The ACJ Imo Does not Grant the Governor the Power to Detain Anyone at His Pleasure

By Sam Amadi.

Yesterday, the social and conventional media were agog with reports of a new law in Imo State which gives the governor of the state the power to detain anyone at his pleasure for as long as he wants. This law- the Imo State Administration of Criminal Justice law- is an attempt to ‘domesticate’ the provisions of the federal Administration of Criminal Justice Law.

The word ‘domesticate’ is in quotes because you do not need to domesticate a Nigerian law within Nigeria. Because of the limitation of the jurisdictions of the federal legislature, federal laws cannot operate in criminal proceedings in state courts. Thus, the need to enact similar provisions. So, the IMO ACJ is simple an enactment of similar provisions as those of a federal law and not a domestication of the federal law. But beyond this conceptual nicety, the Imo ACJ is now a matter of serious controversy.

The issue is the alleged power of the Governor to detain any person for any length of time anywhere he chooses. This is the popular reading of Section 483 of Chapter 38 of the Act. This provision (if the interpretation is correct) would undermine the due process protection of the right of personal liberty and violate Section 35 of the Constitution.

If a provision of any law violates the constitution, then it is to be declared a nullity. So, the first question is whether the reading of Section 483 of the Imo ACJ is correct. A subsidiary issue is the allegation of legislative irregularity. If it is true as alleged by some PDP legislators that the version of the bill presented and passed at plenary is different from what was presented to the governor for assent, then it raises the issue of grave legislative irregularity and possible commission of crime.

This calls for investigation and possible prosecution, notwithstanding that the legislature has immunity for how it manages its internal affairs except clear crimes have been committed.

But I am concerned less in this piece with how the bill became law. I am concerned with what the law as passed and assented by the governor means for fundamental rights of citizens, residents and persons in Imo State.

After a careful reading of the new law in the context of its objectives and norms and principle of constitutional interpretation, I am of the opinion that, in spite of its inelegance and irrelevance, Section 483 of the Imo ACJ does not in anyway grant the governor of the state the power to detain anyone at his pleasure in that he can authorize that person be arrested for any offence or for no offence and be detained. This interpretation is not anywhere in that law and cannot be permitted by the constitution.

Who Can Detain Under Section 483 of the Imo ACJ? The only person who can order the detention of any person under the Imo ACJ is the court and not the Governor. The Governor can only be the beneficiary of such judicial order. I quote the section in full for clarity: “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”.

The determinative clause here is ‘Where any person is ordered to be detained”. The condition precedent for such a detention is that there is an ‘order’. Who issues such an order? Unfortunately, the drafters of the law following the colonial legacy of lack of clarity do not provide context for meaningful reading of the provisions.

The marginal title of the law does not provide any help because it is phrased as ‘Pleasure of Governor’.

But it is clear that the whole law is focused on criminal procedures for proceedings in the courts. As the Long Title states clearly: “A law to make provisions for the procedure to be followed in Criminal Cases in the High Court and Magistrates’ Courts in Imo State; and for related matters”. Therefore, the order referred to in Section 483 is an order issued by either a high court or magistrate court in the state.

The Governor cannot be the person issuing the order to be implemented by him. That the intention of the drafters is that the court can issue detention order for the Governor to implement in some circumstances is evident if we consider the provision of the federal Administration of Criminal Justice Act Section 438 which Imo legislators and their collaborators ineptly copied. That section in the federal 2015 Act begins with a heading that reads, “Detention in a safe custody or suitable place other than prison or mental health asylum”. This means that in circumstances that the court considers prison or mental asylum as inadequate for detention of a person, it may order the governor to detain such person in a suitable place. This means the person to be detained in that circumstance is in the control of the court already. So, there is a due process protection. It is the court that triggers the power of the governor to detain on behalf of the court. This is not a power for the governor to originate the arrest and detention of a person. Not at all.

The Extent of the Right to Personal Liberty Under the Constitution:
Many people think that because the guarantee of right to personal liberty under the constitution is not absolute it means that any law validly enacted can reduce such right. That is not true. Only the constitution can do that.

The State Assembly cannot reduce the extent and scope of the right to personal liberty more than the constitution has allowed. All the exceptions to the right of personal liberty under Section 35 of the Constitution have due process protection. They relate to orders of the court or processes leading to arraignment. None of such power is exercised outside clear execution of legal duty of a quasi-judicial nature or exercise of administrative power in any emergency to avoid commission of crime.

Deprivation of a citizen of personal liberty cannot be at discretion of a political office holder. No state law can expand the scope of these exceptions. Not even under omnibus cutback in Section 45 because that wide-ranging derogation does not include right to personal liberty.
So, there is no chance in Nigeria today that the legislature of a state can cloth the state governor with the power to arrest citizens and detain them at will. What has caused uproar in Imo State is a drafting error. But even with the error, the Governor has still not been granted the power to detain without a proper court order secured through a due process proceeding.