IT is lawful for a law enforcement agent and indeed a private person to arrest a person who commits a crime or is reasonably suspected to have committed an offence.
Law enforcement agents particularly the police therefore have power to arrest, investigate, detain and arraign accused person in court provided doing so is within the scope or confines of the law.
It follows that any person reasonably suspected of committing an offence can be arrested by the police or even a private person in accordance with the law.
While police have power to arrest or detain a suspect within the constitutionally guaranteed time limit and bringing him to court of competent jurisdiction for trial, a private person must hand over a suspect to the law enforcement agents at the earliest possible time. Unlike the law enforcement agents, a private person that arrests a suspect has no power to detain the suspect.
But like Lord Acton once observed, power tends to corrupt and absolute power corrupts absolutely. The power of arrests and detention is vulnerable to abuse and has as a matter of fact more often than not, been abused and is still being abused profusely today.
One clear pointer to this abuse of power of arrest and detention is the penchant for the police for example, to arrest and detain a person in lieu of the suspect.
We are all living witnesses to the unending arrests, detention and even torture of relatives in parents, siblings or other acquaintances of a suspect especially in the absence of the suspect. There have been cases where wives are arrested for offences suspected to have been committed by husbands and vice versa.
This, the law enforcement agents believe will force an absconding suspect to come out from hiding.
While theoretically this may sound attractive, it has since not been proved to provide the needed solution as hardened criminals are not swayed to come out of hiding.
Besides, it does not accord with reality especially for an absconding suspect in our clime who has escaped from jurisdiction to come out of hiding to present himself to the police.
Be that as it may the truth however remains that arrest or detention of a person in lieu of the suspect is unlawful and highly prohibited.
This has been adumbrated in section 63 of the Delta State Administration of criminal Justice law(ACJL 2023) which clearly states “A person must not be arrested or detained in place of another person that is suspected to have committed the offence”
Similarly, section 64 sub-section 4 (supra) stipulates “ A person’s arraignment and trial for an alleged offence must be in accordance with this law unless this law states otherwise”
This position of the law is impari- materia with the 2015 Administration of criminal Justice Act (ACJA2015) applicable in the Federal capital territory Abuja.
Other states of the federation also have similar provisions applicable in their jurisdictions.
Added to this is Article 7(2) of the African Charter on human and peoples Right which in clear and unambiguous terms, states “ No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender”.
Again, the 1999 constitution of the Federal Republic of Nigeria (As Amended) reiterates the the fact that unless there is a criminal law with its punishment condensed into writing that is violated, there can neither be an offender nor punishment thereof.
This is the puport of section 36 (8) (12) of the constitution.
Section 36 (8)for instance states”No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence…”
Subsection 11 prohibits punishment for a criminal offence unless such offence is defined and penalty therefore is prescibed in a written law. A written law here refers to an Act of the National Assembly, or a, law of a state, any subsidiary legislation or instrument under the provisions of a law.
The question now remains, is there any law written or unwritten which empowers the police to arrest a father in lieu of his son who is a suspect but has absconded or vice versa?
Certainly, none. This at least could be gleaned from the totality of all the laws so far considered above.
It therefore goes without saying that it is ab- initio wrong, unwarranted and indeed in constitutional for police to arrest, detain or even arraign any person in lieu of the suspect.
It is a violation of the fundamental right of the citizen, reprehensible and totally unacceptable.
Accordingly, any citizen who is arrested, detained or punished howsoever in lieu of a suspect should take legal steps for necessary remedies.
For instance, such victims may take legal steps to enforce their fundamental rights to freedom to personal liberty as guaranteed under section 35 of the constitution (supra) and demand public apology and aggravated damage from the authority that brazenly infringed on this right.
Indeed, section 35(6) states clearly thus “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person and in this sub-section the appropriate authority means an authority or person specified by law”
This is the clear position of the constitution, African Charter on human and peoples’ Right to which Nigeria subscribes, and indeed our administration of criminal Justice Act 2015 and its domestication by 36 states of the federation including Delta state.
Always consult a Lawyer to protect your right from being needlessly impugned or violated in any material particular.
For the Law enforcement agents, your agencies are established by law. There is a legal duty on you to operate within the ambit of the law. To arrest or detain any person in lieu of suspects despite express prohibition by the law, is to say the least, ultra vires and attracts damages.
Please enforce and not violate the laws. The society will be better, happier and more progressive when all and sundry operate within the ambit of the law.
