Judicial Recognition Of Chief Judges’ Power To Release Prisoners By Femi Falana


A couple of days ago, Mr.
S.T. Hon SAN questioned the constitutional validity of the
administrative power of Chief Judges to order the release of under trial
prisoners languishing in dehumanizing conditions in Nigerian prisons. I
found out, to my utter dismay, that the totality of the learned senior
counsel’s submission was anchored on the speculative belief that the
Chief Judges have been performing such functions under “the respective
high court laws and high court rules”. Although I drew my learned
colleague’s attention to the relevant provisions of the Prison Act and
the Criminal Justice (Release from custody) Act which have empowered top
judicial officers including the Chief Justice of Nigeria and Chief
Judges to conduct prison visits and order “the release  of any prison
inmate if satisfied that the detention  of that person is manifestly
unlawful; or that the  person detained has been in custody, whether on
remand or otherwise, for a period longer than the maximum period of
imprisonment which the person detained could have served had he been
convicted of the offence in respect of which he was detained” he did not
change his position. 

In fact, in his curious rejoinder to my intervention in the needless
debate, Mr. Hon SAN did not pay any attention to both laws as he
insisted that his shaky submission on the matter was unassailable. In
questioning the administrative release of prison inmates he accused the
Chief Judges of usurping the powers of the President and state governors
by granting pardon to persons concerned with criminal offenses.  Thus, I
am compelled to reiterate that the prisoners released by Chief Judges
have not been pardoned but merely released from illegal prison custody.
To that extent, such prisoners may be rearrested and prosecuted by the
government.  But a convict pardoned by the President or a state governor
is said to be a new man (novus homo) having been
acquitted of all corporal penalties and forfeitures annexed to the
offense. See Falae v Obasanjo  (No 2) (1999) 4 NWLR (Pt 599) 476.

Femi FalanaFemi Falana
Femi Falana

Instead of relying on local and foreign authorities on the undisputed
constitutional powers of the President and state governors to grant
pardon to convicts and criminal suspects, Mr. Hon SAN may wish to have a
look at the case of Edwin Iloegbunam & Ors v. Richard Iloegbunam
& Ors (2001) 47 WRN 72 wherein the Court of Appeal had upheld the
constitutional validity of the Criminal Justice (Release from Custody)
(Special Provisions) Act.  In that case, the Appellants were arraigned
on a holding charge of attempted murder before the Magistrate’s Court,
Ogidi, Anambra State on July 3, 2000. For want of jurisdiction, the
Magistrate Court refused the application of the Appellants for bail and
ordered that they be remanded in prison custody. However, before they
were properly charged with murder at the High Court the Chief Judge of
Anambra State visited the Onitsha Prisons and ordered that the
Appellants be released on bail. In making the order the Chief Judge did
not pardon the murder suspects but merely released them on bail.

As soon as the Appellants regained their freedom the complainants in
the murder case filed a motion ex parte at the Lagos judicial division
of the Federal High Court and prayed that the Appellants be rearrested
and held in prison custody. The application was granted as prayed.
Completely dissatisfied with the order the Appellants approached the
Court of Appeal for the restoration of their fundamental right to
personal liberty. In justifying the decision of the lower court the
Respondents’ Counsel, Chief Anah SAN  questioned the constitutional
validity of the Criminal Justice (Release from Custody) (Special
Provisions) Act under which the Anambra Chief Judge had released the
Appellants on bail. In my submissions on behalf of the Appellants, I
argued that the validity of the Act could not be challenged since it was
made to protect the fundamental right of prison inmates to personal
liberty guaranteed by section 35 of the Constitution. In allowing the
appeal the Court of Appeal had no hesitation in upholding the validity
of the Act. In the leading judgment of the Court,  Oguntade J.C.A (as he
then was) held that “there is power in the Chief Justice of the
Federation or any of the Chief Judges of the States to order the release
of persons detained in prison custody in the exercise of their power
under section 1(1) of the Criminal Justice (Release from Custody)
(Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990
is not in doubt. The exercise of that power by the Anambra Chief Judge
would definitely constitute a different cause of action for the present
respondents if they feel aggrieved by it. And an action founded on the
exercise of that power which action is challenging the authority of the
Chief Judge is one that should be brought before the High Court of
Anambra State by virtue of Section 272 of the 1999 Constitution.”

It may interest Mr. Hon SAN to know that heads of the court in other
jurisdictions in common law countries are applying similar laws to
decongest prisons by releasing indigent prison inmates from prison
custody during prison visits. In Writ Petition  (Civil) No. 406/2013 in
which judgment was handed down on September 16, 2014 the Supreme Court
of India directed magistrates and session judges to visit prisons  in
their districts for two months to identify and release under trial
prisoners who had already been held in custody for half of the maximum
period prescribed by law for the offences for which they were charged.
The court, however, pointed out that the order did not apply to under
trial prisoners whose offenses attract death penalty. Since not less
than 66 percent of inmates were awaiting trial in the various courts
across the country Chief Justice R. M. Lodha noted that “There are
people who cannot take bail. There is nobody for them. They languish in
jails because courts are not enabled to take their cases.”

The progressive verdict of the Supreme Court of India has
reverberated throughout common law countries and has strengthened the
campaign for prison decongestion. In March this year the Chief Justice
of Pakistan, Justice Ahmed Sheikh visited the Malir district prison.
Based on the complaints of several prison inmates the Chief Justice met
with the Inspector general of prisons for the district, Mr. Nusrat
Manghan. Following the directive of the Chief Justice the prison
management announced a remission of 60 days to the entitled jail inmates
apart from those convicted of espionage, subversion, terrorism, and
murder. Just last month, the Principal Judge of the High Courts of
Uganda, Justice Yorokamu Bamwine directed all High Court judges and
magistrates to release all prisoners who have overstayed on remand
without trial. His lordship lamented that on his countrywide tours to
prisons, he met many prisoners who have stayed on remand beyond the
statutory period. He said Article 23 of the Constitution demands that
untried persons remanded on noncapital offenses, should be released on
mandatory bail after three months in jail. In justifying the directive,
Justice Bamwine  said that his directive was intended to protect
liberties of suspects as provided for in the Constitution and that one
way of ensuring compliance is through routine visits to prisons to
ascertain the numbers and conditions in prisons and routine meetings
with all judicial officers and court staff, among the best practices.”

From the foregoing, our Chief Judges are on terra firma in exercising
their powers under the Criminal Justice (Release from custody)(Special
Provisions) Act in ordering the release of under trial prisoners during
prison visits. Apart  from the decision of the Court  of Appeal in the
case of Iloegbunam v Iloegbunam supra which has upheld the validity of
the Act section 8 of the Administration of Criminal Justice Act, 2015
has imposed a duty on Chief Judges to appoint high court judges and
magistrates to visit detention centres once a month with a view to
ensuring that the indigent under trial prisoners are not detained
without legal justification in line with paragraph 55 of the United
Nations Rules for the Treatment of Prisoners adopted by Nigeria.


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