Constitutional Validity of Pre-charge Detention of Suspects -By Femi Falana

Introduction

Last month, some of the principal suspects implicated in the probe of the $2.1 billion and N643 billion armsgate were nabbed by the Economic and Financial Commission. As investigation of the complaints could not be completed within 24 or 48 hours, the EFCC filed ex parte applications at the magistrate courts of the Federal Capital Territory for the remand of the suspects pursuant to Section 293 of the Administration of Criminal Justice Act, 2015 (ACJA). Based on the gravity of the offences diclosed in the supporting affidavits, the applications were granted by the magistrate courts. Not a few judges and lawyers have challenged the constitutional validity of section 293(1) of the ACJA which has vested magistrate courts with the power to issue remand orders for the detention of criminal suspects pending arraignment in courts of competent jurisdiction.

The opposition to the pre-charge detention of criminal suspects is erroneously predicated on the belief that it is tantamount to a holding charge, which has been declared illegal and unconstitutional in a plethora of cases decided by the Court of Appeal. In this brief contribution to the debate, we shall highlight the difference between pre-charge remand and holding charge. We shall then conclude by drawing the attention of critics to the case of Lufadeju v Johnson (2007) 8 N.W.L.R (PT 1037) 535 wherein the Supreme Court laid the controversy to rest by upholding the constitutional validity of pre-charge detention of criminal suspects in Nigeria.

Illegal directive banning magistrates from issuing remand orders

Sometime last month, the Honourable Justice Ishaq Bello, the Chief Judge of the High Court of the Federal Capital Territory was reported to have directed all magistrates in the Federal Capital Territory to desist from issuing remand orders for the detention of very important personalities being investigated by the Economic and Financial Crimes Commission for the criminal diversion of public funds to the looting the treasury of the country. Curiously, the Chief Judge neither accused the magistrates of exceeding their powers nor cited any law to justify the unwarranted directive.

Since the issuance of pretrial remand orders, which are designed to subject the detention of criminal suspects by law enforcement agents to the supervision of magistrates is not illegal, I was compelled to state that “the Chief Judge lacks the authority to countermand or invalidate the powers conferred on magistrate courts to issue remand orders by a valid and subsisting Act of the National Assembly. In other words, the directive issued ex cathedra by the Chief Judge has no binding effect on the powers of magistrates in the Federal Capital Territory to issue remand orders for the detention of criminal suspects.”

In justifying his stand the learned Chief Judge has said that his directive was not directed solely at the EFCC but meant to prevent abuse of such power by magistrates. His lordship advised the anti-graft agencies to apply to the High Court for remand orders as it has unlimited jurisdiction, unlike magistrate courts. With respect, the clarification has not addressed the allegation that the directive has violated section 293(1) of the ACJA. Contrary to his lordship’s contention the “unlimited jurisdiction of the Federal Capital Territory does not extend to cases of terrorism, money laundering, treason etc. which can only be tried by the Federal High Court.

Pre-Charge Detention or Holding Charge

Section 35 of the Constitution of Nigeria 1999 and Article 6 of the African Charter on Human and Peoples’ Rights guarantee the right to personal liberty of every person living in Nigeria. In a plethora of cases, the courts have upheld the fundamental right of citizens and foreigners alike to freedom from unlawful arrest and detention. To ensure that the right to personal liberty is respected, it can only be encroached upon in a manner permitted by law. In other words, a person may be lawfully arrested or detained if there is reasonable suspicion that he/she has committed a criminal offence. Any person whose right to personal liberty has been breached without recourse to law is entitled to apply to a high court to secure release from custody and payment of compensation accompanied by public apology.

Specifically, section 35(1) of the Constitution provides for the detention of any person “for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.” It is further provided that any person arrested or detained “shall be brought before a court of law within a reasonable time” and shall be released either conditionally or unconditionally, if not tried within a period of two months from the date of arrest or detention in the case of a person who is in custody or not entitled to bail.

The term “reasonable time” within which a person shall be brought to court means a period of one day, where there is a court of competent jurisdiction within forty kilometre radius and in any other case, a period of two days or such longer period as may be considered by the court to be reasonable. To ensure that criminal suspects are not detained indefinitely, section 293 of the ACJA has vested Magistrate Courts with powers to order the remand of criminal suspects. To that extent, a pre-charge detention of a criminal suspect within the period allowed by the Constitution or on the order of a court does not constitute a violation of the right to liberty guaranteed by Section 35 of the Constitution.

In challenging pre-charge remand, some senior lawyers have contended that pre-charge detention is illegal. In a well publicised article, Chief Mike Ozekhome (SAN) stated that, “Aside the fact that Sections 293-299 of the Administration of Criminal Justice Act violently violate Section 35(4)(e) (5) of the Constitution… they also presumptuously create a ‘holding charge’ which has been declared by the highest courts of the land, to be patently illegal, unconstitutional, null and void.” Since these views are at variance with the current human rights legal regime in Nigeria, it is germane to point out that while holding charge remains illegal and unconstitutional, a remand order issued by a magistrate for the detention of criminal suspects for the purpose of investigation is not illegal.

The attention of the “critics” ought to be drawn to sections 293-299 of the Administration of Criminal Justice Act, 2015 (ACJA) which stipulate that a suspect arrested for an offence which a magistrate has no jurisdiction to try shall, within a reasonable time, be brought before a magistrate court for remand. The order which shall be for a period not exceeding 14 days may be further extended provided that if the investigation is not concluded, within 28 days the court may summon the appropriate authority to show cause why the suspect should not be unconditionally released. Suspects who are remanded in custody are at liberty to ask for bail or apply to the appropriate high court to secure the enforcement of their fundamental right to personal liberty.

With respect, Chief Ozekhome has equated pre-charge detention with a holding charge. A holding charge is the practice of filing a charge and arraigning a criminal suspect before a magistrate, which lacks the jurisdiction to try a case while pre-charge detention refers to a period of detention of a criminal suspect before the filing of a charge before a competent court. Chief Ozekhome’s submissions on the illegality of a holding charge cannot be faulted. In fact, one of the cases cited by him is that of Ogor v. Kolawole (1983) 1 NCR 342. In that case, my submission on the illegality of a holding charge was upheld by Ayorinde J. (as he then was). That was the first judicial pronouncement of the High Court on the matter. It was however adopted by the Court of Appeal in Enwere v. C.O.P (1993) 6 NWLR (PT 299) 333.

It is germane to point out that Section 293(1) of the Administration of Criminal Justice Act is in pari materia with section 364(1) of the Administration of Criminal Justice Law of Lagos State, 2011 (ACJL) Section 363(2) of the Lagos State Criminal Procedure Law, 2007 had provided that “If any person arrested for any indictable offence is brought before a magistrate for remand, such Magistrate shall remand such person in custody or where applicable grant him bail pending the arraignment of such person before the High Court.” The constitutionality of Section 363(2) of the repealed law was challenged in the case of Lufadeju v Johnson (supra).

In that case, the defendants were brought to the Magistrate Court on a holding charge of treason. The police prosecutor, Nuhu Ribadu Esq. applied for the remand of the defendants pending their arraignment at the High Court. Even though I vehemently opposed the application, it was granted by the learned Chief Magistrate. However, I did not appeal against the remand order as I felt that the Chief Magistrate was perfectly in order, having not taken the plea of the Defendants. But one of the Defendants, Evangelist Bayo Johnson did not agree with me. So, he briefed Norrison Quarters to challenge the legality of the remand order at the High Court. The application which was brought under the Fundamental Rights Enforcement Procedure Rules 1979 for the enforcement of the fundamental right of the Applicant to liberty was dismissed by the High Court on the ground that the remand order was valid.

But the Court of Appeal held that Section 363(2) of the Lagos State Criminal Procedure Law, 2007 was illegal and unconstitutional. Dissatisfied with the decision the Lagos State Government appealed to the Supreme Court. Upon hearing the matter, the constitutional validity of pre-charge detention was upheld by the apex court. According to Muktar J.S.C (as she then was):

“I do not see that there is conflict between the provision of Section 236 (2) of the Criminal law supra and the provisions of Section 32 of the Constitution supra. The fact is there was strong suspicion that the respondent and some others have committed an indictable offence to wit – treason. After their arrest by the police, there was the need to property and lawfully keep them in custody, and the only way to do this was to take them to a Magistrate court who would in turn remand them in custody. They couldn’t possibly continue to remain in police custody without the order of a court concluded, the legal advice of the Ministry of Justice-is sought…

On the presumption of innocence as laid down in Section 33 (5) of the supra Constitution, I fail to see anything in the record before us that there was a contrary presumption in respect of the appellant. The appellant and his co-accused were taken before the Magistrate Court for the purpose of lawful remand in custody; and that was exactly what the Chief Magistrate did. She did not ask him of whether he was guilty or not, so the issue of his innocence didn’t come to play at that stage of the proceedings.”

“But instead of applying to the High Court for bail, the appellant embarked on challenging the legality of the remand order made by the learned Chief Magistrate. It is necessary to state that section 236(3) of the Criminal Procedure Law is aimed at ensuring judicial control of those arrested by the police on criminal allegations. The power of the police to detain a suspect is restricted by law to specific number of days. They are therefore required within the period to bring the suspect before a court for the purpose of an order for further remand, if need be. The appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offense.”

In the light of the foregoing, it is submitted that pre-charge detention of a criminal suspect is not illegal as Section 35 of the Constitution provides that a criminal suspect may be detained by the police for a maximum period of two days or for a longer period on the orders of a court. Where criminal suspects in custody are not promptly charged to court, the detaining authority is required to apply for a court order to legitimise the detention. This is to ensure that no one is held in custody without any legal basis or due process of law.

Conclusion

Having regard to the clear provision of section 293(1) of ACJA, it is undoubtedly that the challenge of the legality of pre-charge remand order is anchored on the erroneous belief that it is a holding charge. But in view of the lucid judgment of the Supreme Court in Lufadeju v. Johnson (supra), a remand order made by a Magistrate for the detention of criminal suspects pending their arraignment in a court of competent jurisdiction is not illegal. Since the remand order is based on an ex parte application filed by the police or other detaining authorities the question of taking the plea of criminal suspects does not arise.

Finally, it should be noted that the provisions of the ACJA are not of general application in the country. Being a federal enactment, ACJA is only applicable in the federal capital territory. Apart from Lagos State and a couple of states with laws which are similar to the ACJA, the criminal procedure and penal code procedure applicable in the other states have not been amended. In view of the progressive provisions of the ACJA, the law ought to be adopted by other states to ensure uniformity in the administration of criminal justice in the country.

Femi Falana, a Senior Advocate of Nigeria, writes from Lagos.