MARTIN KPEBU v. ATTORNEY-GENERAL

JUDGMENT

BENIN, JSC

The plaintiff herein seeks a single relief from this court, namely: A declaration that section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Act 2002, (Act 633) contravenes Articles 15(2) and 19(2)(c) of the 1992 Constitution and is therefore null, void and of no effect.

In order to appreciate the ensuing discussion, it is necessary at this early stage to set out the relevant provisions of Act 30 as amended, as well as the Constitution, 1992 upon which this action is founded. Section 96(7) of Act 30 as amended by Section 7 of Act 633 and also as amended by section 41(1)(a) of the Anti-Terrorism Act, 2008 (Act 762) reads:

A court shall refuse to grant bail-

(a) in a case of treason, subversion, murder, robbery, hijacking, piracy, rape and defilement or escape from lawful custody , or acts of terrorism;

(b) where a person is being held for extradition to a foreign country.

The relevant provisions of the Constitution read:

Article 15(2): No person shall, whether or not he is arrested, restricted or detained, be subjected to

(a) torture or other cruel, inhuman or degrading treatment or punishment;

(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.

Article 19(2)(c): A person charged with a criminal offence shall,……….be presumed to be innocent until he is proved or has pleaded guilty.

When they filed their statement of case the defendant argued that by virtue of Article 14(1) of the Constitution the liberty of the individual could be curtailed in certain situations, therefore section 96(7) of Act 30 had this constitutional backing. The defendant therefore set down Article 14(1) in the memorandum of issues whether section 96(7) of Act 30 was inconsistent with it. The court consequently adopted the issue as formulated by the defendant, whether section 96(7) of Act 30 as amended by Act 633 is inconsistent with Articles 14(1), 15(2) and 19(2)(c) of the Constitution. The said Article 14(1) provides that:

Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law-

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or

(b) in execution of an order of a court punishing him for contempt of court; or

(c) for th