PART 1
INTRODUCTION
The liberty of man is as old as the story of creation, it permeates the early, medieval and civilized periods of the existence of mankind. Freedom is an essential virtue of livelihood; it is the most germane of all virtues, as even the almighty right to life is rendered useless where liberty is violated. In the beginning, when God created Adam, He gave him dominion over all things and liberty to increase and fill the earth (Gen 1:1–31). In the same vein, ‘’There is absolutely no compulsion or coercion (in opting for a particular) Deen (or a way of life or a system of beliefs and actions).’’ (Quran, Chapter 2, v. 256)
International, regional, and national instruments and laws guarantee the rights to liberty of all persons, irrespective of gender, age, race, or creed. True freedom for man comes from his free will to live and die as nature calls. According to Khalil Gibran, ‘’life without liberty is like a body without spirit.’’ Ho Chi Minh was caught saying, Nothing is more precious than independence and liberty.’’ George Orwell was more pungent when he declared, ‘’If liberty means anything at all, it means the right to tell people what they do not want to hear.’’ However, as important as liberty is, it is not absolute. Little wonder Plato, in his ‘The Republic’ said, ‘’Excess of liberty, whether it lies in the state or individual, seems only to pass into excess of slavery.’’
Therefore, in the light of the general aphorism that excess of anything is inimical, the beautiful right to liberty is not absolute. The liberty of a citizen can be legally curtailed if he or she violates a law and is found guilty, or when an investigation and trial are ongoing. Therefore, it is not uncommon to see citizens end up in correctional centers to atone for their crimes. This view, albeit in parts, recognizes the fact that the right to liberty is not absolute, but while this right is not absolute, citizens should not be carelessly made to spend their lives in prison when, indeed, the legal process to ground it has not been duly exhausted by the concerned institutions. The need for prison decongestion cannot be overemphasized, and its urgency rings a bell in the correctional centers across Nigeria. However, it should be parenthetically noted that his enigma is not peculiar to Nigeria alone. Research through the decades has resolved that prison congestion is primarily caused by the incarceration of pre-trial detainees (PTDs) or suspects awaiting trial (ATM).
This discussion cannot be complete; less copious reference is made to international, regional, and national human rights instruments, as well as the Administration of Criminal Justice Act, 2015, and 1999 Constitution of the Federal Republic of Nigeria, as altered.
SAFEGAUARDS ON LIBERTY: BLAZING THE TRAIL
As noted earlier, the right to liberty is protected at the international, regional, and national level. For purposes of scholarship it is proposed to reproduce the relevant instruments.
Article 9 of the Universal Declaration of Human Rights (UDHR), 1948, provides that,
‘’No one shall be subjected to arbitrary arrest, detention or exile.
Article 14 of the United Nations Charter, also provides in the same spirit that, person(s) whether with disabilities or not must enjoy equal right to liberty and security, and same can only be taken in accordance with the law.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), 1966, provides thus:
- Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
- Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
- Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
- Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In the same vein, the Human Rights Committee (HRC), charged with the responsibility of implementing the provisions of the ICCPR, prohibits arbitrary arrest or detention in Article 9, accordingly;
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
At the Regional level, the African Union Charter and Economic Community of West African States Treaty also makes provisions for the protection of the right to liberty.
Article 6 of the Charter provides 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.’’
In like manner, Article 4 of the ECOWAS Treaty, which deals with the “Fundamental Principles” of the ECOWAS Treaty, includes as principles of ECOWAS: recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”
I find the mandate of the United Nations Working Group on Arbitrary Detention (WGAD), worthwhile.
Though not carrying the same normative weight as a treaty body or ultimately of a court, nevertheless the outputs of the special mandate holder, the United Nations Working Group on Arbitrary Detention (WGAD), are important and influential here, especially in terms of articulating key characteristics and parameters of ‘arbitrariness’.
Its adopted approach reflects the one articulated in the former United Nations Commission on Human Rights’ Resolution 1991/42, further clarified by its Resolution 1997/50, namely to take the international obligations articulated in the 1948 Universal Declaration of Human Rights (UDHR) and relevant international treaties ratified by States as its benchmark. With this approach, “the deprivation of liberty is not arbitrary if it results from a final decision taken by a domestic judicial process; it is (a) in accordance with domestic law; and (b) in accordance with other relevant international standards set forth in the Universal Declaration of Human Rights 1948 and the relevant international instruments accepted by the States concerned” (OHCHR, 2000, Section B).
The Universal Declaration of Human Rights is of special importance here to the extent that the provisions relevant to arrest and detention issues have acquired customary international law status, thereby imposing obligations on states even if they are not parties to relevant treaties, including the ICCPR. Regarding the customary nature of the prohibition of arbitrary deprivation of liberty, the view of the WGAD is that:
… widespread ratification of international treaty law on arbitrary deprivation of liberty, as well as the widespread translation of the prohibition into national laws, constitute a near universal State practice evidencing the customary nature of the arbitrary deprivation of liberty prohibition. Moreover, many United Nations resolutions confirm the opinio iuris supporting the customary nature of these rules. (General Assembly, Human Rights Council report A/HRC/22/44, para. 43)
In Nigeria, Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, as altered, makes copious provisions for the right to liberty. For purposes of clarity, it is expedient to replicate the provisions relevant to this discuss in extension;
35(1) 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) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;
(c) 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;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or;
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
(4) 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, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
5) 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 kilometers, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
(7) Nothing in this section shall be construed;
(a) in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence.
The import and purport of the provision is visible to the blind, audible to the deaf, and can even be felt by the numb. The provision, like international laws simply guarantees the right to liberty of persons, save for the exception mention in paragraphs a-f of sub section 1. Germane to our discuss is the provision of sub section 2, of section 35, which in one breath provides the time for bringing a suspect before a Court, and the period within which trial ought to commence, save for release with or without conditions. In other words, for purposes of deprivation of liberty in accordance with section 35(1)(c), the person (s) ought to be brought formally before a Court within a reasonable time, and trial ought to commence. But the law makers were so futuristic like Nostradamus, that they foresaw situations were the person arrested may not be instantly tried due to one reason or the other. In their wisdom, they provided that, if the person is not tried within 2 months from the date of his arrest or detention, in the case of a person who is; (a) in custody; or (b) not entitled to bail, he shall be entitled to be released conditionally, or unconditionally.
Also, if the person is not tried within 3 months form the date of his arrest or detention, in the case of a person who has been released on bail, (and/or permit me to add – who is not in custody), he shall be released conditionally or unconditionally. It should be noted that the rationale for the release is to ensure his appearance for trial at a later date, therefore, in circumstances were conditions applies, same should not be onerous and impossible.
The implication of the above explanation is that, a person can be arrested as a suspect, taken to court within a reasonable time, and may still not be tried within 2 – 3 months depending on the circumstances.
POSER: what happens within the period a suspect is not tried, and why?. Lets take a drive to the kernel of this conundrum.
Now, within the period a suspect is not tried after being taken to Court, he may be granted bail if the offence is bailable. There are laid down procedures and practices that regulates this stage of our adversarial law, but due to ill practices by law enforcement agencies, the result is always unlawful/arbitrary deprivation of liberty. What happens within that period is Remand proceedings, also reluctantly known as Holding Charge. It is its improper practices that majorly accounts for prison congestion. You may be eager to ask why!. It is always so because;
- There may be no Court of competent jurisdiction within the place of arrest; or
- There may be no evidence to prosecute the matter.
So, when this is the case, should the law enforcement agency allow the suspect go back to the society?, your answer may be good as mine, definitely – NO. Therefore, the need to legally keep the suspect becomes expedient. This is were prison congestion occur as a result of the improper utilization of this very beautiful legal mechanism. Little wonder, I once noted thus; ‘’Holding Charge; A Necessary Evil Buried In Our Legal System, Albeit Labelled An Anathema.
(To be continued)
This Article Was Written By: Mbang Confidence, Esq
Source: Theloyalnigerialawyer
