3.1 Introduction
Human rights, as we know them today, assumed
formidable dimensions in the Post-World War 11 years, catalyzed by the desire
of peoples and nations to redefine, reassert and restore the intrinsic worth
and dignity of man after the bitter ravages and savagery of that war. This
desire found expression in concrete terms on December 10, 1948 when the General
Assembly of the United Nations Organization (UNO) adopted the Universal Declaration
of Human Rights.
However, the philosophical foundations of human rights
are traceable to the Natural law Theories of the early times1. In their view, Nature endowed man with
certain rights which protect and preserve the sacredness of the human person as
inviolable, equal to his fellow man, free and independent. The Natural law
Theory emphasizes the universal nature of the rights of man. As Niall MacDermott
puts it:
Human rights are part of the common heritage of all
mankind without discrimination on grounds of race, sex, religious or other
differences. These rights, common to all mankind, have a long history many of
them finding their origin in religious teachings. But now, in our lifetime,
they have been formulated more fully than ever before and agreed to by all peoples
from all parts of the world.2
Nigeria’s fundamental human rights provisions3 are essentially civil and political in
nature apparently on the recommendation of the Willink Commission on Minorities.4 The other categories of rights are
represented under the Fundamental Objectives and Directive Principles of State
Police5 which are however non justiciable6.
Unfortunately the menace of holding charge has devastating
consequences on the fundamental human rights of suspects. The consequences have
corresponding effects on Nigeria’s criminal justice system and therefore make
the call for far-reaching reforms, an absolute necessity. Thus, this chapter
will analyze the affront of holding charge to the accused rights to personal
liberty, fair trial within a reasonable time and presumption of innocence etc.
3.2 Meaning of Human Rights
The concept of human rights, like most juristic
concepts, evades an apt definition. According to Prof. Nwazuoke7, one point of major agreement, is that
the addition of the adjective ‘human’ to rights indicate that the rights in
question belong solely to human beings, and all that is needed to have them is
human nature. It is on this basis that they have been described as inalienable8.
In 1945, the nations of the world realized and
expressed in the Charter of the United Nations9, that the future peace of the world depended
on the guaranteeing to every man, woman and child of certain fundamental human
rights and freedoms. In a succession of Declarations and Charters since then,
on almost every continent upon the globe, those rights and freedoms have been
enshrined as among the most precious aspirations of the people.
Human rights include (but are not limited to those
civil and political rights, which are recognized and protected in the domestic
(constitutional) jurisprudence of most modern nations10. Civil and political rights are
essentially conceptualized as checks on the abuse of state power, and include
the rights to privacy, free movement, personal liberty, free association, equality
before the law etc.
Human rights have been described by the Naturalist School
of jurisprudence as inalienable and proceeding from the law of nature and not as
a gift of any civil authority.11 The philosophical
foundations of human rights are traceable to the Natural Law Theories of the
early times. In their view, nature endowed man with certain rights that protect
and preserve the sacredness of the human person as inviolable, equal to his
fellow man, free and independent. The Natural Law Theory emphasizes the
universal nature of the rights of man. As Niall MacDermott puts it:
Human rights are part of the common heritage of all
mankind without discrimination on grounds of race, sex, religious or other
differences. These rights, common to all mankind, have a long history, many of
them finding their origin in religious teachings. But now, in our life time,
they have been formulated more fully than ever before and agreed to by all
peoples from all parts of world.12
It follows from the above, that human rights are the
creation of nature. There are right that every individual irrespective of race,
religion, ethnic group, sex or disability have been endowed by nature. It is a
gift of nature and protected by the constitution. Chapter 11 and IV of the
constitution guaranteed them13Prof.
Osita Eze defined human rights as:
Demands or claims which individuals or groups make on
society, some of which are protected by law and have become part of the lex leta,
while others remain aspiration to be attained in the future14.
The apex court had also defined it in the case of Ransome Kuti V.
A. G. Federation15. Per Kayode Eso JSC (as he then was) when
he said that human right:
Is a right which
stands above the ordinary laws of the land and which is in fact antecedent to
the political society itself. It is a primary condition to a civilized
existence and what has been done by our constitution since independent is to
have these rights enshrined in the constitution so that the right could be
immutable to the extent of the non-immutability of the constitution itself.
Fundamental rights are rights derived from natural or
fundamental law. In Igwe V. Ezeanochie16,
it was held to be universal in the sense that all people have and should enjoy
them and to be independent in the sense that the exist and are available as
standards of justification and criticism whether or not they are recognized and
implemented by the legal system or officials of a country. The moral doctrine
of fundamental rights aims at identifying the fundamental prerequisites for
each human being leading a minimally good life. The fundamental rights law in
Nigeria is contained, inter alia, in
two major documents. These are the 1999 constitution of the Federal Republic of
Nigeria and the African Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act.17
The statute books gave protection to those rights
written in there and also provide for their due enforcement. Thus, if any
person fells that his or her rights have been breached or contravened by any
person or authority, such person is allowed to apply in the high court of the
state for redress.18
Regrettably, the activities of the police and
magistrate courts are delimiting these rights from the citizens without a due process
of law, with the Cankerworm of arbitrary arrest, detention and other forms of
unlawful act known as “holding charge”. Many persons arrested and detained for
mere suspicion of having committed criminal offence are in different prisons
and police custody without due consideration to the law.
Awaiting Trial Persons (ATPS) are a special category
of prisoners. They have not been convicted. Nevertheless, they suffer the
inconvenience and dehumanization
That goes with
conviction. The predicament of the average ATP in Nigeria must be considered
against the backdrop that the prison authorities make little or no preparation
for him and therefore make him susceptible to varying degrees of human rights
abuses. It is in the light of the foregoing that this research considers the
significant impact unlawful detention – awaiting trial has on the fundamental
rights of persons who, under the law, are mere suspects.
3.3 The Right to Personal Liberty
Right to personal liberty is perhaps one of the most
cherished of all rights, probably next in importance to the right to life. Professor
Stone has well written that:
One of the hallmarks of a free society is the ability
of its citizen to go about their business without the need to explain to anyone
in authority what they are doing, and without the fear that they may be subject
to arbitrary challenge or arrest.19
According to Dr. Okpara, Okpara,20
every person no matter his or her condition in life views his liberty or
physical freedom as a priceless attribute as a human being created in the image
of God himself with rational possibilities. Lord Denning in a general sense,
defined right to personal liberty as:
“The freedom of every law-abiding citizen to think
what he will, to say what he will on his lawful occasions without let or
hindrance from any other persons.”.21
The above statement must not be seen as entirely
descriptive of personal liberty as it appears not to recognize the limitations
on individual rights to personal liberty. The following comments of Justice
Pius Aderemi22
attempts to achieve the balance required in formulating an acceptable
definition of the right to personal liberty:
Freedom is no doubt the greatest gift or heritage of
man. Omnipotence created man and accorded him with divine freedom. Man are born
free with liberty to think what he will, to say what he will and to go where he
likes, all in a lawful manner without let or hindrance from any other person,
private or governmental authorities. It therefore follows that generally,
detention of a man by a fellow man is a violation of the law of God and man. I
am not oblivious of the fact that they are checks and balances to the series of
freedom given to man. To the extent to which a man must not do his things in a
way calculated to injure or adversely affect the exercise of the freedom of
another man, his own freedom is limited….
From
the above therefore, right to personal liberty, is the right not to be
subjected to imprisonment, arrest and any other physical coercion in any manner
that does not admit of legal
justification.23
In Liversidge V.
Anderson,24 Lord Atkin said that
“in English law every imprisonment is prima
facie unlawful, and that it is for a person directing imprisonment to
justify his act.”
The right to personal liberty is prescribed under
section 35 (1) of the constitution as follows;
1. 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:
(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
fulfillment 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 such
extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) 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 case or treatment or the protection of the community;
(e) 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:
Provided 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.
Similarly, Article 6 of the African charter on Human
and peoples’ Rights25
provides that:
Every individual shall have the right to liberty and
to the security of his person. No one may be deprived his freedom except for
reasons and conditions previously laid down by law. In particular, no one may
be arbitrarily arrested or detained.
Subsumed in the
personal liberty provision are other rights of a custodial detainee. These
include the right not to be in custody awaiting trial for a period longer than
the maximum period of imprisonment prescribed for the offence26, right to silence,27 rights to be arraigned within a reasonable
time28.
The deprivation of personal liberty is unlawful except
in the specified cases, and even in the specified cases, it is still unlawful
unless law specifically authorizes it. With the sanction of law enacted by the
legislature, five types of detention are permitted under the constitutional
guarantee of personal liberty, namely protective, corrective custody, detention
ordered by a court for non-compliance with a court order, detention in connection
with the commission of a criminal offence, preventive detention pursuant to
conviction and sentence by a court for a criminal offence.29
Thus, detention is constitutionally permitted when the
law in the case of a person reasonably suspected of having committed a criminal
offence, authorizes it. But, a person so detained must be brought before a
court of law30 within a reasonable time.31 It has been argued that persons
detained under holding charges are held for the purpose of being brought before
courts in execution of an order of court. But the decision in Shola Abu and 349 Ors v. Commissioner
of Police, Lagos State and Ors32 has however punctuated this
argument.
According to Justice Olokooba,33
Such orders by magistrates’ courts have however been held
unconstitutional above being ultra vires the magistrate…. In other words the
applicants have been held not to have been detained in accordance with a
procedure permitted by law. They were ordered to be remanded pursuant to a void order. Where this is the case, the
order the court ought to make is an order releasing the suspect…
Justice Olokooba’s clear distinction between detention
pursuant to a valid order of court and that following an invalid order is
instructive in view of the persistent resort to section 35 of the
constitution to justify detention under holding charges. Interestingly, the Shola Abu’s case also considered propriety
of detention for the purpose of being brought before a court upon reasonable suspicion
of having committed a criminal offence and dealt with it as follows:34
It is the duty of the respondents therefore to prove
that applicants are being detained for the purpose of being brought before a
court upon reasonable suspicion of their having committed criminal offences. The
emphasis here is on “reasonable suspicion” it is also necessary to show that that
is the real purpose for which the applicants are being detained. Arresting a
citizen, charging him before a court of incompetent jurisdiction in the
indeterminate future would not appear to me to demonstrate the reasonableness
of the suspicion pursuant to which he has been deprived of his liberty.
The judge further maintained that35.
To demonstrate that a citizen is detained pending
being brought before a court of law upon reasonable suspicion of a criminal
offence, those who claimed to have reasonably suspected him of the offence and
apprehended him for that reason must demonstrate the reasonableness of their
suspicion by arraigning him before a court of competent jurisdiction, where the
reasonableness thereof will tested within a reasonable time.
This researcher cannot agree more with the learned
judge. It remains to add that section 35 (1) of the constitution and Article 6
of the African Charter on Human and Peoples’ Rights guarantee the right to
liberty and disclose exceptions but do not contemplate the power of magistrates
to make remand orders as contained in Section 264 of the C. J. A. of Lagos State36.
As a matter of fact, Article 6, affirms that… no one may be arbitrarily
arrested and detained. Consequently, a conflict exists between S. 264 of C. J.
A. and S. 35 (1) of the constitutions. Under the principle of supremacy of the
constitution as provided in S. 1 (3) of the constitution, the courts have power
to declare any provision of any law which is in conflict or inconsistent with
the provisions of the constitution whether directly or indirectly void.37 By and large, it should be noted that
the liberty of the individual person is central to all the advantages of a
civilized society. To therefore deprive an individual of his personal liberty
on whatever guise without just cause is a grave step in the process of
administration of justice.
3.4 The Right to Fair Trial within Reasonable
Time
Notwithstanding the glittering provisions of Nigerian
law on the speedy administration of criminal justice in Nigeria, the reality is
that the law is honoured more in the breach than in the observance. The chorus ‘justice
delayed is justice denied’ has become a senseless nuisance to most of the
persons and institution which are intimately connected with the administration
of justice in our country and a saddening reminder to those directly affected,
of a totally bankrupt system of administration of justice. This is of course
extremely sad, since that chorus is absolutely true.38
Section 36 (4) of the constitution provides: Whenever any
person is charged with a criminal offence, he shall, unless the charge is withdrawn,
be entitled to a fair hearing in public within a reasonable time by a court or
tribunal, provided that-
(a) a court
or such a tribunal may exclude from its proceeding persons other than the
parties thereto or their legal practitioners in the interest of defence, public
safety, public order, public morality, the welfare of persons who have not
attained the age of eighteen years, the protection of the private lives of the
parties or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interests of justice.
(b) If any
proceedings before a court or such tribunal, a minister of the government of
the federation or a commissioner of the government of a state satisfies the
court or tribunal that it would not be in the public interest for any matter to
be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be
heard in private and shall take such other actions as may be necessary or
expedient to prevent the disclosure of the matter.
Similarly Article
7 (1) (d) of the African Charter Provides
that:
Every individual shall have the right to have his
cause heard. This comprises: (d) they right to be tried within a reasonable time
by an impartial court or tribunal.
The above provisions as well as Article 10 of the
United Nations Universal Declaration on Human Rights39 (UDHR) guarantee fair trial.
Article 10 of the UDHR provides: Every one is entitled
in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
The right to fair trial within reasonable time40 embodies two important components
namely, the right to fair hearing and the right to speedy trial. It is
imperative to note that the two components differ fundamentally. While trial is
all encompassing, that is, from arraignment to the conclusion of the trial
culminating in the announcing of the decision of the court or tribunal; fair
hearing entails merely from arraignment to the putting of the case for the defence.41
What emerged form the brief analysis above is that I
am more concerned with fair hearing under this head even though neither of the
rights is guaranteed the suspect in the final analysis. Suspects held under the
holding charge are not properly arraigned considering that a critical ingredient
of the arraignment process is always missing namely, the plea. However, when
examined thoroughly, the right to fair hearing gives rise to the following
component rights, a few of which become relevant to the current discourse-
right to presumption of innocence; 42right
to the informed promptly and in detail the nature of the offence charged in the
language which the suspect understands;43
right to be given adequate time and faculties for the preparation of his defense44; right to defend himself in person or
by counsel of his choice,45 right
to examine in person or by his legal practitioner witnesses called by the
prosecution or by the defence46.
The purposes of bringing a suspect before a court of
competent jurisdiction is to enable the court decide the plausibility of
releasing the suspect. Trial within reasonable time is constitutionally stipulated
because delay impairs the ability of an accused person to defend himself in
view of the fact that a vital witness may have died in the interval or the reelection
of the facts by other witnesses may have become blurred.
The duty of ensuring that the right to fair hearing is
enjoyed falls squarely on the shoulders of all courts and tribunals established
by law and constituted in such a manner as to ensure their independence and
impartiality. The courts should therefore refuse recognition to the holding
charge practice, where accused persons spend more years undergoing trial than
even the maximum period of imprisonment, stipulated under the law, to which
they may have been sentenced, if eventually convicted, is most abhorrent and
unacceptable in a civilized society governed by laws. If approximates to grave injustice
and flagrant violation of human rights to subject an accused person to a long and
interminable trial. It inflicts severe harm and damage to the dignity and
mental well being of the affected persons, on whom the charge is made to hang on
precariously and menacingly, like the mystical sword of Damocles.
3.5 The Right to Presumption of Innocence
A rebuttable presumption of law refers to the
inference drawn from specific facts, which are conclusive until disproved by
evidence to the contrary47. The
concept of presumption of innocence is a rebuttable presumption of law.
Presumption of innocence is exemplified in section
36(5) of the constitution, as follows:
Every person who is charged with a criminal offence shall
be presumed to be innocent until he is proved guilty.
Article 7 (1) (b) of the African Charter similarly provides:
Every individual shall have the right to have his
cause heard. This comprises:
(b) The right to be presumed innocent until proved
guilty by a competent court or tribunal.
The International Covenant on Civil and Political
Rights (ICCPR)48 and UDHR equally has
provisions recognizing the presumption of innocence in favour of persons
charged with criminal offences. Accordingly, Article 14 of ICCPR provides:
Everyone charged with a criminal offence shall have
the right to be presumed innocent until proved guilty according to law.
Article 11 of the UDHR also provides:
Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to law in public trial at
which he has had all the guarantees necessary for his defence.
The import of the above provisions is that there is
general presumption of innocence in favour of an accused person unless the
contrary is proved in a court of competent jurisdiction. Section 145 (2) of the
Evidence Act49 states that:
Whenever it is directed by this Act that the court
shall presume a fact, it shall regard such fact as proved unless and until it
is disproved.
The burden of proving the guilt of an accused person rests
on the prosecution and the standard of proof is beyond reasonable doubt.50 In the case of Goni V. Bornu Native Authority51
the court held that “it is not the duty of the accused to prove his innocence,
it is the duty of the accuser (prosecution to prove his guilty”. This is
coterminous with the case of Bhai Chaggan
Bhai V. State of Gujurat52 where
the Indian Supreme Court held inter alia
that:
It is a fundamental principle of criminal jurisprudence
that an accused is presumed innocent. Therefore, the burden lies on the prosecution
to prove the guilt of an accused beyond reasonable doubt… this general burden
never shifts and it always rests on the prosecution.
In Nigeria, there are many instances in which accused
persons are incarcerated in some prisons for very long periods of time without
trial. Where an accused person is detained for about two years without trial,
would that contravene the presumption of innocence?
In
the case of Musa and 7 ors V. C.O. P53 the appellants were arraigned before
the upper Area court, Kabong, Jos, upon allegations in a First Information
Report of commission of several offences including culpable homicide punishable
with death. The appellants were detained for about 22 months. The Upper Area
Court refused their application for bail on the grounds that it lacked the
jurisdiction to do so. The High Court also dismissed their application for bail.
On appeal, the Court of Appeal held inter
alia, that the continued detention of the appellants in prison custody for
22 months is “contrary and contradictory to the age long existing principle of
presumption of innocence enshrined in section 36(5) of the 1999 constitution” Obguagu54 J. C. A. held as follows:
... it is now settled, that it is better for one
hundred accused persons to go free, than for one person to be punished for an
offence he did not commit or had no hand in it’s committal. That is why the
provision in section 36 (5) of the 1999 constitution that every person who is
charged with an offence shall be presumed innocent until he is proved guilty
and this will be, beyond reasonable doubt. Happily, sentiment, have no place in
our courts.
Thus,on the authority of Musa V. C.O.P.55 it
is submitted that the detention of an accused person for two years, without trial,
is a gross violation of the presumption of innocence.56
It should be noted, that the right to bail is essential
to the realization of the principle of presumption of innocence provided by the
Nigerian constitution and the African Charter on Human and Peoples’ Right. Where
the right of an accused person to bail is arbitrarily refused by the court, the
provision of presumption of innocence under Nigeria law would be rendered otiose.57 Thus, in the case of Obekpa V. C.O.P58 the court observed that:
It is a constitutional privilege which (an accused
person) is entitled to under the constitution… unless the right to bail or
freedom before conviction is preserved, protected and allowed, the presumption
of innocence constitutionally guaranteed to every individual accused of a criminal
offence would lose its meaning and force.
It follows from the above that the provision of
presumption of innocence under Nigerian law can only be efficacious if accused
persons awaiting trial are admitted to bail. In the case of Saidu V The state,59
Obaseki, J. S. C. (as he then was) held as follows.
It does not give the court any joy to see offenders
escape the penalty they richly deserve but until they are proved under the
appropriate law in our law court, they are entitled to walk about in our
streets and tread the Nigerian soil and breath the Nigerian air as free and
innocent men and women.
It is apposite to note that the days when courts are
inclined not to grant bail to accused persons charged with serious criminal
offence, such as capital offences, are over in contemporary Nigeria. In the
relatively recent case of Adamu Suleiman
and Ors V. C. O. P. Plateau state,60
the Supreme Court held, inter alia,
that: “The court can, in appropriate case,
grant bail to a person accused of murder.”
The Court per
Niki Tobi.61 J. S. C., held that the
right of bail, a constitutional right, is contractual in nature. The effect of granting
bail is not to set the accused free for all times in the criminal process but
to release him from the custody of the law and to entrust him to appear at his
trial at a specific time and place. The object of bail pending trial is to
grant pretrial freedom to an accused….
According to
Paul Adole Ejembi, 62
where an accused person is tried in a court of competent jurisdiction and is
discharged and acquitted, the right to presumption of innocence becomes
irrebutable, subject to appeal and ought to be given full legal effect. Little
wonder the Supreme Court in the case of Onasanya
V. The state63 stated that:
… where there is absolutely no evidence against an
accused person at the end of the prosecution’s case, the court is under a legal
obligation to discharge him at that stage. To do otherwise would be tantamount
to placing upon the prisoner the onus of establishing his innocence. This is a
contravention of the presumption of innocence enshrined in the constitution.
It may be deduced in the light of the foregoing, that
presumption of innocence presupposes that a person accused of an offence no
matter the gravity of the offence, is as innocent as a dove, until the contrary
is proved, and such an accused person ought to be treated as an innocent person
by all and sundry.
Also, suffice to say here is the fact that the right to
presumption of innocence begins at the time of suspicion for crime, and runs
through arrest, preferment of charges, and trial. Therefore, Section 264 of the
C. J. A of Lagos State,64
violates the presumption of innocence by permitting prolonged detention prior
to charge when the case against the suspect has not been settled. The pre-trial
process must be premised on the goals of fairness and minimal error. The
principles of due process require that a judicial determination in the form of
bail hearing should precede the deprivation of liberty at the pre-trial stage. The
presumption of innocence should guide the fact finder in that determination and
prevent inferences of guilt flowing from the mere fact of arrest.
3.6 The Right to Dignity of Human Person
The dignity to the human person is rated very high in
comparison with other rights. Dignity is perhaps the most fundamental attribute
of an individual’s personality and this makes it necessary that it should be
protected in all circumstances.
Section 34 (1) of the constitution provides:
Every individual is entitled to respect for the
dignity of his person and accordingly.
(a) No
person shall be subjected to torture or inhuman or degrading treatment;
(b) No
person shall be held in slavery or servitude;
(c) No
person shall be required to perform forced or compulsory labour.
Similarly, Article 5 of the African Charter of Human
Peoples’ Rights provides that:
Every individual shall have the right to the respect
of the dignity inherent in a human being and to the recognition to his legal
status. All forms of exploitation and degradation of man particularly slavery,
slave trade, torture, cruel, in human or degrading punishment and treatment
shall be prohibited.
The wordings of these provisions are clear and
unambiguous and the law is that they should be construed and given their
literal interpretation.65
Unfortunately, the above right is respected more in
breach than in adherence, when viewed in terms of the deplorable living
conditions in our prison, and the manner the law enforcement agencies treat suspects.
For in stance, in the case of Mr.
Kingsley Ikonna V. Commissioner of
Police, Lagos State and 4 ors,66
the applicant was arrested by some policemen who allegedly raided a hotel to
arrest a robbery suspect. In a bid to obtain a confessional statement, the
applicant was then taken to a detention facility and subjected to physical abuse
and torture by the policemen. The court held inter alia: The fundamental rights of citizens are constitutionally
guaranteed in Chapter IV of the 1999 constitution, the court has a duty to
protect these constitutionally guaranteed rights. In the instant case, the
applicant was incarcerated and subjected to severe torture. There is also
evidence that the applicant was unlawfully arrested and no attempt has been
made by the respondents to prove the lawfulness of the arrest and detention. Therefore,
the arrest and detention of the applicant as well as his torture and shooting
while in detention and his continued incarceration are flagrant violations of
the fundamental rights of the applicant as protected by the provisions of
sections 34 and 35 of the constitution and are therefore, illegal and unlawful.
Also, in the case of Mogaji V. Board of Customs and
Excise,67 Adefarasin C. J. held that it is a violation of the
constitutional prohibition of inhuman or degrading treatment to organize a raid
with use of guns, horse whips, tear-gas, and strike or otherwise injure
custodians of such goods. In Alaboh V.
Boyles and Anor68, the beating,
pushing and submersion with the applicant’s head in a pool of water by the
first respondent was held to constitute inhuman and degrading treatment.
A prisoner, as a result of being in prison, is
particularly vulnerable to arbitrary and unlawful action. Those who are
responsible for his imprisonment should be subject to the scrutiny and control
of, and in particular, the ordinary courts of the land.69
Judge Tumin’s postulation is more appropriate for
Nigeria considering the prejudice that follows imprisonment. The prisoner, having
been neglected by society and the prison system must find some solace in the
law and the courts. Accordingly, an International Legal Instrument70 provides that all persons under any
form of detention or imprisonment shall be treated in a human manner and with
respect for the inherent dignity of the human person.
It should be noted that respect for human dignity is a
critical issue in most Nigerian prisons. This is because the fact of imprisonment
appears to offer some incentive to impunity for security officers. Torture of
prison inmates in Nigeria is the norm than the exception. For instance disrespect
for the dignity of a prisoner’s person manifest itself in several aspects of
prison life notably classification and housing of prisoners.
Rule 8 of the United Nations Standard Minimum Rules
for the Treatment of Prisoners71 to
which Nigeria is a signatory provides as follows:
“The different categories of prisoners shall be kept in
separate institutions taking into account of their sex, age, criminal record, the
legal reasons for the detention and the necessities of their treatmen”72
However,
in Nigeria, segregation of prisoners is observed more in breach despite the
express provisions of Section 2 (4) of the Prisons Act73
to that effect.
Thus,
the Former Director of the Nigerian Prison Service, Mr. Lily Ojo, admitted that
there is a problem when he said:
“The problem of overcrowding has not only imposed
strains on prison management but has rendered the concept of classification
meaningless in our prisons”74
According
to D.U. Ekumankama,75 the
direct consequences of overcrowding and or congestion of prisons is that even
good managers are rendered helpless as there is nothing they can do on their
own to solve the problem. The position as reported by the Nigeria law Reform
Commission in 198376 is
that offenders are locked up under inhuman conditions often with 100 (one
hundred) inmates occupying a cell that was meant for at most 20 persons. The prison
cells are overcrowded and without good ventilation, and the building erected during
the colonial era has no room for extension.
1 See generally Osita Eze: Human Rights in Africa:
Some Selected Problems. (Nigerian Institute of
International Affairs, Lagos,
in co-operation with Macmillan Nigeria Publishers Limited, 1984). Ashild
Samnoy: Human Rights as International Consensus:
The Making of the Universal Declaration
of Human
Rights. (Thesis for the Candidate of
Philosophy, Department of History university of Bergen; May, 1990).
2 Naill
Macdermolt: Opening Address to the International Conference on Human Rights
Education in Rural
Environments, Lagos, Nigeria,
1985. P. 10. For other contributions along this line, see Chukwudifu
Oputa:
Human Rights in the Political and Legal
Culture of Nigeria,
at the Second Idigbe Memorial Lectures, 1986,
P. 45.
Chukwuweike Idigbe: Fundamental Rights
Provisions of the Constitution, at the all Nigerian Judges
Conference Papers,
1982, (London, Sweet and Maxwell, 1983) P. 41. Ransome Kuti v. Attorney General of
the Federation (1985) 2 NWLR (Pt. 6)
211., M. Cranston: “Human Rights Today”, quoted from A.J. Mitre:
“Should we
Have a Bill of Rights? “(1977) 40 MLR 389 at 392.
3 Chapter IV
of the 1999 Constitution (as amended) (herein after referred to as the
constitution)
4 Ojo, A., Fundamental Human Rights in Nigeria;
The 1963 and 1979 Constitutional Provisions’, Nigerian
Journal of
Contemporary Law (1977-1980); p. 118.
5 Chapter 11
of the Constitution.
6 By virtue
of Section 6(6) (c) of the Constitution
7 A.N.
Nwazuoke Introduction to Human Rights Law
(Abakaliki, Copycraft In’t Ltd, 2006) P.7.
8 Ibid.
9 The League of Nations was the Precursor of the United Nations
Organization.
10 See
Chapter 1V of the Constitution.
11 Thomas
Jefferson Cited in Henry J. Steiner and Phillip Alston (2000) International Human Rights in
Context, 2nd Edition, Oxford, P. 325.
12 Niell
MacDermott: Opening Address to the International Conference on Human Rights
Education in Rural
Environments, Lagos-Nigeria, 1985, P. 10.
13 Though
Chapter 11 is non- justiciable.
14 Osita
Eze, Human Right in Africa:
Selected Problems (Lagos: Macmillan, 1984) P.5.
15 (1985) 2
NWLR (pt. 6) 211 at 230.
16 (2010) 7 NWLR (Pt. 1192) 61
17 Cap. A 9
L.F.N-2004
18 See S.
46(1) & (2) of the Constitution.
19 Prof.
Richard Stone, Textbook on Civil
Liberties, Blackstone Press Ltd, London, 1994, P. 29.
20 Dr Okpara
Okpara Op.cit P. 139.
21 Lord Denning, Freedom Under The Law (1949) P. 5.
22 Eyu V.
State (1988) 2 NWLR
(Pt. 78) 602 at 626, paragraphs G-H.
23 E.C.S.
Wade, Law of the Constitution, 10th
ed.; chapter 5, pp. 207-208.
24 (1942) A.C. 206
25 (Ratification and Enforcement) Act,
Cap. A 9 L.F . N 2004. The African Charter is part of the laws of
Nigeria and therefore should be
accorded equal weight with it, regard being had to international
obligations
Nigeria has assumed under the
Charter. See Ogugu v. State (1994)
9NWLR (pt. 366) ; Abacha v. Fawehinmi
(1996) 9 NWLR (Pt. 475) 710 at 745.
26 This is
perhaps the most observable lapse in the holding charge Phenomenon. Suspects
are kept awaiting
trial for
periods much longer than they would have remained in prison custody if they
were convicted for the
alleged
offences.
27 This is
the presumption against self-incrimination that is constitutionally recognized
under Section 36(1) the
Constitution.
28 Section
36(4) of the Constitution, prescribes two months for persons under custodial
arrest and three months
for other
cases. In other words , no person shall be in detention without arraignment for
longer than three
months.
29 Nwabueze,
B.O. The Presidential Constitution
of Nigeria United Kingdom, C. Hurst
& Co. (1982).
30 Court of
law must be interpreted to mean a court having jurisdiction to try the offence
for which the accused
person was
arraigned before it.
31
Reasonable time is defined in section 36(4) of the constitution
32
Unreported Suit no. IKD/M/18/2003, a decision of the Ikorodu High Court
delivered on the 28th of July
2004.
33 Ibid, P. 26 of the ruling.
34 Ibid, P. 27 of the ruling
35 Ibid.
36 And other
States Laws that has similar provisions.
37 See Ibidokun
v. Adaralode (2001) 12 NWLR (pt. 727) 268 at 312.
38 T.A. Aguda, “The Challenge for Nigerian Law and the Nigerian Lawyer in the 21st
Century”, a Nigerian
National
Merit Award winners Lecturer, Presented on September 14, 1988, at 3-4.
39 (1948)
General Assembly Resolution 2174 (111).
40
Reasonable Time is the Shortest time a cause or matter ought to be heard and
determined having regard to
the dictates
of the law and the requirement of fair hearing. Beyond the said period,
inordinate delay, which
vitiates fair
hearing sets in. See Obaseki A.O. (Justice). “Defeating Delay-Case Flow Management; A
keynote
Address Delivered at a Seminar for Legal Practitioners Organized by continuing
Legal Education
Association
of Nigeria (CLEAN) in Lagos, Nigeria
on March 16, 1994
at P. 3.
41 Adeyemi,
A.A., Criminal Justice Administration in Nigeria
in the Context of the African Charter on Human
and peoples’ Rights: in Kalu, A. and
Osinbajo, Y. (eds.) (1992) Perspectives on Human Rights. PP. 121-141
at 129.
42 Section
36(5) of the constitution. This right is discussed latter in this work.
43 Ibid, Section 36(6) (a)
44 Ibid, Section 36(6) (b)
45 Ibid, Section 36(6) (c)
46 Ibid, Section 36(6) (d)
47 Bones
(ed.) et al Osborn’s concise Law
dictionary 9th edition London.
Sweet and Maxwell, 2001 p. 297.
48 The ICCPR
entered into force on 23rd march 1976.
49 Evidence
Act 2011 (amended)
50 Ibid. section 135(1(. See also Musa and Anor v. COP (204) 9 NWLR (Pt. 879) 483 at P. 502; Fayemi v. Oni
(2009) ALL
FWLR (Pt. 493) 1254.
51 (1957) NWLR 40 at 42.
52 (1964) SC 1563.
53 Supra, Pp. 498-499 Para H-F and P. 505 Para A-B Ratio 2.
54 Ibid P. 502
55 Supra.
56 See also Nwankwo & Ors v. The Queen (1959) 2
S.C.N.L.R. 675. (The accused persons or at least some of
them, were
charged to court a year after their arrest and detention by the police).
57 Paul A.E.
The Legal Effect of the Principle of Presumption of Innocence under Nigerian
Law: ‘The Rights
of
an Accused Person in Perspective’. Human Rights Review: An
International Human rights Journal 2010.
vol. 1, No 1
P. 319.
58 (1980)
INNLR 113.
59 (1982) 4
SC 41
60 (2008) 8
NWLR (Pt. 1089) P. 298 at PP. 324-327. para A-A.
61 Ibid P. 322 paras D-G.
62 Paul A.E. Op.cit.
P. 321.
63 (1979) 6
S C 79.
64 And other
similar States Laws that permits remand orders by Magistrate on Indictable
Offences.
65 See the
case of Triana Ltd v. Universal Trust Bank PLC (2009) 12 NWLR (Pt. 1155)313.
66 (2010) 12
N.M.L.R. (Pt. 1) 365.
67 (1982) 2
NCLR 552 Pp. 561-562.
68 (1984) 3
NCLR 830.
69 His
Honour Judge Stephen Tumin, Prison
Disturbances April 1990: Report of an Enquiry (CM 1456, 1991)
part 2.
14-294.
70 United Nations Body of Principles for
the Protection of All Persons under Any Form of Detention or
Imprisonment, Principle 1-United Nations
Document A/43/49 (1988). Principle 6 further declares that
“Cruel, inhuman or degrading treatment
should be interpreted so as to extent the widest possible protection
against abuses, whether physical or mental,
including the holding of a determined or imprisoned person in
conditions which deprive him, temporarily
or permanently of the use of any of his natural services, such as
sight or
hearing, or his awareness of place and the passing of time”.
71 Adopted
by the First United Nation Congress on the Prevention of Crime and the
Treatment of Offenders
held at Geneva
in 1955 and approved by the Economic and Social Council by its Regulations 663
(XXIV)
of 31st July 1957 and 2076 (LXII) of 13th May 1977.
72 In
adopting the above international regulation, the Prisons Regulations made
pursuant to the Prisons Act has
in its Sections 15,16 and 17 made similar
provisions.
73 Prisons
Act Cap. P.29 L.F.N 2004.
74 See Lily
Ojo, “The State of the Nigerian Prisons” being a paper
delivered at the National Seminar on Prison
Reform June 18-20, 1990. P.7.
75 Dennis
Ude Ekumankama Op cit P. 228.
76 Quoted in
“Behind The Wall” Published by Civil
Liberties Organization in August, 1996. P.1