The Public Prosecution, ordinarily, has a discretionary power to issue the pretrial imprisonment order unless there is a special case described in different regulations and provisions.
After questioning the accused, the Public Prosecution member may issue a pretrial imprisonment order, if he or she is of the opinion that the evidence is satisfactory and the deed is a felony or crime that is punished and penalized by other than a fine.
Such pretrial imprisonment orders shall include the name of the accused, his or her title, nationality, occupation, residence, charges and allegations, date of the order, location and time of appearance or attendance, name and signature of the public prosecution member, and it has to be stamped by the official seal.
One of the most common and collective questions which we receive is "Does the Public Prosecution have the right to put the prisoners in separate cells so as to prevent any contact between the detainees and other individuals?"
The answer to that is, even though it is very unlikely to take place and personally I did not experience or see this in any of the cases undertaken by us but Article No.109 of Federal Law No. (35) Of 1992 gives the Public Prosecution the right to preclude such interaction between a detainee and other individuals but without prejudice to any right of the accused to meet and interact with his own attorney.
Amongst many other questions that we receive about the detention, most are concerned with the time period of the pretrial imprisonment or for how long it shall be effective.
Our observation leads us to respond that the pretrial imprisonment could continue to be effective for as long as the investigation is ongoing. However, the law that contributes to the security of the detainee, ensures that each judicial authority has a perimeter to their power to issue the pretrial imprisonment order.
For instance, the first pretrial imprisonment order issued by the Public Prosecution shall not be more than seven days, which could be extended for an additional two weeks. If the two weeks expire and the Public Prosecution believes that it is in the best interest of justice and the investigation to prolong the detention period, they might lengthen it for a further period. Henceforth, the matter has to be referred to one of the criminal court judges, who shall review the file and request for the attendance of the accused. The judge would then listen to the argument put forward by the accused and acquire his statement. Subsequently, the judge would then make a decision on the extension of the detention, for a period not exceeding 30 days renewable, or to release him on bail.
The judge could also decide to release him temporary until the investigation is over and this is one of the most confusing and perplexing points for non-legal individuals. The reason being, while the accused is under detention, they often find themselves being transferred with no pre-notice, to the judge where they are questioned about their cases. That is why taking legal assistance at the earliest is advised. However, the judge during the stage of the investigation process is not the authorized to decide whether to accept or dismiss the charges.
Nevertheless, it is imperative to mention here that be Public Prosecution has the right to close the case and dismiss the charges during the criminal investigation phase, where they discover and conclude that the evidence is not sufficient or there has been no occurrence of law breaking.
So, in other words, during the investigation stage, only be Public Prosecution has the power to make such decisions but not the judge.
However, if the case has been transferred to the criminal court, the Public Prosecution will have no power to dismiss the case anymore and the entire discretionary power would then be transferred to the criminal court judge.