In Nigeria, a troubling crisis of unlawful detention threatens the rights and freedoms of countless individuals. Despite the country’s legal frameworks designed to protect citizens, systemic flaws and corruption frequently lead to wrongful imprisonments, leaving many trapped without due process.
In August, the Federal High Court in Lagos delivered a judgment against the National Drug Law Enforcement Agency (NDLEA), awarding N5 million in damages for the unlawful detention of Aderinde Aro, the Chief Executive Officer of Derindos Ventures Limited for 34 days without proper legal justification.
Detention, the act of holding someone in custody or restricting their freedom of movement, has become a contentious issue in Nigeria. While the law provides for lawful detention under specific circumstances, unlawful detention continues to plague our society, violating citizens’ fundamental rights.
The Nigerian Constitution of 1999 (as amended) enshrines protections against arbitrary arrests and detentions. Section 35(1) explicitly states that every person has the right to personal liberty. Furthermore, Section 35(4) mandates that any person arrested or detained must be brought before a court of law within a reasonable time.
What amounts to unlawful detention
An unlawful detention occurs when a person’s right to personal liberty is restricted without following the legal process. This includes:
1. Detentions that are unreasonable, inappropriate, or lack legal justification.
2. Detentions that are not in accordance with national law.
3. Detentions in which due processes of law are not followed and your rights are not respected.
Rights to be respected when in detention
When in detention, the police or agency holding you must respect several rights enshrined in the Nigerian Constitution. These rights include:
1. Right to Life: Section 33 of the Constitution states that no one shall be deprived intentionally of their life, except in execution of a court sentence in respect of a criminal offence of which they have been found guilty in Nigeria.
2. Right to dignity of person: Section 34 prohibits torture or inhumane or degrading treatment of pre-trial detainees. They cannot be subjected to forced labour.
3. Right to be presumed innocent until proven guilty: Section 36(5) ensures that every person charged with a criminal offence shall be presumed innocent until proven guilty.
4. Right to remain silent: Section 35(2) guarantees that any person 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 their choice.
5. Right to consult with a lawyer: Also under Section 35(2), detainees have the right to consult privately with a legal practitioner of their choice.
6. Right to be informed of the facts and grounds for detention: Section 35(3) mandates that detainees must be informed in writing within twenty-four hours, and in a language that they understand, of the facts and grounds for their detention.
7. Right to be brought before a court promptly: Section 35(4) requires that detainees must be taken before a court within 24 hours of arrest, or in circumstances where this proves to be reasonably impossible, within 48 hours.
8. Right to be charged or released within a specific timeframe: Section 35(4) and (5) stipulate that the police must charge detainees with an offence within 24-48 hours or release them on bail, except for cases involving capital offences.
9. Right to adequate time and facilities to prepare for defense: Section 36(6)(b) ensures that in cases where bail is denied, the pre-trial detainee must be allowed adequate time and facilities to prepare for their defence.
10. Right to speedy trial: Section 35(4) stipulates that if detained without bail, a person must be tried within two months from the date of arrest. If detained with bail, they must be tried within three months from the date of arrest.
The Administration of Criminal Justice Act (ACJA) 2015 further strengthens these protections. Section 296(1) of the ACJA stipulates that a suspect should not be detained for more than 14 days without a court order.
While the law generally limits detention to 24-48 hours, exceptions exist. Section 294 of the ACJA 2015 allows for extended detention under specific circumstances, such as the seriousness of the alleged offence or risk of absconding. However, even in these cases, strict time limits and judicial oversight apply.
The Police Act 2020 further reinforces human rights protections during arrests and detentions.
Key provisions of the Police Act 2020 include:
1. Mandatory information on grounds for arrest: Section 38 of the Police Act 2020 requires police officers to inform suspects of the grounds for their arrest, except where the offense was committed in the officer’s presence or the suspect was fleeing from a crime scene or lawful custody.
2. Right to remain silent: Section 35(2) of the Constitution, which is reinforced by the Police Act, guarantees the right of arrested persons to remain silent until they have consulted with a lawyer or any other person of their choice.
3. Prohibition of arresting a person in place of a suspect: Section 36 of the Police Act 2020 explicitly prohibits the practice of arresting someone in place of a suspect.
4. Prohibition of arrest for civil wrongs or breach of contract: Section 32(2) of the Police Act 2020 states that a suspect shall not be arrested merely for a civil wrong or breach of contract. This provision helps to distinguish between civil and criminal matters.
5. Humane treatment of suspects in custody: Section 37 of the Police Act 2020 mandates that every suspect shall be accorded humane treatment, having regard to their right to the dignity of their person. This aligns with Section 34 of the Constitution, which protects the right to dignity of the person.
6. Notification of next-of-kin: Section 35(3) of the Police Act 2020 requires the police to notify the next-of-kin or relative of the suspect of the arrest at no cost to the suspect.
Section 8 of the ACJA also mandates humane and dignified treatment of suspects in police custody.
The Constitution provides remedies for unlawful detention. Section 35(6) states:
“Any person who is unlawfully 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.”
Recent cases of unlawful detention in Nigeria in 2024
Ogun State Police Case: A court awarded N25 million against the Ogun State Commissioner of Police for unlawfully detaining Sunday Mafe multiple times in 2016 without lawful justification, violating his fundamental rights.
NDLEA Case: A businessman was awarded N5 million after being unlawfully detained for 34 days by the National Drug Law Enforcement Agency (NDLEA).
Journalist Detentions: The House of Representatives condemned the unlawful detention of journalists, noting at least 10 arrests in the past year, which threaten press freedom in Nigeria.
