Unlawful Detention

All people are equal before the law. Every person has a right to either be charged and fairly tried. By virtue of the provisions of section 35 (5) of the 1999 Constitution (as amended) , section 483 of the criminal procedure Act  and section 42 of the criminal procedure Code, the police ought not to detain any person for more than 24 hours without a warrant from a magistrate.

Section 35 (5) of the 1999 Constitution (as amended): A reasonal time for the trial of a suspect means –

( a) In the case of an arrest or detention in any place where there is a court of competent jurisdiction with a radius of forty kilometers, a period of one day, and (b) in any other case, a period of two days or such longer period as the circumstances may be considered by the court to be reasonable.

Section 483 (1) of the criminal procedure Act: where a person is arrested without warrant in a state or part of the federation and there is in that state no magistrate who has jurisdiction with respect to the offence with which the person apprehended is charged, the person apprehended shall be taken as soon as practicable before a Magistrate of a state who has such jurisdiction. Provided that if the person apprehended cannot be taken be for a magistrate ….

S. 42 of the criminal procedure Code: No Police officer shall detain in custody a person arrested without warrant for a longer period than in the circumstance of  the case is reasonable; and such period shall not, in the absence of an order of a court under section 129 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the court and of any intervening public holiday.

In the same vein, a proviso to section 35 (1) of the constitution (as amended) states that ,“a person who is charged with an offence who has been detained in unlawful 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”.

But these provisions are grossly violated by the Nigerian Police who continually infringe on rights guaranteed under section 34 (1), 35 (1) and 41 (1) of the 1999 Constitution (as amended). Not too long ago a Lagos State High Court ordered the release of one Oyakhire who has been in detention. The declaration was made while ruling on an application brought pursuant to order 11 rule 3 of the fundamental human rights enforcement procedures 2009 by Oyakhire against Lagos state Commissioner of Police. The applicant through his lawyer, had to sue the Lagos State Police Commissioner and two others after several efforts to get his freedom from Police detention failed. The trial judge declared that the continuous detention of Oyakhire for over one year is degrading, unlawful ,illegal and gross violation of his fundamental rights.

The judge also gave a mandatory order compelling the respondents, their officers, agents, servants or privies to produce the applicant before the court in order to be granted bail conditionally or unconditionally.

The genesis of it all was that the applicant was arrested and detained by the Police for an allegation of stealing two vehicles, a jaguar and a Honda CRV Jeep without being charged to court. The applicants lawyer complained that despite court ruling that his client be released from detention, the Police had refused to do so. Even efforts made to serve the police with the enrollment order proved abortive, as they bluntly refused to accept the said order. Hmmm…………. Is the Police now above the court? I think not, that is why justice I.O. Kasali in the final judgement awarded N5 million Jointly and severally against the respondents as general damages for unlawful violation of the applicant’s right. Indeed the courts have played very active roles in matters of unlawful detention, going through Nigerian case law, one would find basis for hope for all those who have been or who are still victims of unlawful detention.

It has also been observed that the incessant jail breaks experienced in Nigerian prisons are caused by unlawful detention of inmates. But the good news are that the senate has began the process to put to an end  to unlawful detention of persons.

This began through the sponsored bill by Senator Babajide Omoworare (Osun East). According to the Senator, human rights and dignity were part and parcel of any democracy, that democracy would’ve lost its value when the people are denied their deserved dignity of human person.

Part of the lawmakers’ proposal to amend the criminal justice Act, is to make it mandatory for the controller of Prisons to send monthly  roster of Prison inmates to the Chief  Justice of  Nigeria and Chief Justices of States.

According to them, when the chief law officer receives the roster, he will then release inmates who have been unnecessarily detained without trail beyond the required two or three months in line with the constitution from the date of arrest.

Indeed, if this bill is passed, it will arrest the issue of prison congestion and Nigerians will no longer have to suffer as a result of unlawful detention.

Nkechi Ewere