Arbitrary detention: Amend Section 438 of Administration of Criminal Justice Act, court directs NASS
By Jude-Ken Ojinnaka
A Federal High Court sitting at Ikoyi, Lagos, has directed the National Assembly to amend Section 438 of the Administration of Criminal Justice Act (ACJA) which empowers the Attorney General of the Federation (AGF) and Minister of Justice to detain certain persons.
The presiding judge Justice Ambrose Lewis Allagoa gave the directive to the National Assembly after entertaining arguments from Mrs Funmi Falana, representing Femi Falana (SAN) who dragged the National Assembly to court over Section 438 of the Administration of Criminal Justice Act (ACJA)
In his decision on the suit, Justice Allagoa held that Section 438 of the Administration of Criminal Justice Act (ACJA) “Is a violation of the fundamental right of Nigerians to liberty guaranteed by Section 35 of the Nigerian Constitution 1999 (as amended) and Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR)”.
The judge declared that Section 438 of the Administration of Criminal Justice Act (ACJA) “Is a violation of the fundamental right of Nigerians to fair hearing guaranteed by Section 36 of the Nigerian Constitution 1999 (as amended) and Article 7 of the African Charter on Human and Peoples’ Rights (ACHPR)”.
He threw out the preliminary objection by the National Assembly, which had stated that the court lacked the jurisdiction to entertain the suit, being a suit without a cause of action against the defendant.
The suit filed on behalf of Femi Falana (SAN) by his wife Funmi Falana, the applicant contended that “Section 438 of the Administration of Criminal Justice Act empowered the Attorney General of the Federation to arrest and detain any person at will without recourse to the letters and dictates of the Nigerian Constitution which is the grundnorm”.
The applicant further argued that “Section 438 of the Administration of Criminal Justice Act (ACJA) is Draconian, vests too much power in the Attorney General of the Federation and a usurpation of the power of the judiciary”.
“The section also deprives any person of the constitutional rights to liberty and fair hearing given to anyone who has committed an offence by going through the judicial process.” the applicant submitted
“The section is against the principle of separation of powers as enshrined in the Nigerian Constitution” he further argued
Counsels that represented the National Assembly in the suit are Mrs Bassey Emmanuel. J. Ntuk, Henrietta Emedem, and Jenyap Buenyen.