Introduction

Consider this for context: Sikiru Alade was born in Nigeria in 1975. He was self-employed as a panel beater in Lagos before his arrest.

On or about March 9th, 2003, Sikiru was arrested near the old Lagos toll gate area by a plain clothes police officer, who neither disclosed his identity nor gave any reasons for the arrest. The police officer then forcefully dragged Sikiru to Ketu Police Station in Lagos State, where he was detained. Seventy-seven (77) days later, on May 15th, 2003, Sikiru was brought before the Magistrates’ Court in Yaba, Lagos State, on an allegation of armed robbery under the procedure known as “holding charge,” a process by wherein a suspect is brought before a magistrates’ court that lacks jurisdiction over the offense for which the suspect has been detained and on account of which the suspect is brought. The magistrate therefore could not order his release and has no option under the law but to remand him in custody based on a holding charge, without any determination whether there are sufficient grounds for even further detention.

We will take up the issues surrounding this mostly oppressive procedure on another day. So, pursuant to the holding charge, the magistrate ordered that Sikiru be remanded in custody. He was then held at Kirikiri Maximum Security Prison in Apapa, Lagos, without being returned to any court of competent jurisdiction or charged with a crime under any law. On September 18th, 2012, nearly TEN YEARS after his unlawful arrest, following the judgment of the ECOWAS Court, Sikiru was released after a review of the case by the Chief Judge of Lagos State. But Sikiru Alade is only one named face of many who have been detained unlawfully in Nigeria.

What is Personal Liberty?

In SCC (NIG) LTD & ANOR v. GEORGE & ANOR (2019) LPELR-46963(CA) the Court of Appeal per ADAH, JCA remarked, “There is from the constitutional provision no room for any arbitrary arrest or detention of any person in Nigeria. There must be a prevalence of any of the excepted instances therein for any person to be arrested. Anything short of that is clearly in breach of the right of the individual to liberty.”

What is Detention?

When you are arrested or invited by anyone and you are restricted from moving freely or kept in custody, you are detained. In other words, detention occurs when free movement has been rendered impossible.

Where Can You be Detained?

You must be kept within a police station or in a cell, the arrest cell of any law enforcement agency, the holding cell of a court or a prison cell.

Who Can Detain You?

Even though private persons and judicial officers can arrest a person, they cannot detain you since the law requires that they promptly hand you over to the Police. Only the Police and other Law Enforcement agencies (such as the Nigerian Drug Law Enforcement Agency, the Economic and Financial Crimes Commission, Nigerian Customs Service, etc) are allowed by law to detain a person. In any case these agencies are still subject to the constitutional time limit to detain a person with or without a court order.

How Long Can a Person Be Lawfully Detained in Nigeria?

The Police in Nigeria routinely charge suspects with a serious offense in order to have them detained but make little or no effort to investigate or prosecute the case.

It was reported that as of October 2012, 38,352 persons or 71% of the prison population were detained awaiting uncertain trial. Regrettably, the percentage of pretrial detainees as a proportion of the prison population has been stable over the last two decades. In 2006, the Nigerian Prisons Service reported that the average period of pre-trial detention in Nigeria was nearly four years, with many held for longer. 

Be sure, everything is wrong with this situation. Precisely, Section 35 of the Constitution of the Federal Republic of Nigeria provides that a person may be detained for no longer than forty-eight (48) hours. One may be detained for a longer period, but such detention must be pursuant to an order of a court of competent jurisdiction.

Again, the issue of competent jurisdiction in relation to the procedure of Holding Charge will be left for another day but you can read more on it here. This procedure has unfortunately received judicial approval in LUFADEJU & ANOR. V. JOHNSON [2007] LPELR-1795 (SC). Also, Holding-charge procedure was further approved as it empowers magistrates to remand individuals in prison custody if they are satisfied that there is probable cause to do so, provided that the period of detention does not exceed 58 days.

See how it works: Under the 1999 Constitution, a Police officer can detain you for a maximum of 24 HOURS. After that, they must charge you to court. But if it is not possible to bring you to court within 24 HOURS because no court is close by or the following day is a weekend, they must bring you to court within a maximum of 48 HOURS. After this 24 or 48 hour limit, only a court can order that you be detained further. The Police cannot detain you further on their own.

Now if the Police cannot bring you to court within the 24 or 48 hour limit, you must be released on bail except for those cases where you are suspected of having committed an offence punishable with death (i.e. capital offences). The Police has no power to release you in these cases so they must charge you within the 24 or 48 hour time frame or bring you before a court to obtain an order for further detention.

Upon obtaining the order of court to detain a person further pending his trial, no law enforcement agency may detain such a person beyond three months. This is known as the Right to Pre-trial Release. It is provided in Section 35(4) of the Constitution.

In this case, the person detained has been charged to court and remanded in custody by order of the court. Where a person (who has been charged with an offence and remanded in custody or is not entitled to bail) is not tried within a period of two months from the date of his detention, he shall be released conditionally or unconditionally. Also, where a person (who has been charged with an offence and released on bail) is not tried with a period of three months from the date of his detention, he too shall be released conditionally or unconditionally. The conditions shall be reasonable and necessary only to ensure that he appears for trial at a later date.

What to Note While in Detention

• Understand that you are presumed innocent of crime until the contrary is proven at the court of law.
• Ask to contact your family, friends or a lawyer. You have that right.
• Do not confront Police officers violently or engage them in a heated argument.
• If you have not been told until now, ask them why you are being held and detained.
• If you are not arrested at the scene of a crime, ask to be shown the arrest warrant signed by magistrate or a senior police officer. Any arrest without a duly indorsed warrant is illegal.
• Try to memorize the officer’s name. If they are in mufti, ask the arresting persons to identify themselves.
• If you are assaulted and wounded by the security agent, take photographs of the wounds and request a first aid.
• You must not make a statement at the Police Station, but it is advisable to do so while being as direct as possible in order to be speedily released on bail.
• Say nothing, if you are scared or in doubt and speak with your lawyer first.
• When you make a statement, you have the right to have it read to you.
• Sign the statement when you are satisfied that it is accurate and reflects the facts fully.
• If the Police does not inform you of all these rights or they obtain your statement by force, threat, promises or favours, that statement cannot be used against you in court.

What Can You Do to Get out of Detention?

• You can apply for bail at the Police at any stage of the investigation.
• You can also apply for bail before a court with the jurisdiction to try the offence you are suspected to have committed.
• Now, since you are in detention, it will be prudent to engage a lawyer to represent you.
• Where a court refuses you bail, you can apply to another court with the same jurisdiction for bail.
• You can also go to a higher court, that is, on appeal against the decision of the lower court refusing you bail.

In cases of offences that can be compounded (i.e. offences which are not very serious in nature like simple assault, etc), you can try to reach out to the complainant or victim to find out whether he or she may agree not to pursue the matter any further. The Police will then be informed accordingly.

In the likely event that the police or security agency refuses to grant bail, refuses to charge you to court and sustains your detention in their custody indefinitely, your lawyer should immediately commence an action for the enforcement of your Fundamental (Human) Rights in court and seek order for your immediate release from detention and restraining order from further arrest; and pray the court for compensatory monetary damages for the assault, battery, unlawful detention, human rights abuse meted against you by the security agency; and also ask for apology.

Conclusion

Ignorance and lack of responsibility are at the root of the problems we face in our criminal justice system. The next is fear. It isn’t surprising then to find many victims of unlawful detention pay huge sums of money to secure their release, even after a long period.

The Nigerian Police says “Bail is Free” but we all know bail is anything but free. We have a right to move freely in Nigeria without fear or hindrance. If anyone even as much as attempts to restrict this precious liberty, we have a responsibility to resist such oppression. For even while you are prepared to cut corners and secure your freedom by any means possible (whether legal or not), remember that when you merely patch up a wound rather than clean it up first, it often festers and ultimately gets worse.

Unlawful detention will continue, even increase, unless we become more aware and responsible and courageous. This is so when it is not about us personally because, indeed, criminal justice is a public affair. We all have a stake in it.

Written by Nwabueze C. Nwabueze