YOUR RIGHTS DURING POLICE ARREST. (Your Right To Know)
YOUR RIGHTS DURING POLICE ARREST. (Your Right To Know)
By Kingsley Ughe
Unlawful arrest is one of the major problems of our criminal process and it is one of the reasons why police stations and prisons are overcrowded. Arrests are sometimes made on allegation that are purely civil in nature or on a frivolous ground. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as a ground to arrest people indiscriminately. Mercifully, The ACJ Act has deleted this provision.
There have been several instances where the police arrested relations or friends and close associate of a crime suspect to compel the suspect to give himself up even though that person is not linked in any way to the crime the suspect is being accused of. Section 7 of the ACJ Act specifically prohibits arrest in lieu.
Apart from the police, other agencies vested with power of arrest e.g. the Economic and Financial Crimes Commission (EFCC), National Drug Law Enforcement Agency (NDLEA), National Agency for Food and Drug Administration and Control (NAFDAC), etc had abused this power to arrest and detain relatives and close associates of criminal suspect in lieu of the suspects where they had challenges in apprehending the suspects. Section 7 should curtail this kind of abuses. Note that such arrest is patently illegal and unconstitutionally. Your first reaction is to refuse to make any statement or corporate with the efforts to take a statement from you in the event of any unlawful arrest.
NOTIFICATION OF CAUSE OF ARREST.
Sections 5 of the CPA and 38 of the CPC provide that a police officer or a person making an arrest is to inform the arrested person of the reason for the arrest, except where he is being arrested in course of the commission of the offence or is pursued immediately after the commission of the offence or escaped from lawful custody. It has been argued that this provision falls short of the contemporary requirement3. The ACJ Act 2015 retains this provision in section 6.
However there is a proviso which mandates the police officer or any other person to inform the suspect of his right to: (a) remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice; (b) consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest; (c) free legal representation by the Legal Aid Council of Nigeria where applicable.
This provision re-affirms section 35(2) of the Constitution of the Federal Republic of Nigeria, which provides that any person who is arrested or detained shall have the right to remain silent or answering any question until after consultation with a legal practitioner or any other person of his choice.
It is necessary to state here that the proviso in section 6 (2) is quite laudable since the suspect will have the benefit of not only being informed of the offence he has committed but also an additional advantage of counsel assisting in securing his immediate release on bail and ensuring that trial is expeditious. This would in turn prevent prolonged detention of suspects and hopefully bring about decongestion of the prisons.
Humane treatment of an arrested Person and prohibition of arrest on civil cases
The ACJ Act 2015 reiterated the human right constitutional provision of the right to dignity of person. Section 8(1) of the Act provides that: a suspect shall- (a) be accorded humane treatment, having regard to his right to the dignity of his person. (b) Not be subjected to any form of torture, cruel, inhuman or degrading treatment.
Section 8 (2) deals with the longstanding problem whereby people employ the machinery of criminal justice wrongly for civil matters. It is not uncommon for people to maliciously instigate the arrest and detention of others for a breach of contract, failure to pay debt owed or for other civil wrongs. This provision that “a suspect shall not be arrested merely on a civil wrong or breach of contract.” is a laudable one. It is believed that it would check arbitrary arrest of persons and torture by law enforcement and security agencies.
ELECTRONIC RECORDING OF CONFESSIONAL STATEMENT.
Section 15(4) of the Act provides that where a person arrested with or without a warrant of arrest volunteers to make a confessional statement, the police officer shall record the statement in writing or may record the making of the confessional statement electronically on a retrievable video compact disc or such other audio visual means.
Subsection (5) of section 15 provides that notwithstanding the provision of subsection (4), an oral confession of arrested suspect shall be admissible in evidence. This provision of the ACJ Act conforms to the position of the law as contained in the Evidence Act.
FACTS ABOUT BAIL.
Bail is the release of an accused person who has been in a lawful custody. The 1999 constitution of the Federal Republic of Nigeria as amended stipulates that any person who is detained by the police for the purposes of bringing him before a court in execution of a court order or upon reasonable suspicion of his having committed a criminal offence other than an offence punishable with death, or to prevent him from committing a criminal offence, shall be brought before such court of law within:
- A period of one day where the court having jurisdiction over his case is within forty two kilometres; and
- A period of two days where the court is within a distance beyond forty kilometres.
If he is not brought to a court of competent jurisdiction within this period, section 35 (4) of the constitution provides that he should be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
However, it is necessary to state that these conditions do not apply strictly to an accused person who is suspected to have committed an offence punishable with death. This constitutional provision can be found in other laws likes the Criminal Procedure Act in sections 17, 18 and 19 which provides as follows: When any person has been taken into custody without a warrant for an offence other than an offence punishable by death any officer in charge of the police station, may, in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of peace having jurisdiction with respect to the offence charged within twenty four hours after he was so taken into custody, inquire into the case and unless the offence appears to such officer to be of serious nature may discharge the person upon his entering of recognizance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognizance.
A Recognizance is a promise or undertaking made by an accused person to appear in the court of law or police station or any other place as he may be required by his undertaking. The law stipulates that on entering into such recognizance, even without a surety, the accused person is to be granted bail. It is not mandatory under the law that he should produce a surety once his identity, address of place of abode and work are disclosed and they are confirmed to be true.
Please note: Bail is not to be at any cost! It is to be granted FREE of charge. It is pertinent to note that the clause which says “upon entering into recognizance for a reasonable amount” does not contemplate that any deposit of money should be made to the police for bail. The amount so entered in the recognizance is a guarantee recoverable by the court from the accused or his surety, on default by the accused person.
Note however, that an individual who is arrested by the police is only but a suspect and is presumed innocent until the contrary is proven. Nigerians are hereby advised that it is unnecessary to shiver or beg law enforcement agents with money and other valuables to gain freedom in the event of an arrest. You are entitled to bail where the offence so committed is not punishable by death.
We have erroneously made our lives so vulnerable to all sorts such that police men capitalise on our ignorance to unleash terror on us. The state powers which they exercise are meant to protect the citizens not the other way round and you pay tax in return for this.
My advice is that once a policeman or any other law enforcement agent harasses you or coerces anyone in your presence take down his or her name. Their names are tagged on their uniforms. Write a petition against him or involve the law to enforce your fundamental rights. Capture the scene with a video recorder, attach the video footage to the petition and proceed. Go on the social media networks, upload the video footage and watch it go viral. That way, you will have made indelible expression that will incriminate such officers and they will be made to face the wrath of the law.
Be aware of your rights!