The Right to Liberty and Prison Decongestion in Nigeria: The Urgency Required (Part 2) 

 The Right to Liberty and Prison Decongestion in Nigeria: The Urgency Required (Part 2)



In part 1 of this discourse, we appreciated the safeguards on liberty, blazing through international, regional and national instruments/laws. We carried out an x-ray of the provisions of section 35 of the 1999 Constitution of the Federal Republic of Nigeria, as altered, and caved a niche for further discourse.

In this part, we shall expose the provisions of the Administration of Criminal Justice Act, 2015, and mention some decided cases on how the mechanism of remand proceedings ought to be employed without resulting to the attendant negative effects of prison congestion. We shall outline the general causes  of prison congestion, make some remarks on the current Federal GovernmentProgramme on prison decongestion through the Ministry of Interior, and ponder on the way forward.



As noted in our early discourse, what transpires within the 2-3 months that a suspect ought to be tried, is remand proceedings. Ab – initio, the proceedings was made possible by the prosecution filing what is know as a Holding Charge, to legally keep the suspect till the commencement of trial. Our adjectival law on remand proceedings received statutory flavor from the enactment of the Administration of Criminal Justice Act, 2015, specifically from sections 293 – 299. These provisions are very conclusive, there were made to settle the controversies vis-a-vis the ills of Holding Charge. This is because, Holding Charge have been lampooned by renown jurist and even the Courts. For instance, see Onagoruwa V. State (1992) NWLR (pt 221) 33 at 54, Shagari V C.O.P. (2007), 5 NWLR (pt 1027) 275 at 298 Paras C.G, Enwere V. C.O.P (1995), 4 NWLR pt (229) 333, Ogor V. Kolawale (1985) 6 NWLR (pt. 768) at 539; Johnson V. Lufadeju (2002) 8 NWLR (pt. 768) 192 at 217, Jimoh V. C.O.P (2004), NWLR (pt. 902) 389; all this line of cases are of the view that Holding Charge is unknown to our criminal jurisprudence.



The issue was laid to rest by the Supreme Court in E.A. Lufadeju V. Evangelist Bayo Johnson (2007),[i] reversing the judgment of the court appeal in Johnson V. Lufadeju (2002).[ii] In that case, the respondent was arrested on the allegation of committing the offence of conspiracy to commit treason and treasonable felony in the Chief Magistrate Court of Lagos. He sought bail, but the appellant E.A. Lufadeju, Chief Magistrate said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. Dissatisfied with this ruling the respondent proceeded to the high court for a judicial review claiming a declaration that the remand was without jurisdiction and thus unconstitutional, and a cost of Five Million Naira for damages. The High Court upheld the judgment of the chief magistrate holding that Section 236 (3) of the criminal procedure law empowers the Chief Magistrate to remand persons who may have been arrested for indictable offence. Dissatisfied with this ruling, the respondent appealed to the Court of Appeal, who in turn allowed the appeal. The respondents now appealed to the Supreme Court. The learned Justices of the Supreme Court unanimously held that by virtue of Section 236(3) CPL, the magistrate was right in remanding the accused in custody pending arraignment and that Section 236(3) in no way violates the constitutional guaranteed right as contained in Sections 32(1) (c), 33(4), (5) and (6) of the 1979 constitution dealing with right to liberty and fair hearing respectively, and even Article 7(1) (b) and (d) of the African Charter on Human and People’s Right.

The words of his lordship, W.S.N. Onnoghen JSC (as he then was) at page 40 para E – G,  in dealing with the question as to whether a Magistrate has power to remand suspects pending formal arraignment at the High court, are commended.  Hear him:

“ A Magistrate to have jurisdiction to act thereunder, the person to be remanded or possibly granted bail where the court has the jurisdiction to so grant, must have been arrested for indictable offence such as treasonable felony which is outside the competence or jurisdiction of the Magistrate to try. In such a situation the Magistrate is empowered, upon the suspect being brought before him, to remand the suspect in custody pending the arraignment of such person before a competent court with the requisite jurisdiction to try the said indictable offence”.



Like the old king Hamlet, the savior of Denmark,  the ACJA came to set the records straight and save the practices that has been painted the prodigal son, called Holding Charge.

Strictly speaking, sections 293 – 299 of the ACJA is roughly equivalent to sections 136 of the former Criminal Procedure Act, and 129 of the former Criminal Procedure Code, although, many subsections of the ACJA are novel.[iii]

By virtue of Section 293(1) dealing with Applications for remand or other interlocutory proceedings, A suspect arrested for an offence which a Magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a Magistrate court for remand. Sub(2)  & (3) provides for the manner of form and procedure.

As a corollary, by section 294, the court can only remand where after considering the application for remand, it satisfy itself that there is a probable cause to be tried pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court, as the case may be. By sub 2,  In considering whether “probable cause” has been established for the remand of a suspect pursuant to subsection (1) of this section, the court may take into consideration the following:

(a) the nature and seriousness of the alleged offence;

(b) reasonable grounds to suspect that the suspect has been involved in the commission of the alleged offence;

(c) reasonable grounds for believing that the suspect may abscond or commit further offence where he is not committed to custody; and

(d) any other circumstances of the case that justifies the request for remand.

This is the only reasons that can lead to the custody of a suspect. After he is remanded in custody, what happens next?. Although, note that by section 295, the Court have the option of granting the suspect bail instead of being remanded.[iv]

One of the most important factor in remand proceeding, is the statutory/constitutionally guaranteed time limits. Section 296 of the same Act provides for Time and Protocol for remand orders. For purposes of clarity, it is proposed to replicate the section ipsissimaverba:

1) Where an order of remand of the suspect is made pursuant to section 293 of this Act, the order shall be for a period not exceeding 14 days in the first instance, and the case shall be returnable within the same period.

(2) Where, on application in writing, good cause is shown why there should be an extension of the remand period, the court may make an order for further remand of the suspect for a period not exceeding 14 days and make the proceedings returnable within the same period.

3) Where the suspect is still in custody on remand at the expiration of the period provided for under subsection (1) or (2) of this Section, the court may on application of the suspect grant bail in accordance with the provisions of Sections 158 to 188 of this Act.

(4) At the expiration of the remand order made pursuant to subsection (1) or (2) of this section, and where the suspect is still remanded with his trial having not commenced, or charge having not been filed at the relevant court having jurisdiction, the court shall issue a hearing notice on:(a) the Inspector General of Police and the Attorney-General of the Federation; or

(b) the Commissioner of Police of the state or of the Federal Capital Territory or the Attorney-General of the Federation, as the case may be,

(c) any relevant authority in whose custody the suspect is or at whose instance the suspect is remanded, and adjourn the matter within a period not exceeding four-teen days of the expiration of the period of remand order made under subsection (1) or

(2) of this section, to inquire as to the position of the case and for the Inspector General of Police or the Commissioner of Police and the Attorney-General of the Federation to show cause why the suspect remanded should not be unconditionally released.

(5) Where the Inspector General of Police or the Commissioner of Police and the Attorney-General of the Federation show good cause pursuant to subsection (4) of this Section and make a request to that effect, the court:(a) may extend the remand of the suspect for a final period not exceeding 14 days for the suspect to be arraigned for trial before an appropriate court or tribunal; and

(b) shall make the case returnable within the said period of 14 days from the date the hearing notice was issued pursuant to subsection (4) of this section.

6) Where good cause is not shown for the continued remand of the suspect pursuant to subsection (4) of this Section, or where the suspect is still on remand custody after the expiration of the extended period under subsection (5), the court shall, with or without an application to that effect, forthwith discharge the suspect and the suspect shall be immediately released from custody.

(7) No further application for remand shall be entertained after the proceeding in subsection (6) of this section.

The legal implication of the sections above that presents itself in a somewhat confusing manner can comfortably be summarized in the following paragraphs:

  • A suspect, where the court is satisfied with the application for remand in section 293, maybe remanded for 14 days at first instance;
  • Upon an application in writing, the suspect the court may further extend the remand to another 14 days, but with authority to still grant bail;
  • Upon the expiration of the 28 days period of remand, the court shall issue a hearing notice on the Inspector General of Police and the Attorney-General of the Federation; or the Commissioner of Police of the state or of the Federal Capital Territory or the Attorney-General of the Federation, as the case may be. The court can also issue same on any relevant authority in whose custody the suspect is or at whose instance the suspect is remanded, and adjourn the matter within a period not exceeding another 14 days of the expiration of the period of remand order made under the provisions. The issuance of hearing notice is to show cause why the suspect remanded should not be unconditionally released. This sums it up to 42 days.
  • Where good cause is not shown, suspect ought to be released, but where good cause is shown, the suspect shall be remanded for another 14 days, summing the days up to 56. By sub section 6 of 296, where good cause is not shown, or where suspect is still in custody upon expiration of the last 14 days, the court shall, with or without an application to that effect, forthwith discharge the suspect and the suspect shall be immediately released from custody.


This procedure is not cast on stone, it is simple and straightforward if the liberty of a suspect is anything to go by. The questions that begs for answer is; why are majority of our correctional centers still overcrowded in the face of this procedure?. Do you know?.

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One of the notable cases on the ills of remand proceedings leading to prison decongestion, the decision which was reached by the ECOWAS court sent a strong signal to African nations on the practice of remand proceedings. The problem is not peculiar to Nigeria.

SikiruAlade was born in Nigeria in 1975. He was self-employed as a panel beater in Lagos before his arrest. On or about March 9, 2003, Alade was arrested near the old Lagos toll gate area by a plain clothes police officer, who neither disclosed his identity nor gave any reasons for the arrest. The policeman then forcefully dragged Alade to the Ketu Police Station in Lagos State, where he was detained.

On May 15, 2003, he was brought before the Magistrates’ Court in Yaba, Lagos State, on an allegation of armed robbery under the procedure known as the “holding charge,” a process by which a suspect is brought before a magistrates’ court that lacks jurisdiction over the offense for which the suspect has been detained. The magistrate therefore cannot order his release, and has no option under the law but to remand him in custody on the basis of a holding charge, without any determination whether there are sufficient grounds for detention.

Pursuant to the holding charge, on May 15, 2003, a magistrate ordered Alade to be remanded in custody. He was then held at the Kirikiri Maximum Security Prison in Apapa, Lagos, for more than nine years without being returned to court, or charged with a crime under any law before any court of competent jurisdiction. On September 18, 2012, following the judgment of the ECOWAS Court, he was released following a review by the Chief Judge of Lagos.[v] This was after 9 years.

In West Africa, five other countries shared the distinction of having more than half their prison population constituted by pretrial detainees in September 2012. Remarkably, four of those countries—Benin, Liberia, Niger, and Nigeria—were among the top ten worldwide with the highest pretrial detainee populations.[vi]

For purposes of further amplification on remand proceedings, see the following recent authorities: YENGE v. AG FEDERATION (2021) LPELR-56423(CA), OGUJI v. DIVISIONAL POLICE OFFICER C/O OJO POLICE STATION, OJO, LAGOS STATE & ORS (2021) LPELR-56044(CA), and A.G OF LAGOS STATE v. SANNI & ANOR (2022) LPELR-59000(CA).

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The causes of prison congestion are not far fetched. According to Professor Adangor, SAN, in his  lecture titled, “Causes of Prison Congestion and Solutions for decongestion”,[vii] the learned jurist noted the causes of prison congestion as follows:

(1) Increase in crime rate;

(2) Delay in administration of criminal justice;

(3) Poor Investigation by Police;

(4) Police penchant for detention and charging every suspect to court;

(5) Delay in DPP rendering advice;

(6) Stringent bail conditions that Defendants cannot perfect;

(7) Poverty – inability to pay fines imposed by the courts upon conviction;

(8) Lack of resources to build new prisons;

(9) Reluctance of Governors to sign death warrants for Defendants who have been sentenced to death, and have exhausted their appeals.[viii]



On the 6th of September, 2023, reported that the Minister of Interior, Hon OlubunmiTunji-Ojo, secured collaboration with the Ministry of Justice to decongest the Nigerian Correctional Centres across the 36 states and FCT.[ix]

The Minister noted that N500 million was being earmarked to pay for the fines of 4,000 inmates whose fine fall within N500,000.00 to N1 million. He noted that in four weeks time, the Ministry would hit the ground going. The programme is applauded for remembering those behind bars, indeed, there are still leaders with deep sense of humanity. However, considering the number of inmates awaiting trial, and the overcrowding, methinks; 4,000 should be taken as the first phase. If the first phase is successful, then another phase should continue up to at least 30,000 inmates. What do you think?.

In the course of this endeavor, renown human rights activist and legal sage, Femi Falana, SAN, called on the Honourable Minister to review plans to pay N500 million fine for release of inmates. According to TheCable,[x]the learned Silk said, “the N500 million earmarked for payment of fines should instead, be spent on the welfare of inmates in the correctional centres while alternative decongestion policies are considered. He said, “specifically, the Minister should request the President and the various state Governors to exercise their prerogative of mercy by granting pardon to the 4,000 convicts on grounds of impecuniosity to facilitate their immediate release from custody.” The learned SAN added that, “ the minister should petition the Chief Justice of Nigeria and the Chief Judges of all states to inspect correctional facilities and order the release of inmates whose detention is clearly unlawful or those who have surpassed the maximum period of imprisonment for their alleged offences, whether on remand or otherwise.” As a humanist, I was sober when he called on the Minister to remember the plight of the scores of inmates who are languishing in the Ikoyi Correctional Centre as their case files were destroyed when the Magistrate Court and High Court buildings were burnt during the #endsars protests in October 2020.”[xi]

My major worry, is about the time limits required to constitutional satisfy the invocation of the powers to grant pardon. In other words, would it not take time to invoke the prerogative of mercy by the President/Governors, considering the laid down constitutional procedures involved?.[xii]

Another question is, how effective and efficient have the Chief Justices of States and Judges utilize the power to visit prisons and make release?. I think it’s time these institutions prioritize human liberty and prison decongestion.



To understand the kernel of this gist, a summary  of the statistics of inmates in prison as complied by the Nigerian Correctional Service, on the 30th day of October, 2023, is very instructive.


Total number of Inmates – 81,134.

Convicted Inmates – 25, 633.

Awaiting Trial Inmates(ATM) – 55, 501.


Total in percentage

Convicted Inmates – 32%.

Awaiting Trial Inmates (ATM)  –68%.


Overall capacity of prisons in Nigeria – 57, 278.

In conclusion, over 17% of Inmates are overcrowding the prisons, as of 2023.


In 2024, 24th January specifically, the summary of Inmates Population by Convict and Awaiting Trial Persons by the Nigerian Correctional Service, are as follows:

Total number of Inmates – 77, 350.

Convicted Inmates – 23, 258.

Awaiting Trial Inmates – 54, 092.

Total in Percentage

Convicted Inmates – 30%.

Awaiting Trial Inmates – 70%.


Overall capacity of prisons in Nigeria – 57, 278.

In conclusion, over 16% of Inmates are overcrowding the prisons, as of 2024.




In the light of the above enigma bedeviling our Criminal Justice System, the following recommendations should be considered by the relevant stakeholders:

  • Strict observance of the practice and procedures on Remand: The Administration of Criminal Justice Act, 2015, like a messiah, came to advance our Criminal Justice System, amongst others, – Remand Proceedings. Therefore, it behooves on the relevant players to strive towards excellence in respect of its observance. I ponder again, if the ACJA has been in force since 2015, why is the number of suspect on ATM still increasing?. Do you know?.For instance, recently, the CJ of Lagos State placed a ban on magistrate courts on granting remand orders, due to complains from the Nigeria correctional service about the prisons being overcrowded. However, in a fresh circular dated November 7, 2023, the Chief Judge said the magistrates could now resume granting remand orders to the police. The statement by the CJ read, “Defendants can now be remanded in the Correctional Service centres with effect from Monday, November 6, 2023.“Constitutional provisions should always be taken into consideration in imposing conditions of bail.”[xiii]
  • Inter – Ministerial Synergy: once again, applause to the Minister of Interior for seeking partnership with the Ministry of Justice. However, the synergy should caught across other agencies like the Minister of Humanitarian Affairs, Nigerian Correctional Service, Nigerian Police Force and all prosecuting agencies, and the Judiciary as one of the major actors.
  • Prison Visitation by the Chief Justice of Nigeria and Chief Justices of the States: By section 34 of the ACJA, 2015, and 70 of the Police Act, 2020, judges ought to carry out monthly visitation to correctional centres. This would help them detect and make necessary orders and recommendations on the date of the suspects concern. For instance, Punch Newspaper reports[xiv]that, Chief Justice of Rivers State, Justice ChibuzorAmadi, freed 53 inmates awaiting trial to mark the opening of the 2023/2024 legal year. During the exercise, the CJ noted that, “The pardon serves as a reminder of our commitment to ensure justice is rightly served, that our correctional centre should not become overcrowded and the rights of the defendants are protected. More importantly, it symbolises our dedication to ensuring that individuals have the chance to reintegrate into society as law-abiding citizens.” He was pungent when he noted further, “Our custodial centres should not be warehouses for the forgotten nor should they be breeding grounds for hardened criminals.“Rather they should be places for transformation where individuals can reflect on their past actions, learn from their mistakes and receive the necessary tools and support for their rehabilitation. “To achieve this, we need collaboration among all stakeholders involved in the criminal administration system. The judiciary, the correctional services, law enforcement agencies, legal aid organizations and community leaders must work hand in hand to ensure justice prevails.”
  • Prerogative of Mercy (Pardon) by the President/Governors: the President and Governors of the States have the constitutional powers by virtue of sections 175 and 212 of the 1999 Constitution of the Federal Republic of Nigeria, as altered, to grant pardon to offenders subject to lay down procedures. This would help decongestion the overcrowded prisons across the nation.
  • Review of the objectives of Sentencing: the 3R’s of sentencing should be reviewed, that is – Reorientation, Rehabilitation and Reintegration. If this objectives are reviewed and appreciated, then the need to decongest the prisons becomes expedient.
  • Utility of Non – Custodial Sentences: the ACJA, 2015, made provisions for non custodial sentences such as; Fine, Restitution/Compensation, Probation, Parole, Suspended Sentence, Community Service, Rehabilitation and Correctional Centre. If this sentences are utilized and imprisonment reduced, we would succeed.
  • The Role of the Administration of Criminal Justice Monitoring Committee (ACJMC): Section 469 of the ACJA[xv] establishes the Administration of Criminal Justice Monitoring Committee (ACJMC) with the general responsibility of ensuring effective and efficient application of the law. This committee is expected to facilitate and monitor the setting up of the necessary structures that will give effect to the implementation of some of the non-custodial measures provided under the law as well as monitor the effective and efficient implementation of the law such as; To identify and recommend necessary draft rules and regulations in respect of Probation and Community Service on regulations relating to appointment of probation officers, etc; To monitor the appointment of probation, community service and other relevant officers; To identify and provide support for the training of relevant officers in respect of probation and CS; To monitor compliance with the regulations and effectiveness of probation and CS.
  • Continuous Decongestion activism/crusade: by human rights activists, NGO’s, State and non – State actors, amongst others.



On the whole, this discourse have been able to examine the right to liberty, and the safeguards at the international, regional and national level. The mathematical exposition of the provisions of the 1999 Constitution of the Federal Republic of Nigeria, as altered, as well as the Administration of Criminal Justice Act, 2015 have been exposed, vis-à-vis remand proceedings, the many reasons for prison congestion and some decided cases have also been examined. We have also interrogated the bid by the Federal Government to decongestion the prisons, and even gave a current statistical analysis of inmates in the Nigerian Correctional Service. All hands must be on deck if this crusade in favour of liberty must succeed. The relevant stakeholders must synergize tactfully to get positive outcomes as we move ahead.



‘’Nobody should be in our correctional centre if he/shehas no business doing there.’’ Hon. OlubunmiTunji-Ojo, at the NBA National YLF Summit, FCT 2024.

Thanks for going through this post;  The Right to Liberty and Prison Decongestion in Nigeria.

[i]E.A. Lufadeju V. Evangelist Bayo Johnson (2007) 8 NWLR (pt. 1037) 535

[ii] Johnson V. Lufadeju (2002) 8 NWLR (pt. 768) 192

[iii] See Rotimi Jacob on Criminal Procedure, 2023.

[iv] The procedure for bail would take in consideration sections 158 to 188 of the ACJA, 2015.

[v]Alade v. the Federal Republic of Nigeria.<>accessed 10th November, 2023.

[vi] Ibid

[vii]ChinweAguma Memorial Lecture: Notes on Prison Decongestion.<>accessed 10th November, 2023.

[viii] However, the fact that the majority of suspects awaiting trial are caused by remand proceedings should not be taken for granted.

[ix] Interior, justice ministries to partner to decongest prisons.<>accessed November, 2023.

[x] Review plan to pay N500m fine for release of inmates, Falana tells minister.<>accessed November, 2023.

[xi] Ibid

[xii] see sections 175 and 212 for the powers to grant pardon by the President and Governors respectively.

[xiii]Prison congestion: Lagos Chief Judge lifts ban on remand orders.><accessed 10th November, 2023.


[xiv] Rivers CJ pardons  53 awaiting trial inmates.<>accessed 10th November, 2023.

[xv] see section 466 of the ACJL of Cross River State.

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