The ACJA: An Albatross or Redeemer in Nigeria’s Criminal Justice Delivery System?

Ishall, in this write up, x-ray whether the changes, some call them innovations, inherent in the Administration of Criminal Justice System Act, 2015, have been a blessing, guardian, protector or paladin of our cherished freedom, civil rights and liberties, OR an albatross, hindrance, impediment and handicap to them. I will take up, randomly, some areas that are quite controversial and which Nigerians encounter nearly always.

Arrest by Proxy Prior to the enactment of the ACJA, the Criminal Procedure Act (CPA) sort of gave the police, the fiat to make indiscriminate arrests. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as a ground to arrest people indiscriminately. Although the ACJ Act has deleted this provision, indiscriminate arrests without warrants still go on daily. Also, Section 7 of the Act also specifically prohibits the police and other law enforcement agencies from making unlawful and arbitrary arrests. The Section clearly provides that “a person shall not be arrested in place of a suspect”. This, practice of the law enforcement officers still arresting and detaining one person in lieu of another is still rife.

Compensation for the Victims Under Section 319 of the Act, it is provided that the Court may, within the proceedings or while passing judgment, order the convict to pay compensation to any person injured by the offence. This is irrespective of any other punishment or fine that may be imposed on the said convict. This compensation may be recovered by civil suit if the Court deems it fit to so order. This is another laudable innovation in the Act as Courts now order compensation to victims in lieu of or in addition to the penalty or punishment imposed on the Defendant. Alternative Penalties Under Part 28, section 270 of the ACJA, a person convicted of an offence can instead of a term of imprisonment, be given the alternative of: 1. Plea bargain 2. Payment of cost, compensation/damages 3. Suspended sentence 4.Community service 5.Probation and non-custodial alternatives. 6. Parole Going by the fact that our prison system is over-stretched, the importance of the above alternatives cannot be over-emphasised. I am quite pleased with the modernity of the ACJA in this area. Since the provision will help in no small measure in depopulating the prisons.

Areas I Disagree With Holding Charge However, on the issue of “holding charge”, the Administration of Criminal Justice Act, 2015, (ACJA), particularly sections 293-299, gives an open cheque to a Magistrate to order the remand without trial of anybody who is the subject of investigation. So far, these sections (to the best of my knowledge), have not been tested at the appellate courts. Presently, law enforcement agents and the Magistrates’ Courts have been hiding behind these sections to hold an accused forever in the name of carrying out “investigation”.

It must be noted though, that these sections only apply to Magistrates’ Courts, FCT High Courts and the Federal High Court in Abuja until the Act is domesticated by the States. Notwithstanding, in reality, states’ High Courts also apply it. Magistrates’ Courts of States cannot legally hide under the section to perpetrate the “holding charge” tradition they are known for. This is by virtue of the fact that the Courts are set up by the Magistrates’ Courts’ Laws of the various States of the Federation. Area Courts are also a creation of the Area Courts’ Laws of the various Northern states. With respect to the High Court of the various States, they were specifically created by the 1999 Constitution of Nigeria,

For the avoidance of doubt, it has been my submission that the ACJA was never enacted to curtail, abridge, whittle down, truncate, abrogate, or take away the much cherished rights, freedoms and liberty duly granted to the citizen by the Constitution of the Federal Republic of Nigeria, 1999, as altered. The National Assembly has no fiat or power to abrogate or diminish constitutionally donated rights of any citizen under the guise of making laws. Section 4(2) states that the National Assembly shall have power to make laws for the peace, order and good government of the Federation.

It is a trite principle of law, as copiously replicated in a litany of cases that the National Assembly or a State House of Assembly, in enacting laws, cannot exceed the powers donated to it by the Constitution. It is also trite that in the event that the National Assembly makes laws that are inconsistent with the provisions of the Constitution itself, such laws become automatically void to the extent of their inconsistency. I had argued and I reiterate that by virtue of section 35 of the Constitution, the personal liberty of an accused person is sacrosanct. It provides:

(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some case and in accordance with a procedure permitted by law, as outlined in 1(a) to (f). Section 35(4) provides that: 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.

The expression “a reasonable time” is defined in Section 35(4) to mean:

(a) in any other case of an 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 in the circumstances may be considered by the court to be reasonable.

In OHIZE v. COP (2014) LPELR-23012 (CA), the Court of Appeal, Per AKOMOLAFEWILSON, J.C.A, emphasised the sanctity of a citizen’s personal liberty as follows: “The constitutional right to personal liberty of a person is sacrosanct, even for an accused person.”

Coming home, aside from the fact that sections 293-299 of the ACJA violently violate the clear provisions of Section 35(4) and (5) of the Constitution as shown above, they presumptuously also create or constitute a “holding charge”, which has been declared by the highest Courts of the land, to be patently illegal, unconstitutional, null and void.

According to Blacks’ Law Dictionary, “holding charge” means a criminal charge of some minor offense filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charge.”

A “Holding charge” therefore, is a charge brought by the Police or other law enforcement officers against an accused person in an inferior court that lacks jurisdiction to try the offence charged, pending the receipt of legal advice from the office of the DPP to recommend the accused person’s trial in a court of competent jurisdiction, or tribunal, set up to try the particular offence.

But Nigerian courts have consistently declared this “arrest-before-investigation” rather than “investigation-before-arrest” (as done in civilised criminal jurisprudences of the World), as anomalous, unconstitutional and illegal.

Dilating on this in the case of OLAWOYE v C.O.P. (2006) 2 NWLR (Pt. 965) 427 at 442-443, paras H-A (CA), the Court of Appeal, held, per Abdullahi, JCA, as follows:

The arraignment before a Magistrates’ Court is tantamount to a holding charge which has been described as unconstitutional and illegal by this court. In the case of Enwere v. C.O.P. (supra) it was held that a "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 more so in a non-capital offence.

The intermediate court followed suit in the case of SHAGARI v CO.P. (2007) 5 NWLR (Pt. 1027) 275 at 298 Paras. C - G, 302 Paras. G - H (CA), (Summary judgment of Sanusi and Ogbuagu, J JCA), where it held:

"A 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 (more so in non-capital offences). A holding charge has no place in the Nigerian judicial system. Persons detained under an 'illegal', 'unlawful' and 'unconstitutional' document tagged 'holding charge', must unhesitatingly be released on bail. In the instant case, the appellants were arraigned before a Chief Magistrate's Court, which certainly lacked jurisdiction in homicide cases/offences and there was no formal charge framed against them accompanied by a proof of evidence as at the time the High Court heard their motion for bail. The above amounted to a special circumstance for the High Court to admit them to bail, but by continuing to detain them on a "holding charge" was not a judicious and judicial exercise of discretion. See ENWERE v CO.P. (1993) 6 NWLR (Pt. 299) 333; JIMOH v C.O.P. (2004) 17 NWLR (Pt. 902) 389; OGORI v KOLAWOLE (1985) 6 NCLR 534; ONAGORUWA v STATE (1993) 7 NWLR (Pt. 303) 49; OSHINAYA v CO.P. (2004) 17 NWLR (Pt. 901) 1."

Similarly, In the case of ONAGORUWA v THE STATE (1993) 7 NWLR (Pt. 303) 49, Justice Niki Tobi, JCA, as he then was, held that:

"It is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute, which is a forerunner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge. "In a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge, even before they conduct investigations although there is

Furthermore, In BOLA KALE v THE STATE (2006) 1 NWLR ((Pt.962) 507 at p. 765, the Court of Appeal expressed the same sentiments in the following words:

"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."

These cases are extant and subsisting, constituting the present legal law of the land, as interpreted by the appellate Courts. The above offending Sections 293-299 must be declared null and void for their inconsistency with the Constitution in accordance with Section 1 (3) of the Constitution.

The further pronouncement of the Supreme Court of Nigeria has further underpinned this in the case of INEC v MUSA (2003) LPELR-1515(SC), where the apex Court, held, Per AYOOLA, J.S.C., that:

"the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive and judicial must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those Constitution in any way, directly or indirectly, unless, of course the Constitution itself as an attribute of its supremacy expressly so authorised."

The ACJA Act has breach every single pronouncement in the above case and Section 35(4) and (5). In ABACHA & ORS. v FAWEHINMI (2000) LPELR- 14(SC), the Apex court adumbrated, Per ACHIKE, J.S.C , that:

"The Constitution is the supreme law of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary circumstances. For avoidance of doubt, the 1979 (now 1999) Constitution stated categorically in its chapter 1, Section 1(1) as follows: 1(1) "This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. “For purposes of clarity, its Section 1(3) goes further to state: 1(3) “if any other law is inconsistent with the provision of this Constitution, this constitution shall prevail, and the other law shall to the extent of the inconsistency be void”.

It is therefore submitted, that by virtue of