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FCT Chief Judge's Directive Stopping Magistrates From Issuing Remand Orders Cannot Stand By Femi Falana

January 17, 2016

Recently, the Honourable Justice Ishaq Bello, the Chief Judge of the High Court of the Federal Capital Territory  was reported to have  directed all  magistrates in the federal capital territory to desist from  issuing remand orders  for the detention of very important personalities  being investigated by the Economic and Financial Crimes Commission for the criminal diversion of public funds and the looting the treasury of the country. Curiously, the Chief Judge neither accused the Magistrates of exceeding their powers nor cited any law to justify the unwarranted directive. 

Since the directive is at variance with the law it is  pertinent to direct the attention of his Lordship to section 293 (1) of the Administration of Criminal Justice Act, 2015 which provides that "A suspect arrested for an offence which a Magistrate Court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate court for remand." 
It is further provided in section 296 (1) of the same Act that where an order of remand of a suspect is made by a Magistrate, the order shall be for a period not exceeding 14 days in the first instance, and the case shall be returnable within the same period. A suspect affected by a remand order is entitled to apply for bail before the magistrate court or proceed to the High Court to apply to the High Court to secure the enforcement of his/her fundamental right to personal liberty. But the Chief Judge lacks the authority to countermand or invalidate the powers conferred on magistrate courts to issue remand orders by a valid and subsisting Act of the National Assembly. In other words, the directive issued ex-cathedra by the Chief Judge has no binding effect on the powers of magistrates in the Federal Capital Territory to issue remand orders for the detention of criminal suspects.

The issuance of pretrial remand orders, which is the current practice all over the world is designed to subject the detention of criminal suspects by law enforcement agents to the supervision of magistrates.  The constitutional validity of the practice was upheld by the Supreme Court of Nigeria in the case of   Lufadeju v  Johnson (2007)  8  N.W.L.R  (PT  1037)  535.  According to  Mukhtar  J.S.C (as she then was):  "I do not see that there is a conflict between the provision of Section 236  (2)  of the  Criminal law  supra and  the provisions  of  Section  32  of the  Constitution supra. The fact   is there was   strong suspicion that the respondent and some others have committed an indictable offence to  wit ­treason.  After their  arrest by  the police,  there was  the need  to properly and lawfully keep them in custody, and the only way to do this was to take them to a Magistrate court who would, in turn, remand them in custody. They couldn't possibly continue to remain in police custody without the order of a court. Concluded, the legal advice of the Ministry of Justice­ is sought... On the presumption of innocence as laid down in Section 33 (5) of the supra  Constitution,  I  fail to  see anything  in the  record before  us that  there was  a  contrary presumption in  respect of  .the  appellant.    

The appellant and his co­accused were taken before the Magistrate Court for the purpose of lawful remand in custody, and that was exactly what the  Chief  Magistrate did. She did not ask him of whether he was guilty or  8 not, so the issue of his innocence didn't come to play at that stage of the proceedings. " However, in recent time, mLufadeju v Johnson where it was held among other things:
Given the doctrine of stare decisis the Chief Judge ought not to have disregarded the authoritative pronouncements of the Supreme Court on the powers of magistrate courts to issue remand orders for the detention of suspects before arraignment in courts of competent jurisdiction. Since the statement made or directive credited to the Chief Judge cannot invalidate the provisions of section 293 of the Administration of Criminal Justice Act we call on the Chief Judge of the Federal Capital Territory High Court to withdraw the controversial directive forthwith.
The impression should not be created that our courts are deliberately shielding politically exposed persons and other members of the ruling class from investigation and prosecution for heinous economic crimes.

-Femi Falana SAN.

Corruption Legal