Right to Personal Liberty
After life, the most precious right is the citizen's right to move about freely, unencumbered, unrestricted, as he wills, within the bounds of law.
Personal liberties are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation. Though the term differs amongst various countries, some examples of personal liberties include the freedom from torture and death, the right to liberty and security, freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, freedom of speech, the right to privacy, amongst a host of others.
John Stuart Mill sought to define the...."nature and limits of the power which can be legitimately exercised by society over the individual," and as such, he describes an inherent and continuous antagonism between liberty and authority and thus, the prevailing question becomes "how to make the fitting adjustment between individual independence and social control".
According to Lord Denning MR in his book "FREEDOM UNDER THE LAW" (1949), he defined personal liberty as the freedom of every law abiding citizen to think what he will, say what he will on lawful occasions without any let or hindrance from any other person.
However, the narrower interpretation of personal liberty was given by A.V. Dicey in his book; "CONSTITUTIONAL LAW". he defined personal liberty to mean the right not to be subjected to imprisonment, arrest and any other physical cohesion in any manner that does not admit of legal justification.
Statutory Framework
- Section 35 of the C.F.R.N
- Article 3 U.D.H.R
- Article 9 I.C.C.P.R
- Article 6 A.C.H.P.R
Section 35(1) of the 1999 Constitution guarantees the right to personal liberty and provides as follows:
"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"
- In execution of a sentence or order of court in respect of a criminal offence of which he has been found guilty;
- By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law;
- 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;
- In the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare;
- In the case of a person 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
- For the purpose of preventing the unlawful entry of any person into Nigeria of for effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.
NB: The pre-trial constitution guarantees are aimed at ensuring the presumption of innocence, and to prevent unnecessarily long incarceration by way of bail. The proviso to Section 35 (1)(f) qualifies the whole of Section 35 to the extent that detention even for criminal offences shall not be perpetual and it states that such detention shall not be longer than the period which is the maximum term for imprisonment prescribed for the offence. These are otherwise called the "detainees rights"
Article 6 of the African Charter on Human and Peoples" rights also guarantees the right to liberty as follows:
"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 and detained."
The concept of liberty according to William Blackstone, in its widest connotation, means the:
"Power of acting as one thinks fit, without any restraint or control".
In Adewole V. Jakande, Omolulu J, while interpreting Section 32 of the 1979 Constitution which is identical to Section 35 of the 1999 Constitution, held that the closure of private schools will amount to interference with the personal liberty of parents to train their children as they deem fit.
A persistent question is whether Section 35 (1) (a-f) is exhaustive of the circumstances under which deprivation of liberty is permitted. Professor Ben Nwabueze answers this question in the affirmative. He maintained that Section 35(1) of the constitution is the substantive provision spelling out the constitutionally permitted grounds for deprivation of liberty. He insists that an order of a tribunal or a body other than a court cannot be a ground for deprivation of liberty in the light of constitution provision.
In Balewa V. Doherty, the sections of the tribunals and Inquiry Act which empowered a commission of inquiry to impose a sentence of fine or imprisonment were declared void for being in contravention of Section 20(1) of the 1960 constitution which forbade a deprivation of personal liberty by any order save for one made by a court of justice.
Section 35 (2): Right to Silence until consultation with a legal practicioner or any other person of his choice
Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any person of his own choice. (Article 55 (2)(b) of the Rome Statute of the International Criminal Court contains a similar provision).
In State V. Rabiu, Ngwuta J lamented that this provision of the Nigerian constitution is honored more in breach than obedience buy the police. His Lordship observed the confessional statement obtained in breach pf Section 35 (2) of the constitution cannot be received in evidence.
In R V. Mallinson, the Court of Appeal of New Zealand held that the key point of the right to consult a lawyer without delay was that it was to be exercised before the legitimate interests of the person who was arrested were jeopardized. Therefore, the right to be informed of the right to consult must be accorded immediately on arrest. No particular formula was required so long as the content of the right was brought home to the arrested person.
The right to remain silent renders unconstitutional the practice whereby the Nigerian police use torture to extract confessional statements from persons who are under arrest or detention. Note that this is contra-cultural because it does not suit the design of our African criminal justice system, although aimed at preventing the subject from self-incrimination. It is doubtful if the legal practitioner will not tutor the suspect to conceal the subject to conceal the truth about the facts of the case.
Some people are detained longer than necessary for the purpose of obtaining confessional statements from them. In R V. Te Kira, the appellant successfully appealed against his conviction for robbery for breach of Section 23 (3) of the New Zealand Bill of Rights (Rights of person arrested for offence and not released to e brought as soon as possible before a court), in circumstances where he had been kept in custody on holding charge pending further investigation of a possibly more serious charge to which he confessed during that time. The COA held that a confession obtained as a result of following this practice should be excluded unless in circumstances where it is fair to depart from the prima facie rule.
Section 35 (3): Right to be informed in writing within 24 hours in a language understood of the fact and circumstances of the arrest and detention
Any person who is arrested or detained shall be informed in writing within 24 hours, (and in a language he understands) of the facts & grounds for his arrest. The requirement that he should be so informed turns in the elementary proposition in this country, a person is prima facie entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. If it is effected with a warrant, the warrant of arrest must be shown to the suspect.
In Minister of Home Affairs and Anor V. Austin and Anor, the Supreme Court of Zimbabwe held that in drawing up the grounds of detention, it was incumbent upon the detaining authority to appreciate that the detainee must be furnished with sufficient information or particular to enable him prepare his case and to make effective representations before a review tribunal.
In the case of Christie V. Leachinsky, a police constable arrested a person for receiving stolen goods without telling him of his grounds of his arrest. The arrest was declared unlawful.
Section 35 (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 -
- 2 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
- 3 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 upon5such conditions as are reasonably necessary to ensure that he appears for a trial at a later date
Justice Kessington (rtd) of the Lagos High court granted bail to 136 inmates of the Ikoyi prisons in suit no. M/115 of 1994 because the detainees had been in detention for over 9 years without trial.
Section 35 (5)
Reasonable time for the purposes of subsection (4) above is defined in subsection(5) as follows:
- In the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of 40 kilometers, a period of 1 day.
- In any other case, a period of two days or such longer as in the circumstances may be considered by the court to be reasonable.
Section 35 (4) & (5) does not yield to easy interpretation. What is clear about the subsections, however is that a person who is arrested or detained must be brought to a court of competent jurisdiction within 24 hours or 48 hours as the case may be depending on the availability of a court within 40 kilometers or otherwise.
In A.G Ondo State V. A.G Federation, the Supreme court held that Section 35 of the Corrupt Practices and Other related Offences Act is unconstitutional for violating the right to personal liberty guaranteed in the constitution. Section 35 of the Act empowers the ICPC to arrest and detain persons indefinitely until the person complies with the summons of the commission.
In Eda V. C.O.P, Sections 17 of the CPA and and 27 of the Police Act which empower the police to take an arrested person to court as soon as practicable were held to be unconstitutional for being inconsistent with Section 35 (1)(c), (4) & (5) of the 19999 constitution which requires that such a person be taken to court within a reasonable time.
Bail may be denied in certain circumstances. In Onu Obekpa V. COP, the applicant was arrested by the police on 30th August, 1980 on allegation of commission of the offence of theft. On 15th September, 1980, he was brought before the Grade II magistrate court on a First Information Report and his counsel made an application for bail on his behalf. The police prosecution opposed the application for bail on the ground that there were some other suspects who were at large and that if e applicant was released on bail, it may be difficult to arrest those other suspects. The learned Magistrate accepted this explanation and refused bail and accordingly remanded the applicant in prison custody until 22nd September, 1980.
The learned judge, IDOKO J, said in the case;
"As it appears, the spirit behind the provisions in Section 32 (4)(a)(b) of the constitution is to keep an accused person out of incarceration until the process of court trial. It is a conditional privilege which he is entitled to under the constitution"
He went further to adduce the rationale for that provision as being that:
"It allows those who might be wrongfully accused, to escape punishment which any period of imprisonment would inflict while awaiting trial, the stay out of prison guarantees easy accessibility to counsel and witness and ensures unhampered opportunity for preparation of the defense. Of much further advantage in this regard is the fact that unless the right to bail or to freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to very individual accused of a criminal offence would lose its meaning and force."
The right to personal liberty could be suspended where there is a threat to national security. In Dokubo-Asari V. FRN, Asari and others at large, were said to have signed one communiqué which castigated Governors, Local Government Chairmen and Niger Delta Development Commission Directors, alleging that they in connivance with the Federal Government looted the oil revenue accruing to the people of Niger Delta while pursuing their personal interests. The appellant was arrested by the police and taken to court on a 5-count charge of conspiracy, treasonable felony, forming, managing and assisting in managing an unlawful society. Asari Dokubo, was subsequently denied bail.
Arrest, Detention and Bail
The practice whereby the police or other security agencies arrest people simply in order to make it easier for them to obtain information, without any real suspicion that the person is involved in an offence, has been held to constitute a breach of Article 5 (1)(2) of the European Convention which is quite similar to the provision in Section 35 (1)(c) of the constitution, since it was not aimed to achieve one of the purposes permitted under the paragraphs.
Furthermore, a person cannot be arrested for the offence of another. Criminal liability is personal and not vicarious. Article 7 of the African Charter on Human and People's Rights stipulates clearly and unequivocally that punishment is personal and can be imposed only on the offender.
In ACB V. Okonkwo, NIKI TOBI JCA (as he then was) said:
"I know of no law which authorizes the police to arrest another for the offence committed or purportedly committed by the son. Criminal responsibility is personal and cannot be transferred."
A person who merely reports a case to the police does not ipso facto become liable if the police on basis of the report effect arrest. It was held in Fajemirokun V. C.B (C.L) (Nig.) Ltd. that it is for the applicant who alleges that he was arrested and detained by the police on the instigation of another person to prove his arrest & detention where the respondent denies the allegation. In such circumstance, the onus lies on the appellant who alleges that he was arrested and detained to show that the respondent set the law in motion against him and that the respondent was actively instrumental to his arrest and detention.
To constitute an arrest, the police officer shall actually touch the body of the person to be arrested, unless there be a submission to custody by word or conduct. The person is not to be handcuffed, bound or subjected to unnecessary restraint without the order of a court, magistrate or justice of the peace, except where there is a likelihood of violence being committed or an attempt being made to escape or for the personal safety of the person concerned. There is no arrest where a person is merely invited to the police station and he honours the invitation (Afeze V. Momo).
According to the court, "a holding charge" is unknown to Nigerian law and an accused person detained there-under is entitled to be released on bail within a reasonable time before trial, more so in a non-capital offence.
In Ayinla & 191 & Ors V. AG Lagos State & Ors, the applicants had been under remand for periods ranging from 5 months to 9 months for capital offences, mostly armed robbery under a "holding charge"/
Similarly in Bayo Johnson V. Lufadeju, the COA held that there cannot be a holding charge hanging over an accused person in court pending the completion of investigations into the case against him. According to the court, neither the Nigerian constitution nor any other law in force in Nigeria provides for a holding charge.
Bail in respect to persons suspected of commiting capital offences
In cases involving capital offences, though Section 35 (4) & (5) are inapplicable, a person should not be detained by the police for too long before being taken to court, and if taken to court, the court ought not to order indefinite detention, except where information has actually been filed against the accused.
In Pius Ozo Anaekwe V. COP, the appellant and 9 ors were charged before the Chief Magistrate court, for conspiracy and murder. The learned Chief Magistrate ordered that the accused persons be remanded in prison custody. Application for bail was filed before the High Court and the judge refused it on the ground that the offence allegedly committed was murder. Dissatisfied with the refusal of the application, the appeal court held as follows:
"Unless the right to pre-trial is preserved, the presumption of innocence secured after centuries of struggle, would lose its meaning. And the constitutional presumption of innocence enshrined under Section 33 (5) of the 1979 Constitution can be invoked in a capital offence where a prima facie case has not been established against the accused"
Thus, even where a prima facie case has been made against an accused in a capital offence, he still retains the right to be released if he has not tried within a reasonable time.
Relevant factors in consideration of a bail appplication
In Bamaiyi V. State, the Supreme Court held that the factors which the court must consider in application for bail are the following:
- The gravity of evidence against the accused.
- The availability of the accused to stand trial.
- The nature and gravity of the offence.
- The likelihood of the accused interfering with the court of justice.
- The criminal antecedents of the accused person.
- The likelihood of further charges being brought against the accused.
- The probability of guilt.
- The protection of the accused.
- The necessity to procure medical or social report pending final disposal of the case.
Bail can be generally defined as surety taken by a person duly authorized for the appearance of an accused person at a certain day and place, to answer and be justified by law. In Fawehinmi V. The State, one of the circumstances accepted by the COA as justification for grant of bail on the ground of special circumstances is ill-health.
Section 35(6): Remedies, Compensation and Apology
By virtue of Section 35 (6) of the constitution, a person unlawfully arrested or detained, i.e. contrary to constitutional requirements is entitled to compensation or public apology from the appropriate authority of person, i.e. "an authority or person specified by law".
The courts have stated the fact that a person or authority known to law here refers to public persons and institutions, and not provide individuals when enforcement is sought through the Fundamental Rights (Enforcement) Procedure Rules 1979. Action may however be brought under common law against an individual. According to the court in Madu V. Onauguluchi, the word person in the section includes "Any company or bodies of persons corporate or incorporate."
In Minister of Internal Affairs V. Shugaba AbdulRahman Darman, Coker JCA stated that "such an award must be adequate to repair the injury to the plaintiff's reputation which was damaged, the award must be such as would atone for the assault on the plaintiff's character and pride which were unjustifiably invaded."
In Ogor V. Kolawole, the court stated that the award of compensation in cases of unlawful deprivation of liberty under Section 35 (6) of the 1999 constitution is mandatory.
Section 35 (7)
Nothing in this Section shall be construed:
- 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; and
- As invalidating any law by reason only that it authorizes the detention for a period not exceeding 3 months of a member of the armed forces of the federation or a member of the Nigerian Police force in the execution of a sentence imposed by an officer of the armed forces of the federation or of the Nigerian Police force, in respect of an offence punishable by such detention of which he has been found guilty.