By Chino Obiagwu

The magistrate is expected to exercise judicious discretion in considering whether or not the prosecution has shown ‘probable cause’ for the remand of the person arrested. This provision finally prohibits police practice of ‘holding charge’ and gives the remanding magistrate control over the defendant’s pre-trial detention.

Under Sections 273 to 278 of ACJL Lagos provides for consideration of evidential standard of ‘probable cause’ for order of remand. The factors to consider in deciding whether or not ‘probable cause’ is shown are itemized in Section 273(2).  The evidential burden of proving probable cause for remand rests squarely on the police or prosecution, which he discharges on the “balance of probability”, even though the proceeding arises from a criminal context. Where ‘probable cause’ is disclosed, the magistrate may order for remand of the person in a prison and “such order shall be for a period not exceeding 30 days in the first instance, and the case shall be returnable within the said period of 30 days.”

On the return date, the prosecution may seek for an extension of the remand for a maximum period of 30 days, after showing “good cause” for the request for extension. On a subsequent return date which must be within the 30-day extended period, if the trial of the person remanded has not commenced, the court shall issue a hearing notice on the appropriate prosecuting authority, to show cause within further 30-day period, why the person shall not be discharged. If the prosecution shows cause on the return date for further extension of the remand of the person, the person may be remanded for a further and final period of 30 days, at the end of which the person must be discharged and released or conditionally released if he is not been charged before the appropriate court.

In addition to time protocols for remand proceedings and the remand detention of a suspect, the ACJ laws provide for time frames for commencement of trials and in some versions, conclusion of trials at the magistrate courts. E.g. section 110(3) and (4) of ACJ Act provides that:”(3)

The trial of a charge preferred under subsection (1) paragraphs (a) and (b) of this section shall commence not later than thirty days from the date of filing the charge, and the trial of the person brought under the charge shall be completed within a reasonable time.

(4) Where a charge is preferred under subsection (1) paragraphs (a) and (b) of this section and the trial does not commence within thirty days of bringing the charge, or trial has commenced but has not been completed after one hundred and eighty days of arraignment on that charge, the Court shall forward to the Chief Judge the particulars of the charge and reasons for failure to commence the trial or to complete the trial.”

In other to create administrative oversight over judicial officer regarding delays in criminal proceedings, the ACJ Act creates the Administration of Criminal Justice Monitoring Committee, with power to monitor the implementation of the Act.

It is expected that with the passing of the ACJA or ACJL in states, no registry of the court shall accept charge sheets from police at the magistrate court for remand of the suspect for an offence the magistrates do not have jurisdiction to try. The request for remand form and accompanying sworn depositions are prescription of the law, and thus, any remand that is not in compliance with these provisions may be set aside or quashed.

Chino Obiagwu is the National Coordinator Legal Defence & Assistance Project (LEDAP), and the chair of  National Working Group on the reform of Criminal Justice Administration in Nigeria that prepared the first draft of the ACJ Bill in 2004-2005.