Substitutional arrest, often known as "Arrest by Proxy," refers to the arrest and detention of innocent people who, despite the fact that they have not committed an offence, are detained because they are connected to or related to the accused person. An example is when a friend or family member of an accused person is arrested and detained.
This practice is usually used by law enforcement agencies to apprehend innocent individuals where the actual suspect cannot be found. The arrested individuals are called proxies. These proxies are often subjected to threats, intimidation, and physical abuse until the person being sought appears or surrenders to the authorities.
Substitutional arrest is illegal and unconstitutional. The law provides that whoever commits an offence must bear the consequences of his actions. Section 7 of the Administration of Criminal Justice Act 2015 provides that:‘A person shall not be arrested in place of a suspect’. Similarly, Section 4 of the Administration of Criminal Justice Law (ACJL) of Lagos state, 2011, provides that“No person shall be arrested in lieu of any other person”
Anyone who is arrested must have committed an offence and cannot be arrested solely because of their relationship or proximity to a suspect.
In the case of ACB v. Okonkwo (1997) 1 NWLR (pt 480) 194 where the police detained and arrested the accused's mother for the alleged offence committed by her child, the Judge stated while delivering the judgment that ‘I know of no law which authorizes the police to arrest a mother for an offence committed or purportedly committed by the son. Criminal responsibility is personal and cannot be transferred”
The learned Justice also went further to say that “a police officer who arrests ‘A’ for the offence committed by ‘B’ should realize that he acted against the law. Such a police officer should, in addition to liability in a civil action be punished by the police authority.’
A substitutional arrest can lead to abuse of power by law enforcement agencies and the government. It also undermines the rule of law and due process. The individuals who are arrested by proxy are often not told the charges against them or given the opportunity to defend themselves. This can lead to false imprisonment and can have a negative impact on the individual's reputation and livelihood. The law requires that anyone arrested or detained by law enforcement officers be informed of the reason for their arrest or detention and be given access to legal representation.
Violation of the individual’s right to personal liberty
Arrest by proxy is illegal as it violates some fundamental rights provided by the Constitution of the Federal Republic of Nigeria 1999 as amended.
Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the right of every person to his or her personal liberty except where such liberty is restrained by the due process of the Law. The Section provides that: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law”.
Personal liberty refers to the freedom from unlawful or unjustified detention, arrest, or bodily restraint, whether in a regular prison or even on the open street. According to Section 5(1) of the Nigeria Police Act 2020, "The Police Force is responsible for protecting the fundamental rights of persons in custody as guaranteed by the Constitution"
Section 35(6) of the 1999 Constitution, as amended provides that "Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law".
It is therefore important that the Nigerian government takes appropriate measures to curb the practice of arrest by proxy. This can be done by ensuring that law enforcement officers are properly trained on the legal requirements for making arrests, and by conducting regular monitoring and oversight of their activities to ensure compliance with the law.
What to do if you are unlawfully arrested
1. Remain calm and polite: It is important to remain calm and polite during the arrest, even if you feel that it is unlawful. Do not resist or fight back as this can escalate the situation.
2. Demand for a reason for the arrest: You have the right to know the reason for your arrest. You can demand that the police or other security personnel tell you the reason for your arrest.
3. Request to contact a lawyer or family member: You have the right to contact a lawyer or family member when you are arrested. You can ask the police or other security agents to allow you to contact your lawyer or family member. If they refuse, insist on your right to do so.
4. Document the arrest: It is important to take note of the circumstances surrounding your arrest, including the time, place, and names of the arresting officers. If possible, take photographs or videos of the arrest.
5. Report the arrest: You can report the arrest to the nearest police station or human rights organizations.
6. Seek redress: You may consider seeking redress through the court system. You can contact a lawyer and file a lawsuit against the police or other security agents for wrongful arrest and detention.
It is important to note that unlawful arrest is a violation of human rights and should not be condoned.