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Understanding detention

WHAT IS DETENTION?

In the context of this guide, detention means the deprivation of the liberty of a person due to arrest by the police or other law enforcement agencies, or bodies enabled by law. You are not only detained when kept in a police cell, or prison. Once your freedom of movement is restricted and you are kept in a particular place (usually in a police station), detention has taken place. You may also detain in a court holding cell.

1

Conditions for detention

Section 35 (1) of the 1999 Constitution provides that “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.”

2

Who has the power to detain?

1.The police

The police is empowered by law to arrest and detain suspects.

Section 4 of the Police Act

The police shall be employed for 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, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.

2. Other law enforcement agencies

You may also be arrested and detained by other law enforcement agencies such as the Economic and Financial Crimes Commission (EFCC), The State Security Service (SSS), Independent Corrupt Practices and other Related Offences Commission (ICPC). These law agencies are empowered by law to preserve law and order in the society have detention centers where accused persons can be detained.

3. Other agencies

In other instance, public health authorities, Immigration officials, or social welfare officials may also detain a person for the purposes of their care or treatment, or if they enter or remain in the country illegally.

3

Where can you be detained?

The law specifies where you can be detained. Therefore, it is illegal to detain a suspect anywhere other than the following places:

  • In a police cell.
  • The holding cell of other law enforcement agency.
  • The holding cell of a court or prison cell.

It is ILLEGAL for example to keep you in a private house, or a traditional ruler’s palace.

4

What to do when detained?

The following information will prove useful if you are arrested and detained:

  • Do not attempt to resist arrest or engage in physical altercation with the police/law enforcement agent. Speak with them in a civil way.

  • If the law enforcement officer is not wearing their uniforms, you may ask them to identify themselves. If you are arrested while not actively committing a crime, you may ask them if they have a warrant for your arrest.

  • Once you are at the police station or detention centre ask to be allowed to speak to your lawyer or family. Immediately inform them of where you being detained and why.

Section 35 of the 1999 Constitution lays out other rights that you are entitled to. For instance:

  • You do not have to write a statement, or say anything while in detention. You have the right to remain silent – anything you say may be used against you by the police in court.

  • You have a right to consult with your lawyer privately

  • The law mandates law enforcement to inform you of the facts and grounds for your detention in writing within twenty-four hours; and in a language that you understand.

  • The Constitution mandates that you be arraigned before a court within 24 hours of your arrest, and in circumstances this proves to be reasonably impossible – within 48 hours.

  • Section 35(4) of the Constitution also provides that if you are not tried within a period of two months from the date of your arrest and detention without bail; or three months from the date of your arrest or detention  but have been released on bail, without further proceedings brought against you, you must be released either unconditionally or upon such conditions as are reasonably necessary to ensure that you appear for trial at a later date.

  • Except in certain circumstances or crimes, you can apply for a police bail, or court bail once you have been brought before a court. Bail is free. See more on bail in the bail sections.

Please take note of the events surrounding your detention. You may want to challenge your detention in the court as being unlawful. More information on this is provided for in the Fundamental Rights Enforcement Procedure guide.

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