Nigeria in view:


What the Constitution provides

One major difference between a totalitarian state and a democratic state is that in the former, the Constitution which is the grundnorm is in constant jeopardy while the later respects and is guided by Constitution.

Fortunately, Nigeria happens to be among one of the democratic states, thereby providing a mechanism to ensure that the provisions of the 1999 Constitution are not contravened.

A major right of every citizen as guaranteed by the Constitution is the right to have access to a court of justice. This is explicated provided for in person liberty of Nigerians irrespective of age, gender, status etc. This is specifically made possible by the provision section 35 of the Constitution of Nigeria 1999 as thus:

  1. 35. (1) every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –

(a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;

(b) by reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law;

(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;

(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or

(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:

Provided that a person who is charged with an offence and who has been detained in lawful 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.

The essence of the above section 35 is to ensure personal liberty of citizens except in certain circumstances as stipulated. Our emphasis shall be on section 35(1) (c) as time will not permit us to discuss all aspects of the above provision of section 35.

Section 35(1)(c) recognizes deprivation of someone’s liberty for the purpose of bringing him before a law court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.

It is indeed from the above subsection (1) (c) that all other laws enabling any law officer, individual to arrest derive their forces. This is particular so as the Constitution is our grundnorm and invalidates any other law that contravenes with its provisions.

It follows therefore that besides the Police Act and other enactments, the Constitution is allows arrest of a person upon reasonably suspicion of his having committed a crime.

The other aspects of arrest and detention are the rights to be informed in writing within twenty four hours of the facts and grounds for such arrest or detention and to be brought before a court within a reasonable time. Sections 35 (3) (4) of the 1999 Constitution.

Reasonable time” is further defined in subsection 5 to mean in case of arrest or detention in any place where there is a court of competent jurisdiction, one day and in any other case two days.

In other words, it is constitutional right of an arrested/detained person to be taken to a court of competent jurisdiction within two working days at most. No doubt the very essence of civil liberty consists in the right of every individual to have access to court.

Although, we clam to fall into the categories of democratic and civilized States that practice the provisions of the Constitution, the reality is that Nigeria is yet to fully achieve the essence of section 35 of our Constitution. In practice, one would say that rather than have a society where personal liberty of citizens are obeyed in line with the Constitution, the opposite is the case.

People are being arrested/detained on daily basis by different enforcement officers with regards to Constitutional provisions.

The prison is congested with accused persons half of whom are yet to appear before any court, but have being in detention for several years. Regretfully, some have spent five years awaiting trial for offences that carry two years imprisonment upon conviction. Even some innocent ones are suffering in detention; a lot have died without access to court while lucky ones are released on visit of the Chief Judge of the State after years in prison.

What has this democratic society turned into? Could it be a democratic State with a totalitarian spirit? No doubt, in the guise to check crime and maintain peace, Nigeria has made a monster of some enforcement officers to the extent that the fear of them is now the beginning of wisdom.

The questions here are,

Can we claim to be enjoying the dividend of democracy in view of or limited right to liberty?

Can there ever be a check or a mechanism to ensure that arrested persons are granted bail for simple offences where they cannot be taken to court within the specified time?

Can our prison be ever decongested to contain only those that must be there?

Enforcement Officers need orientation. Again knowledge of law and fundamental rights of citizens are key.

Unlawful detention does not eradicate crime. If for any purpose, the unlawful detention of persons for years without trial, particularly innocent people account partly for the moral decadent in the society. Most accused go into the prison better and come out worst.

While we are thinking of overhauling the entire system so as to enjoy the benefit of democracy, the basis should not be forgotten and the basis can be found in the Constitution

By Bolaji Ogungbemi Esq.

(First published on LinkedIn)