Bulus Y. Atsen, fsi, Esq.
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The recent detention of a former Attorney General of the Federation has once again pushed Nigeria’s arrest and detention practices into the national spotlight. Predictably, the public debate has been consumed by personalities, political affiliations and competing narratives. Yet this fixation overlooks the deeper and more enduring problem: Nigeria operates a criminal justice system without uniform, enforceable standards governing arrest, detention, remand and bail across its law enforcement agencies.
This is not a new problem, nor is it confined to any single case. It is a structural weakness that has persisted for decades. Different agencies apply different rules, timelines and practices, often improvising around constitutional safeguards. The result is uncertainty for citizens, exposure to liability for officers and a justice system that appears arbitrary rather than principled.
Detention, in law, begins the moment the State restrains a person’s liberty. Nigerian courts have consistently held that any such restraint must strictly comply with constitutional requirements. In Ekwenugo v. FRN (2001) 6 NWLR (Pt. 708) 171, the Supreme Court affirmed that once liberty is curtailed by the State, constitutional safeguards are immediately triggered. These safeguards are not optional, nor are they dependent on the status of the suspect or the gravity of the allegation.
Sections 35 and 36 of the Constitution guarantee personal liberty, presumption of innocence and fair hearing. These guarantees presuppose clear procedures: lawful arrest based on reasonable suspicion, prompt access to counsel, timely arraignment and transparent judicial oversight. Where these elements are absent, detention ceases to be a lawful process and becomes punishment without trial.
The absence of binding federal guidelines has allowed arrest to drift from its lawful purpose. It is intended to secure attendance before a court, not as a tool of investigation or coercion. In Onagoruwa v. IGP (1991) 5 NWLR (Pt. 193) 593, the Court of Appeal warned that using arrest and detention as investigative leverage violates constitutional guarantees, regardless of the seriousness of the allegation.
What Nigeria urgently requires is not another round of personality-driven debates, but institutional clarity. A set of Federal Guidelines on Arrest, Detention, Remand and Bail, issued under the authority of the Attorney General of the Federation, would align practice with the Constitution, standardise procedures across agencies, and restore predictability to the administration of criminal justice.
Justice, after all, is not secured by discretion alone. It is secured by rules that bind everyone equally.
One of the clearest signs that Nigeria’s arrest and detention practices require urgent reform is the widespread degree of abuse currently levelled against law enforcement agencies, due to the absence of a harmonised framework. While the Constitution sets outer limits, it does not prescribe operational details. That gap has been filled, not by coherent standards, but by improvisation. The result is uneven enforcement, recurring rights violations, and public distrust. The controversy surrounding the allegations of human rights abuses in Tiger Base, Imo State, is one of many cases.
Other common law jurisdictions confronted this same problem and resolved it through clear prosecutorial and operational codes.
In the United Kingdom, arrest and detention are governed not only by statute but by the Code for Crown Prosecutors, issued by the Crown Prosecution Service. The Code establishes a two-stage test before prosecution proceeds: an evidential test, requiring sufficient admissible evidence to provide a realistic prospect of conviction, and a public interest test. Crucially, arrest is not treated as a substitute for investigation. Police are expected to investigate first, arrest second and justify detention against clearly articulated standards. Even where arrest without warrant is lawful, continued detention is closely supervised, time-bound and subject to transparent review.
Similarly, in the United States, the Department of Justice operates under binding DOJ Guidelines and the Justice Manual, which govern federal arrests, charging decisions, detention and plea negotiations. Federal prosecutors are required to assess not only probable cause but also evidentiary sufficiency, proportionality and constitutional risk before approving arrests or detention. Importantly, investigative agencies do not operate in isolation. Prosecutorial oversight functions as a systemic brake against abuse.
These frameworks strengthen law enforcement by improving case quality, protecting officers from personal liability, and increasing conviction rates. They also shift enforcement away from spectacle to evidence-based.
Nigeria’s experience stands in sharp contrast. Arrest is often the first step, not the last. Detention is used to compensate for incomplete investigations. Administrative bail is treated as a discretionary indulgence rather than a constitutional obligation. Sections 35(4) and (5) of the Constitution impose strict timelines. Yet, the vast majority of pre-trial detention routinely extends beyond 24 or 48 hours without judicial justification. Remand orders, where they exist, are often neither served nor explained, and collapsing due process into secrecy, at best, or voodoo, at its despicable level.
The Administration of Criminal Justice Act was designed to correct some of these failures. Section 293 permits remand only under strict conditions. Section 33 mandates reporting of arrests without warrant. Section 8 discourages the criminalisation of civil and contractual disputes. Yet without overarching federal guidelines, these provisions are applied unevenly, if at all.
This is precisely where leadership must intervene. In both the UK and the US, prosecutorial codes function as bridges between constitutional ideals and daily enforcement practice. Nigeria lacks that bridge. Federal law enforcement agencies answer to the Executive, and the Attorney General of the Federation is constitutionally empowered to provide direction. Issuing Federal Guidelines on Arrest, Detention, Remand and Bail would not infringe on investigative independence. It would discipline it.
The lesson from comparative practice is clear: discretion without structure breeds abuse, but discretion guided by transparent rules produces justice. Nigeria’s challenge is not a lack of laws. It is the absence of enforceable standards that turns law into habit.
The controversy surrounding the detention of Abubakar Malami, SAN, does more than animate headlines. It exposes, in real-time, the consequences of regulatory neglect at the very centre of federal law enforcement.
Competing claims about remand orders, bail rulings, service of processes and custody timelines have flooded the public space. Stripped of personalities, the constitutional question is narrow and unforgiving: were the standards governing arrest, detention, remand and bail complied with? If those standards are unclear, inconsistently applied, or undocumented, the system has already failed, regardless of who occupies the dock.
That is what makes the Malami episode uniquely instructive. As a former Attorney General of the Federation, Malami had the authority to issue binding federal guidelines to regulate arrest and detention practices across agencies. He did not. Today, he finds himself navigating the very procedural ambiguity that flourished under his tenure. This is not poetic justice. It is an institutional consequence.
The remand questions alone illustrate the point. A remand order, if it exists, must meet statutory conditions, be time-bound, and be served on the detainee. Where service is absent, delayed or disputed, due process collapses into assertion. That such a basic safeguard is now debated in the media rather than resolved by clear protocol speaks volumes.
This is precisely why the current system of abuse is indefensible. Lack of oversight produces arbitrariness. Arbitrariness produces abuse. Abuse eventually reaches everyone, including those who once presided over the system.
The lesson for the current Attorney General of the Federation is unavoidable. The absence of Federal Arrest, Detention, Remand and Bail Guidelines does not merely endanger ordinary citizens. It exposes officers to personal liability, agencies to institutional embarrassment and the justice system to recurring crisis. Courts will continue to award damages. Cases will continue to unravel. Public confidence will continue to erode.
Malami’s experience is not an aberration. It is a case study in what happens when constitutional liberties are left to improvisation. The warning is clear: systems you refuse to regulate will eventually regulate you.
Justice does not correct itself by outrage or hindsight. It is corrected by issued rules applied uniformly and enforced without regard to status. The responsibility to do so now rests squarely with the current Attorney General of the Federation. History will be unsparing to those who inherit power but decline to use it.
Bulus Y. Atsen, fsi, Esq. is a legal practitioner and a Fellow of the Security Institute (fsi). He writes on law, security and governance. He can be reached via bulus53n@duck.com
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