This is the basic truth that even some Nigerian lawyers do not understand. The police can only detain a person for the purpose of arraigning him in court. The police station is not a destination. It is just a short way to the courts.
Many times, I hear to my utter shock people say that the police detained a person while they conducted investigation. You cannot detain a person based on the fact that somebody petitioned against him.
This is why the constitution said that the police cannot detain a person for more than 24 hours. It is for the court to control the detention of people, not the police. This may sound new to some of you, but there are more than 20 court cases, including those of the Supreme Court of Nigeria, which stated that the police cannot detain a person while still investigating a case or while still searching for evidence.
Two days ago, in Benin City, the Inspector General of Police made the same argument while addressing police officers. He said:
“I don’t expect most of you to bring people into our facility and detain them indefinitely while you are shopping for evidence. You must be able to have evidence before you bring them into our facility. You cannot abridge the fundamental rights of Nigerians; you cannot treat them as if they are people who have been conquered. You must respect these rights,”.
But they do it all the time and many people think they are right. You hear even educated people tell you that the EFCC or the police are detaining this man while investigating the case. That is crazy. Now, let me share with you, particularly the lawyers, the following steps in dealing with lawful taking away of a person’s liberty.
STEP 1: ARREST: The first point when you lose your liberty is if you are arrested by an officer of the peace (police, efcc, etc). There is a legal standard that must be met in order for a person to be arrested. That standard is called reasonable suspicion or obtaining a warrant. If the court has issued a warrant for you to be arrested, the warrant is in itself the legal basis for your arrest. But in cases where warrants do not apply, the arresting officer must have a ‘REASONABLE SUSPICION” that you committed a crime. This is a serious matter. It has to be a reasonable suspicion. It means that the police officer has reasonable basis or information to sustain the belief that you probably committed a crime. (“probably committed a crime”, not “possibly committed a crime”)
STEP 2: INDICTMENT OR CHARGING YOU TO COURT: After you have been properly arrested, there is yet another decision that must be made in order for the case against you to go forward. That decision is that somebody will decide whether to charge you to court or not. To make this decision, someone would look at the evidence and the investigation done (before your arrest) and determine whether in his reasonable opinion there is sufficient evidence that would lead to conviction if tried in court. In other words, that person is looking for what we call prima facie case, i.e., whether “on the face of the evidence” (prima facie) there is a case against you. We call it “on the face of the evidence” because you have not yet presented any defenses you may have. So, prima facie case means whether there is evidence to convict if you were to admit all the allegations and discovered during investigation. If there is a prima facie case, they will file charges, (information or an indictment) against you. You are now going to the judge.
Note that with the exception of the warrant issued by the judge, all decisions about arresting you and charging you are made by the executive arm of the government , i.e., the police or the Attorney General.
STEP 3: TRIAL AND CONVICTION: After you have been charged to court and your plea of not guilty taken, there will follow a trial. From the moment you are charged, all decisions about the process will be made by a judicial officer, otherwise known as a judge. The judge (jury in other countries) will determine whether you are guilty or not guilty. Like at the moment of your arrest and the moment they decided to charge you, there is a standard of proof that the judge must meet in order to decide that you are guilty. That standard is called “proof beyond reasonable doubts”.
Okay, watch it: I have shown you now the three evidentiary standards or standards of proof that must be met before decision is made at each stage in the criminal justice process. First, the police must have a reasonable suspicion or warrant in order to arrest. Two, the prosecutor must have a prima facie case in order to indict. And three, the judge must have proof beyond reasonable doubt in order to convict you.
Now, if any of the decisions is made without meeting the required standard, that will lead to injustice.
Now, if the police have arrested a person based on reasonable suspicion, how come that they should not detain the person until they transform or grow the reasonable suspicion into prima facie case? LOL. It means that what the law regards as reasonable suspicion has to be really strong. The police really have to have something which they can further evaluate and develop into a prima facie case within hours. They are not allowed to keep a person while fishing around for evidence. So, all that time the police arrests you for all nonsensical reasons is wrong.
I have given you a general overview of this process. There are some intricacies for those of you that want to go deeper. For instance, what happens where the police rush to the court and obtain an order that you be detained and the court grants them that order? That was what the EFCC used to justify continued detention of Olisah Metuh for two weeks. What if the police give you an administrative bail and continue to detain you because they said you could not meet the terms of that bail? The court has held that failure to meet administrative bail is not basis for indefinite police detention.
