The Right To Remain Silent And Not To Make Any Statement To The Police Is Constitutionally Guaranteed

By Kunle Edun

Section 35(2) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN), as severally amended, provides that “Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of hos choice”.

It is therefore, the fundamental right of every person who is arrested or detained to abstain from making any statement or answer any question being asked him by any personnel of the security, military, other agencies of government or by any private person that initiates an arrest. The provisions of section 35(2) of the CFRN did not limit its application only to Policemen or any particular class of person that effects an arrest or detention.

The reasons adduced for this constitutional safeguard includes the fact that some suspects may not be able to understand the nature of the charge against them or that they may out of fear incriminate themselves. However, Section 36(5) of the CFRN justifies it; it provides that “Every person who ischarged with a criminal offence shall be presumed to be innocent until he is proved guilty.” By these constitutional provisions nobody is required by law to prove his innocence. The duty is on the accuser or the Prosecution to prove the allegations that a person has committed a crime. The suspect may therefore, decide to remain silent.

Section 17(1) of the Administration of Criminal Justice At, 2015 (ACJA, some States in Nigeria have similar provisions in their adopted versions) provides that “Where a suspect is arrested on allegation of having committed an offence, his statement shall be take, if he so wishes to make a statement.

Section 17(2) of the ACJA, 2015 further provides that “Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an official of a civil society organization or a justice of the Peace or any other person of his choice…”

From the foregoing statutory provisions it is mandatory that before any arrested or detained person should make a statement to any of the security agencies or any other arresting authority he may exercise his right to remain silent or if he desires to make statement then he should avail himself of the services of a legal practitioner or any other person of his choice. However, where the arrested or detained person has no or is unable to acquire the services of a legal practitioner, Section 17(2) of ACJA, 2015 makes it mandatory that the arresting agency must provide “an official of a civil society organization or a justice of the Peace”.

The essence of all these legal safe-guards being availed persons that are arrested or detained, is to ensure that only the guilty are punished. It is better that 99 guilty persons are set free, than for one innocent person to suffer for a crime that he did not commit. It is rather saddening that these provisions are not complied with by the security and arresting bodies. It is an irony that in every criminal case investigated in Nigeria there must be confessional statements. Is that an indication that Nigerians are quick at being remorseful whereas the moral decadence and crime rate in the society are at their peak?

It has been observedby keen followers of the justice system in Nigeria that because of the desire of some security agencies to obtain convictions at all cost, investigations are done in complete disregard of the standard procedure and the suspects constitutionally guaranteed rights. The penchant of the Police to always initiate an investigation by arresting “suspects” and thereafter start looking for evidence has done incalculable harm to the prosecution of many criminal cases and the society, as many suspects or accused persons are set free on technical points.