Stop and Search: is that not a violation to the privacy of the person?

The Police can search a person in Nigeria[1]. It provides that a police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any matter anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.

The test to be used to adjudge whether the action of a police officer was reasonable in conducting a search of a person is the same test used by courts to adjudge whether the conduct of the police officer was reasonable in effecting an arrest without a warrant of arrest. This is called the objective test i.e. whether a reasonable man would have conducted the search of the person in the circumstances.[2]

Whenever a person is arrested by a police officer or private person, the police officer may search the person upon arrest. The police officer may remove from the arrestee anything found on him other than necessary clothing.[3]

Any person arrested and detained in lawful custody may be subjected to a medical examination where such examination will afford evidence of the commission of an offence[4]. This may be as regards to persons suspected of concealing on their bodies hard drugs such as cocaine and heroin.

Officers are empowered to search any person reasonably suspected of carrying anything chargeable with duty with intent to evade payment of duty, or any person carrying any articles, the importation or exportation of which is prohibited, provided the person is within a customs area.[5]

[1] Section 25 of the Police Act 1967

[2] – Jackson v. Omorokuna (1981) 1 NCR 283; and Commissioner of Police v. Obolo (1989) 5 NWLR (Pt. 20) 130.

[3] section 6(1) of Criminal Procedure Act and section 44(2) of Criminal Procedure Code.

[4] section 6(6) of Criminal Procedure Act and section 127 of Criminal Procedure Code

[5] Section 150 of Customs and Excise Management Act 1958

Can a policeMAN search my wife’s body?

People have asked us this question severally live on our #KnowYourRightsNigeria weekly radio programme on UNILAG 103.1 FM. A woman can only be searched by another woman[1] and such search must be with strict regard to decency[2]. However it should be noted that this is as regards to her body only, for a man can search her bag, purse, etc. Also, there is no statutory provision that a man cannot be searched by a woman but what is in practice is that a man should be searched by a man (not a woman) with strict regard to decency.

[1] section 6(2) of Criminal Procedure Act and section 44(3) of Criminal Procedure Code (S.150(1)(b)(ii) Customs and Excise Management Act 1958),

[2] section 82 of Criminal Procedure Code

During search, my expensive phones, wristwatch, gold jewelries were collected but not released after confirming my innocence.

Where a person arrested or searched is released on grounds of insufficient evidence, all articles seized from him must be released.[1]

[1] Kehinde M. Mowoe, Constitutional law in Nigeria 2008, Malthouse law books p. 408/409

Can my house/premises be searched, and on what grounds?

Except in limited circumstances, a search warrant is required to search premises. This is because as much as possible the law protects the sanctity of a home. Generally, for the premises to be searched, a search warrant must be obtained by the police. However, where a person to be arrested under a warrant of arrest is suspected of being within the premises, the premises may be searched for the person to be arrested without a search warrant.[1]

A search warrant may be issued by a magistrate when he is satisfied by information on oath and in writing that there is reasonable ground for believing that any building, ship, carriage, receptacle or place is being used for the commission of an offence[2].

The person executing the search warrant may seize such thing and carry it before the issuing magistrate or any other magistrate, to be dealt with according to law. The search warrant may also direct that the occupier of the premises where whatever is named in the search warrant is found can be arrested.[3]

A superior officer can also issue a search warrant but it must be limited to where the item to be searched is a stolen property. And where the premises is occupied by a person who within the preceding 12 months has been convicted of receiving stolen goods, harboring thieves, fraud or dishonesty and punishable by imprisonment – Such officer issued a warrant must be allowed access into the premises to be searched and where property is seized, the occupier of the premises may be arrested and brought before the magistrate to account for his possession of the goods. Where free ingress (entry) is not allowed to the person executing the search warrant, the person may break into and enter such premises in order to execute the search warrant.[4]

Furthermore, a police officer may break out of the premises after executing such warrant[5]. The person executing the search warrant may search any person within the premises whom he reasonably believes is concealing on him whatever is being searched for[6].

[1] section 7 of CPA and section 34 of CPC.

[2] section 107(1) of CPA

[3] section 107 of CPA and section 74 of CPC.

[4] section 112 and 7(2) of CPA.

[5] section 8 of CPA

[6] – section 112(3) of CPA and section 81(1) of CPC.

Can my house/home be searched in my absence?

In respect of premises, section 78(1) of CPC requires that searches must be conducted in the presence of two respectable inhabitants of the neighborhood summoned by the person to whom the search warrant is addressed. However, a Court or Judge may waive this provision when issuing the search warrant where the circumstances of the case so requires.

Why are police searching vehicles/things and mounting roadblocks?

A police officer may search such things as vehicle, ship, and an aircraft which may be conducted with or without a search warrant, depending on the nature of the thing to be searched.

Custom officers are empowered to search any vehicle, ship or aircraft reasonably suspected of carrying goods liable to forfeiture without a search warrant.[1]

A police officer may conduct a search of a thing which he reasonably believes contains anything unlawful and such a search can be conducted without a search warrant. This is derived from his general duty to prevent and detect the commission of crime[2].

The power to mount road block to stop and search, and the power to detain and search a vehicle reasonably suspected of conveying anything unlawful is derived from section 25 of the Police Act but does not cover power to extort money from the motorist.

[1] section 149 of the Customs and Excise Management Act

[2] section 4 of the Police Act

My neighbour lied to the police and my house was searched but nothing was found. Can I challenge it?

The position of the law is that where a person by his complaint set the law in motion against another, he will be liable to that person in court.

Where a police officer searches a premises armed with a search warrant, the person who laid a complaint before the police officer (on the basis of which the police officer lays information before a magistrate to obtain a search warrant) may render himself liable in damages to the person against whom the complaint is laid. The complainant would be held liable in damages for malicious procurement of a search warrant if he had no reasonable cause to believe in the complaint laid by him.

A complainant, who set the law in motion against a person alleged to have committed an offence, may render himself liable in damages to the alleged offender for malicious prosecution. In one case of Balogun v. Amubikahu[1], the Supreme Court rejected the contention of a person and held that although the arrest and prosecution of the respondent were undertaken by the police, the real force behind the whole action was the person. It was him who set the law in motion against the respondent by fabricating a criminal complaint which led to the arrest, detention and prosecution of the respondent.

[1] (1989) 3 NWLR (Pt. 107) 18

Is abortion not related to issue of privacy?

Under our law in Nigeria, abortion is criminalized.

Any person  (This covers everyone including Doctors, Boyfriends, Herbalists, parents, friends, among others) who intend to procure miscarriage of a woman whether pregnant or not, and “unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony….” [1]

A woman with the intention of procuring her own miscarriage, “performs the same acts, is likewise guilty.[2]

Also, any person who unlawfully supplies or procures for anyone anything, with intention that it will be used for the miscarriage of a woman who may or may not be pregnant, is also guilty of a crime.[3]

 

[1] Section 228 of the Criminal Code

[2] Section 229 of the Criminal Code

[3] Section 230 of the Criminal Code

Child rights: Parental rights and Custody of child/Discipline of child in Nigeria

In Nigeria, parental rights developed from customary and common law, but are no longer relevant in cases of custody or guardianship, where the courts consider only what will best promote the child’s welfare.

Parental rights include the “rights, powers, liberties and duties, which a parent has with respect to his or her child”[1]. This parental right is covered under various international conventions guaranteeing on the rights of the child in which Nigeria is a signatory.

Under the Convention on the Right of Child, Nigeria (a State party) “…shall respect the responsibilities, rights and duties of parents or, where applicable, members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate, direction and guidance in the exercise by the child of the rights recognized in the present Convention”

The convention recognizes the right of the parents to the extent of that it is not contrary to the rights of a child.

The convention recognizes the right of the parents to the custody of a child only when such is not in contrary to the best interest of a child.

Parental rights to the custody of the child include the right to physical custody and to determine education, religion and other moral values of the child until he, or she reaches the age of discretion. A child cannot be made to receive religious education or instruction or take part in any religious ceremony which is not his own or approved by his parents or guardian.

This right also includes the right to the child’s services,[2] the right to discipline and chastise the child, which “recognizes the supervisory role which a parent has in respect of a child who is under his custody, care or control”[3]

Any discipline meted out by parents must not however be excessive else, it may lead to a criminal offence, depending on the circumstances.[4]

Parents have the right to consent to the marriage of their children and receive dowry under Islamic or customary law[5]

[1] J. M. Eckeedar “What are Parental Rights?” (1973

[2] Animashawun v. CT Wang 1974 11 CC HCJ 1793 quoted by E.N.U. Uzodike, Implications and Limits of Parental Rights in Nigeria, published in the African Society of  International and Comparative Law, Vol.2 pt 2, p. 282

[3] E.N.U Uzodike, op. cit., p. 287

[4] Section 295 OF THE Criminal Code

[5] Osanwonyi v. Osanwonyi (1973) 3 UILR 527.

Right to privacy of communications

Generally, Nigerians have a right to privacy of their correspondence, telephone conversations and telegraphic communications. It also covers issues like telegrams, letters, or packages sent by ordinary or special post, correspondence done through internet, social media and so on. The content of the correspondence is to be viewed by the sender alone except if it is exposed in such a way that other person would know its content.

It is a criminal offence to stop, search, rob, secrete or destroy postal matter or telegram[1]. Every attempt to regulate social media has resulted in serious resistance because right to privacy of communication is likely to be more honored in breach.

However, Section 45 of the Constitution have made this right not absolute thereby making the police, security services etc to tamper with correspondence on grounds of interest of public security, public order, public peace among others.

[1] Section 161 and 162 of Criminal Code