“Executive Cannot Detain At Will,” Court Voids Section 438 Of ACJA

*Nullifies AG’s Power To Order Detention Under ACJA

The Federal High Court in Lagos, presided over by Hon. Justice A. Lewis-Allagoa, has delivered a landmark judgment declaring Section 438 of the Administration of Criminal Justice Act (ACJA) 2015 unconstitutional.

The decision came in a suit filed by renowned human rights lawyer, Femi Falana, SAN, challenging the legality of Section 438, which grants the Attorney General of the Federation discretionary powers to detain individuals without judicial oversight. The suit was brought under the Fundamental Rights (Enforcement Procedure) Rules 2009 and invoked key provisions of the 1999 Constitution as amended, including Sections 35 and 36, which guarantee personal liberty and fair hearing.

Justice Lewis-Allagoa emphasized that Section 438 of the ACJA infringes upon the judicial powers exclusively vested in the judiciary under Section 6 of the Constitution. The court ruled that:

1. The discretionary powers conferred on the Attorney General to detain persons without trial or revoke licenses for such detention violate fundamental rights to liberty and fair hearing as enshrined in the Constitution and the African Charter on Human and Peoples’ Rights.
2. The provision undermines the judiciary’s exclusive authority to determine civil rights and obligations, thereby contravening the principle of separation of powers.

The court dismissed the preliminary objections raised by the National Assembly, which included arguments on jurisdiction, locus standi, and procedural technicalities. Justice Lewis-Allagoa upheld the validity of public interest litigation, citing the Fundamental Rights Enforcement Procedure Rules, which encourage advocacy for the protection of human rights.

Key Takeaways from the Judgment:

• Section 438 of the ACJA 2015 was declared unconstitutional, illegal, and nullified.
• The judiciary retains the sole power to determine matters of detention and fair hearing, with no encroachment from the executive or legislature.
• Public interest litigations, especially in human rights matters, were affirmed as valid under the law.

The judgment has been widely hailed as a victory for human rights and the rule of law. Femi Falana, SAN, commended the court for upholding constitutional principles, stating, “This decision reinforces the need for the executive and legislature to respect the judiciary’s constitutional mandate.”

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