The Nigeria police, rule of law and our constitutional order
By
THE Nigerian Police has obviously become a comprehensive menace and a horror to the Nigerian Public. Pass through the Julius Berger range into the Lagos Ibadan Express Way any evening from about 6.30pm upwards you find out for yourself the justification for my opening remark.
The traffic is unnecessarily brought to a standstill. Almost every lorry that passes gives the police a sum of N20 Naira or something more, depending on the capricious mood of the Police at work in the traffic.
Driving past, I myself had witnessed uniformed and armed policemen, demand and receive money from drivers, who are usually delayed in the traffic for hours. This scene readily creates in one's mind the assumption that any driver who refuses for any reason to comply with the menacing demands of these officers could be toying with his own life or that of his co-workers/passenger.
Interestingly, I have always believed that the expressway was a thorough exit to drivers who should never experience any hindrance on their journeys except for strictly lawful purposes, such as road clearing by law officials after an accident or the protection or prevention of crime. This is because, when one pays the heavy amount of ten Naira at the tollgate there is an implication of law that the government would guarantee him safe, and molestation free journey. Ironically, the police are not usually at hand to prevent armed robbers from perpetuating crimes. Also, when you have a traffic jam on the expressway, from a distance you are not so sure if it is the police or a quiet road robbery that is in operation. But on getting closer you get to see that it is the police doing their rounds of stop and pay.
I have been told by some of the policemen that these illegal and criminal contributions find their way through the system as booties to all the hierarchy. Obviously, this evil practice is a conspiracy by the police against the Nigerian society. Matters are made worse by the government who refuses to pay police salaries more regularly, a practice that has existed for years now and strongly practised in the Commassie era. Nevertheless, this should not be used as reason for the police officials to unleash horrors on the innocent citizens.
The recent and widely publicized brutal murder of Oluwatosin Adelugba, the 17 year old student cut down in her prime and the subsequent killing of two students barely a few days after, has prompted me to writ this piece, aside from the aforesaid experiences of mine on the express way. The fact that a police officer actually shot a passenger-filled bus, just simply shows the disregard they now have for human life, and no Nigerian citizen is safe with such disregard for the law and his life.
The question one would ask oneself is: are there no laws controlling the police in Nigeria? Otherwise why are they so corrupt, uncaring about their reputation and trigger-happy to kill innocent citizens of Nigeria? What laws regulate the duties and responsibilities of the police as a force for the maintenance of law and order in a budding democratic environment like Nigeria?
The Nigeria police are a product of the Nigerian constitution. Section 214(1) of that constitution (1999) provides that "There shall be a police force for Nigeria which shall be known as the Nigeria Police Force (NPF). There are no rival institutions. As Professor Akande has observed the NPF "is responsible for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of lives and property and the enforcement of all laws and regulations made by the Federal and State Government as well as bye-laws made by the Local Government Authorities."
Thus, by virtue of section 4, Police Act of Act of 1967, Cap 359 of the Laws of the Federation, 1990 power is conferred upon the force for the maintenance of law and order throughout the country.
The head of the force is the Inspector General of Police (IG) who is appointed by the President but on the advice of the Nigeria Police Council (NPC), from among some serving members of the force. There are thirty six states in the country and consequently thirty six commissioners of police, for each state duly appointed by the police service commission (PSC).
Essentially, the Police are under the direct control of the President. State Governors, as Chief Executives in their states are also free to give directives to the states' Commissioner of Police. But the Commissioner is entitled to ask for proper direction from its federal bosses where he has doubts.
It is obvious from this constitutional arrangement that the police is within the monopolistic federal control, which is not necessarily good for the Nigerian environment. It should be noted, that the emphasis of the constitutional provision is that both the president and governors should only give "lawful direction" to the police but political extravagance has always taken pre-dominance in the judgement and directives of these functionaries. The Shagari government was the most reckless. It issued unlawful directives and nausean to police.
The police acting under these unlawful directions, became the effective instrument for the destruction of the second Republic. They jostled with governors for the executive control of their states. The Nigerian Political class ordinarily forgets that the police are a professional class having obtained intensive training from the police colleges around the country. They are assumed to have cultivated knowledge of the basic principles of the law. Their ultimate boss is not the Governor nor the President, but the law. They are to follow the law and the constitution of Nigeria. They are not supposed to be part of the instrument of political power but of law enforcement.
So when Mr. Tafa Balogun became the Inspector-General of Police and made his first declaration of "fire for fire" he was making an unlawful declaration against the citizens without realising its gravity. "His boys" hearkened to him and began to murder students, children and those they call criminals without proper investigation or due process of the law. The functional duty of apprehending criminals and stopping crimes was totally neglected and the tool to effect the "fire for fire" was turned on the citizen. The police identified the criminal, arrested him and passed judgement on him by execution (murder). It is my submission that this is not the Nigerian law. Under the Nigerian law, a citizen can only be arrested if in fact he has committed an offence, or the police believes on reasonable ground that an offence of a felonious nature have actually been committed, In the case of Samuel Vs. Payne in 1970, Lord Mansfield held that a Policeman could make an arrest on information irrespective of whether a felony had been committed. Also in Beckwith Vs.Philby it was held that the arrest was justifiable if there was reasonable ground for believing that the arrested person had committed a felony or in modern terms an arrestable crime.
Under section 35 of our 1999 constitution, "Every person shall be entitled to his personal liberty and no person shall be deprived of that liberty except: (1) in the due execution of a judgement or order of court in a criminal case; (ii) by reason of failure to comply with an order of court; (iii) upon reasonable grounds or where it is necessary, to prevent him from committing a criminal offence; (iv) in the case of a person below eighteen years, for the purpose of his education or welfare. (v) In the case of a person suffering from infections or contagious disease or of unsound mind etc for the purpose of their care or treatment or the protection of the community; (vi) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria etc.
The Nigeria Police leadership must brace itself to a huge responsibility under our new dispensation. Above all they must educate their officers about their responsibility under the constitution. They have to stop all these random murders on our roads. Under section 34 of the 1999 constitution, "Every individual is entitled to respect for the dignity of his person and accordingly no person shall be subjected to torture or inhuman or degrading treatment.". To collect bribe forcefully from drivers on the roads and to harass citizens for no apparent reason, is generally an act of torture and inhuman and degrading treatment. This is more gruesome where the police carry guns, which they readily use to stifle life out of the citizens.
Section 33 of the 1999 constitution preserves the life of the citizen. It says "Every person has a right to life and no one shall be deprived intentionally of his life. Of course the police know they are committing a wrong when they shoot at innocent citizens. This explains why they abscond the scenes of their heinous criminal acts, showing clearly that they lack the courage of their conviction in committing the murders.
The Nigerian citizen is a free individual, where he has not committed a crime. Therefore, he should not be unlawfully held by a fellow citizen who is officially armed for the citizen's protection. It is an act of cowardice on the part of the police. A citizen has a right to refuse to answer police questions when he has committed no crime. He can refuse to five his address or answer questions about where he is going or coming from. He can tell the police give me a good reason why I should tell you." "If you want me you will have to arrest me in accordance with the provisions of the law." These principles were upheld by the House of Lords in England in the case of Rice Vs. Connelly in 1966.
In this case the man was actually arrested by the Police, not for any genuine offence he had committed but more for his contumacious behaviour. The police charged him with obstruction in the execution of police duty in that he refused to give him his full names and address and in refusing to follow him to the police station. The House of Lords decided against the police holding that the appellant had no legal duty to give his name and address or to explain where he was going or where he had come from and accordingly not guilty of obstruction. This was a landmark case under the common law. Under the Nigerian constitution the liberty of the Nigerian is more comprehensive and durable. But one should hasten to add that in the light of prevailing police lunacy, the accused in this case could have been short dead by the Nigerian Police. They would have given no second thought to it.
Under our new dispensation the Nigerian is not only a free man but is truculently free and the constitution protects that freedom with its mighty hands. The citizen has a right to fair treatment and fair trial. Any person arrested or detained for any offence has a right to remain silent and to refuse to answer any question until he has consulted a lawyer or any person of his choice (Section 35(2)). Those arresting him must within 24 hours of the arrest inform him in a language that he understands of the facts and grounds of his arrest or detention (Section 35 (3)). Under section 35(5) a reasonable time is defined as a period of one day where there is a court of competent jurisdiction within 40 kilometres or within two days in other cases or any time sanctioned by the court.
If an accused person is not tried within two months and is kept in custody or within three months if he is not in custody, he must (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date (section 35(4)).
Unlike under the degraded police leadership offered under the Coomassie dispensation where the citizens were murdered and ill-treated with brutal consequences, the Tafa Balogun dispensation must now take the new social and democratic order of the 1999 constitution. The social objectives of the new constitutional order is founded on the ideals of freedom; equality and justice. In furtherance of this order (section 17) every citizen shall have equality of rights obligations and opportunities before the law; the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced and above all government actions shall be humane.
Clearly, the survival of the Police as a credible force under this dispensation lies on Mr. Tafa Balogun, the new Inspector-General of Police.
Nov 2002