Nigeria’s ‘Holding Charge’ Policy Affecting Access To Justice

Sikiru Rahman, 24, was arrested by the police in January 2020 while returning from work at Badore, Lagos, Southwest Nigeria. Police took him to Ajiwe Station, where he was denied access to his relatives, including his sick mother. Thus began his six-month detention in the dreaded Kirikiri Prison without trial.

The pre-trial detention system has become a norm in Nigeria, with hundreds of unconvicted people in prisons, sometimes because they cannot afford bail. Other times, the courts sitting on their cases lack jurisdiction on the matter.

For Rahman, both happened. He was unjustly arrested and could not afford the service of a lawyer. The police accused him of armed robbery but arraigned him before a Magistrate who neither has power to hear the case not impose penalty for the indictable offence allegedly committed by the suspect. 

In violation of his right to personal liberty, he was remanded in Kirikiri until his family got a lawyer to represent him and had the charges struck out by a High Court. The development, according to  lawyers, was considered unconstitutional and they accused the police of causing congestion in prisons through ‘holding charge’ practice. 

Holding charge is the practice of bringing suspects before an inferior Court that lacks jurisdiction for the primary purpose of securing a remand order, to look for evidence in support of the allegation against them and thereafter abandon the suspects in prison under the pretext of awaiting trial.

Many lawyers told HumAngle that police engage in the practice to justify Section 35 of the Constitution of the Federal Republic of Nigeria 1999, as amended. The Law frowns at detention of arrested suspects for more than 48 hours without being charged to court.

In his submission, Mike Ozekhome, a Senior Advocate of Nigeria (SAN) said holding-charge has become a norm in Nigeria because police often carry out “arrest-before-investigation” rather than “investigation-before-arrest” which is illegal.

“It is an aberration and an abuse of judicial process for an accused person to be arraigned before a Magistrate 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 rights to fair hearing and liberty of the accused person,” the senior  lawyer said.   

Speaking at the opening ceremony of the fifth annual general conference of the section on legal practice of the Nigerian Bar Association (NBA) in November 2011, ex-Chief Justice of Nigeria, Dahiru Musdapher condemned the use of holding-charge, admitting that it is responsible for congestion of prisons. 

More so, in the case of Shagari v. C.O.P. (2007), the Appeal Court held that holding charge is unknown to Nigerian Law and any person detained thereunder, is entitled to be released on bail within a reasonable time before trial.

HumAngle has done a series of reports on overcrowded prisons in Nigeria with prisoners having very little freedom of movement. The development has in the past caused damage to their physical and mental well-being. 

Prison conditions in Nigeria have accounted for the outbreak of infectious diseases and mental health issues. Proper hygiene is not maintained and a good diet is not guaranteed, which later affects the healthy living of inmates, research shows.

Aside from the inhumane treatment inmates are subjected to, overcrowded prisons cost a lot of money as Nigeria claims to be spending N7.6 billion annually on awaiting trial inmates alone. Data from the prison authority revealed that about N450 is spent daily on each inmate, amounting to N21.3 million daily. 

The  country has experienced a number of jailbreaks in the last few years leading to the escape of many inmates. The jailbreaks cut across various states in different regions of the country. As part of efforts to address overcrowding, Interior Minister Rauf Aregbesola said the government is working on building 3000-capacity custodial centres in each geo-political zone of the country.

Emphasising the danger of holding-charge, Daniel Onwe, a lawyer and human rights activist told HumAngle that the police try to commit an offence through the instrumentality of a Court of Law. 

“They are aware that delaying suspects beyond reasonable time is illegal so they perceive themselves as not violating the law when they get the directive of Magistrate Court to remand suspects of capital offences.”

Onwe also argued that Courts without jurisdiction to hear certain cases must start sending suspects back to police custody rather than remand them in prison custody because holding charge is wrecking on Nigeria’s Criminal Justice system.

“All institutions in the Criminal Justice System must work together to end  the unconstitutional concept known as holding-charge because justice delayed means justice denied. It is time for reformative training for the Police, promoting the rule of law and weeding out any form of unconstitutional practice. It would go a long way to help decongest our prisons.”