Human Rights: Revisiting & Upgrading Nigeria’s Body of Archaic Laws
by Emeka Umeagbalasi
TO Mr. Mohammed Bello Adoke, SAN, Attorney General of the Federation & Minister of Justice, The Federal Ministry of Justice, Abuja, FCT, Nigeria.- 64th Anniversary Of UDHR (World Human Rights Day): Revisiting & Upgrading Nigeria’s Body Of Archaic Laws Is Long Overdue
As you know sir, Monday, 10th day of December 2012, marked the 64th anniversary of the “World Human Rights Day” and Sunday, 9th day of December 2012 also marked 11th anniversary of the “World Anti-Corruption Day”. While the World Anti-Corruption Day anniversary resulted from the enactment in 2003 of the UN Convention Against Corruption courtesy of the UN General Assembly and its office on Drugs & Crime (UNODC), the World Human Rights Day anniversary came as a result of its declaration by the UN General Assembly on 10th day of December 1948 courtesy of Madam Elizabeth Roosevelt’s 18-member committee set up by the UN in 1947.
Globally speaking sir, the two important events particularly the UDHR, are not only times to raise global awareness on the need for all State-actors/parties to protect and respect the rights of the governed and stamp out corruption in their body polity at all times, but they are also times for laws and policies of the member-States or State-parties to be reviewed and upgraded to fall in line with the core aims and objectives of the two locally, nationally, sub-regionally, regionally and globally important documents.
Therefore, sir, it is on the basis of the foregoing that this very important letter to you from the leadership of International Society for Civil Liberties & the Rule of Law is predicated. The ability of a State-party to the two universal enactments to have a set of progressive criminal and civil laws is an express guarantee for respect and protection of the rights of the governed. Republic of Kenya is one of the few countries in Africa that never experienced military coups since her Independence on 12th December 1963, yet she was very notorious in operating a body of draconian and archaic laws including her draconian Constitution of 1969, largely responsible for the 2007 post election violence that killed at least 1000 people. But in 2010, Kenya joined the league of “modern African democratic entities” by way of her new People’s Constitution of 2010, which secured 67% approval from the country’s voters in a constitutional referendum.
Today, apart from mocking the Constitution of Nigeria 1999 by referring to it as “Decree 24 of 1999”, other Nigeria’s body of laws, both civil and criminal is utterly retrogressive and grossly inconsistent with the international standards and best practices. Nigeria’s body of laws including the 1999 Constitution still contains numerous socially irrelevant provisions. Conversely, adequate provisions that are in tune with modern social realities particularly in the aspects of criminal justice and human rights are acutely missing. For instance, modern criminal intelligence and investigative capabilities and capacities have continued to elude the security authorities in Nigeria largely due to near-total absence of supporting legal provisions in the country’s body of criminal laws and court rules. Nigerian State officials who source arms for the State have continued to empty the European, Asian and American arms warehouses on primitive assumption that “modern security still relies on the barrels of guns”, whereas her global counterparts are busy investing heavily on preventive, intelligence and human securities by way of steady advancements in modern preventive, intelligence and investigative policing as well as constant protection and respect for the rights of the citizens through popular laws, periodic credible elections, mass health and education policies, anti-corruption policies and practices and equitable public infrastructural developments.
Therefore, we are totally in agreement with most Nigerians that the following areas of the country’s body of archaic laws should be revisited and upgraded on the recommendation and inputs of your public office. Some of the areas highlighted in this letter are also contained in our two previous letters, dated 12th and 18th of November 2012, addressed to the Secretary/Clerk of the House of Reps Committee on Constitution Review. The two letters are referenced: Intersociety/NG/001/012/HOR/NA/ABJ/FRN & Intersociety/NG/002/012/HOR/NA/ABJ/FRN. Copies are hereby attached for your perusal and necessary action. Also attached is a copy of the draconian Decree 21 of 1975.
Other Provisions To Be Included, Amended Or Expunged In The Nigerian Constitution Of 1999 & Other Body Of Laws:
Electoral Offenses Commission/Special Courts: Nigeria is mandatorily under local and international obligations to criminalize and prosecute electoral offenses & related acts so as to tackle electoral offenses during electioneering (pre-election, election and post election periods). Their penalties should range from three years imprisonment upwards. We hereby recommend for the creation of the above named Commission and Special Courts for same.
Corruption & Other Corrupt Practices Special Criminal Courts: Apart from recommending for the creation of the foregoing courts with special rules to govern same, penalties for such crimes should be made stiffer (to at least that of burglary). Present penalties in the country’s anti graft laws are grossly inadequate and should be revisited with the exception of imposition of death penalty for their gravest categories. Intersociety opposes death-penalty with total vehemence.
Proper Criminalization Of Torture & Extra-judicial Murders: Presently, the Nigeria’s criminal laws including the CC, CPA, PC, CPC, Police Act and the Evidence Act are porous and weak with respect to the foregoing. Relevant provisions in them should be revisited and reworked bearing in mind the international rights-backed defenses. The State-actors must be made to answer for such heinous crimes at all times. Extra-judicial murders should be treated as willful murder and manslaughter respectively depending on the circumstances. Penalty for torture as defined by the UN Convention Against Torture (CAT) should be made 14 years imprisonment. As you may know sir, there are no pre-judicial and extra-judicial defenses for torture as defined by CAT. Even in war situations, torturous treatments of enemy-captives are governed by laws of war (Geneva Conventions).
Justiciability Of Chapter Two Of The 1999 Constitution: This year (2012) marks 33 years since the Chapter Two commonly refers to as “Fundamental Objectives & Directive Principles of the State Policy” was incorporated into Nigeria’s Constitution. It was incorporated into same in 1979 and since then, this important Chapter, which also contains some economic, social, cultural, environmental and groups rights as well as the dos and don’ts of the Nigerian public office holders, has remained toothless owing to obnoxious provision of Section 6 (6) (c) of the Constitution that forbids all courts in Nigeria from inquiring into its conformity or otherwise. It amounts to anarchy for the operators of the State not to be judicially questioned over their actions and inactions with respect to their management of public affairs. The said provision is also grossly inconsistent and incoherent with the same Constitution that gave birth to it. The said paragraph “c” of Section 6 (6) should be revised to empower Nigerians to have right to judicial inquiry into the said Chapter Two. Also, the operators of the State, who are judicially disempowered to hold the citizens judicially accountable with respect to their duties as contained in Section 24 (a) to 24 (f), should exercise such powers and enjoy such rights if the obnoxious paragraph is expunged.
Revisiting Infamous Decree 21 Of 1975: By the provision of this draconian Decree, the Nigeria Traffic Warden Service was seconded to the Nigeria Police Force as an “enslaved paramilitary organization”. To this effect, the management and control of the Service was handed down to the Inspector General of the Police. This is by virtue of Sections 59 to 69 of the Nigeria Police Act of 1990 (re-baptized NPF Act of 2004). The most obnoxious part of the Decree is Section 6 of same, which restricts its officers’ ranks to “Senior Traffic Warden” as highest rank to be so attained. The “Senior Traffic Warden” is equivalent to Nigeria Police Inspector. The Service’s lowest rank is called “Traffic Warden Grade 111”, which is equivalent to Constable in the Nigeria Police Force. The infamous Decree 21 of 1975 was promulgated and signed on 19th of August 1975 by Brigadier (as he then was) Murtala Mohammed. Since then, IGP came and gone, regimes of discriminatory practices against the Service’s officers remained. After our exhaustive investigations and findings, it is our firm position that time has come for the obnoxious Decree 21 of 1975 to be given a befitting burial. We further urge your public office to recommend for the collapsing of the Service’s personnel into the near-moribund Nigeria Police Motor Traffic Division as “full officers-in charge” so as to end the age-long discriminatory practices against them particularly in the areas of ranking, posting, promotion and duty assignment.
Amendment Of Section 146(3) Of The 1999 Constitution: The said provision that states… “Provided that in giving effect to the provisions aforesaid (section 14 (3)) the President shall appoint at least one Minister from each State who shall be an indigene of such State”, should be expressly amended because it engenders wastefulness, duplicity, corporate laziness, incompetence and corruption. An over-bloated government cabinet is a recipe for huge public recurrent expenditures and indebtedness. While we strongly advocate for the retention of Section 14 (3) of the Constitution for the purpose of equity and evenness in the management of Nigeria’s human and material resources owing to heterogeneous nature of the country, we recommend the use of geopolitical zonal equity rather than State with respect to the appointment of federal ministers. The Senatorial equity should be applied at the State levels in the appointment of civil commissioners.
Adequate Protection & Compensation By The State Of The Victims & Witnesses Of Violent Crimes In Nigeria: As you know sir, Nigeria has since joined the league of independent countries and occupied territories of the world as “ the sole prohibitor, prosecutor and punisher” of crimes against persons and properties, which are usually violent in nature. As a result, State is now the sole protector of all citizens and punisher of those who engage in the commission of crimes against persons and properties. Citizens including the victims of violent crimes are forbidden by State from avenging for violence meted out to them. One of the main reasons why modern criminal law as Nigeria has it today, frowns at the moribund customary criminal law is because of the latter’s insistence on the archaic doctrines of “self-help” and “trial by ordeal”.
Therefore, modern criminal justice as three-way traffic is totally sacrosanct and inviolable. It must be upheld at all times without excuses by all nations and territories including Nigeria. The three-way traffic modern principle of criminal justice per Chukwudifu Oputa, JSC simply means “justice to the murderer who murdered another willfully in contravention of State’s prohibition of act of willful murder, which society’s norms and values frown at; justice to the victim, the murdered or bruised, whose battered body and soul seek vengeance; and justice to the society, which norms and values are desecrated and degraded.
Sadly, our thorough investigations into Nigeria’s body of criminal laws clearly show that justice as three-way traffic is almost non-existent in the country especially in practice. The Nigerian State, its body of criminal laws, juridical scholars and jurists are still very far from embracing the theories and practices of “victimology”. For instance, abandonment of, and refusal to treat victims of gun-shot wounds or injuries is still very common in Nigeria. It has also become a common practice among private and public clinics and their practitioners in the country with the authorities of the Nigeria Police Force in all their 6,651 field formations across the country (as of 2008) being the first degree accomplices by their introduction and insistence on the so-called “police report/permit” before such victims could be medically treated. It may most likely be a verifiable statistics that out of every five citizens or victims shot by violent criminals or their attackers ( usually State actors), four are abandoned to die of bleeding and pains; and out of five State actors ( i .e. police officers) shot, five are expressly treated, except those who died on the spot.
Further, our extensive study into Nigeria’s body of laws including the 1999 Constitution, the Criminal Code (CC), Criminal Procedure Act (CPA), Penal Code (PC), Criminal Procedure Code (CPC), Evidence Act, Police Act and the Fundamental Rights Enforcement Rules clearly indicates total absence of adequate mechanisms for State compensation and protection of the victims and witnesses of violent crimes in Nigeria. What seems to have been provided for is “restitution principle” whereby convicts are compelled by further judicial action to pay “damages” to their victims. Under the Fundamental Human Rights Enforcement Rules, for instance, “damages” payable to individual enforcers of rights abuses by a judicially indicted State operator are very difficult to recover. The stringency involved is so alarming that for such “damages” to be recovered in default through court, the consent of the Federal or State Attorney General must be obtained. If the AG withholds his or her consent, it would require a writ of mandamus to compel him or her together with the indicted State operator in other to compel compliance, which may never come. This is after the affected citizen has gone to court to enforce his or her rights, obtained the leave of the court to enforce same and won his or her claims against the State operator or institution.
In the said body of laws studied, the beneficiaries of the rare judicial awards of “damages”, other than those under the Fundamental Rights Enforcement actions, which rarely is the case, are victims from convicts or defendants; and the State from convicts or defendants and even victims. The State under reference is represented by prosecutors. There are no clear-cut provisions in these laws where State is obligated to pay adequate compensations to the proven victims of violent crimes in the country. Shocking and funny too, Nigeria’s body of criminal and civil laws under reference still contains monetary damages ranging from “N40, 00”, “N50, 00” to “N100.00”, etc in a century of common monetary damages, which could range from tens of thousands of naira, hundreds of thousands of naira to millions of naira depending on the circumstances of the damages being judicially asked for.
Under international best practices, victims and witnesses of violent crimes are adequately compensated, rehabilitated and protected by the State at all times. It is therefore our firm recommendation that a constitutional provision should be made for adequate compensation, rehabilitation and protection by the State of the victims and witnesses of violent crimes in Nigeria. To this end, the body of laws under reference including the CC, CPA, PC, CPC, Evidence Act, Police Act and the Fundamental Human Rights Enforcement Rules should be reworked and brought in tandem with the constitutional provision under recommendation. The stringencies inherent in them as well as all irrelevant provisions should be done away with. To make State compensation of the said victims and witnesses easier, we recommend for the establishment of a public trust fund for the compensation and rehabilitation by State of the victims and witnesses of violent crimes.
The trust fund when established should attract to it a certain percentage of the Federation’s annual revenues as well as contributions from key private partners in the country’s key economic sectors. The idea of a public trust fund for the subject under reference is to eliminate the possible problem of the compensation suffering the fate of unpaid judgment debts in the country in which the Federal Government’s share stood at N88.5Billion as at September 2012. As for the amounts to be paid to such victims, it should be provided that if, for instance, a police officer victimizes a citizen violently, the calculation to be used is the totality of the monthly salaries and allowances of the IGP of the Nigeria Police Force for a specific number of years to be determined by the relevant public compensating authorities. Similar methods should be applied in other circumstances. The prompt medical treatment of all victims of gun-shot wounds or injuries in any part of Nigeria should be constitutionalised. Its breaches should also be criminalized vide an Act of the National Assembly of Nigeria with penalties ranging from three years imprisonment and above. The practice of obtaining “police permits” before the said victims are medically treated should be abolished all over the country.
Overhauling Nigeria’s Obsolete Criminal Intelligence & Investigation: It is possible that Nigeria as Africa’s major crude oil exporter is also the Continent’s major importer of small arms. It is believed in many socially informed quarters that there are three major procurers of small arms in the country. They are: Federal Government as the sole State small arms procurer; various State Governments as “arms traffickers within borders” (procurement of arms from local illicit sources for motley of their vigilante groups); and non-State actors as “arms traffickers without borders” (procuring small arms from illicit spots outside limitless borders). It has been sadly observed that any security challenge in Nigeria makes European, Asian and American manufacturers of small arms instant millionaires, if not billionaires. For instance, the little deployment of sciences of intelligence, bomb making( usually locally made improvised explosive devices) and detonation by the Boko Haram militant elements and their political sponsors, which may have taken them a fraction of millions of naira, has grossly exposed Nigeria’s emptiness in intelligence and preventive policing.
In panicky response to the said ragtag threats, the country earmarked a whopping sum of N921Billion (roughly $6Billion), sourced from borrowed and generated sources, in the form of “defense budget for 2012” and possibly ran to European, American and Asian small arms warehouses, like a mad man holding a sharp knife in a densely populated market, with a view to flooding the country with arms the more. Today, small arms are found at every right, left and center part of the country. There are State and quasi State arms bearers everywhere in the Nigeria, yet insecurity remains the country’s common salutation. It is widely believed in independent crime and security experts’ quarters that there may most likely be up to, if not over 5million illicit small arms in wrong hands in the country excluding those in the right hands. The Nigeria Police Force is presently peopled by 371,000 officers and plans are being muted to add more 280,000. The presence of the Force is still negatively felt by most Nigerians. It is a science of common sense and simple intelligence for a professional kidnapper to rely more on his mobile phone and less on his AK-47 Assault rifle in the course of his operation except when he is attacked or provoked. Conversely, Nigerian security agents including police personnel rely more on their AK-47s and less on simple intelligence and common sense.
The modern security concept centers on “people security”, “preventive security”, and “intelligence security”. As the saying goes, it is better to catch an armed robber or kidnapper in his hideout that to try to catch him when he is on rampage. Nigeria’s intelligence and investigative policing is alarmingly obsolete. The country still over-relies on AK-47-driven and reactive security concepts instead of moving away from same by overhauling her obsolete security system to instill the culture of modern securitization. The evolution of electronic policing toolkits has made preventive policing easy and cheaper in the world over. Today, in criminal investigation, for instance, there are scientific or technological means of establishing particulars of violent crimes such as metals, hairs, bloods, fibers, sand, ceramics, pellets, bricks, bullets, finger-prints, footages, textiles, etc, and these processes may be called “forensic analysis:”. Their analytical warehouses may be called “crime laboratories” or “crime scenes”.
In Nigeria, preventive policing devices such as old and latest versions of the closed circuit televisions, tracking security cameras and hundreds of others are rarely available particularly in the Nigeria Police Force. Where they are found at all, they are located in the private security establishments run by major oil, telecommunications, banking and leading private security organizations (companies). Modern criminal intelligence as well as criminal investigation as the hallmark of criminal justice system has continued to elude Nigeria. It has been statistically and criminologically observed that there are over 4million hidden security cameras presently in the UK-a country with high manufacturing capacity of small arms. The crime laboratories of the Nigeria’s Police State CIDs are nothing to write home about. The NPF is still not electronically linked to its 6,651 field formations in Nigeria. Its central crime data warehouse, whether physical or electronic, is almost non-existent. It may most likely be correct to say that 95% of the NPF’s so-called “IPOs” (investigating police officers) lack basic computer literacy. Many, if not most of the Force senior officers ranging from Assistant Superintendents to Deputy Inspectors General “do not know computers and computers, in turn, do not have their passwords”.
It is therefore our firm recommendation that compulsory mass computer trainings to cover basic and professional packages should be organized in batches for the officers of the Nigeria Police Force, both those in the rank and files (Constables to Inspectors) and the command cadre (ASPs to the IGP). Those to be deployed to State CIDs henceforth must have requisite computer knowhow to be able to cope with modern criminal and investigative intelligences.
We also recommend strongly for the establishment of special policing and security intelligence universities to train and re-train Nigeria’s security agencies particularly the NPF in the art of modern criminal investigation and intelligence. The traditional university degree courses offered by the newly upgraded Police University, Kano, defeats the very aim of agitations for its establishment. It has been statistically observed that out of the Taiwan’s 172 universities, nine are special military and security intelligence universities. Nigeria’s security and intelligence universities including the Police University, Kano, should be professionalized to offer security and criminal intelligence courses such as general and criminal law( including international law), criminology & security studies, peace & conflict resolution, sociology, psychology, biology, geography, anthropology, bio/cyber crimes/terrorism courses, courses on anti corruption and human rights, computer science/IT, pathological sciences, war and conflicts, etc.
Finally, as the Chief Law Officer of the Federation, history will be kind to you if the archaic and obnoxious provisions in the body of laws under reference including the 1999 Constitution are cleansed or upgraded. Your attention is also drawn to the urgent need to rework the CC, CPA, PC, CPC, Evidence Act, Prisons Act, Nigerian Security Agencies Act, the Private Guards Acts, Police Act, Public Complaints Act, and the Legal Aid Act, among others with a view to bringing them at par with international best norms and practices. Their accompanying court rules should also be revisited, to among others, be made to contain modern procedures for assessing and accepting pieces of criminal evidence generated from technological and electronic sources. It is also our information that there are numerous international rights treaties yet to be ratified and domesticated by the Federal Republic of Nigeria in line with Section 12 of the 1999 Constitution. Some of them are Rome Statute for ICC, ICCPR, ICESCR, Convention Against Torture and their protocols, to mention but a few. We call for their prompt ratification or domestication where they are ratified but yet to be domesticated (i.e. ICCPR & ICESCR ratified in 1993).
We hope that this important letter to your good office will be promptly and judiciously attended to.
For: Intersociety, Nigeria
Chairman, Board of Trustees
Phone: +234(0) 8033601078, +234(0) 8180103912
Dr. Goodluck Ebele Jonathan, President & Commander-in-Chief Federal Republic of Nigeria
Honourable Justice (Mrs.) Aloma Mariam Mukthar, Chief Justice of the Federal Republic of Nigeria
Senator David Mark, Senate President of the Federal Republic of Nigeria
Honourable Aminu Tambuwal, Speaker of the House of Reps Federal Republic of Nigeria
Senator Ike Ekweremadu, Chairman, National Assembly Joint Committee on Review of the 1999 Constitution
Mr. Mohammed D. Abubakar, Inspector General of Police
Federal Republic of Nigeria
Mr. Ita Ekponyong, Director General
State Security Services of the Federal Republic of Nigeria
Col. Sambo Dasuki, National Security Adviser of the Federal Republic of Nigeria
Senator Anyim Pius Anyim, Secretary to the Government of the Federation, Federal Republic of Nigeria
Dr. Chidi Odinkalu, Chairman of the Governing Council National Human Rights Commission of the Federal Republic of Nigeria
Dr. Ngozi Okonjo-Iweala, Minister of Finance & Coordinating Minister of Economy, Federal Republic of Nigeria
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