Introduction
The concept of a “holding charge”, whereby a defendant is brought before a court to secure a remand order pending investigation or legal advice, presents a profound legal paradox and continues to evoke unease in Nigeria’s criminal justice system. The courts have consistently and categorically denounced the practice, branding it unconstitutional, alien to Nigerian jurisprudence, and an affront to the fundamental human rights (particularly the presumption of innocence enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – “1999 Constitution”) of a defendant.
However, various statutory instruments, including Section 293 of the Administration of Criminal Justice Act 2015 (“ACJA”), and similar provisions in the Administration of Criminal Justice Law of Lagos State, 2015 (“ACJL, Lagos”), appear to codify this condemned practice under the guise of lawful remand procedures.
This article examines this troubling legal paradox. It reconciles the statutory remand framework with the constitutional presumption of innocence , interrogates whether remand provisions offend constitutional supremacy and explores potential legal remedies for defendants trapped in the limbo of prolonged detention without trial.
The Role of the Police and the Emergence of Holding Charges
In Nigeria’s criminal justice system, the police play a pivotal role as the first point of contact between the state and suspected offenders. Their functions include the arrest, investigation, and detention of suspects, as well as initiating criminal prosecutions where necessary.
The term “defendant” can be used interchangeably with “suspect” in this context, particularly in reference to persons arrested and detained by the police pending formal arraignment or prosecution. While “suspect” is more technically appropriate during the investigative stage, “defendant” is adopted to reflect its practical usage within the Nigerian criminal justice system, especially where a person has been made a party to a case or a formal process has been initiated against them.
However, over time, a troubling procedural innovation has emerged within police practice in the execution of their mandate and enforcement of laws—the use of “holding charges.” Under this practice, defendants are brought before a court, solely for the purpose of securing a remand order pending the conclusion of police investigations. This approach, often justified by investigative delays or logistical constraints, results in defendants being detained without a formal charge or trial—sometimes for extended periods.
The evolution of holding charges, though not explicitly codified in Nigerian law, has become a widespread mechanism through which liberty is curtailed before any judicial determination of guilt. It is this extra-legal evolution in criminal procedure that brings the practice into sharp conflict with constitutional safeguards and raises critical questions about legality, fairness, and due process.
