The Police is a security agent recognised in different countries of the world for upholding peace and stability. Due to this important function, they have been granted certain powers by their enabling statute.
For this article, we will focus on the power of the Police to make arrests and the rights a person has upon arrest by the police.
Table of Contents
Laws Regulating the Powers of the Police to Arrest
The laws regulating the powers of the police to arrest are;
- The Constitution of the Federal Republic of Nigeria (“Constitution”) Section 214 to 216 of the 1999 Constitution.
- The Police Act,
- The Criminal Procedure Act (“CPA”)
- The Criminal Procedure Code (“CPC”),
- The Administration of Criminal Justice Act (“ACJA”) and
- The Administration of Criminal Justice Laws (“ACJL”) of various states.
The CPA,CPC, ACJA and ACJL of various states are referred to as procedural laws.
An arrest occurs where the police or other law enforcement agency takes a person suspected of committing an offence into lawful custody.
Section 35 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 cases stated in the Constitution and in accordance with a procedure permitted by law.
One of the conditions as stipulated by the Constitution, where a person can be deprived of his personal liberty, is where a person is apprehended for the purpose of bringing him before a court in execution of a warrant 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.
Flowing from this, it can be rightly stated that an arrest when carried out lawfully is constitutional.
Power of Arrest
According to the above listed laws, a police officer, a judge, magistrate or a private person (an individual) has the power to arrest a person provided the conditions stipulated by law are followed. For this discuss, we would analyze the purview of the powers of the police to arrest an individual as well as the rights of a citizen upon arrest.
The Section 4 of the Police Act provides for the general powers of the police stating that;
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.
This general power of the Police includes the power of arrest.
An Effective Arrest
For an arrest to be effective, the police officer making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. However, a person arrested shall not be handcuffed, otherwise bound or be subjected to unnecessary restraint except by order of the court, or unless there is reasonable apprehension of violence or of an attempt to escape or unless the restraint is considered necessary for the safety of the person arrested.
Situations Where An Arrest Can Be Made Without A Warrant
Generally, an arrest is to be carried out with a warrant, however, the law provides for various instances where the police can arrest an individual without a warrant. This is contained under Section 24 of the Police Act and they are;
- A police officer suspects a person, upon reasonable grounds, of having committed an offence;
- A person commits an offence in the presence of a police officer;
- A person obstructs a police officer while in the execution of his duty; or
- A person escapes or attempts to escape from lawful custody;
- A person is in possession of anything which may reasonably be suspected to be stolen property or where such a person is suspected of committing a crime with respect to the property;
- A police officer suspects a person, upon reasonable grounds, of being a deserter from any of the armed forces of Nigeria;
- Any person whom a police officer suspects upon reasonable grounds of having committed an offence at any place out of Nigeria which, if committed in Nigeria, would have been punishable as an offence;
- A person has in his possession, without lawful excuse, any implement of housebreaking;
- A person whom the police officer has reasonable cause to believe a warrant of arrest has been issued against by a court of competent jurisdiction in the State;
- A person is found in the State taking precautions to conceal his presence in circumstances which afford reason to believe that he is taking such precautions with a view to committing an offence which is punishable with nothing less than 2 years imprisonment.
From the above provision of the law, it is very clear that the power of the Police to arrest an individual without a warrant is quite broad. However, it is worthy to state that the Police is benchmarked by the rationality of his actions. A police officer must, at all times, carry out his power of arrest in a way which a reasonable man will act in regard to the circumstances of each case. In addition, the powers of a police officer to arrest without warrant can only be exercised in the state.
Search Upon Arrest
Upon arrest, the Police is empowered by the law to search such person, using such force as may be reasonably necessary for such purpose, and to place in safe custody all articles other than necessary wearing apparel found upon him. However, where such a person is to be granted bail or is discovered to be innocent of the offence of which he is accused of, the Police officer shall return the property which have been initially confiscated.
Arrest in lieu of Another
The law expressly prohibits the arrest of a person in lieu of another. Despite the provisions of the law against the act, the Nigerian Police still go about arresting friends and relations of a suspect where it is difficult to find the person suspected of committing a crime. This is totally wrong and unconstitutional. The powers the Police have in this situation would be merely to invite such a person affiliated to the suspect to the police station for questioning.
Rights of a Person Upon Arrest
As a result of the fact that our legal system is more adjudicatory in nature, the law states that a person accused of having committed a crime is deemed innocent until proven guilty and convicted by a court of competent jurisdiction. Therefore, the Constitution provides a lot of protection to anybody who is accused of committing an offence and provides series of rights accruing to an accused person upon arrest. The rights are as follows:
- Right to be Informed (Section 36 (6)(a) of the 1999 Constitution): The laws state that the Police upon arrest of an individual must inform him/her of the particular offence of which he/she is suspected of committing. Thus, except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested, in writing and in the language he understands, of the cause of the arrest, of the grounds and facts of his detention. This is to be done within 24 hours of the arrest. Where the Police cannot communicate in the language of the accused person, the accused person is to be provided with an interpreter.
- Right to remain silent (Section 35 (2) of the 1999 Constitution): This is by far the most popular right of an accused person. Any person arrested for committing any offence shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. The import of this provision, popularly referred to as the right to freedom from self-discrimination is that an accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station. It is therefore illegal for the Police to compel an accused or suspect to talk or make any statement, against his wish and to consult a lawyer first, before doing so.
- Right to Legal Assistance and Advice (Section 36 (6)(c) of the 1999 Constitution): Related to the right to legal representation is the corresponding right to free legal services for those who cannot afford same. The Constitution empowers the National Assembly to make provisions for the rendering of financial assistance to any indigent citizen of Nigeria where his rights under the Constitution has been infringed or with a view to enabling him engage the services of a Legal Practitioner to prosecute his claim.
- Right to Freedom from Unnecessary Restraint (Section 35 of the 1999 Constitution): As have earlier been stated, accused persons or suspects are entitled to personal liberty and should not be treated in any form of degrading and inhuman manner. Handcuffs, chains and any form of restraints are prohibited except where the accused person tries to escape or is suspected of trying to escape.
- Right to Life (Section 33 of the 1999 Constitution): This follows from the right to freedom from unnecessary restraints. No matter the gravity of the rime a person is accused of committing, the police has no power to kill him/her. This is a constitutional right and any police officer which infringes upon this right would be punished in accordance with the law.
- Right to Presumption of Innocence (Section 36 (5) of the 1999 Constitution): The Constitution states that every person accused of a criminal offence shall be presumed to be innocent until proven guilty.
- Right to be Charged to Court within a Reasonable Time (Section 35 (4) of the 1999 Constitution): Any person who is arrested or detained shall be brought before a court of law within a reasonable time. Reasonable time here means within 24 hours or 48 hours depending on the proximity of the court of law to the police station. For avoidance of doubt, a person who is arrested of having committed an offence must be charged to court within two days of the arrest.
This provision of the law, however, does not apply where the offence in question is one punishable by death, such as murder or treason.
- Right to Bail: The right of a suspect to bail is a constitutional right which provides that a suspect is entitled to be released with or without conditions, even if further proceedings may be brought against him, within a period of a day or two days of his arrest and detention, as the case may be. Where by virtue of the nature and circumstances of a particular case it is not feasible for the police to release the suspect on bail, he must be charged to court not later than a period of 24 to 48 hours, from the date of detention depending on the circumstances of each case.
Despite the above provision, where the offence is one which is punishable by death, such a person would not be entitled to bail.
- Right to Public Apology (Section 35(6) of the 1999 Constitution): Any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person. This thus arises if after the interview and/or investigations, it is realized that the person was wrongly arrested.
We can see that although the police have certain powers, they are guiding by certain rules which need to be applied for it to be lawful. These rules are put in place to checkmate the actions of the police and ensure that they do not act on their own and believe that their actions are without consequences.
Written by Ali-Udo Chinwe