Samuel Okolie
William Blackstone, the 18th Century English Jurist states: “It
is better for ten guilty persons to escape justice than for one
innocent person to suffer.”
The immortals words of the revered Jurist has resonated fairly
in the Nigeria judicial sphere, as aptly provided for by the double
constitutional provisions of presumption of innocence in section
36(5) of the constitution, and the individual liberty of a person
under section 35(1) of the 1999 constitution.
However a major clog and encumbrance to these constitutional
provisions of personal liberty and presumption of innocence is the
concept of “Holden charge.”
Holden charge simply put is a situation where the police or any
other law enforcement agency, arrest and detain a person suspected
or alleged to have committed a crime and then rush to court
especially the magistrate court to get a detention order to keep
the person in prison custody for a long period of time beyond the
constitutional provision pending trial.
Black’s Law Dictionary defines the term “holding charge” as a
criminal charge of some minor offence filed to keep the accused in
custody while the prosecutor takes time to build a bigger case and
prepare more serious offence.
JUDICIAL PRONOUNCEMENT
The courts, especially the Supreme Court, have in a plethora and
gazillion of decided cases held that the concept of “holding
charge” is patently illegal and unconstitutional.
In ONAGORUWA VS THE STATE (1993) 7NWLR (Pt 303), the Court of
Appeal, per Niki Tobi J.C.A, as he then was, held: “It is an
elementary but most vital requirement of our adjectival law that
before the prosecution takes the decision to prosecute, which is a
forerunner or precursor to the charge decision, it must have at its
disposal all the evidence to support the charge.”
The court further stated that in a good number of cases, the
police in this country rush to court on what they generally refer
to as holding charge, even before they conduct investigations,
though there is nothing known to Law as “holding charge”.
Also in the case of SHAGARI VS C.O.P (2007) 5 NWLR (pt 1027) 275
at 298 para c-g 302 the court Per Ogbuagu J.C.A held “A holding
charge is unknown to Nigerian law and any person or an accused
person detained under an “illegal”, ‘unlawful’ and
“unconstitutional” document tagged holding charge, must be released
on bail.
Furthermore, in BOLA KACE V THE STATE (2006) INWLR (pt 962) 507
at P. 765, the court expressed the same views in the following
words: “It is an aberration and an abuse of judicial process for an
accused person to be arraigned before a Magistrate Court for an
offence over which it has no jurisdiction, only for the accused
person to be remanded in prison custody and not tried or properly
charged before a competent court for trial. It will be an
infraction on the right to fair hearing and liberty of the accused
person.”
LEGISLATIVE ENACTMENT
In what appears to be a legislative usurpation of the powers and
authorities of the court, the National assembly via the enactment
of the Administration Of Criminal Justice Act 2015, in sections
293-299 of the Act, appears to render nugatory the decisions of the
courts as regards to “Holden charge”, by empowering the law
enforcement agencies to arrest and detain a person in custody
beyond the constitutional provisions. Also the Administration of
Criminal Justice Law Lagos State 2011 appears to give an open
cheque to the law enforcement agents to arrest and detain a suspect
under the guise of holding charge. See Section 264 of the ACJL
provision
CASE STUDY
The negative effect of “Holden charge” will be illustrated using
two case scenario that have happened in the past, to exemplify the
foul effect of Holden charge and pre trial remand.
The cases are SIKIRU ALADE:
He was arrested on 9th march 2003, and forcefully taken to Ketu
police station where he was detained. Six weeks later (15th may
2003) he was taken to court by way of holding charge on allegation
of armed robbery. The court ordered his remand in prison, and he
was not returned to any court of competent jurisdiction, and
thereafter remained in prison for 9 yrs 6 month without a trial or
formal charge before any court of law.
Eventually on application at the ECOWAS court of justice, the
court held that his detention for almost 10 yrs without trial
violate his right under the African Charter on Human and Peoples
Right. He was eventually released on 18th September 2012.
HYGENUS AJIBO:
He was accused of murder and arrested in 1997, where he was
remanded under Holden charge and spent 16 years from the date of
his remand in prison custody without trial until he was eventually
granted bail on the 17th February, 2014 pending the determination
of his trial. There are also avalanche and plethora of
cases like this in our prisons that have not received the needed
attention
OPINIONS
There has been a lot of condemnation as regard the concept of
Holden charge. One of the most vociferous critics of this concept
is the learned silk, Mike Ozekhome SAN. In an article published in
Premium Times, the Learned silk opined that the concept of Holden
charges is illegal and the provisions of the ACJA in support of
holding charge is unconstitutional.
Also from familiar quarters, the former chief Justice of Nigeria
Mariam Mukhtar on a session held to mark the 2013/2014 legal year
stated that; it is common knowledge that our security agencies
usually rush to court with suspect before looking for
evidence to prosecute them. This procedure is a far cry from what
obtains in other democracies, where discrete surveillance is placed
on crime suspect who are painstakingly stalked by security agent,
until such a time when evidence would have been obtained for their
arrest, arraignment and prosecution.