pt (303) 49 at 107, the court sates:

“ In a good number of cases the police in this country rush to court on what they generally
refer to as holding charge ever before they conduct investigation…Where the investigation
does not succeed in assembling the relevant evidence to prosecute the accused to secure
conviction, the best discretion is to abandon the matter and throw in the towel…On no
 account should the prosecution go out of its way in search of evidence to prosecute, when it
is not there”

AFTER BAYO JOHNSON, WHAT NEXT?

I have often said it and I will continue to say it that our major problem lies in the absence of a
political will to implement the avalanche of laws on prison reform. Look at that beautiful decision
of court of Appeal in the above case. If that singular decision is implemented the crisis of
congestion in Nigeria Prisons will be over. Unfortunately, almost one year after the judgment,
Section 236(3) of the CPL is still being used in Lagos. Other states of the Federation are equally
using similar laws in holding the accused in prison pending investigation. The prison population
grows by day in a geometrical proportion because of this practice.

Intrigued by the unwholesome effects of this holding charge, some pro-people activists are trying to
re-litigate Bayo Johnson by asking questions already answered by the Court Appeal.

I think the proper thing to do is to find a way of mandating the Attorney General of Lagos State
who is the Chief Law officer of Lagos State to implement Bayo Johnson.

HURILAWS has already called attention to the Court of Appeal decision supra. Should the
Attorney General refuse to act, I think we would have no alternative than to proceed by way of
MANDAMUS to compel the Attorney General to act. If these efforts succeeds in Lagos, then one
has a cause to believe the era of holding charge will be over in the country, sooner than later and our
prison will receive boost.

But meanwhile, let us spare a thought for those poor Nigerians languishing in prison awaiting their
trial endlessly. During my last prison visit, I met a man who has stayed 15 long years awaiting trial
in a country where the average life expectancy continues to dwindle everyday. Can we really say
that those folks are being well catered for by that blindfolded damsel, bearing a sword on one hand
and a balance on the other? I am talking of mother justice. When will she be awakened from her
deep sleep in Nigeria?