As part of the measures to decongest its over crowded prisons the British Government recently approached the Federal Government for a deal to repatriate the over 1,000 Nigerian citizens in British prisons to serve out their sentences in Nigerian prisons. Without considering the legal implications of the deal and the interests of the Nigerian citizens involved in the deal the Federal Government is reported to have reached an understanding with the British Government on the so called Prisoner Exchange Agreement.
As part of the measures to decongest its over crowded prisons the British Government recently approached the Federal Government for a deal to repatriate the over 1,000 Nigerian citizens in British prisons to serve out their sentences in Nigerian prisons. Without considering the legal implications of the deal and the interests of the Nigerian citizens involved in the deal the Federal Government is reported to have reached an understanding with the British Government on the so called Prisoner Exchange Agreement.
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Convinced that the Federal Government has not been properly advised in the circumstances we are compelled to draw the attention of Distinguished Senators and the Honourable Members of the House of Representatives to the provisions of the following legislations:
1. By virtue of Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 every person shall be entitled to their personal liberty and no person shall be deprived of such liberty save in accordance with a procedure permitted by law which may include the “execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty” .
2. Under Article 6 of the African Charter on Human and Peoples Rights Act "no one may be deprived of his freedom except for reasons and conditions previously laid down by law".
3. Under Section 3(3) of the Prisons Act “every superintendent is authorized and required to keep and detain all persons duly committed to his custody by any court, magistrate, justice of the peace or other authority lawfully exercising civil or criminal jurisdiction, according to the terms of any warrant or order by which any such person has been committed, until such person is discharged by due course of law”.
4. Section 253 of the Criminal Procedure Act provides that “A warrant under the hand of the judge or magistrate by whom any person shall have been sentenced or committed to prison for non-payment of a penalty or fine shall be full authority to the superintendent of any prison and to all other persons for carrying into effect the sentence described in such warrant not being a sentence of death”.
5. For the avoidance of doubt the terms “Judge”, “Magistrate” and “Justice of Peace” have been defined by Section 2 of the Criminal Procedure Act to mean a Judge, Magistrate or Justice of the peace appointed in accordance with any law of a State in Nigeria .
6. Thus, by the combined effect of the relevant provisions of the Constitution, the African Charter on Human and Peoples' Rights and the Criminal Procedure Act the Federal Government lacks the power to reduce Nigeria to a dumping ground for foreign convicts from the United Kingdom or from any other foreign country.
In the light of the foregoing it is undoubtedly clear that the Authorities of Nigerian prisons have no powers to admit and keep persons who have not been committed to their custody by Nigerian courts or judges. In other words, Nigerian citizens tried, convicted and sentenced to prison terms by foreign courts cannot be admitted and kept in Nigerian prisons. Therefore, the neo-colonial Prisoner Exchange Agreement between the British and Nigerian Governments is illegal and unconstitutional in every material particular.
In view of the Rule of Law Policy of the Federal Government it is hoped that the illegal agreement will be terminated without any further delay. Should the National Assembly proceed with the passage of a law to back up the illegal Agreement we shall not hesitate to challenge its constitutional validity at the Federal High Court.
Yours sincerely,
FEMI FALANA
October 28, 2011
The Senate President,
The Senate,
National Assembly,
Three Arms Zone,
Abuja.
Cc: The Honourable Speaker,
House of Representatives,
Three Arms Zone,
Abuja.
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