THE NIGERIAN POLICE (ESTABLISHMENT) ACT 2020- THE FINAL MEDICINE?
As a country, Nigeria has never been on a fragile thread of existence in recent times as it currently is. The nation is presently immersed in a chaotic state as what began as a peaceful protest has now given way to massive loss of lives and properties. Even though present grievances by the populace is directed at the government on all levels, it is important to note that initial agitations, through the #EndSars movement, were police-centric.
The movement which began in 2017, and was revitalized in October 2020, demanded for an end to the Special Anti-Robbery Squad (SARS), a controversial unit of the Nigerian Police with a long record of abuse of due process. In part response, the government considered and worked towards a rejigging of the erstwhile Police Act 2004 to make it more relevant as present circumstances demanded. On Thursday, 17 September 2020, President Muhammadu Buhari signed the new harmonized Nigeria Police Force Establishment Bill into law. The Presidency stated that the Act among other things, established a fit-for-purpose funding framework for the Nigerian Police Force (the “Force”) to bring it in line with what obtains in other key federal institutions. They also expressed optimism that the Act would amplify police professionalism through increased training opportunities, creating a proper template for symbiotic relations between the Force and local communities.
In light of the foregoing, this article reviews the reforms to the Act and highlights our recommendations to ensure that the objectives of the Act are achieved.
- DUTIES OF THE POLICE FORCE
A cursory review of the Act reveals that the ambit of the Force operations has been broadened to facilitate the achievement of its general objective which is to provide an effective police service that complies with the principles of accountability, transparency, protection of human rights and freedom.Section 4 of the Act is replete with extensive functions of the Force, notably, imposing an obligation on the police to protect the rights and freedom of every Nigerian in accordance with the Constitution of the Federal Republic of Nigeria, the African Charter on Human and Peoples Rights, and other applicable laws.An interesting initiative of the Act is the recognition of private detectives and investigators. Section 4(a)(i) of the Act provides that the Force is responsible for vetting and approving the registration of Private Detective Schools and Private Investigative Outfits. This is a novel provision which raises a lot of optimism for crime detection and investigation in Nigeria. Private detectives are generally afforded more time and flexibility to investigate a wide range of matters and this is certainly welcome in light of several daily reports of crime. It also underlines the collaboration between the government and private security outfits in ensuring peace and order.A controversial provision of the Act which has sparked more than whispers of trepidation, especially amongst the Nigerian youths is Section 38(1)(a). The provision states that a police officer may without an order of court or warrant, arrest a suspect whom he suspects on reasonable grounds of having committed an offence (unless the law creating the offence prohibits any arrest without a court order). While the good intention of this provision is somewhat visible, it is hard to reconcile this with the reality of many victims of police brutality where they are unjustly profiled by the police as criminals and arrested immediately. There is a reasonable fear that this provision will give police officers the legal backing to perpetuate wanton arrests.
- POLICE ARRESTS
Perhaps on the back of several reports of illegal arrests, treatments and detainment, the Act has introduced a number of provisions which are meant to serve as guidelines to the police officers in their conduct with suspects. It has been a common occurrence in the past (and realistically still), for police officers to be used as accessories for debt recovery or simple civil disputes. Section 32(2) of the Act addresses this practice and prohibits the police from arresting anyone based on a civil wrong or breach of contract. Also, whenever a suspect is apprehended and arrested, the Act via Sec. 35(3) mandates the Police to notify the next of kin or relative(s) of the suspect immediately after the arrest of the suspect. Nonetheless, no suspect shall be accorded inhumane treatment in any form including torture, cruelty, inhumane or degrading treatment.If a suspect is arrested and detained for more than 24 hours where a non-capital offence has been committed, his lawyer or relatives can notify any court that has jurisdiction to try the matter about his arrest in a bid to prevent an unlawful detention.
- MIRANDA RIGHTS
While not expressly tagged the “Miranda Warning” the new Act adopts the popular practice of informing the suspect prior to interrogation or arrest of his right to remain silent or avoid answering any question, until after consultation with a counsel or any other person of his choice. Interestingly, this doctrine was birthed in the landmark case of Ernesto Miranda v. Arizona, 384 U.S. 436 (1966). Hitherto, the guarantee of Miranda rights in Nigeria was a controversial issue with unclear laws and inconsistent court judgements on this subject matter. However, this has now been laid to rest in the Act-Section 35 is instructive on this. Section 35(1) provides that except a situation where the suspect is caught in the actual course of committing an offence, or where the suspect is pursued immediately after committing that offence or where the suspect has escaped lawful custody, the police officer must immediately inform the suspect of the reason of his arrest. Sub section 2 specifically demands for the Miranda warnings on the part of the police officer or whoever is making such arrests. Even after the suspect is taken into custody, his statement can be taken only when he wishes to make a statement.From the aforementioned, it is safe to conclude that this a welcome development as this is a protection measure for the suspects to avoid making self-incriminating statements.
- ROLES OF LEGAL OFFICERS
Pursuant to section 66(1) of the Act, and subject to the relevant provisions of the Administration of Criminal Justice Act 2015, it is only a police officer who is a legal practitioner that is empowered to prosecute a suspect in a competent court, otherwise, such prosecution will be declared null and void. Prior to the amendment of the Act, a police officer need not be a legal practitioner to commence such proceedings. This is commendable as it would invariably lead to better and more substantial prosecutions backed by legal expertise.Furthermore, Section 66(3)(a)(b) provides that every police division must have assigned at least one police officer who is a legal practitioner. It is intended that such legal practitioner would be a watchdog to ensure that human rights are an utmost priority in the division by facilitating bail applications expeditiously and preventing any attempt to abuse the rights of the inmates/suspects.In addition, the Chief Magistrate (or any other magistrate delegated by the Chief Judge) is required to visit and inspect police stations and other places of detention within his jurisdiction at least once a month. This is to enable him monitor the records of arrests and identify cases of illegal detention.
- RIGHT TO PROTEST
It can be implied from the combined rights to freedom of expression and peaceful assembly that the right to protest is recognized under the Constitution of the Federal Republic of Nigeria. This is equally provided for in Article 19 of the Universal Declaration of Human Rights. In the same vein, Section 83 (4) the Act now states that a person or organization may hold any public assembly or meeting where the public has access to, if the police has been informed beforehand. Also, the police are required to provide security for such persons or organizations in such situations.Notwithstanding, the possible far-reaching effect of the reforms, the recent uprising caused by recurrent police brutality and abuse of due process has brought to fore the need to reevaluate the Act in a bid to identify the current gaps in the Act and make recommendations.
- Upgrade on Intelligence Gathering and Investigation
Information can be a crucial component in effective crime detection. To help combat crime, it imperative that Nigeria set up a central crime database as is the practice in developed nation, where an offender is flagged and can be identified even if he leaves the state for another. For example, the FBI’s National Crime Information Center (NCIC) database contains over 30 million records and is readily accessible by more than 500,000 users within thousands of federal, state, and local law enforcement agencies. The system can compare a particular fingerprint to more than 1,000 database prints in a second!Canada, Germany, the Netherlands and the US have collaborated in recent times to launch a pilot program where data on international travelers in their system is shared to help verify their identities and detect possible crime. It surely raises a number of privacy concerns but while debates are anticipated, the benefits are not in doubt.Several analysts have continually criticized the Nigerian police for their inefficiency in crime prevention, criminal investigation and response to distress calls. Afterall, investigations should begin with intelligence gathering followed by an analysis of information gotten before arrest is made. By adopting many of the aforementioned practices, the force will be able to detect and prevent crime better in furtherance of Section 2 of the Act.
- Effective Communication Between the Police and the Public
Building trust with the community is fundamental to effective policing. A major challenge the police force currently has is the break in communication between the police and the public whom they have an oath to protect. One the one hand, the public sees the police as a bitter enemy while the police in turn sees them as hapless people that can be bullied without any consequence.Citizens have, in many cases, been refrained from saving accident victims or reporting cases of crimes to the police to avoid immediate implications in such scenarios. This creates an instant disconnect between reality and what is provided for in the Act. For example, Section 42 of the Act empowers a person to assist a judge, magistrate or police in arresting a suspect. However, more often than not, private individuals desist from providing any form of assistance. It is the responsibility of the Force to create that aura of trust and collaboration so that the public can actively participate in crime prevention.To strengthen the relationship between the public and the police, efforts to foster perceptions of procedural justice must also involve the broader community to develop strategies for managing social order, engaging in transparent, rule-based decision making and the police treating citizens with utmost dignity.
- State Policing
State police or provincial police are a type of subnational police territorial police force found in nations organized as federations, typically in North America, South Asia, and Oceania. These forces typically have jurisdiction over the relevant sub-national jurisdiction, and may cooperate in law enforcement activities with municipal or national police where either exist.Nigeria practices a highly centralized system where the Force reports directly to the President, while the Governor who is the Chief Security Officer of the State has no control over the police One of theways out is to create a police formation that reflects true federalism, and permits a large measure of regional self-rule such as was entrenched in the First Republic where there were local, regional and central police institutions. It is perhaps time to consider state policing to help the police connect more with the community with whom they will certainly share a common language and culture, making it easy to prevent and curb criminal activities. It will not only reflect Nigeria as operating a true federal system of government but will also prevent the Federal Government from manipulating the activities of the Force for its gains.It might be necessary for Nigeria to take a cue from the First Republic or follow the steps of other countries where state policing or a hybrid of both state and federal policing is being practised. In Australia, each state has its own state police force. Municipalities do not have police forces and it is left to the state forces to oversee the geographic areas within their respective states. Law enforcement in Canada operate at the federal, provincial and local levels. In Germany, the federal constitution leaves the majority of law enforcement responsibilities to the 16 states of the country.
- Police Welfare
Recently, information of the remuneration of the Police Force made its way to the public domain. It is quite pathetic that officers who are relied upon to protect the citizens earn such measly sums.. While this is not a justifiable reason for ineptitude and nefarious activities, it is obvious that with a better salary structure, the Force will be better poised and motivated to do their jobs with zeal.In addition, an insurance policy should be put in place by the government for each police officer to cover risks such as death, bodily injury, personal injury or property damage, if that has not already been done.
Whilst the current reforms are laudable, it is obvious that there are outstanding issues that need to be addressed in the Act which are essential for it to meet its set objectives. In addition, an implementation policy must be provided by the government to enforce the provisions of the Act because it is only then that the positive impact of the reforms can be felt by the relevant stakeholders.