By Hameed Ajibola Jimoh Esq.
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‘PART 2 – Sections: 4 and 5.
Section 4. Mode of arrest.
- In making an arrest, the police officer or other persons making the arrest shall actually touch or confine the body of the suspect, unless there is a submission to the custody by word or action.
EXPLANATORY MEMORANDUM
In my humble submission, this section of the Act has made provision for mode of arrest or in other words, the procedures for making an arrest by any such person permitted or allowed by the Act or law to make an arrest that would make an arrest to be lawful without consequence or liability on the person arresting.
The said section provides that in arresting a person, the person arresting shall (which would mean ‘may’ as an option between two options):
- Actually touch the body of the suspect; or
- Confine the body of the suspect; however, these two options shall not or may not be used ‘where the suspect submits to the custody by word or action’. By Collins Online Dictionary, the word ‘confine’ as a verb i.e. ‘if someone is confined to a place such as a prison, they are sent there and are not allowed to leave for a period of time’. While the word ‘confine’ is defined by the Merriam Webster Online Dictionary as a verb to mean: 1: a. ‘to hold within a location’; b. ‘imprison’; 2. ‘To keep within limits’.
Therefore, it is not part of the procedures of law or under the Act that a suspect to be arrested be ‘tortured’ by the arresting person before or while carrying out an arrest. Such torture would rather amount to ‘an unlawful use of ‘force’’ against the person being purportedly arrested and this would amount to violation of the fundamental rights of the suspect by virtue of section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- which provides thus
‘34.—(1) Every individual is entitled to respect for the dignity of his person, and accordingly— (a) no person shall be subjected to torture or to inhuman or degrading treatment ;
(b) no person shall be held in slavery or servitude ; and
(c) no person shall be required to perform forced or compulsory labour.’. Also see: the Anti-Torture Act, 2017.
Therefore, the attitude of some persons arresting another person for any alleged suspicion of having committed offence in any place or community by torturing such suspect is unlawful and could make such arresting person liable in damages to the victim.
Furthermore, it is my humble submission having regard to section 35(1), (5) and (6) of the Constitution that any unlawful means of arresting someone (whereas an arrest is a restriction on the right to personal liberty of a person so purportedly arrested) renders the person arresting to be liable to being sued for violation of fundamental rights to personal liberty (section 35 of the Constitution), right to freedom of movement (section 41 of the Constitution) and right to peaceful assembly and association (section 40 of the Constitution) of the victim of person so purportedly arrested and for which such arresting person could be awarded compensatory damages against.
For instance too, section 35(6) of the Constitution provides thus ‘(6) Any person who is unlawfullly 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. (Underlining is mine for emphasis). In my humble view, this use of ‘or’ as used in section 35(4) and (6) of the Constitution has separated the two circumstances (underlined above) that could warrant an applicant who is a victim of fundamental rights violation or infringement to be entitled to compensation and public apology by the use of the word ‘or’ with each word unlawful ‘arrest’ and unlawful ‘detention’ standing on its own with its own effect and circumstances (whereas, my concern herein is on ‘arrest’). In my humble view, the implications of the two respective words mean that where any person has alleged unlawful arrest, he is entitled to ‘compensation’ and ‘public apology’. In the same vein, where any person alleges unlawful detention, he is entitled to ‘compensation and public apology’. Section 18(3) of the Interpretation Act, 2004 has defined the word ‘or’ as follows: ‘The word ‘or’ and the word ‘other’ shall in any enactment, be construed disjunctively and not as implying similarity’. Also see: section 318(4) of the Constitution. Furthermore, it will not be a defence in a situation of allegation of unlawful detention that such person has committed an offence for which was the reason for unlawfully detaining him in custody. Furthermore, the fact that the Applicant who has applied to enforce his fundamental right has been convicted by a court of competent criminal jurisdiction will also not vitiate or negate the Applicant’s right to enforce his fundamental right under the Constitution. The issue here much more importantly, section 35(1) of the Constitution, has provided that a person shall only be detained (or his right to personal liberty be infringed upon) where he is detained ‘by procedures permitted by law’, by which any failure on the part of the prosecuting or law enforcement agency or person permitted by law to arrest the suspect to use those procedures permitted by law will definitely result in unlawfully detaining the Applicant for a number of days beyond reasonable time permitted by law which is either a day or two days depending on the circumstances (though, subject to the objective reasonability test of the Court). See: section 35(4) and (5) of the Constitution. Section 35(1) of the Constitution provides thus ‘35.—(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law—‘ (Underlinignis mine for empahasis). Also see Article 6 of the African Charter on Human and Peoples’ Rights.
Furthermore, the provisions of Section 35 (4) of the Constitution 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’ (underlining is mine for emphasis)’. In the case of Isenalumhe v Amadi (2001) 1 CHR p. 459, 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’.
It must also be emphasized that the case of unlawful arrest or detention in the Applicant’s suit is to enforce his right as conferred by the Constitution in section 46(1) that
‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’. Also Order II Rule I of the FREPR is humbly referred to. And ‘Court’ has been defined by Order I of the FREPR to mean ‘the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.’
Therefore, lawyers and every person must know their rights and should always stand up to defend same. A huge sum of money beyond imagination might also be awarded by the Court against the violator of the Applicant’s right so far the evidence is substantial to prove his claim. A lawyer rendering pro bono legal services should try to pursue such fundamental right enforcement even if it warrants using his money upon contingent fee at the success of the suit. Sometimes, a case can raise the status of such lawyer beyond his imagination! Preamble 3(e) of the FREPR has permitted human rights activists to encourage such suit and it becomes an exception to instigating litigation as prohibited by the Rules of Professional Conducts for Legal Practitioners, 2023, I humbly submit.
No unnecessary restraint
Section 5. A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
(a) there is reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court.
EXPLANATORY MEMORANDUM
This section provides or prohibits unnecessary restraint in arresting a suspect. The word ‘restraint’ used by the section is likely to be subjected to different meanings, hence, the Act specifically states in what forms of restraints that are relevant to the Act thus
- Handcuffing the suspect;
- Binding the suspect; for instance, the Oxford Advanced Learner’s Dictionary 6th Edition, page 102, defines ‘bind’ the present tense of ‘bound’ used by the section of the Act, to mean ‘to tie somebody or something with rope, string, etc., so that they cannot move or are held together firmly’.
- Or be subjected to (other means of) restraints. This use of ‘restraint’ then in my humble submission, includes: use of ‘force’ and ‘other necessary restraint’. What is ‘necessary’ is as may be ‘reasonably necessary’ in the view of the court of law where the Applicant for instance, alleges violation of his fundamental rights or being tortured. No wonder the section introduces the section as ‘No Unnecessary restraint’. The ‘restraint’ then becomes ‘objective’ (in the reasoning of the court) and ‘subjective’ (in the view or opinion of a reasonable man or a by-stander) in the circumstances of the arrest as well as the conducts of the suspect during his arrest. This is also to emphasise that a suspect may be restrained by such force as may be necessary in preventing his escape and there is no limit as to such force to compel his submission to arrest. Therefore, a suspect that does not wish to be forcefully arrested is required to voluntarily submit himself to the arresting person and to avoid being mishandled with such ‘force’. Therefore, the section provides that none of such force is required in arresting a suspect or to be used on any suspect who voluntarily submits to the arrest except in certain circumstances: where:
(a) there is reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court. It would be observed that these exceptions are in accordance with the provisions of section 34(1) of the Constitution which provides thus
‘35. —(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law—
(a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty ;
(b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law ;
(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence ;
(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare ;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community ; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto. Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.’
I must however observe that though, ‘necessary force and restraint’ may be used as the circumstances of the situation during arrest may be, arrest in an inhuman, degrading, torturous, etc., way that contravenes the clear provisions of section 34(1) of the Constitution by virtue of section 1 of the Constitution is not acceptable and to that extent, such act and or omission in contravention of the Constitution and in breach of section 34(1) of the Constitution is actionable and shall entitle the victim to compensation and public apology by virtue of section 35(6) of the Constitution. Section 34(1) of the Constitution (for emphasis) provides thus
‘34.—(1) Every individual is entitled to respect for the dignity of his person, and accordingly—
(a) no person shall be subjected to torture or to inhuman or degrading treatment ;
(b) no person shall be held in slavery or servitude ; and
(c) no person shall be required to perform forced or compulsory labour’. Also see: Anti-Torture Act, 2017.
Therefore, a situation where the law requires or permits that a suspect may be: handcuffed or bound (e.g. with rope, fabrics, string, etc.), and the suspect being bound to the back or to his knees or to his heels; etc. (just like being done to an ‘animal’), would amount to degrading; torturous; and inhuman treatment of the suspect by the arresting person or community of person. Hence, that act and or omission is actionable and entitles the suspect to a claim in compensation for such infringement on his fundamental rights notwithstanding the alleged allegation of having committed offence made against him (even if caught in the alleged criminal act or confesses to such allegation); he is still presumed innocent in the eyes of the law by virtue of section 36(5) of the Constitution. Section 36(5) of the Constitution provides thus
‘(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.’.
In conclusion, the above are my little understanding and notes on the purport of the above explained sections of the Act. It is my belief (in great humility) that this project benefits the reader tremendously.
Email: hameed_ajibola@yahoo.com 08168292549.
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