The human rights lawyer, Femi Falana (SAN) has
reaffirmed that Chief Judges can grant pardon under the Prisons Act
and the Criminal Justice (Release from Custody) (Special
Provisions) Act. There has been an argument on this subject matter
between the Learned Silk and his colleague, Sebastine Hon, SAN. The
Learned Silk, Falana, SAN, in buttressing his point made some vital
reference on the administrative power of a Chief Judged to release
under trial prisoners languishing in dehumanising conditions in
Nigerian prisons.
According to him ” A couple of days ago Mr. S.T. Hon SAN
questioned the constitutional validity of the administrative power
of Chief Judges to order the release of under trial prisoners
languishing in dehumanising conditions in Nigerian prison.” I found
out, to my utter dismay, that the totality of the learned senior
counsel’s submission was anchored on the speculative belief that
the Chief Judges have been performing such functions under “the
respective high court laws and high court rules”. Although I drew
my learned colleague’s attention to the relevant provisions of the
Prison Act and the Criminal Justice (Release from custody) Act
which have empowered top judicial officers including the Chief
Justice of Nigeria and Chief Judges to conduct prison visits and
order “the release of any prison inmate if satisfied that the
detention of that person is manifestly unlawful; or that the person
detained has been in custody, whether on remand or otherwise, for a
period longer than the maximum period of imprisonment which the
person detained could have served had he been convicted of the
offence in respect of which he was detained” he did not change his
position.
In fact, in his curious rejoinder to my intervention in the
needless debate Mr. Hon SAN did not pay any attention to both laws
as he insisted that his shaky submission on the matter was
unassailable. In questioning the administrative release of prison
inmates he accused the Chief Judges of usurping the powers of the
President and state governors by granting pardon to persons
concerned with criminal offences. Thus, i am compelled to reitetate
that the prisoners released by Chief Judges have not been pardoned
but merely released from illegal prison custody. To that extent,
such prisoners may be rearrested and prosecuted by the government.
But a convict pardoned by the President or a state governor is said
to be a new man (novus homo) having been acquitted of all corporal
penalties and forfeitures annexed to the offence. See Falae v
Obasanjo (No 2) (1999) 4 NWLR (Pt 599) 476..
Instead of relying on local and foreign authorities on the
undisputed constitutional powers of the President and state
governors to grant pardon to convicts and criminal suspects, Mr.
Hon SAN may wish to have a look at the case of Edwin Iloegbunam
& Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72 wherein
the Court of Appeal had upheld the constitutional validity of the
Criminal Justice (Release from Custody) (Special Provisions) Act.
In that case, the Appellants were arraigned on a holding charge of
attempted murder before the Magistrate’s Court, Ogidi, Anambra
State on July 3, 2000. For want of jurisdiction the Magistrate
Court refused the application of the Appellants for bail and
ordered that they be remanded in prison custody. However, before
they were properly charged with murder at the High Court the Chief
Judge of Anambra State visited the Onitsha Prisons and ordered that
the Appellants be released on bail. In making the order the Chief
Judge did not pardon the murder suspects but merely released them
on bail.
As soon as the Appellants regained their freedom the
complainants in the murder case filed a motion ex parte at the
Lagos judicial division of the Federal High Court and prayed that
the Appellants be rearrested and held in prison custody. The
application was granted as prayed. Completely dissatisfied with the
order the Appellants approached the Court of Appeal for the
restoration of their fundamental right to personal liberty. In
justifying the decision of the lower court the Respondents’
Counsel, Chief Anah SAN questioned the constitutional validity of
the Criminal Justice (Release from Custody) (Special Provisions)
Act under which the Anambra Chief Judge had released the Appellants
on bail.
In my submissions on behalf of the Appellants I argued that the
validity of the Act could not be challenged since it was made to
protect the fundamental right of prison inmates to personal liberty
guaranteed by section 35 of the Constitution. In allowing the
appeal the Court of Appeal had no hesitation in upholding the
validity of the Act. In the leading judgment of the Court, Oguntade
J.C.A (as he then was) held that “there is power in the Chief
Justice of the Federation or any of the Chief Judges of the States
to order the release of persons detained in prison custody in the
exercise of their power under section 1(1) of the Criminal Justice
(Release from Custody) (Special Provisions) Act Cap 79 Laws of the
Federation of Nigeria 1990 is not in doubt. The exercise of that
power by the Anambra Chief Judge would definitely constitute a
different cause of action for the present respondents if they feel
aggrieved by it. And an action founded on the exercise of that
power which action is challenging the authority of the Chief Judge
is one that should be brought before the High Court of Anambra
State by virtue of Section 272 of the 1999 Constitution.”
It may interest Mr. Hon SAN to know that heads of court in other
jurisdictions in common law countries are applying similar laws to
decongest prisons by releasing indigent prison inmates from prison
custody during prison visits. In Writ Petition (Civil) No. 406/2013
in which judgment was handed down on September 16, 2014 the Supreme
Court of India directed magistrates and session judges to visit
prisons in their districts for two months to identify and release
under trial prisoners who had already been held in custody for half
of the maximum period prescribed by law for the offences for which
they were charged. The court however pointed out that the order did
not apply to under trial prisoners whose offences attract death
penalty. Since not less that 66 percent of inmates were awaiting
trial in the various courts across the country Chief Justice R. M.
Lodha noted that “There are people who cannot take bail. There is
nobody for them. They languish in jails because courts are not
enabled to take their cases.”
The progressive verdict of the Supreme Court of India has
reverberated throughout common law countries and has strengthened
the campaign for prison decongestion. In March this year the Chief
Justice of Pakistan, Justice Ahmed Sheikh visited the Malir
district prison. Based on the complaints of several prison inmates
the Chief Justice met with the Inspector general of prisons for the
district, Mr. Nusrat Manghan. Following the directive of the Chief
Justice the prison management announced a remission of 60 days to
the entitled jail inmates apart from those convicted for espionage,
subversion, terrorism and murder. Just last month, the Principal
Judge of the High Courts of Uganda, Justice Yorokamu Bamwine
directed all High Court judges and magistrates to release all
prisoners who have overstayed on remand without trial. His lordship
lamented that on his countrywide tours to prisons, he met many
prisoners who have stayed on remand beyond the statutory period. He
said Article 23 of the Constitution demands that untried persons
remanded on non-capital offences, should be released on mandatory
bail after three months in jail. In justifying the directive,
Justice Bamwine said that his directive was intended to protect
liberties of suspects as provided for in the Constitution and that
one way of ensuring compliance is through routine visits to prisons
to ascertain the numbers and conditions in prisons and routine
meetings with all judicial officers and court staff, among the best
practices.”
From the foregoing, our Chief Judges are on terra firma in
exercising their powers under the Criminal Justice (Release from
custody)(Special Provisions) Act in ordering the release of under
trial prisoners during prison visits. Apart from the decision of
the Court of Appeal in the case of Iloegbunam v Iloegbunam supra
which has upheld the validity of the Act section 8 of the
Administration of Criminal Justice Act, 2015 has imposed a duty on
Chief Judges to appoint high court judges and magistrates to visit
detention centres once a month with a view to ensuring that the
indigent under trial prisoners are not detained without legal
justification in line with paragraph 55 of the United Nations Rules
for the Treatment of Prisoners which have adopted by Nigeria.
The human rights lawyer, Femi Falana (SAN) has
reaffirmed that Chief Judges can grant pardon under the Prisons Act
and the Criminal Justice (Release from Custody) (Special
Provisions) Act. There has been an argument on this subject matter
between the Learned Silk and his colleague, Sebastine Hon, SAN. The
Learned Silk, Falana, SAN, in buttressing his point made some vital
reference on the administrative power of a Chief Judged to release
under trial prisoners languishing in dehumanising conditions in
Nigerian prisons.
According to him ” A couple of days ago Mr. S.T. Hon SAN
questioned the constitutional validity of the administrative power
of Chief Judges to order the release of under trial prisoners
languishing in dehumanising conditions in Nigerian prison.” I found
out, to my utter dismay, that the totality of the learned senior
counsel’s submission was anchored on the speculative belief that
the Chief Judges have been performing such functions under “the
respective high court laws and high court rules”. Although I drew
my learned colleague’s attention to the relevant provisions of the
Prison Act and the Criminal Justice (Release from custody) Act
which have empowered top judicial officers including the Chief
Justice of Nigeria and Chief Judges to conduct prison visits and
order “the release of any prison inmate if satisfied that the
detention of that person is manifestly unlawful; or that the person
detained has been in custody, whether on remand or otherwise, for a
period longer than the maximum period of imprisonment which the
person detained could have served had he been convicted of the
offence in respect of which he was detained” he did not change his
position.
In fact, in his curious rejoinder to my intervention in the
needless debate Mr. Hon SAN did not pay any attention to both laws
as he insisted that his shaky submission on the matter was
unassailable. In questioning the administrative release of prison
inmates he accused the Chief Judges of usurping the powers of the
President and state governors by granting pardon to persons
concerned with criminal offences. Thus, i am compelled to reitetate
that the prisoners released by Chief Judges have not been pardoned
but merely released from illegal prison custody. To that extent,
such prisoners may be rearrested and prosecuted by the government.
But a convict pardoned by the President or a state governor is said
to be a new man (novus homo) having been acquitted of all corporal
penalties and forfeitures annexed to the offence. See Falae v
Obasanjo (No 2) (1999) 4 NWLR (Pt 599) 476..
Instead of relying on local and foreign authorities on the
undisputed constitutional powers of the President and state
governors to grant pardon to convicts and criminal suspects, Mr.
Hon SAN may wish to have a look at the case of Edwin Iloegbunam
& Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72 wherein
the Court of Appeal had upheld the constitutional validity of the
Criminal Justice (Release from Custody) (Special Provisions) Act.
In that case, the Appellants were arraigned on a holding charge of
attempted murder before the Magistrate’s Court, Ogidi, Anambra
State on July 3, 2000. For want of jurisdiction the Magistrate
Court refused the application of the Appellants for bail and
ordered that they be remanded in prison custody. However, before
they were properly charged with murder at the High Court the Chief
Judge of Anambra State visited the Onitsha Prisons and ordered that
the Appellants be released on bail. In making the order the Chief
Judge did not pardon the murder suspects but merely released them
on bail.
As soon as the Appellants regained their freedom the
complainants in the murder case filed a motion ex parte at the
Lagos judicial division of the Federal High Court and prayed that
the Appellants be rearrested and held in prison custody. The
application was granted as prayed. Completely dissatisfied with the
order the Appellants approached the Court of Appeal for the
restoration of their fundamental right to personal liberty. In
justifying the decision of the lower court the Respondents’
Counsel, Chief Anah SAN questioned the constitutional validity of
the Criminal Justice (Release from Custody) (Special Provisions)
Act under which the Anambra Chief Judge had released the Appellants
on bail.
In my submissions on behalf of the Appellants I argued that the
validity of the Act could not be challenged since it was made to
protect the fundamental right of prison inmates to personal liberty
guaranteed by section 35 of the Constitution. In allowing the
appeal the Court of Appeal had no hesitation in upholding the
validity of the Act. In the leading judgment of the Court, Oguntade
J.C.A (as he then was) held that “there is power in the Chief
Justice of the Federation or any of the Chief Judges of the States
to order the release of persons detained in prison custody in the
exercise of their power under section 1(1) of the Criminal Justice
(Release from Custody) (Special Provisions) Act Cap 79 Laws of the
Federation of Nigeria 1990 is not in doubt. The exercise of that
power by the Anambra Chief Judge would definitely constitute a
different cause of action for the present respondents if they feel
aggrieved by it. And an action founded on the exercise of that
power which action is challenging the authority of the Chief Judge
is one that should be brought before the High Court of Anambra
State by virtue of Section 272 of the 1999 Constitution.”
It may interest Mr. Hon SAN to know that heads of court in other
jurisdictions in common law countries are applying similar laws to
decongest prisons by releasing indigent prison inmates from prison
custody during prison visits. In Writ Petition (Civil) No. 406/2013
in which judgment was handed down on September 16, 2014 the Supreme
Court of India directed magistrates and session judges to visit
prisons in their districts for two months to identify and release
under trial prisoners who had already been held in custody for half
of the maximum period prescribed by law for the offences for which
they were charged. The court however pointed out that the order did
not apply to under trial prisoners whose offences attract death
penalty. Since not less that 66 percent of inmates were awaiting
trial in the various courts across the country Chief Justice R. M.
Lodha noted that “There are people who cannot take bail. There is
nobody for them. They languish in jails because courts are not
enabled to take their cases.”
The progressive verdict of the Supreme Court of India has
reverberated throughout common law countries and has strengthened
the campaign for prison decongestion. In March this year the Chief
Justice of Pakistan, Justice Ahmed Sheikh visited the Malir
district prison. Based on the complaints of several prison inmates
the Chief Justice met with the Inspector general of prisons for the
district, Mr. Nusrat Manghan. Following the directive of the Chief
Justice the prison management announced a remission of 60 days to
the entitled jail inmates apart from those convicted for espionage,
subversion, terrorism and murder. Just last month, the Principal
Judge of the High Courts of Uganda, Justice Yorokamu Bamwine
directed all High Court judges and magistrates to release all
prisoners who have overstayed on remand without trial. His lordship
lamented that on his countrywide tours to prisons, he met many
prisoners who have stayed on remand beyond the statutory period. He
said Article 23 of the Constitution demands that untried persons
remanded on non-capital offences, should be released on mandatory
bail after three months in jail. In justifying the directive,
Justice Bamwine said that his directive was intended to protect
liberties of suspects as provided for in the Constitution and that
one way of ensuring compliance is through routine visits to prisons
to ascertain the numbers and conditions in prisons and routine
meetings with all judicial officers and court staff, among the best
practices.”
From the foregoing, our Chief Judges are on terra firma in
exercising their powers under the Criminal Justice (Release from
custody)(Special Provisions) Act in ordering the release of under
trial prisoners during prison visits. Apart from the decision of
the Court of Appeal in the case of Iloegbunam v Iloegbunam supra
which has upheld the validity of the Act section 8 of the
Administration of Criminal Justice Act, 2015 has imposed a duty on
Chief Judges to appoint high court judges and magistrates to visit
detention centres once a month with a view to ensuring that the
indigent under trial prisoners are not detained without legal
justification in line with paragraph 55 of the United Nations Rules
for the Treatment of Prisoners which have adopted by Nigeria.