10 August 2021

How To Tackle Illegal Police Arrest And Detention In Nigeria

Olisa Agbakoba Legal (OAL)


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Illegal police arrest and detention of a suspect/defendant in Nigeria can be effectively tackled by a broad and extensive enlightenment of citizens by National Human Rights Commission...
Nigeria Government, Public Sector
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Illegal police arrest and detention of a suspect/defendant in Nigeria can be effectively tackled by a broad and extensive enlightenment of citizens by National Human Rights Commission, Non-Governmental Organizations (NGO's) and the Police Complaints Response Unit etc.

It is becoming more common to find civil disputes having Police participation in contravention of the provisions of the existing applicable Laws like Section 32 (2) of the Police Act 2020 l and the Administration of Criminal Justice Act, 2015.

There is no gainsaying that in practice, the police, as agents of the state are empowered to achieve a saner, regulated and orderly society through their duty of prevention and detection of crime, apprehension of offenders and preservation of law but what occurs in most cases are infringement of the fundamental rights of suspects while carrying their duties.

Protection from Illegal Arrest and Detention in Nigeria

In its ordinary meaning, detention has a similar consequence with arrest; the deprivation of liberty of the detained or arrested person. Arrest without detention is a contradiction in terms, in that; arrest restricts the motion or action of a person(s) affected by it. Consequently, the person arrested is detained.

Illegal arrest and detention of an individual by the police is now a daily occurrence which an average citizens encounter in the course of going about their daily  business. This attitude stems from the ignorance of the scope of police powers and the nature of the individual right to liberty.

By Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and Articles 3 of the African Charter on Human Rights (Ratification and Enforcement) Act, Cap (A9) Laws of the Federation of Nigeria 2004  the police have no power to detain anyone, save for as provided by the law. However, Section 38 of the Police Act 2020 permits the Police to arrest with conditions, and arrest as we now know is the beginning of detention.

It is worthy of note that there is nowhere in our criminal law is the police empowered to arrest citizens unconditionally and is a known fact that most police officers in the course of carrying out their duties often abuses the powers of arrest donated by section 38 of the Police Act 2020 by arresting and detaining citizens indiscriminately even in civil matters.

Legal Rights Against Unlawful Arrest and Detention in Nigeria

The Nigerian Constitution and other International Human Rights provisions frowns seriously on illegal arrest and detention of citizens without sufficient evidence upon which a charge can be preferred against him.

In the constitutional context, personal liberty connotes right to freedom from wrongful or false imprisonment, arrest, or any physical restraint whether in any common prison, or even in the open street without legal justification.

The personal liberty of a person may be contravened only in the exceptions in section 35(1)(a-f) of the 1999 Constitution as it is the law that right to personal liberty is suspended once there is reasonable suspicion of having committed a criminal offence.

It is noteworthy that an arrest and detention lawfully made within the confines of the law cannot constitute a breach of a citizen's right to liberty as encapsulated Section 35 (1)(a-f) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

That is to say that a citizen who is arrested by the police while legitimately performing his duty and on grounds of reasonable suspicion of having committed an offence cannot be faulted, but the suspect must be brought to court within a reasonable time.

It is; however, correct to hold that detention, no matter how short, can lie as a breach of fundamental right. But that can only be so, if the detention is adjudged wrongful and unlawful, in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the Applicant. Furthermore, Section 5(1) of the Nigeria Police Act 2020 also gives legal backing by providing as follows:

"The Police Force is responsible for protecting the fundamental rights of persons in custody as guaranteed by the Constitution"

This simply means that the police have the duty to protect the fundamental rights of a suspect which includes the right to liberty of a person, right to remain silent, right to be informed of the facts and ground of arrest and right to be brought before a court within a reasonable time.

These rights are captured in Section 35(2) (3) (4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 35 of the Nigeria Police Act 2020 and a breach of these rights leads to illegal detention with or without trial.

A brief examination of some of the existing Statutes regarding Human Rights and the powers of the Police to arrest a person with or without a Warrant are provided in the following paragraphs.

Human Rights Protection from illegal Arrest and Detention in Nigeria

Nigeria is a signatory to both the United Nations Declaration of Human Rights, and the African Charter on Human Rights. Nigeria has also domesticated both Charters in her local Laws.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) reiterates the above provisions of the United Nations Charter on Human Rights when it guarantees in Section 35 the right of every person to his or her personal liberty except where such liberty is encumbered or restrained or controlled by the due process of the Law; i.e. the execution of a Court Order or Judgment.

The personal liberty of every person is further enshrined in the Administration of  Criminal Justice Act, 2015 ("ACJA") by among other things, guarantee to every person the right to remain silent and not answer any questions until a Lawyer or such other person of the person or  suspect's choice is present.

Human Rights Protection Protocols of Arrest

Section 38 of the Police Act 2020 empowers the Police to detect and prevent the commission of any crime, apprehend any suspected offender, preserve the Law, protect lives and properties, etc.

In the performance of its duties, the Police must ensure that it adheres to various Human Rights Protection Protocols, some of which include mandatorily informing a Suspect of the ground or grounds for an arrest except where the offence was actually committed in the presence of a Police Officer or the Suspect was fleeing the scene of the commission of an offence or escaping prior lawful custody.

A Suspect arrested by the Police also has the constitutional right to remain silent and avoid answering any question until he or she has consulted a Lawyer or any other person of his choice. The Police are also required to inform a Suspect's next of kin or relative of any arrest, at no costs to the Suspect or the Suspect's relatives.

The practice of a person being arrested in place of a suspect is now prohibited by Law and Section 36 of the Police Act 2020. A Suspect shall also not be arrested merely for committing a civil wrong or breaching a contract.

Lastly, Section 8 of the ACJA provides that every suspect shall be accorded humane and dignified treatment whilst in the custody of the Police. And no Suspect shall be subjected to any form of torture, cruel, inhumane or degrading treatment.

Consequently, any violation of a citizen's guaranteed fundamental right, however short a period will attract penalty under the law.  Where the arrest and detention of a person are unlawful and unconstitutional any subsequent arraignment of that person before a Court of law cannot and would not cure the illegality or unconstitutionality of the arrest and detention of the suspect as provided in  Section 35(6) of the 1999 Constitution, as amended, which for convenience, is copied as follows;

"Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law".

Arrest Warrants and Release: Rights of a Suspect in Nigeria

The commonly accepted practice is for a Suspect to be arrested with a Warrant signed by a Judge or Magistrate. At a preliminary investigative stage, a letter of invitation from the Police may be served on a person of interest.

Where the Suspect commits the offence in the presence of a Police Officer, or flees the scene of the commission of the offence, or from lawful custody, such a Warrant of arrest may not be necessary or required.

Where a person is arrested without a Warrant for a non-capital offence, which offence is not punishable by death, and it is impracticable to arraign such a Suspect before a Court of Law with competent jurisdiction over such a matter, such a Suspect must be released on administrative Police Bail within twenty-four (24) hours of such an arrest.

A release on bail must be on reasonable conditions which ensure that the Suspect is produced whenever required in the future.

Where a Suspect, in a non-capital offence is not released with twenty-four (24) hours after arrest, a Court with competent jurisdiction can on a proper application been made on the Suspect's behalf, order the release of such a Suspect on bail, on such conditions as the Court deems appropriate.

In addition to damages being awarded for any unlawful arrest and detention, an aggrieved person also has a right, under the Law of Tort, to sue both the Police and the Complainant for malicious prosecution and compensatory damages.

What if I wasn't the one who committed the crime? Is it Possible for Me to Resist Arrest?

What happens if an officer's assumptions about a suspect's guilt are inaccurate? Is the person physically capable of resisting arrest?

Even if the police is wrong or the arrest is illegal, resisting arrest is rarely a wise option. Resisting arrest is risky and can result in harm as well as more criminal charges. It is usually preferable to fight an illegal arrest in court rather than on the streets.

What to Do When I am Arrested?

  • Do not attempt to resist arrest
  • Ask for reason for your arrest
  • If the arresting officer is not in uniform, ask him to identify himself
  • If you are not Arrested while allegedly committing a crime, ask for arrest warrant
  • Arrest carried out without a warrant is illegal
  • Ask the officer what station you are being taken to

Once you arrive the station, contact your  family, friends and lawyer, though section 35 (3) of the Police Act 2020 provides that it is the duty of the police having custody of a suspect to notify the next –of – kin or relative of the suspect of the arrest at no cost to the suspect.

When the officer ask for statement you do not have to give your statement until you see your lawyer or any other person you request to see. But this must be done with urgency to allow for the activation of your bail process.

How Long Can I Be Detained by Police in Nigeria?

The police can detain a suspect for a maximum of 24 hours, after that, they must bring you to court

However, if the police cannot bring you to court within 24 hours, because the following day is a holiday or weekend, they must bring you to court within a maximum of 48 hours

After the 24 (48) hours' time line, only a judge or magistrate can order your further detention

If the police is unable to bring you to court within 24(48) hours' time line, you must be released on administrative bail, except for those cases where you are suspected of having committed a capital offence (like murder and armed robbery)

Steps to Be Released After Being Arrested

If you've been arrested, consult a criminal defense lawyer right away. Before answering any queries, it's extremely crucial to seek the help of a lawyer. Having a lawyer support you earlier on throughout your case can help you achieve the best possible result in your situation.

Your lawyer or relation can apply for police bail at any stage of investigation, if the police refuse to grant you bail, your lawyer should rush to the nearest High Court and apply for the enforcement of your fundamental rights.

In Conclusion:

As commendable as the Statutes on this subject are, their correct application and enforcement in day-to-day life, continues to be a mirage, for many reasons. Prominent among these reasons is the lack of public enlightenment of the provisions of the Law on the subject; and the enforcement of the punitive deterrent consequences for any breach of the Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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