How Judiciary Condones Illegal Detentions

With the reckless abuse of the remand order contained in the Administration of Criminal Justice System of 2015 by overzealous and unscrupulous security agencies and junior members of the judiciary in Magistrates’ Courts who aid the prolonged detention of Nigerians without trial, Ejiofor Alike writes that only the Supreme Court and Appeal Court justices should be empowered to order the detention of persons longer than the ‘reasonable time’ prescribed in the 1999 Constitution

The Administration of Criminal Justice Bill 2015, which was passed by the Senate on May 5, 2015, and signed by former President Goodluck Jonathan barely two weeks before he handed over to former President Muhammadu Buhari, contains a provision on detention of persons, which runs contrary to the spirit of the 1999 Constitution and is increasingly being abused by security agencies.

Section 35 (4) & (5) of the 1999 Constitution (as amended), prescribes that any person who is arrested or detained shall be brought before a court of law within a reasonable time.

Susbsection 5 defines a “reasonable time” to mean between 24 to 48 hours, depending on the availability of a court of competent jurisdiction within the place of arrest and detention.

But while Section 35 of the 1999 Constitution contemplates that persons arrested or detained shall be charged to court within a reasonable time, there are cases when a suspect is detained but the process of commencing trial is yet to be completed.

The Administration of Criminal Justice Act (ACJA), 2015, prescribes that in such cases, application is made to the Magistrates’ Court requesting that the suspect be remanded in custody pending the completion of the investigation and arraignment.

Specifically, Section 293 (2) of ACJA prescribes that such application shall be made ex parte to a Magistrate for the suspect to be committed into custody upon the establishment of a probable cause and also the linking of the suspect to the alleged offence.

Before issuing the order, this law provides that the magistrate must be satisfied that there is probable cause to remand the suspect pending legal advice from the Attorney General.

Section 294 (2) of the ACJA clearly listed the determinants of probable cause to include: Nature and seriousness of the alleged office; reasonable grounds to suspect that the suspect has been involved in the commission of the alleged offence; reasonable grounds for believing that the suspect may abscond or commit further offence where he is not committed to custody; and any other circumstances of the case that justifies the request for remand.

By the provisions of Section 296 of the ACJA, 2015, a remand warrant issued under Section 293 to last for the initial 14 days in the first instance, can be renewed for 14 days each in the second, third and fourth instance, making it a maximum of 56 days in which a suspect can be detained without trial.

After the lifespan of the remand order is extended for the final 14 days in the fourth instance, the suspect is unconditionally released or a charge preferred against him before a competent court for his trial to commence.

From the foregoing, it is evident that the ACJA of 2015 runs contrary to the spirit of the 1999 Constitution, which presumes that an accused is innocent until otherwise proven guilty.

ACJA has been abused over the years by unscrupulous and overzealous law enforcement agencies and compromised magistrates, who connive to detain innocent Nigerians for 56 days without consequences.

Before the enactment of the ACJA, most of the suspects who were detained beyond 48 hours by the Economic and Financial Crimes Commission (EFCC) and other agencies were arrested during weekends and charged to court on the following Monday.

But as soon as Buhari took over, the agents of his administration took undue advantage of the ACJA to detain Nigerians without trial and this impunity has continued under President Bola Tinubu-led administration.

Many consider it as an act of indiscretion on the part of those behind the ACJA of 2015 to grant junior members of the judiciary the power to grant ex parte application to detain a person for 56 days when his offence is yet to be clearly established.   

ACJA empowers magistrates to imprison Nigerians through the backdoor for 56 days without trial.

Though the Act provides that the suspect shall be released unconditionally after 56 days if no offence is established against him, it does not prescribe any severe punishment for the detaining authority.

Security agencies which have no regard for human rights take advantage of the ACJA to go behind their victims to obtain remand orders from compromised Magistrates to detain Nigerians who committed no known offence.

In Fawehinmi v. IGP (2002) 7 NWLR (pt.767) 606, the court held that it is not proper for the law enforcement agency to keep a suspect in detention while fishing for evidence to charge him to court.

In a fundamental rights enforcement suit filed by the former Director General of the Nigerian Stock Exchange (NSE), Prof. Ndi Okereke-Onyiuke, to restrain the EFCC and the police from arresting her, Justice Ayotunde Phillips of the Lagos High Court had in her judgment in 2011, chided law enforcement agencies in the country for not always taking a cue from their counterparts in other countries, and always in a hurry to arrest suspects when investigations are has not been concluded, adding that it would afford them sufficient evidence to secure conviction of suspects, whenever they are arraigned.

According to the judge, no responsible court would restrain law enforcement agencies from performing their statutory duties, but that there was no facts before the court to support that the anti-graft agency and the police exercised their rights to validly arrest the plaintiff.

Why then should magistrates be empowered to issue detention orders of up to 56 days over an offence that has not been established?

Magistrates and judges of lower courts should be stripped of the power to order the detention of persons without putting them on notice except when the prosecution is ready to arraign the suspect in a competent court.

In order to make it difficult for security agencies to detain innocent Nigerians unjustly, only the Supreme Court or Appeal Court judges should be vested with the power of issuing detention orders if the prosecution is not yet ready to go to court.

The law must also provide for a severe penalty if the detaining authority fails to establish any offence against the suspect.

The Department of State Services (DSS) had once framed the now suspended Governor of the Central Bank of Nigeria (CBN), Godwin Emefiele with terrorism financing offence to secure an arrest and detention order from a Federal High Court sitting in Abuja in December 2022.

But in rejecting the application by the DSS for an ex parte order, the presiding judge, Justice John Tsoho, who saw through the trick of the secret police, had declared: “If the applicant believes that the evidence available to it so far is sufficient, then it can as well arrest and detain the applicant, even without the order of this court. If, however, the applicant desires to still pursue this application, then it should place the respondent on notice, considering the sensitive public office that he occupies.”

Many analysts believe that the DSS did not have any iota of evidence to link Emefiele to terrorism financing.

This was evident in the charges preferred against Emefiele after he was finally arrested, which had nothing to do with terrorism financing.

Today, both Emefiele and the suspended Chairman of the EFCC, Abdulrasheed Bawa are victims of the ACJA, which the DSS has fragrantly abused by detaining them longer than the maximum 56 days.

Many Nigerians believe the DSS has the worst human rights records, but the secret police would not have succeeded in its serial human rights violations without the complicity of the judiciary which usually grants it ex parte applications to detain Nigerians whose offences have not been established.