THE CONSTITUTIONALITY OF REMAND PROCEEDINGS UNDER THE NIGERIA CRIMINAL JUSTICE SYSTEM - Adedapomola G. Lawal, Esq.


Adedapomola Lawal, EsqThe provisions of the 1999 Constitution of the Federal Republic of Nigeria are sacred and as such they must be complied with and every institution must conform to its provisions. Furthermore, every law made in Nigeria must be in conformity to the provisions of the constitution and any law made that is contrary to the constitution is void to the extent of its inconsistency.

In 2015, as a way of reviewing the already existing legal framework for criminal prosecution in Nigeria, the Administration of Criminal Justice Act, 2015 (the Act) was passed into law by the National Assembly. Among the provisions of the Act is a part dedicated to Detention Time Limits (Remand Proceedings) covering from sections 293 to 299.

Subsequent to the passage of the Act in 2015, the Act has been domesticated by many states of the federation with some modifications. However, the provisions of the Act and the laws of the states on remand proceedings remain substantially the same though the titles for this part have headings that are slightly different. Thus, in considering the constitutionality of the remand or detention proceedings, the provisions of the Administration of Criminal Justice Act, 2015 will be made a case study.

The remand proceedings is such that when a suspect is arrested for an offence which a Magistrate court has no jurisdiction to try, the suspect is brought before a Magistrate court within a reasonable time for remand (S. 293 (1)). It should be recalled that a court of law, legally, can only entertain and adjudicate matters that falls squarely within its powers as contained in the Constitution or the Statute creating that Court.

Section 293 (1) of the Act tried to solve a constitutional problem in that it gives Magistrate courts jurisdiction over matters which the constitution did not. It is the law that a court cannot act beyond its scope of power. Where a court acts beyond its jurisdiction, that act is null and void in accordance with the trite position of the law.

Furthermore, the procedure of application in remand proceedings is a matter of concern. The application for remand must be made ex parte (s. 293 (2)). In an ex parte hearing, only the applicant is heard in this case, the Prosecution. The defendant is just to be seen, he cannot be heard. So even though the freedom of the suspect is hinged on the remand application, the suspect cannot be heard in an application to determine his freedom. He is not only having his right to fair hearing determined by the court without hearing him, his freedom of movement is also to be determined without his input. It is clear that this is against the provisions of sections 36(1) and 41 (1) of the Constitution.

Section 1 (3) of the Constitution provides that, "If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void". The provisions of the Section 239 (1) and (2) of the Act being inconsistent with the provision of sections 36 (1) and 41 (1) of the Constitution is void. The provision of the constitution must prevail. It is natural justice that no one must be condemned unheard. In other words, the suspects in remand proceedings must be heard. But the Act says otherwise.

In an attempt to normalize the unlawful provisions of Section 293 of the Act, the legislature provided "time limits" for how long a suspect who is deemed innocent by the constitution can be held in unlawful custody in open disregard for the provisions of s. 35 (4) of the 1999 Constitution. Regardless of the time limits provided by the Act in "trying" to balance the unconstitutional provisions of the remand proceedings with the constitutional rights of the suspect, the remand proceedings remain void.

Adedapomola G. Lawal, Esq.

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