POWERS, ACHIEVEMENTS AND FAILINGS OF THE NIGERIA POLICE: NEED FOR URGENT ATTENTION (2)
“The citizen who is prima facie entitled to his liberty should know why for the time being it is being curtailed. A person arrested must within a reasonable time be taken to the police station obviously to be charged and bailed or detained as appropriate. A person who is arrested or detained has constitutional rights to remain silent until after consultation with a lawyer or other person of his choice and to remain silent even after such consultation. He must be brought before a court of law within a reasonable time. Reasonable time is defined as twenty four hours if there is a court within forty kilometers and forty-eight hours or any longer time as the court may consider reasonable, if the court is over forty kilometers away”.
Last week I began an examination of issues concerning the Police in Nigeria. As I stated last week an identification and analysis of the basic powers of the Police is important to allow for a proper understanding of their roles, achievements and reasons responsible for areas of underperformance. Thus this week I will examine the powers of search and arrest.
Section 143 of the Administration of Criminal Justice Act 2015 permits a Police office, in the conduct of an investigation to apply to a court or Justice of the Peace for the issuance of a search warrant. However, Section 28(1) of the Police Act, allows a superior police officer as defined in section 12 of the Police Act i.e. an officer above the rank of Cadet Assistant Superintendent, to authorise any police officer to enter any house, shop, warehouse or other premises in order to search for a stolen property in the same manner as if he had been authorised by a search warrant. Such authority is conferred in writing, by the superior officer who will no doubt then fix himself with the burden of proving ex-post facto that he exercised this wide discretion judiciously and reasonably. The intervention of a senior police officer is obviously meant to provide a safeguard in the urgent situation when swift action is required and resort to the normal procedure of obtaining a search warrant from the court is not practicable or possible. A policeman who enters your premises on the authority of the warrant for purposes of a search is fully protected by the law even if it should turn out the search was unwarranted. Unfortunately, those in the know have long been aware that the police abuse the warrant system. It is only when an influential person becomes a victim that something is done about it.
Accordingly therefore, the Magistrate or the Superior Police Officer should satisfy himself that it is in all the circumstances right to issue the warrant and to this end should question the person swearing to the information as to sources and veracity or credibility of this information. In an area where judgment must almost always be arbitrary, great caution is required.
THE POWER OF ARREST (2)
The most significant power of the Police is the power to arrest. A lawful arrest is not a simple thing and it is often beyond the understanding of the police officer. It is vital for arrest to be accurate because it is the basis for legitimacy in exercise of nearly all the rest of the police powers such as questioning and search. Section 24 (1) of the Police Act provides that a policeman may arrest without a warrant any person whom he reasonably suspects of having committed felony, misdemeanor or a breach of the peace unless the law creating the offence directs to the contrary. This means that the officer must have in mind a definite offence, punishable under the criminal law for which a suspect can be arrested i.e. that the law creating it allows an arrest without warrant. He must then have reasonable grounds for suspecting that such definite offence has been committed or is about to be committed. The reasonableness of suspicion is determined objectively.
It may thus be beyond the pedestrian simplicity of the ordinary policeman’s mind. If the offence is actually committed in the officer’s view, he may arrest notwithstanding the provision in the enabling law to the contrary. The offence must apparently have been committed so the officer may be spared from liability for false imprisonment, should it prove that the offence was not in fact committed. A policeman may also arrest you if you are reasonably suspected of an offence and refuse to give your name and address on demand or give one which the police officer reasonably believes to be false. In which case, if this suspicion proves to be false, you must be released at once. Also a citizen who believes that a person has committed a crime may arrest him provided that he takes the person arrested to the police station in order to be charged with the offence. But he makes such arrest at his peril if it turns out to be otherwise.
For arrest to be lawful, the actual arrest must be effected in a manner that brings home to the citizen the fact that his liberty has been curtailed. Thus by Section 4 of the Administration of Criminal Justice Act (ACJA), the officer effecting the arrest must actually touch or confine the body of the suspect. And it is obvious the reason for the arrest must be communicated to the citizen in a language he understands. By section 6 of the ACJA a person arrested, except the arrest occurred in the actual commission of an offence, must be informed immediately, of the reason for the arrest.
Further, the citizen who is prima facie entitled to his liberty should know why for the time being it is being curtailed. A person arrested must within a reasonable time be taken to the police station obviously to be charged and bailed or detained as appropriate. A person who is arrested or detained has constitutional rights to remain silent until after consultation with a lawyer or other person of his choice and to remain silent even after such consultation. He must be brought before a court of law within a reasonable time. Reasonable time is defined as twenty four hours if there is a court within forty kilometers and forty-eight hours or any longer time as the court may consider reasonable, if the court is over forty kilometers away.
A person unlawfully arrested or detained is entitled by the constitution to compensation and public apology from the appropriate authority. However, objectionable events do happen at police stations. Virtually, every person arrested and taken to the police station is detained under the guise that investigation is still going on or that there is a need to search the house of the suspect. Sometimes the suspect is detained on the ground that other persons of interest are at large. Sometimes, the facts of a case may be twisted such that the complainant becomes the suspect or accused. Violations have been compounded by inexplicable refusal of some courts to grant bail or to impose onerous bail conditions.
To be continued…..
AARE AFE BABALOLASAN, CON, LL.D (Lond.), FCIArb, FNSE
