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Unlawful detention in Nigeria

1

What is unlawful detention?

An unlawful detention occurs when a person’s right to personal liberty is restricted without recourse to lawful processes. The concept of unlawful detention include, and are not restricted to:

  • Detentions that are unreasonable, inappropriate or lack legal justification.
  • Detentions that are not in accordance with national law.
  • Detentions in which due processes of law is not followed.
2

What constitutes unlawful detention?

Section 35 (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states that any person who is arrested or detained shall be brought before a court of law within a reasonable time.The expression, ‘a reasonable time’ to mean:

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

So generally, when arrested and detained, you are expected to be arraigned in a court of competent jurisdiction within 24 hours (a period of one day) or 48 hours (within a period of two days).

Therefore, any period exceeding one or two days may constitute unlawful detention.  However, the court has the discretion to determine the reasonableness of the length of detention based on facts/circumstances of each case.

If the police are unable to charge you to court within the period of 24hrs or 48hrs, you must be released on bail except for cases where you are suspected to have committed capital offences such as murder, armed robbery.

A real-life case:

CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR (2018) LPELR-47256(CA) – The appellant was detained for a period of three days without reasonable cause for the delay. The arrest and detention was adjudged unlawful by the appeal court.

BEEIOR ISHENGE v. COMMISSIONER OF POLICE, PLATEAU STATE & ANOR (2019) LPELR-48390(CA) – The Appeal Court held that the 1st respondent violated the right to personal liberty of the appellant as guaranteed by Section 35 of the 1999 Constitution when it failed to charge the appellant within the time frame stipulated in Section 35(5) (a) of the Constitution.

 

3

Detention without trial in Nigeria

You may be remanded (kept) in custody for a longer period of time than 2 days, but a court has to order such remand.

According to Section 293 of the Administration of Criminal Justice Act of 2015, a suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand.

This means that, after 24hrs or 48hrs time limit, only a magistrate can order your further detention. You may be remanded in custody if:

  • The nature and seriousness of the alleged offence necessitates that you be kept in custody.

  • There are reasonable grounds to suspect that you have been involved in the commission of the offence.

  • There are reasonable grounds for believing that you may abscond or commit other offences if you are not kept in custody.

  • Any other circumstance that justifies the prosecutor’s request for remand.

In the first application to keep you in custody, the court may grant a remand order not exceeding a period of 14 days. However, such period may be extended for another 14 days if the prosecutor justifies the need to continue to keep you in custody.

If at the expiration of 28 days, you are still not put before a court that has the jurisdiction (authority) to decide on your case, you can apply for bail (Your application for bail is subject to the processes involved in bail application in Nigeria -for more information on bail in Nigeria, see the section on bail).

If the application on bail is rejected your stay in custody can be extended for another 28 days (making it 56 days in total). In case you are still being remanded when the extended period lapses, the court will discharge you and you should be immediately released from custody.

4

Can I challenge unlawful detention?

Any detention which is unlawful is a contravention of your right to personal liberty guaranteed in Section 35(1) of the 1999 Constitution.

You can take legal action.

  • You can take legal action to challenge your unlawful detention in the court. Your right to personal liberty must have been infringed upon, and not just mere speculations that cannot hold sway in law. To ensure that you are able to engage the court effectively, you will need a lawyer.
  • Gather Evidence: To challenge unlawful detention successfully, you need the evidence to prove that you have been detained unconstitutionally or unlawfully. It must be appreciated that it is not the arrest and detention of a person on a reasonable suspicion of his having committed an offence that constitutes the violation of his fundamental right to personal liberty. It is the unreasonableness of the length of his period of detention.
  •  If you allege that you have been detained unlawfully, it is important for you to state in clear terms the date and time of your arrest and the length of the period of your detention. If you fail to provide such information, it will be impossible for the court to determine your allegation and your case may be dismissed.
  • Your evidence must reveal all necessary facts, particulars and ingredients revealing you have been detained unlawfully.
  • You must prove that you were arrested and detained beyond the time frame stipulated by law. On the other hand, the prosecution will have to prove that your detention was lawful.

For more information on how to take legal action or gathering evidence, check the guide on Fundamental Rights Enforcement Procedure, which provides information on how to enforce your rights upon violation.

 

Using non-judicial mechanisms to challenge unlawful detention:

A non-judicial means of reporting unlawful arrest/detention, is the Nigeria Police Force Complaint Response Unit (CRU).  The Complaint Response Unit is responsible for taking complaints against police officers who act unprofessionally by violating established procedures of the profession.

Complaints that can be lodged to the CRU include when police officers request for people to pay for bail, demanding bribes and extortion, violating people’s right and engaging in more serious crimes like beatings, brutality, any form of torture, degrading treatment, and extrajudicial killing.

You can lodge your complaints by:

  • Preparing a letter that details the nature of complaints and the entire incidence.
  • Include any additional evidence that will corroborate your complaints such as photos, videos.)
  • You can forward such to their mails – complaint@npf.gov.ng or npfcomplaint@gmail.com or npf.gov.ng/complaint
  • If you don’t receive email reply, reach them on their active social media accounts. Twitter (PoliceNG_CRU) Facebook (@PoliceNgCRU) (Numbers, 08057000001 & 08057000002). The twitter account of the Complaint Response Unit is highly resourceful and very active.

Kindly note: There are other non-judicial means of challenging human rights violation asides reporting to the Police Complaints Unit, including the National Human Rights Commission and the Nigerian Ombudsman. Check the section on other non-judicial means of defending human rights, which provides information on how to enforce your rights upon violation.

5

What remedies are available when detained unlawfully?

You are entitled to remedies if the court holds that you were detained unlawfully. Section 35(6) of the 1999 Constitution states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person

A real-life case:

EMERE v. ANACHUNA & ORS (2018) LPELR-45065(CA)

Our law has provided a remedy for any such victim of unlawful arrest and or detention. This is contained in Section 35 (6) of the 1999 Constitution which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person

For more information, check what happens if I win or if I loose? section under the Fundamental Rights Enforcement Procedure Guide.

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