Police and Human Rights

PART1

The ranting everywhere now is ENDSARS ! ENDSARS!! But unfortunately, the individuals that constituted this disbanded Special Anti -Robbery Squad  are but products  of  a bad Police  System. This article critiques the role, function and effectiveness of the Nigerian Police Force (NPF), within the local and international legislation governing effective policing in democratic societies and similar common law jurisdictions, and proffers solutions and suggestions for improvement for bringing the NPF, its personnel and standards at par with the policing system of western countries. One of the basic responsibilities of the government in all societies is to ensure the safety of life and property of its citizens.

 Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (Constitution), states that “the security and welfare of the people shall be the primary purpose of government.” Therefore, it is by establishing and maintaining an efficient police force that the government provides a feeling of security to its citizens. The primary responsibility for ensuring security and protection of basic human rights rests with each country, since they alone are the contracting parties to the relevant international treaties. 

Hence, Nigeria is a party to many human rights treaties, which include: the Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights (ICCPR) 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, International Convention on the Elimination of All forms of Racial Discrimination, The International Convention on the Elimination of all forms of Discrimination Against Women (CEDAW),The United Nations Convention on the Rights of the Child, 1989, the United Nations Convention Against Torture and Other Cruel,  Inhuman or Degrading Treatment or Punishment, etc. Regionally, Nige-ria is a party to the African Charter on Human and People’s Rights (ACHPR) 1981.  The African Charter on the Rights and Welfare of a Child  is another regional document for the protection of African children. 

These international and regional treaties were all negotiated, executed and ratified towards safeguarding the fundamental freedom and rights of every individual in the member states. Nigeria, as a signatory to the above conventions and treaties, is bound by the provisions therein. In furtherance of this obligation, Nigeria has enacted its own municipal laws to protect the inherent rights and freedom of all citizens in the country. In Nigeria, the Constitution is the supreme law of the country and every law that is inconsistent with the provision of the Constitution shall, to the extent of such inconsistency, be rendered null and void.  Chapter IV of the Constitution embodies the fundamental rights of every Nigerian and these rights are enforceable under Section 6 of the Constitution, with these constituting legal safeguards for ensuring that human rights are preserved and that people are governed within the ideas and values of true democracy in Nigeria. Therefore, promotion and protection of human rights is at the very core of policing.

Therefore, promotion and protection of human rights is at the very core of policing. The enforcement of laws and the maintenance of peace and order are first and foremost about protecting the rights of citizens, and thus the role of police personnel in protecting and respecting the rights of every individual is fundamental. However, because the police is always responding to diverse issues and problems of law enforce circumstances, issues of rule of law and human rights are cast around police intervention, including methods such as stopping people for questioning, arresting them, searching them or their property, and interrogation after custodial arrest. Moreover, how the police take control of such circumstances particularly through the level of force they use, is also a matter concerning the rule of law and human rights.

 In Nigeria, protection and/or violation of fundamental human rights continue to be critical challenges facing the NPF, with allegations of human rights abuses by the police officers dominating most discussions about the effectiveness of police in dealing with cases relating to crime and criminality. However, police work can be very complex and invariably there are many aspects of policing that also enhance and promote the rule of law and human rights within the community. As an emerging democracy, it is imperative that the police in Nigeria promote human rights through the practice of policing with a focus on protecting human rights and thus help to institutionalize and sustain democratic practice.

The concept of human rights as it is known today stems from the natural law theory that individuals in society possess certain rights, which are inherent, inalienable and fundamental to their existence, as propounded by Thomas Hobbes and John Locke, among others. Accordingly, these rights cannot be deliberately taken away without good reason. Human rights were first formulated conceptually in the United States Bill of Rights, developed as a universal concept in the Universal Declaration of Human Rights (UDHR), and elaborated in various international human rights instruments following the UDHR.Nigerian Constitution and Human Rights

The rights that are both cognizable and justiciable in Nigeria are civil and political rights, found mainly in the ACHPR  ( African Charter on Human and Peoples Rights) and Chapter four of the Constitution. These rights include:

1. Right to life.
2. Right to the dignity of the human person
3. Right to personal liberty.
4. Right to fair hearing.
5. Right to private and family life.
6. Right to freedom of thought, conscience and religion
7. Right to freedom of expression and the press.
8. Right to peaceful assembly and association
9. Right to freedom of movement.
10. Right to freedom from discrimination
11. Right to acquire and own immovable property anywhere in Nigeria 
12. Compulsory acquisition of property.

For purposes of this article, not all the rights will be discussed. The scope of this article  will be confined to those rights with which the police contend with in the exercise of their powers under the Police Act, 2010.( Now repealed)

The establishment of the NPF predates the Nigerian Constitution. Prior to the arrival of the British to Nigeria in 1800, law and order was maintained by the local chiefs and their messengers by means of traditional institutions and the age grade system. After the arrival of the British in Nigeria,  the police system and administration gradually passed from the local chiefs to the British. Many reasons accounted for this. The key reasons were: to protect the British commercial interest, to deal with uncompromising local chiefs and traditional rulers and to safeguard trade routes and stop slave trade. There was also the need to ensure that consular orders were executed, particularly against those uncompromising chiefs. Following the annexation of Lagos, William McCoskry and the first acting Governor of Lagos established the Hausa constabulary/ Lagos Police Force in 1861.

chiefs. Following the annexation of Lagos, William McCoskry and the first acting Governor of Lagos established the Hausa constabulary/ Lagos Police Force in 1861. Thus establishing the Nigeria Police Force. Section 214(1) of the Constitution establishes the NPF. It abolished the individual state or local government police forces and provides that no other police force shall be established for the Federation or any part thereof. Police affairs are under the jurisdiction of the federal government as it is an item on the Exclusive Legislative list of the Constitution. The duties of the Police Act are provided for under section 4 of the Police Act as follows:

• The police shall be employed for the prevention and detection of crime
• The apprehension of offenders
• The preservation of the law and order 
• The protection of property and the enforcement of all laws and regulations with which they are directly charged and
• shall perform such military duties within or without Nigeria as may be requested of them by or under the authority of this or under any Act.

In addition to these duties, the police are charged with the performance of other auxiliary duties, including assisting in regulating traffic on the highway, providing assistance during disasters and acting as escorts in various spheres. The NPF also patrols jointly with the army in strife torn areas. .  The Nigerian Police Force is principally responsible for the maintenance of  law and order. Virtually all other duties mentioned in section 4 of the  Police Act (Now Repealed)   is centered on this particular duty which involves maintaining law and order.

This duty demands that the police compel the citizens to obey laid down laws as outlined in the Nigerian Constitution. However, the police are required to balance the freedom of the individual with the need to prevent and detect crime and, the preservation of law and order. In this way, the police gives  life to human rights, meaning that police make decisions that either affirm or deny human rights of individuals. Police are mandated to protect and serve. They are the centurions at the gate and defenders of the law, legality, freedom, individual liberties and human rights.  

For example, the NPF has very wide powers in the performance of their duties under the Police Act and the Administration of Criminal Justice Act, 2015. These include the powers of arrest, search, seizure, detention and use of force in certain circumstances. The exercise of these rights affect either the citizen directly or their property. Consequently, the fundamental rights of citizens are more often and more directly affected by police activities than by those of any other institution. According to J.R. Greene, “Policing can be seen as law in action. It is legal realism giving life to the laws that are at once substantive, procedural and restorative, concerned with legality but also with due process and doing justice.” Therefore policing as an extension of human rights protection is an aspiration of democratic societies yet to be realized. 

The police are at once charged with enforcing the law, while also being constrained as to how they go about such enforcement. Balancing the rights of the individual with those of the state has been a perennial question in democratic societies. The police can, and do, use their discretion in support of human rights. Today, police use referrals to mediate disputes for example drug referrals, provide advice to crime victims about how to pursue their rights and claims. They protect victims such as battered women and children, often directing them to non-governmental organizations (NGOs), shelters and medical help. Through the enforcement of civil and criminal court orders, the police protect potential victims and stop dangerous practices.

Each of these interventions support human rights but often occupy a modest fraction of police effort. On the other hand, police abuse of their discretion and mandated powers invariably results in the violation of the human rights of citizens. Thus, this article focuses on those rights with which the police come to grips with in the exercise of their powers under the Police Act, 2010(now repealed) and the ACJA. The rights most subjected to wanton abuses by the police are the rights to life, dignity of human person, personal liberty, fair hearing, and privacy

1. Right to Life : The right to life is provided for under Section 33 of the Constitution, stating that no one shall be deprived intentionally or arbitrarily of his life. The right to life is the mother of all rights and the foundation for the enjoyment of all other rights. Without life, the pursuit of other rights would be in vain. The enjoyment of the right prohibits police officers, or even soldiers, to resort to lethal force, such as firing live ammunition at people like the Lekke Shooting, unless their own lives or the lives of others are in immediate danger and less extreme measures are not available to deal with the situation. Unfortunately, the police have abused the right to life of many Nigerians. These violations range from extra-judicial killing to torture and unlawful detention. Various newspaper reports are replete with horrendous accounts of extra judicial killings in Nigeria, particularly in the hands of members of the disbanded SARS (Special Armed Robbery Squad) of  theNigeria Police Force. Citizens arrested for mere demeanors are labeled armed robbers as soon as they spend a few days in police custody. For example,  from 2015 to 2019 , 5,776 out of 24,941 armed robbery suspects arrested by the Nigerian Police were summarily executed without trial and classified as “killed in combat.” Allegations against the police in Nigeria of summary killings are widespread. While some of the killings occur at police traffic check-points and during patrol duty, others are committed in cold blood at police stations or during torture and interrogation of suspects. For instance, the Boko Haram insurgency that has claimed, and continues to claim, thousands of lives in the Northeast might not have assumed the deadly dimension it took, had the police not, allegedly, extra-judicially killed the first acclaimed leader of the sect, Mohammed Yusuf, a few hours after his arrest.
2. Right to Personal Liberty : This right is contained in Section 35 of the Constitution, that “every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law.” This means that no person shall be deprived of his liberty by confinement in prison or otherwise except by due process of law. The provision recognizes the occasional need for detention of persons pending trial, but places a limit on the duration of such detention. It also requires quick disposition of cases. Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. “The appropriate authority or person” means an authority or person specified by law such as a police officer, Magistrate or a Judge.A person accused of an offense is entitled to be brought to trial within a reasonable time. Reasonable time is defined to mean a period of one day if there is a court of competent jurisdiction within a radius of forty kilometers or a period of two days in other cases. If a person is not tried within a certain period, two months in the case of a person in custody and three months for a person on bail, that person shall be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. A longer period can only be allowed if the court considers it reasonable. Both the Constitution and the ACJA  recognize the right to bail of any person charged to court on allegation of a criminal offense. The rationale behind the right to bail was clearly stated by Idoko J. (as he then was) in Onu Obekpa v. COP

The constitution allows those who might be wrongly accused to escape punishment which any period of imprisonment would inflict while awaiting trial; guarantees  easy accessibility to counsel and witnesses so as to  ensure unhampered opportunity for preparation of defence. Of much further advantages 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 a criminal offence would lose its meaning and force.  However, there are exceptions under Section 35 in which a person may be denied his constitutional rights to liberty without repercussions. These exceptions are execution of the sentence or order of court in respect of an offence of which the accused has been found guilty, failure to comply with the orders of a court, bringing an individual before a court on the orders of the court, upon reasonable suspicion of having committed a criminal offence. 

A person can also be lawfully deprived of his liberty if he is under age and such deprivation is in the interest of his education and welfare.   Persons suffering from infectious or contagious disease, of unsound mind, drug or alcoholic addicts may be deprived of their liberty for the purposes of their care, treatment or the protection of the community. 

Although the police is empowered to arrest persons suspected of committing criminal offences, evidence shows that this power is widely abused by them. For example, on Nov. 1, 2017, one Sylvester Ihejirika bought a 1999 model Toyota Siena from a car dealer in Port Harcourt with a balance of N10,000.00. The car dealer’s stern demand for the balance turned to threats and finally police arrest. Mr. Ihejirika was arrested and detained for two weeks. He said that he was beaten, maltreated and his family members were extorted over N170,000, part of which was paid through electronic bank transfer to one investigative officer known as Scorpion’. During his ordeal he was not allowed to contact his lawyer or family members. 

He was finally released after two weeks in detention without any explanation by the police. His request for the police to release his car and to refund the N170,000 was not granted.  Additionally, one Mr. Iwuala, was arrested and detained in Asaba, Delta State after he reported that his bank account was frozen by his bank on an allegation that N600,000 was illegally transferred to the account.  Although, he offered to return the money to the person who paid the money into his account, he was still arrested and held in custody in Asaba.He was charged to court and the Magistrate found no case against him and released him. Immediately after he stepped out of the court, the police re-arrested him and detained him for “several weeks.” While in detention he was made to pay N80,000 to be kept in a special and more “comfortable cell.” He said that he narrowly escaped food poisoning after his friend was made to write an undertaking which he was forced to sign before he could secure his release from detention. These examples highlight the near absence of arrest procedures or guidelines in Nigeria’s law enforcement system. 

 The police have over relied on constitutional exceptions to indiscriminately arrest and detain innocent citizens. Similarly, section 18(1) of the ACJA  and section 24(1) of the Police Act empower the police to arrest without warrant under certain circumstances. In Nigeria, most arrests effected by the police are hardly based on any reasonable suspicion of the victims having committed a criminal offence. All the constitutional safeguards provided in Section 35 are obeyed in breach. For example, on April 3, 2016, one Chinedu Mba was arrested and detained by the anti-kidnapping unit of the police force in Enugu for belonging to an unlawful society. His family and lawyer have not seen him since May, 2016.  Similarly, on July 5, 2013, one Oluwaseyi Adesuyi was seen alive in public when he was paraded as a suspect before journalists in connection with a high profile kidnapping. Since then, he has completely disappeared without a trace. The police who arrested him are unable to explain what happened to him.  They could not produce any record of arrest. He did not escape from police custody and there is no evidence he was charged to court.112 His family has searched for him in every police station in Lagos, Ondo and Abuja, but has come out with absolutely no information about what happened to him. 

However, the courts always come to the rescue of victims who challenge their arrest and detention. In Chinedu Eze v. I.G.P., the court held that where a person has been arrested and detained without justification in law, the right to personal liberty has been trampled upon by the invaders. 

This include:

1. The right to have proceedings and decisions held in public.
2. The right to make representations before administering authority.
3. The right to have the decision of administering authority reviewed by a higher organ
4. The right to be tried in public within a reasonable time.
5. The right to be presumed innocent until proved guilty.
6. The right to be informed promptly in the language that he understands and in detail of the nature of the offence.
7. The right to be given enough time to prepare his defense.
8. The right to defend himself in person or by a legal practitioner of his own choice.
9. The right to examine the witnesses called by the prosecution and to bring his own witnesses before the court. 

In the performance of their duties, the police have to some extent violated some or most of the attributes of this right. For example, the police have powers of bail regulated by the Constitution and the ACJA. Section 30(1) of the ACJA requires a person arrested without a warrant for a non-capital offence to be charged to court within 24 hours or re-leased on bail. The police officers do not abide by this provision of the law. Although there are posters and signs indicating that bail is free, accused persons or their relatives are made to pay money to police officers in order to secure bail. In spite of such warnings, corruption of the bail process at the police stations still persists.  Section 36(4) of the Constitution requires any arrested person who is detained to be brought before a court of law within a reasonable time. However, the reality is that arrested persons are held for several weeks or months before being released or charged to court. This leads to over- crowding and unnecessary congestions in prison cells.For example, in Isaac Sambo v. State, the accused committed an offense on July 7, 1976 and was in custody till June 27, 1977 when he was charged to court for the first time and was later sent back to custody.

To be Continued