Legality Or Otherwise Of A Holding Charged – An Appraisal Of The 1999 Constitution (FRN) & Administration Of Criminal Justice Act (ACJA), 2015.
By Faruku Barade Wamakko LLB. In – View, (Usmanu Danfodiyo University Sokoto)
Introduction:
In every country, personal liberty of an individual is one of the inherent rights such an individual has in the society. It’s universal declaration of human rights that, every person is entitled to his personal liberty and no person shall be deprive of such liberty except in accordance with the rule of law and under circumstances permitted by law.
*Holding charged* simple means a situation where by a person is brought before the court for an accusation of a minor offence by the police, while a more serious charge(s) are to be prepared or investigated against him. It’s a situation where by an accused person remain in custody for more than necessary while pending the finality of his case.
*Is Holding charged legal or otherwise?*
The 1999 constitution of the federal republic of Nigeria is not an exception to the universal declaration of human rights. Section 35(1) of the Constitution provides for the right of personal liberty thus:
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law…”
Section 35(4) further elaborate 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, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail,
he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Section 158 of Acja (2015), state thus:
” When a person is suspected to have committed an offence or is accused of an offence is arrested, detained, or appear or brought before the court, he shall, subject to the provision of this act be entitled to bail”.
Furthermore, section 159(1) of the said act provide thus:
” Where the suspect or dependant is detained in a prison, police custody or any place of detention, the court may issue an order to the officer incharged of the prison, police station or other place to produce the suspect or dependant at the time and date specified in the order before the court.
Sub(2) went further thus:
” The court may, on the production of such person subsequently make such order or give such directives as it consider appropriate in the circumstances in accordance with the provision of this act”.
From the above authorities mentioned, one can conclude that Holding charged is unconstitutional. However you May be interested to know that an exception to this general postulation is very significant. Police or court may hold ground for holding charged when laying their ground on the wording of section 35 (7) of the 1999 constitution. The section provide thus:
“Nothing in this section shall be construed –
(a) in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorised the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by such detention of which he has been found guilty.
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