By M. O. Idam, Esq.
It is correct to say that no provision of law in Nigeria has received as much publicity or public sensitization as Section 35 of the Constitution of the Federal Republic of Nigeria,1999 (as amended).
The section provides that:
“A person who is arrested must be brought before a court of law within a reasonable time.”
The proviso (sub 5), in explaining ‘reasonable time’ provides:
In subsection (4) of this section, the expression “a reasonable time” means –
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
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.
Sadly, despite the safeguards for personal liberty provided under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999, certain legislative measures have proven counterproductive, undermining—or even rendering ineffective—the potency of this constitutional protection against violations of human liberty by state actors, as exemplified in the Administration of Criminal Justice Act (ACJA), 2015.
These statutory provisions, whether by design or in operation, have the practical effect of enabling and legitimising the very abuses of personal liberty that the Constitution seeks to prevent. Consequently, the constitutional guarantee of personal liberty is, in many instances, rendered ineffective as a reliable safeguard against prolonged pre-trial detention.This subversive, ouster-oriented legislative framework is poignantly reflected in Sections 293–299 of the ACJA, 2015, which permit the remand of a suspect in custody for a cumulative period of up to 56 days without trial before a court of competent jurisdiction, ostensibly to facilitate police investigation.
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.
At this stage, the Magistrate is afforded 14 days to determine whether to extend the remand order or release the suspect unconditionally. This phase constitutes a cumulative period of 42 days. Where, after hearing the parties, the Magistrate is satisfied that continued detention is justified, the remand order may be further extended for an additional 14 days, bringing the total period of detention to 56 days.
This prolonged, legally sanctioned detention arguably amounts in my mind, to an unjustified disregard for the constitutional guarantee of personal liberty, thereby reducing the much-cherished right to be brought before a court within 24 or 48 hours (depending on proximity) to a mere cosmetic safeguard—one that is rendered ineffective where a law enforcement officer, acting in bad faith, relies on the provisions of the Administration of Criminal Justice Act to facilitate willful and prolonged detention without meaningful consequences.
CONCLUSION
It is my view, therefore, without prejudice to the provisions of section 46 of the Constitution, that the leeway for prolonged pre-trial detention created by section 296 of the ACJA, 2015 is frequently abused by law enforcement officers, thereby necessitating an urgent review of the provision or stricter regulation of its enforcement in Nigeria; otherwise, pre-trial detention under section 296, will continue to serve primarily the interests of oppressive complainants and, in some instances, overzealous law enforcement officers, to the detriment of even potentially innocent suspects.
M. O. Idam
