The Holding Charge Syndrome (PDF/DOC)
The criminal justice system revolves around three cardinal institutions: the police, court and prison. These institutions are partners in our failing criminal justice system, due to some practices that are inimical to the interest of society. Thus, the incalculable harm being wrecked on the Nigerian criminal justice system by the holding charge practice cannot be justified. Holding charge which involves the bringing of a suspect before an inferior Court that lacks jurisdiction to try him or her for the primary purpose of securing a remand order, in order to look for a prima facie evidence in support of the allegation against the suspect and thereafter abandon him or her in prison under the pretext of awaiting trial, leaves one to wonder whether the presumption of innocence is tenable in Nigeria. Holding Charge Syndrome
This is because under this practice, an accused is presumed guilty until he or she proves his innocence. Also, the crisis of congestion in our prison is the result of the holding charge practice. It is trite, that jurisdiction is the life-wire of any litigation whether civil or criminal and the base on which adjudication rest. It follows that there is obviously an anomaly in bringing a suspect for remand before a magistrate who has no power to impose penalty for the indictable offence allegedly committed by the suspect. Therefore, the practice by magistrate courts who lacked Jurisdiction in indictable offence, but goes on to remand the suspect under holding charge have been considered unconstitutional, because it is a threat to the accused person’s rights to personal liberty, dignity, and fair hearing granted by the 1999 constitution (as amended). However, some states laws have given the magistrate court the impetus to continue with this harmful practice without regard to the provisions of the grundnorm.
Consequently, this research work, in chapter one will take a look at the historical inception of holding charge; chapter two will focus on the meaning of the monster called holding charge, the reason for its adoption and the illegality. Chapter three will discuss on the rights of accused persons and how holding charge have thwarted its realization. Chapter four will examine the effect of holding charge in the criminal justice administration in Nigeria. The last chapter contains observation and recommendation, mainly on abrogation of all the laws that gave magistrate courts powers to remand suspects on indictable offences even when they have no jurisdiction.
It is my paramount objective in this research to do the followings:
- To examine the legal concept of holding charge and remand orders by magistrate courts.
- To examine holding charge as it affect human rights of a suspect as provided in our constitution.
- To unearth the difficulty posed by the practice of holding charge in the administration of criminal system in Nigeria.
- To state the constitutionality or otherwise of the holding charge syndrome.
- To examine the effect of holding charge to prison congestion and the inhuman conditions of prisoners under awaiting trial.
- To x-ray case laws and statutes in order to understating the courts’ view on the holding charge syndrome, and to proffer suggestions on how criminals in Nigeria should be dealt with.
- To provoke wider thoughts on better ways to safeguard the rights of the suspects as against what is obtainable under holding charge practice.
- To proffer solutions to all the problems identified during the research work.
Having studied the practice of holding charge, and how it have served as a clog in the wheel of effective and efficient administration of our criminal justice in Nigeria, the following questions have been formulated, with the hope to address them in the course of this research.
- What is the legality of taken a suspect accused of committing a capital offence to magistrate courts that have no jurisdiction in order to secure a remand order by the police?
- If the practice is illegal, then why is it still in practice?
- What is the attitude of the judiciary towards this practice in the course of interpreting the constitution and administering justice?
- What is the attitude of the executive arm of government who enforce the law as regards courts decision about the practice?
- What is the validity of states law that have legalize this practice vis-à-vis the constitution of Nigeria?
- What is the legality of remand orders by our magistrate courts on indictable offences which they lack the jurisdiction to entertain?
- Whether by the decision of the Supreme Court in E.A. Lufadeju and Anor v. Evangelist Bayo Johnson,33 it could be rightly said that the apex court approves holding charge practice.
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