The Security Agencies in Nigeria,  Have No Powers, Constitutionally or otherwise to Detain a Person while Investigation is on-going

It has been the long practice of the security agencies in Nigeria to detain a person indeterminately in the guise of an endless investigation. They are even enamoured by the courts who unwittingly aid them by granting ex parte applications, not brought pursuant to any known provisions of any law in Nigeria, to detain a person while the investigation is on-going.

It is given this development, that I have reviewed in this piece, the relevant constitutional and statutory provisions, to show clearly, that the security agencies have no powers to detain a person while the investigation against such a person is on-going.

Section 15 (2) of the Administration of Criminal Justice Act 2015, provides that the taking of the statement of the suspect which is to be done immediately, shall (mandatory terms), be concluded within 48 hours. This accords with section 35 (4) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, which requires that a person arrested, be released on bail if not tried within a maximum period of two days(48 hours) of his arrest and detention.

The Administration of Criminal Justice Act, 2015, in Section 30 thereof, on the release on bail of a suspect arrested without a warrant, provides thus:

(1) Where a suspect has been taken into Police custody without a warrant for an offence, other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection (2) of this section, and if it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within twenty-four hours after the arrest.
(2) The officer in charge of a police station shall release the sus¬pect on bail on his entering into a recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance.

It is abundantly clear that the new provisions of the Administration of Criminal Justice Act, 2015, do not in any way countenance the keeping of a suspect in custody beyond 24 hours, without charging him/her to court, even on the flimsy ground that enquiry into the case has not been completed.

Section 31 of the Administration of Criminal Justice Act, 2015, on Power to release on bail before the charge is accepted, clearly provides thus:

Where a suspect is taken into custody, and it appears to the officer that the inquiry into the case cannot be completed forthwith, he may discharge the suspect on his entering into a recognizance, with or without sureties for a reasonable amount, to appear at the police station and at such times as are named in the recognizance, unless he previously receives notice in writing from the police officer in charge of that police station that his atten¬dance is not required”.

The above statutory provisions are in line with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as altered, which provides in Section 35 (1) 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 –
(a) 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.”

It is provided in subsection (4) of section 35 of the said Constitution, as to when a person arrested or detained is to be brought before a court thus:

Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time …

As to what the expression ‘a reasonable time’ entails, subsection (5) defines it thus:

In subsection (4) of this section, the expression “a reasonable time” means –
(a) 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; …”

Similarly, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, provides in Articles 6 thus;

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

Thus, the Constitution and the African Charter on Human and Peoples’ Rights guarantee the right to personal liberty to every individual. For an individual to be deprived of this right, it must be in accordance with the six instances cited in Section 35 (1) (a) – (f) and the deprivation must be by procedure permitted by law.

Therefore any arrest and detention of a person that is not in accordance with the constitutional provisions and is also not permitted by any statutory provision is unlawful, unconstitutional and constitutes a gross abuse of the fundamental rights of the said person.See Shugaba v. Minister for Internal Affairs (1981) 3 NCLR 427 and Mitee v. Attorney General (2003) 2 CHR 463.
Agbakoba v. The Director, SSS (1994) 6 NWLR (Pt 351) 692.

The Courts in a plethora of cases have held that the personal liberty of person (let alone a suspect), is sacrosanct and not to be lightly toyed with. This was the decision of the court in Ohize v. COP (2014) LPELR-23012(CA), pp 30 – 31 Paras G – A, per Akomolafe Wilson, JCA, where his lordship stated thus:

“It is unfortunate that the Appellant has been incarcerated since 8th September, 2011 when the law presumes his innocence until proved otherwise. The constitutional right to personal liberty of a person is sacrosanct, even for an accused person.”

The Supreme Court in Fawehinmi v I.G.P (2002) 7 NWLR (pt 767) 606, per Uwaifo, JSC, condemned such conduct as first arresting a person before the police will proceed to investigate the case. In the words of his Lordship:

I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect before the Police look for evidence implicating him.”

In interpreting the provisions of Section 35 of the Constitution, on the personal liberty of a Nigerian Citizen and the consequence for its violation thereof, the Court of Appeal in the case of Aqua v. Achibong & Ors (2012) LPELR – 9293 CA, per Garba, JCA, at (pp 16 – 18), (Paras C – F), held thus:

As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. …. The essence of the above provisions is that persons, officers or agents of the State who in the ordinary course of the discharge of their official duties or functions for instance the police and other security agencies in the Country, who may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of subsection (1) – (5) above. Where the ordinary discharge of their duties or functions warrants the arrest or/and detention of a citizen, they are bound to abide by and act in accordance, strictly, with the provisions of the subsections otherwise, the person whose liberty was curtailed or deprived by them, shall be entitled to compensation and public apology from them since the curtailment or deprivation would in the circumstances, be unlawful.” Per GARBA, J.C.A. (Pp. 16-18, Paras. C-F). (Underlined for emphasis).

In the case of Amos Akila & Ors. V. Director General State Security Services & Ors (2013) LPELR-20274(CA) Jummai Hannatu Sankey JCA, expressed her opinion on the supremacy of the Constitution as regards section 35 and 36 of the Constitution as follows:

The provision of Sections 35 and 36 in the Constitution are aimed primarily at protecting individuals from unlawful deprivation of their freedom through abuse of power by law enforcement and security agencies. And as the grundnorm and the plum line/yardstick by which all acts relating to such situations must be measured, the Constitution must be obeyed to the letter. The civil rights contained in the Constitution against unjust arrest and detention of a citizen which is protected by the enforcement of the fundamental right provisions should not be restricted in any way by technicalities where none is justified by the Constitution.”

The purport of the provisions of section 35 of the Constitution, is that, before an accused person is arrested, the security agency ought to have concluded its investigation and therefore, should not keep the accused person beyond 24 hours without charging him to court, or maximum of 48 hours, where there is no court within 48 kilometres radius. The bringing of the accused person to court as contemplated by the provisions of Section 35, in relation to a derogation from the right of an accused person’s freedom of movement, is for the purposes of charging the accused person to court, and not to obtain an order of court to detain, while investigation is on-going. In the Australian case of Williams v The Queen (1986) 161 CLR 278 the High Court re-affirmed the Australian common law position that:

where it is practicable for the police to bring an arrested person before a justice, this must be done without unreasonable delay. Police are not entitled to delay this process for the purpose of questioning the arrested person or for conducting any other form of investigation into the suspected criminal activity of the arrested person.” See further Akila & Ors. V. Director General State Security Services & Ors (SUPRA)

Section 35(1a-f) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, clearly, provides conditions upon which the liberty of a person can be curtailed.See further, the case of UKATA & ORS v. AKPANOWO & ORS (2016) LPELR-41249(CA)

“It is trite that no person can be unlawfully arrested and detained when he has not committed any offence. A person who has committed a criminal offence or reasonably suspected to have done so may be arrested for the purpose of being arraigned in a Court of Law. Per NWOSU-IHEME, J.C.A. (Pp. 7-8, Paras. E-C

In the case of NWEKE & ORS V. THE IG OF POLICE & ORS (2013) LPELR-21173(CA), it was held as follows:

Fundamental Rights are rights that are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in Court the Court within reasonable limits must do all that is necessary to cause a flourishing of these rights.” Per ADAH, J.C.A. (P. 17, paras. E-G)

In the English case of Jones v Swansea City Council (1990) 1 WLR 54, the English Court of Appeal Coram Nourse LJ, Slade LJ, held that in a legal system based on the rule of law, executive or administrative power must be exercised only for the public good and not for ulterior and improper purposes.

This principle was invoked in Fawehinmi v Inspector General of Police [2002] 7 NWLR Part 767 page 606; (2002) LPELR 1258 (SC) and Luna v Commissioner of Police (2010) LPELR wherein both the Supreme Court and the Court of Appeal recognized the right of the Superior Courts of Record to intervene in exceptional circumstances to prevent the Police from acting mala fide, that is where the action of the Police cannot be held, strictu sensu, to be in the public interest.

It is given the preceding, that I urge the judiciary to stand firm, as it remains the last hope of the common man in these trying periods in this history of our dear country Nigeria.

Nkem Okoro Esq.
Constitutional Lawyer & Human Rights activist
Abuja, Nigeria.

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