Contextual Constraints of the ACJA

Contextual Constraints of the ACJA

The second other problem associated with ACJA is one, which this research considers

contextual. Contextual in the sense that the language units and area of determination of the

ACJA; does not lend itself to easy understanding; and its application to an extent incompatible

with provisions of the constitution. In particular the position of; (a) arrest, bail and preventive

justice; (b) the jurisdiction of Courts; (c) the problem of prosecution and sundry other issues but

suffices these abovementioned.

The problems associated with ‘Arrest, Bail, and Preventive Justice

By virtue of S.3, Arrest Generally is provided. Arrest, though, not define in the ACJA has its

spectrum, it seems apparent that detention accompanied by handcuffing, drawn

guns, of words to the effect that one is under arrest qualifies as an „arrest‟ and thus

requires probable cause. At the other end, a simple question on the street will often

not rise to the level of an arrest. Somewhere in between lie

investigative detentions at the stationhouse…300

In the context of policing; Dambazau301 said that it is the taking of a person into custody with

lawful authority and holding that person to answer to a violation of a criminal law. Thus, there is

arrest when a person is held against his/her will. It also involves restraint on another person‟s

right or freedom of ingress and egress. Arrest may involve coercion used upon a person to

prevent the free exercise of his powers of movement.302

court order or upon reasonable suspicion of his having committed a criminal offence, or to

prevent his committing a criminal offence.

In the first place, except by courts‟ order a person cannot be arrested. Since arrest will deprive a

person of his liberty and freedom of movement legally and constitutionally guaranteed. However, if

there are reasons given which the above provisions can be derogated upon, there must be legally

followed. that is, it is only when has been found guilty by court; or in contempt of court, or there is a

reasonable suspicion of his having committed a crime. This the base of the ACJA provision of

arrest. When a person has been alleged of or charged with a commission of a crime enacted by

law of the Federal Legislature

The ACJA follows its predecessors in providing for arrest before investigation and inquiry into

which by evidence rule; it is the person that asserts that owns the onus of proof. A criminal

charge is an accusation or indictment or a written complaint that someone has committed a

criminal offence. There is difference between a criminal charge and a criminal complaint. A

complaint of criminal nature, ordinarily, is in the form of report or information of an occurrence

of crime to the police or to the court.305 Upon receipt of the complaint the law requires that all

complaints made to the court directly under this section shall first be referred to the police for

investigation before any action is taken by the court. Invariably, the complaints made to police

are also to be investigated before anything can be done by the court.

Under the ACJA it is capable of interpreted that the moment accusations are made against anybody

by anybody what follows is arrest before investigations. And this is what the police has been doing

investigated and the strength of those investigations place before the court as evidence. The issuance

of the order of arrest by the court will be based on that evidence and where the police are to

arrest without a warrant the law presupposes that there is a reason necessary to warrant that

arrest. This is the probable cause for arrest, which must not be based on intuition but hard facts

lest such exercise might be dented in futility and unlawfulness. Even where a person is caught in

the act it is not a done deal that he must face the court without proper investigation for a criminal

charge to be place against him.

The import is that arrest must be on the ground of executing courts order reasonably founded on

evidence against the accused or on the strength of probable cause which will induce an officer or

a private person to carry out the arrest. This presupposes that there must also be reasonable

of property of arrested person and immediate examination of the suspect immediately after taken

to the police station and also the record arrest. These are all emphasis more on arrest or

prevention without a thought given on investigation and a further thought on the court which has

jurisdiction to try the matter. In s. 10(7) a suspect who was not charged but release on grounds of

insufficient evidence who may have been there for countless number of days. What would it

have taken if proper investigation to the crime were first conducted before the arrest was made?

Would the police not have come to the same conclusion of no evidence and the humane

treatment and the suspect‟s right not abused in the first place. It is unimaginable the incalculable

harm against which the accused is made to undergo because investigations are not the prime

preoccupation than arrests. What this research finds is that in all arrests, the old pattern predating

For in the instant where the accused person without appropriate and proper charge is dump in prison

amount to abuse of the process which matters are tried in court of which the ACJA intends to provide

succour. More so, it denies a suppose suspect the ability to access justice since his right are suspended,

the rule of law derogated and his dignity impugned upon. This will compound the court and prison

services being that the suspect will be denied such right as provided in section 6. That

(1) Except when the suspect is in the actual course of the commission of an

offence or is pursued immediately after the commission of an offence or has

escaped from lawful custody, the police officer or other persons making the

arrest shall inform the suspect immediately of the reason for the arrest. on for

the arrest.

(c) Free legal representation by the Legal Aid Council of Nigeria where

applicable.

Moreover, Preventive justice is most comprehensive and detailed than prevention of crime.

Justice in the overall sense is wider and not just for a particular segment. Preventive justice is for

the rights and interest of the suspect, defender, victim and the society in general. Be that as it

may, the language of the ACJA is evasive, ambiguous and vague, sometimes.

In the place of notification and rights of arrest as earlier mentioned, it is not clear, if a private person

makes arrest and did not know those right available to the accused, what becomes of the process?

Again, a private person is expected to make a formal witness statement against the accused that he

hands over to the police,307 it is not clear what the ACJA meant by „re-arrest‟ in

The notification of cause of arrest and rights of the suspect and the immediate record of

information about the arrest, inventory and being promptly informed of the allegation against

him amount to tautology in language under the ACJA. This will affect the operation of the ACJA

as the police will be in quandary of what to do first or which comes before the other. Besides

there are yet equipment of such nature than paper work and private persons being engage for

photography without any machine for fingerprint under the police control. However the publicity

given arrest is more than the same effort geared toward unravelling crime. Thus, the problem is

that an accused is first declared guilty before proved innocent.

Hence, it is not cleared what the S. 11 of ACJA meant to achieve when it provided for

examination of an arrested accused person particularly that:

custody as is reasonably necessary in order to ascertain the facts which may

afford the evidence, and to use such force as is reasonably necessary for that

purpose.

The ACJA is confusing on what it meant by „a crime of such a nature‟ that there are reasonable

grounds for believing that an examination of his person will afford evidence of the offence. It is

likely the base of EFCC‟s arrest and questioning or interrogation. The constitution avail a

suspect a right no to divulge information that will be used against him. That right is only taken

away in the open when if the accused examines the witness. Moreover examination such as put

308 S.23(6) ACJA

309 Ss. 24-26 ACJA