An arrest does not take away a person’s fundamental rights. Nigerian law provides important safeguards for persons who are arrested or detained by law enforcement agencies. Understanding these rights can help individuals respond appropriately to an arrest and identify situations where legal intervention may be necessary.
1. Right to Know the Reason for Your Arrest
Under Nigerian law, a person who is arrested or detained is entitled to know the basis for the arrest. Section 35(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that any person arrested or detained shall be informed in writing, within twenty-four hours and in a language that he understands, of the facts and grounds for his arrest or detention. This constitutional safeguard protects individuals against arbitrary deprivation of their liberty. Nigerian courts have consistently treated unlawful arrest and detention as violations of the constitutional right to personal liberty. In Anogwie & Ors v. Odom & Ors (2016), the Court of Appeal affirmed the consequences of an arrest and detention found to be without lawful justification and recognised the entitlement to compensation under Section 35(6) of the Constitution.
2. Right to Remain Silent and Consult a Lawyer
Section 35(2) of the Constitution guarantees an arrested or detained person the right to remain silent or avoid answering questions until after consultation with a legal practitioner or any other person of his choice. This constitutional right is complemented by safeguards under the Administration of Criminal Justice Act 2015 in matters to which the Act applies, while corresponding Administration of Criminal Justice Laws operate in various states. In Federal Republic of Nigeria v. Afe (2022), the Court of Appeal emphasised the constitutional protection under Section 35(2), holding in the circumstances of that case that denying the respondent access to his legal practitioner before obtaining his extra-judicial statements breached his constitutional right and affected the voluntariness of those statements.
3. Right to Be Brought Before a Court Within a Reasonable Time
Section 35(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires a person arrested or detained upon reasonable suspicion of having committed a criminal offence to be brought before a court of law within a reasonable time. Section 35(5) further explains that “reasonable time” generally means one day where there is a court of competent jurisdiction within a radius of forty kilometres, and in any other case, two days or such longer period as the court may consider reasonable in the circumstances. In Awal v. NDLEA (2020), the Court of Appeal held that the applicant’s detention for fifty-one days before arraignment violated his constitutional right to personal liberty and awarded damages for the breach. Similarly, in NDLEA & Ors v. Bwala (2022), the Court of Appeal reiterated that although law-enforcement agencies may arrest and detain a person upon reasonable suspicion of having committed an offence, that power is subject to the limitations imposed by sections 35(4) and 35(5) of the Constitution.
4. Right to Humane Treatment and Freedom from Torture
Section 34(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees every person the right to dignity and prohibits torture, inhuman or degrading treatment. This protection extends to persons under arrest or detention. Section 1(a) of the Anti-Torture Act 2017 requires that the rights of suspects, detainees and prisoners be respected and prohibits subjecting persons under investigation or in custody to physical harm, force, violence, threats or intimidation. Section 2 of the Act further defines acts constituting physical and mental or psychological torture, while section 3 makes clear that no exceptional circumstance may be invoked to justify torture. Furthermore, under section 4, a confession, admission or statement obtained as a result of torture cannot generally be used as evidence in proceedings. In Dilly v. Inspector-General of Police & Ors (2016), the Court of Appeal considered allegations involving the beating and torture of a detainee and deprivation of medical attention while in police custody within the context of the constitutional protections of fundamental rights. Accordingly, arrest or detention does not authorise law-enforcement officers to torture, assault or subject a suspect to inhuman or degrading treatment.
5. Right to Bail
The law recognises circumstances in which a person arrested or accused of an offence may be released on bail pending investigation or trial. At the police or administrative stage, Nigerian law recognises the release on bail of suspects in appropriate cases, subject to the nature of the alleged offence and the applicable criminal procedure legislation. Section 30 of the Administration of Criminal Justice Act 2015, for example, provides for the release on bail of certain suspects arrested without warrant where it is impracticable to bring them before a court within the prescribed period.. Where a matter has reached court, the grant of bail depends on the nature of the offence and the circumstances of the case, and the court exercises its discretion judicially and judiciously. In Bamaiyi v. State (2001) and Dokubo-Asari v. Federal Republic of Nigeria (2007), the Supreme Court identified relevant considerations in determining bail applications, including the nature of the charge, the strength of the evidence, the severity of the possible punishment, the likelihood that the accused will appear for trial, and the possibility of interference with witnesses or the course of justice. Bail should therefore not be understood as an automatic entitlement in every case; its availability and conditions depend on the applicable law and the circumstances surrounding the alleged offence.
6. Right to Communicate With Family or Other Persons
A person who has been arrested should not simply be held incommunicado. In relation to police custody, section 35(3) of the Nigeria Police Act 2020 requires the authority having custody of a suspect to notify the suspect’s next-of-kin or relative of the arrest at no cost to the suspect.. Furthermore, section 43(2) of the Nigeria Police Act 2020 requires that an arrested suspect be given reasonable facilities for obtaining legal advice and access to communication for the purpose of taking steps to furnish bail and making arrangements for his defence or release. These safeguards help prevent persons in custody from being held in isolation without their relatives or legal representatives knowing about their arrest.
7. What to Do If Your Rights Are Violated
Where a person believes that his or her rights have been violated through unlawful arrest, detention, torture or other unlawful conduct by law-enforcement officers, legal remedies may be available through the courts. Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) permits a person who alleges that any of the fundamental rights guaranteed under Chapter IV has been, is being, or is likely to be contravened to apply to a High Court for redress. In cases of unlawful arrest or detention, section 35(6) of the Constitution specifically entitles the affected person to compensation and public apology from the appropriate authority or person. In Anogwie & Ors v. Odom & Ors (2016), the Court of Appeal affirmed that where a court finds that a person’s fundamental right has been violated through unlawful arrest and detention, compensation should follow in accordance with section 35(6) of the Constitution. A person who believes that his or her rights have been violated should therefore consider obtaining legal advice promptly so that the circumstances can be properly assessed and, where appropriate, proceedings commenced to protect or enforce those rights.
Conclusion
Understanding your rights is an important safeguard when dealing with an arrest or detention. Although law-enforcement agencies have lawful powers to investigate crime and arrest persons in appropriate circumstances, those powers must be exercised within the limits imposed by the Constitution and other applicable laws. An arrested person retains fundamental rights, including the right to know the reason for the arrest, the right to remain silent and consult a lawyer, the right to be brought before a court within a reasonable time, protection from torture or degrading treatment, and other safeguards provided by law. Where there are concerns about the legality of an arrest, detention or treatment in custody, obtaining legal advice at an early stage can help protect the rights and interests of the person affected.
Legal Disclaimer
This article is provided by Godsent Law House for general legal information and public education only. It does not constitute legal advice and should not be relied upon as a substitute for advice based on the particular facts and circumstances of an individual case. Laws and legal procedures may also change over time. If you have been arrested, detained or believe that your fundamental rights have been violated, you should seek appropriate legal advice concerning your particular circumstances.
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