Oftentimes arrested suspects are detained and tortured to reveal information to the police. This callous and inhumane act has been left unchecked and some of the victims of torture and degrading treatment do not take any action thereby giving the police morale to continue in this illegal practice. Sometimes they are placed under harsh conditions to coerce them psychologically to say things so as to escape the harsh situation. This method has made innocent suspects confess to a crime they never committed and written statements just to escape or prevent being tortured. Most cases persons arrested after being tortured are later released or discharged by the court.
Torture is illegal in our justice system because of the presumption of innocence enshrined in our constitution. Most persons detained by the police do not know their rights and others lack the wherewithal to take up an action.
According to statistics victims of torture are usually the poor and the uneducated people. The first category lacks the fund to take up any action and the second doesn’t know their right. Below are some of the rights of a person arrested by the Police as enshrined in our constitution.
1.Right of Silence – Section 35(2) of the 1999 Constitution, provide for the right of a suspect to remain silent while under arrest or being held at the Police station.
The Section provides: Any person who is arrested or detained shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
The import of this provision, popularly referred to as the right to freedom from self incrimination is that an accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station. It is therefore illegal for the Police to compel an accused or suspect to talk or make any statement, against his wish and to consult a lawyer first, before doing so.
A suspect should insist on having a legal Representative present during interview.
2.Right to Counsel- An accused person or a suspect, who is under arrest or detention, has a right to Counsel also guaranteed in Section 35(2) of the 1999 Constitution, while under arrest or being held at the Police station.
The Section provides that any person who is arrested or detained shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
The import of this provision is two fold, on one hand the section guarantees the right to silence earlier discussed, on the other hand, it provides that such accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station and cannot therefore be compelled to talk or make any statement, against his wish and to consult a lawyer first, before doing so.
3. Right To Legal Assistance and Advice: Related to the right to legal representation is the corresponding right to free legal services for those who cannot afford same. Section 46 (4)(b) of the 1999 Constitution empowers the National Assembly to make provisions for the rendering of financial assistance to any indigent citizen of Nigeria where his rights under Chapter IV of the Constitution has been infringed or with a view to enabling him engage the services of a Legal Practitioner to prosecute his claim. Pursuant to this Section, the Legal Aid Scheme was established by the Legal Aid Act Cap L9 LFN 2004, now Legal Aid Amendment Act (2011). See also s3(1)-(3) ACJL
3. Right to freedom from unnecessary restraint: Just like it happens during arrest, criminal accused persons or suspects are entitled to the right not to be unnecessarily restrained during Police interview. This right is closely associated with the right to have a legal representative present during the interview, as no Lawyer worth his salt would allow his client to be interview while handcuffed, or in chains as it sometimes happens. Such treatments are degrading, contrary to Section 35 (1) of the Constitution and can render whatever statement obtained pursuant to such interview inadmissible. What is more, trial by ordeal is clearly prohibited under our Criminal jurisprudence – right to personal liberty
4. Right to bail – The right of a suspect to bail is a constitutional right fully guaranteed under Section 35(4) and (5) of the 1999 Constitution, which provides that a suspect is entitled to be released with or without conditions, even if further proceedings may be brought against him, within a period of a day or two days of his arrest and detention, as the case may be. This right is given effect to by the provisions of Sections 17, 18 and 19 of the CPL which empowers the police to grant bail to a suspect, on his entering into a bond with or without a surety for a valuable sum, to report at the police station at a given date and time.
This is also available in Section 17(2) of the Administration of Criminal Justice Law (ACJL).
Where by virtue of the nature and circumstances of a particular case it is not feasible for the police to release the suspect on bail, he must be charged to court not later than a period of 24 to 48 hours, from the date of detention depending on the circumstances of each case– Section 35 (4) & (5) of the Constitution; Section 3(2) of ACJL; Section 17 of CPL. In Eda v. Commissioner of Police (1982) 6 NCLR, 223, the court held that where the Police arrests and detains a person over an allegation or reasonable suspicion of committing an offence, and investigation of the case are on-going, it is their duty to offer bail to the suspect and/or charge him to court, within 24 hours, under the appropriate section of the CPL.
5. Right to presumption of innocence: Section 36(5) of the CFRN, 1999 states that every person charged with a criminal offence shall be presumed to be innocent until proven guilty.
Right to be informed (in writing) of the reason for arrest: Section 35(3) of the CFRN, 1999 states that a person arrested shall be informed within 24 hours of the facts and grounds for his arrest or detention (in a language he understands). This applies to arrest and detention as well as to interview. A person being interviewed ought to be informed of his status in the interview, whether as a suspect or an a witness, this is to enable him decide whether to activate his right against self incrimination or the right to Counsel of his choice. Torture of a suspect is illegal because of presumption of innocence. Since the suspect is presumed innocent, torturing the suspect is an infringement on this right.
6. Right to public apology: Section 35(6) of the CFRN, 1999 states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. This thus arises if after the interview and/or pre-trial investigations, it is realized that the person was wrongly arrested.
Right to counsel: section 36(6)(c) Constitution
It is illegal for the Police to torture a suspect or coerce a suspect to make a confessional statement against his will. Generally confessional statements are admissible if it was made voluntarily. The Evidence Act 2011 clearly frowns at statements made out of torture or duress.
Section 29(1) Evidence Act provides that; In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
S29(2) EA: If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained —(a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
Section 29 (3): In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
S29(5): In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
The constitution of Nigeria does not support such acts that infringe the rights of its citizens. Chapter IV of the constitution deals only with the rights of Nigerians and what constitutes infringement of these rights. In section 35 of the constitution, provides that every citizen of Nigeria has the right to dignity of the human person.
Dignity, in this sense refers to proper treatment as a human and not an animal. When a a person has been detained by the police, tortured and subjected to an inhumane or degrading treatment, such a person can bring up an action in court for the enforcement of his fundamental human right.