YEJIDE GBENGA-OGUNDARE went inside the Agodi Custodial Centre of the Nigerian Correctional Service. Her report is a reflection of the struggles of the Service in the management of its facilities nationwide, which are under the weight of burgeoning number of Awaiting Trial Inmates (ATM) that makes maintenance difficult, despite diverse innovations to put an end to the challenge.
When the Chief Judge of Oyo State, Justice Iyabo Yerima on Monday, March 18, visited the Agodi Custodial Centre of the Nigerian Correctional Service in furtherance of the exercise of her power of release from custody as provided in Chapter 40, Laws of the Federal Republic of Nigeria and the Administration of Criminal Justice Law (ACJL) 2016, Oyo State of Nigeria, the centre which has a capacity to house 380 inmates had an Open House of 1250, out of which 177 had been convicted and 1049 inmates, awaiting trial.
This means the centre had 870 inmates more than its carrying capacity, causing a lot of challenges especially in terms of maintaining peace and curbing outbreak of diseases.
The Comptroller of Prison, Oyo State Command, Abdulraheem Salami, confirmed this after the decongestion exercise when he said that the exercise of prerogative of the CJ’s pardon of inmates was an answer to his appeal as the prison was already overstretched, noting that they are only trying to maintain law and order as well as prevent an epidemic outbreak.
Indeed, seeing the magnitude of the challenge, Justice Yerima after releasing 32 inmates; 31 unconditionally and the last one sentenced to community service for stealing a phone, said in the face of the law, every suspect is deemed innocent until proven guilty, adding that because the prisons are congested, there is a need to look at ways to remedy the situation and reduce the over-bloated prisons, “especially in order to avoid outbreak of diseases on a basis of incarceration that is too long than the penalty if convicted and people that have contagious diseases, in line with statutory provision for release of the inmate.”
She further stated “There is congestion in the prison and that is why we are here. The administration of criminal justice provides for decongestion of prison as a statutory responsibility. We have a statutory duty under the constitution to frequently decongest the prison
“The exercise is for those unlawfully arrested or has stayed behind bars longer than the period they should have stayed if convicted; those whose trial has been unduly delayed or those whose condition requires being shown mercy in line with the provision of the law.”
The Chief Judge said that the exercise on Monday was tedious due to some administrative lapses in some quarters but explained that the exercise would be carried out every three months so that the exercise of decongesting the prisons will be effective.
Prison congestion is a challenge faced by many countries and the Nigerian Correctional Service (NCS) is not insulated from this problem Across the country, the Nigerian Correctional Service is known to be grappling with congestion of inmates in its facilities and most of these inmates are not convicts but inmates awaiting trial who ultimately stay in correctional centres for long periods of time without their status being determined.
It was discovered that the situation was exacerbated because most of them couldn’t meet bail conditions or their offences are capital in nature.
As a result of the overstretching of facilities at correctional centres which take a toll on both correctional officers and the inmates, the need to reduce the high incidence of prolonged detention of pre-trial inmates has been on the front burner of issues in the country for quite a while.
It was the major reason that non-custodial sentences in the form of community service and the adoption of plea-bargain, where an accused person pleads guilty to the commission of a lesser offence in exchange for a lighter sentence were introduced.
Why prisons are congested
Many reasons have been adduced for continuous congestion of prisons in Nigeria aside the prevalent issue of defendants not being able to meet bail conditions. Speaking with Nigerian Tribune, a legal practitioner, Bibire Adebayo, stated that “the effect of the holding-charge procedure that allows the Nigerian police to arraign individuals before lower courts that do not have jurisdiction to try the alleged crimes for the purpose of remanding individuals in prison custody pending the time of completion of an investigation into their matters by the police or getting legal advice which usually takes a long period is what we see turning into congestion.
“So many suspects are dumped in the custodial centres when remanded and forgotten as there is no urgency in treating their cases. These are matters treated as overnight across the magistrate’s court and many of them do not meet bail conditions and are forgotten because the complainants also lose interest in the matter. The implication of the holding-charge procedure for the criminal justice system in Nigeria is clearly seen in the current congestion that is experienced; it is basically a major contributor to the high number of awaiting trial detainees and I think this system should be reformed,” he added.
Subuola Adeoti, a social worker with a nongovernmental organisation, stated that “the Nigerian Police contributes to the congestion in Nigerian prisons due to poor and shoddy investigation that leads to countless adjournments and prolong the incarceration of individuals in addition to other issues like failure to submit case files on time for procurement of legal advice from the office of the Director of Public Prosecution, who decides whether a suspect has a case to answer or not.”
Holding charge
Under the Nigerian administration of criminal justice system, there are two laws that regulate criminal proceedings; the Criminal Procedure Act (CPA) and the Criminal Procedure Code (CPC). Under the CPA, the police is mandated to submit a report to the nearest magistrate’s court of persons, in its custody, arrested without a warrant and such report must also indicate whether they are on court bail or not.
Also, it is expected that the police will arraign persons in its custody within 24 hours of their arrest before a magistrate’s court that has jurisdiction to determine the charges against the suspects and where their arraignment is not possible within a short period, admit them to bail if the allegations do not relate to offences that upon conviction, are punishable with death
On its part, CPC provides that the police shall not detain a person in its custody for more than 24 hours. But the police can apply to a court for authority to detain a person for a period that does not exceed 15 days.
Under the CPC, the police, where there are reasonable grounds to believe that an offence has been committed, will record the grounds of these suspicions on a form known as the First Information Report (FIR) and the suspects are arraigned before a magistrate’s court, where the police prosecutor is given the opportunity to present its prima facie evidence that the allegations contained in the FIR are true.
If the magistrate, after having conducted the initial inquiry, is satisfied that the allegations in the FIR have not been substantiated, the suspects will be discharged but when the prosecution provides evidence that leads the court to believe that the accused persons have a case to answer, charges are framed by the magistrate and the accused persons will take a plea. If they plead not guilty, they will be given an opportunity to enter a defence against the charges against them.
But these provisions on criminal proceedings have not stopped what is called a holding charge procedure where the police arraigns a person suspected of having committed an offence before a magistrate’s court under a ‘phony or miniature charge’ in order for the court to remand the suspect in prison pending the conclusion of their investigation into the matter. After concluding the investigation, the individual is formally arraigned under a proper charge before a court of competent jurisdiction and the initial pseudo charge is withdrawn.
The holding charge is used by the police also in cases where individuals are suspected of having committed capital offences, leading to accused being arraigned on a FIR.
The Supreme Court of Nigeria has instructively described FIR as “just a report that an offence has been committed” and police have been discovered to regularly arraign suspects on FIRs before magistrate’s courts that do not have the jurisdiction to determine the alleged offences.
The sole aim is to secure a remand order.
This practice of arraigning suspects before courts without requisite jurisdiction, by the police, just to get a remand order, is a major reason for the congestion of custodial centres, findings have shown.
According to Nweke Ben, a legal expert, “the practice is not known to law and an injustice which should be stopped as it has caused many people awaiting trial to remain in custody for years more than the law prescribes as penalty even if they are found guilty. The police only use the holding charge procedure to protect themselves from being held accountable if they exceed the time limit provided in the constitution of holding individuals in custody”
Another lawyer, Abiona Ogunsola, said “I don’t know why the procedure of using a holding charge is taken as acceptable by law enforcement agents and even the courts because it is alien to the Nigerian jurisprudence. I don’t even know where the system originates from.”
Conflicting decisions on holding charge
While there seems to be a consensus that holding charge is an aberration to law, it is difficult for stakeholders to actually condemn the procedure based on conflicting judgments given by courts on the legality of the holding charge.
One of such judgments is the ruling of the Supreme Court in the case of Onagoruwa v The State. The court held 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 investigation. “Where the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure conviction, the best discretion is to abandon the matter and throw in the towel. On no account should the prosecution go out of its way to search for evidence to prosecute when it is not there.”
The ruling frowned on the application of the holding charge procedure as it held that before an accused is brought before any court it should be assumed that the case is ripe for hearing and not for further investigation and individuals must not be there on mere suspicion, which cannot be regarded as reasonable suspicion under the Constitution of the Federal Republic of Nigeria.
But the Supreme Court held a contradictory position in the case of Lupadeju v Johnson when it ruled that a magistrate’s court has the power to remand a person suspected of having committed an offence on the presentation of a charge signed by a police officer, notwithstanding the fact that the magistrate’s court lacks the jurisdiction to try the allegations contained in the charge.
Conflicting rulings of the kind above, have created a haze of uncertainty on the legality of the application of the holding charge and this has consequently given the police the leeway to continue using it as an excuse to keep individuals in detention for more than five years on the premise that they have not completed their investigations, contributing to the delay in the determination of criminal cases and subsequent prolonged detention. Often, the people affected by the power of the holding charge are forgotten, so they are in the system with no one remembering their existence except when there is an opportunity for amnesty or prison decongestion.
ACJA’s provision on holding charge
The Administration of Criminal Justice Act (ACJA) was put in place to deal with the shortcomings in the criminal justice system and replace both the CPA and the CPC by ensuring speedy dispensation of justice, efficient management of criminal justice institutions, protection of the rights and interests of defendants, suspects and victims as well as protection of the society.
The ACJA introduces time limits to prevent the excessive detention of individuals on the holding charge, but it has raised concern that the provision gives legality to the use of the holding charge by conferring jurisdiction on magistrate’s courts which they ordinarily lack.
An analyst opined that legitimising the holding charge has defeated the entire objective of the reform of the ACJA relating to arbitrary detention which it was established to remedy. He expressed the belief that giving legal teeth to the holding charge is a setback to the criminal justice system and an antithesis to equity and the rule of law.
Years after the introduction of ACJA, the custodial centres rather than see less traffic are bursting at the seams with influx of awaiting trial inmates, escalating an already bad situation.
A cry for help
A nongovernmental organisation, the Centre for Justice, Mercy and Reconciliation on March 18, made a case for 32 inmates. The organisation in a letter to Justice Yerima pled for attention to address the unjust detention of 32 inmates.
In the letter signed by its Executive Director, Hezekiah Deboboye Olujobi, the group said it wrote to inform the Chief Judge of the unjust detention of 32 individuals who have been awaiting legal advice from the DPP between 2015 and 2021, adding that despite numerous letters written to the Ministry of Justice and the Oyo State Commissioner of Police to request for the true position of their case files, they did not receive a positive response.
“The OPP has also written to the Commissioner of Police and the O.C. Legal since 10th January 2024 to forward these case files to the Ministry of Justice, but as of last week Thursday, we were informed that he is yet to receive a response from them. Our investigation has revealed that all 15 people detained between 2020 and 2021 are victims of the Covid-19 pandemic and the JUSUN strike.
“Our interactions with some of the IPOs of the cases revealed that they had to bring some of these people to the prison as nobody came forth for their bail while in the station. Additionally, the Ministry of Justice was closed, preventing the duplication of their case files.
“Efforts to trace the case files have not yielded any positive results. Since their detention, some of them have not been going to court. It was as a result of our intervention that reproduction warrants were issued, and they are now appearing in court.
“For those who have been in detention since 2015-2019, we could not establish the reasons for their missing case files. The question now arises: what were their offenses? They were related to conspiracy, armed robbery, and attempted robbery.
“Some of their stories were related to stolen phones, with some admitting to the theft but the owners having retrieved their phones. Another individual confessed to attempting to snatch an okada, and on the spot, the okada man took back his okada, but he was taken to the police station by others. These are the reasons why some of them have spent nine to seven years in detention.
“My Lord, their stories do not matter to us; what matters is true justice. If they have committed such grievous offenses, it is unjust to keep them behind bars for such a long period without a case file for their prosecution.
“We appeal to Your Lordship to help us find a solution to this problem by ending the injustice. Their safety reentry to the society is part of our duty,” Olujobi stated.
He gave the breakdown of the number of individuals detained each year to include; two people in 2015, two people in 2017, seven people in 2018, six people in 2019, four people in 2020 and 11 people in 2021.
The overwhelming number of awaiting trial inmates in Nigerian custodial centres continues to defy solution despite legal safeguards and it has been advocated that to control prison population, there is need to control two major factors; the prison reception rate, that is, the rate at which persons are received into prison and the duration in custody.
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