Arrest is an exercise of State power to deprive a person of liberty, consequent upon or sequel to a criminal charge. The purpose of the arrest is to bring the person either before a court or to secure the administration of the law. It serves the function of informing the person and community of an allegation of crime.
(E.B UKIRI V. EFCC [2018] ALL FWLR (PART 950) P. 1775 Paragraph C-E) Methods employed by state agencies to effect arrest have been the subject of controversies across the globe. Can state officials effecting arrests go to any length in carrying out that mandate? What amount of force would be justifiable in effecting the arrest of an unarmed individual?
The Administration of Criminal Justice Act (ACJA) (2015) permits the arrest of suspect or defendant (Section 3) and allows the officer effecting arrest to touch the suspect unless there is submission to custody by word or conduct (Section 4). Section 5 however prohibits unnecessary restraint unless there is threat of violence on the part of the person to be arrested or when arrest is being effected as a result of court order or for the safety of the person being arrested. Section 8 of ACJA particularly reinforces the provisions of Section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Everyone is to be treated with dignity, not subjected to torture, inhumane or degrading treatment etc. Additionally, every person arrested in Nigeria, is entitled to a presumption of innocence notwithstanding that he/she is suspected of having committed a crime.
Apposite to Section 8 of ACJA, are the unambiguous provisions of Section 9, that where a suspect is arrested by a police officer or a private person, the officer making the arrest or to whom the private person hands over the suspect: (a) may search the suspect, using such force as may be reasonably necessary for the purpose. The use of force in the arrest and search processes must be reasonably necessary for it to be legal. The common justifications for violent arrests is the need to spring surprises and have unhindered access to the evidence of crime. The provision of Section 9(a) is not a carte blanche for violent arrests by law enforcement agencies.
In Nigeria, there are reported instances of law enforcement agencies going to the extreme in effecting arrest of non-violent and unarmed suspects. On October 8, 2016, the residences of three Judges were raided by officers of the Department of State Security (DSS). Although these incidents were widely condemned there were no suggestions that judicial officers were immune from arrest. Theodore Roosevelt was right, “No man is above the law and no man is below it: Nor do we ask any man’s permission when we ask him to obey it”. The objections revolved around the gestapo style of the operation. Why were the justices not invited for interrogation, either directly or through the office of their respective heads of court? What justifies a midnight raid of personal residences of judges? Was this a subtle attempt to intimidate the Judiciary?
Business premises have not been spared and have suffered disruptions to businesses and destruction of properties during arrest of suspects. On the 9th of June, 2022, Channels Television aired how the EFFC arrested over 140 persons suspected of engaging in internet fraud, popularly known as “Yahoo Boys”, in some hotels in Ikorodu, Lagos State. The arrests were made after the agency forcibly gained access to rooms where guests were lodged. Workers at the hotel expressed feeling harassed. The hotel owners complained that they had no prior notice and that the activities of the EFCC attracted negative publicity and unimaginable losses to their business. There are however explicit legal requirements on the use of force to effect arrest which are examined next.
Section 12 of ACJA 2015 requires a person residing in or being in charge of a house or place in which a police officer reasonably believes a suspect has entered or resides to allow the police officer free access to the house or place and afford all reasonable facilities to search the house or place for the suspect sought to be arrested.. The same provision allows the police officer to break open any outer or inner door or window of any house or place, whether that of the suspect to be arrested or of any other person in order to effect an entrance into the house or place where after requesting entry, such entry is denied by the resident or occupier.
It seems clear from the above that owners or occupiers of premises when in receipt of a request for entry by the police to carry out an arrest should facilitate such entry in order to avoid forcible entry. It is important that there must be a prior demand for entry before the measures contemplated under section 12 are initiated. The use of force to gain entry into a property in order to effect an arrest can be condoned if the goal is to catch the suspect in the act or prevent destruction of vital evidence that may be used against suspect(s). It is a last resort and never a first resort. The ACJA did not specify what force is excessive and as such, the burden of proof is on the complainant. The use of force in arresting a suspect should be commensurate with amount of resistance put up in opposition to the arrest. Excessive or the reckless use of force is not what the law envisages.
The Court of Appeal in UDOSEN V. THE STATE [2005] 8 NWLR (PART 928) PAGE 587 held that any person authorised by law to use force is criminally responsible for any excess according to the nature and quality of the act which constitutes the excess. This decision is on all fours with AKPAKPAN V. THE STATE (2021) 17 NWLR (PART 1805) 231 at 242 where the Supreme Court held that: an agent/agency of government which is found to have been excessive in the use of power of arrest can be held liable by the court. Also, once facts deposed to by a person shows prima facie breach or contravention of the right to personal liberty, the burden of proving that the arrest and detention of the person is lawful and justified under the constitutional provisions is on the party making arrest. This was the position reiterated by the Supreme Court in EZEIGBO & ANOR v. INVESTMENT LIMITED & ANOR, (2022) EJSC (VOL. 179) 206.
Law enforcement agencies should develop and diligently implement internal procedures to sanction officials who act rashly in carrying out the duties of search and arrest. State agencies should develop the culture of initiating criminal processes against agents for this abuse of power. In civil litigation, appropriate damages should be ordered against both the erring agent and the law enforcement agency.