Most often, when allegations of violation of human rights or fundamental rights of a suspect or defendant is made, the defence of the Respondent sued, especially, some of the government’s law enforcement agencies is that he was arrested on the information or being in possession of materials suspected to be subject of an offence or that a court of law has convicted the defendant and sentenced him to prison or correctional service center and therefore, the allegation of unlawful detention in violation of human rights or fundamental rights of the suspect or defendant should be discountenanced by the court. This paper is, with due respect, in opposition to such submission by the law enforcement agency of government, hence this paper.
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The Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution and the International human rights laws have guaranteed some rights for every citizen and every person respectively as contained in Chapter IV of the Constitution, the African Charter on Human and Peoples’ Rights and the United Nations Universal Declaration of Human Rights, 1948. Provision of those human rights guaranteed under these laws are not just for fancy or camouflage rather, occasions in the past had justified their guarantee in our organic or Supreme laws for the purpose of safeguard.
With due respect, it is my humble submission as a human rights activist/lawyer, that no matter and or notwithstanding the nature of the offence the applicant has been suspected and or alleged to have committed, it is not an excuse for the Respondent or the law enforcement agency of government to abandon the procedure for detaining a suspect such as the Applicant in its custody in a manner that violates the personal liberty of the Applicant and in the manner contrary to the Constitution of the Federal Republic of Nigeria, 1999, (as amended)-herein after referred to as the Constitution-, and all other human rights laws both local and international, including the provisions of the Administration of Criminal Justice Act, 2015-herein after referred to as the ACJA.
I also humbly submit that even where a person is arrested on reasonable suspicion of having committed a capital offence, he is still entitled to the protection of his fundamental rights. In the case of Ogugu v The State (1994) NWLR (pt. 366) 1 at pp. 26 &27, the Supreme Court of Nigeria held that a person convicted of a capital offence and sentenced to death is still entitled to the protection of his fundamental rights to the dignity of human person.
Furthermore, I humbly submit that in determining whether the Respondent has detained the applicant illegally or not, the Court will be compelled to consider from the Applicant’s affidavit in support of his application and the grounds for bringing the application, the date of arrest of the applicant and the date the applicant was charged to court for his criminal trial. More so, the procedure under the Fundamental Rights is not for criminal trial rather for the consideration and determination of the allegations made by the Applicant against the Respondent that his fundamental right has been or is being or is likely to be infringed upon by the Respondent and to seek compensation and apology pursuant to section 35(6) of the Constitution.
Furthermore, it is my humble submission that the excuse or defence given by the Respondent is untenable, unreasonable and unacceptable as the reason for unlawfully detaining the applicant in its custody. I humbly refer to the provisions of Section 34 (4) of the Constitution in support of my argument which provides thus ‘Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time…’ and what amounts to a reasonable time has been defined by subsection (5) of the section to mean (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) in any other case, a period of two days or such longer period as the circumstance may be considered by the court to be reasonable’. Also, in the case of Isenalumhe v Amadi (supra), the Supreme Court of Nigeria held thus ‘The police have the responsibility to enhance the quality of the liberty and dignity of the Federal Republic of Nigeria as guaranteed by the constitution. Where they fail in this task, their failure must not be allowed to work to the detriment of law abiding citizens. Their failure must be checked timeously to enhance the principles and ideals upon which a free society is built’. I further humbly submit that if the Respondent has admitted in its counter-affidavit that truly it violated the Applicant’s fundamental rights, then, it must pay compensation and tender apology to the Applicant in compliance with section 35(6) of the Constitution, if justice must be seen to prevail in favour of the Applicant, as facts admitted need no proof. See: the case of Narindex Trust Ltd. V NICMB LTD. (2001) FWLR (pt. 49) 1546/4SC (pt. 11) 25 SC.
Furthermore, the Respondent’s detention of the applicant on the grounds of the defence under consideration in this paper, is contrary to the provisions of the Administration of Criminal Justice Act, 2015-herein after referred to as the ACJA, by which section 30 of the ACJA requires the Respondent to release the applicant on bail within twenty-four hours, which the Respondent had failed to do. The said section 30 ACJA provides thus ‘(1)Where a suspect has been taken into police custody without a warrant for an offence, other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection (2) of this section, and if it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within twenty-four hours after the arrest. (2)The officer in charge of a police station shall release the suspect on bail on his entering into a recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance’. Section 158 of the ACJA is also humbly referred to. Also, section 8(3) and (4) of the ACJA also saddles the Respondent to perform the following duties as contained therein which the Respondent has failed and or refused and or neglected to carry out thus ‘(3) A suspect shall be brought before the court as prescribed by this Act or any other law or otherwise released conditionally or unconditionally. (4) The arraignment and trial of a suspect for a crime shall be in accordance with the provisions of this Act unless otherwise stated in this Act.’.
Also, it is the requirement of the ACJA that where the Respondent could not charge the applicant to Court within a reasonable time, the Respondent shall apply for a remand order of the Court, the mandatory duty which the Respondent has failed and or refused and or neglected to perform. This is provided for in section 293 of the ACJA thus ‘293. (1) A suspect arrested for an offence which a court has no jurisdiction to try shall within a reasonable time of arrest be brought before a High Court for remand. (2) An application for remand under this section shall be made ex parte and shall: (a) be made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Act; and (b) be verified on oath and contain reasons for the remand request.’.
Furthermore, the Supreme Court of Nigeria had laid down the mandatory procedure of remand order where a suspect as that of the Applicant in relation to the Respondent has been arrested in the case of Lufadeju v Johnson (2007)8 NWLR (pt. 1037) 535 SC., at page 566, paras. A-D, where Akintan J.S.C. held as thus ‘It is necessary to state that section 236(3) of the Criminal Procedure Law is aimed at ensuring judicial control of those arrested by the police on criminal allegations. The power of the police to detain a suspect is restricted by law to specific number of days. They are therefore required within the period to bring the suspect before a court for the purpose of an order for further remand, if need be. The appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offence’.
Also, My Lord, Onnoghen J.S.C. (as he then was) also held at page 573, para. C of the Lufadeju’s case (supra) thus ‘What section 236(3) of the CPL does is to maintain a balance between the two by doing away with the tendency of arbitrary and near indefinite police detention of suspects without order of court’. I which to humbly state that the above decision of the Supreme Court in the Lufadeju’s case (supra) is in line with the provisions of Section 293 of the ACJA (supra).
Also, by virtue of the provisions of Order III of the Fundamental Rights (Enforcement Procedure) Rules, 2009, ‘an application for the enforcement of fundamental right shall not be affected by any limitation Statute whatsoever’.
Furthermore, with due respect, the Respondent will then be challenged to prove to the Honourable Court with documentary evidence that it had the Court order as mandated by law, authorizing and or permitting and or allowing it to detain the applicant for such long periods beyond the constitutional reasonable time, inclusive of the day of the applicant’s arrest. And where the Respondent never tendered any of such court’s order permitting it to remand the applicant in its custody beyond the time allowed by law i.e. for it to remand the applicant for such long periods, then, it must have violated the Applicant’s fundamental rights and such is arbitrary and constitutes violation of the applicant’s fundamental rights guaranteed under sections: 35 (1) (a-f), (4), (5) and (6) and 36 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 6 of the African Charter on Human and People’s Rights as ratified by the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1990 and was therefore unconstitutional, unlawful, illegal, null and void.
Finally therefore, I humbly disagree with those law enforcement agencies of government that raise the above defence under this topic as grounds for violating the suspect’s or the defendant’s fundamental rights with pride and arrogance and I therefore submit that the Applicant shall in such instances be entitled to compensation and public apology from such law enforcement agencies of government. More so, ignorance of the law shall not excuse such law enforcement agencies of government.
Email: hameed_ajibola@yahoo.com
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