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Olomojobi Article - FINAL PDF 2
Olomojobi Article - FINAL PDF 2
INTRODUCTION
Nigeria: Human Rights Enforcement as a Remedy, 3 INT’L J. COMPAR. L. & LEGAL PHIL., no.
2, 2021, at 194, 200.
48 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47
(2015).
6 See Helen A. Nutting, The Most Wholesome Law – The Habeas Corpus Act of
1679, 65 AM. HIST. REV. 527, 529 (1960) (explaining the legal procedures needed to make
the Act effective against wrongful imprisonment).
7 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 1765–1769,
1789 (Fr.).
9 Id. art 1.
10 See GEORG JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF
CITIZENS 2 (1901) (discussing how European law has been influenced by the 1789 French
document).
11 See IMER FLORES, LAW LIBERTY, AND THE RULE OF LAW (IN A CONSTITUTIONAL
DEMOCRACY) 99 (Imer B. Flores & Kenneth E. Himma eds., Springer Netherlands 2013).
12 Id.
13 See id.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 49
I. INTERNATIONAL PROTECTION
14 See G.A.I. Nwogu, Democracy: Its Meaning and Dissenting Opinions of the
Political Class of Nigeria: A Philosophical Approach, 6 J. EDUC.& PRAC. 131, 132 (2015).
15 G.A. Res. 217 (III) A, supra note 4, art. 10–11.
16 U.N. OFF OF THE HIGH COMM’R FOR HUM. RTS. WITH INT’L BAR ASS’N, HUMAN
....
24 Id.
25 Id.
26 Id.
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(d) Every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of
the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a
prompt decision on any such action.28
....
Workers and Members of Their Families art. 16, Dec. 18, 1990, 2220 U.N.T.S. 93, 99–100
(entered into force July 1, 2003).
30 Id. art. 17.
31 Convention on the Rights of Persons with Disabilities art. 14, Dec. 13, 2006,
32 African (Banjul) Charter on Human and Peoples’ Rights art. 6, Oct. 21, 1986,
21 I.L.M. 58.
33 Kazeem Aminu v. Nigeria, Communication 205/97, African Commission on
Human and Peoples’ Rights [Afr. Comm’n H.P.R.] (May 11, 2000).
34 Id. ¶ 3.
35 Id. ¶ 4.
36 Id. ¶ 7.
37 Id. ¶ 15.
38 Id. ¶¶ 18, 26.
39 CONSTITUTION OF NIGERIA (1999), § 35(1).
40 See Kayode O. Fayokun & Segun O. Adedeji, Legal Issues in Educational
Management in Nigeria, 4 MAKERERE J. HIGHER EDUC. no. 2, 2013, at 187, 197 (citing
Adewole v. Jokande [1981] 1 NCLR 262, 278 (H.C. of Lagos)).
54 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47
41 Id.
42 See My Right to Personal Liberty, CONST. RTS. AWARENESS LIBERTY INITIATIVE
(2018), https://knowyourrightsnigeria.com/my-right-to-personal-liberty/ (citing Adewole 1
NCLR at 278) (quoting the court’s definition of personal liberty).
43 Plessy v. Ferguson, 163 U.S. 537, 557 (1896) (Harlan, J., dissenting) (quoting
The right to personal liberty under Nigerian law avails not only
citizens but even aliens.47 The right is, however, not absolute.48 It can be
deprived in circumstances prescribed by any law in accordance with the
Constitution.49 Denton-West, J.C.A., in Bobade Olutide v. Adams Hamzat,
stated:
46 Id.
47 See CONSTITUTION OF NIGERIA, §§ 25–35.
48 Id.
49 B.O. NWABUEZE, THE PRESIDENTIAL CONSTITUTION OF NIGERIA 420 (St.
53.
56 OGBU, supra note 44, at 193.
57 CONSTITUTION OF NIGERIA (1999), § 35(1)(a)–(f).
58 Id. § 35(1)(b).
59 Id.
60 See id. § 35(1).
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61 Id. § 35(1)(f).
62 See generally Abiola Ojo, The Investigatory Powers of the National Assembly
Under the 1979 Constitution: Sections 82 and 83 Considered, 12 NIGERIAN L.J. 49, 55
(1984).
63 Ameh Comrade Godwin, Enugu Commissioner Arrested for Disobeying
the courts.71 It must, however, be noted that a judicial tribunal has the
same powers as a regular court and can restrain or commit a person to
prison.72
It has been also held that the right to personal liberty can be
limited for the purpose of protecting national security. In Dokubo-Asari v.
FRN,73 the Supreme Court, concurring with the court of appeal, held that
if the nation’s security is threatened or there is a real likelihood of it being
under threat, personal liberty and the fundamental human rights of
persons perpetrating such must be limited until national security can be
sufficiently protected.74 His Lordship Muhammad, JSC. held:
71Id.
72See OGBU, supra note 44, at 192.
73 Dukubo-Asari v. FRN [2007] 12 NWLR 320.
74 Id. at 333.
75 Id. at 336.
76 See OGBU, supra note 44, at 207–08.
77 Id. at 207.
78 CONSTITUTION OF NIGERIA (1999), § 45(3) (providing a definition of period of
emergency).
79 See OGBU, supra note 44, at 207–08.
80 Id. at 208.
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provision does not avail members of the armed forces.81 The Constitution
provides that nothing shall invalidate
Thus, before a person gives himself up for arrest, the police must inform
him of the reason for his arrest.93 The Constitution provides that this must
be done within twenty-four hours of the arrest.94 Failure to comply with
this will make the arrest unconstitutional.95 According to Mowoe, this
right is essential as it affords the accused the opportunity to clarify any
misunderstanding or call the attention of the police officers to any other
person for whom he might have been mistaken.96 This aids the police in
their investigation and probably frees the accused from the shackles of
false accusation.97 Where the accused person is arrested in the midst of
the commission of a crime, this right may not avail him.98 In Agbaje v.
Commissioner of Police, where the accused person was detained for about
ten days and was not informed of the reasons for his arrest, the court held
that his arrest was illegal and a violation of the Constitution.99
In Subsection 5, the term “reasonable time” was defined for the purpose
of Subsection 4 as follows:
4 AFR. J. CRIM. L. JURIS. 108, 111–12 (2019) (citing Eda v. Comm’r of Police [1982] 3 NCLR
219).
105 MOWOE, supra note 93, at 333 (citing Eda 3 NCLR at 219).
106 The Periodic Report on Nigeria’s Human Rights Record to the African
Commission on Human and Peoples’ Rights, No. 24/93, Afr. Comm’n on Hum. and Peoples’
Rts., High Comm’n of the Fed. Republic of Nigeria, (Apr. 1, 1993),
https://www.achpr.org/public/Document/file/English/staterep1_nigeria_1992_eng.pdf
(discussing Eda v. Comm’r of Police [1982[ 3 N.C.L.R 219).
107 CONSTITUTION OF NIGERIA (1999), §§ 35(1)(c), 35(4), 35(5).
108 Mr. Buba Amodu v. The Commissioner of Police Lagos State & Anor
2 NCLR 771).
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In compliance with this provision, the court has held that the
“holding charge”111 often practiced by the police is a violation of the
Constitution.112 Accused persons have been held in custody for periods
ranging from two to ten years based on this holding charge.113 His
Lordship Onu J.C.A. (as he then was) in Enwere v. Commissioner of Police
considered the issue of holding charge and held that:
111 This refers to the practice whereby the police keep a suspect person in custody
upon such conditions that are reasonably necessary to make sure he does
not elope from trial at a later day. 119
In Onu Obekpa v. Commissioner of Police, the accused person was
arrested on August 30, 1980, on an allegation of theft.120 He was brought
to court on September 1, 1980.121 His offence was a bailable one.122 His
counsel applied for his bail, which the prosecution opposed on the ground
that some of the co-accused persons were still at large, and that if the bail
was granted, it might be difficult to arrest the other suspects.123 The
Magistrate agreed with the prosecution and refused the bail
application.124 The applicant applied to the High Court for bail.125 This
was opposed by the State Counsel on the ground that the accused had not
stayed up to two months in detention because Section 32(4)(1) of the 1979
Constitution did not apply.126 Idoko J., rejecting the argument of the State
Counsel, stated that:
The judge also went further to remark on the merits of this provision of
the Constitution in the following words:
Nigeria: Time for the Courts to Coalesce Right to Fair Hearing with Right to Personal
Liberty, 2 PORT HARCOURT J. OF BUS. L. no. 1, 2016, at 1, 8 (citing Obekpa v. Comm’r of
Police [1981] 2 NCLR 420).
121 Id.
122 Id.
123 Id.
124 Id.
125 Id.
126 See Uwaezuoke, supra note 120.
127 2 CHARLES MWALIMU, THE NIGERIAN LEGAL SYSTEM: PRIVATE LAW 904 (2009)
The judge went further to hold that where a person is charged for a non-
capital offence, bail is a basic right, and, undoubtedly, his right to be
released before trial was more basic if his trial would last beyond two
months.129
Kanu J. in Commissioner of Police v. Amalu, reasoned differently
when he held that that right to pre-trial bail avails only suspects who have
not been charged before a court.130 The Court of Appeal concurred with his
reasoning in Danbaba v. The State, where Galadima, J.C.A. stated thus:
In Bamaiyi v. The State & Ors, the appellants were charged with
conspiracy to commit murder and attempted murder.132 They pled not
guilty and were remanded to prison.133 They filed an application for pre-
128 Ndubuisi Madubuike-Ekwe & Olumide Obayemi, Assessment of the Role of the
Nigerian Police Force in the Promotion and Protection of Human Rights in Nigeria, 23 ANN.
SURV. INT’L & COMP. L. 19, 32 (2019) (citing Obekpa 2 NCLR 420).
129 Emmanuel Olugbenga Akingbehin, Capital Punishment in Nigeria: A Critical
Appraisal 237 (October 2011) (Ph.D. dissertation, University of Lagos) (on file with the
school of postgraduate studies, University of Lagos) (citing Obekpa 2 NCLR 420).
130 Comm’r of Police v. Amalu [1984] 5 NCLR 443.
131 Danbaba v. State [2000] 14 NWLR 396, 400.
132 Bamaiyi v. State [2001] 8 NWLR 270, 272.
133 Id.
66 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47
trial bail, which was denied by the trial court.134 Aggrieved, they appealed
to the Court of Appeal, which held that Section 35(4) does not create an
automatic right to pre-trial bail.135 Oguntade J.C.A. (as he then was) held
in leading judgment that:
The above reasoning was also echoed in the case of Alaya v. State,
where Agube, J.C.A., stated that:
134 Id.
135 Id.
136 Id.
137 Alaya v. State [2007] 16 NWLR 483, 487–88.
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The court should however not remand the accused person indefinitely
unless the prosecution has provided prima facie evidence of the
commission of the offence charged.144 In Anaekwe v. Commissioner of
Police, the appellants were charged with conspiracy and murder.145 They
were remanded by the Chief Magistrate, and the appellant applied for bail
at the High Court of Onitsha.146 The High Court refused the application
on the ground that the appellants were charged with murder.147 The
appellants further appealed to the Court of Appeal which held that,
although the Constitution makes provision for pre-trial bail, it is generally
unavailable for persons accused of capital offences.148 The court further
held that:
The police in exercise of this power cannot arrest a person for the
offence of another, such as arresting a parent for the offence of the child.157
Punishment is personal and must be levied on the appropriate offender.158
SCI. 134, 140, 144 (1997) (citing Ateze v. Momoh [1958] NRLNR 127).
157 See African Charter on Human and Peoples’ Rights art. 7, June 27, 2981, 21
I.L.M 58.
158 Id.
70 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47
In Nemi v. A. G. Lagos & Anor, the court held that under Section
32(6) of the 1979 Constitution (now Section 35(6) of the 1999 Constitution)
a violation of an individual’s right to personal liberty is remediable, at the
insistence of the victim, by the appropriate authority’s compensation,
public apology, and the victim’s release if he or she is still being held in
unlawful detention.162 Also, in Jim-Jaja v. Commissioner of Police, the
Supreme Court established that where the plaintiff proves unlawful
arrest and detention under Section 35(6) of the 1999 Constitution, he is
entitled to compensation and public apology as relief, even where he did
not claim any specific amount.163 Where asked for a specific amount, the
court will evaluate the claim and determine the amount that will be
reasonable to compensate the plaintiff.164
CONCLUSION
513–14.
163 Jim-Jaja v. Comm’r of Police [2012] 6 NWLR 225, 231; see Odogu 6 NWLR at
513–14.
164 Jim-Jaja 6 NWLR at 254.
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165 See Ben Ezeamalu, Why Nigeria’s Criminal Justice System is Slow — Judge,
Nigerian Law: A Legal Myth or Reality?, 9 BENUE ST. UNIV. L.J. 352, 353 (2019).
72 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47
should be meted out to defaulting police officers that exceed their powers
and infringe rights in a bid to gather evidence from the accused.175
Awareness programs should be organized in various local areas with more
non-educated individuals in a bid to make them informed on the various
rights they have as citizens against the law enforcement agencies which
tend to override their rights and mistreat them.176
Finally, it is this author’s opinion that to effectively prevent the
infringement and violation of one’s right to personal liberty and combat
these challenges, there has to be an analysis and well-mapped out
reworking of the entire Criminal Justice System in Nigeria.177
175 See Omoba Oladele Opeolu Osinuga, An Agenda for Effective Policing in