Nathaniel Ngwu
2 January 2009
opinion
The free will to exercise a wish in tandem with the moral and legal principles of life is no less of being a human being. Right to personal liberty is the freedom to live as you choose without too many restrictions or constraints from the government or its agencies.
It encompasses the freedom to vote and be voted for, the right to access and disseminate information without the repercussion of victimization. The free will to attune with the governmental process and aspire to attain a certain status in life and follow such passion assiduously and respectively. It is a freedom recognized by nature and human wisdom of law.
According to George Washington, freedom is a light for which many men have died in darkness. Man, being the entrusted landlord of all other creature, should have the liberty of will, action and movement. This is to stimulate other animate and inanimate beings to the wish of the nature.
But as the potter knows the make up of his pot and its expected expiration, God instill in man the wisdom to legalize and curtail his fellow man's actions in order to ensure tranquility and cohesion in his environs. This, therefore, necessitated avalanche of legal instruments aimed at protecting and promoting personal liberty. Hence, the civil and political rights is recognized by both international and local laws.
These laws, especially section 35 of chapter 4 of the 1999 constitution of Federal Republic of Nigeria, included the exceptions or limitations of personal liberty. To wit: "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- (a) In execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) 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;
(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; (d) In the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; (e) In the case of persons suffering from 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 commu-nity; or (f) 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.
Deprivation of liberty sometimes augur into the purview of law. There may, accordingly, be recognized that liberty be denied over commission of certain serious offences. Liberty may also be deprived in terms of administrative authorities wherein it is necessary as in the case of mentally disturbed persons. During state of emergency or of disarray, right to liberty may legally be limited while intending to preserve life. See section 305 of the 1999 constitution of Federal Republic of Nigeria and Article 4 of the international covenant on civil and political rights.
Deprivation of rights as a result of imprisonment for debt is prohibited. The ilk of deprivation meant in the international instruments relates to arrest, apprehension, detention, incarceration, prison custody, remand. And any other sorts of arbitral deprivation of human rights in any guise of pretense whether of executive or judiciary before, during or after the trial, or in the absence of any kind of trial are regarded as inhuman and insincerity of governance.
Any act that is ostensibly done within the ambit of the law that swings against human rights or restrains freedom without cogent breach of the law is arbitrary and must be condemned.
The Working Group of United Nations Commission on Human Rights outlined three categories of circumstances that may amount to arbitrary deprivation of rights of liberty: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him; (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by Article 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, in so far as States parties are concerned, by Articles 12, 18, 19, 21, 25, 26 and 27 of the International Covenants on Civil and Political Rights; (c) When the total or partial non-observance of the international norms relating to the rights to a fair-trial, spelled out in the relevant international instruments accepted by the states concerned, is of such gravity as to give the deprivation of liberty an arbitrary character."
These criteria, as spelt out by the Group, are the body of the principles for the protection of all persons under any form of detention or imprisonment as a guide to the state parties, as laid down in Article 9 and 14 thereof. This was meant to uplift the sacred nature of human rights and ensure that they are not hampered in any form. The fundamental rights and freedom of all human beings often include the right to life and liberty, freedom of expression and thought and equality before the law.
Human rights in tandem with life are inalienable moral entitlement. Its application must be accorded equally, irrespective of one's status, tribe, state or nationality. The culture of preserving human rights in ensuring their application can also be deduced from the categorization of rights in the international instruments.
In Nigeria, therefore, suspects are being kept in police custody under the guise of investigation. Sometimes they are kept for weeks at the mercy of the investigation police officer (IPO) until they comply with colossal amount before bail could be granted. Research has revealed that deprivation of liberty occurs often in the police stations.
Thus, section 27 of Police Act states "when a person is arrested without a warrant, he shall be taken before a magis-trate who has jurisdiction with respect to the offence with which he is charged or is empowered to deal with him under section 484 of Criminal Procedure Act as soon as practicable after he is taken into custody."
The ill-attitude of the police of over detention of hapless suspects hitherto aggravates into what is being regarded as "holding charge". It is the practice where, after an arrest, the police impromptu take the suspects to a magistrate who either adjourn for trial or declines jurisdiction, order for the remand of the suspects in prison until proper arraignment before a court of competent jurisdiction.
Within this period, it behoves on the Police to compile their evidence and be ready for trial. Instead, the Police abandon the suspects in the prison while the cause of justice, which they started, is haphazardly truncated.
The accused is not properly brought before the law and his own right to liberty is at abeyance, pending until the visit of either the human rights activists, non governmen-tal organizations (like Legal Resources Consortium) or Attorney General to the prison. To this end, the rights of liberty is arbitrary deprived. The provisions of Nigerian grundnum (the constitution) clearly stipulates under subsection (5) of section 35 of the 1999 constitution that the reasonable time within which to bring a suspect under arrest or detention, before a court for trial shall be one day (24 hours) where the distance of a nearby court is at a radius of 40 kilometers or 2 days in any other circumstances as may be considered reasonable by the court.
While reacting to unlawful detention, the court, in Enwere v. Commissioner of Police (1993) 6 NWLR 333, condemned the practice when it stated "...holding charge without any information filed against him (the accused) before any law court...constitute improper use of power or a flagrant abuse of power by the police for which they stand condemned.
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