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INTRODUCTION

The
Nigerian Police (NP) is the principal law enforcement agency in Nigeria and its
functions, duties and powers are contained and regulated by the Police Act (CAP
P19 Laws of the Federation of Nigeria 2004). Additionally, Police Officers are
subject to the code of conduct for Police Officers.

The
Criminal Investigation Department is the highest criminal investigative arm of
the Nigerian Police Force. The Special Anti-Robbery Squad (commonly known as
SARS) is one of the 15 units under the Nigerian Police Criminal Investigation
and Intelligence Department. Its duties include the arrest, investigation and
prosecution of suspected armed robbers, murderers and others involved in the
commission of violent crimes. 

The
NP is an organization recognized as the custodians of security and order in
society. However, in light of current events, the SARS unit of the NP is being
touted as a violent, exploitative and oppressive system by disgruntled
citizens. This article shall consider the negative reputation of the SARS and
highlight the rule of law in relation to the powers of the NP.

NARRATIVE

The
writer will present a very familiar scenario which most Nigerians have experienced
firsthand, witnessed or been told about. 
A lot of people will affirm that this story is a familiar one.

A
young man on vacation to Nigeria is arrested while taking a leisurely stroll in
the evening. He is confused as to the reason he has been arrested but strongly
believes an explanation will be given; after all everyone is allowed to take
strolls, right? He is subsequently whisked off to an unknown police station,
and after 48 hours in detention with no communication with his family; his
belief that he cannot be arrested for no reason at all has faltered greatly. He
has of course been stripped of all his personal effects; his fancy phone
inclusive. By the time a kind person manages to contact his mother on his
behalf; his belief has taken a complete turn around and now he is certain that
there is no escape from the hell hole he exists in. This is not a place where
shouting, crying or begging achieves any results.  His mother’s joy that her only son has been
found and was not kidnapped as she previously feared is cut short; perhaps his
fate may have been better at the hands of kidnappers who merely wanted a
satisfying ransom.  This young man was
right after all; because he was killed in custody with the explanation that he
was a robbery suspect who tried to escape. Many of such people are not alive to
tell their story. They have been silenced forever; the horrors they faced not
to be discovered by anyone.

STATISTICS

According
to the PRAWA (a Non-governmental organization aimed at promoting Security,
Justice and Development in Africa)Report on Prisons Monitoring, Investigation
and Documentation of Torture Incidence in Enugu State conducted in March 2011,
The Special Anti-Robbery Squad has Police Officers who are designated to
torture crime suspects. Such Police Officers have an unofficial designation
like “OC Torture” (Officer In Charge of Torture), and they have special skills
in infringing various methods of torture on their victims; which methods
include but are not limited to prolonged detention in police custody, gunshot
wounds, severe beatings with police baton and other dangerous objects , burning
with hot objects, squeezing of testicles and inserting objects into the penis,
insertion of nails on feet, electric shock, suspension on the tree in different
positions and cutting with cutlass. (www.prawa.org).

A
series of reports have been made in the past few years with respect to the
degrading treatment and unjust harassment frequently meted out by SARS
operative; a notable report is the one made by Amnesty International in 2016 (https://www.amnesty.org/en/latest/news/2016/09/nigeria-special-police-squad-get-rich-torturing-detainees/)wherein
a press release accusing SARS officials of extortion, torture and inhumane
treatment was vehemently refuted by the Inspector General of the Nigerian
Police Force.

Irrespective
of the admittance or refusal of the allegations levied against officials of
SARS, it is no news that the motto of the NP; “Police is your friend” is very
laughable in Nigeria. Millions of people have been harassed and oppressed and
continue to be subject to dehumanizing and degrading treatment by police men
while supposedly carrying out their duties.

It
would appear that most people while not being completely ignorant of their
rights simply do not know what to do, and the few that are informed would
understandably cower in fear or have lost the will to fight for a seemingly
hopeless cause.

The
need to reiterate our basic rights cannot be over emphasized as we continue to
lend our voices as a sword till we get the desired result.

STATUS QUO

Nigerians
in their myriad of challenges forget the past, until the present reality
resurfaces buried memories. Sequel to various continuous reported and
unreported incidents of abuse, harassment, unlawful detention, extortion and
murder by officials of the Special Anti-Robbery Squad; Nigerians are yet again advocating
vigorously for the elimination of SARS on social media and the campaign against
SARS is trending. The popular hashtag ENDSARS is being used to demand for an
end to police oppression and brutality, with a plethora of videos evidencing
same resurfacing.  

Many
of us recall that a few years ago, Nigerians had in similar fashion and
severally demanded for a reform. In 2017, a Petition signed by over 10,000
people was submitted to the National Assembly calling for a total disbandment
of SARS.(thecable.ng, Ibrahim Mansur, 3/12/2017, “Trending: Nigerians say
“enough is enough”, it is time to EndSARS).

In
2018, a panel was constituted with respect to reformation of SARS after an
unfortunate murder of the only son of a Retired Superintendent of Police.  As recently as 2019, the President of the
Federal Republic of Nigeria stated that a Panel had been constituted to reform
the Special Anti Robbery Squad.  

We
note with dismay the alleged murder of a young man in Delta State Nigeria a few
days ago.  Sequel to nationwide protests,
on the 5th of October 2020, a circular signed by the Deputy
Commissioner of Police Force Pro, Abuja was disseminated and it was stated in
the said circular that the Inspector General of Police has banned amongst
others, FSARS from routine patrol, stop and search, road blocks, unauthorized
searches of mobile phones and the likes.

 The Protesters however remained dissatisfied
and refused to be silenced by some frivolous and ridiculous allegations that
those protesting are actually criminals who intend to use the protests to
surreptitiously achieve their illicit motives.

After
several days of peaceful and incessant protests, the President of the Federal
Republic of Nigeria stated on the 9th of October 2020 that he met
with the Inspector General of the Police with respect to the extra judicial
killings being carried out by SARS and ordered the Inspector General of Police
to address the excesses of the notorious police unit.

On
the 11th of October 2020, a similar circular was disseminated stating
that the Inspector General of Police has dissolved SARS and all officers
serving in the unit will be redeployed to other Units.

It
would appear that although the proposed efforts are not to be undermined,
Nigerians will only be pacified by effective, actual, transparent and glaring
solutions. The people are not placated by the IGP’s statement that SARS has
been disbanded and are demanding for more. They have taken those words with
disbelief because similar things have been said in the past only for SARS to
resurface a few months after. The disbandment of SARS also appears to be a
reconversion of the same set of people who are ingrained with brutality.            

Consequently,
it is obvious that the solution that will assuage this menace is not yet
another reformation, a statement about disbandment, but an actual and genuine
permanent disbandment, justice for victims of police brutality and a
legislative reform, amongst others. 

LEGAL PERSPECTIVE

The
various forms of infringement of our fundamental human rights in the exercise
of the powers of officials of the SARS will now be considered in tandem with
the existing legal frame work that should regulate the conduct of Police
Officers.

It
is relevant to note as a preamble that Article 5 of the Universal Declaration
of Human Rights and Article 7 of the International Covenant on Civil and
Political Rights provide that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Nigeria as a country should aim
to achieve internationally recognized standards of human rights, not only by
the mere ratification of international treaties and conventions but in the
practical demonstration that as a nation, we uphold the sanctity of life and we
view human rights as paramount.

Arrest without warrant: Section 24 of the Police Act provides that a
Police Officer can lawfully arrest without warrant for a felony, a misdemeanor,
a simple offence or for breach of peace. It would therefore appear that a
Police Officer can arrest without warrant at all times; as the definition of
what qualifies as reasonable suspicion remains non-specific
andnon-delineated.  However; Section
3(1)of the Administration of Criminal Justice Law 2011 (ACJL) provides that the
Police Officer must inform the person arrested of the cause of the arrest.
Similarly, Section 4 of the Police Act prohibits arresting a person in lieu of
a suspect; which implies that one person cannot be arrested in place of
another. Additionally, Section 3 (2) & (3) states that the person must also
be informed of his right to remain silent, the right to consult his lawyer
before making any statement and the right to free legal representation.
Furthermore, by the provisions of Section 35 (5) of the 1999 constitution  a person who is arrested without warrant must
not be detained for more than 24 hours where there is a Court of competent
jurisdiction within a radius of 40kilometres or in any other case, 48 hours or
for such longer period that the Court may consider to be reasonable. A
deviation from the provisions of the law on arrest entitles the victim to seek
enforcement of his fundamental rights, damages and a public apology.

Torture and inhumane treatment: Nigeria has ratified the International
Convention on Civil and Political Rights (ICCPR) in 1993, the Convention
against Torture (CAT) in 2001 and the Optional Protocol to the Convention
against Torture (OPCAT) in 2009. Additionally, Nigeria is a member of the
African Charter on Human and People’s rights. Irrespective of the above, the
practice of torture and ill treatment by Police Officers in general and
officials of SARS particularly remains rampant. There are countless experiences
of people who have been brutalized, ill-treated and tortured in detention.
Section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) prohibits the use of torture and inhuman or degrading treatment,
therefore a person under detention who is beaten or threatened has the right to
seek legal redress for infringement of his right. 

Unlawful detention: The right to personal liberty is guaranteed
under Section 35 of the 1999 Constitution. Even though this right is not
absolute; any restraint to personal liberty must be done in accordance with a
procedure permitted by law. Unlawful detention can be defined as keeping a
person in custody without any lawful reason. 
(https://dictionary.thelaw.com).
Therefore, being detained in the custody of the Nigerian Police either with or
without the power to arrest and detain may amount to unlawful detention.  It could also be interpreted to mean being
held up at a gun point with threat of being shot if you try to move. In the
same vein, a proviso to section 35 (1) of the constitution (as amended) states
that ,“a person who is charged with an offence who has been detained in
unlawful custody awaiting trial shall not continue to be kept in such detention
for a period longer than the maximum period of imprisonment prescribed for the
offence”. A contravention of the laws guiding the right to personal liberty
will therefore amount to a breach of fundamental rights.

Inducement to give false confession: A false confession is an admission of guilt
for a crime for which the confessor is not responsible.
(en.m.wikipedia.org/wiki/false_confession). The right to dignity of human
person as contained in Section 34 of the Constitution which prohibits torture
extends to the right not to be forced by the police to make a statement under
duress. Therefore, a statement must be given voluntarily by the person making
the statement without physical coercion, torture, promise or threats. Any such
confession can be set aside in a Court of competent jurisdiction.

Extra Judicial killing: An extrajudicial killing (also known as
extrajudicial execution) is the murder of a person by governmental authorities
without the sanction of any judicial proceeding or legal process. (https://en.wikipedia.org/wiki/Extrajudicial_killing).
The relevant provision of the Constitution with respect to the right to life is
Section 33 (1) which provides that a person can only be deprived of his right
to life when he has been found guilty of a criminal offence. A person can also
be deprived of his right to life in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained. Therefore; a person who has
been unlawfully detained and is killed in custody has been illegally deprived
of the right to life. Section 36 of the Constitution provides for the right to
fair hearing and Section 36(5) provides that an accused person is deemed
innocent until proven guilty in a competent court of law.Therefore, it grossly
offends the intent of the NP as custodians of the security of the citizenry to
kill an armed robber or any other person in custody. The relatives of a victim
of extra judicial killing have a right of recourse against both the police
officers responsible for the death and the Nigerian Police as an organization.

WAY FORWARD:

It
is clear that the provisions of the Constitution with respect to human rights
are grossly violated by the NP who continually infringe on rights guaranteed
under Sections 33, 34, 35, 36 and 41 of the Constitution. Furthermore, the
power of the police to arrest and detain is indisputably wide and has created
the forum for abusive interpretation by officials of SARS, the entire police
force and other law enforcement agencies.

The
exclusive elimination of the Special Anti-Robbery Squad may not be the absolute
solution as that may lead to a change in uniform and not character. In addition
to that, there is an urgent need to contain the abuse of power and excesses of
government agencies and their personnel/officers; inclusive but not limited to
the NP in the performance of their duties.

Furthermore,
it is pertinent that checks and balances are created as well as the
implementation of proper training of all Police Officers in areas such as
safety, use of firearms, respect for human rights, treatment of suspects and
other related matters.

This
will involve the dismissal and where necessary prosecution of unqualified,
erratic or emotionally unstable police officers from the NP. 

Additionally,
there is a need to introduce a system that involves inventory and records of
detainees, investigation of all incidents of torture and extra judicial
killings, supervision of all police officers and sanctions.  

Section
36 (6) of the Constitution provides that a person who is unlawfully detained
shall be entitled to compensation and public apology. See the case of Ozide&Ors. VsEwuzie&Ors. (2015)
LPELR – 24482 CA
where it was held that damages in compensation, legally
and naturally follow every act of violation of a citizen’s fundamental right.

Additionally,
legal redress can be sought by filing an action in Court for infringement of
fundamental human rights. In the case of ANOGWIE
& ORS v. ODOM & ORS (2016) LPELR-40214(CA)
, the Court held:

“It was the need to curtail the
excesses of the men and officers of law enforcement agencies that made it
necessary to strengthen the Fundamental Human Rights (Enforcement Procedure)
Rules in Nigeria, not long ago where it was held that the Court is always
prepared and will be quick to give relief against any improper use of power or
any abuse of power by any member of the Executive, the Police or any other
person…”(emphasis mine)

 Nigerians are therefore encouraged to
challenge the breach of their constitutional rights by the Police or any other
law enforcement agencies (not during an interrogation by a seemingly trigger
happy police man but through legal redress) in a bid to curb extreme and
unrestrained violation of rights.   

 

CONCLUSION:

This
Article was first culled by the Writer about 2 years ago. It is deeply heart
wrenching that several years after, the status quo remains so, perhaps even
more deplorable. The pleas of the Nigerian people for real change have dwindled
into despondent resignation again and again until several more brothers,
sisters, children, friends or just fellow humans are killed senselessly and we
all discern, like a realization from some deep seated place in the crevices of
our memories, that this must be faced head on as a battle, because the menace
is closer to our lives than we think.  

Accountability
plays a major role. If we do not begin to learn to take responsibility for our
actions, from the petty thief to the dubious employee, the corrupt politician
or the trigger happy police man; then the change we are all advocating for will
remain chants of a frustrated people. 

Motunrayo Olaleye ACArb

Senior Associate, BA LAW LLP.

 Photo Credit – www.premiumtimes.ng