Right to Personal Liberty

This right is one of the most basic rights and is wide enough to encompass other rights, such as the right to freedom of movement, right to assemble and associate, inter alia. According to A. V Dicey, it is the “right not to be subject to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification”.

To the court in the case of Adewole v Jakande,

Personal liberty means privileges, immunities, or rights enjoyed by prescription or by grant. It denoted not merely freedom from bodily restraint but rights to contact, to have an occupation, to acquire knowledge, to marry, have a home, children, to worship, enjoy and have privileges recognized at law for happiness of free men.

This right is entrenched in Article 2 of the UDHR which states that everyone has the right to life, liberty and security of person. It can also be seen in Article 9 of the ICCPR.

S. 35(1) of the 1999 constitution states:

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” here includes not only citizens but also aliens. By the same provisions of S. 35(1) however, the personal liberty of a person may be curtailed in the following circumstances:

1. in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
2. 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;
3. for the purpose of bringing him before a court in execution of the order of 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;
4. in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
5. 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; or
6. 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.

Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

S. 35(1)(c) basically constitutes the basis of the power of arrest and detention generally wielded by the police. Thus, the police are given:

1. Powers to arrest a person based on the order of a court.
2. Power to deprive a person of his personal liberty to such an extent as is reasonably necessary to prevent the commission of an offence.
3. Power to deprive a suspect or an accused person of his personal liberty upon reasonable suspicion of the commission of an offence. The test of reasonableness is objective.

Note that in relation to S. 35(1)(d), where the offender is between the ages of 16 and 21 on the day of conviction, he is to be placed know a Borstad Institution based on S. 3(1) of the Borstad Institutions and Remand Centres Act, where he is to be trained with a view to eventual reformation.

S. 35(2) provides for the right to silence. Thus, the accused may avoid answering any questions until after consulting his lawyer or anyone who can advise him on what to say and how to say it because of the possibility of future prosecution. Even after such consulting has been made, the accused can still choose to speak through his lawyer and stay silent throughout the trial, leaving the burden of proving his guilt on the prosecution.

Thus, it can be seen that therein also lies the right to consult a legal practitioner or other person of the accused person’s choice. See the case of Baptiste v State where the Privy Council whilst sitting on appeals from Trinidad and Tobago noted the importance of informing an accused person of his right to a lawyer before he makes a confessional statement.

S. 35(3) provides that an arrested person has the constitutional right to be informed within 24 hours and in a language he understands, of the facts and grounds for his arrest and detention. In Agbaje v Commissioner of Police, the complainant was held for over ten days without being told the reason for this arrest or the authority for it. This was held to be illegal and unconstitutional.

S. 35(4) provides that an arrested or detained accused person shall be brought before a court of law within reasonable time. Reasonable time is defined under (5) of the Section as one day where there is a court of competent jurisdiction within 40km radius and know any other case, two days or such longer period as, in the circumstances, the court may regard as reasonable. The notion of bringing the accused to court within reasonable time was the holding of the court in the case of Augustine Eda v The Commissioner of Police.

Subsection 4 goes further to provide if the accused is not brought to court two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or three months from the date of his arrest or detention in the case of a person who has been released on bail, 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.

Note however that this procedural safeguard as regards trial is not available to a person charged with a capital offence, since he has never been entitled to bail which is not usually granted because of the gravity of the offence. This however does not mean that trials in such cases can start at any time and drag on indefinitely. In the case of Anaekwe v COP thus, the Supreme Court allowed all the appellant’s appeal and granted them bail pending their trial mainly on account of the inordinate delay in taking the necessary steps by the prosecution to try the appellants at court.

By virtue of S. 35(6) of the constitution, a person unlawfully arrested or detained is entitled to compensation or public apology from the appropriate authority. The mandatory nature of this entitlement was captured in the case of Ogor v Kolawole.

Right to bail

Bail is a notion based on presumption of innocence. Bail can generally be described as surety taken by a person duly authorized, for the appearance of an accused person at a certain day and place, to answer and be justified by law. The issue of bail is not constitutional. The issue of bail can thus be seen from two heads:

1. Where the accused cannot be brought before a magistrate court with competent jurisdiction within 24 hours and the offence is not one of a serious nature, the police officer in charge of custody may grant bail entering a recognizance with the accused, with or without sureties, for reappearance at a later date.
2. Bail may also be granted where inquiries into the matter cannot be completed within a reasonable time.

Note that Bail is discretionary and there are no standard set of issues to be taken into consideration in exercising such discretion by the Magistrate or Police officer. In Bamaiyi v The State thus, Uwaifo JSC stated the likelihood of the accused interfering with the course of justice upon temporary release. In Fawehinmi v The State, the court listed the ground of the health status of the accused as an issue for consideration. Per the court in the case of Ofulue v Federal Government of Nigeria, there are general guidelines however such as the evidence against the accused, the availability of the accused to stand trial, the nature and gravity of the offence, the probability of guilt of the accused, the past criminal activities of the accused, inter alia.

Where a Magistrate refuses bail, the accused can appeal to the High Court.

The factors above come before trial and conviction. After conviction occurs, the principle of presumption of innocence no longer exists and so, the accused must show special circumstance to be entitled to bail pending the determination of appeal. Such was the decision in the case of Jammal v State.

From all the above thus, it will be apparent that the right to bail in Nigeria is similar to that of many other countries, not absolute and a lot depends on the discretion of the Court, the nature of the charge and other surrounding circumstances like the character of the accused and so on.