By Collins Okeke
The Anti-Torture Act 2017 was passed by the 8th National Assembly and signed into law by President Mohammadu Buhari on 29th December 2017. Prior to the coming into effect of the Act, there was no law in Nigeria whose sole objective is the prohibition and punishment of torture and other forms of cruel, inhuman or degrading treatment.
Although Section 34 of the Constitution provides that every individual is entitled to respect for the dignity of his person, and accordingly (a) No person shall be subject to torture or to inhuman or degrading treatment; the Constitution did not explicitly state that the freedom from torture, cruel and inhuman treatment is a non-derogable right.
This perhaps explains the acceptance and continued use of torture, cruel, inhuman and degrading treatment by law enforcement officers. The Anti-torture Act 2017 fills the existing legislative gaps by explicitly making the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right, criminalizing torture and protecting victims and witnesses of torture.
Framework of the Anti-Torture Act 2017
The Anti-Torture Act 2017 is a very concise legislation. It has a title, explanatory memorandum and 13 sections:
Section 1 of the Act titled ‘Duty of Government’ imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture.
It admonishes government to adhere to domestic and international standards on absolute condemnation and prohibition of torture.
Section 2 titled ‘Acts of Torture’ defines what amounts to torture. It states that;
‘torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to –
(a) obtain information or confession from him or a third person;
(b) punish him for an act he or a third person has committed or suspected of having committed;
or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind’.
It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:
- Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach,
- Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten,
- Electric shocks,
- Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds,
- The submersion of head in water or water polluted with excrement urine, vomit or blood,
- Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts,
- Confinement in solitary cells put up in public places,
- Confinement in solitary cells against their will or without prejudice to their security,
- Prolonged interrogation to deny normal length of sleep or rest,
- Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.
Section 3 titled ‘No justification for torture’ is the stand out provision of the Act. It states that no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
It prohibits secret detention facilities, solitary confinement, incommunicado detentions where torture may be carried out. It makes it very clear that evidence obtained from torture is inadmissible in any court except for use against a person accused of torture.
Section 4 titled ‘Right to complain’ allows a person alleging that torture has been committed, whether the person is the victim of the offence or not, a right to complain to the police, National Human Rights Commission or any other relevant institution or body having jurisdiction over the offence. It provides that the victim and complainant must be protected.
Section 5 titled ‘Assistance to filing complains’ provides that a person who has suffered torture or any interested party on his behalf may seek legal assistance in the proper handling and filing of the complaint from the Human Rights Commission/NGOs/Private persons.
Section 6 titled ‘Right to examination’ expands the Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.
Section 7 titled ‘Liability’ provides that a person who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal; the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.
It makes clear that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.
Section 8 titled ‘Penalties’ provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years.
If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take way the victim’s right to civil claim in court for damages or compensation for the torture.
Sections 9, 10 and 11, titled ‘Regulatory Agency, Education Campaign, Rules and Regulations’ respectively empowers the Attorney General of the Federation and other law enforcement agencies to ensure effective implementation of the Act.
This includes training and education of personnel involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
It also empowers the Attorney General of the Federation with the approval of the President to makes rules and regulation for the effective implementation of the Act.
Section 12 and 13 are ‘Repeal and Citation’ sections.
Significant Features of the Anti-Torture Act 2017
- The Anti- Torture Act 2017 provides a comprehensive definition of torture. It goes on to give elaborate instances of what constitutes torture.
- The Act criminalizes torture. It prescribes offences and penalties for any person who commits torture or aids, abets, counsels or procures any person to commit torture.
- It makes freedom from torture a non-derogable right. It states clearly no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It states further that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.
- It expands Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.
- The Act protects victims and witnesses of torture.
- The Act allows for personal civil action in damages and compensation for torture.
Effect of the Anti-Torture Act on Police Officers
Before the enactment of the Anti-torture Act 2017, torture by the police was seen more as a civil wrong except when death occurs. The police and other law enforcement officers having custodial powers could get away with torture as the law against torture was not clear and punitive enough.
The coming into effect of the Anti-torture Act 2017 has fundamentally changed this. Torture is now officially a crime. A police officer can be prosecuted for torture; aiding, abetting or procuring any person to commit torture.
A police officer and or any other law enforcement officer can no longer rely on emergency powers or ‘orders from above’ as justification for using torture to obtain information or extract a confessional statement.
The criminal liability of police officers under the Anti-Torture Act 2017 is specific to the individual persons connected to the act of torture. This liability could be direct or indirect.
According to Section 7 of the Act:
“a person” who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.
The Anti-Torture Act 2017 has also expanded Miranda rights to include the right to examination. A Police officer is now obligated to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.
The Anti-torture Act 2017 is an unsung legislation with far reaching implications for law enforcement in Nigeria. The National Assembly by passing the Anti-torture Act 2017 has dealt a serious blow to the practice of torture. The challenge however will be enforcement.
We are hopeful that the Attorney General of the Federation and other relevant stakeholders will work together to put in place mechanisms to ensure compliance so that torture can be eliminated in Nigeria.
Collins Okeke is the Head of Public Sector Practice Group in OAL, an aspect of law that examines the role of laws, institutions and legal systems in both domestic and international jurisdictions…