Criminal Law

Remand Proceedings and Constitutionally Guaranteed Rights of a Suspect

The most recent global Rule of Law index was released on October 25, 2023, in Washington DC, United States, by the World Justice Project (WJP). The index ranked Nigeria 120th out of 142 countries in terms of adherence to the Rule of Law. According to the WJP reports, countries were assessed on eight indicators: Constraints on Government powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.

One of the fundamental rights that is most frequently abused in Nigeria is the right to personal liberty. Personal liberty is the restriction of a person’s freedom through arrest and detention when there is suspicion of them having committed an offense or when they are being punished for a crime.

The right to personal liberty is vital as it is directly connected to the fundamental elements of an individual’s physical freedom. This right requires that the arrest or detention of an individual be conducted in accordance with the law. It serves as a protection against excessive actions by the government and its agencies. Essentially, it is a personal freedom that no government can infringe upon. This right can be traced back to the English Magna Carta of 1215 and is juxtaposed with other human rights.

In Nigeria, the main challenge regarding the right to liberty lies with the Executive arm of the government, as it often allows for prolonged detention without trial. Additionally, the Judiciary shows a persistent lack of will in addressing numerous cases where individuals are detained without considering the time they would have served if convicted for the crime in question.

According to A.V Dicey, a leading authority on the Rule of Law, personal liberty is “the right not to be subject to imprisonment, arrest, and any other physical coercion unless justified by law.” When an individual is suspected of a crime, they are presumed innocent until proven guilty. It is the responsibility of the court to ensure that the process of finding the person guilty aligns with the criminal justice system, protecting their liberty from unjust interference.

Lord Atkin, in the case of Liversidge v. Anderson [1942] AC 206 at PP. 245-46, stated that “In English Law, every imprisonment is prima facie unlawful, and it is the duty of the person directing imprisonment to justify their actions. The only exception is in respect of imprisonment ordered by a judge.”

In the case of Amodu v. COP Lagos State & Anor [2014] LPELR-23087 CA, Justice Iyizoba explicitly stated that “The Constitution of the Federal Republic of Nigeria requires that a person who is arrested and detained on suspicion of having committed a criminal offense shall be brought before a court of law within a reasonable time. If he is not tried within two months from the date of his arrest or detention, he shall, without prejudice to any further proceedings, be released unconditionally or upon reasonable conditions to ensure their appearance for trial at a later date.”

Former chairman of the Economic and Financial Crimes Commission (EFCC), Abdulrasheed Bawa, was released by the State Security Service (SSS) after spending 134 days in detention. The maximum period for a suspect to be detained through a remand order is 56 days, but Bawa was detained for over four months, which goes against the rule of law. This situation should be condemned by all supporters of democracy. The question arises as to whether a remand order can last for four months. The remand order in Bawa’s case was issued under the provisions of the Administration of Criminal Justice Act (ACJA) 2015.

Section 293 of the ACJA provides the procedure for obtaining a remand order. A remand order is necessary to avoid violating the provisions of Section 35(4) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, which state that any arrested or detained person must be brought before a court of law within a reasonable time. Subsection 5 defines “reasonable time” as between 24 to 48 hours, depending on the availability of a competent court in the location of the arrest or detention. If an investigation cannot be completed within this period, the Magistrate Court may allow the detention to continue for a longer period considered reasonable.

According to Section 296 of the ACJA 2015, a remand warrant issued under Section 293 can initially last for 14 days and be renewed for another 14 days, totaling 28 days. After the expiration of 28 days, the Magistrate Court is required to invite the Attorney General of the Federation, the detaining authority, and the suspect to address the court on whether the remand order should be vacated or the suspect released unconditionally.

During this stage, the Magistrate has 14 days to decide whether to extend the remand order or release the suspect unconditionally. This third stage accounts for a total of 42 days in which a suspect can be detained. If, after hearing the parties, the Magistrate determines that the suspect should remain detained, the remand order may be extended for another 14 days, making a total of 56 days. After this period, the suspect must be released unconditionally, unless they are charged before a competent court of law.

Nigeria is bound by international human rights conventions, including the Geneva Conventions, which prohibit arbitrary arrest and unlawful detention. The Rule of Law advocates for the impartial and non-partisan application of its principles. The prolonged detention of suspects without concrete charges or due process raises serious concerns about the state of governance in our nation and the strength of our institutions. It undermines our democratic values and the trust placed in our government.

Law enforcement agencies and prosecutors often prioritize the arrest before completing the investigation, which is counterproductive. Ideally, an investigation into an alleged criminal offense should be concluded before the arrest, enabling arraignment within a reasonable time, as mandated by the Constitution. Unfortunately, this is not the case in Nigeria, necessitating a procedure that addresses the shortcomings created by ineffective criminal investigations.

Based on the above, it is clear that the ACJA 2015 contradicts the spirit of the 1999 Constitution, which assumes an accused person innocent until proven guilty. Although the Act states that a suspect should be released unconditionally after 56 days if no offense is established, it does not provide severe punishment for the detaining authority.

Furthermore, the Act reflects the fact that our law enforcement is still archaic and inefficient. In other countries, investigations are nearly complete before an arrest is made. In Nigeria, investigations often commence after the arrest, leading to a violation of the fundamental human rights of the person by unnecessarily prolonged detention.

The Federal government holds the responsibility of moral leadership. Civil society, communities, and concerned citizens must unite against this anomaly by voicing their concerns and ensuring that justice is upheld and corruption is fought. Nigeria must progress towards a more transparent and accountable future. If the rights of high-ranking individuals like Bawa can be violated with impunity and a complete disregard for constitutional standards, what hope is there for the rights of ordinary Nigerians?