Human rights lawyer, Mr. Femi Falana, (SAN), has said he maintains his earlier position that the Chief Justice of Nigeria and chief judges are empowered by law to conduct prison visits and order the release of any prison inmate if satisfied that the detention of that person is manifestly unlawful.
Falana and another senior lawyer, Mr. Sebastine Hon (SAN), had disagreed over the constitutional rightness or otherwise of the administrative powers of the CJN and state chief judges to order the release of unlawfully detained prison inmates.
Hon had argued that the practice of chief judges, particularly of the states, granting pardon or amnesty to offenders was “clearly unconstitutional”, adding that the only authorities imbued with constitutional powers of pardon or amnesty are the president and state governors after due consultation.
But in his earlier response, Falana, who anchored his submission on the relevant provisions of the Prison Act and the Criminal Justice (Release from custody) Act, argued that the provisions of the Act had imposed a duty on the judges to carry out that function. He said Hon made no reference to the relevant laws on the subject matter. Hon again disagreed with Falana’s submission on the matter.
However, in a statement on Friday, Falana said even though he drew Hon’s attention to the relevant provisions in law, his “learned colleague” 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,” he added.
Falana stressed that the prisoners had not been pardoned but merely released from illegal prison custody, noting that such prisoners could be rearrested and prosecuted by the government. He said this was different from a convict being pardoned by the President or a governor. He cited Falae v. Obasanjo (No 2) (1999) 4 NWLR (Pt 599) 476.
He added that in the case of Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72, the Court of Appeal had upheld the constitutional validity of the Criminal Justice (Release from Custody) (Special Provisions) Act.
In the statement, Falana pointed out that other common law countries are applying similar laws to decongest their prisons by releasing indigent prison inmates from prison custody during prison visits.
He explained that the Supreme Court of India on September 16, 2014, 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, excluding under trial prisoners whose offences attract death penalty.
Falana said a similar development happened in Pakistan, when through the country’s Chief Justice’s intervention, the prison management announced a remission of 60 days to the entitled jail inmates apart from those convicted of espionage, subversion, terrorism, and murder.
The statement partly read, “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.
“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 which have been adopted by Nigeria.”