Right to Personal Liberty in Nigeria: Legal Framework and Case Law

The Unshackled Soul: Deconstructing the Right to Personal Liberty in Nigeria

I. Introduction: The Cornerstone of Democracy

In the grand tapestry of human rights, the right to personal liberty stands as an indispensable thread, weaving together the fabric of individual autonomy and societal well-being. It is a fundamental entitlement that safeguards citizens from arbitrary detention, unlawful arrest, and any form of physical coercion not sanctioned by due process of law. Without the robust protection of personal liberty, other cherished freedoms – such as freedom of speech, assembly, and movement – become hollow pronouncements, easily trampled by the whims of state power.

In Nigeria, a nation that has endured periods of authoritarian rule and is continuously striving to consolidate its democratic gains, the sanctity of personal liberty is enshrined as a non-negotiable principle. This blog post embarks on an extensive exploration of the right to personal liberty in Nigeria, meticulously dissecting its legal framework, analyzing landmark judicial interpretations, and shedding light on the persistent challenges that impede its full realization. Our aim is to provide a comprehensive understanding of this vital right, underscoring its importance not just as a legal concept, but as the bedrock upon which a truly free and just society can flourish.

II. Constitutional Foundation: The Bedrock of Liberty

The primary legal instrument guaranteeing personal liberty in Nigeria is the Constitution of the Federal Republic of Nigeria 1999 (as amended). Chapter IV of the Constitution, dedicated to fundamental rights, dedicates a specific and comprehensive section to this vital entitlement.

A. Section 35 of the 1999 Constitution (as amended): The Linchpin

Section 35 is the cornerstone of personal liberty in Nigeria, detailing both the general guarantee and the specific circumstances under which an individual’s liberty may be curtailed. It is crucial to understand its subsections meticulously:

• Section 35(1): General Guarantee and Lawful Exceptions:

  This subsection broadly declares: “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 phrase “every person” is expansive, encompassing not only Nigerian citizens but also aliens within its territory. The crucial caveat “save in the following cases and in accordance with a procedure permitted by law” highlights that personal liberty is not absolute. Deprivation of liberty must be both justified by one of the enumerated exceptions and conducted according to established legal procedures. This dual requirement is fundamental to preventing arbitrary executive action.

  The lawful exceptions under Section 35(1) include:

  • (a) In execution of the sentence or order of a court: This covers situations like imprisonment after conviction or detention based on a court order (e.g., contempt of court).
  • (b) By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law: This addresses instances like committal for failing to obey a court injunction or detention for non-payment of a legally mandated debt (e.g., taxes, alimony, though usually only after court order).
  • (c) For the purpose of bringing him before a court… or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence: This is the most frequently invoked exception, forming the basis for arrest and detention by law enforcement agencies. It emphasizes “reasonable suspicion” – a critical legal threshold that must be objectively verifiable. The power to detain to prevent a crime must also be “reasonably necessary,” suggesting proportionality.
  • (d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare: This applies to minors, allowing for their detention in appropriate facilities for their well-being, such as correctional homes or approved schools.
  • (e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community: This exception permits detention for public health or safety reasons, emphasizing that the primary purpose must be care, treatment, or community protection, not punitive.
  • (f) For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: This covers immigration-related detentions, ensuring border control and the execution of international legal obligations.
• Section 35(2): The Right to Silence and Legal Counsel:

  “Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.”

  This subsection provides crucial protection against self-incrimination and forced confessions. It mandates that law enforcement inform suspects of this right and ensure its exercise before interrogation. This provision is frequently breached in practice, leading to challenges in court regarding the admissibility of statements obtained without legal representation.

• Section 35(3): Right to be Informed of Reasons for Arrest/Detention:

  “Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”

  This ensures transparency and accountability, preventing arbitrary arrests where the detainee is left in the dark about the basis of their deprivation of liberty. It empowers the individual and their legal counsel to challenge the detention effectively.

• Section 35(4): Time Limits for Detention and Right to Bail/Release:

  This subsection sets critical time limits for detention without trial, differentiating between bailable and non-bailable offences:

  • If a person is detained under subsection (1)(c) (i.e., for suspicion of a criminal offence) and is not tried within a period of:
    • (a) two months from the date of arrest or detention in the case of a person who is in custody or is not entitled to bail; or
    • (b) three months from the date of his arrest or detention in the case of a person who has been released on bail,1

      he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.2

      This provision is designed to prevent prolonged pre-trial detention.

• Section 35(5): Definition of “Reasonable Time”:

  This clarifies subsection (4)’s “reasonable time” for bringing an arrested or detained person before a court:

  • (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and³
  • (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.4

    This establishes a clear default rule, with a degree of flexibility for remote areas, but always subject to judicial oversight on reasonableness.

• Section 35(6): Right to Compensation and Public Apology for Unlawful Detention:

  “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…”

  This provides a direct remedy for violations of personal liberty, allowing victims to seek both monetary compensation for damages and a public acknowledgment of the wrong done. This is a crucial deterrent against unlawful arrests and detention.

• Section 35(7): Special Provisions for Capital Offences and Armed Forces/Police:
  • (a) Capital Offences: This clarifies that the two or three-month time limits in subsection (4) do not apply to persons arrested or detained on reasonable suspicion of having committed a capital offence. This is a significant carve-out that often leads to prolonged detention for capital offence suspects.
  • (b) Armed Forces/Police Detention: It also states that nothing in the section invalidates any law authorizing the detention for up to three months of a member of the armed forces or police force in execution of a sentence imposed by an officer of those forces. This acknowledges internal disciplinary processes.

B. Other Relevant Constitutional Provisions

While Section 35 is central, other parts of the Constitution bolster the right to personal liberty:

• Section 34: Right to Dignity of Human Person: This section, particularly subsection (1)(a) prohibiting torture, inhuman, or degrading treatment, is inextricably linked to personal liberty. A person’s liberty cannot be deprived in a manner that violates their dignity.
• Section 36: Right to Fair Hearing: This fundamental right ensures that any process leading to the deprivation of liberty (e.g., trial, sentencing) must adhere to principles of natural justice and due process. This includes the right to legal representation, presumption of innocence, and adequate time and facilities to prepare a defence.
• Section 46: Right to Enforce Fundamental Rights: This empowers individuals to seek redress in a High Court when their fundamental rights, including personal liberty, have been, are being, or are likely to be contravened. The Fundamental Rights (Enforcement Procedure) Rules (FREP Rules) provide the procedural framework for these applications.

III. Legislative Framework: Giving Effect to Constitutional Guarantees

Beyond the Constitution, specific statutes further regulate the processes of arrest, detention, and bail, providing the operational details for law enforcement and the courts.

A. Administration of Criminal Justice Act (ACJA) 2015 (and State Laws like ACJLs)

The ACJA 2015 is a landmark piece of legislation that has significantly reformed criminal justice administration in Nigeria, with profound implications for personal liberty. Many states have also enacted their own Administration of Criminal Justice Laws (ACJLs) mirroring or adapting the ACJA. Key provisions include:

• Powers of Arrest (Sections 4-13): The ACJA defines powers of arrest, emphasizing that unnecessary restraint is prohibited (Section 5) and requiring notification of the cause of arrest and the suspect’s rights (Section 6). It explicitly prohibits arrest in lieu (arresting someone for another’s alleged offence – Section 7) and mandates humane treatment (Section 8).
• Recording of Arrests (Section 15): This vital provision requires every arrest, with or without a warrant, to be recorded in a register at the police station, detailing the circumstances, property found, and statements made. This aims to curb arbitrary arrests and secret detentions.
• Bail Provisions (Sections 158-181): The ACJA strengthens the right to bail, aiming to reduce pre-trial detention.
  • General Entitlement to Bail (Section 158): Reaffirms that an accused person is generally entitled to bail, except in specified circumstances (e.g., reasonable grounds to believe the person will commit further offences, interfere with investigation, or abscond).
  • Police Bail (Administrative Bail – Section 32): The ACJA encourages the grant of police bail for minor offences, and outlines conditions for such release, emphasizing that bail should not be denied solely on the grounds that the suspect may commit another offence.
  • Court Bail (Sections 161-164): Details the conditions for granting bail by courts, distinguishing between capital offences (where bail is exceptional, Section 161) and non-capital offences. For offences punishable by imprisonment exceeding three years, the court considers factors like the nature of the offence, the strength of evidence, and the likelihood of the defendant appearing for trial (Section 162). For offences not exceeding three years, bail is more readily granted (Section 163).
  • Monetary Conditions for Bail (Section 165): While security or financial conditions can be imposed, the ACJA encourages courts to consider the means of the defendant and prohibits excessive conditions.
  • Chief Magistrate’s Monthly Visit to Police Stations (Section 34): This innovative provision mandates a Chief Magistrate to visit police stations within their jurisdiction monthly to inspect the record of arrests, inquire into the circumstances of any person detained, and ensure compliance with constitutional time limits. This is a direct mechanism for judicial oversight of pre-trial detention.
• Remand Proceedings: The ACJA clarifies the process for seeking remand orders from magistrates, ensuring judicial scrutiny of prolonged detentions, although challenges remain in practice.

B. Police Act 2020

The new Police Act further aligns police operations with human rights standards. It reinforces provisions relating to humane treatment of suspects, notification of rights, prohibition of torture, and the general duty to bring suspects before a court within the constitutional timeframe. It seeks to modernize policing and promote accountability.

C. Correctional Service Act 2019

This Act replaced the Prisons Act, focusing on rehabilitation and welfare of inmates. While it doesn’t directly deal with arrest or initial detention, it governs the conditions under which a person is held once remanded or convicted, ensuring their dignity and rights within correctional facilities.

IV. Judicial Interpretation and Enforcement: Shaping the Contours of Liberty

The Nigerian judiciary plays a pivotal role in interpreting and enforcing the right to personal liberty. Through numerous landmark judgments, courts have not only clarified the scope of Section 35 but also created precedents that guide the actions of law enforcement agencies and protect citizens’ rights.

A. The Role of the Courts

• Guardians of Fundamental Rights: High Courts, the Court of Appeal, and the Supreme Court act as guardians of fundamental rights, empowered to declare any executive or legislative action that violates these rights as null and void.
• Habeas Corpus: The ancient common law remedy of Habeas Corpus (requiring a person to be brought before a court to determine the legality of their detention) is a powerful tool used by individuals to challenge unlawful deprivation of liberty.
• Fundamental Rights (Enforcement Procedure) Rules (FREP Rules) 2009: These rules streamline the process for enforcing fundamental rights, making it easier for aggrieved persons to approach the High Court. They emphasize quick dispensation of justice in human rights matters, allow for a broad range of reliefs (including compensation, apology, and injunctions), and encourage public interest litigation.

B. Landmark Case Law – Detailed Analysis of Key Judgments

The following cases illustrate the judiciary’s approach to interpreting and enforcing the right to personal liberty:

• Fawehinmi v. Inspector General of Police (No. 2) (1991) 6 NWLR (Pt. 196) 261:

  Facts: Gani Fawehinmi, a prominent human rights lawyer, was arrested multiple times without being promptly charged. He challenged the legality of his detentions.

  Principle: The Supreme Court reiterated the essence of Section 35, emphasizing that detention, even on suspicion of a capital offence, cannot be prolonged indefinitely without charge or trial. It reinforced the obligation to bring an arrested person before a court within a “reasonable time” as defined by the Constitution. This case underscored the judiciary’s stance against arbitrary and unduly prolonged pre-trial detention.

• Dokubo-Asari v. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 244:

  Facts: Mujahid Dokubo-Asari, a militant leader, was charged with treasonable felony, a capital offence. His application for bail was refused by the trial court and the Court of Appeal. He appealed to the Supreme Court.

  Principle: The Supreme Court, while acknowledging that bail in capital offences is not a matter of right but discretionary, laid down crucial factors courts must consider when deciding bail applications in such cases. These factors include: the nature of the offence, the strength of the evidence, the severity of the punishment, the health of the accused, the possibility of the accused committing other offences while on bail, and the likelihood of the accused appearing for trial. This case significantly shaped bail jurisprudence for serious offences, balancing the accused’s liberty with public interest and the effective administration of justice.

• Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228:

  Facts: This case arose from various actions taken by Gani Fawehinmi against the military government, challenging decrees that sought to oust the jurisdiction of courts in human rights matters.

  Principle: The Supreme Court affirmed the supremacy of the 1999 Constitution (and by extension, the fundamental rights provisions) over inconsistent laws, including military decrees. It held that fundamental rights enshrined in the Constitution are inalienable and cannot be easily wished away by legislative fiat, especially where such laws are not reasonably justifiable in a democratic society. This landmark judgment reinforced the judiciary’s role as the bulwark against executive excesses and legislative overreach concerning fundamental rights.

• Nwankwo v. The State (2004) 15 NWLR (Pt. 896) 304:

  Facts: The appellant was detained for an extended period without trial, far exceeding constitutional limits.

  Principle: The Court of Appeal emphasized the imperative of bringing an accused person before a court within the constitutionally stipulated “reasonable time.” It held that prolonged detention without trial is a blatant violation of Section 35 and warrants the release of the detainee, often with compensation. This case reinforces the “24/48 hours rule” and the constitutional guarantee against indefinite detention.

• Eze v. Inspector General of Police (2012) 8 NWLR (Pt. 1301) 155:

  Facts: The appellant was unlawfully arrested and detained by the police without any reasonable suspicion or justification.

  Principle: The Court reiterated that for an arrest and detention to be lawful under Section 35(1)(c), there must be a “reasonable suspicion” that a criminal offence has been committed. Where this objective standard is not met, the arrest and subsequent detention are unlawful, entitling the victim to compensation and an apology. This case highlights the importance of the police adhering strictly to legal requirements for arrest.

• Grace Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208:

  Facts: A university student was rusticated from the university without being given a fair hearing or proper procedure. While not a typical “arrest and detention” case, it concerned the scope of liberty beyond physical incarceration.

  Principle: The Supreme Court clarified that personal liberty, though primarily associated with freedom from physical restraint, extends to an individual’s right to pursue their legitimate interests, including education. Deprivation of such rights without due process (fair hearing) constitutes a breach of personal liberty. This broadens the understanding of what constitutes a “deprivation of liberty.”

• Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 110:

  Facts: The respondent was detained for several years under a military decree that purported to validate prolonged detentions without trial.

  Principle: The Supreme Court affirmed that even in the face of ostensibly valid laws (especially from military regimes), the constitutional provisions on fundamental rights, particularly the right to personal liberty, prevail. It stressed that no law can justify indefinite detention without trial, as it offends the spirit and letter of the Constitution. This case further solidified the judiciary’s role in upholding human rights despite state actions.

• Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270:

  Facts: General Ishaya Bamaiyi, a former Chief of Army Staff, was charged with murder and applied for bail.

  Principle: This case is often cited on the discretionary nature of bail, particularly in capital offences. The Supreme Court emphasized that the discretion to grant or refuse bail must be exercised judicially and judiciously, considering all relevant factors to ensure justice for both the accused and society. It provided further guidance on the factors to consider, reiterating the principles from Dokubo-Asari.

C. Challenges in Enforcement

Despite a robust legal framework and an increasingly rights-conscious judiciary, several practical challenges impede the full enforcement of the right to personal liberty in Nigeria:

• Overcrowding of Correctional Facilities: A significant number of inmates in Nigerian correctional centres are awaiting trial, often for years, due to systemic delays in the justice system. This undermines the constitutional presumption of innocence and the right to trial within a reasonable time.
• Delay in Trials (Adjournment Culture): The pervasive culture of adjournments in Nigerian courts, often due to overloaded dockets, lack of judicial resources, or dilatory tactics by counsel, contributes significantly to prolonged pre-trial detention.
• Abuse of Power by Law Enforcement Agencies: Despite legal reforms, arbitrary arrests, unlawful detentions, and extortion by law enforcement officers remain prevalent. Instances of arrests based on civil disputes, “raids,” and profiling (e.g., of young people with certain hairstyles or gadgets) are common, often leading to detentions without legal basis.
• Lack of Awareness of Rights: A substantial portion of the Nigerian populace remains unaware of their fundamental rights, including the specifics of Section 35. This ignorance makes them vulnerable to exploitation and abuse by state agents and private individuals alike.
• Limited Access to Legal Aid: The high cost of legal services means that many indigent citizens cannot afford to engage lawyers, leaving them susceptible to prolonged detention and inability to enforce their rights. While institutions like the Legal Aid Council exist, their reach and funding are often insufficient.
• Disregard for Court Orders: There are instances where government agencies or officials refuse to obey court orders, including orders for the release of detainees or payment of compensation for unlawful detention. This undermines the rule of law and the judiciary’s authority.
• Weak Accountability Mechanisms: Despite provisions for compensation, holding erring officers accountable for human rights abuses is challenging due to institutional inertia, corruption, and insufficient internal disciplinary measures.

V. Emerging Issues and Contemporary Challenges

The evolving landscape of society presents new challenges and dimensions to the right to personal liberty.

A. Digital Age and Liberty: Cybercrime and Surveillance

The rise of the digital age, while offering immense opportunities, also poses threats to personal liberty. The Cybercrime Act 2015, while necessary for combating cyber offenses, has been criticized for certain provisions that could be susceptible to abuse, potentially infringing on freedom of expression and, by extension, personal liberty through arbitrary arrests and detentions for online activities. The increasing capacity for digital surveillance by state actors raises concerns about privacy and the potential for monitoring individuals’ movements and communications without adequate judicial oversight.

B. Terrorism and National Security vs. Individual Rights

Nigeria faces significant national security challenges, particularly from insurgency and terrorism. While the state has a legitimate duty to protect its citizens, measures taken under the Terrorism Prevention Act (and its amendments) often raise concerns about the balance between national security and individual liberties. Prolonged detention of suspected terrorists without trial, the use of special courts, and allegations of inhumane treatment in detention facilities have been points of contention, requiring careful judicial scrutiny to ensure that counter-terrorism efforts do not become a pretext for widespread human rights abuses.

C. The Role of Technology in Law Enforcement

The adoption of technology in policing, such as body cameras and facial recognition software, presents a double-edged sword. While these tools can enhance accountability and transparency, preventing abuses, they also carry the risk of pervasive surveillance and data collection that could intrude upon personal liberty and privacy if not strictly regulated and overseen by independent bodies.

D. Impact of Social Media: Arrests for Online Posts

In recent years, there has been a concerning trend of individuals being arrested and detained for their social media posts, often on charges like defamation, cyberstalking, or inciting public disturbance. While laws exist to address harmful online conduct, concerns arise when these powers are used to stifle legitimate criticism, dissent, or journalistic expression, leading to arbitrary deprivation of liberty for expressing opinions.

E. Police Brutality and Accountability

Despite ongoing reforms and public outcry (notably the #EndSARS protests), instances of police brutality, extrajudicial killings, and torture in custody remain a severe challenge to personal liberty and human dignity. The lack of effective and timely prosecution of erring officers erodes public trust and perpetuates a culture of impunity, making the constitutional guarantees seem distant for many victims.

VI. Recommendations for Strengthening the Right to Personal Liberty

To truly uphold the right to personal liberty in Nigeria, multifaceted and sustained efforts are required from all stakeholders:

• Enhanced Legal Aid Services: There is an urgent need for increased funding and support for legal aid institutions and pro bono initiatives. Expanding access to free or affordable legal representation, especially at the point of arrest and during detention, is crucial to ensuring that the poor and vulnerable can effectively assert their rights.
• Continuous Training and Re-orientation of Law Enforcement: Comprehensive and rights-based training for police officers and other security agencies is essential. This training should emphasize human rights principles, proper arrest procedures, ethical conduct, and the consequences of violating citizens’ liberties. A shift in mindset from punitive to rights-respecting policing is vital.
• Strict Adherence to Constitutional and Statutory Provisions: Law enforcement agencies must be held strictly accountable for complying with the letter and spirit of Section 35 of the Constitution and the ACJA/ACJLs. This includes observing the 24/48-hour rule, informing suspects of their rights, and promptly recording arrests.
• Judicial Activism and Timely Dispensation of Justice: The judiciary must continue its robust defense of fundamental rights, delivering prompt judgments in human rights cases and imposing meaningful sanctions (including substantial compensation) for violations. Judges should strictly enforce the provisions of the ACJA, particularly those related to bail and remand, to prevent prolonged pre-trial detention. Case management techniques need to be improved to expedite trials.
• Public Awareness Campaigns on Fundamental Rights: Government, civil society organizations, and media should collaborate on sustained public education campaigns to inform citizens about their fundamental rights, including what to do when arrested, their right to silence, and access to legal counsel. Knowledge is a powerful tool for empowerment.
• Technological Solutions for Monitoring Detention and Trials: Leveraging technology, such as digital recording of arrests and interrogations, and electronic case management systems, can enhance transparency, reduce human rights abuses, and track the progress of cases to minimize delays.
• Legislative Reforms to Address Gaps or Ambiguities: While the ACJA was a significant step, continuous review of laws is necessary to address any ambiguities or new challenges that emerge, ensuring that the legal framework remains robust and responsive to contemporary realities. This includes reviewing laws that may be overly broad or prone to abuse in the context of digital rights and national security.
• Strengthening Accountability Mechanisms: Independent oversight bodies for law enforcement, with powers to investigate and sanction abuses, must be strengthened and made truly effective. This includes reforming internal police disciplinary processes and ensuring that complaints of torture and unlawful detention are thoroughly investigated and prosecuted.

VII. Conclusion: A Continuous Pursuit of Freedom

The right to personal liberty in Nigeria is not merely a theoretical construct; it is a lived experience, a daily struggle for many, and a cornerstone of the nation’s democratic aspirations. While the legal framework, primarily anchored in Section 35 of the 1999 Constitution and reinforced by the Administration of Criminal Justice Act, provides a strong foundation, the journey towards its full realization is ongoing.

The judiciary has consistently demonstrated its commitment to upholding this fundamental right through landmark judgments, acting as a crucial check on executive and legislative power. However, persistent challenges such as systemic delays, abuse of power by state agents, and a lack of public awareness continue to undermine these constitutional guarantees.

As Nigeria continues its democratic evolution, the commitment to safeguarding personal liberty must remain unwavering. This requires not only a steadfast adherence to legal principles but also a proactive approach to addressing systemic flaws, fostering a culture of human rights within all state institutions, and empowering citizens to demand their entitlements. Only then can the promise of an unshackled soul, free from arbitrary restraint and injustice, truly become a reality for every Nigerian. The pursuit of freedom is a continuous endeavor, demanding vigilance, advocacy, and an unwavering belief in the inherent dignity of every human person.