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Understanding arrest

1

What is an arrest?

An arrest is the act of apprehending and taking of a person into custody, usually because the person is suspected to have committed a crime or observed committing a crime. Whether or not the arrest is lawful, when the seizure is done, an arrest has been made.

When a person is arrested, they are deprived of their liberty.

The Constitution of the Federal Republic of Nigeria guarantees the right of every individual to their liberty, and lays down exceptions where a person may be deprived of their liberty in section 35(1)

Section 35(1) of the 1999 Constitution of Federal Republic of Nigeria (2011 as amended): “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:

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

  • by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;

  • 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;

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

  • 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

  • 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.”

 Our focus in this guide will largely be on S35(c) which says that you can be arrested for the following reasons:

  • to bring a person before a court because a court or tribunal ordered this to happen, or
  • if the person arrested has been suspected to have committed a crime and that suspicion is reasonable or
  • in order to prevent a person from committing a crime. 

These reasons will be the primary focus on this guide because these are the most common reasons for arrest in the context human rights like freedom of expression, of assembly and of political participation and are used in the context of protests, strike action and other means.

2

When can an arrest take place?

Arrest can be made:

  • before the commission of a crime,
  • during the commission of a crime and,
  • after the commission of the crime.

The purpose of arrest was also posited by Justice ADAH (JCA) in the case of UKIRI V EFCC (2018) LPELR-43992(SC), where he held that the purpose of an arrest is to bring the person arrested either before a Court or to secure the administration of the law.

 

3

Where does arrest take place?

An arrest may be carried out anywhere, as long as there is a probable cause for the arrest.

For instance, if you have been suspected to have committed a crime, you may be arrested in your residence, on the street, in the office, place of work, worship centre and so on.

4

Who is legally allowed to make an arrest?

Primarily, arrests are made by law enforcement agencies, which are empowered by law to carry out an arrest when a person is suspected to have committed, is committing or likely to commit a crime.In Nigeria, arrests can be carried out by:

The Police Force: It‘s power of arrest may be found in Section 4 of the Police Act which allows the police to make arrests for specific reasons:

  • the prevention and detection of crime, 
  • the apprehension of offenders,
  • the preservation of law and order, 
  • the protection of life and property and
  • the due enforcement of all laws and regulations with which they are directly charged.

The Economic and Financial Crimes Commission (EFCC): is empowered under Sections 6 and 7 of the EFCC Act 2004 to investigate financial crimes. In performing this duty, its officers may arrest suspects and take them into custody for questioning.

The Independent Corrupt Practices Commission (ICPC): Section 5 of the ICPC Act 2000 grants powers similar to police officers under the police Act to investigate or prosecute cases of corruption. This means that officers of the ICPC can also arrest a suspect, the same way the Police can arrest under the Police Act.

The Road Safety Commission: Section 10(4)(5) of the Federal Road Safety Commission (Enforcement) Act 2007  confers on its officers powers of arrest and prosecution of any person suspected of committing or having committed any traffic offense under the RSCE Act.

The Nigerian Customs: Section 8 of the Customs and Excise Management Act 2003, gives its officers the same powers as police officers for the purpose of customs and border regulations.

The National Drug Law Enforcement Agency (NDLEA): Officers of the National Drug Law Enforcement Agency can under section 4 of the National Drug Law Enforcement Agency Act, arrest, investigate and prosecute anyone who is suspected to have committed any drug related offense.

 

What about private individuals?

In certain situations, private individuals have the power to make an arrest without a warrant. These types of arrests, known as citizens’ arrests, occur when ordinary people either detain criminals themselves or direct police officers to detain a criminal. For instance, when you as an individual sees a man sexually assaulting a young girl and you go ahead to seize him and further hand him over to the police.

While arrests by private citizens are subject to fewer legal requirements than an arrest by law enforcement officers, there are still rules that apply when an arrest is carried out. Failure to abide by these rules can result in civil and criminal liability for the arresting individual.

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