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Hello readers. I have decided to share with you my article on the the anti-terrorism act of Nigeria. I encourage you to read and let me have your thoughts on it. Let's learn from each other. Thanks.
CONSTITUTIONALITY
OF THE PROVISION FOR THE APPREHENSION OF SUSPECTS UNDER THE TERRORISM
(PREVENTION) (AMENDMENT) ACT, 2013
By
Mojirayo
Ogunlana-Nkanga
Legal
Practitioner, BL, LLB.
INTRODUCTION
On Wednesday 20th February, 2013, the
Conference Committee, constituting both houses of the National Assembly amended
and passed into law the TERRORISM (PREVENTION) (AMENDMENT)
ACT, 2013.[1]
The law, purporting to give greater powers to detain
and prosecute suspects under the act to law enforcement agencies, provides
amongst others for the following:
27 (1) The court may, pursuant to an ex-parte application, grant an order for the detention of a suspect under this Act for a period not exceeding 90 days subject to renewal for a similar period until the conclusion of the investigation and prosecution of the matter that led to the arrest and detention is dispensed with.
(2) Any officer of the law enforcement or security agency may use such force as may be reasonably necessary for the exercise of the powers conferred by subsection (1) of this section.
(3) A person found on any premises or place or in any conveyance may be detained by the relevant law enforcement officer of any agency until the completion of the search or investigation under the provisions of this Act.[2]
The question for consideration in this paper is the
constitutionality of the above section. What are the fundamental rights of
arrested persons or suspects? Whether or not a law which allows law enforcement
agencies to incarcerate and detain persons or suspects pending the completion
of an investigation is constitutional? Whether or not the provision of section
27 (1), which allows the detention of a suspect for a period of 90days and upon
renewal of an exparte application for another period of 90 days amounts to
arbitrary arrest and detention and a breach of the fundamental rights
guaranteed under sections 34, 35 and 36 of the 1999 Constitution of the Federal
Republic of Nigeria as amended?
1.0 Meaning of Fundamental Human Rights
Human rights are inalienable rights and freedoms of
all human beings without distinction of any kind, such as race, colour, sex,
language, religion, political, or other opinion, national or social origin,
property, birth or other status.[3]
For further analysis on the definition of Human Rights, see the Vanguard report[4].
“What is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself”
Fundamental human rights are inalienable and
indivisible and are not bestowed on humans by any authority, be it religious,
social, political or by any government. They are natural rights and differ from
civil rights which are provided for under the constitution of each sovereign
government.
Human rights are therefore incorporated by
individual sovereign governments for the benefit of persons who are citizens or
residents in that particular sovereign nation.
Article III of the Universal Declaration of Human
Rights provides:
“Everyone has the right to life, liberty and security of person”
This is also provided for under chapter IV of the
constitution of the Federal Republic of Nigeria, 1999 as amended.
1.1 Constitutional Provision on Apprehension
35. (1) 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 –
(c) 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) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of -
(a) 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
(b) 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.
(5) In subsection (4) of this section, the expression "a reasonable time" means –
(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; and
(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.
2.0 The unconstitutionality
Any law which purports or allows the detention of
any person without trial violates the right to personal liberty and dignity of
the human person guaranteed under sections 34, 35 and 36 of the 1999 constitution
of the Federal Republic of Nigeria and Articles V, VI and VII of the African
Charter on Human and Peoples' rights.
The clear provisions of the constitution are that every
person is entitled to being charged and tried for a crime alleged against him.
Furthermore,
Article VII (1) (d) of the African Charter on Human and People’s Rights provides
that:
“every individual shall have the right to have his cause heard. This comprises...
(d) the right to be tried within a reasonable time by an impartial court or tribunal”
Therefore, where any person is arrested or detained
in accordance with the law, such person must be brought before a court within a
reasonable time.
“Reasonable time” was defined under the 1999
constitution as amended as, ‘within 24hours where a court of competent jurisdiction
is within a forty kilometres radius and in any other case, within 48hrs or such
longer period as may be considered by the court to be reasonable’.
Note that the use of “such longer period as may be
considered by the court to be reasonable” does not confer on law enforcement
agencies or the police the unlimited discretionary power to detain suspects
beyond the constitutional guaranteed rights to trial.
However, proponents of the anti terrorism act as
amended will argue that human rights are not absolute; that these rights can be
derogated from in certain circumstances except in the case of right to life.
Granted, Section 45 of the 1999 Constitution as
amended stands to take away the rights given to citizens in the interest of
public morality, public safety, or public health; limiting citizens’ stated
rights but should the law be used to perpetuate injustice in the end? When it
comes to justice, does the end justify the means as propounded by Niccolo
Machiavelli[6]?
It should be stated at this point that previous laws
that attempted to redefine the meaning of reasonable time were held to be
unconstitutional. For instance, Section 17 of the Criminal Procedure Act, LFN
2004, provides thus:
“When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of a police station may, in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of the peace having jurisdiction with respect to the offence charged within twenty-four hours after he was so taken into custody, inquire into the case, and, unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a court or justice of the peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 of this Act as soon as practicable whether or not the police inquiries are completed.
The Court of Appeal in the case of Eda vs. Commissioner of Police [7] held
that the phrase “as soon as practicable” was inconsistent with the specific
periods provided for by section 35(4) and (5) of the constitution. So also
Section 23 of the Police Act on the reasoning that section 35 (4) and (5) does
not recognise a residual right in a police officer to determine that an
arrested person be denied bail because "the offence appears to the officer
to be of a serious nature"
From the foregoing, any attempt to keep a person in
custody during an investigation without a charge or trial is unconstitutional,
arbitrary, inhuman and degrading.
Also, some may argue that such accused persons will
be detained in humane conditions and that this should meet the justice and
strike a balance between fundamental rights of a few against the safety of the
general public[8].
When they argue this way, I wonder whether by
mentioning humane conditions, they refer to Nigerian prisons[9].
It is not in doubt that Nigerian prisons are in deplorable conditions. The
conditions in the prisons, as reported[10]
by some organizations, are laughable. Even prison dogs live under a better condition[11].
We should also consider detention by the Department of State Services. Are
those conditions really humane in a country like Nigeria?
There’s no doubt that anti-terrorism laws are very
necessary considering the activities of terrorists in recent times. They are
imperative for the protection of citizens but there have been several reported
cases of these laws being abused. Take for instance Ethiopia[12],
Turkey[13]
and Pakistan[14].
The dehumanizing treatment to which the government put Journalists and other
citizens, who use the internet in reporting factual information, under the
guise of the anti terrorism laws remains questionable.
Nigeria is a country known for its incessant
corruption and her government known for its intolerance[15]
to the press, repression of the media[16]
and freedom[17]
of information and expression. Laws should bring about sanity in the society
and not further the cryptic devices of the government.
Consider the ongoing
case[18]
in the United States[19].
For instance, the United States, a country whose criminal system is perceived
to be more impartial than Nigeria, is presently facing criticism on the issue of
Guantanamo Bay Prison[20].
In New York, U.S.
District Judge Katherine Forrest in Manhattan said in a ruling[21] in a case brought by journalists, scholars and
others that “an individual could run the risk of substantially supporting or
directly supporting an associated force without even being aware that he or she
was doing so.”
This Anti-terrorism
Act could result in unfettered powers
for the Nigerian government, allowing it to detain innocent citizens in the
name of acting under the auspices of the law.
Furthermore, the
Anti-terrorism Act only made available certain protections for lawyers failing
to realise that journalists, just as lawyers, are also bound with the duty of non disclosure[22] and confidentiality of the news reported by
them. A journalist who fails to maintain this code for example would lose
credibility and may as well shoot himself in the head because he may never be
able to keep up his reputation as a journalist. In this case, would we advice he
picks up another profession? This amounts to self censorship if he cannot
report on issues that are of public interest. Read the perfect example of
Nigeria government’s suppression of truth[23]
.
To draft a law which allows the incarceration of
accused persons pending investigation in my view is, unjust. Rhetorically I ask,
after an investigation which proves the suspect innocent, will the
incarceration of the suspect be justified? In my opinion, this will amount to
an unquantifiable breach as the only remedy available to the individual is a
public apology and compensation, which may not be equal to the pain, both
physical and psychological, which the individual has suffered in detention. And
would such an
individual be able to put their trust in the justice system?
The constitutional right of due process is
guaranteed and should be upheld for Nigerians even if they are suspected or
accused of terrorism. Any law which provides otherwise should be rendered null
and void as it is inconsistent with the constitution.
Section 1 (1) and (3) of the constitution of the
Federal Republic of Nigeria expressly provides that:
(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
The detention of any person without trial and pending
investigation will also bring about the infringement of the constitutional and
statutory presumption of the accused person's innocence until proven guilty by
a court of law.[24]
Thus, it will make mockery of the presumption of innocence.
It is then safe to state that the provision of
section 27 Terrorism (Prevention) (Amendment) Act, 2013 is unconstitutional.
The fact that the law provides for the obtainment of an exparte order does not
derogate the provisions of section 35 of the constitution. The mere fact that
the law purports to allow the detention of suspects without charge for a period
of 90 days and more is unconstitutional.
Conclusion.
This Act does not give room for the proper charge of
a suspect. Every arrested person is entitled to bail as guaranteed by section 35
of the constitution even though this is subject to the discretion of the court.
The detention of suspects without affording them the opportunity to appear
before a court and to apply for bail is arbitrary and an abuse of power.
The law should not be used as an instrument of
oppression and suppression or to trample on the rights of citizens guaranteed
under the constitution.
Any person arrested in respect of the Anti-Terrorism
(Prevention) (Amendment) Act should be afforded the right to trial as
prescribed under section 35 of the Constitution of the Federal Republic of
Nigeria as amended.
It is my humble submission that proper steps should
be taken by the court to curtail the use of this statute for the infringement
of rights and it should declare this provision unconstitutional, null and void
to the extent of its inconsistency.
2. The
Terrorism (Prevention) (Amendment) Act, 2013
[3]
The Universal Declaration of Human
Rights, 1948.
[5] (1996)
8 NWLR (part 464) 15
[6]
Excerpt from his book titled “The Prince”, written in the early sixteen
century.
[7]
(1982) 3 N.C.L.R 219
[24]
Section 36 (5) of the Constitution of the Federal Republic of Nigeria
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