By Onikepo Braithwaite
Sloganeering
Nigeria is a country where we love sloganeering about anything and everything, including our own sector, justice and law enforcement. Yet, we never really deeply consider the essence of the slogans or sayings, let alone put them in practice. “The Judiciary is the last hope of the common man”; “Justice delayed is justice denied”; “The law is the foundation of civilisation”; “The Police are the guardians of society”; “Injustice anywhere, is a threat to justice everywhere“ (Martin Luther King Jr); and, even our very own Nigerian homegrown saying, “Police is your friend”. Unfortunately, what we see in reality, is the opposite translation of these sayings in our everyday life – such as, justice very much delayed; and Police is your enemy!…
The Last Hope of the Common Man
As a result of the activities of some bad eggs, the public perception of the Judiciary has been at an all-time low for a good number of years, while it is seen by many as the last hope of the ‘privileged’ man, and not the common man. For example, a conservative estimate of about 60% to 70% of crimes that people are arrested for, are committed by the common man, and even though Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) provides for the presumption of innocence until proven guilty, many accused persons are treated as if they are guilty from the onset and are left to languish in jail for years, awaiting trial without bail being granted to them by the courts, despite the time lines for prosecution of criminal cases set in Section 35(3)-(5) of the Constitution. The population of awaiting trial inmates is estimated at up to 70% of the prison population, apparently far exceeding that of actual convicts serving prison sentences.
Cases of more privileged accused persons, move faster (that is, if they want their cases to move fast). The election cases whose timelines are set in Section 285 of the Constitution are strictly adhered to, while those set by the same Constitution for criminal cases are ignored by the law enforcement agents, Prosecutors and courts, as if they don’t even exist! Call it inequity, inequality before the law, injustice, antithetical to the purpose of the Constitution which is to promote equality, equity and fairness amongst all Nigerians. It is the epitome of justice delayed is justice denied, which, in reality, offers little or no hope for the common man – the opposite of these slogans that are regularly chanted.
Police is Your Friend; So are EFCC, SSS et al! Really?
1) Tools of Intimidation and Oppression
As for the Nigeria Police Force and the other law enforcement agencies, they are only guardians of society when they choose to be, and friends of whom they choose to be, not everybody. Many a time, they are accused of not following due process and disregarding the rule of law to the detriment of citizens, and instead, breaching the law with gusto and aplomb – wasn’t this what the 2020 #EndSARS Protest was all about? A protest against the bad behaviour of the SARS Department of the Police? These agencies have sometimes also allowed themselves to be used as tools of oppression of the more powerful or the highest bidder, against others. The cases of ‘Senathug’ Abbo, former CCT Chairman, Danladi Umar and ‘Dishonourable’ Ikwechegh, readily come to mind. They were the ones who allegedly committed assault against common women (Abbo) and common men (Umar and Ikwechegh), yet, they were able to use the Police to intimidate their victims. Nigeria will never forget the unprecedented October 2016 DSS midnight raid on the homes of Judicial Officers, as if they were violent criminals who had been placed on the Most Wanted list. See Section 4 of the Police Act 2020 (PA) on the primary functions of the Police. Similarly, agencies like the EFCC and DSS also face the same accusations of abuse of power. See Section 6 of the Economic and Financial Crimes Commission (EFCC) Act 2004 on the functions of the EFCC, and Section 2(3) of the National Security Agencies Act 1986x on the functions of the State Security Service (SSS).
2) Acting Outside the Purview of their Duties
Secondly, it appears that people are able to make use of the Police to settle civil disputes such as contractual matters, landlord and tenant, bank loans and debts, thereby violating citizens’ rights like the right to liberty and freedom of movement guaranteed by Sections 35 & 41(1) of the Constitution. Police and other agencies accept spurious petitions written by so-called Complainants, knowing very well that they are civil in nature, and use them to harass people, sometimes detaining them until they give written undertakings or concede to the demands of the Complainants. Some have also accused the EFCC of engaging in activities such as debt collection, and placing PNDs on people’s accounts without following due process, usually at the behest of ‘strong’ individuals.
The current EFCC Chairman, had promised that bad eggs would be weeded out from his Agency, and discipline, instilled. How well has that promise been kept? In Skye Bank Plc v Njoku & Ors (2016) LPELR-40447 (CA) per Ita George Mbaba, JCA, the Court of Appeal cited its decision in Ogbonna v Ogbonna (2014) LPELR-22308(CA) where it held that: “…a party that employs the Police or any law enforcement agency to violate the fundamental rights of a citizen, should be ready to face the consequences, either alone or with the misguided Agency.…The Police have no business helping parties to settle or recover debts. We have also deprecated the resort by aggrieved creditors to the Police to arrest their debtors, using one guise of criminal wrong doing or another…. Maybe… the Public Officer or law enforcement agency that allows himself to be used by any member of the public to commit illegality that results in damages and liability to the agency or government, should be made to pay such cost or damages, personally, either in part or in whole….”. I concur. Unfortunately, many of the monetary judgements obtained against Government, its agencies like the Police and officers are rendered nugatory, because of Section 84 of Sheriffs and Civil Process Act 1945 which provides for the requirement of the consent of the AGF or a State AG (depending on the circumstances) to attach the funds of Government or its agencies in any Bank when judgements are entered against them, consent that may not be easy to obtain, if at all. See the case of CBN v Inalegwu Franklin Ochife, IGP & 2 Ors (2025) LPELR-80220(SC) per Habeeb Adewale Olumuyiwa Abiru JSC and Helen Moronkeji Ogunwumiju, JSC.
In the case of Skye Bank Plc v Njoku & Ors (Supra), the Applicant had filed an application for the enforcement of his fundamental rights based on harassment and detention by the Police, in connection with a civil contract concerning a bank loan. The Bank had used the Police to recover the debt, and the Applicant claimed that he was locked in the Police cell where he was forced to sign cheques. The trial court awarded the Applicant N10 million damages, and the Court of Appeal affirmed the decision of the lower court.
3) Creating their Own Rules Outside the Provisions of the Law
Aside from acting outside the purview of the functions set out in their establishment laws, law enforcement agencies sometimes appear to create their own rules outside the law, as they go along.
Section 35(2) of the Constitution accords a person arrested or detained, the right to remain silent, or avoid answering questions until he/she consults a legal practitioner. In Nigeria, that right to remain silent is ignored and abused, and many accused persons claim that their statements are taken by the Police by force, which may mean by means of torture, and also in the absence of their legal practitioner, so much so that trials-within-trial to ascertain the voluntariness of confessional statements, are common place in criminal trials. These confessional statements, usually form the main body of evidence used to convict accused persons in Nigeria. Is it not curious how most accused persons across Nigeria, all admit to being the perpetrator of the crimes they are arrested for?! And, beyond that, not much investigation into the commission of the crime is done? The then so-called confessional statement, is then used to secure the conviction. What ‘winning’ method do the Police and other law enforcement use, to extract confessional statements from accused persons, making them have ‘open and shut’ criminal cases?! See the Anti-Torture Act 2017.
Though Section 35(3) of the Constitution provides that an individual can be arrested on reasonable suspicion of committing an offence, Section 3 of the Administration of Criminal Justice Act 2015 (ACJA) doesn’t help matters at all, as it allows a suspect alleged to have committed a crime to be arrested even before investigation. However, Section 1(1) & (3) of the Constitution proclaims its bindingness on all persons and authorities in Nigeria, and its supremacy over all laws, so that any law that is inconsistent with the provisions of the Constitution stands null and void to the extent of its inconsistency. Therefore, if the Constitution states that there must be reasonable suspicion before arrest, then arrest on a mere allegation whether by means of a petition or otherwise, without any proof, doesn’t appear to meet the constitutional requirement of reasonable suspicion for arrest.
4) Allegation and Reasonable Suspicion
Allege and Reasonable suspicion, mean two different things. To allege is to make an assertion without proof. See the case of Liman v State (2016) LPELR-40260 (CA) per Amina Audi Wambai, JCA where the Court of Appeal held thus: “allegation is a mere statement stating that someone has done something wrong or illegal. It is an assertion by a party to a legal action, of what the party undertakes to prove. In relation to criminal investigation and trial, it is a positive assertion or statement made by a person to the Police against another, accusing the other of the commission of a crime and for the purpose of having the statement investigated by the Police”. Wambai, JCA also held “A criminal investigation thus, refers to the process of collecting information (or evidence) about a crime in order to, (1) Determine if the crime has been committed (2) Identify the perpetrator (3) Apprehend the perpetrator (4) Provide evidence to support a conviction on it” – this decision, clearly evinces the fact that what is expected of the Police, is to undertake a thorough investigation prior to an accused person being arrested, not that that an arrest must necessarily be made immediately upon receipt of a complaint. Law enforcement must look at the circumstances of each case. Of course, in some cases where the accused person has been caught in the process of committing the crime, or maybe two people were fighting in public and one stabbed and killed the other in the presence of witnesses, in such circumstances, there is enough reasonable suspicion to arrest an accused person immediately.
In Director, S.S.S. v Ibrahim (2016) LPELR-41618 (CA) per Oludotun Adebola Adefope-Okojie, JCA, the Court of Appeal held thus: “….Black’s Law Dictionary, 8th Edition, Page 1487 defines the term “reasonable suspicion” as “A particularised and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”. In my humble view, for there to be reasonable suspicion to justify an arrest by the Police, the test is objective based upon the facts of each case”. It is obvious from this definition of reasonable suspicion, that the Police do not always have evidence that meets this criteria before effecting arrests, and that Section 35(3) of the Constitution contemplates the arrest of an individual only when a decent amount of evidence has been gathered or found by the Police, while Section 3 of ACJA appears to allow for the arrest of an individual on a mere allegation, even without reasonable suspicion. I submit that the latter is not only unconstitutional, but doesn’t conform to best practices. In the UK for instance, the Police must have reasonable grounds for suspicion before an arrest is made; not just a flimsy report or a civil matter so clumsily coated as a criminal one, that even a person who has no training in the law can easily see that it isn’t a criminal matter.
Conclusion
There are so many processes abused and carried out wrongly, within our administration of justice sector. When an individual is called to respond to an allegation by the Police or EFCC for instance, no matter how flimsy or baseless the allegation is, or whether it is clearly one that is a civil, contractual matter that doesn’t fall within the duties of law enforcement, such call translates into being more or less an arrest, and the Respondent must bail themselves out to leave the place. See Skye Bank Plc v Njoku & Ors (Supra). But, if best practices are applied, such Respondent should be released without any ado.
Remember last year, I mentioned the story of a Foreigner who narrated his ordeal to me; how a Nigerian who was in breach of their civil supply contract, used the Police to arrest and extort money from him. A criminal element was then introduced into the matter by the Police to justify their unlawful activity, and he was forced to sign some bail document accusing him of stealing or obtaining by false pretences or something like that, in order to regain his freedom. His Embassy was also not informed of his arrest. See the case of Diamond Bank v Opara & Ors (2018) LPELR-43907(SC) per Sidi Dauda Bage, JSC on illegal detention by Police, and coercion to pay money to be released on bail.
The other day, I went to buy some medication, and again, I was told that the company manufacturing it in Nigeria has left. I actually prefer the made in Nigeria version of the medication, as opposed to its foreign equivalent. But, it is issues such as the lawlessness of law enforcement agencies and a general disregard for the rule of law, that reduce the attractiveness of Nigeria as a place for foreigners to visit or do business, or even for we Nigerians ourselves!
While USA tops the list as the country criticised the most for Police brutality and harassment of citizens, Nigeria also ranks very high on the list, about fourth place, right behind South Africa and India. This is not a good report. It is time to change this negative narrative, and make the slogans about justice and law enforcement a reality for all Nigerians, common man and privileged alike. For a while now, in the expression of William Shakespeare in “Hamlet” – these slogans/sayings are just “Words, Words, Words” – a “meaningless collection of words”. The story of the lawlessness of law enforcement, hasn’t ended yet. This is just the beginning…..
Onikepo.braithwaite@thisdaylive.com
