Introduction to the Illegality of Unlawful Arrest

The preservation of personal liberty lies at the heart of any democratic society governed by the rule of law. In Nigeria, the power of arrest vested in law enforcement agencies such as the Nigeria Police Force, the Economic and Financial Crimes Commission, and the Department of State Services is a necessary tool for maintaining public order and enforcing criminal justice. However, this power is not without limits. Where it is exercised arbitrarily or in violation of established legal safeguards, it degenerates into unlawful arrest an affront to constitutionalism and human rights.

Despite the existence of a robust legal framework, unlawful arrest remains a persistent feature of Nigeria’s criminal justice system. This essay interrogates the illegality of such arrests within the context of constitutional guarantees, statutory provisions, and judicial pronouncements, while also examining the remedies available to victims and the broader implications for the rule of law.

Constitutional Framework and the Right to Personal Liberty: Illegality of Unlawful Arrest

The starting point for any discussion on unlawful arrest in Nigeria is the Constitution of the Federal Republic of Nigeria 1999. Section 35(1) unequivocally guarantees the right to personal liberty, stipulating that no person shall be deprived of such liberty except in accordance with a procedure permitted by law. This provision establishes a constitutional threshold: any arrest that does not comply with legally prescribed procedures is ipso facto unlawful.

Section 36(6) &(4) of the Constitution further strengthens this protection by imposing procedural obligations on law enforcement authorities. A person who is arrested must be informed promptly, in a language he understands, of the reasons for his arrest. Additionally, such a person must be brought before a court of competent jurisdiction within a reasonable time generally interpreted as 24 hours where a court is within a reasonable distance, or 48 hours in other circumstances. These safeguards are not mere formalities; they are essential conditions for the legality of any arrest. Their breach renders the detention unconstitutional.

The judiciary has consistently affirmed the supremacy of these constitutional guarantees. In Fawehinmi v. IGP, the Supreme Court emphasized that personal liberty is a fundamental right that must not be trifled with by law enforcement authorities. Similarly, in Shugaba v. Minister of Internal Affairs, the court underscored the inviolability of fundamental rights and condemned executive actions that undermine them.

Statutory Regulation of Arrest Powers: Illegality of Unlawful Arrest

Beyond the Constitution, statutory regulation of arrest procedures is primarily governed by the Administration of Criminal Justice Act 2015 (ACJA), which represents a significant reform in Nigeria’s criminal justice system. The Act seeks to balance the need for effective law enforcement with the protection of individual rights.

Under the ACJA, arrest must be predicated on reasonable suspicion that a person has committed an offence. The Act also mandates that arresting officers identify themselves and refrain from subjecting suspects to inhumane or degrading treatment. Of particular importance is the express prohibition in Section 7 of the ACJA  “arrest in lieu,” a practice whereby law enforcement agents detain relatives or associates of a suspect in place of the suspect himself. This provision reflects legislative recognition of the widespread abuse of arrest powers in Nigeria.

Furthermore, the Act discourages unnecessary arrests, encouraging the use of summons in appropriate circumstances. This represents a shift from a punitive to a more rights-conscious approach to criminal justice administration.

The Nature and Forms of Unlawful Arrest

Unlawful arrest can simply be defined as the deprivation of a person’s liberty without legal justification. Unlawful arrest manifests in various forms, each representing a deviation from constitutional and statutory standards. One of the most common instances is arrest without reasonable suspicion. Law enforcement agencies often rely on vague allegations, profiling, or mere suspicion without credible evidence. Such arrests are inherently arbitrary and violate the constitutional guarantee of personal liberty.

Another prevalent form is the failure to inform the suspect of the reason for arrest. The requirement of notification is not optional; it is a fundamental right. Its breach deprives the suspect of the opportunity to understand and challenge the basis of his detention.

Equally problematic is the practice of arrest in lieu of a suspect, which the ACJA explicitly criminalises. Despite this prohibition, the practice persists, particularly in cases involving debt recovery or family disputes. This not only constitutes unlawful arrest but also amounts to collective punishment, which has no place in a modern legal system.

Prolonged detention without trial is another manifestation of unlawful arrest. The constitutional requirement of arraignment within a reasonable time is frequently ignored, leading to situations where individuals are detained for days or even weeks without judicial oversight. Such conduct is a violation of constitutional provisions.

Additionally, the involvement of law enforcement agencies in civil disputes particularly debt recovery has been repeatedly condemned by the courts. In McLaren v. Jennings, the court made it clear that the police are not debt recovery agents and must not be used to enforce civil obligations. Similarly, in EFCC v. Diamond Bank Plc, the court criticised the misuse of investigative powers for purposes unrelated to criminal justice.

Judicial Condemnation of Unlawful Arrest

The Nigerian judiciary has played a pivotal role in curbing unlawful arrests by consistently declaring such acts illegal and awarding damages to victims. In Onagoruwa v. State, the court held that any detention not in compliance with constitutional provisions is unlawful.

In Jim-Jaja v. C.O.P Rivers State, the Supreme Court reaffirmed that arrest and detention must strictly conform to the law, warning that any deviation would attract judicial sanction. The court further emphasized that law enforcement agencies must not act on mere suspicion without proper investigation.

These decisions demonstrate a clear judicial stance: unlawful arrest is not merely irregular it is illegal, actionable, and deserving of remedy.

Remedies and Enforcement of Rights

Victims of unlawful arrest are not without recourse. The legal system provides several mechanisms for redress, the most prominent being an action for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. Through this procedure, victims may seek declarations that their rights have been violated, as well as monetary compensation.

The writ of habeas corpus also serves as a critical safeguard, enabling courts to compel the production of a detained person and assess the legality of the detention. In appropriate cases, courts may order the immediate release of the detainee.

In addition, victims may institute civil actions for damages for false imprisonment and unlawful arrest. Nigerian courts have not hesitated to award substantial damages in deserving cases, thereby reinforcing the deterrent effect of judicial intervention.

Persistent Challenges and the Way Forward: Illegality of Unlawful arrest

Notwithstanding the clarity of the law, unlawful arrest remains pervasive in Nigeria. This paradox can be attributed to several factors, including weak institutional accountability, inadequate training of law enforcement officers, and widespread ignorance of legal rights among citizens.

Moreover, the use of law enforcement agencies as tools for settling private disputes continues to undermine the integrity of the criminal justice system. This practice not only violates individual rights but also diverts law enforcement resources from genuine criminal investigations.

Addressing these challenges requires a multi-faceted approach. There must be stricter enforcement of existing laws, enhanced training of law enforcement personnel, and increased public awareness of fundamental rights. Judicial activism must also continue to serve as a check on executive excesses.

Conclusion

Unlawful arrest represents a fundamental breach of the rule of law and a direct violation of constitutionally guaranteed rights. The Constitution of the Federal Republic of Nigeria 1999 and the Administration of Criminal Justice Act 2015 provide a comprehensive framework for regulating arrest powers, while the judiciary has consistently condemned abuses of these powers.

Yet, the persistence of unlawful arrest in practice reveals a troubling gap between law and reality. Bridging this gap requires not only legal reforms but also a cultural shift within law enforcement institutions and greater vigilance on the part of citizens. Ultimately, the legitimacy of the state depends on its respect for the rights of its citizens. Where unlawful arrest is tolerated, the rule of law itself is undermined.

Contributors

Lead Partner, EKO SOLICITORS AND ADVOCATES

Faith Ogunleye

Graduate Trainee, EKO SOLICITORS AND ADVOCATES

Illegality of Unlawful arrest, Illegality of Unlawful arrest, Illegality of Unlawful arrest, Illegality of Unlawful arrest, Illegality of Unlawful arrest, Illegality of Unlawful arrest