On Friday, October 4, the bail application filed by journalist and human rights activist, Agba Jalingo, was refused by a Federal High Court, sitting in Calabar, Cross River State, presided over by Justice Simon Amobeda. In denying him bail, the court ordered that he be remanded in prison custody pending the conclusion of his trial and determination of the charge brought against him by the Prosecution.
Agba Jalingo was arrested in Lagos by operatives of the Intelligence Response Team of the Nigerian Police Force on August 22, moved to Calabar and arraigned before a Federal High Court on September 25 on a four-count charge of treasonable felony, terrorism and attempt to topple the Cross River State Government. He pleaded not guilty to the charge.
At the court appearance for his bail ruling, Agba Jalingo was brought and taken away in handcuffs, by the prison officials. Outraged by that spectacle, many in the social and mass media have decried the treatment, denouncing same as immoral, since Agba Jalingo was thereby portrayed as a “common criminal”. They reason that being at worst a political offender or prisoner, he ought not to have been brought to court in such a humiliating circumstance, as if he were a violent criminal defendant, who is undergoing criminal prosecution.
In this intervention, we offer a brief analysis of the facts and legal implications of the handcuffing of Agba Jalingo. Although the charge and prosecution of Agba Jalingo and his remand in prison custody are matters of public interest, which we are permitted by law to discuss, we are not allowed to discuss the merits and demerits of the offences charged and do a review of the proof of evidence and the line of potential defence that may be available in such a manner as to be predetermining the charge or predicting the outcome of his trial. We are, however, at liberty to discuss the circumstances or state of his detention and his legal and constitutional rights as a detained criminal defendant. If his rights are abridged or violated in detention or while he is being taken to court or from court, he is entitled to enforce his legal rights under the law, including filing a separate action for the enforcement of his fundamental right to the dignity of the human person. A detainee or prisoner is not robbed of all his fundamental rights merely because his right to liberty is constitutionally curtailed under Section 35 (1 )( c ) of the Constitution.
We are in agreement with many commentators that the treatment meted to Agba Jalingo on October 4, when he was brought to court in handcuffs, was immoral. Beyond the immorality of the treatment, there is the need to emphasize the unlawfulness and the unconstitutionality of same. We do so in the rest of this intervention.
Handcuffs and leg chains (manacles) are used in prison and correctional facilities, to restrain detainees and prisoners when they are held in custody or when they are in transit. Their use, as a form of restraint, must at all times be warranted. If a detainee or prisoner is violent, and his violent behaviour poses a grave danger not only to himself but also to prison officers or other co-prisoners or detainees, he may justifiably, for reason of safety, be restrained by handcuffs or manacles. If a prisoner or detainee exhibits a jailbreak intent or actually attempts to escape from lawful custody, thus leading to a reasonable apprehension that he is likely to continue to search for opportunities to escape, he may, rightly, be restrained by handcuffs or leg chains. Handcuffs and leg chains may also be used to restrain a prisoner or detainee who has attempted to commit suicide until such a time he may be cured of his suicide mindset. Fleeing, caught and injured armed robbery suspects may, subject to medical advice, and as may be permitted by their state of health, be chained to their recuperating beds, to prevent their escape, for example.
Handcuffs and leg chains are not meant to be used or misused as a tool of subjecting a detainee, a prisoner or a criminal defendant to inhuman and degrading treatment. It is not in law a means of subjecting a detainee or criminal defendant to humiliation, psychological torture or physical degradation. It is not and should not be used by the State and its law enforcement machinery or criminal justice system to criminalise political opponents, just to give political power wielders sadistic and narcissistic pleasure.
From available facts, the police, prosecution and prison authorities in Calabar have not told Nigerians that Agba Jalingo was violent; that since the day of his arrest and consequent incarceration, he has ever attempted to escape from lawful custody, attempted to commit suicide or endangered the life or safety of other co-detainers, prisoners and prison officers. In the absence of any such information, the only reasonable conclusion we are compelled to reach is that the handcuffing of Agba Jalingo was calculated to humiliate and denigrate him, injure him psychologically, portray him as a common criminal and persecute him for his journalistic work, human rights campaigns, anti-corruption advocacy and political beliefs and activities. The law does not permit the State and its criminal justice system functionaries to do this to Agba Jalingo or any other Nigerian.
Section 5 of the Administration of Criminal Justice Act (ACJA) , 2015 provides as follows:
“ A suspect or defendant may not be handcuffed, bound or subjected to restraint except:
(a) There is a reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court”
Section 271(2) (a) of ACJA provides that:
“The defendant to be tried on a charge or an information shall be:
(a) brought before the court unfettered unless the court sees cause otherwise to order; and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the court”
For obvious reason and statutory construction logic, we submit that the word “may” in the opening of Section 5 should be interpreted as a “shall”, giving no room for discretion in the observance of the provision.
Section 5 of ACJA 2015 had no precursor in the repealed Criminal Procedure Code and Criminal Procedure Act, the two principal criminal procedure laws hitherto governing criminal prosecution and adjudication in Nigeria, before the advent of ACJA in 2015. Unlike Section 5, Section 271(2) (a) of ACJA had a precursor. It was a regurgitation of Section 215 of the Criminal Procedure Act and Section 161(1) & Section 187(1) of the Criminal Procedure Code, both laws now repealed and replaced by ACJA, 2015.
Section 5 was an innovation deliberately inserted in ACJA, 2015 by the lawgiver (the legislature) to curtail the brutality of the police and other law enforcement and security agencies when taking alleged criminal offenders through the criminal law enforcement and justice administration system. The police had become very notorious not only in using handcuffs and leg manacles in restraining criminal suspects and detainees but also in misusing these restraints during investigation (or more appropriately torture) sessions to forcefully extract extra-judicial confessional statements from detainees. This use of handcuffs or leg chains as a torture enabler or enhancer was unlawful and obnoxious. Apart from the routine use of handcuffs and leg chains to restrain awaiting trial detainees while they were in transit, and when being taken to courts for their trials and back to prisons after their trial dates, to prevent imagined or anticipated escape, the State had started using it to humiliate certain “elite” or moneyed criminal defendants to send social or political message to the public.
In 2006, the former Inspector General of Police, Tafa Balogun, a lawyer and a highly rated knowledgeable police officer was charged to court and prosecuted by the FGN (EFCC ) for fraud, money laundering and corrupt practices-related offences. He was brought to court in handcuffs, and when it appeared that he resisted being so brought for his image to be captured by the media and in the full glare of the public, he was forced out of the car and dragged on the floor and shoved into the courtroom. Many Nigerians were outraged by that treatment, condemning the then Nuhu Ribadu-led EFCC for “its vindictive, highhanded and despicable media-craving and publicity-seeking showmanship”. The very few that justified the handcuffing of IGP Tafa Balogun then did so on the ground that such treatment was standard practice in the criminal justice system of other common law jurisdictions, including those of the western democracies. Besides, they felt that such public disgrace and humiliation could serve as a potent dissuader to discourage public office holders from engaging in graft and corrupt practices.
The ACJA that was eventually passed and enacted into law in 2015 was presented to the National Assembly in 2006, as an executive bill. The law, being the economic, political and social will and wishes of the ruling class, it can be postulated that Section 5 of ACJA, 2015 was a reflection of the norm or morality of the ruling class; indeed, its elite consensus that men of enormous or considerable political power, economic means and social standing who may be facing criminal investigation, prosecution and adjudication under Nigeria’s criminal justice system, should never be subjected to such a barbaric treatment. It can thus be safely imagined that the mischief which Section 5 of ACJA, 2015 was purposed to cure was the use of handcuffs and manacles other than as a means of restraint of criminal detainees and prisoners, whenever it is absolutely warranted to so use them.
Section 5 and Section 271(2) (a) of ACJA is the law on the treatment of suspects, criminal defendants and detainees when it comes to the use of handcuffs and leg manacles as a means of restraint. When read together with the provision of Section 34 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, we have no hesitation in stating that the handcuffing of Agba Jalingo on October 4 while being brought to court and while being taken out of court was illegal, unlawful and unconstitutional. Section 34 (1)(a) of the Constitution provides that “every individual is entitled to respect for the dignity of his person, and accordingly-no person shall be subjected to torture or to inhuman or degrading treatment”. Undoubtedly, Agba Jalingo was subjected to torture and inhuman and degrading treatment. His handcuffing was unwarranted, in the circumstances, and it was clearly calculated to break his “revolutionary” spirit as a “combatant” in the Revolution Now Movement.
On the face of the Charge, Agba Jalingo is accused of committing very serious offences, including terrorism and treasonable felony. But as serious as these offences may be, they do not provide a legitimate or reasonable ground to handcuff him for his court appearances. He is in the eye of the law still presumed innocent. He has no criminal record. He is not a habitual offender and he is not known to be an advocate of violence as a means of changing the government. He may be charged with the offence of terrorism, but by his antecedents, he is not known to be one. He is not Kabiru Sokoto, the 2011 Christmas Day bomber and terrorist; nor is he a Boko Haram Commander, to justify his being handcuffed for his court appearances. From all that is known of and about him, he has no history of escaping from a lawful custody or engaging in jail break. He was never an escaping felon or a fugitive from justice.
When Dino Melaye, a senator representing Kogi West Senatorial District in the Nigerian Senate was on May 2, 2018, brought to court and arraigned before a Chief Magistrate Court in Abuja, FCT for allegedly attempting to escape from lawful custody and also threatening to commit suicide, he was not brought to court in handcuffs or leg chains. When he was on the following day, May 3, 2018, charged and arraigned before a Chief Magistrate Court in Lokoja, Kogi State for criminal conspiracy and unlawful possession of firearms, he was brought to court in an ambulance and on a stretcher. Not in handcuffs or manacles. When he was brought before an FCT High Court, Maitama on January 22, 2019, on a nine-count charge of unlawful obstruction and evasion of arrest, following a week-long prevention of the police from gaining ingress into his home for the purpose of effecting his arrest, he was not brought to court in handcuffs. And when he was arraigned on March 5, 2019 before an FCT High Court, Apo on a six-count charge bordering on attempted suicide and attempt to escape from lawful custody, he was neither handcuffed nor leg manacled. If Dino Melaye, in the circumstances highlighted above, did not deserve to be handcuffed while being brought to the courts, it is baffling why Agba Jaingo was considered a “fit and proper” detainee to be subjected to the handcuffing treatment!
In reaction to the handcuffing of Agba Jalingo, some partisans have attempted to draw a distinction between how Omoyele Sowore, being tried by an APC-controlled Federal Government of Nigeria, was brought to court without handcuffs, and granted bail, upon arraignment, and how Agba Jalingo being “tried” by a PDP-controlled Cross River State Government was brought to court in handcuffs and denied bail. By this distinction without any difference, these partisans seek to score cheap political points by portraying the Federal Government of Nigeria as humane in the handling of the arrest, investigation and prosecution of Omoyele Sowore, and the Cross River State Government as inhumane. They declaim their oppositional partisans for not condemning Governor Ben Ayade in the same manner they are vociferously condemning President Muhammadu Buhari over the Omoyele Sowore’s trial.
It may be helpful to enlighten these partisans that essentially, Agba Jalingo is facing federal offences. Terrorism is a federal offence, and by Section 251(2) of the Nigerian Constitution, the Federal High Court has jurisdiction to try treasonable felony. Agba Jalingo was arrested by federal agents-policemen; and he is being prosecuted by a police prosecutor. If the police had not arrested him, Ben Ayade, the Cross River Governor, could not have by himself effected his arrest, arranged his detention, and charged him to court. Agba Jalingo is being prosecuted before a Federal High Court and being held in a federally owned and controlled prison by (Federal) Nigeria Prison Service officials. The interest of the Governor of Cross River State and that of the Federal Government could have converged in the incarceration of Agba Jalingo, but, surely, he is a detainee of the Federal Government of Nigeria. His handcuffing is, therefore, a violation of the law and abuse of power by the agencies of the Federal Government of Nigeria.
Nigerians should prevail on the authorities of the Federal Government of Nigeria, in particular, the Attorney-General of the Federation, to respect and observe the human rights of Agba Jalingo while he is being detained and undergoing prosecution.
May Citizen Agba Jalingo have a free and fair trial, and may the State surrender to wise counsel by withdrawing the charge and setting him free.