Illegal arrest and detention of an individual by the police is now a daily occurrence which an average citizen encounters in the course of going about their daily business. This attitude stems from the ignorance of the scope of police powers and the nature of the individual right to liberty. According to Lord Denning MR in his book “FREEDOM UNDER THE LAW” (1949), he defined personal liberty as the freedom of every law abiding citizen to think what he will, say what he will on lawful occasions without any let or hindrance from any other person. It is in the light of this that the statutory power of the Police to arrest and detain is hereby examined under the 1999 Constitution of the Federal Republic of Nigeria as amended hereinafter referred to as the Constitution, Police Act 2020 and Administration of Criminal Justice Act 2015 (ACJA).
The Legal Requirement for Investigation Before Arrest Where an Allegation is Made To the Police
According to Section 31 of the Act, the police are bound by a specific procedure when an offense is reported. When an allegation is made or a person is brought before the police, the law mandates an initial investigation conducted with due process. The findings of this investigation must then be reported to the Attorney General (Federation or State) for legal advice.
The literal interpretation of this provision is clear: Investigation must precede arrest. That in any case when an allegation is made against a person to the police or a person is brought to the police on an allegation, the Police must investigate the allegation with due process before making an arrest. The reason being that a mere allegation is subjective and unsubstantial and cannot by itself metamorphose into a reasonable suspicion without factual proof for its credibility.
Therefore, an allegation only raises a mere suspicion of the commission of a crime and not a reasonable suspicion as the law requires. An investigation or inquiry into such an allegation with due process of law, is the only parameter to establish whether such an allegation is genuine or not. Where it is not genuine, there is no reasonable ground for an arrest but where it is genuine it becomes a reasonable ground for an arrest. This law operates to prevent the right to liberty of a person from being violated through the instrumentality of the police with unsubstantiated, frivolous, malicious and vindictive allegations as it is commonly found in our society today.
Regrettably, current societal practice often contradicts these legal principles. In many instances, the police respond to allegations—especially those leveled by influential figures with immediate arrests prior to any formal investigation. This premature urgency is frequently driven by the illicit pursuit of bail fees.
Nigerian courts have consistently reinforced this principle. In_Duruake v. Nwoke (2015) 15 NWLR (Pt. 1483) 417 CA_ the court held that arrest pending investigation is unconstitutional. And the position of law presupposes that while the police has the duty to infract a citizen’s right based on allegation, the police must first investigate and establish a prima facie evidence that will be tantamount to either the commission of same crime or reasonable suspicion of the commission of same crime which is the universally accepted practice among policemen. See also _Fatunmbi v EFCC & Anor._
The takeaway from this is that in the spirit of the law, a mere accusation is never a sufficient justification for an arrest. The “investigate before you arrest” rule is not just a policy; it is a constitutional safeguard for every citizen.
Arrest Based on Reasonable Suspicion
While the law grants police the power to act swiftly, this power is strictly confined by the requirement of “reasonableness.” Here is a breakdown of how section 35 (1)(c) of the Constitution and section 38(1)(a) of the Act functions and where the legal boundaries are drawn.
(a) The Statutory Power of Arrest
According to Section 35 (1)(c) of the Constitution and Section 38(1)(a) of the Act, a police officer is empowered to arrest a person without a warrant or court order, provided:
• The officer reasonably suspects the person has committed an offense.
• The specific law governing that offense does not explicitly require a warrant for an arrest to be made. See also Section 18 of the ACJA
(b) “Reasonable” vs. “Mere” Suspicion
The law makes a sharp distinction between a hunch and a legal justification.
• Mere Suspicion: This is subjective, grave as it may seem to the officer, and lacks factual backing. And cannot be a “blank check” for arrest.
•Reasonable suspicion: the Supreme Court in the recent case of _Olakehinde v EFCC (2025) 17 NWLR (Pt. 2014) 241_ held that the phrase “reasonable suspicion” means a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. See also the case of_S.C.C. (Nig.) Ltd. v. George (2024) 18 NWLR (Pt.1971) 421_ referred to (P. 278, paras. G-H) *_SCC (Nig.) Ltd. v. George, S.S.S. v. Ibrahim(2016) LPELR-41618_ ;_Enanuga v. Sampson (2012) LPELR-8487; Ubochi v. Ekpo (2014) LPELR-23523; Akingbade v. State (2015) LPELR-25850; Ajayi v. State (2015) LPELR-25851._* That is why the law under section 54 of the Act, strictly forbids establishing reasonable suspicion based solely on an individual’s personal attributes. This provision prevents profiling on the grounds of age, style of dress, hairstyle, or stereotypical assumptions. Most importantly, the practice whereby the police or other security agencies arrest people simply in order to make it easier for them to obtain information, without any real suspicion that the person is involved in an offence, constitutes a breach of Section 35 (1)(c) of the Constitution and Section 38 (1)(a) of the Act, since it was not aimed to achieve one of the purposes permitted under the paragraphs.
Prohibition of Arrest in Lieu
Section 36 of the Act and section 7 of the ACJA states:
_“A person shall not be arrested in place of a suspect.”_
This provision can be interpreted literally as it is. It is unlawful to arrest a person as a suspect in place of a person sought for an offense committed.
Prohibition of Arrest on Civil Wrong
Section 32(2) of the Act and section 8(2) of the ACJA. It is worthy of note that there is nowhere in our criminal law where the police are empowered to arrest citizens over civil wrong or breach of contract. But it is a known fact that most police officers in the course of carrying out their duties often act ultravires against the powers of arrest donated by the law by arresting and detaining citizens indiscriminately on civil matters.
DETENTION
For a Capital offence, section 62(3) of the Act and section 30(3) of the ACJA which outlines specific protocols for capital offenses, says where the nature of an offense is Capital offense, the accused shall be detained. Nevertheless, the law provides that such a person must be tried within a reasonable time. This is the only express provision of the law on power of police to detain a suspect.
For a non-capital offence, it must be noted that detention is not a rule but an exception. And it is a general principle of law that a suspect is entitled to bail and can only be denied bail in exceptional circumstances like the possibility of an escape. A person denied bail can only be held for a maximum of 24 hours by the Police and before this window expires, the individual must be arraigned before a court of competent jurisdiction. This principle flows out from the provision of section 35 of the constitution.
While initial detention by the Police may be legally sanctioned, prolonged detention constitutes an illegality. Prolonged where a suspect is held beyond the statutory limit without being brought to trial or without Court order for offence is unconstitutional.
The Constitution actually specifies 24 hours if a court is within a 40km radius, and 48 hours (or a period the court considers reasonable) otherwise.
Bail Or Temporary Release: The 24-Hour Rule
For a noncapital offense, a combined reading of Sections 62, 63, and 64 of the Act and section 30(1) and Section 31(1) of the ACJA establishes a mandatory framework for the release of suspects. The law is designed to ensure that detention remains the exception, not the rule, for non-capital offenses.
When a person is arrested for an offense that does not carry a death sentence (a non-capital offense), the police have a legal obligation to conduct an immediate inquiry. If that inquiry cannot be concluded swiftly, or if it is impossible to bring the suspect before a court of competent jurisdiction within 24 hours, or such other only as reasonable by a court, the police SHALL release the suspect on bail. Where a suspect is not released within this time frame the court must be notified.
Conditions for Release
The law provides flexible options for this administrative bail to ensure the suspect’s return for further investigation or court appearance:
(a)Self-Recognizance: Release based on the suspect’s own promise to appear, without requiring a third party
(b) With or Without Sureties: The police may request a guarantor (surety) if deemed necessary, but the conditions must be reasonable and not used as a tool for extortion.
(c)Reasonable Recognizance: Any financial or administrative bond set must be fair and attainable, reflecting the principle that bail is a constitutional right, not a revenue-generating scheme.
Key Legal Triggers for Release
For the provisions of Sections 62, 63, and 64 of the Act and section 30(1) and Section 31(1) of the ACJA apply, the following conditions must be met:
a. Nature of the Crime: The alleged offense must be a non-capital offense (e.g., theft, assault, fraud, etc.).
b. Incomplete Inquiry: The police investigation or inquiry cannot be finalized immediately.
c. Logistical Impossibility: The police are unable to arrange an arraignment before a court with the proper jurisdiction over the matter within the statutory 24-hour window.
Where the police fails to release a suspect under these circumstances, the law mandates that the court must be notified. This serves as a check against “holding charges” and prolonged, unlawful detention. The word “SHALL” in these sections strips Police of discretionary power. It is a mandatory command; once the 24-hour window closes without an arraignment, the suspect’s continued detention becomes a violation of the Rule of Law.
Holding Charge and Constitutionality of Holding Charge By the Police
This is associated with prolonged detention. According to Black’s Law Dictionary, “holding charge” means a criminal charge of some minor offense filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare a more serious charge.” According to Section 293 – 296 of the ACJA, a suspect arrested for an offense which the magistrate has no jurisdiction to try shall be brought before the magistrate for a remand order. This is one of the tactics adopted by the police for prolonged detention in Nigeria.
Whereas, constitutionally, the law says that a person arrested or detained shall be charged to court with jurisdiction over the alleged offense within reasonable time – section 35 of the Constitution. Therefore, the provision of the ACJA which allows a suspect to be taken before a magistrate court which lacks jurisdiction over the alleged offense, for a remand order is unconstitutional and unknown to our law.
In the case of SHAGARI V. CO.P. (2007) 5 NWLR (Pt. 1027) 275 at 298 Paras. C – G, 302 Paras. G – H (CA),(Summary judgment of Sanusi and Ogbuagu, J JCA), where it held:
“A holding charge is unknown to Nigerian law and any person or an accused person detained thereunder, is entitled to be released on bail within a reasonable time before trial (more so in non-capital offences). A holding charge has no place in the Nigerian judicial system. Persons detained under an ‘illegal’, ‘unlawful’ and ‘unconstitutional’ document tagged ‘holding charge’, must unhesitatingly be released on bail.
In the instant case, the appellants were arraigned before a Chief Magistrate’s Court, which certainly lacked jurisdiction in homicide cases/offences and there was no formal charge framed against them accompanied by proof of evidence as at the time the High Court heard their motion for bail. The above amounted to special circumstances for the High Court to admit them to bail, but by continuing to detain them on a “holding charge” was not a judicious and judicial exercise of discretion.
See also Enwere v. CO.P. (1993) 6 NWLR (Pt. 299) 333; Jimoh v. C.O.P. (2004) 17 NWLR (Pt. 902) 389; Ogori v. Kolawole (1985) 6 NCLR 534; Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49; Oshinaya v. CO.P. (2004) 17 NWLR (Pt. 901) 1.”
Lastly, BOLA KALE V. THE STATE (2006) 1 NWLR (Pt.962) 507 at p. 765, the Court of Appeal expressed the same sentiments in the following words: “It is an aberration and an abuse of judicial process for an accused person to be arraigned before a magistrate for an offence over which it has no jurisdiction only for the accused person to be remanded in prison custody and not tried or properly charged before a competent court for trial. It will be an infraction on the rights to fair hearing and liberty of the accused person.”
Attitude of Court Towards Unlawful Arrest and Detention
Jim-Jaja v. Commissioner of Police (2013) 6 NWLR (Pt. 1350) 225, the Supreme Court affirmed that a person who proves unlawful detention is automatically entitled to compensation.
In General Sanni Abacha & Ors v. Chief Gani Fawehinmi (2000) S.C. 45, The court held that detention without charge, especially by security agents, violates fundamental human rights as enshrined in the Constitution and the African Charter.
In Anogwie and Others v. Odom and Others (CA/OW/337/2014), the Court of Appeal emphasized that unlawful detention, especially coupled with torture, entitles a victim to compensation.
In Enwere v. C.O.P. (1993) 6 NWLR (Pt. 299) 333 CA, the court held that
The court is always prepared and will be quick to give relief against any improper use of power or any abuse of power by any member of the executive, the police or any other person, which results in unlawful detention of a citizen.
Remedy for Unlawful Arrest and Detention
According to section 35(6) of the Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person specified by law.
In Jim-Jaja v. C.O.P. Rivers State, (2013) 6 NWLR (Pt 1350) 225, the Supreme Court held that:
“By virtue of the provision of section 35(6) of the 1999 Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person specified by law. By the section, a person who has established that he was unlawfully arrested and detained does not have to ask for compensation before he is awarded one. He is entitled to compensation automatically.
Pursuant to S.22 of the Supreme Court Act and Order 8 r.12 of the Supreme Court Rules in this case, the Supreme Court invoked its power and the appellant was awarded sum of N2 million Naira as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully.
Again in Jaiyesimi v. Darlington (2022) 9 NWLR (Pt. 1835) 335, the court held that: “Where an arrest and detention are unlawful, it does not matter the length of time the plaintiff was detained. It is the unlawful action that has to be compensated in damages once the plaintiff proves his right to freedom of movement has been breached at the instigation or by the respondent. There is no need to show any special evidence of damage, so long as there is preponderance of evidence of the breach of the right to freedom. The Supreme Court in this Case awarded damages of 7.5million Naira to party unlawful arrested and detained.
Examples of the “Rule of Men” and Violations of the Rule of Law in Nigeria
The “Rule of Men” occurs when police act based on personal whims, biases, or a desire for profit rather than following established legal codes. In Nigeria, this often manifests as the abuse of police powers to bypass the protections offered by the Police Act 2020 and the Constitution.
• Detention as Personal Punishment: Officers sometimes use detention to settle personal scores or enforce “discipline” on civilians. While the police can internally discipline their own members for violating force regulations, they possess zero legal authority to order the detention of a civilian on personal grounds.
• Arrest on “Moral” Allegations: Recent reports, such as those by Sahara Reporters, highlight cases where evangelists were arrested and detained on unproven allegations of “fake miracles.” By preempting investigation with arrest, a process which is often weaponized for extortion, forcing detainees to pay millions of Naira for their freedom.
• Indiscriminate “Raiding”: In Akure and other urban centers, police often conduct sweeps in areas where a crime was previously committed or in spots labeled as “red-light districts.”
• Example: Recently In Akure the police arrested a delivery lady alongside some bystanders for “prostitution” simply for standing by the roadside. Under the law, mere presence in a location does not constitute a crime; however, these “random” arrests are frequently used to fill stations with suspects for the sole purpose of collecting bail money.
• Intimidation of Legal Counsel: In a direct affront to the justice system, police have been known to threaten lawyers with detention for simply attempting to represent their clients or insist on due process.
• The Media Shield
Another common tactic used to mask these “evil practices” is the public parade. After conducting random arrests for extortion, the police may announce to the media that they have caught “suspects in connection with an offense.” By obscuring identities or using vague labels, they create a facade of efficiency while violating the rights of innocent citizens.
Conclusion and Recommendations
It is clear from the above that the power of the police to arrest or detain any person is subject to the Rule of Law and not subject to the discretion of the police nor subject to the dictates of influential persons. The police have no power to detain anyone, save for as provided by the law. The moment a police officer violates the provisions of the law and consequently violates a person’s fundamental rights while “enforcing the law,” the objective of the Police Act and other relevant laws is defeated. Such actions move the Police away from the Rule of Law and into the Rule of Men. The Act says in section 32(1) that arrest, investigation and detention must be dealt with according to the provisions of the police act 2020.
It is vital to remember the core purpose of the Police Act 2020, as stated in its preamble and specific sections. Section 1 (Protection of Rights): The primary objective of the Act is to safeguard human rights and fundamental freedoms. Section 4 & 5 (Defined Functions): These sections mandate that the police prevent crime while respecting the liberty and privacy of all persons in Nigeria. Section 35(1) of the Constitution: This serves as the ultimate safeguard. Any arrest that bypasses the “reasonable suspicion” or “due process” requirements is a direct violation of this constitutional provision.
Recommendations:
(a) Enforcement of “Investigate Before Arrest: The systemic habit of “arresting to investigate” must be replaced with the legal standard of “investigating to arrest.”.
(b) Administrative Bail: Police stations should clearly display “Bail is Free” posters and list the criteria for self-recognizance to prevent officers from demanding “bail money.”
(c) Magisterial Oversight: Magistrates should conduct unannounced monthly visits to police stations (as empowered by the Administration of Criminal Justice Act) to inspect detention cells and release those held beyond 24 hours without a court order.
(d) Ending “Moral” and “Random” Raids: The practice of storming locations to arrest random citizens for “no legal basis ” or “vagrancy” must end.
(e) Evidence-Based Policing: Arrests in public spaces must be tied to a specific, identifiable crime. Standing by a roadside or specific place of crime is not a crime.
(f) Liability for Wrongful Arrest: Victims of random raids should be encouraged to file fundamental rights enforcement suits. When the police are forced to pay damages for “random raiding,” the economic incentive for extortion disappears.
(g) Protection of Legal Practitioners: Any officer who threatens a lawyer with detention for performing their professional duties should face immediate disciplinary action under the Police Act’s Code of Conduct.
(h) Bar Association Vigilance: The Nigerian Bar Association (NBA) branches should maintain a “Rapid Response” team to visit stations where colleagues are being intimidated or where suspects are being denied access to counsel.
(I) Divisional Police Officers (DPOs) should refuse to sign detention warrants for non-capital offenses unless the Investigating Police Officer (IPO) can show a prima facie case or reasonable suspicion established through preliminary inquiry.
(J) Legal practitioners and civil society must continue to challenge “arrest-for-bail” tactics in court to ensure that the Police Act 2020 functions as a shield for the citizen, not a sword for the oppressor.
Thank you!
Irewole O. Ali is the Head of Eagles Watch (Human Rights and Social Justice) 09025541820
