By Eloghene Adaka, Esq.
In Nigeria, there have been reportedly high rates of undue or excessive use of force by the police. This is also generally known as police brutality and torture. Both the Special Anti-Robbery Squad (SARS) and the regular police have often been accused of these human rights violations against Nigerian citizens. Although strenuously denied, this has been one of the major flaws of the Nigeria Police. The Anti-Torture Act, 2017, was put in place to curb police brutality both when taking the statement of an accused as well as preventing violations of the rights of the accused.
The powers of the police are counterbalanced with Chapter 4 of the 1999 Constitution which provides for the Constitutional human rights of an accused which should be adhered to. Examples of such rights include, the right to human dignity (freedom from inhumane and degrading treatment and torture,) the right to bail, the right to be presumed innocent until proven guilty, the right to be arraigned by a court within a reasonable time etc. However, even with these provisions being guaranteed, these rights are being breached constantly. This leaves the judiciary as the only arm to ensure checks and balances.
Torture can be defined as the action or practice of inflicting severe pain on someone as punishment or in order to force them to say or do something. It should be noted that in effecting an arrest, the police ought not to employ the use of handcuffs or force on the suspects as provided for in the Administration of Criminal Justice Act. It states in Section 5 as follows: a suspect or defendant may not be handcuffed, bound, or subjected to restraint except;
- Where there is reasonable apprehension of violence or an attempt to escape,
- The restraint is considered necessary for the safety of the suspect or defendant, or
- By the order of the Court
Also, the police in extracting a confessional statement from a suspect should ensure that torture or force is not employed. Where a suspect is tortured behind the scene and this in turn leads to his making of the confessional statement in the manner which was not voluntarily made, the Court would treat such confessional statement as inadmissible and a trial within trial would be carried out. The trial within trial is a mini trial within the context of the main trial. It is a procedure in criminal law wherein the confessional statement of an accused person is subjected to trial scrutiny so as to determine whether or not the statement was freely and voluntarily made by the accused person to the police. This is to ascertain if the confessional statement was made voluntarily and if the Court with the evidence brought forth holds that such statement was not made voluntarily, (in other words, force was employed) such a confessional statement would not be admissible against the accused.
In order to deal with police brutality, the Anti-Torture Act 2017 was enacted. It specifically makes the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right. It criminalizes torture, and protects victims and witnesses of torture. It also prescribes penalties for breaches of the Act.
As provided in section 2 of the Act, torture is seen to be 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 a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity provided that it does not include pain or suffering in compliance with lawful sanctions.
Section 2 (2) of the Anti-Torture Act gave examples of torture which include
physical torture which refers to such cruel, inhuman, or degrading treatment which causes pain, exhaustion, disability or dysfunction of one or more parts of the body such as 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 electrically heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on wounds; the submersion of the head in water or water polluted with excrement, urine, vomit or blood; being tied or forced to assume fixed and stressful bodily positions; rape and sexual abuse, including the insertion of foreign bodies into the sex organs, or rectum or electrical torture of the genitals, or other forms of sexual abuse; mental or psychological torture, which is understood as referring to such cruel, inhuman or degrading treatment calculated to affect or confuse the mind or undermine a person’s dignity and morale, such as blindfolding, threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts.
Section 5 provides that a person who has suffered torture and other cruel, inhuman and degrading treatment or punishment, 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, non-governmental organisations, and private persons.
A person who actually participates in the infliction of torture or who is present during the commission of the act is liable just 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. Also, 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 of the Anti-Torture Act, however, provides for penalties when acts of torture have been committed. It provides that a person who contravenes Section 2 of the Anti-Torture Act commits an offence and is liable on conviction to imprisonment for a term not exceeding 25 years. Torture resulting in the loss of life of a person is considered as murder and should be tried and is punishable under the relevant laws.
In order to prevent or reduce the culture of police brutality, it’s important to ensure police officers are trained properly and are also aware of the law and its provisions. This is necessary in order to uphold the rights of citizens when dealing with them. Improvements in the welfare of police personnel would encourage them to be of better service and behavior.
Eloghene Adaka Esq is a weekly columnist on Legal Corner with NIGER DELTA TODAY (NDT). She can be reached at firstname.lastname@example.org or on 08164331681 for further clarification or questions on legal issues.