Introduction to the Right to Personal Liberty in Nigeria
It was a humid Thursday morning in Lagos when Emeka, a 32-year-old civil servant, was suddenly stopped by two plainclothes officers outside his office building on Lagos Island. Without showing any identification or stating any reason, they bundled him into an unmarked vehicle. His colleague Ngozi, who witnessed the scene, immediately called their mutual friend Chukwuemeka, a legal practitioner in Abuja. Hours passed. Emeka sat in a bare room with no explanation, no food, and no access to his phone.
By the time Chukwuemeka arrived the following morning and demanded to know the grounds for his client’s detention, over eighteen hours had elapsed and no charge had been filed. Emeka’s story, though fictitious, mirrors the lived reality of thousands of Nigerians whose fundamental right to personal liberty is violated daily, often by the very institutions charged with upholding the law.
Freedom is a cornerstone of human dignity. Among the fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the right to personal liberty stands as one of the most vital. It protects every individual from arbitrary arrest, unlawful detention, and the abuse of state power. In a country where encounters between citizens and law enforcement officers are frequently tense and sometimes violent, understanding this right is not merely an academic exercise; it is a matter of survival and justice.
Section 35 of the 1999 Constitution provides the framework for the right to personal liberty in Nigeria. It lays down the conditions under which a person may lawfully be deprived of liberty, the procedural safeguards that must accompany any arrest or detention, and the remedies available when those safeguards are violated. This article examines the scope and content of Section 35, its practical implications for Nigerian citizens, and the challenges that continue to undermine its effective realisation.
The Constitutional Guarantee of Personal Liberty in Nigeria
Section 35(1) of the 1999 Constitution opens with a clear and unambiguous declaration: 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. This provision establishes a two-part test for any lawful deprivation of liberty. First, the deprivation must fall within one of the enumerated exceptions. Second, it must follow a procedure permitted by law. Both conditions must coexist; neither alone is sufficient.
The constitutional text of Section 35(1) provides the exhaustive list of circumstances under which personal liberty may be lawfully curtailed. These are: (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.
The provision further states by way of a proviso under subsection (1)(f) 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. This proviso is particularly significant in the Nigerian context, where awaiting-trial inmates constitute a disproportionately large percentage of the prison population.
The Right to Remain Silent
Section 35(2) confers on every arrested or detained person the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. This provision embodies the internationally recognised privilege against self-incrimination. It recognises that a person in custody is inherently vulnerable and may be susceptible to coercion, manipulation, or psychological pressure.
In practice, this right is routinely disregarded by Nigerian law enforcement agencies. Suspects are often subjected to prolonged and sometimes coercive questioning before they are informed of their right to legal representation. Courts have, however, held that any statement obtained in violation of this constitutional safeguard is inadmissible in evidence. The importance of this right therefore extends beyond its symbolic value; it directly affects the admissibility of evidence and the fairness of criminal trials.
The Right to Be Informed of Grounds for Arrest
Section 35(3) provides that any person who is arrested or detained shall be informed in writing within twenty-four hours, and in a language that he understands, of the facts and grounds for his arrest or detention. This provision serves two important functions. It enables the arrested person to seek appropriate legal advice and to challenge the legality of the detention where warranted. It also imposes a duty of transparency on arresting authorities, discouraging arbitrary or pretextual detentions.
The requirement that notification be given in writing and in a language the detainee understands is particularly noteworthy. Nigeria is a multilingual country with hundreds of distinct languages and dialects. Many citizens, particularly in rural areas, have little or no proficiency in English, which remains the dominant language of the legal system. The constitutional requirement of comprehensible notification is therefore an important check against technical compliance that amounts to practical obscurity.
Time Limits for Detention and Trial
Section 35(4) addresses the critical question of how long a person may be detained before being brought before a court. It provides that any person arrested or detained in accordance with subsection (1)(c) 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.
The expression “a reasonable time” is given specific content by Section 35(5), which provides that it 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 kilometres, 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. These provisions reflect a constitutional imperative against prolonged pre-charge detention. They recognise that liberty is the default; detention is the exception that must be justified within defined temporal limits.
Section 35(7) introduces two important qualifications. First, the time limits in subsection (4) do not apply to a person arrested or detained upon reasonable suspicion of having committed a capital offence. This exception has attracted criticism from human rights advocates, who argue that it creates an incentive for the police to characterise offences as capital in order to justify indefinite pre-trial detention.
Second, the section does not invalidate any law that authorises the detention for a period not exceeding three months of a member of the armed forces or the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces or the police, in respect of an offence punishable by such detention of which he has been found guilty.
Remedies for Unlawful Arrest or Detention(personal liberty in Nigeria)
Section 35(6) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. The subsection defines the appropriate authority or person as an authority or person specified by law. This provision is a constitutional affirmation that the violation of personal liberty is not merely a wrong to be condemned in principle. It is a wrong that must be remedied in fact.
The remedy of compensation is consistent with the general principle that a right without a remedy is no right at all. It imposes a financial cost on institutions that engage in unlawful detention, thereby creating an incentive for compliance. The additional remedy of a public apology goes beyond monetary compensation; it serves a restorative function by publicly acknowledging the wrong done to the victim. This affirms the dignity of the individual whose liberty was unlawfully curtailed.
In practice, however, the enforcement of this provision has been uneven. Victims of unlawful arrest frequently encounter institutional resistance, bureaucratic delay, and inadequate legal representation when seeking compensation. The courts have in several cases affirmed the right to compensation, but execution of judgments against government agencies remains a persistent challenge in the Nigerian legal system.
Challenges to the Effective Realisation of the Right to Personal Liberty in Nigeria
Despite the clarity of the constitutional provisions, the right to personal liberty faces serious challenges in Nigeria. The most pervasive is the culture of arbitrary arrest and detention. This practised by law enforcement agencies, particularly the Nigeria Police Force. Officers routinely arrest individuals without reasonable suspicion. After detain them beyond constitutional time limits, and fail to inform them of the grounds for their arrest. These abuses are frequently driven by extortion rather than genuine law enforcement.
The phenomenon of “trial by media” compounds these violations. Suspects are publicly identified and their alleged crimes broadcast before any charge is filed or any court proceeding commenced. This practice not only violates the presumption of innocence. It also inflicts reputational harm that no subsequent acquittal can fully repair. It reflects a broader disregard, within both state institutions and the media, for the procedural rights of accused persons.
The prison system presents another dimension of the problem. A significant proportion of inmates in Nigerian correctional facilities are awaiting trial. Many of them detained for periods that far exceed the constitutional limits. In some cases, the maximum sentence prescribed for the offences with which they are charged. This reality represents a systemic failure to give effect to the constitutional guarantee of personal liberty. And to the provision in Section 35(1)(f) that prohibits detention exceeding the maximum sentence for the alleged offence.
Access to justice is also a limiting factor. Many Nigerians, particularly those in low-income brackets, lack the financial resources to retain legal counsel. As well as time and resources to pursue constitutional remedies through the courts. Legal aid services remain inadequate and underfunded. Without meaningful access to justice, the constitutional guarantee of personal liberty risks becoming a privilege of the affluent rather than a universal right.
Conclusion
The right to personal liberty, as guaranteed by Section 35 of the 1999 Constitution. This is a foundational element of the rule of law in Nigeria. It defines the boundaries of state power over the individual, establishes procedural safeguards against abuse. It provides remedies for those whose liberty is unlawfully curtailed. Its provisions are detailed, deliberate, and, in their terms, unambiguous.
The gap between constitutional text and lived reality, however, remains wide. Bridging that gap requires sustained commitment from law enforcement agencies, the judiciary, the legislature, civil society, and the legal profession. It requires investment in legal education, legal aid, and judicial infrastructure. It requires a culture of accountability within institutions of state power. And a citizenry that is informed of its rights and empowered to assert them.
Emeka was eventually released without charge after thirty-two hours in detention. No apology was offered and no compensation was paid. His experience is not an aberration; it is a pattern. Understanding the right to personal liberty is the first step toward changing that pattern. The Constitution has spoken clearly. The task now is to make its words a living reality for every Nigerian.
Contributors
Lead Partner, EKO SOLICITORS & ADVOCATES
Idowu-Agida Nifemi
Associate, EKO SOLICITORS & ADVOCATES
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