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By Sandra Adeniran, Principal Partner

Most people think of freedom as a given, a default state. But freedom isn’t a permanent feature; it’s a fragile right that must be vigilantly protected by the rule of law. Unlawful detention in Nigeria occurs when an individual is deprived of their liberty by the state without legal justification, in violation of their constitutional rights. This practice remains a persistent stain on our justice system. The Nigerian Constitution, particularly Section 35, expressly guarantees personal liberty and outlines strict conditions under which a person can be detained, typically requiring a court order and limiting detention without charge to a period of 24 to 48 hours.

Understanding Unlawful Detention

Unlawful detention is not a vague concept; it is a direct contravention of the law. It happens anytime a citizen is held by the police or any other state agency without a valid court order or for a duration exceeding the constitutionally stipulated timeframe. This goes beyond just wrongful arrest; it encompasses any period of confinement that lacks a solid legal foundation. Its historical roots in Nigeria are deep, stemming from years of military rule where the suspension of constitutional rights was common practice. This legacy continues to challenge our democratic progress today.

What Constitutes Unlawful Detention?

Detention becomes unlawful under several specific circumstances:

1. Exceeding Time Limits: The most common form is when a suspect is held longer than the 24 to 48 hours permitted by the Constitution without being formally charged in court.
2. Absence of a Court Order: Arresting and detaining an individual on a non-capital offence without a warrant or subsequent remand order from a competent court is unlawful.
3. Detention for a Civil Wrong: The police have no authority to detain someone over a simple contract dispute or debt. This is a matter for civil courts, and using detention as a debt recovery tool is illegal.
4. Holding a Person as ‘Bait’: Arresting a person’s family member to compel a suspect to turn themselves in is a gross abuse of power and a form of unlawful detention.

The Human Impact of Illegal Confinement

The consequences for the individual are devastating. Beyond the loss of freedom, unlawful detention inflicts severe psychological trauma, destroys reputations, and can lead to the loss of employment and family stability. For society, it erodes public trust in the justice system and the rule of law. When state actors flout the very laws they are meant to enforce, it fosters a climate of impunity and fear, undermining the foundations of a democratic state.

Constitutional Safeguards Against Unlawful Detention in Nigeria

The cornerstone of protection against arbitrary detention is the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 35 is unequivocal: it grants every person the right to personal liberty. It states that no person shall be deprived of such liberty except in specific cases and in accordance with a procedure permitted by law.

Key provisions within Section 35 include:

• The right to be informed in writing, within 24 hours, of the facts and grounds for the arrest or detention.
• The right to remain silent and to avoid answering any question until after consulting with a legal practitioner or any other person of their choice.
• The right to be brought before a court of law within a reasonable time. The Constitution defines this “reasonable time” as 24 hours if a court is within a 40-kilometer radius, and 48 hours in other cases.

The 48-hour rule isn’t a suggestion; it’s a constitutional command. Any detention beyond this period without a court order transforms a state agent into a lawbreaker.

This constitutional mandate is the primary legal weapon against prolonged police custody without trial. Yet, its enforcement remains a significant challenge across Nigeria.

The Pre-trial Detention Crisis in Nigeria

The gap between constitutional rights and daily reality is most stark in Nigeria’s prisons. A huge percentage of the inmate population is not convicted of any crime. According to a 2018 report on the state of Nigerian prisons, of the 68,110 inmates, 38,352 persons or 71% were awaiting trial. Many of these individuals are held in a legal limbo, often for periods far exceeding the potential sentence for the crime they are accused of. The case of Alade v. Federal Republic of Nigeria, for instance, saw a man held in pretrial detention for nearly 9 years before his case was resolved by the ECOWAS court.

This overwhelming number of pretrial detainees is a direct consequence of systemic failures. These include slow investigation processes, an overburdened and under-resourced judiciary, and the frequent, often improper, use of remand orders to keep individuals in custody indefinitely.

Lawful vs. Unlawful Detention: A Clear Distinction

It is critical to distinguish between lawful and unlawful detention. The state has a legitimate power to detain individuals suspected of crimes, but this power is not absolute. The table below clarifies the key differences:

Legal Framework Against Unlawful Detention in Nigeria

Beyond the Constitution, several other legal instruments exist to combat unlawful detention. The most significant of these is the Administration of Criminal Justice Act (ACJA) 2015 and its equivalent in various states.

The Administration of Criminal Justice Act (ACJA) 2015

The ACJA was designed to revolutionize criminal justice in Nigeria. It introduced several key provisions aimed at curbing the practice of unlawful detention:

• Prohibition of Arrest for Civil Wrongs: Section 8(2) of the ACJA explicitly states that a person cannot be arrested in place of another or for a civil matter.
• Mandatory Record-Keeping: The Act mandates the creation of a central criminal records registry to track suspects from arrest to final judgment, increasing transparency.
• Monthly Reports: It compels the Inspector General of Police and the head of every arresting agency to submit a monthly report of all arrested persons to the Attorney General, and it requires Chief Magistrates and designated judges to visit detention centers to review cases of suspected unlawful detention.

However, the effectiveness of the ACJA is hampered by poor enforcement and lack of resources, a challenge we constantly see in our criminal law practice.

International Human Rights Law

Nigeria is a signatory to several international treaties that protect personal liberty. These include the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights. These treaties reinforce the principles in our constitution and provide another avenue for seeking justice, particularly at regional courts like the ECOWAS Community Court of Justice. The ECOWAS court has delivered several landmark judgments against Nigeria for cases of prolonged and unlawful detention, as seen in the Alade case.

Remedies for Unlawful Detention

When a person’s right to liberty is violated, the law provides powerful remedies. It’s not just about securing release; it’s about holding the state accountable. As a firm committed to upholding civil law and human rights, we’ve guided many clients through these complex processes across Nigeria.

Application for a Writ of Habeas Corpus

This is a Latin term meaning “produce the body.” It is a court order demanding that a detaining authority bring the detained person to court to determine if their detention is lawful. It is a swift and potent emergency measure to challenge illegal confinement. The primary goal is to secure the immediate release of the individual.

Enforcement of Fundamental Human Rights

This is a broader legal action under the Fundamental Rights (Enforcement Procedure) Rules. This process not only seeks the release of the detainee but can also claim damages (monetary compensation) for the violation of their rights. A person who has been unlawfully detained can sue the relevant authority (e.g., the Nigeria Police Force) for compensation for the time they were illegally held.

Filing this action involves a specific procedure:

1. The applicant’s lawyer files a motion in the High Court.
2. This application is supported by an affidavit detailing the facts of the unlawful detention.
3. A written address arguing the legal basis for the claim is also submitted.
4. The court hears the application and, if successful, can order release, award damages, and issue a public apology.

Preventing Unlawful Detention: Know Your Rights

While legal remedies are crucial, prevention is always better. Every Nigerian should be aware of their basic rights to minimize their risk of being subjected to unlawful detention:

• Always Carry Identification: While not a legal requirement to avoid arrest, having a valid ID can often de-escalate encounters with law enforcement.
• Know Your Rights on Arrest: You have the right to remain silent. You have the right to a lawyer. Politely and firmly assert these rights.
• Do Not Consent to Unlawful Searches: Police generally need a warrant to search your property.
• Document Everything: If you witness an unlawful arrest or are a victim, try to note down the officers’ names, vehicle numbers, and the time and location of the incident.
• Have a Lawyer’s Number: Keep the contact information of a lawyer handy. A quick phone call can make a monumental difference.

A phone call to a lawyer is the most powerful tool a citizen has when facing an arresting officer. It immediately shifts the power dynamic and signals that you know your rights.

Improving accountability also requires systemic change. The increased use of technology like CCTV in police stations and digital record-keeping can create an objective account of events, protecting both citizens and officers. Several legal aid organizations and NGOs in Nigeria are dedicated to fighting for the rights of detainees, providing an essential service for those who cannot afford a lawyer.

Dealing with the aftermath of unlawful detention in Nigeria requires seasoned legal expertise. The process can be daunting, but the Constitution and our laws provide a clear path to justice. Protecting personal liberty is a cornerstone of our work.

If you or someone you know is a victim of unlawful detention, it is critical to act swiftly. Contact a legal practitioner to explore your options and begin the process of enforcing your fundamental rights.

Further reading

• A house of justice for Africa: Resurrecting the SADC Tribunal
• Tools and Tradeoffs:

Frequently Asked Questions

Can the police detain me for a debt I owe someone?

No. A debt is a civil matter, not a criminal one. The Nigeria Police Force has no authority to arrest or detain anyone for failure to pay a debt. If this happens, it constitutes unlawful detention, and you can sue for the enforcement of your fundamental rights.

What should I do if a family member is arrested and held for more than 48 hours?

You should immediately contact a lawyer. The detention has become unconstitutional. Your lawyer can file an application for the enforcement of their fundamental human rights in court or apply for a writ of habeas corpus to compel the police to either produce them in court and charge them or release them.

Can I be compensated for being unlawfully detained?

Yes. A key remedy for unlawful detention is the award of damages. The court can order the detaining authority (e.g., the police) to pay you monetary compensation for the period you were illegally deprived of your liberty. This is a central part of a fundamental rights enforcement action.

Is it legal for the police to deny me access to my lawyer?

No, it is illegal. Section 35(2) of the 1999 Constitution guarantees you the right to consult with a legal practitioner of your choice before making any statement. Denying you this right is a constitutional violation and strengthens a case for unlawful detention.

What is the role of the ECOWAS Court in unlawful detention cases?

The Economic Community of West African States (ECOWAS) Community Court of Justice can hear cases of human rights violations, including unlawful detention, against member states like Nigeria. While you must typically seek remedies in Nigerian courts first, the ECOWAS court provides an important avenue for justice, especially in cases of prolonged state failure to act, as established in various cases including Alade v. The Federal Republic of Nigeria.