The Unconstitutionality Of Arrest in Lieu

Substitutional arrest simply implies a situation, or circumstance whereby ” law enforcement agency(ies) failed in their attempt(s) to secure an arrest of a suspect(s), and consequently arrest his/her relative in lieu of him (suspect).

“Suppose Mr A is accused of the offence of theft, subsequently, he eloped with the intention of evading arrest. Consequently, Mr C who happened to be his relative is arrested in substitution of him (suspect).

However, the most frequently asked question is why do law enforcement agency(ies) often engage in this act, although there are no consensus as to why they engage in this act, but research have shown that they carry out this act on two basis. Firstly, to force the suspect out of his hiding, and secondly, because they lack professionalism.

The legal issue is whether or not such arrest is constitutional or otherwise, and the basic answer is, it is unconstitutional.

Pursuant to various relevant authorities, such arrest is unconstitutional, inconsistent, and cannot stand in the eyes of the law. As well, It may also amount to deprivation of fundamental human rights of the victim(s).

Although, it is indisputable that some positive outcome(s) have been recorded as regards to substitutional arrest, where a suspect report himself to the police in order to secure the release of his relative(s) in detention.

However, it is not laudable enough to deprive an innocent person of his right to personal liberty as enriched in section 35(1)of the 1999 Constitution as amended. Except some exceptions, of which substitutional arrest is not among.

Furthermore, pursuant to section 7 of the Administration of Criminal Justice Act (ACJA) 2015, which has jurisdiction in Abuja (F. C.T) and all Federal High Courts, provides that “A person shall not be arrested in place of a suspect”. It is pertinent to know that, there is no exception(s) to this section, and violation of this section by law enforcement(s) agency(ies) may amount to deprivation of the victim’s rights, and also violation of the expression of this provision.

However,  in other component states, where (ACJA) 2015 lacks Jurisdiction, the law can be presumed to be silent on the issue, because both the Criminal Code and Penal Code do not have specific provision voiding and nullifying substitutional arrest.

Furtherance, although the codes(C.C & P.C) are silent on this legal issue, however, the Supreme Court whose judgment has jurisdiction, and binding forces all over the territorial jurisdiction of the country, has passed several judgments nullifying, and voiding substitutional arrest in Nigeria.

In the case of ACB v Okonkwo (1997) 1 NWLR pt (480) 194 the Apex Court(Supreme Court) held that;  “There is no law that says that the sin of the son be visited on the mother simply because of that relationship.”  per Tobi, JCA (as he then was) said metaphorically.

Also in another case of Akpan v State (2008) 14 NWLR ( pt 1106)72 the Supreme Court also held that;  “There is no law that where the offender is unable to be arrested, his relative should be arrested”.

In addendum, in another case between Sunday odogwu v The state (2013) LPELR 220391, the Apex Court also reinstated that;  “It is beyond doubt that an accused person cannot be held responsible for an act he did not commit.”

Lastly, it is my conviction that, by virtue of these relevant authorities, substitutional arrest is illegal in nature, inconsistent with the existing laws, and unconstitutional by act by any of the law enforcement agency(ies) within the territorial jurisdiction of this country.


Badmus Uthman Olayemi, based from Oyo State Nigeria, a native of Ibadan. He is a first year law student
in Bayero University Kano, Kano State, Nigeria.


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