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Section 438 ACJA, “Violation of 1999 Constitution [as amended] – Court

The Federal High Court in Lagos ruled that section 438 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).”

 

Justice Ambrose Alagoa therefore, ordered the National Assembly to amend the controversial section 438 of the Administration of Criminal Justice Act (ACJA) which allows the Attorney General of the Federation and Minister of Justice to detain certain persons arbitrarily.

The court gave the order last Friday after hearing arguments from Mrs Funmi Falana.

In the decision, Justice Ambrose Alagoa ruled that section 438 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 court also ruled that section 438 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).”

The suit was brought on behalf of Femi Falana, SAN. In the suit, the applicant had argued that “section 438 the Administration of Criminal Justice Act empower 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 also argued that “section 438 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 applicant further argued that “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.”

According to the applicant, “The section is against the principle of separation of powers as enshrined in the Nigerian Constitution.”

The court also dismissed the preliminary objection by the National Assembly. The National Assembly had argued that “the court lacks the jurisdiction to entertain the suit, being a suit without a cause of action against the defendant.”

The National Assembly also claimed that “the applicant has no locus Standi to initiate this action. The defendant did not nu any act or omission commit any offence against the applicant.”

Because the administration of criminal justice laws of the 36 states have provisions that are similar to section 438 of ACJA, the court’s decision would have huge implications for the repeal of those provisions.

Section 438 of the ACJA provides that “(1) Where a person is ordered to be detained in a safe custody or suitable place other than prison or mental health asylum, he is, notwithstanding anything in this Act or Conditions attached to detention in a safe in any other law, liable to be detained in a prison or asylum or such other place as provided under this Act or any law as the Attorney-General of the Federation may direct and whilst so detained shall be deemed to be in legal custody.”

Section 448(2) provides: “A person detained in a safe custody or suitable place other than prison or mental health asylum may at any time be discharged by the Attorney-General of the Federation on licence.”

Under Section 438)3): “The Attorney-General of the Federation may at any time revoke or vary a licence and where a licence has been revoked, the person to whom the licence relates shall proceed to such place as the Attorney-General of the Federation may direct and if he fails to do so may be arrested without warrant and taken to the place.”

The lawyers of the National Assembly are Mrs Bassey Emmanuel. J. Ntuk, Henrietta Emedem, and Jenyap Buenyen.

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