Arrest Should Not Be Part Of Investigation

By Daniel Bulusson, Esq A.K.A Barrister Monkey Jacket

It is customary in our criminal jurisprudence, that once a person is suspected of committing an alleged crime, he/she is arrested pending the outcome of such investigation and prosecution; this to my mind is in gross violation of the fundamental human right of presumption of innocence as enshrined in the constitution of the Federal republic of Nigeria 1999 (as amended).

Take for instance, a person alleged to have committed the offence of rape without conclusion of an investigation to ascertain that he committed such offence against the victim, and he is arrested, detained, and taken to a nearby magistrate for cognizance, after which he awaits trial in a correctional facility pending the determination of the matter.

Reason being that, by virtue of section 258(1) of the Kaduna State Penal Law provides that whoever commits rape, shall be punished with imprisonment for life, so this makes the offence of rape a capital offence, and by virtue of Section 174 (1) of the Kaduna State Administration of Criminal Justice Law (2017), A suspect arrested, detained or charged with an offence punishable with a term of 21 years or more, life imprisonment, or death, shall not be released on bail. He may, however be admitted to bail by a judge of a High Court only under exceptional circumstances i.e Ill health, extra ordinary delay in investigation, arraignment and prosecution for a period exceeding two years, and any other circumstances that the judge considers exceptional.

What this means is that on a mere allegation without concrete evidence to support such allegation, a person would be refused bail, and as such would have to be remanded pending the determination of the charge against him.

To my mind, arrest as part of investigation is in contravention with everything that Section 36(5) of the 1999 constitution stands for, which is, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Let us go back to the rape scenario, imagine after denying someone his right to personal liberty for two years or more, and then the court discharges him of the offence, what remedy is provided in the law for compensation for the wrongful detention?

Arrest and interrogation are two different things, for purposes of investigation, a suspect can be interrogated at all times till the establishment of the commission of the crime, but he/she should not be arrested before the conclusion of investigation. There are suspects in our different custodial centers and this does not exempt the EFCC, who are awaiting trial because most of these agencies only carry out investigation when a suspect is in their custody, and this to me creates an unbalance to the three way traffic of justice which is justice to the suspect, justice to the victim and justice to the society at large.

In sum, I feel the current ‘Renewed hope’ administration need do more to curtail the violation of right to personal liberty being occasioned by most of these security agencies who pay more priority to arrest than investigation, or in the alternative, there should be a law for compensation of those who have wasted time of their lives in custody and get discharged by a court of competent jurisdiction.

For Comment(s), Recommendation(s) and question(s), do send a mail to danielbulusson@gmail.com or send WhatsApp to 08087208546