Introduction
The criminal justice system plays a vital role in maintaining law and order, protecting society, and ensuring that those who commit criminal offences are brought to justice. However, while law enforcement agencies are empowered to investigate crimes and prosecute offenders, these powers are not unlimited. Nigerian law guarantees every individual—whether a suspect, an accused person, or a convicted offender—certain fundamental rights that must be respected throughout the criminal justice process.
Unfortunately, many Nigerians are unaware of these constitutional safeguards. This lack of awareness has contributed to widespread incidents of unlawful arrests, arbitrary detention, extortion, torture, and other abuses by law enforcement officers.
Understanding your legal rights during arrest, detention, investigation, and prosecution is essential for protecting your liberty and ensuring that justice is administered fairly. This article examines the legal framework governing these processes under Nigerian law, highlighting constitutional guarantees, statutory provisions, judicial authorities, and practical guidance for members of the public.
What Is an Arrest?
An arrest is the lawful deprivation of a person's liberty by a law enforcement officer or any other person authorized by law for the purpose of investigating or prosecuting an alleged offence. Although an arrest temporarily restricts a person's freedom of movement, it must always be carried out in accordance with the law.
The Supreme Court has consistently emphasized that the power to arrest must never be exercised arbitrarily or oppressively.
Legal Framework
The principal laws regulating arrest in Nigeria include:
Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which guarantees every person's right to personal liberty.
Sections 3–18 of the Administration of Criminal Justice Act (ACJA), 2015.
The Administration of Criminal Justice Laws (ACJL) enacted by various States, which contain similar provisions.
Who Can Effect an Arrest?
An arrest may lawfully be carried out by:
The Nigeria Police Force (NPF)
The Economic and Financial Crimes Commission (EFCC)
The Independent Corrupt Practices and Other Related Offences Commission (ICPC)
The National Drug Law Enforcement Agency (NDLEA)
The Department of State Services (DSS)
Other agencies specifically empowered by law
In limited circumstances, private citizens may also lawfully arrest persons found committing certain offences and promptly hand them over to the appropriate authorities.
When Can a Person Be Arrested?
An arrest is generally lawful where:
there is reasonable suspicion that a person has committed an offence;
a court has issued a warrant of arrest;
an offence is committed in the presence of a law enforcement officer;
a person is caught in the act of committing a crime; or
a statute expressly authorizes arrest without a warrant.
An arrest based on mere speculation, personal vendetta, or unsupported suspicion violates the Constitution and may expose the authorities to legal liability.
Your Rights During Arrest
Every person arrested in Nigeria enjoys important constitutional and statutory protections.
1. Right to Be Informed of the Reason for Arrest
Section 35(3) of the Constitution requires that every arrested person be informed promptly, in a language he or she understands, of the facts and grounds for the arrest.
Similarly, Section 6 of the ACJA requires the arresting officer to inform the suspect of:
the reason for the arrest; and
the right to remain silent.
Failure to comply with these requirements may affect the legality of subsequent proceedings.
2. Right to Remain Silent
Every suspect has the right not to answer questions that may incriminate him or her.
This protection is guaranteed under:
Section 35(2) of the Constitution;
Section 17 of the ACJA; and
Section 36(11) of the Constitution.
No person can legally be compelled to confess to an offence or give evidence against himself or herself.
3. Right to Legal Representation
Every arrested person has the constitutional right to consult and be represented by a legal practitioner of his or her choice.
Section 36(6)(c) of the Constitution guarantees this right, and law enforcement officers must provide reasonable access to legal counsel.
4. Right to Freedom from Torture
The use of torture during investigation is absolutely prohibited.
Relevant legal authorities include:
Section 34 of the Constitution;
the Anti-Torture Act, 2017; and
the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.
Torture includes physical violence, electric shocks, waterboarding, sexual abuse, threats, psychological intimidation, and any other form of cruel or degrading treatment.
Evidence obtained through torture is generally inadmissible in court.
Arrest Without a Warrant
The police may arrest a person without first obtaining a warrant where the law permits, particularly in cases involving serious offences such as:
armed robbery;
murder;
kidnapping;
terrorism;
drug trafficking; or
where there is reasonable suspicion that a felony has been committed.
These powers must always be exercised responsibly and within the limits prescribed by law.
Can the Police Arrest Family Members?
No.
One of the most common illegal practices in Nigeria is the arrest or detention of relatives because a suspect cannot be located.
Criminal liability is personal. A person cannot lawfully be arrested simply because he or she is related to a suspect.
In EFCC v. Diamond Bank Plc (2018) LPELR-44217(CA), the Court of Appeal condemned the unlawful detention of persons who had committed no offence and reaffirmed that such practices violate constitutional rights.
Detention After Arrest
An arrest does not automatically justify prolonged detention.
Section 35 of the Constitution protects every individual against unlawful detention.
How Long Can the Police Detain a Suspect?
Section 35(4) of the Constitution provides that an arrested person must be brought before a court:
within 24 hours, where a competent court is located within forty kilometres; or
within a reasonable time, generally interpreted as 48 hours, where no such court exists within that distance.
Detaining a suspect beyond these constitutional limits without lawful judicial authorization is unconstitutional.
Police Bail
The police possess statutory powers to grant administrative bail.
Sections 30–32 of the ACJA provide that where an offence is bailable, the suspect should ordinarily be granted bail on reasonable conditions.
The courts have consistently held that bail conditions must not be excessive or oppressive.
Right to Medical Care
A person in police custody remains entitled to medical treatment.
Where a detainee suffers injury or dies because medical care was denied, the authorities may be held legally responsible.
Searches During Arrest
Law enforcement officers may conduct lawful searches during arrest for weapons, evidence, or other dangerous items.
Such searches must comply with statutory procedures.
As a general rule, female suspects should be searched by female officers.
What Happens After Investigation?
At the conclusion of an investigation, the police may:
release the suspect;
grant bail;
file criminal charges;
transfer the matter to another investigative agency; or
forward the case file to the Director of Public Prosecutions for legal advice.
Understanding Criminal Prosecution
Criminal prosecution is the formal legal process through which the State presents evidence before a competent court alleging that an accused person committed a criminal offence.
The prosecution bears the burden of proving every essential element of the offence beyond reasonable doubt.
Burden of Proof
Section 135 of the Evidence Act, 2011 requires the prosecution to establish guilt beyond reasonable doubt.
This high standard protects innocent persons from wrongful conviction and reflects the principle that it is better for guilty persons to escape than for an innocent person to be punished.
Presumption of Innocence
Section 36(5) of the Constitution provides that every person charged with a criminal offence is presumed innocent until proven guilty.
Public opinion, media reports, and social media allegations do not amount to proof of guilt.
Only a competent court can determine criminal liability.
Right to Fair Hearing
Section 36 of the Constitution guarantees every accused person the right to a fair hearing.
This includes the right to:
adequate time and facilities to prepare a defence;
legal representation;
cross-examine witnesses;
interpretation where necessary;
a public hearing; and
an impartial and independent court.
Failure to observe these guarantees may render the entire proceedings invalid.
Confessional Statements
A confession is admissible only if it is made voluntarily.
Relevant provisions include:
Sections 28 and 29 of the Evidence Act, 2011; and
Section 15 of the ACJA, which encourages the electronic recording of confessional statements where practicable.
Statements obtained through torture, threats, inducement, or oppression are liable to be rejected by the court.
In D.K. Bassey v. State, the Supreme Court reaffirmed that a voluntary confession may sustain a conviction. However, where voluntariness is challenged, the court must conduct a trial-within-trial to determine whether the statement was freely made.
Can You Sue for Wrongful Arrest or Detention?
Yes.
Victims of unlawful arrest, detention, torture, or other violations of fundamental rights may institute proceedings under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
The court may award:
damages;
compensation;
declaratory reliefs;
injunctions; and
other appropriate remedies.
In Jim-Jaja v. Commissioner of Police (2013) 6 NWLR (Pt. 1350) 225, the Supreme Court reaffirmed that unlawful detention constitutes a violation of constitutional rights for which damages may be awarded.
Practical Examples
Example 1
A businessman is arrested because the police cannot locate his brother.
Position of the law: The arrest is unlawful because criminal responsibility is personal.
Example 2
A university student is detained for five days without being taken before a court.
Position of the law: Unless supported by a valid court order, the detention violates Section 35 of the Constitution.
Example 3
A suspect signs a confession after being severely beaten.
Position of the law: The court may reject the confession after conducting a trial-within-trial.
What Should You Do If You Are Arrested?
If you are arrested:
Remain calm and avoid resisting arrest.
Ask for the reason for your arrest.
Exercise your right to remain silent where appropriate.
Request to speak with a lawyer.
Do not sign any document you do not understand.
Inform a trusted family member or friend.
Request medical treatment if you are injured.
Where possible, note the identities of the officers involved.
Apply for bail where the offence is bailable.
Conclusion
The powers of arrest, detention, investigation, and prosecution are indispensable tools for maintaining law and order. Nevertheless, these powers are carefully regulated by the Constitution and other laws to prevent abuse and protect individual liberty.
Every person, irrespective of the allegations against them, is entitled to dignity, due process, legal representation, and a fair hearing. Law enforcement agencies must therefore exercise their powers responsibly and strictly within the confines of the law.
An informed citizen is better equipped to protect his or her rights, while a law-abiding society strengthens the administration of justice. Where these rights are violated, Nigerian law provides effective remedies through the courts, including the enforcement of fundamental rights and the award of appropriate damages.
Key Legal Authorities
Constitution of the Federal Republic of Nigeria, 1999 (as amended): Sections 34, 35, 36 and 46.
Administration of Criminal Justice Act, 2015: Sections 3–18, 15 and 30–32.
Evidence Act, 2011: Sections 28, 29 and 135.
Anti-Torture Act, 2017.
African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.
Fundamental Rights (Enforcement Procedure) Rules, 2009.
Jim-Jaja v. Commissioner of Police (2013) 6 NWLR (Pt. 1350) 225.
EFCC v. Diamond Bank Plc (2018) LPELR-44217(CA).
D.K. Bassey v. State.
At Sun Natha-Alade & Partners (SNATHAP), we are committed to promoting the rule of law through legal excellence, public legal education, and the protection of fundamental rights. Through our publications and legal insights, we aim to make the law practical, accessible, and understandable for individuals, businesses, and the wider community.
Disclaimer: This article is intended solely for general informational purposes and does not constitute legal advice or create a solicitor-client relationship. Readers are encouraged to seek professional legal advice on their specific circumstances before taking any action based on the information contained herein.
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