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Legal Perspectives on Incarceration and Discharge in Nigeria

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The right to personal liberty is a fundamental right which like every other right, is not without limitations. In as much as a person is entitled to his personal liberty, he can be deprived of his liberty so as to bring him before a court in
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  1  2 UNIVERSITY OF IBADAN JOURNAL OF PUBLIC AND INTERNATIONAL LAW (UIJPIL) PUBLISHED BY THE DEPARTMENT OF JURISPRUDENCE AND INTERNATIONAL LAW UIJIL, Vol. 8, 2018 ISSN 1595-7047  242 Legal Perspectives on Incarceration and Discharge in Nigeria Dr. Afolasade A. Adewumi* Abstract ABSTRACT The right to personal liberty is a fundamental right which like every other right, is not without limitations. In as much as a  person is entitled to his personal liberty, he can be deprived of his liberty so as to bring him before a court in execution of a court order or when he is suspected of having committed a criminal offence. 1  In situations where the right to liberty is restricted according to law, the accused person still has the constitutional right to bail. Despite this, several suspects in  Nigeria have, over the years suffered deprivation of their constitutional right to bail. The present position of the law as regards the right to bail under the Administration of Criminal Justice Act 2015 is the crux of this article. Keywords : incarceration, discharge, right to bail, criminal offence, accused person. Introduction Democracy and an orderly society are built on the foundations of fundamental rights and civil liberties. Fundamental rights being the freedoms, liberties, immunities or benefits which according to natural law, moral values and international law, all human beings are entitled to enjoy as a matter of right in the society or country in which they live. 2  Fundamental Right is an undoubted inalienable right which *Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan, Ibadan, Nigeria. Mobile: +2348034288083 Email: sade_abidemi@yahoo.com 1 Constitution of the Federal Republic of Nigeria (CFRN), 1999, Section 36(1)(c) 2 Malemi E.,  Administrative Law. Lagos: Princeton Publishing Co. 2012:90    243 corresponds to a ‘  jus naturale’. 3  The right is protected in a nation to the extent that the government of that nation permits. 4  A One-time Chief Justice of Japan defined Fundamental Human Rights thus: “Fundamental Human Rights were not created by the State  but are external and universal institutions, common to all mankind and antedating the state and founded upon natural law. 5 ” Right to personal liberty is the right not to be subject to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification. 6 Commenting on the right to  personal liberty and the judiciary’s anxiety to ensure the other arms of government do not transgress this provision with impunity, the court in granting bail to the accused in Onu Obekpa v. Commissioner of  Police 7   said: “As it appears, the spirit behind the provision of section 32(4)(a) and (b)of the Constitution is to keep an accused  person out of incarceration until found guilty through the  process of Court trial. It is a conditional privilege which he is entitled to under the Constitution… of much further advantage in this regard is this fact that unless the right to  bail or to freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of criminal offence, 3  Asemota V. Yesufu (1982) 3NCLR, 419 H.C 4 ibid 5 1972, 16 J.A.L. No. 2: 131. Quoted with approval, by Aguda T.A, The Judiciary in the Government of Nigeria.1883: 41 and adapted from Oluyede P. A., Nigerian Administrative Law.  Ibadan: University Press PLC. 1988:456. 6 Constitutional Law. (9 th  Ed.): 207-208. Quoted with approval by, Justice Orojo in Oba Gabriel Orogie v.The Attorney General of Ondo State &Anor   (1982) 3NCLR 349, as stating the meaning of personal liberty in Nigeria. Adapted from Mowoe K.M, Constitutional Law in Nigeria . Lagos: Malthouse Law Books 2008:319. 7 Onu Obekpa v. Commissioner of Police (1981) 2NCLR 420
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