By Femi Falana, SAN
The Criminal Ordinance imposed on conquered territories by the British colonial 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 the 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 legitimise the colonial legacy, the Administration of Criminal Justice Laws of all states in Nigeria has empowered state governors to detain people at their pleasure. Curiously, hell was let loose recently 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 Assembly.
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”.
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 The license under the section may at anytime be revoked or varied by the governor and where license has been revoked the person to whom the license relates shall proceed to such place as the governor may direct and if he fails to do so, may be arrested without warrant and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” is 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 than 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 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  1 All ER 1976,  2 WLR 366, (1975) 119 SJ 864,  Crim LR 124,  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.”