By Malachy Ugwummadu
By the same degree of excitement that I feel to be part of this interaction, I remain grateful to this foremost Institute for staying the course of its original ideals and objectives and now focusing on a very thematic subject in its continued efforts to galvanize resources towards providing pragmatic solutions to an identified national challenge, Law Enforcement. In effect, the general theme of this Seminar, Law Enforcement is well conceived, well thought out and appropriately timed. The topic, “Human Rights, Rules of Engagement and Self Defence” is no less important given the extremely disturbing levels of insecurity and abuse of power by state actors and, more particularly, by law enforcement agencies in the country. The supreme organic law under the fundamental objectives and directives principles of state policy emphatically insists that the State (ie) the Nigerian State shall abolish all corrupt practices and abuse of power 1.
The recent response of the youths of Nigeria through a sustained national campaign against the “Special Anti-Robbery Squad” of the Nigeria Police Force, otherwise labeled #ENDSARS PROTEST# remain fresh in our memory and signposts one of the worst episodes of abuse of state powers in the history and process of law enforcement in Nigeria. What is more, it is that the present level of insecurity in the country leading to wanton but avoidable loss of lives and property completely defeats the cardinal purpose of government under our Constitution 2 and by successive governments since independence.
In the event, the Institute should be commended for paying close attention to some causative factors traceable to this national malady which are poor, wrong and ineffective law enforcement strategies in the country. To be sure, poor, wrong and ineffective law enforcement processes do not just occur in a country, they carry with them colossal damages and the worst casualty remain the breach and violation of human rights of citizens of the affected countries and abuse of office.
It is in this respect that I found, the topic that I have been asked to discuss most appropriate. In other words, how does the general human rights of citizens fare against the backdrop of law enforcement in a given political setting. I recognize that Rules of Engagement (ROE) for a security institute like IIPS is more appropriately referencing the generally known “directives issued by competent military authority that delineate the circumstances and limitation under which military forces will initiate and/or continue combat engagement with other forces encountered” 3
However, within the context of this topic and event, I have elected to focus not exactly on the military being part of the armed forces of our nation saddled with the statutory responsibility of protecting the territorial integrity of Nigeria 4. Instead, I am now more concerned with what you could loosely refer to as the Rules of Engagement within the Primary Law Enforcement Agency in Nigeria, the Nigeria Police Force with a primus statutory mandate to interface with the civilian population of Nigeria.
Curiously, but not fortuitous in my humble view, today the 11th September, 2021 is the twentieth (20th) anniversary of that infamous 9/11 incident when the soul of democracy and human life and dignity were attacked by Islamic Terrorist elements clearly acting outside the rules of engagement and jeopardizing the human rights of citizens of the free world at a global scale.
In an engagement such a this, it makes remarkable sense that further attempts should be made to appraise the status of human rights beyond the scope that it had existed; endeavour, if possible, to expand the frontiers of its applications in order to align it properly within the objective conditions that sustain its relevance in given societies. This paper therefore takes into account the growing quest for a “balance” between the identified human and fundamental rights of the citizens vis-à-vis the overriding responsibility of the State to ensure maximum security for the greater interest of the greatest number of citizens in a State. This presentation briefly clarifies the relevant terms used and their implications on the topic and argues that, in all circumstances and at all times, the human rights of citizens must remain intact and protected regardless of the rules of engagement or regulations by which the police operate. The paper adopts an approach that looks at the wide powers of the Nigerian Police Force and the impacts on the human rights of Nigerians and submits that peace and harmonious coexistence can only be achieved through strict adherence to clearly delineated responsibilities of the Force vis-à-vis the protected human rights of citizens. The responses of citizens to the transgressions (or better still aggressions) of the State through the Police Force in the manner of sustained mass mobilizations, sensitizations and campaigns as well as litigated interventions represent the possible defenses that the paper recommends against the abuses that occur.
Clarifications On Terms Relevant To The Topic:
Human and Fundamental Rights
Often a time, we have seen these words used as though they mean one and the same thing. Indeed, many people including lawyers use them interchangeably. However in law, they do not mean the same thing even if they are related. Human right has its root in the concept of natural law discovered and formulated by the Greek and Roman Philosophers.
They precede and predate countries and constitutions. Human rights are human because they inure to human beings by reason of their humanity. For instance, right to movement exists because the human being has been created with legs to move; freedom of expression is available because we, as human beings have been created with mouths and tongues to speak; freedom of thoughts and religion because we have been created with our brains and minds etc.
At some earlier times, they have been referred to as natural rights, natural justice and even moral rights and so forth.
Fundamental Rights on the other hand has its provenance in the codified laws of countries or establishments such as constitutions, bills of rights, international instruments, conventions or protocols on the rights of the citizens etc. They are fundamental rights because they became entrenched and made inalienable by the fact of their codification in the corpus of legislation of a given country with a remarkable distinction that they, thereby, stand and tower above every other law in a given country and in the hierarchy of its legislations.
This proposition of mine had found judicial approval in the Supreme Court case of Ransome Kuti vs. AG Federation 5 where His Lordship Hon. Justice Kayode Eso (JSC) (as he then was) described fundamental rights thus:
………But what is the nature of a fundamental rights? It is a right which stands above the ordinary laws of the land and which, in fact, is antecedent to the political society itself. It is a primary condition for a civilized existence”
But more instructive in the judicially recognized differences between human rights and fundamental rights is the remarks of His Lordship, Hon. Justice Nasir, PCA (President Court Of Appeal) (as he then was) in the celebrated case of Uzoukwu vs. Ezeonu ll 6 where he made the following statement:
“due to the development of constitutional law in this field distinct difference has emerged between “fundamental rights” and “human Rights”. It may be recalled that human rights were derived from and out of the wider concept of natural rights, they are rights which every civilized society must accept as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration, it was in respect of “Human Rights” as it was envisaged that certain rights belong to all human being irrespective of citizenship, race, religion and so on. This has now formed part of international law. Fundamental rights remain in the realm of domestic law. They are fundamental because they have become guaranteed by the law of the country; that is, by the constitution. Not all fundamental rights are available to all persons in country. Some of the provisions are limited to the citizens while other provisions are applicable to all persons, citizens and aliens alike. This is the position in this country, in the United States, India and many other countries”.
Rules of Engagement (ROE)
They are the internal rules or directives of military force (including individual) that define the circumstances, conditions, degrees and manner in which the use of force, or action which might be construed as provocative may be applied. They provide authorization for and/or limits on, among other things, the use of force and the employment of certain specific capabilities. In some nations, ROE has the status of guidance to military forces while in other nations, ROE is lawful commands. They do not normally dictate how a result is to be achieved but will indicate what measures may be unacceptable 7
As practitioners in the security subsectors, you know that they are quite a hand full of them. However, as indicated in my intro, I am going to approximate the Rules of Engagement (ROE) in the instant paper within the context of the powers and limitations of the Nigerian Police Officer in relation to the rights of the Nigerian citizen.
The Sources and Character of Police Power
The Nigerian Police Force is created under S. 214 (8). Very curiously, the same Constitution under S. 215(3) gives a general schedule of duty to the Nigeria Police in a manner that reinvents the original purpose of policing in Nigeria which was basically to procure maximum security for the colonial masters and assist them in their continued economic exploitations. It say:
215(3) “The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to the Inspector General of Police such lawful directions with respect to maintenance and securing of public safety and public order as he may consider necessary and the Inspector General of Police shall comply with those directions or cause them to be complied with”.
(2) Character of the Force
- Indeed, a further look at the proviso to subsection 4 reveals yet another absurdity. It creates a similar channel of command at the state structure between the Governor of a State and the Commissioner of police but goes ahead to provide that in the event of such directive from the Governor and before carrying out such instruction, the Commissioner of police will be at liberty to refer the same instruction to the President or any other Minister of the Federations that he (Mr. President) may authorize for his direction. This is absurd in a federal system arrangement.
- Innate Nature of The Force
- Thus clearly, you could see that the emphasis of the Nigerian police operations from the constitutional source and arrangement is designed with the President or members of his political class in focus. A legacy that re echoes the purpose of the colonial coercive formation which was meant to protect the colonial masters while the economic exploitation continued. Besides, what the police does through the IGP as the head of that institution is largely what the President directs or desires provided, of course, that the exercise of that discretion concerns the issues of maintenance and security of public safety and public order as he (ie Mr. President) may consider necessary. Emphatically, the IGP is under a mandatory duty and a peremptory responsibility to comply or cause Mr. President’s directive to be complied with.
- Subsection 5 of S. 215 completely forecloses any measure of check on the exercise of that power in the following words:
215(5) “The question whether any, and if so what direction have been given under this section shall not be inquired into in any court”
This ouster clause or provision is neither concealed nor disguised in relation to the discretionary powers of Mr. President over what the IGP does.
(3) Other Sources
- If the foregoing are the constitutional provisions for the sources and duties of the Nigerian Police through the IGP, what then do other enabling statutes and regulations say about the duties and powers of the Nigeria Police Force? We now turn to the Police Act which provides under Section 4 as follows:
- “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order; the protection of life and property and the due 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 required by them, or under the authority of this or any other Act”
- Please note that there is no difference whatsoever between S. 4 of the now repealed Police Act, Cap. P19, Laws of the Federation of Nigeria 2004 and S. 4 (1) of the newly enacted Nigeria Police Force (Establishment) Act, which came into effect in September, 2020 just about a year ago9. Objectively speaking, these are very wide powers without doubts. The powers to prevent and detect crime, apprehend i.e arrest offenders. Note here that the Police Act as well as the Constitution did not, at this point, insist on arrest with or without warrant but the general powers to arrest; preservation of law and order; protection of life and property and due enforcement of all laws and regulations with which they are directly charged including, of course, military assignments that they might be required or directed to perform.
- It seems sufficiently clear that the framers of this section of the Act were both conscious and deliberate in investing in the police a comprehensive latitude of power first, as the leading and foremost law enforcement agency in the country and secondly, recognizing that it has the primary responsibility to deal and interface with the civil population. Apparently, the foregoing powers are way beyond the circumscribed powers of other sister security agencies in the country including but not limited to the Nigeria Armed Forces, National Drug Law Enforcement Agency(NDLEA), Nigeria Custom Services, Immigration, Nigerian Correctional Services, Civil Defence Corp, Road Safety Commission. The relevant provisions of the enabling statutes establishing these agencies describe their duties and functions which are not as expansive as the powers of the Police under Section 4 of the Police Act. 2020
Police Duties and Limits of Their Powers.
- In other words, does the wide powers of the police imply that they can operate without limitations or restraints? For instance , can it be reasonably said that the police has the powers to stop and search persons targeting young persons, their private possessions and personal effects which may be subjected to scrutiny without any form of constraints? My response is Yes! But the concern of this paper is, to what extent? First, let us deal with why my answer is Yes! Intrinsic in the general powers of investigation under S.4 of the Police Act is the power to stop and search any person who is reasonably suspected to have committed a crime established under the law. The Court of Appeal Per Hon. Justice Ogakwu was emphatic when it took the same view in the case of Igweokolo V Akpoyibo & Ors10
“By all odds, the police has the statutory power to investigate, arrest, interrogate, search and detain any suspect…..S.4 of the Police Act. The only qualification is that the power must be exercised in accordance with the law”
4) Ingredients of Valid Police Power
- Why is there an emphasis on exercising those power in accordance with the law and upon reasonable suspicion of commission of crime? It seems, in my view, that if the ultimate purpose of a search, arrest & investigation is for prosecution and conviction, then no person can be so dealt with under the 1999 Constitution except there exist, as at that material time, a valid law or Act of the National Assembly or the State Houses of Assembly by which the action of the suspect is prescribed, sanctioned and made punishable11. Anything outside this prescription will be a direct affront on the suspect’s right to fair hearing. See also the old cases of Aoko v Fagbemi12; Undokwu v Onugha & Anor 13
In the very ambitious essence of the new Police (Establishment) Act 202014, under S. 137 (1)& (2) Police officers are empowered upon reasonable grounds of believe that an order given to them by a senior officer is unlawful to:
- is not bound to comply with the order; and
- shall immediately make report in such form as it is provided for by the Police Service Commission for that purpose.
- Impressive as this section appears, it introduces an inexplicable volte-face in the very next section when it calls for the stern discipline of such an officer in the following circumstances:
- S.137 (2)(a)(b) On receipt of the report referred to in subsection (1) of this section, the Police Service Commission shall immediately inquire into the matter and may, where the inquiry reveals that the order was:
- a) lawful, take appropriate disciplinary action against the officer for disobeying a lawful order; and
- b) unlawful, take appropriate disciplinary actions against the superior police officer for giving an unlawful order.
- In my view S.137 (2)(a) has completely defeated the purpose of this section as no junior officer will ever attempt to disobey any form of unlawful order however heinous clearly because of the possible implication(s) under the Act.
- Moreover, it is important that the police must be in a position to justify the arrest, search and or detention of any person in the exercise of its statutory powers: Hon. Justice Nwodo J.C.A in Onah v Okenwa14 posited as such:
“The power conferred on the police under the Police Act includes investigation, arrest, interrogation, search and detection of any suspect. In the process of investigation, the police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the person complained against. This is the rationale for shifting the onus of justification of arrest and detention on the Police. Once an applicant aggrieved that his fundamental right under the Constitution has been infringed, commences an action in court and establishes the claim on arrest and detention, the onus shifts to the Police. Therefore, whatever action the police takes, once complaint has been made to them it must be based on facts which are reasonable and justifiable. That calls for accountability by the police for actions taken”
- To be sure, it is the law however, that in an application for the enforcement of fundamental rights, all that the Applicant needs to do is to prove facts which prima facie show infringements or likely infringement of that rights or rights. The onus to justify the infringement rests squarely on the Respondent. See Olise Agbakoba V Directors, SSS15 where, the Supreme Court held as follows:
“Where the constitution gives a right and facts have been proved which prima facie show an infringement. It is for person alleged to have infringed that right to justify the infringement and not the person whose right has been infringed to exclude all circumstances of justification”
The Contest between Police Extensive Powers and Protection of The Fundamental Human Rights of Citizens to Dignity of Human Person, Privacy, Liberty and even Movement.
- Considering the wide and extensive powers of the police under the S. 4 of the Police Act in crime prevention and investigation, the need has arisen to understand the limits of those same powers vis-à-vis a suspect’s constitutional rights to dignity of human person, liberty, privacy and family life and movement under sections 34, 35, 37 and 41 respectively of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
- This point has become important in order that we appreciate that the powers of the police is not limitless in the sense that such exercise of police power must be upon reasonable suspicion of commission of crime and according to law. In fact, the Police Act under S. 24(2) of the repealed Act dispenses with the procurement of search and arrest warrants in the circumstances specified under the Act. The only exception to this is where the law establishing the offence for which the suspect is to be arrested clearly states that no person can be arrested for the same offence without a warrant of arrest16. It is now more elaborately provided for under S. 38(1)(2) and (3) of the Nigeria Police Force (Establishment) Act 2020.
- The contradiction however, is that the police is also at liberty to effect the same arrest without the warrant notwithstanding that the law creating the offence insists that no arrest in respect of the alleged offence can be effected without a warrant because by virtue of S. 25 of the Police Act,
“an officer without warrant lawfully issued by a court for apprehending any person charged with any offence may be executed by any police officer at any time not withstanding that the warrant is not in his possession at that time, but the warrant shall, on demand of the person apprehended, be shown to him as soon as practicable after his arrest”.
See also S. 38 (3) of the Nigeria Police Force (Establishment) Act 2020 as well as S.44 of the Administration of Criminal Justice Act 2015
- Essentially, the practice of search by police officer is generally made in order to obtain evidence for use at the trial of an offence. It may also be with a view to retrieving what is suspected to have been stolen. In effect, searches by police officers are allowed on persons, premises or of a thing and remains legitimate in the exercise of police authority.
- The power of the police to search such things as vehicles, ship, wallet, electronic gadget is clearly derived from their general duty to prevent and detect the commission of crime.
What is not permissible though are unlawful arrests, detentions and extortions. They are indefensible both in law and in morality. The right to personal liberty and the presumption of innocence are guaranteed under the constitution17.
If the rights to liberty and movement are guaranteed and fundamental in the Constitution, then it means that they cannot be breached without redress and compensation18.
- The law as shown above is that the police has the power to search, arrest and even detain a suspect provided that he exercises such power upon reasonable suspicion of commission of crime and such alleged crime must be one already existent in a statute book as at the time of the alleged commission of the crime. Thus, the act of accosting a student, for instance, who had just walked out of an examination hall and subject him to a lengthy interrogation and investigation over a reported armed robbery incident that occurred about the same time when the student was writing his exam cannot be upon a reasonable suspicion of having committed that crime. Ditto for the arrest and detention of a suspect who was unable to redeem his or her financial obligation to his business partner for very credible reasons. There are ample judicial authorities that emphasis the point that the police is not a recovery agency and should not be utilized as such19. See also S. 8(2) of the ACJA, 2015. Therefore, the operative word here is that there must have been a reasonable commission of a crime. In the context of this discourse, law enforcement agents who abuse the rights of citizens to liberty, privacy and movement may attempt or be able to explain or rationalize the abuse albeit unsuccessfully, but none of such explanations can be offered or sufficient in respect of extortion. In fact, I have had cause to argue elsewhere that extortion of money by law enforcement agents including the police from innocent and vulnerable Nigerians can actually approximate armed robbery because they menacingly extort those monies wielding their guns and weapons in a manner that instill fear in their victims. Importantly, S. 8(1)(b) of the ACJA, 2015 has expressly provided that a suspect shall not, under any circumstance, be subjected to any form of inhuman or degrading treatment.
To be sure, it provides thus;
8(1) “A suspect shall;
- a) Be accorded humane treatment, having regard to his right to the dignity of his person;
- b) Not be subjected to any form of torture, cruel, or inhuman or degrading treatment”.
- Similarly, Sections 1(a), 2 and 3(1)20 Anti-Torture Act 2017 out-rightly criminalize any form of torture in the course of investigation and even prosecution.
They provide as follows;
1)The Government shall;
a)ensure that the rights of all persons, including suspects, detainees and prisoners are respected at all times and that no person placed under investigation or held in custody of any person in authority shall be subjected to physical harm, force, violence, threat or intimidation or any act that impairs his free will.
- Thus, wide as the powers of the police appear, there are clear limits beyond which their actions could be rendered illegal.
For instance, the police officer who intends to search a suspect must identify his or herself. Learned author and friend Frank Agbedo in his book “Rights of Suspects and Accused Persons Under Nigerian Criminal Law” 21 had this to say at P.38
“If he (the police) fails to identify himself sufficiently to you, then you are not obliged to obey him or submit yourself for any form of search or further restriction on your freedom of movement. This is because your civic duty is to obey proven law enforcement agents and not some hustlers who may be out there to take undue advantage of innocent and law abiding citizens for their selfish end”
- Where the proper identification is made, then the suspect reserves the right to either speak or remain silent. This is protected under S. 35(2) of the 1999 Constitution even if the request to speak is in the course of their investigation.
- 35(2)“Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultations with a legal practitioner or any other person of his choice”
Similarly S. 6(2)(a) of the ACJA 2015 provides that a police officer or the person making an arrest shall inform the person arrested of his right to
6(2)(a) Remain silent or avoid answering any question until after consultation with a legal practitioner or any person of his own choice
- Thirdly, the arresting authority must ensure, that in strict observance of the suspect’s right to dignity of person, that he is treated humanely and with civility. This include the right not to be arrested by use of excessive force. In the same vein, he (the suspect) must be notified promptly of the cause of his arrest.
In fact, the proviso to S. 6(2)(c) ACJA 2015 imposes an additional responsibility on the arresting authority to notify the next of kin or relative of the suspect of the arrest at no cost to the suspect. Ancillary to those are the rights of the suspects to be taken to the police station or to court once they are unable to resolve amicably.
This paper has tried to focus on the lingering concerns around the wide powers of the Nigerian Police Force vis-à-vis the fundamental human rights of the citizens. It examined the laws relating to the powers of the police in the exercise of their duties but also explained that the exercise of such powers can only be justifiable upon REASONABLE suspicion of commission of crime. It insisted that such crime or criminal actions are not what the arresting police officer thinks or believes constitutes a crime but that which has been positively provided for and criminalized by the statute books.
The paper further examined the wide powers of the police in relating to investigations, arrests and crime prevention pursuant to S.4 of the Police Act but outlined the limitations to those powers. In the end, it struck a balance between the investigative powers of the police vis-à-vis the fundamental rights of citizens under the constitution and relevant statutes including the Administration of Criminal Justice Act 2015.
Thank you for your patience.
Being a paper presented by Mr Ugwummadu, former President, Committee for the Defence of Human Rights(CDHR) at an on-line seminar organized by the International Institute of Professional Security on September 11, 2021.