By Femi Falana
During a recent media briefing the Comptroller General of the Nigerian Prison Service, Mr. J. Ahmed disclosed that out of a prison population of 68,288 only 21,903 had been convicted while the remaining 46,351 are awaiting trial. In a bid to decongest the prisons the Chief Judges of some States of the Federation have ordered the release of scores of criminal suspects from custody during prison visits in the last couple of months. Some of the suspects released in Lagos state are underage children who were raided and jailed for wandering, even though the vagrant law was abolished in the country in 1989!
Thinking that the suspects who were released during the prison visits by the Chief Judges were granted pardon, my respected colleague, Mr. Sebastine Tar Hon, SAN has questioned the constitutional validity of the powers of the Chief Judges of the states to order the release prison inmates. According to him, “The practice of chief judges, particularly of the states, granting pardon or amnesty to offenders has been going on for quite some time now; but I make bold to say that such practice is clearly unconstitutional. Section 35(4) of the 1999 Constitution as amended has stipulated that anybody accused of an offense shall be arraigned in court within a reasonable time and that it is only that court that could make an order remanding such person in prison ordering his release from custody – either conditionally or unconditionally. Clearly, therefore, there is no pre-conviction authorization for pardon or release from custody by any chief judge, acting in his administrative capacity.”
As far as Mr. Hon is concerned, the only authorities imbued with constitutional powers of pardon or amnesty are the president, after consultation with the Council of State (under section 175), or the governor of a state, acting in consultation with an advisory council of the state on prerogative of mercy, established by a law of such the state. He opined that “In respect of state chief judges, section 270(2)(a) of the constitution has merely established the office of a state chief judge with no specific functions assigned thereto. This then means such chief judges perform functions assigned to them by their respective state high court laws and high court rules.”
It is curious to note that in the press statement credited to Mr. Hon SAN no reference was made to the relevant laws on the subject matter. Hence, he thought that the Chief Judges must have been performing “functions assigned to them by their respective state high court laws and high court rules.” With respect, the position of the learned senior counsel is grossly misleading. In the first place, no Chief Judge has ever granted pardon to convicts or criminal suspects awaiting trial but who are remanded in prison custody in the country. Secondly, the Chief Judges who have orderèd the release of criminal suspects during prison visits have never claimed to exercise powers under the respective state high court laws and high court rules.
However, by virtue of section 11 of the Prisons Act (Cap P29) Laws of the Federation of Nigeria, 2004, the Chief Justice of Nigeria and the Chief Judges of the states are among prison visitors ex officio. But while the Chief Justice is empowered to visit all prisons in Nigeria Chief Judges are restricted to conduct prison visit in their areas of jurisdiction. Such visitors shall exercise such functions as may be prescribed in respect of the prisons to which their appointments or authorizations relate. While conducting prison visits the Chief Justice of Nigeria and the Chief Judges of the states are empowered by the Criminal Justice (Release From Custody) (Special Provisions) Act to order the release of any person 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.
Since prison is item 48 in the Exclusive Legislative List in Part 1 of the second schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended it is undoubtedly clear that both the Prison Act and the Criminal Justice (Release from Custody) Act cannot be said to be impugned on ground of inconsistency with the Constitution. To that extent, the powers so conferred on the Chief Justice of Nigeria and Chief Judges of the states by the Criminal Justice (Release from custody) (Special Provisions) Act cannot be said to be unconstitutional in so far as it is designed to decongest our prisons by ensuring the release of any person detained in any prison in Nigeria, not being a person detained in execution of a sentence of a court or tribunal duly constituted by law.
In view of the foregoing, I am compelled to call on the Chief Justice of Nigeria and the Chief Judges of the states to conduct prison visits, on a regular basis, for the purpose of setting at liberty the thousands of prison inmates held in custody illegally including criminal suspects whose case files cannot be located by the various ministries of justice or whose fundamental right to personal liberty has been abused by a dysfunctional criminal justice system. However, whoever is convinced that the release of criminal suspects held illegally in prison custody is unconstitutional may wish to approach the Court for legal redress. Meanwhile, the gates of the prisons should be flung open for the release of criminal suspects whose only offense is poverty in a country where rich men and women are hardly jailed.
Femi Falana is a legal practitioner.