The Limits Of Police Powers In Nigeria
Femi Falana, SAN
Introduction
In recent time the Nigeria Police Force has engaged in the criminalization of social protest and the systematic violations 
of the human rights of the Nigeria people to associate and assemble peacefully. A meeting of some state governors was broken into and disrupted in Abuja. Others had their movements curtailed and restricted to the airport in Port Harcourt. Rallies by academics protesting lack of funding for university education were cancelled while others who insisted on their fundamental right to protest against official impunity were beaten up by the Police. Lawful orders handed down to police commissioners by state governors have been ignored.
Motorists and other road users are chased out of the highways by police and other security personnel to pave way some public officers. Drivers who drive recklessly in such convoys are never arrested by the police and the federal road safety corps. The army, police and other security personnel assigned to keep the peace during elections usually conspire with officials of the Independent National Electoral Commission to subvert the electoral process. The disgraceful Anambra state governorship election conducted last week was superintended by 120,000 police and other security officials. Yet they could not arrest the criminals who were alleged to have sabotaged the election. I can go on and on ad nauseam but suffices it to say that the brazen violations of the law by the law enforcement officials constitute the greatest threat to democracy and the rule of law in Nigeria.
In view of the desperation of reactionary forces to turn Nigeria into a police state the keynote address will review the several cases in which the courts have pronounced on the limits of police powers. I shall conclude by calling on all progressive and democratic forces in the country to mobilize the Nigerian people to resist the institutionalization of the culture of impunity by a ruling class that has undisguised contempt for human rights and total disregard for the rule of law.
Ban on Meetings and Rallies
Having regards to the break-up of meetings and disruption of peaceful rallies by the Police it is pertinent to examine the state of the law. Following the refusal of the police to allow the defunct All Nigeria People Party to protest the rigging of the 2003 General Elections the constitutional validity of police permit was questioned in the case of All Nigeria Peoples Party v. Inspector-General of Police (2006) CHR 181. In the historic verdict of the Federal High Court Chinyere J. held that ” the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.”
On the precondition for derogating from freedom of assembly and association the learned trial judge said that ” I agree with Mr. Falana that violation can only be done by the procedure permitted by law, under section 45 of the Constitution, in which case there must be a state of emergency properly declared before these rights can be violated”. Consequently, the Court granted an order of perpetual injunction restraining the inspector-General of Police and his agents, privies and servants “from further preventing the Plaintiffs and other aggrieved citizens of Nigeria from organising or convening peaceful assemblies, meetings and rallies.”
Dissatisfied with the judgment of the Federal High Court the Inspector- General of Police filed an appeal at the Court of Appeal. In affirming the judgment the Court of Appeal pointed out that “… there is nowhere the name of the Inspector-General of Police is mentioned in connection with the issuance of permit for the purpose of conducting peaceful assemblies.” In response to the fear of the police that peaceful rallies might lead to a breakdown of law and order the Court said “If as speculated by law enforcement agents that breach of the peace would occur our Criminal Code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”
The police authorities are not unaware of the position of the law with respect to the powers of a state governor in the maintenance of law and order. Hence Mr Jonathan Johnson, the Assistant Inspector-General of Police for Zone 6 visited Port Harcourt on May 22, 2013 to apologise to Governor Rotimi Amaechi on behalf of the Nigeria Police Force for the role of the Rivers State police command in the crisis rocking the ruling party in the State. But the apology tendered was dismissed by a junior minister threatened that the state would be made ungovernable for Governor Amaechi. Based on the threat the police commissioner, Mr Joseph Mbu has continued to ignore the orders of the governor. As the Police Service Commission is headed by a chieftain of the Peoples Democratic Party it has refused to call Mr. Mbu to order.
In line with the current position of the law on public meetings the new Police Code of Conduct has prohibited police officers from taking sides in strikes and rallies convened in any part of Nigeria. Specifically, police officers have been enjoined to refrain from the disruption of meetings and rallies. Nigerians should therefore collaborate with the police to ensure that all police personnel abide by the Police Code. The desperate moves of reactionary forces to turn the country into a police state should be resisted. Two weeks ago the Inspector-General of Police, Mr M.D Abubakar was summoned to the House of Representatives over the disruption of the meeting of the G-7 governors at Abuja. Embarrassed by the development the Police Chief disclosed that the Divisional Police Officer who carried out the action was not authorized by the Police Authority! The Police Service Commission which is headed by a chieftain of the ruling party is not going to sanction the DPO for such act of impunity.
Illegal Detention in the Government House.
By virtue of Sections 34 and 35 of the Constitution every person is entitled to the fundamental rights to dignity and personal liberty. In Andrew Ogor v Kolawole (1983) 4 NCLR 342 the court declared holding charges illegal and that no one can be arrested without a reasonable suspicion that an offence has been committed. Suspects held in custody shall either be granted bail or arraigned in court within 24 or 48 hours. In Lufadeju v Johnson the Supreme Court held that If a suspect is not granted bail within the stipulated period an interim order shall be obtained from a court to justify further detention. In Ndukwem Nice v Attorney-General of the Federation (2007) CHR 218 the act of parading suspects before the media was held to be a violation of their right to dignity and fair hearing.
A few weeks ago, I received an SOS from the wife of the governor of Enugu State, Mrs Clara Chime pleading with me to free from an illegal detention in the Government House. In my petition to the Inspector-General of Police on the matter I demanded that the police and state security service officials who were assisting Governor Sullivan Chime to hold his wife hostage be sanctioned. In his reaction the governor addressed a press conference attended by the several police and sss officials where he admitted the illegal detention but questioned my locus standi to take up the matter. Since the governor is a senior lawyer he ought to have come across the case of Fawehinmi v Akilu (1987) 4 NWLR (67) 787 where the Supreme Court held that we are our brothers’ keepers with respect to the defence and protection of human rights of all citizens. With that decision I can say without any fear of contradiction that I do not need the instructions of victims of human rights abuse to seek redress for them. Even without any instructions I can file cases in court to secure the enforcement of the fundamental rights of detainees to personal liberty. For the avoidance of doubt, the doctrine of locus standi in the area of human rights has been abolished by the Fundamental Rights (Enforcement Procedure) Rules 2009 which came into force on December 1, 2009.
With respect to Mrs Clara Chime’s case I wish to say, without any fear of contradiction, that I have her written instructions to challenge her illegal detention at the Government House, Enugu. Through the assistance of some of the security personnel in the Government House she spoke to me on phone to confirm her instructions. Indeed, Mrs Chime’s mother, Mrs Patience Igwe also instructed me to take all appropriate measures to secure the freedom of her daughter from detention illegal. In his attempt to justify the illegality of the detention Governor Chime addressed a nocturnal press conference where he paraded his wife before the media and claimed that she has “a medical challenge” which requires special treatment in custody. The event was attended by a psychiatrist and a horde of police and sss personnel. It is public knowledge that when Governor Chime was ill last year he was not subjected to solitary confinement in the Government House but flown abroad for adequate medical treatment. It is therefore unacceptable that Mr Chime conspired with a private physician to sentence his wife to unwarranted mental torture and psychological trauma in a room in the Government House for four months. If Mr Chime’s claim is correct that the wife is non compos mentis when was the Enugu Government House converted to a psychiatric hospital? Assuming without conceding that his wife is mentally challenged the decision to subject her to confinement contravenes the provisions of the Lunacy Law of Enugu State.
However, following the withdrawal of security personnel from the vicinity of the detention centre Mrs Chime has regained her freedom. I have since confirmed that the defamatory statement that she is mentally challenged is a wicked lie. Curiously, the National Human Rights Commission equally violated her fundamental right to privacy by disclosing that she suffers from “depression” without informing the public that it was caused by her dehumanizing custodial conditions. Although the Commission has retracted the misleading statement it is embarrassing that it decided to team up with Governor Chime and security personnel to perpetrate the violations of the human rights of a victim of gross injustice.
Killing of Road Users by Governors
State governors and other public officers as well as traditional rulers and other rich private individuals who use sirens and convoys are in the habit of chasing motorists out of the roads. On December 27, 2012 the Governor of Kogi State, Mr. Idris Wada was involved in a ghastly auto crash at Ayingba, Kogi State. Owing to excessive speed the Governor’s car somersaulted severally and eventually crashed into the bush, injuring him, his driver and orderly while his Aide-de-Camp, (ADC), Idris Mohammed lost his life. The governor was in the hospital for months. Before that incident the governor’s convoy had been involved in another accident which a motor cycle rider and the mother of a 3-month old baby. The deputy governor and speaker of the Kogi State House of Assembly had also been involved in auto accidents on account of the recklessness of convoy drivers. A fortnight ago, a vehicle in the convoy of Governor Wada killed Professor Festus Iyayi at Banda Village along the Lokoja-Abuja road. The deceased was on his way to Kano to attend the emergency meeting of the National Executive Committee of the Academic Staff Union of Universities to review the 5-month old industrial action by lecturers in public universities in Nigeria.
Having regard to the circumstances of the tragic accident Governor Wada should bear full responsibility for the criminal negligence of his driver which led to the death of Professor Iyayi. The FRSC should henceforth enforce the speed limit imposed on all drivers should apply to all citizens alike. In particular, those who drive official vehicles governors who commit traffic offences must be brought to book. In this case, the Kogi State government should be made to pay punitive compensation to the family of Professor Iyayi. Governor Wada’s drivers who killed his ADC last year and Professor Iyayi should be arrested and prosecuted for manslaughter. Unlike their boss they are not immune from prosecution for criminal offences!
The Federal Road Safety Commission Chairman claimed that 700 convoy drivers have been trained except Kogi State whose Governor rejected such training. By not insisting on compliance with the directive the FRSC colluded with Governor to violate section 11 (3) (c) of the FRSC Act (Cap F19) Laws of the Federation of Nigeria, 2004 which has conferred powers on the FRSC to educate “drivers , motorists and other members of the public generally on the proper use of the highways” and regulate the use of “sirens, flashes and beacon lights on vehicles other than Ambulances and vehicles belonging to the Armed Forces, Nigeria Police, Fire Service and other paramilitary Agencies.” Instead of behaving like Pontius Pilate the FRSC
The Nigeria Police Council
There is a Nigeria Police Council provided for by Section 153 of the Constitution which shall comprise of the President, the 36 state governors, the Chairman of the Police Service Commission and the Inspector-General of Police. The Council is chaired by the President. The primary duty of the 40-member Council is the general supervision of the Nigeria Police Force. Before appointing the Inspector-General of the Police the President shall be advised by the Council. Since 1999 the powers of the Council have been usurped and exercised illegally by the President. Without the advice of the Council it is doubtful if the appointment of any Inspector-General of Police can be said to be valid.
It is also pertinent to point out that the power to give lawful directives to the police is vested in the President and the state governors by virtue of Section 215 of the Constitution. In Attorney-General of Anambra State V Attorney-General of the Federation (2005) 9 NWLR (Pt 931) 572 at 616 the Supreme Court held that “The Constitution in section 215 subsection (1) clearly gives the Governor of Anambra State the power to issue lawful direction to the Commissioner of Police, Anambra State, in connection with securing public safety and order in the State.” In view of the authoritative judicial pronouncement on the matter it is the height of illegality and abuse of office on the part of a commissioner of police to disregard the lawful directives of a state governor.
No doubt, the Nigeria Police Force is under pressure from the political class to infringe on the rights of the Nigerian people. It is obvious that police powers have been hijacked by the ruling party to serve selfish interests. Instead of accusing the police of bias the governors should wake up from their slumber and demand for regular meetings of the Nigeria Police Council. Since the Federal Government is opposed to the establishment of a state police or decentralization of the police the Nigeria Police should be activated to exercise general supervision of the police. Furthermore, state governors should ensure that lawful orders given to police commissioners in relation to the security of life and property are carried out in line with the decision of the apex court.
State governors should learn lessons from other victims of human rights abuse by filing actions in court whenever their fundamental rights are violated by the Police on behalf of the Federal Government. In the second republic Governors Balarabe Musa and Abubakar Rimi of Kaduna and Kano never hesitated to secure the enforcement of their fundamental right to associate with the Progressive Governors. The struggle for the expansion of the democratic space should not be turned into an intraclass feud. Those who are genuinely interested in acquiring power with responsibility should commence the process of mobilising the people instead of wooing the men of yesteryears who ruined the country.
CONCLUSION
The book being presented today is the personal testimony of Major Debo Bashorun (rtd) who was the chief press secretary to General Ibrahim Babangida, the head of the military junta when Dele Giwa was brutally murdered on October 19, 1986. The deceased was attacked by official goons because he had insisted on practising journalism without compromise. When the junta decided to cover up the iniquitous act the leading civil rights lawyer, the late Chief Gani Fawehinmi SAN adopted legal measures to expose the suspected killers of Dele Giwa. He was almost killed in the process. As Nigerians did not collectively demand for the trial of the state sponsored terrorists the Sani Abacha junta eliminated some of its political opponents through bomb attacks. The book haram sect has since taken over the act of throwing bombs from former military dictators.
In order to impose a culture of silence and fear on the country the Mohammadu Buhari junta had enacted Decree No 4 of 1984. Under that notorious legislation two journalists were jailed for exposing the junta to ridicule. Many other journalists were detained for several months without trial. On one occasion the editors of the Nigerian Tribune and New Nigerian newspapers shared the same cell with me at the NSO dungeon at 15 Awolowo Road, Ikoyi, Lagos. Following the palace coup carried out by the Army Chief, General Ibrahim Babangida on August 25, 1985 all detained journalists and other political activists regained their freedom. Decree 4 was repealed in recognition of the right to press freedom. But as soon as the junta consolidated it embarked on a systematic infringement of the fundamental rights of the Nigerian people.
In some countries former military dictators were put on trial for treason and gross abuse of human rights and crimes against humanity. Having succeeded in handing over the reins of power to their cronies and collaborators the former military rulers who ruined the country have been shielded from prosecution. Owing to the looting of the treasury at gun point they have continued to influence the bourgeois politics of the country. The leaders of the APC are currently wooing the discredited dictators in their bid to wrestle political power from the PDP. No one should express dismay over such re-alignment among bourgeois politicians. It is a challenge to genuine progressive forces to mobilize the Nigerian people to expand the democratic space for popular democracy as opposed to liberal democracy which is a dictatorship of the bourgeoisie