ARREST, REMAND AND AWAITING TRIAL SYNDROME IN CRIMINAL JUSTICE: FIXING THE JIGSAW TO END PRISON CONGESTION - BEING A PAPER PRESENTED BY HIS EXCELLENCY, PROFESSOR AMOS AGBE UTUAMA, SAN, BL., LL.M, Ph.D., McIArb (UK), FNIALS, FNITP (Hon), IMMEDIATE PAST DEPUTY GOVERNOR, DELTA STATE, UNITED NATIONS (POLAC) AMBASSADOR FOR PEACE, IN THE SECOND SESSION AT THE FIFTH CRIMINAL JUSTICE REFORMS CONFERENCE IN ASABA OF THE NIGERIAN BAR ASSOCIATION ON THE 25THDAY OF APRIL, 2018.
1.0INTRODUCTION
Let me start by thanking the Chairman and members of the Administration of Criminal Justice Reform Committee of the Nigerian Bar Association for inviting me as the lead speaker in the second session of the Conference with the sub-theme “Arrest,Remand and Awaiting Trial Syndrome in Criminal Justice: Fixing the Jigsaw to end Prison Congestion”.
In the letter of invitation, my choice, as a lead speaker, was said to be based on my “acknowledged expertise” in this sector. I share your humor and flattery. Seriously speaking, I recall that my first contact with administration of criminal justice is limited to my study of criminal law in the University and Criminal Procedure at the law school. I also recalled that I undertook criminal trials as Attorney-General. I do hope that these experiences are enough to equip me to lead the discussion.
No less a person than the President of our country, President Muhammadu Buhari, once lamented the overcrowding of many of our prisons. This, he put at 90 percent of awaiting trial inmates. The Honourable Minster of Internal Affairs, Abdulraham Dambazau, is little more moderate in the figure of awaiting trial imamates in Nigerian prisons. He states this to be between 70 – 80 percent.
This high rate of awaiting trial occupancy of our prisons belies the nature of prison as a place meant for ex-convicts. The Nigerian prison population of awaiting trial is only perhaps, comparable to the situation in Indian which is generally put at about 78% overcrowding on the average. Needlessto say that by international standards the Nigerian prison population,like that of India, is extremely high. From available literature, awaiting trial population inU.K; U.S and France prisons is 11, 20 and 29 percent respectively.
It is believed that the prison congestion syndrome that characterizes administration of criminal justice in our country has been as a result of the dysfunctional law on arrest and remand. This may not be seriously disputed. The staggering high number of awaiting trial inmates in our prisons may support this thesis. However, there appear to be other factors. These include socio-economic factors resulting in massive unemployment of the youth, predisposing them to criminal activities, insufficiency of prison facilities due to constitutional restraints on States to establish prisons. In our contribution however, we will lead the discussion on arrest and remand in line with the topic for the session as they contribute to the awaiting trial syndrome; and given, the federal architecture of our laws and administration, touch briefly on the constitutional constraints.
2.0INTER-PLAY OF ARREST AND REMAND
In the ensuing discussion, we will attempt to examine the interplay of arrest and remand in the unacceptable built-up of awaiting trialsyndrome in our prisons.The next section of the interrogation will examine adequacy of the innovative mechanisms introduced by the Administration of Criminal Justice Act, 2015. Finally, we will proffer somegeneral and specific recommendations for fixing the problem.
2.1Arrest
According to Chambers 21st Century Dictionary, one of the several meanings of arrest is to take someone into custody, especially by legal authority. Similarly, Black’s Law Dictionary, Seventh Edition defined arrest as the taking or keeping of a person in custody by legal authority, especially in reference to a criminal charge. The concept of arrest as defined may appear to derogate from the liberty of the person guaranteed by the Constitution. However, in guaranteeing same, Section 35 of the Constitution also creates some exceptions. Among the relevant exceptions is:
“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” [1]
The nature, power and procedure of arrest are well stipulated in Sections 3 to 49 of Part 2 of the Administration of Criminal Justice Act, 2015 (hereinafter simply referred to as the Actwhile Sections 35 to 49 set out the procedure for arrest with warrant). Some of these provisions aimed at preventing abusive and arbitrary arrests of persons will be highlighted to underscore some of the reforms introduces by the Act.These are outlined hereunder.
2.1.1Arrest not to be Arbitrary
By Section 3 of the Act, a suspect or defendant should only be arrested for allegedly committing an offence defined by law. Section 8[2]of the Act, specifically stipulates that no suspect shall be arrested merely on a civil wrong or breach of contract. Section 7 prohibits the arrest of a person in lieu of a suspect. There shall not be inhumane treatment of arrested suspects.
2.1.2Persons Authorized to Arrest
The Act authorizes the Police, a private person, a Judge, Magistrate or Justice of the Peace to arrest a suspect. The police and a private person may arrest with or without a warrant.[3]
2.1.3Establishment of Central Criminal Registry
The police shall keep record of arrested suspects which include name, occupation, height, photograph, finger prints and other means ofidentification.[4] The central criminal record shall be established by the Nigerian Police Force.[5]
2.1.4Submission of Quarterly Report to Attorney-General – Section 29(1)
The Inspector General of Police and head of every agency authorized by law to make arrests must remit quarterly to the Attorney-General of the Federation, a record of all arrests made with or without warrant in relation to federal offences in the country.[6] The Attorney-General shall establish an electronic and manual database of all the remitted arrests at the Federal and States.Similarly, the Commissioner of Police in a state and head of every agency shall submit a quarterly record of all arrests made with or without warrant in relation to State offences within the State.[7]
2.1.5Report to Supervising Magistrate – Section 33 of the Act
An officer in charge of a police station or an official in charge of an agency authorized to make arrest must on the last working day of every month, report to the supervising Magistrate, the cases of all suspects arrested without warrant within his jurisdiction whether they have been admitted to bail or not.
The Magistrate shall forward the reports to the Criminal Justice Monitoring Committee. The committee shall analyse the reports and advise the Attorney-General of the Federation as to the trends of arrests, bail and related matters. Where no report is made, the Magistrate shall forward a report to the chief Judge of the State and the Attorney-General of the State for appropriate remedial action.
2.1.6Monthly Visit to Police Station by Chief or Supervising Magistrate – Section 34 of the Act
The Chief Magistrate or Supervising Magistrate is to visit the police station to conduct an inspection of police stations or other places of detention within hid jurisdiction other than the prison for inspection of record of arrests, direct the arraignment of the suspects or where bail has been refused, grant bail to any suspect where appropriate for offences within the jurisdiction of the Magistrate.
The police officer in charge of the station has obligation to make available to the visiting Magistrate the record of arrests and bail. A default by an officer is treated as a misconduct to be tried in accordance with the relevant Police Regulation under the Police Act.
2.1.7Rationale of Arrest
The power to arrest is justified by the overriding constitutional responsibility of Government to make laws for the peace, order and good government of the federation or part thereof, including public safety.[8] In this regard, the Nigerian Police is the constitutional executive body charged with the responsibility to maintain law and order, detect and prevent crimes in pursuance ofSection 4 of the Police Act. It provides inter alia that:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.[9]
In carrying out these constitutional and statutory duties, the police may arrest any personprovided the arrest is supported by fact or some evidence of possible criminal culpability.
2.1.8Exemption from Arrest
It should also be noted that a civil wrong or breach of contractual obligation shall not give rise to arrest and some public officers have immunity against arrest while in office. Section 308 (1)(b) of the Constitution confers criminal immunity on the President, Vice President, Governor and Deputy Governor. Consequently, they shall not be arrested or imprisoned during their tenure or period in office either in pursuance of the process of any court or otherwise.[10] Similarly, diplomats such as envoys or certain representatives of foreign governments or inter-governmental institutions, their domestic staff and families are not liable to arrest in either civil or criminalproceedings except under certain circumstances of waiver[11]. It should however be noted that civil arrest for which a person may be restrained to compel him to fulfill some legal obligations imposed on him is outside this discussion.
2.1.9 Not An End – Charge
Arrest, however, is not an end. It is a means to an end. The end is usually to charge the suspect to court for trial. Where a person is arrested or detained, he shall be brought before a court of law within a reasonable time. Reasonable time is defined by Section 35(1)(c) of the Constitution to mean:
(a)In the case of arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
(b)In any other case, a period of two days or such longer period as the circumstances may be considered by the Court to be reasonable.[12]
While the police have power to detain a person arrested, such a person however must be taken to court to take his trial within a reasonable time as defined in the Constitution.
A trial usually commences in a court with original jurisdiction in criminal matters.An appeal may lie to the High Court, Court of Appeal or Supreme Court as the case may be.
As a federation, our country has federal and state courts vested with original jurisdiction in criminal matters. In terms of hierarchy, the Magistrate Court is the lowest court, followed by the High Court (which may be state or federal), Court of Appeal and Supreme Court. It should be noted, as earlier stated, that in administration of criminal justice, the process of trial begins with the police in exercise of the power of arrest. Arrest per se does not immediately lead to prison congestion. What then creates the bottleneck?
2.1.10The Bottle Neck – Reference to Attorney-General
The Police is said to be the gate keeper in the criminal justice system. Where the offence is a minor offence, the police in pursuance of Section 109(a) of the Act prepares a charge or first Information or complaint and lay same before a Magistrate Court.
Where the crime for which the offender is arrested is in the nature of a capital offence in relation to a State such as murder, kidnap,manslaughter or treasonably felony for which the police does not have power to prosecute, the case file shall be referred to the office of the Attorney-General of the State for advice and prosecution.
Similarly, if it is a federal offence such as pipeline related offences, treasonable felony, the case file is referred to the office of the Attorney-General of the Federation for his opinion and necessary action. It is the need to keep an eye on the suspect during the period of awaiting the legal opinion of the Attorney-General of a State or the Federation, as the case may be, that usually lead the police to apply for remand of the suspect.Section 30(3) of the Act states thus:
“Where a suspect is taken into custody and it appears to the police officer in charge of the station that the offence is of a capital nature, the arrested suspect shall be detained in custody, and the police officer may refer the matter to the Attorney-General of the Federation for legal advice and cause the suspect to be taken before a court having jurisdiction with respect to the offence within a reasonable time.
2.2REMAND
As can be seen, the bulk of the awaiting trial cases arises from capital offences, whether State or Federal offences, over which the police and Magistrate Court have no jurisdiction to prosecute or to try.Yet the offences are of such capital nature that the suspect ought not to be left unrestrained in the interest of public safety between the time of arrest, investigation and his trial. In such cases, as earlier stated,the police would apply to a Magistrate for the suspect to be remanded.
2.2.1 Legal Frame Work For Remand
Before 2015, the police may have recourse to Section 236 of the Criminal Procedure Act which had been adopted without or with slight modificationsby most States.[13] It provides:
If during any proceedings before a court it becomes necessary to adjourn the hearing of the same, the court may from time to time adjourn such proceedings after or without hearing the evidence, if it thinks fit, to a certain time and place, to be then appointed in the hearing of the parties or the legal practitioners representing them and if the defendant is in custody the court may admit him to bail, as in this Act provided, or by its warrant remand him to prison or other suitable place of security for any time not normally exceeding eight days but if necessary for such longer period as the court may consider advisable and if such remand shall not be for longer than three clear days the court may order the person in whose custody the person remanded is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him again before the court at the time appointed for continuance of the case. (emphasis supplied)
The court here should mean the Magistrate Court. Lagos Sate simplified this by modifying the provisions as follows:
If any person arrested for any indictable offence is brought before any Magistratefor remand such Magistrate shall remand such person in custody or where applicable grant bail to him pending the arrangement of such person before the appropriate Court or tribunal for trial.[14]
The modification of section 236 of the Criminal Procedure Act by Lagos State is more elegantly drafted. However, they both provide a basis for a remand proceeding before the commencement of the 2015 Act.
2.2.2 A Little Case Review
In this regard, it is instructive to review briefly the Supreme Court Judgment in Lufadeju V. Johnson [2007] 8 N.W.L.R (Pt. 1037) 535, wherein the respondent with others were arrested and detained at C.I.D. Alagbon, Lagos in 1997. The Respondent sought bail before the Chief Magistrate Court of Lagos State but the Magistrate declined jurisdiction to entertain the application for bail and remanded the Respondent in custody. As a result of this refusal of bail and remand in custody, the Respondent sought a judicial review in the High Court.The trial judge ruled that by virtue of Section 236 (3) of the Criminal Procedure Law of Lagos State, the 1st Appellant i.e. the Chief Magistrate was authorized to remand persons whom may have been arrested for indictable offence. Dissatisfied with the decision, the Respondent appealed to the Court of Appeal who allowed the Appeal. Aggrieved by the decision of the Court of Appeal, the Appellants appealed to the Supreme Court.
The main issue was whether the proceeding that occurred was a remand proceeding or an arraignment. The Supreme Court held that since the accused person was not called upon to plead to the charge, which among other things, is a mandatory requirement in all criminal trials, the Magistrate was right in refusing jurisdiction to grant bail and remanding the accused person to prison for the indictable offence for which he was arrested. In a unanimous decision, the Supreme Court allowed the appeal.
Reading Sections 236 (3), 78, 215 of the Criminal Procedure Law together, the Court per Onnoghen J.S.C (as he then was) at pages 571-572 paras. a-d threw more light on the fine distinction between a remand and arraignment proceedings in the following passage:
“It is very clear from the above that an arraignment of the suspect before the Magistrate Court or any other court involves the presentation of the person or suspect before that Court unfettered where the charge or information against him is read over and interpreted or explained to him by the registrar of the Court to the satisfaction of the Court and the accused person is called upon to plead to the charge. It follows therefore that whereas in a remand preceding the suspect may be brought to the Magistrate Court upon a charge signed by the Police Officer in charge of the case, he is not required to plead to that charge particularly as the offence with which the person stands charged, being and indictable offence, is clearly outside the jurisdiction of the Magistrate Court to try, an arraignment or trial under Section 215 supra can not be properly so called unless the accused pleads to the charge containing the offence with which he is charged. In the instant case both parties agree that that though the respondent was charged before the Magistrate Court, he never pleaded to the charge before the order of remand as made by the learned Chief Magistrate.”