Constitution Review: Intersociety moves to REDUCE POLICE POWERS

Posted by News Express | 19 November 2012 | 4,213 times

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The powers enjoyed by the Nigeria Police under the Nigerian Constitution would be reduced if the International Society for Civil Liberties & the Rule of Law (Intersociety Nigeria) has its way.

In a second memorandum it submitted to the House of Reps Constitution Review Committee during its sitting in Onitsha, Anambra State, Intersociety demanded the comprehensive review of Chapter Four of the Constitution of Nigeria 1999, under which it says men of the Nigeria Police hide to commit atrocities and go scot-free.

In an earlier memo handed over to Hon. Victor Afam Ogene, Member, Representing Ogbaru Federal Constituency, during the public hearing held at the Ogbaru LGA Secretariat, Atani, Ogbaru, Anambra State, Intersociety had demanded the creation of six new states, among other important recommendations.

The group’s additional memo signed by Emeka Umeagbalasi, Chairman, Board of Trustees was entitled “Ousting The Ouster Clauses In The Chapter Four Of The Constitution Of Nigeria 1999.” It said as follows:

In furtherance of our contributions towards the attempts to give Nigeria and Nigerians a people-oriented Constitution, the leadership of International Society for Civil Liberties & the Rule of Law, again, wishes to bring to the attention of your public committee the existing ouster clauses in the Chapter Four of the Constitution of Nigeria 1999 for immediate amendment so as to bring them in conformity with regional and international standards. As you may know, ouster clauses are those immunity and impunity oriented sections, subsections and paragraphs deliberately inserted into the constitution or statutes either to frustrate the application and enforcement of their mother provisions or to provide an escape route under the law for their violators usually the State actors.

Ouster clauses are inherent in the Constitution of Nigeria 1999 especially in her Chapters Two and Four. Those in the Chapter Four have been responsible for  high incidences of police killings/torture, long pretrial detentions or detention without trials, long detentions arising from committal proceedings, abandonment/death of gunshot victims and abandonment/non-State compensation of the victims of violent crimes in Nigeria, etc. The notorious Order 237 of the Nigeria Police Force, under which it kills Nigerians mindlessly for sheer reasons of crime fighting and prevention, is constitutionally backed  by relevant subsections of Sections 33 and 35 of the Constitution. These subsections are in conflict with their mother sections and inconsistent with the African Charter on Human & Peoples’ Rights, the Universal Declaration of Human Rights, the International Covenant on Civil & Political Rights, the UN Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power, the Basic UN Principles  for the Use of Firearms by the Law Enforcement Personnel and the UN Code of Conducts for the Law Enforcement Officers, all of which Nigeria has either signed, ratified or domesticated.

The US Constitution, proclaimed in 1776 and enacted for American public in 1789 has undergone various amendments including her 14th amendment of July 28, 1968 so as to be brought in tune with the yearnings and aspirations of Americans taking into account modern realities. Her libertarian concept (rights of US citizens first) and eminence over other indigenous and foreign laws is still well pronounced all over the world. In a like manner, the egalitarian concept of the EU Rights Convention (recognition of the rights of Europeans side by side with the rights of the non-Europeans) is also traditionalised. The prominence and eminence of the Nigeria’s 1999 Constitution over other indigenous and foreign laws is clearly stated in the case of Gani v IGP/FGN. Practically speaking,  the country’s Constitution must  at all times be the worthy mother of all laws under her midwifery by way of periodic credible and popular amendments otherwise she runs the risk of being a mother without breasts. The Constitution under reference must at all times be brought in conformity with the regional and international standards. The yearnings and aspirations of Nigerians to be captured in periodic Constitutional amendments such as the ongoing are local contents that must be purified so as not to be repugnant to the international standards. It is, therefore,  fundamentally incontestable that some subsections and paragraphs of the 14 sections of the Chapter Four are repugnant to the regional and international rights and jurisprudential norms. As a result, we dutifully recommend for the re-working of the following subsections and paragraphs under the Chapter Four:

1. Under Section 33(1): Right to Life, its subsection 2 contains ouster clause to wit: A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use, to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary:

33(2) (a) for the defence of any person from unlawful violence or the defence of property;

33(2)(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or 2(c) for the purpose of suppressing a riot, insurrection or mutiny

Our Observations: Within the contemplation of the 1999 Constitution; our questions are: what is 1. Reasonably necessary permitted by law? 2. What constitutes unlawful violence under which a Nigerian can be killed extra-judicially? 3. What is riot or insurrection?

Answers to these questions are not provided by Part IV of the 1999 Constitution under Interpretation, Citation & Commencement (definition section). Unlike reasonable time which is defined by Section 35(5), none of them is constitutionally defined, thereby creating room for their abuse and misinterpretations by relevant State-actors, particularly police officers. For instance, among many war and crime experts, it is agreed that war is an act of violence with more than 999 casualties. Also, empirically speaking, conflict is different from dispute.

Therefore, we recommend that those undefined terms should be constitutionally and unambiguously defined. Also, in the modern riot control trends, live bullets are no longer in use, but rubber bullets and other non-lethal human body control kits. Insurrection as an act of war with its globally defined weapons of war and insurrection as an act of non-violent protest with instruments of civil protest should be constitutionally differentiated and stated. Under Section 33(2)(b) the death of a citizen in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; it should be constitutionally stated that the use of lethal weapons and maximum force (guns and other deadly weapons) in the  course of any State arrest  particularly with respect to non-violent crimes is forbidden. The only global exception or defence to this is the invocation of the right to self defence if under deadly attack with the application of force proportionate to one applied against those State-actors under attack.

Under the foregoing circumstances, the doctrine of Intervening Force should no longer be made a blanket defence for State and non-State actors. For instance, if a passerby gets killed by a bullet fired by a State-actor in the course of exchanging fire with his or her violent attacker, he or she should be sanctioned for unprofessional conduct and tried for manslaughter, because he or she is not trained and armed to miss his or her professional targets.  These are in line with the spirit and letters of the UN Code of Conducts for Law Enforcement Officers and the UN Basic Principles for Use of Firearms by the Law Enforcement Personnel. The victim if alive should be treated promptly and unconditionally by the State. If the victim dies, the State should adequately compensate his or her family with public apologies for misuse of public procured weapons. Specifically, the use of guns and other deadly weapons to carry out the arrests of suspects suspected of committing  non-violent offences or offences carrying the penalties of fines, one day to six months imprisonment and six months to three years imprisonment, that is to say strict and statutory liability offences, simple offences and misdemeanors, should be constitutionally forbidden.

Further, for the Constitution to sanction the death of innocent citizens in the name of effecting lawful arrest is socially disastrous because by its present implication, citizens can be killed by State-actors while effecting arrests arising from commission or suspected commission of simple offences which carry minimum judicial penalty of an hour and maximum of six months. Offenders of strict and statutory liability offences like traffic and sanitation misconducts which can result in lawful arrest can also get killed extra judicially by State-actors under the guise of resisting arrest or intervening force, likewise in the course of arresting suspects suspected of committing the offences of misdemeanor, which can attract maximum judicial sanction of three years and minimum of one year.  Killings of this nature including roadblock/check point killings as well as house raids killings should constitutionally be treated as murder with adequate compensations and proper public apologies paid to, and tendered to the victims’ families by the State.

It is also socially and globally abominable for the Federal Republic of Nigeria to sanction the killing of an escapee or escapees from barrack or prisons detentions. Such right to kill should be abolished in the Constitution except where such custodies especially prisons are violently revolted against with revoltees and/or their external conspirators attacking same with deadly weapons such as guns and machetes. In such situations, it is globally recommended that the force to be applied must be proportionate with that of the attacking felons. Excessive and disproportionate use of force in criminal justice system is globally forbidden. Instead of the Nigeria police officers killing their detainees within this constitutional levity, the escaping suspects can be prevented by applying force that will make it difficult for them to escape. Any injuries sustained by the escapees in the process should be promptly and unconditionally treated by the State and if they escaped, technological tracking devices including biometrics technology can be deployed to re-arrest them. Such escapees should be declared wanted as well. These are the global trends and Nigeria must not be exception. The present case whereby gunshot victims are refused medical treatments by private and public hospitals and clinics in Nigeria should be constitutionally forbidden. Wounds arising from gunshots or machete cuts inflicted on both violent crimes’ suspects and victims should be treated by the State unconditionally because Nigeria has inherited criminal justice system that makes the State the sole protector, compensator, arbiter and punisher of victims and perpetrators of violent crimes. Therefore, it is our recommendation that the entire Section 33(2) and its paragraphs should be amended.

Under Section 34: Right to Dignity of Human Person (right against torture and other cruel, inhuman or degrading treatments), its subsection 2 and paragraphs under forced and compulsory labour should be amended to include where in the course of performing State sanctioned forced or compulsory labour, death or injuries occur, the families of the dead victims should be adequately compensated by the State and the injured expressly and unconditionally treated by same.  The State here should mean the authority responsible for the forced or compulsory labour such as the Federal Government of Nigeria in respect of the National Youth Service Corps. It should also be constitutionally stated that forced or compulsory service shall not be used in obtaining any confessional statements from criminal investigations. Subsection 2(a) under any labour required in consequence of the sentence or order of a court should be amended to remove…or order of a court.

To cure Nigerian Judiciary of its awaiting trial sickness, Section 35(1)(f)(i) under Right to Personal Liberty, which reads provided that a person who is charged with an offence and who has been detained in lawful 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, should be deleted because it utterly contradicts the principle of fair hearing to jail the accused/defendant before his or her conviction/sentencing. Speedy trial is the hallmark of the fair hearing doctrine.

Section 35(4)(1)(a) which reads any person who is arrested or detained in accordance with subsection (1)(c) of Section 35(for the purpose of bringing him or her to court for trial) shall be brought before a court within a reasonable time, and if he is not tried within a period of –two –months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; in the case of a person who has been released on bail, he shall without prejudice to any other 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. It is our recommendation that this subsection should be amended to read any person who is arrested for committing or on suspicion of committing any offence with capital punishment   prescribed in a written law including life imprisonment and detained by the State for two months without trial should be released unconditionally. In accordance with the foregoing, subsections 7(a) and 7(b () should be amended.

The secularity of the Federal Republic of Nigeria in matters of Right to Conscience, Thought & Religion should be strengthened. To this effect, Sections 38 and 10 of the Constitution should be reworked.

Section 42(3) of the Constitution under Right to Freedom from Discrimination should be amended to lift the restrictions imposed on persons of disability especially the physically challenged persons from being appointed or elected into public offices. Even in the army and police, they can be trained and deployed in administrative and non-combat departments.

The enemy property under Section 44(1)(g) should be constitutionally defined.

There is need to also amend Section 45 of the Constitution so as to bring it in conformity with the areas recommended for amendments.

Extra: Like we recommended in our first submissions of November 12, 2012, there shall be a constitutional provision for adequate compensation and protection of the victims and witnesses of the violent crimes in Nigeria. A provision should also be provided in the Constitution for prompt and unconditional medical treatments by the State of the victims of gunshot wounds whether they are State-actors, suspected violent criminals or innocent victims. After these amendments have been effected, it is our further recommendation that related enforcement and penalty Acts of the Federation should legislatively be revisited so as to bring them in conformity with the said sections of the Constitution. A Bill of Rights for violent crimes’ victims & witnesses should also be created.  A provision should be created in the Constitution for the establishment of Nigerian Civil Society Endowment Fund, whereby a percentage of the country’s annual earnings will be allocated into same for the growth and development of Nigerian Civil Society Organisations especially those working for the promotion and protection of democracy, public security, civil liberties, rule of law, gender justice, children’s rights and public health issues. An Act for the establishment of its Commission shall be enacted.

Photo: Intersociety’s BoT Chairman, Emeka Umeagbalasi.

Source: News Express

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