Police arrest and incarceration are common in Nigeria for probable or non-probable cause, reasonable or non-reasonable suspicion, with or without investigation. However, as a citizen, it behooves you to know your rights and guard them jealously against infringements.
Note that one does not have the right to resist arrest. The arrestee may not have that right even if the arrest is illegal.
There are constitutional safeguards to guard against violation of your fundamental rights when you are arrested. These are contained in sections 34-36 of the constitution of the federal republic of Nigeria 1999 as amended. They are:
- When a person is arrested and accused of a crime, he must promptly be informed in detail, and in the language he understands, the offense for which he is being arrested. This right is sacrosanct. An interpreter must be provided for him at the police custody or even at the court. This right is contained in section 36(6) of the CFRN 1999. Where an accused person makes a statement without understanding the charge, that statement is null and void.
- You have a right to be arrested without the use of force. The police have no right to beat any person while making arrests. To enforce compliance does not involve beating and pummeling the suspect especially when the person is not resisting arrest or after arrest.
- The accused person has a constitutional right to silence. You have the right to remain silent and the right to an attorney. Invoke your rights! Say, “I wish to remain silent and I would like to talk to a lawyer.” Once you have invoked your rights, be quiet. People often say, “I don’t want to talk” and then they start talking, say something incriminating, and it gets used against them in court. You can tell the police your name and basic information, such as your address and birth date, but do not tell them anything else. This right continues even during the trial. In fact, you have the right to remain silent throughout the trial, leaving the burden of proving your guilt on the prosecution.
- The arrested person is entitled to bail with or without conditions even if further proceedings will be brought against him if he is not charged to court after 48 hours.
- When you are charged with a crime, note that you presumed innocent, until the contrary is proved, as provided in Section 36 (5) CFRN 1999. It is not for you as an accused person to be proving that you are innocent. That burden is for your accuser, therefore, you have the right of silence throughout the trial.
- Right to dignity of the human person (right against torture, inhuman or degrading treatment); this means that you cannot be subjected to any form of torture or degrading condition while in police or prison custody. This right is contained in section 34 of the constitution.
- An accused person has the right to a counsel of his choice., as provided in Section 36 (6) C, CFRN 1999. From the point of arrest, you have the right to demand for a lawyer. Use it. Get a lawyer before making any statement to the police. It is very illegal for the police to compel you to make a statement or interrogate you without you having the service of a counsel. It is also very illegal for the police to deny you access to a lawyer.
- You have the right to be brought before a court within a reasonable time. Section 35(4) provides that an arrested or detained person shall be brought before a court of law within a reasonable time. For the first time, a reasonable time is defined under section35(5) as one day where there is a court of competent jurisdiction within a 40km radius, and in any other case, two days or such longer period, in the circumstance which the court may regard as reasonable. Note that any detention above 48 hours must be authorized by the courts.
- In any case, where the arrested person is not charged to court within two months, he is entitled to unconditional release.
- any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and here, “the appropriate authority or person” means an authority or person specified by law, as provided in Section 35 (6) CFRN 1999
- it must be noted that any lapse in the application of all the above stated constitutional safeguards could also stand as a ground for appeal against the decision of the trial Court or lower Court in cases where the accused person is charged to court.
In summary, a cumulative of all the constitutional safeguards as stated above, are expected to be allowed to an accused person during arrest and at trial. Any slight deviation from them, either jointly or separately, will render such arrest and/or trial a nullity.