The provisions of sections 293-299 of the Administration of Criminal Justice Act, 2015, (ACJA), created a serious problem which could be seen to have undermined the constitutional provisions of section 35; the problem it created is that it tends to give an open cheque to Magistrates courts to entertain holding charges, order the remand or issue the remand warrant to law enforcement agencies against suspects without trial. The law enforcement agencies have serially exploited this thereby making a joke on the constitutional provisions of personal liberty and suspects’ right to bail.
It has been in the spirit of the Constitution that nobody should be denied his personal liberty under any circumstance, including an accused person but law enforcement agencies have adopted this mischievous tactic to circumvent the constitutional provision of the protection of the liberties of an accused person is through this practice of remand warrant or holding charge.
Remanding a suspect in custody is just a careful way the law enforcement agencies use to deny a suspect his right to bail. The word remand simply means to recommit (an accused person) to custody after a preliminary examination or to return to custody pending trial or for further detention. Holding charges on the other hand is done when a charge is filed against a suspect for a minor offense to keep the suspect in custody while the prosecutors gather more evidence and prepare more serious charges. It is simply a temporary charge so as to keep the person in detention before the real charges are filed.
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Mind you that the provisions of section 35 of the Constitution are unwavering as the umbrella that protects the liberties of individuals; be it an innocent person or an accused person.
Subsection 1 of section 35 provided as follows; (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some cases and in accordance with a procedure permitted by law, as outlined in 1(a) to (f).
Subsequently, subsection 4 provided thus; Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time. By the wide interpretation of this section 35(4(1c), a reasonable time has been held to be no later than 48 hours. This is to say that the law enforcement agency must not detain a suspect not later than 48 hours without releasing him on bail or charging him to court but with the mischievous practise of “holding charge” or remand warrant, a law enforcement agent can decide to get a remand warrant from the magistrate court and detain a suspect longer than 48 hours.
Despite the fact that the court has consistently frowned against this practice of holding charges in a plethora of cases, law enforcement agencies still engage in the practice. In the case of Olawoye V. C.O.P. (2006), 2 NWLR the Court of Appeal authoritatively stated that the arraignment before a Magistrate Court in a case where the magistrate court lacks jurisdiction is tantamount to a holding charge and it is unconstitutional and illegal. Also In the case of Enwere v. C.O.P., it was held that “holding charge” is unknown to Nigeria Law and an accused person detained thereunder is entitled to be released on bail within a reasonable time before trial. A similar position was held by the court in the case of SHAGARI V. CO.P. (2007) 5 NWLR where it held that “holding charge is unknown to Nigerian law and any person or an accused person detained thereunder, is entitled to be released on bail within a reasonable time before trial”.
I, therefore, expect law enforcement agencies, going forward to know that the Constitution of the Federal Republic of Nigeria in section 35 frowns at the practice of holding charge and therefore being a superior law invalidates and renders nullity the provisions of sections 293-299 the Administration of Criminal Justice Act, 2015, (ACJA) which has presumptuously given the room for this mischief.