All you need to know about unlawful arrest (The situation with SARS in Nigeria)

What is unlawful Arrest?

Unlawful arrest seems like a contradiction of terms considering the fact that the purpose of an arrest is to forestall “illegality” i.e something unlawful, it becomes ironic that such an act can actually be unlawful.

Unlawful arrest is arrest which is done without following due procedure as prescribed by the Law.

Unlawful arrest can ground liability in itself as "the tort of unlawful arrest " or alternatively an infringement of the human right to personal liberty as enshrined in the constitution under Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act) to the effect that:

“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”

The issue of unlawful arrest has dominated social discussion in the past week, mostly based on the actions of SARS, leading to calls for the unit to be scrapped. However, there are two sides to this coin.

NB: SARS (The Special Anti-Robbery Squad) is a unit of the Nigeria Police Criminal Investigation and Intelligence Department. Its duty is to arrest and investigate assassins, armed robbers, kidnappers and people involved in violent crimes.

Two sides to the coin

The Nigerian constitution 1999 in Section 35 guarantees citizens the right to personal liberty, and on the other hand, the power to arrest in Nigeria can be exercised by certain bodies of the government to wit :

• The Police, Customs Service,
• National Drug Law Enforcement Agency,
• Civil Defence and even the Federal Road Safety Service.

These bodies have in their desire to coerce citizens into paying money before being granted bail, turned their attention to soft targets; men and women, young boys and girls arrested, in most cases, on the basis of false assumption as to the identity of their person or for no offence at all and then forced to pay some money after being transferred from one infirmary or cell to another.

In an ideal world, the advice would have been to encourage people not to pay money and instead apply for a writ of habeas corpus in a bid to enforce their constitutional right.

However, Nigerians more often than not prefer to pay the police to get their loved ones out of the police cells and holding facilities as soon as possible and after that go on with their lives making no effort to correct this wrong.

The tactics is financially rewarding for the police and even less stressful than using road blocks to raise funds for themselves and coupled with the willingness of citizens to cooperate, their business thrives.

OK the other hand, Section 35 of the constitution grants a person arrested a right to remain silent or avoid answering questions until he/she has consulted with a lawyer or a person of his choice, and a right to be informed of the offence for which he/she has been arrested for within 24 hours and also a right to be taken to court within 24/48 hours of arrest as the case maybe.

The truth is that Mr. John might not be able to stop SARS from unlawfully arresting him and bundling him into their vehicle but he can prevent Mr. James from suffering a similar fate if upon his release from prison he relentlessly seeks compensation and a public apology from the Police as enshrined in our constitution, he can achieve this by getting a lawyer, or approaching the Legal Aid Council if he can't afford one.

The man dies in every person who keeps silent in the face of tyranny, and if the argument on the other side is that no case has been found where a person relentlessly and doggedly fought for the recognition of his right to personal liberty and was successful then that argument does not appeal to me in the least.

Some things you must note if ever you get unlawfully arrested

• Bail if free
• When being questioned you must have your lawyer present - sec. 6(2)(a) ACJ 2015
• Upon any arrest you are liable to remain silent - sec. 6 ACJ; sec. 35(2) 1999 Constitution.
• You shouldn't be subjected to torture or unlawful treatment - sec. 8 ACJ; sec. 34 1999 Constitution
• Upon arrest, suspect must be charged to court immediately - sec 32 ACJ
• Upon arrest, arresting police officer must state clearly the reason for arrest - sec. 6 ACJ.
• Police cannot unlawfully search your phones --- Any suspect innocent till proven guilty - sec. 36(5) 1999 constitution.
• No one can be arrested in lieu of another.
• A person unlawfully arrested is entitled to compensation and public apology - sec. 35(6) 1999 constitution.

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Let me conclude with this amazing quote by Lord Denning C. J

"If we never do anything which has not been done before, we shall never get anywhere. The police will continue to infringe on our rights while we continue to patronize their business. The law will, in other words, stand still while the rest of the world will go on, and that will be bad for both."

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