Apr 11, 2014

UNLAWFUL DETENTION: CASE STUDY OF CIAXON




Onimisi Ciaxon a.k.a Isiaka Yusuf, aged 32, a member of staff of PHCN who worked at the T-junction by State House Gate-7 has been declared missing for over 10 days now. He is alleged to have been arrested by members of the Nigerian State Security Service (SSS) after posting pictures on twitter, of the gun battle between Nigerian security agencies and suspected Boko Haram members on March 30, 2014 in Abuja. There has been a wide media appeal to the SSS about the whereabouts of Ciaxon but nothing has been heard. You can read the news reports HERE. No one knows where Ciaxon is at the moment but it’s safe to assume that he is in the custody of the Secret Service, witnesses identified him and reported that he was handed over to a security team, read the news article HERE

FREEDOM OF SPEECH
If really Ciaxon is with the SSS or any other security agency,
then the fundamental rights of this gentleman at this point are currently being breached. Every Nigerian by virtue of Section 39 (1) of the Constitution is entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. Ciaxon on duty at work that morning came upon the gun battle happening close to the Aso Villa, took pictures with his camera and imparted the information on twitter, I do not believe at that point it occurred to him that he might be committing a crime because his fundamental rights entitle him to do such.

 An exemption to the Freedom of Speech rule as seen in subsection (3)(b) is if the alleged actions imposes restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law. Will you say Ciaxon’s actions have imposed any of these restrictions, I doubt.

UNLAWFUL DETENTION
Assuming the SSS raises the “national security or terrorism” card in support of Ciaxon’s unlawful detention, it will not support their case either. A jail break as reported by the SSS to be the underlying cause of the gun battle that morning hardly falls under the category of a terrorist act. Moreover, Section 28 of the Terrorist prevention law (2011) which deals with “detention for offences related to terrorism” provides thatwhere a person is arrested under reasonable suspicion of having committed any offence under sections 1, 2, 3, 4, 5, 6, 9, 10, 11, 13 or 14, the National Security Adviser or Inspector General of Police or a delegated officer not below the rank of Chief Superintendent of Police or its equivalent may, subject to this section, direct that the person arrested be detained in a custody for a period not exceeding 24 hours (highlight supplied) from his arrest, without having access to any person other than his Medical Doctor and legal counsel of the detaining agency.

By virtue of Section 35 Of the Constitution “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some exceptions which Ciaxon does not come under, such as - (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; or (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law; or (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; 


Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence. 


More so, the law further states that “Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. 

Subsection (3) states “Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.” 

Subsection (4) states "Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of - 

(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. 

Subsection (5) states "In subsection (4) of this section, the expression "a reasonable time" means -
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable."

(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law.

FAIR HEARING
Ciaxon is also being unlawfully detained against his fundamental right of fair hearing which is stated in Section 36 of the Constitution. The law provides that; “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” 

Subsection (4) also provides that “Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal; while subsection 6 states that “Every person who is charged with a criminal offence shall be entitled to -
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence. 

AT THIS POINT, WE URGE THE SSS TO DO NEEDFUL AND EITHER CHARGE CIAXON TO COURT SO HE MAY DEFEND HIMSELF OR LET HIM GO HOME.

Adedunmade Onibokun
@adedunmade
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