Constitutional Rights And The Police By KAINE AGARY

Nigerians Decry Impunity By SARS, Ask FG, N’Assembly To Scrap It

A few years ago, I told someone that my goal was to help improve legal literacy in Nigeria and the person scoffed at me and asked, “And then what?” Maybe it was the tone of his voice or it could have been the look on his face, whichever it was, it conveyed to me the message that there was no value in trying to improve the legal literacy of Nigerians. I was a little offended but I have to admit that some days, I feel like maybe the man had a valid point. People know what the law is, and then what? The problem in Nigeria is usually not with the lack of laws, but with the enforcement of existing laws and the accountability of those who are to enforce the laws.

In the last few weeks of 2017, the hashtag #EndSARS was trending on social media as people shared stories about the operations of the Special Anti-Robbery Squad (SARS) of the Nigeria Police. From the reports, there is little respect for fundamental rights in their operations. The police have a duty to investigate all crimes, detect offenders and arrest them. In carrying out their duties, there are constitutional rights that they must be mindful of. The Constitution of the Federal Republic of Nigeria is the supreme law of the land. It supersedes all other laws in the country.

The Constitution provides the Right to dignity of human person in Section 34(1) – in making an arrest, a suspect is not to be beaten, handcuffed, leg chained or subjected to any form of restraint except with the order of a court or magistrate or justice of peace.

Section 35 (1) is the Right to personal liberty – nobody should be unlawfully held against their will. The right to liberty may be curtailed where a person is suspected to have committed a crime or to prevent him from committing further offences. It all depends on the seriousness of the charge and the facts available to support the charge. It means that the practice of arresting a person in the place of a suspect is unconstitutional.

Section 35(2) provides for the Right to remain silent– a suspect must be informed of his right to silence until he has consulted with a legal practitioner or any person of his choice. If the suspect has no legal practitioner or cannot afford one, the officer making the arrest must inform him of his right to apply for free legal representation from Legal Aid Council.

We know that in practice, this does not happen. People are forced to make all kinds of inculpatory statements at the police station, without having access to legal advice. Upon arrest, a suspect has the right to be informed of reasons for his arrest at the earliest opportunity.

Right to be arraigned before a court of law within a reasonable time S35 (4) – a person still in detention or not entitled to bail must be tried within two months from date of arrest or detention; person released on bail, within three months – if not the persons shall be released conditionally or unconditionally (without prejudice to any further proceedings that may be brought against him) to ensure he appears for trial at a later date. Section 35(5) provides that a reasonable time is one day where a court of competent jurisdiction is within a 40km radius; two days or longer (depending on the circumstances) where no court of competent jurisdiction within 40km radius. The suspect must be taken to court or released on bail pending conclusion of investigation. The limitation on this right is in S35 (7) where suspects arrested in connection with capital offences may be detained for a longer period. Sadly, there are people in prison who have been awaiting trial for minor offences for years.

There are several remedies available to a person whose constitutional rights have been breached by the police. Such remedies include compensation and a public apology. But it takes time and money to pursue these remedies. The problem of long periods of “awaiting trial” has lingered for many years and there have been efforts to tackle the situation from within and outside the judiciary. There is a new, commendable effort by an organisation called Gavel, which is using the efficiency of technology to approach the issue. Gavel was set up to primarily address these breaches of constitutional rights, particularly the right to be arraigned before a court of law within a reasonable time.

According to their twitter handle (@citizen_gavel), it is a civic tech organisation that seeks to increase the pace of justice delivery and accountability through tracking of cases and the reduction of the opacity in the justice sector. They have something called the “Justice Clock”, which is an online tech tool through which they track time spent by awaiting trial persons. They are also operating in the trenches, visiting prisons and giving legal advice and support to inmates awaiting trial.

Gavel announced last week that it is expanding its reach and services through a new website (gavel.ng). It promises that users will be able to connect with lawyers that can provide free legal aid, register as free legal aid lawyers, track corruption cases through their timeline of cases, track the time spent by awaiting trial persons and measure the statistics on the implementation of the Administration of Justice Act (ACJA). I hope they get the kind of patronage and support they deserve. This platform will be an invaluable tool for persons whose friends and relatives have been detained by the police to get legal assistance. There is a tool that allows people to create a case and file a complaint on the website, and Gavel makes a link to a pro bono lawyer for the case. The Nigerian Bar Association’s new requirement that lawyers provide pro bono services should help to boost the resources available for those who cannot afford their own legal representation.