Illegal Powers of AGF and Govs to Detain

GUEST COLUMNIST : Femi Falana

The Criminal Ordinance imposed on conquered territories by the British 1colonial regime provided for the detention of people at the pleasure of His Majesty, the King of England. The few traditional rulers who challenged the ruthless exploitation of the resources of the territory of Nigeria and particularly the monopoly of coastal trade by foreign business tycoons were deposed and deported to remote areas in Caribbean Islands. It is on record that some of those traditional rulers died in exile. At the end of colonial rule the obnoxious provision of detaining citizens at the pleasure of governors was retained in the criminal procedure codes of the independent states including Nigeria. Under the current democratic dispensation some elected State Governors have continued to depose and banish traditional rulers to remote areas in the country for security reasons.

To legitimize the colonial legacy the Administration of Criminal Justice Laws of all states in Nigeria have empowered State Governors to detain people at their pleasure. Curiously, hell was let loose last week when Governor Hope Uzodimma of Imo State signed into law the Administration of Criminal Justice Bill which had been passed by the Imo State House. The governor has been singled out for sustained attack in the media because section 484 of the Law has conferred powers on him to detain people at his own pleasure. Instead of the diversionary fixation on the Imo State Law it is high time the constitutionality of keeping citizens in custody at the pleasure of the AGF and State Governors was examined.

JUSTIFICATIONS FOR DETAINING CITIZENS AT THE PLEASURE OF GOVERNORS

Section 484 of the Imo State Administration of Criminal Justice Law provides that: “Where any person is ordered to be detained during the Governor’s pleasure he shall notwithstanding anything in this Law or in any other written law contained be liable to be detained in such place and under such conditions as the Governor may direct and whilst so detained shall be deemed to be in legal custody” while section 485 thereof states that “A person detained during the Governor’s pleasure may at any time be discharged by the Governor on license. “The license under the section may at any time be revoked or varied by the Governor and where license has been revoked the person to whom the license relates shall proceed to such place as the Governor may direct and if he fails to do so, may be arrested without warrant and taken to such place.”

In supporting the controversial sections of the Imo State Administration of Criminal Justice Law some lawyers have placed premium on the case of Guabadia v. The State (2004) ALL FWLR (Pt. 205) 191 SC, (2004) 2 SCNJ 55 where the death sentence passed on the appellant was set aside and, in its place, the appellant was ordered to be detained at the pleasure of the Governor of Edo State. With respect, the case is totally irrelevant as the constitutional validity of section 208 of the repealed Criminal Procedure Law of Edo State was not considered by the Supreme Court. In fact, when the constitutionality of a similar provision was raised in the case of Sunday Modupe v The State (1988) All N.L.R.371 the apex court said that it could not be considered as it had not arisen from the issues for determination formulated by the parties in the appeal.

Other lawyers have made a strong case for the retention of the provision of the law on the grounds that the order is always made by courts to detain convicted children and persons who are non compos mentis. It is submitted, without any fear of contradiction, that the provisions of all laws that empower citizens to be detained at the pleasure of the Federal Attorney-General and State Governors cannot be justified under section 35 of the Constitution of Nigeria and article 6 of the African Charter on Human and People’s Rights Act which have guaranteed the personal liberty of every person in Nigeria. No doubt, the human right to personal liberty is not absolute. But no person shall be deprived of such liberty save in strict compliance with a procedure permitted by law.

Hence, the conditions under which people may be legally deprived of their fundamental right to personal liberty are set out in sections 35. It is specifically stated that “persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants” may be deprived of their liberty “for the purpose of their care or treatment or the protection of the community.” Section 330 of the Lagos State ACJL 2015 is in pari materia with Section 484 of the Imo State ACJL 2020 except that the term “at the pleasure of the Governor” in used instead of “at the discretion of the Governor” in the Lagos State ACJL. Since the President is busy with the management of the affairs of the Republic the Attorney-General of the Federation (AGF) is empowered by section 438 of the Administration of Criminal Justice Act to detain citizens indefinitely in a safe custody or suitable place other than prison or mental health asylum .

It is submitted that no violation of fundamental rights to personal liberty and fair hearing can be worse that the treatment that is meted out to a convict who is detained indefinitely at the pleasure of the AGF. In other words, neither the Constitution nor the Criminal Code could have contemplated a situation whereby a trial court that has tried and convicted a defendant will turn round to make an order to the effect that the convict be detained by the AGF who had successfully prosecuted him! By directing a convicted person to be detained indefinitely in a safe custody on the orders of the AGF a trial court has abdicated its judicial functions to the executive organ of the Government. More so that it is only the AGF who may at any time revoke or vary the licence. All laws that provide for the preventive detention and post conviction detention of citizens are inconsistent with section 35 of the Constitution and are illegal, null and void by virtue of section 1(3) of the Constitution.

USURPATION OF JUDICIAL POWERS BY THE EXECUTIVE

It is submitted that the Constitution did not envisage a situation whereby the judicial powers of the Federation vested in the courts by section 6 of the Constitution will be shared with the executive or the legislature. In other words, the power to sentence a person who has been tried and convicted by a court cannot be subjected to the exercise of the discretion of the executive. To that extent, all laws which have conferred powers on State Governors to detain convicted offenders at their pleasure are illegal and unconstitutional. This point was sufficiently addressed in the case of Hinds and other v The Queen; Director of Public Prosecutions v Jackson, Attorney General of Jamaica [1976] 1 All ER 1976, [1976] 2 WLR 366, (1975) 119 SJ 864, [1976] Crim LR 124, [1977] AC 195 where Lord Diplock rightly said that “…what Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”

Since the provisions of the Constitutions of Nigeria and Kenya are similar with respect to separation of powers the case of A & Ors v Attorney-General (Appeal No 150 of 2015) is of utmost importance and relevance. In striking down the provisions of the Criminal Code of Kenya which allowed the detention of convicted child offenders at the pleasure of the President Justice John Mativo said that “The Constitution being the supreme law of the land separates the powers of the legislature, the executive and the judiciary. Judicial power is reserved to the judiciary. The imposition of a punishment in a criminal matter which includes the assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial, not executive, power. In so far as section 25 (2) & (3) of the Penal Code allows a person aged below 18 years to be detained at the President’s pleasure, thereby granting the President powers to determine sentence or when to release the person and requires a judicial officer to forward notes to the President, in my view it offends the principle of separation of powers and Article 160 (1) of the Constitution of Kenya 2010.”

Even though the legal validity of court orders for the detention of citizens at the pleasure of governors has not been challenged in Nigeria the indefinite detention of citizens for any reason whatsoever has been consistently rejected by Nigerian courts. Thus, in Attorney-General of Ondo State v Attorney-General of the Federation (2002) 27 WRN 1, the constitutional validity of section 35 of the Independent Corrupt Practices and Other Related Offences Act, 2000 which had empowered the ICPC to arrest and detain persons indefinitely until the person complied with its summons came up for interpretation. In striking down the provision, Uwaifo J.S.C held that “section 35 provides that: “Where the Commission is satisfied that a summons directed to a person complained against or any person has been served and that person does not appear at the time and place appointed in the summons, the Commission shall have power to arrest and detain any such person until the person complies with the summons.” The complaint here is that the provision is an abuse of legislative power coupled with the usurpation of judicial power. It is plain that the provision as a whole violates section 35 of the Constitution. Under the blue pencil rule, the said provision is struck down.”

In Sheikh Ibraheem Elzakzaky v Attorney-General of the Federation & Ors (unreported Suit No FHC/ABJ/CS/281/2016) the respondents had claimed that the applicant was in the “protective custody” of the State Security Service. In dismissing the arguments, Kolawole J. (as he then was) said that the defence of the respondents was not tenable in law, adding that the state had not justified why the applicant and his wife were held under protective custody. According to the learned trial judge, “neither the Constitution nor the National Security Act allows a citizen to be in protective custody except on grounds of suspicious contagious disease. The respondents have not shown evidence to indicate that El-Zakzaky and his wife are plagued with such ailments that required them to be kept away from their community.” Consequently, the respondents were ordered to release the Applicant and his wife from custody with effect from January 16, 2016. In spite of the valid and subsisting court order the Attorney General and Minister of Justice, Mr. Abubakar Malami SAN continued to insist that Elzakzaky and his wife were detained for “security reasons.”

However, when the federal authorities could no longer justify the brazen contempt of court orders that had lasted for over two years, a criminal charge was filed against them in the Kaduna State High Court. By a twist of irony Mr. Malami SAN was the lead counsel of Alhaji Al-Mustapha Jokolo, the Emir of Gwandu who had successfully challenged his banishment by a Governor turned round to justify the detention of Elzakzaky and his wife, Colonel Sambo Dasuki (rtd), Omoyele Sowore, Olawale Bakare and others on the nebulous grounds of national security. I am referring to the case of Attorney-General & Commissioner of Justice, Kebbi State v HRH Al-Mustapha Jokolo & Ors (2013) AELR(CA) where the Respondent who was the the Emir of Gwandu was deposed by the Governor of Kebbi State in June, 2005 and banished to Obi in Nasarawa State to avert a break down of law and order. In a fundamental right application filed at the Federal High Court the Respondent challenged the infringement of his fundamental rights to personal liberty, dignity, fair hearing and freedom of movement guaranteed by the Constitution and the African Charter on Human and People’s Rights Act.

In the illuminating judgment of the Court read by Tur JCA it was held that “The executive powers of the Governor of any State must be exercised in accordance with law else the Courts will not shy from holding as invalid any law, an executive or administrative action that is not reasonably justifiable in a democratic society, be it in the interest of defence, public safety, public order, public morality, or public health, or that it is not for the purpose of protecting the rights and freedoms of persons in any part of the Federation. The Courts shall intervene to curtail or nullify abuse of powers and authority not supported by law. See Governor of Lagos State vs. Ojukwu (1989) 3 NWLR (Pt.18) 621, and Obeya Memorial Specialist Hospital vs. Attorney-General of the Federation & Ors. (1987) 3 NWLR (Pt.60) 325. Matters relating to defence is listed under Item 17; Immigration and Emigration are Item 30 under the Exclusive Legislative List, Second Schedule to the Constitution. By virtue of Section 4(1)-(3), (4)(a) and (b) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 only the National Assembly can validly legislate over those items.”

ILLEGALITY OF DETAINING CITIZENS IN CORRECTIONAL CENTRES AT THE PLEASURE OF GOVERNORS

It is submitted that matters relating to prison is listed as Item No 48 in the Exclusive Legislative List in the Second Schedule to the Constitution. To that extent, the House of Assembly of a State is not competent to enact a law authorising a State Governor to detain anyone indefinitely in any correctional centre in the country. Indeed, under the Correctional Service Act, 2019 there is no provision for detaining an inmate indefinitely at the pleasure of a Governor. For the avoidance of doubt, Section 12 of the Act provides for the discharge of every convict from a correctional centre upon the completion of their sentence. Furthermore, section 70 of the Regulations made pursuant to the Nigerian Correctional Service Act stipulate that a prisoner is entitled to be discharged on the day following that on which he has earned full remission by good conduct and industry.

However, if an inmate is mentally unsound he/she shall be removed and treated in a mental hospital pursuant to section 24 of the Nigeria Correctional Service Act. If still detained in a mental hospital when the sentence is about to be determined, the officer in charge of the mental hospital shall give such information as may be necessary to determine whether the inmate shall be under those laws as a person of unsound mind till the date of the determination of the sentence. Since a State Governor is not competent to exercise any power under the Nigerian Correctional Service Act it is submitted that the detention of any person of unsound mind therein at his pleasure is illegal. Accordingly, any order made by a trial court for the indefinite detention of an inmate in a correctional centre is ultra vires, illegal and unconstitutional in every material particular.

In the case of Hassan Hussein Yusuf v. The Republic (Criminal Appeal No 59 of 2014) the appellant was charged with an offence of breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code of Kenya. He was tried and convicted by the Magistrate Court but at the time of sentencing it dawned on the court that he was of unsound mind and was therefore ordered to be detained at the pleasure of the President of Kenya. The convict appealed against his conviction and sentence. In allowing the appeal the High Court (per Kiarei J.) held that “It is my opinion that keeping a sick person for an indeterminate period in a prison is cruel, inhuman and degrading treatment…The order envisaged under section 167 (1) of the Criminal Procedure Code is a punishment. Any punishment that cannot be determined from the onset is cruel, inhuman and degrading. I therefore make a finding that this section is unconstitutional to the extent it offends the said articles of the Constitution.”

His Lordship further stated that “A sick person’s place is at the hospital and not in prison. I find section 167 of the Criminal Procedure code discriminative to people with mental illness for prescribing their detention to be in prison instead of a health facility and for the detention to be indeterminate. This offends articles 25 and 29 (f) of the Constitution”. In consequence, the Judge set aside order of detention and directed that the appellant be escorted to a medical facility with the capacity to re-evaluate his mental condition. It was the view of the Judge that “If in the opinion of a psychiatrist he will not pose any danger to the public and himself he shall be set at liberty and prison authorities shall ensure that he is facilitated to his home. If the opinion is otherwise, he shall be admitted for treatment until such a time it will be safe to release him.”

Even though a Nigerian court may order the detention of a a convict in a correctional centre every mentally challenged person must be kept in a psychiatric hospital for treatment. Psychiatric patients are not to be detained at the pleasure of governors but kept in mental hospital and subject to periodic review by medical experts. In Purohit and Moore v. The Gambia (2003) AHRLR 96 the complainants who are mental health advocates, submitted the communication on behalf of patients detained at Campama, a psychiatric unit of the Royal Victoria Hospital under the Lunatic Detention Act of The Gambia. The Commission considered the average length of detention, which was variable according to mental illness and family situation and found violations of Article 6 of the African Charter with respect to the denial of personal liberty and the freedom from arbitrary detention. Based on lack of review procedures the Commission concluded that the LDA fell short of international norms and urged the Government of The Gambia to repeal the LDA and replace it with appropriate legislation. Pending this legislative change the Government was directed to create an expert body to review all cases of persons detained and to provide adequate and material care for persons suffering due to mental illness.

ILLEGALITY OF DETAINING CHILDREN IN CORRECTIONAL CENTRES

Under section 221 of the Child’s Rights Act no child shall be ordered to be‐(a) imprisoned; or (b) subjected to corporal punishment or (c) subjected to the death penalty or, have the death penalty recorded against him. Where a child is found to have attempted to commit treason, murder, robbery or manslaughter, or wounded another person with intent to do grievous harm, the Court may order the child to be detained for such period as may be specified in the order. Section 223.-(1) thereof provides that where a child charged with an offence is tried by a Court and the Court is satisfied that the child actually committed the offence, the Court shall take into consideration the manner in which, under the provisions of this Act, the case should be dealt with, namely, by- dismissing the charge; or discharging the child offender on his entering into a re-cognisance; or committing the child offender by means of a corrective order to the care of a guardian and supervision of a relative or any other fit person, or sending the child offender by means of a corrective order to an approved accommodation or approved institution in place of detention provided under the Act.

The indeterminacy of the detention of children was the issue in contention in the case of A & Ors v Attorney-General (supra) where the Appellants were tried for murder, convicted and committed to prison at the pleasure of the President. The Applicants challenged the constitutionality of the provisions of the Criminal Code which permit certain convicted persons to be detained indefinitely at the pleasure of the President. In his considered judgment, Justice John Mativo declared the law unconstitutional when he said, “I find that section 25 (2) of the Penal Code is inconsistent with the provisions of Article 53 (1) (f) of the Constitution which provides that a child has the right not to be detained, except as a measure of last resort, and when held, to be held for the shortest appropriate period of time and separate from adults and in conditions that take account of the child’s sex and age.”

RICH PEOPLE ARE NOT DETAINED AT THE PLEASURE OF GOVERNORS

The provisions of the ACJA and ACJLs which permit the AGF and Governors to detain citizens at pleasure are class biased as their application is usually restricted to poor and vulnerable people in all states of the Federation. In fact, the lawyers who have justified the oppressive laws have done so from undiluted ideological perspectives. In a country where poor citizens are routinely arrested and detained with or without trial it is is rare for the police and other security agencies to arrest and detain rich people beyond 48 hours. Hence, leading members of the legal fraternity are usually assembled and paid handsomely to mount a legal challenge against the detention and banishment of prominent traditional rulers to some remote areas of the country by State Governors on grounds of intra class feud. That was what played out in the case of Attorney-General & Commissioner of Justice, Kebbi State v HRH Al-Mustapha Jokolo & Ors (supra). Similarly, in the recent case of Sanusi Lamido Sanusi v Inspector-General of Police & Ors (unreported Suit No FHC/AVJ/CS/ 357/2020) the motion ex parte which accompanied the application for the enforcement of the fundamental right of the Applicant to personal liberty was filed, assigned, argued, granted and processed while the order for the release of the applicant was served and obeyed within a space of 24 hours.

In this same country, bail applications or applications to secure the liberty of detained citizens filed on their behalf by civil rights advocates on pro bono publico basis are not assigned for several weeks due to the busy schedules of Chief Judges and Administrative Heads of Courts. And when such applications are eventually assigned to Judges the ex-parte motions are usually converted to motions on notice for service on the respondents who are public authorities. From that moment the hearing of the applications are subjected to several adjournments due to congestion of cases and dilatory tactics of counsel to the detaining authorities. If the application is eventually granted and a consequential order is made for the release of the detainees or criminal suspects the Government may not comply with it. The AGF who is required by law to ensure compliance with all valid court orders will advise the authorities to continue to keep the detainee in illegal custody for security reasons.

CONCLUSION

From the foregoing, it is indisputable that some provisions of the ACJA and ACJLs have clothed the AGF and State Governors with powers to detain citizens at their pleasure or discretion. On the basis of such laws criminal courts that try and convict children and people of unsound mind commit them to the AGF and State Governors who may detain them indefinitely. Having regards to the current human rights law regime in Nigeria it is indubitably clear that any law that allows a member of the executive branch of the government to subject citizens to detention of uncertain duration is illegal and unconstitutional as it is not justifiable in a democratic society. The exercise of the power of detention by the executive constitutes a violation of the fundamental rights of citizens to personal liberty, dignity, fair hearing and freedom of movement guaranteed by sections 34, 35, 36 and 41 of the Constitution and articles 5, 6, 7 and 12 of the African Charter on Human and People’s Rights Act.

Since the provisions of the laws empowering governors to detain citizens at their pleasure are applicable in all states of the country it is the height of hypocrisy to attack sections 484 and 485 of the Imo State ACJL alone. Therefore, the authorities of the federal and state governments are enjoined to ensure that the ACJA and ACJLs conform with the relevant provisions of the Constitution and international human rights treaties and protocols which have been ratified by Nigeria. Without any further delay, criminal courts should stop sharing judicial powers with the AGF and State Governors by allowing them to determine the duration of the sentence of convicted offenders including children and persons of unsound mind. In the alternative, the National Human Rights Commission is called upon to set the engine in motion for the repeal of the impugned provisions of the laws by the National Assembly and the respective Houses of Assembly of the States.

*Mr. Falana is a Senior Advocate of Nigeria