Senior lawyers disagree over CJ’s powers to release prisoners

Two senior lawyers on Tuesday disagreed over the powers of State Chief Judges to order the release of prisoners from detention.

While a Lagos-based human rights lawyer, Mr. Femi Falana, SAN, insisted that the laws of the land empowers the CJ to release unlawfully detained criminals, Mr. Sebastine Hon, SAN, maintained that the process is unknown to law.

The ongoing debate started when Hon, in a press statement issued on August 28, 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.

He was reacting to the recent release of about 10 inmates awaiting trial in Ikoyi Prison by the Chief Judge of Lagos State, Justice Oluwafunmilayo Atilade, who ordered their release and charged them to make positive impact in the society.

‎The release of inmates according to the CJ was in pursuant to the provisions of Section 1(1) of the Criminal Justice Release from Custody Special Provision Act CAP C40, 2007, Laws of the Federation of Nigeria.

But Falana, who disagreed with the views of Falana was grossly misleading hence the senior lawyer cited no relevant laws to back up his claims on the subject matter.

He said, section 11 of the Prisons Act (Cap P29) Laws of the Federation of Nigeria, 2004, has powers the Chief Justice of Nigeria and the Chief Judges of the states are among prison visitors ex officio.

Falana also clarified that while the CJ is empowered to visit all prisons in Nigeria Chief Judges are restricted to conduct prison visit in their areas of jurisdiction.

” With respect, the position of the learned senior counsel 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.”

Meanwhile, this views did not go down well with Hon who in a swift reaction fired back saying, Falana’s views are unknown to law and that the position itself is completely wrong.

sections 35(4), 175 and 212 of the Constitution,Mr. Hon argued that it is Falana who is rather running away from the Constitution and taking refuge under laws that are lower to the Constitution.

Falana, SAN, after admitting that I had relied on sections 35(4), 175 and 212 of the Constitution, further shockingly stated thus: “It is curious to note that in the press statement credited to Hon SAN no reference was made to the relevant laws on the subject matter.”

What, in his judgment, is more “relevant” than the Constitution of Nigeria the fons et origo (source) of all laws?

“Rather, he is the person who is running away from the Constitution and taking refuge under laws that are lower to the Constitution”.

While stressing that he do not entertain sentiments when interpreting the Nigerian Constitution, Hon added that section 35(4) of the 1999 Constitution has covered the field on what should be done to any person accused of an offence; and there is no room for any administrative action by the Judiciary.

“Only judicial actions can lead to the release of detained persons, hence any administrative action, apart from the one in sections 175n and 212 will be directly in conflict with the said section 35(4). Also, sections 175 and 212 of the Constitution have advisedly used the phrase ‘a person concerned with or convicted of an offence” he said.