By Chino Obiagwu
The time frames for this remand protocol differ from one ACJ to another. Under ACJA, it is a total period of 28 days and under ACJL Lagos, a total of 90 days.
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The innovative implication of this provision is to separate the interlocutory remand proceeding from the proceeding for the substantive trial of the charge.
While the magistrate does not have the jurisdiction to try the substantive charge and therefore cannot make any order therein, the ACJ laws have given the magistrate the personal jurisdiction over the pre-trial remand proceedings. irrespective of the substantive offence for which the person is arrested and detained.
The ACJ laws require the police to make ex parte application to the magistrate court for remand of the suspect ‘within a reasonable time’ after his arrest.
The term ‘reasonable time’ must be read together with section 35(2) of the 1999 Constitution, which defines ‘reasonable time’ in the context of bringing an arrested person before a court, to mean one day or two days if the nearest court is more than a 40 kilometre radius from the place of detention. However, the provisions of sub-section (7) thereof, which exempts capital offences from the constitutional timeframe, should be taken into account when the alleged offence is a capital offence.
In other words, where the alleged offence is not a capital offence, the person arrested must be brought to court for remand within 24 hours of arrest or within 48 hours if there is no magistrate court within 40 kilometres radius of the place of detention. For capital offences, ‘reasonable time’ should be read in line with the legislative intentions of the ACJA provisions for remand proceedings, which is to curb undue delay and reduce prolonged pre-trail detention of criminal suspects.
The combined reading of the entire provisions for remand shows that the magistrate may make an inquiry into the facts of the case to determine whether or not the alleged facts actually disclose a capital offence. As the appellate courts have repeatedly said in several judgments, there is nothing magical about an allegation of a capital offence.
Where the facts in the sworn statements in support of the application or request for remand do not disclose the alleged capital offence, the magistrate may make the appropriate order of remand of the person or may make such appropriate order as he considers necessary in the circumstances, including assuming jurisdiction to try the person for the offence disclosed in the application if he has jurisdiction to try such an offence.
Under the ACJA, the magistrate has the power to order the reformulation of the charge and the trial of the person may commence thereat, if the disclosed offence is within the jurisdiction of the magistrate court. It is only when the magistrate has no jurisdiction to try the offence that a remand order is necessary to give the police and prosecution time to conclude investigations and charge the person before the appropriate court.
The magistrate may also refuse the application for remand and release the arrested person forthwith if ‘probable cause’ is not shown for the remand of the person.
It follows from the above that the powers of the magistrate under the remand proceedings is not merely administrative (as obtainable under the remand proceedings under erstwhile CPL) but also judicial.
To be continued