WHEN POLICE DETAINS A SUSPECT WITHOUT BAIL OR ARRAIGNMENT FOR MORE THAN TWO DAYS, WHAT ALTERNATIVES STEPS CAN BE TAKEN TO ENFORCE HIS FUNDAMENTAL RIGHTS TO LIBERTY AND FREEDOM OF MOVEMENT

INTRODUCTION 

An Anambra State High Court presided by Justice Dilibe Amaechina in a judgement delivered recently in Chinenye Arinze v Abdu Osu & ors (2019) described “the current state of police stations as the centre of worst human right abuse”.  

The human right abuses which have become a reoccurring decimal among the security agencies include illegal arrests and detention, prolong detention without trial, refusal to grant bail, the list is endless. Since these types of infringements against citizen rights have become a daily occurrence in our police stations and other detention centres the questions, how could citizens who fall victim of Police detention without bail or trial enforce their fundamental human rights to liberty and freedom? 

First lets clarify some salient points. 

WHAT IS DETENTION?

It is the act of holding a person in custody, conferment or compulsory delay which prevents another person from enjoying his rights of movement and liberty.  Sec. 35 (1) (c) of 1999 constitution allows security agencies to temporarily deprive someone of his right to personal liberty and freedom of movement by way of detention in custody, pending investigation or arrangement of the accused in court. There are other statutory enactments that empowered the Police to detain on an individual like Sec. 23 of the Police Act, Sec.17 of the criminal procedure Act and so on. 

However, every piece of legislation that gave security agencies the powers to arrest and detain also provided the extent to which such powers could be exercised. There are limits to the extent a person may be detained after which he is entitled to bail. 

WHAT IS BAIL? 

It is the release from custody by police or the court, of a person held or arrested by security agencies. Bail is secured in the form of a bond required by the police or the court as a guarantee for the release of an accused person who must appear at a future time to face trial. An accused can obtain bail for himself or through another person, who undertakes to produce the defendant in court for trial or to the police, for future investigations. Police can grant bail to a person before the conclusion of investigation or arrangement, while a court can also grant bail to an accused upon arrangement in court

WHAT IS ARRANGEMENT?

This is the commencement of criminal prosecution in court when the accused pleads guilty or not guilty to the charges that were preferred against him. The charges must be read to the accused in the language he/she understands, and be allowed to take a plea, after which he shall be notified about his rights of fair hearing, legal representation of his choice and to bail. The accused can then ask for bail by himself or through his counsel. If a citizen makes a bail application, at the police station or at the court, the authorities concerned would consider the following points before granting or refusing bail. There are: 

Nature of the charge/allegation. 

The strength of the evidence which supports the charges as alleged. 

Previous criminal record or past convictions, if any. 

Whether the alleged offence is a minor offence, misdemeanours or capital offence. 

Probability that the accused would surrender himself for trial and not jump bail. 

If the accused will interfere in the investigation or trial, or influence the witnesses to the alleged crime. 

Despite these considerations, the real essence of bail is to ensure that the accused comes to court to face trial. According to Niki Tobi (JSC) in Adamu Suleman V C.O.P of Plateau State,33 NSCQR Part 2,735 at pp 758-759, “The main function of bail is to ensure the presence of the accused at the trial. That is the cynosure of all the criteria. It is the centrepiece. And so this criterion is regarded as most important”. 

Once this is guaranteed, then the accused is entitled to bail. Bail does not relieve an accused from the burden of the allegation. As stated in Sec.35(4), Sub-sec. 1(c) of the 1999 Constitution, every detainee is entitled to bail or be arraigned in court to face charges within “a reasonable time”. Sec 35(5) defined a reasonable time to mean: (a) a period of 24hours where there is a court within 40 kilometres radius to the place of detention. (b) a period of 48hours where a court does not exist near the detention facility or where a person is arranged before a court and the court requires that the accused be kept in detention for longer period as may be reasonably considered by the court. 

Even Sec.4(1) (a) & (b), provided that a person who is alleged to have committed a serious offence that is ordinarily not entitled to bail, shall be brought before a court within 2 months or be released from custody. It is only the court that has the discretion to order that such accused person be retained in police custody or be remanded in prison custody while waiting for the commencement of trial. Therefore, it is a clear breach of fundamental human rights as enshrined in the highest law of the land for a person to be kept in the custody of any law enforcement agency. And the continued detention of the victim could be said to be illegal to the extent that it contravened the constitution of Nigeria. 

WHAT THEN CONSTITUTES A BREACH OF HUMAN RIGHTS? 

The basic ingredient to determine whether a fundamental right has been breached and the platform upon which the victim could stand before he can commence the enforcement of his rights. 

First, it is important that the right which is alleged to have been or which is being or likely to be infringed falls squarely within the fundamental right provisions in Chapter 4 of the 1999 Constitution, as amended).  Secondly, the victim acting through his counsel, relations, legal Aid or CSO must raise a valid reasonable cause of action as should be contained in the reliefs sought.  Thirdly, the alleged victim or his attorney must show that he has locus standi or sufficient interest in the issue complained of. This means that he must show that he had suffered, currently suffering or about to suffer some damages as a result of prolonged detention without trial, in order to invoke the jurisdiction of the court.

ARE THERE CONSTITUTIONAL PROVISION THAT EMPOWERS VICTIMS OF DETENTION WITHOUT TRIAL TO SEEK REDRESS? 

Yes…Sec.46 (1) & (2) aptly provided that any person who alleges an infringement or likelihood of breach of his rights may apply to a high court in that state, which has original jurisdiction to hear and determine such application and issue order or writ as it considers appropriate, for the purposes of enforcing such rights or directing the institutions of the state towards defending the rights of the oppressed.

THEREFORE, THE BIG QUESTION IS, WHEN A PERSON IS DETAINED FOR MORE THAN THE CONSTITUTIONALLY RECOMMENDED PERIOD WITHOUT BAIL OR ARRAIGNMENT IN COURT, WHAT STEPS CAN BE TAKEN TO ENFORCE THE CITIZEN FUNDAMENTAL RIGHTS? 

In Sec.46(3) of the 1999 Constitution(As Amended) the Chief Justice of Nigeria CJN, is empowered to make rules concerning the practice and procedure which High courts in all the states of the federation would follow for the protection and enforcement of citizens fundamental rights.

Pursuant to this provision, the CJN promulgated the “fundamental rights enforcement procedure Rules (2010)”, that contains the Practice Direction and Rules of Procedure which any Nigerian must follow to defend his rights before the courts. Hence, a person seeking to enforce his fundamental rights under the constitution must act through a legal practitioner, who would file an application to that effect in accordance with Order 1 Rule 2(2) of the Enforcement Procedure Rule 2009.

The application must state explicitly, the particular rights that were breached by the defendant and the reliefs sought therefrom. The action may be brought against the government or its agencies like the Police, Department of State Security Service(SSS), National Drug Law Enforcement Agency(NDLEA). The reliefs may include an award of damages for the injury or harm caused by the infringement. 

Order 4, Rules 1,2,3,&4 laid down the procedure for enforcing the release of a person who is unjustly detained by the police and ways to ensure that the detainee is immediately brought to court, through what is known as writ of Habeas Corpus. 

WHAT IF POLICE REFUSED TO PAY DAMAGES OR INSIST ON NOT BRINGING THE ACCUSED TO COURT, DESPITE COURT ORDER? 

It is not the end of the road if the Police refuse to bring the detainee to a court or release him bail as ordered by the court after considering the fundamental right application that situation amounts to gross disobedience to lawful orders, which attracts serious punishment by the court. The victim’s lawyer can start contempt proceedings against the police officer(s). This can lead to the issuance of a bench warrant against the erring police officer(s). If pursued to its logical conclusion can lead to interdiction, discipline or dismissal of such police officer by the police service commission. 

If the defendants in a fundamental right application fail to pay damages as awarded to the applicant by a court, then the victim’s lawyer may return to court, to begin a Garnishee Proceedings against the police authorities. Garnishee is a type of court proceedings where a judgment creditor asks the court to cease the properties or freeze the bank account of the person or institution who is a judgment debtor for the purpose of using it to pay the debt. 

By obtaining a Garnishee Order from the court, a victim can compel the police authorities to pay the damages awarded by a court. The police high command may afterwards, invoke their internal administrative or disciplinary measures to either punish the police officer whose misconduct occasioned the debt or deduct same from his salaries and retirement benefits.

In conclusion, a victim of prolonged detention or relatives to such victims should seek the services of a legal practitioner. Where the offence alleged is a minor offence, and you have been detained for over 48hours, then your lawyer should demand your unconditional release or bail. The same applies to serious offences that are not entitled to immediate bail, in which the accused has been detained for two months without arraignment in court. 

Where the police or security agency refuses to grant bail but decided to charge you to court, your lawyer can enter an appearance in court and make an oral or written application for bail. Where the police did not grant bail and fails to charge you to court, but continue to detain you in custody indefinitely, ask your lawyer to immediately begin a fundamental right enforcement proceedings, and seek an order for your immediate release from custody, and pray the court for monetary compensation as damages for the assault, intimidation, unlawful detention, and human rights abuse meted against you by the security agency.

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