By Godfree Matthew Esq.

ABSTRACT

It was a known fact that the Nigeria Police Force (Establishment) Act, 2020 (hereafter refer to as the Act) may be greeted with optimism because of its departure from the old legal regime. It was therefore, a welcome development.

However, for curious minds it was pertinent to explore the benefits and the likely areas of concerns that may call for further review or judicial attention. It was against this background that this work derived its inspiration. Thus, the aim of this write-up was to explore the positive aspects of the Act and also to examine the likely areas that may be affected in some aspects of Nigeria’s jurisprudence.  In the course of writing, the work established that the Act has promoted constitutionalism to certain extent and addressed national security concerned. On the converse, the work also found that the Act conflicts with some legal principles and had not yet addressed some salient issues related to police force. It was the recommendation of the writer that, some of the flaws in this bill shall be addressed by subsequent legislative review and judicial activism. The resource tools employed in the development of this article are statutes, case laws, textbooks and other allied sources of information.

  • INTRODUCTION

It is factual that the Act comes with a lot of expectations that Nigerians are waiting for. The content of the legislation is proactive and responsive to the previous strictures leveled against the Nigerian Police. Apart from that, the Act also takes into cognizance some of the salient suggestions offered by public on how to bolster the efficacy of Nigerian Police Force. The efforts of the drafters must be commended. However, no matter how well drilled and drafted a statute is, there is always a room for constructive observation. It is for this reason that intellectuals and public commentators became functional to the society.

Therefore, this work is structured into four parts. The first part deals with the brief analysis of the Police Act, 2020. Here the legal structures of the Police Act, 2020 were highlighted. In the second arm, the writer espoused some of the positive aspects of the Act. In the third arm, the writer examines some negative effects of the Act on other aspects of legal practice. The fourth part of the work concludes with suggestions on how to further strengthen the efficacy of the said Act. It is the hope of this writer, that this work will be resourceful to learning, policy formulation and advocacy.

  • SYNOPSIS OF THE POLICE ACT, 2020

The current police Act, 2020 is designated as “the Nigeria Police Force (Establishment) Act, 2020”. The Act was assented by the senate on the 22nd of July, 2020 and assented by the President Muhammadu Buhari on September 16, 2020.[1] The Act is segmented into 17 parts. It has a total of 143 sections.

The first part deals with the preliminary part of the legislation. Here the objective of the Act is spelt out into two: general objectives and specific objectives of the Act. It starts from sections 1 and end with section 2. The second part of the Act deals with the establishment, composition and duties of the Nigerian Police Force. Under this section of the Act, the hierarchy, functions duties and establishment of the Police Council are spelt out. It starts from section 3 and ends with section 6.

The third part of the Act deals with the appointment, removals and the functions of the Inspector -General of Police. Here the procedure for his appointment and removal are spelt out. His functions are equally spelt out. It begins with sections 7 and ends with 10. The part four of the Act deals with appointment of the Deputy Inspector-General, Commissioners of Police and other members of the police force. Their respective duties and obligations are spelt out in the Act. It starts from section 11 and stops at section 16.

The part five deals with the general administration of the Nigerian Police Force. It provides for oath taking by police officers. It provides for the regulations of the Police Recruitment Service Commission. Also remuneration, training programmes and appointment of supernumerary police officers are the key gist in this part of the law. It starts from section 17 and ends with section 25.

In part six, the Act deals with the finances of the police force. It provides for the funding of the police, expenditure of the police force, estimates, accounts and audits as well as annual reports to authorities. It starts with section 26 to section 30. In the seventh part, the Act deals with the power of the police officer. This is the widest part of the law. It starts from section 31 and ends with section 70. It deals with procedures like search, arrest, and recording of statements and other aspects of criminal procedures.

Part eight of the Act, only deals with warrants in general. From the authority to issue warrant, its forms and its execution are spelt out under this part. It covers from section 71 to 83. In part nine, the Act deals with prevention of offences and security for good behaviours. It has about five sections; sections 84 to 85.

Part ten of the Act deals with property found but unclaimed. It outline the procedures involve in reporting and documentation of such unclaimed properties. It starts from section 86 and ends at section 90. In part eleven, the Act outlines the establishment of the Police Reward Fund and functions. It also provides against police indebtedness, prohibits private business other than farming. It starts with section 91 and stops at section 95.

The twelve part of the Act deals with general offences that will be committed by Police. It covers from section 96 to section 104. The thirteen part of the Act deals with special constable from their appointments (including appointment in emergency functions and regulation. Their allowances and remunerations are spelt out. The scope of part thirteen is from section 105 to 112.

Part fourteen deals with community policing. It spelt out its establishment, objectives, duties and functions. It starts with section 113 and ends with 119. The fifteen part of the Act deals with traffic. It starts from section 120 and ends with 131 of the Act. The sixteen part deals with public complaint and discipline. It covers from section 132 to 135.

The seventeen parts of the Act deals with miscellaneous. It is here that prohibition against discrimination is spelt out. Disobedience to unlawful order, repeal, saving and transitional falls under this part. It is the final part of the Act. It starts from section 136 to section 143.

Having highlighted the structure of the Act, it is pertinent to explore how the main content of the Act impacted on the rule of law and human rights. These tasks will be done at the subsequent part of this work.

2.00. SOME POSITIVE REFEORMS/INNOVATIONS OF THE POLICE ACT, 2020

Promotion of Human Rights in the Professional Etiquettes of Police

The Act upholds the promotion of human rights as its core responsibility. This is reflected in the objectives and the functions of the police force. It is for this reason that section 1 of the Act, states that the promotion of human rights, transparency and accountability and partnership with other agencies to be the general objectives of the Nigerian Police. Under this Act, respects for the rights of both criminals and the victims of the crimes are central to operation of Nigeria’s police.[2]

Promotion of Transparency and Accountability

The Act also abhors corruption and lack of accountability in the discharge of the duty of Nigerian police force. This is so in order to ensure openness and gain public confidence in the discharge of its duty. Therefore, under this new law promotion of transparency and accountability is an integral parts of police law in Nigeria.[3] The primacy of transparency and accountability is seen in the provision of  section 8 (2) ( c) and 8 (3)  where the Inspector General of Police is mandated to published via gazette and submit an audit to the Attorney General of the Federation and the National Assembly yearly. The audit shall show the activities of the police in terms of its professional efficacy and compliance with rule of law.

Community Policing

Perhaps one of the most celebrated innovations of the Act is the emergence of community policing in the theatre of Nigeria’s security. This is because many Nigerians yearned for it as a way forward in addressing current Nigerian security challenges. Thus, section 4(h) of the Act adopts community partnership in combating crime. To further strengthen this position, sections 113 to 119 provide for the establishment of community policing. Under this new bill, the Community Police Committee was established to ensure the operation of community partnership in prevention and detection of crime.

In order to ensure the operational efficiency of this committee, the Act divides the community policing into two: Divisional Community Policing Committee and State Community Policing Committee.[4]

The objectives of these committees are spelt out in section 116 of the Police Act, 2020 as follows:

  1. Maintain a partnership between the community and the Police Force.
  2.  Promote communication between the Police Force and the Community.
  3. Promote cooperation between the police and the community in fulfilling the needs of the community regarding policing
  4. Improve the police service to the community
  5. Improve transparency and accountability in the provision of police services to the community

By introduction of Community Police in Nigeria, several states and their state security council shall have a say in the security architecture of their states. This is more pertinent considering the facts that the State Executive Council and members of the Communities with have a say on the decision relating to security matters. Thus, community security outfits like the vigilante, may have stronger tie and partnership with police by combating crime.

The importance of vigilante to partner with the Police is that it will subject the said vigilante (or community police) under the supervision of the police. This will be apt in a situation where residents of communities wish to protect themselves and so in order to curb their excesses, the police supervision is necessary. This position is recently upheld by the Supreme Court in the case of Ezeanochie V Igwe,[5] that:

By Virtue of the Group Vigilante Law, 2004 of Anambra State, the Police is statutorily empowered to supervise vigilante outfits.

The impact of the above dictum of the Supreme Court to the new Police Act can be likened to an icing on a hot cake. Thus, community policing is a strategic and timely approach both in law and in need.

Prohibition of Arrest by Proxy

Nigeria police were known for arrest by proxy. This happens when a person suspected is at large then somebody in his stead could be arrested. That person could either be his relative or associates- who may not be aware of anything. The recurrence of this abuse of law is so gross that section 7 of the Administration of Criminal Justice Act, 2015 prohibits arrest in lieu of suspect.

Therefore based on the above developments the emergence of section 36 (a) of the Act, is a welcomed development. The said section out rightly prohibits arrest by proxy when it simply states that a person shall not be arrested in place of a suspect.

Prohibition of Police on Arresting Person in Civil Cases

The new Police Act provides that a person shall not be arrested merely on civil wrong or breach of contract.[6] Nigerian police were notorious for arresting suspects in civil matters such as contracts and debt recovery. This development is so disturbing that the Supreme Court condemned this acts in plethora of cases.[7]

Therefore, the statutory restriction and outright prohibition of police to arrest a person on civil offence is welcome innovations. Signs are clear that if this is not done there is likelihood of people seeking legal redress against the police or complainants for taking them to police station in civil matters. This is seen in the dictum of the Supreme Court in the case of Kure V COP[8] where the Apex court held as follows:

…such a person ought not to go scot free, as the report ought not to have been made at all since it is not within the purview of the police duty. It is a report made malafide and he will be equally made liable for the action taken by the police irrespective of whether he actively engaged them or not, since he has no business involving the police in purely civil matter ought to be mulcted for exemplary damages

 …in the instant case, the appellant deserved an unreserved apology from Mrs Sokari Davies, who set unjustly and mala fide the criminal process against the Appellant.

It is important to note that by the above authority, where an individual initiates a civil matter to the police and another person is detained or suffer for it, such person may be held liable. While, the Police Act 2020 prohibits the police force from entertaining civil matters, the Supreme Court in the above case is warning the public against reporting civil matters to the police.

Quarterly Reports of Arrests to Attorney-General of the Federation and Attorneys-General of the State

This new law mandates the IGP to quarterly report the number of arrests made to the Attorney General of the Federation or the Attorneys-General of the States.[9] This report includes arrest made with or without warrants. In the same vein, the Commissioner of Police shall report to the state Governor quarterly the number of the arrest made.

In the course of submitting their quarterly reports of arrest to the AGF and AGs, the IGP and Commissioners of Police respectively are mandated to give the full particulars of the person arrested. Similarly, the AGF is enjoined to keep electronic and manual database of all arrested persons.[10]   The AGF is further mandated by the law to make available such records of such reports to Civil liberty organizations, National Human Rights Commissions, Legal Aid Council and other NGOs. However, this must be done after these groups have requested for it.[11]

The quarterly reports by the police to the AGF and AGs are important because it promotes accountability and transparency.  The report is equally important to AGF and AGs because it may affect the granting of legal advice on the ways forward. It will help them to decide which case is to be prosecuted and which is not. Similar duties are to be exercised by the police officer in charge to forward a monthly report to the magistrates under section 69(1) of the Act.

Duty to Disobey Unlawful Orders

This is another applauded innovation of the new Police Act. It seeks to address a situation whereby junior officers commit crimes in course of their operations at the direction or commands of their superior. Thus, in order to curb this menace, section 138 (1) provide that:

 A police Officer who on reasonable grounds, believe that an order given to him by a senior officer is unlawful, he;

  • He is not bound to comply with the order, and
  • Shall immediately make a report in such form as it is provided for by Police Service Commission for that purpose.

The above provision by the new shows Nigeria’s compliance with principles of International Policing. For example, International Policing Standards clearly states that superior officers shall be liable for issuing unlawful orders that amounts to violation of human rights.[12] In the same vein, a junior officer is reminded by the law that he cannot rely on the defence of superior order to justify any wrongdoing in the discharge of his duty[13] Thus, the provision of section 138(1) of the Act  is in tandem with international best practices.

Prohibition of Discrimination

The law prohibits discrimination on the ground of gender in the practice or operation of Nigeria police force. The law prohibits police as an institution and any other person as an individual to promote discrimination using the instrumentality of the law. Thus, section 136 of the Act provides that:

The Police Force or other persons shall not, in the performance of his or its function under this Bill, Regulations or Standing Order made under this Bill, discriminate against any person on the ground of gender as provided under section 42 of the Constitution. 

The above provision is pertinent because of its victory to feminism. This is because under the repealed Police Act, 2004, before a female police office will marry she must obtain the consent of the Commissioner of Police of the state she is serving. She must equally await the approval of police authority before proceeding to marry.[14] However, this is not the same case with the male police. It is from this perspective that one can agree that by repealing the Police ACT CAP P.19 LFN, 2004, the Police Act, 2020 really promotes equality before the law.

Recognition of Rights to Public Protest

Prior to the coming of this Act, Nigeria police tried to restrict civil liberty in terms of right to protest. An attempt to actualize that was done through the emergence of the Public Order Act.[15] Section 2 of the Act which states to the effect that any protest or civil gathering done without police permit is illegal. When that law was tested in the court of law, the court declared such law as unconstitutional and null and void.[16]

Therefore, the recognition of rights to public protest is ‘demos’ friendly.   Also from the import of the said section 83(4), what the person or persons seeking to protest need to do, is to notify the police and not to apply to them (for this will entail awaiting permission). As such by the rendition of section 83(4) of the Act, the permission of the police is not needed. The law further enjoined the police to provide security and protection for those citizens who will be exercising their civic rights. The said section 83(4) of the Police Act provides that:

Where a person or organization notifies the police of his or its intention to hold a public meeting, rally or procession on a public highway or such meetings in a place where the public has access to , the police officer responsible for the area where the meeting rally or procession will take place shall mobilize personnel to provide security to provide security cover for the meeting, rally or the procession.

Unclaimed Properties

This is another applauded step taken by the Nigerian police to ensure transparency and accountability to the public in discharge of its duty. Therefore, this law seeks to address how the police force shall account for the properties that were lost but unclaimed. It is for this reason that section 88 provides to the effect that any person, including police officer, who found a lost property shall notify the nearest police station within 24 hours and the police officer on duty shall make a record of that lost but found property.[17]

Also the law enjoined the police to keep a Record Book for the unclaimed properties. In the records, the particulars of the goods shall be captured in the record book. The time, date and circumstance under which the good was found must be described.[18] The name and signature of the person who found the good and the Police officer who reported the goods must be appended on the Record Book.[19]

Reporting of Missing Persons

Another innovation is the need to report a missing person within 24 hours. This section poses the responsibility on employers and persons whom the missing person stays with to notify the police once that person is missing. This section further states the need for the person reporting to:

  1. State the identity of that person
  2. The circumstances under which that person is meeting [20]

After doing the above, the Police Officer in is expected to immediately record the name and the identity of the missing person. He shall equally record the name of the reporter as mandated by section 90 (2) of the Police Act.

The importance of this section is that it may help innocent citizens from becoming victims of criminal allegations. For example, unsuspecting members of the society who found a missing property (that was not known to him as a stolen one) should report to the police. This may show his innocence and vindication. But where he kept such property, he will be accused of keeping/receiving a stolen property.

Documentations of Arrests, Witnesses and Death in Police Station

The new Act mandates the police to keep records of the accused persons and witnesses to the case. In doing so the police officer shall entered into the record Book, the name of the person and his national identity Number. Also the need to record any ailment or medical condition of the accused or suspect is now the requirement of law.[21]

The last sentence in the above is laudable because, it will help to determine whether the accused persons were wounded in the police custody or not. This is mostly in situation of trial- within- trial. This will help the court to rely on the report of the medical situation captured in the record book to arrive at its verdicts.

Again, the new Act mandates the police officer to record the particulars of persons whom they might have wounded or killed in the course of their operations. They must record the numbers of those killed and their names where possible. The Commanding Officer must also state the efforts made towards the hospitalization of those shot or any methods towards the preservations of their lives.

This provision of the law seeks to fill in the gap of accidental discharge mostly relied upon by the police during trial. The law is now extending the frontiers of excused or justification for any police officer to escape liability for extrajudicial killing. Thus, the new law states that failure by the commanding Officer to comply with the above discussed procedures of documentation will amount to act of serious misconduct and he will be liable to disciplinary action.[22]

Proliferation of Special Agencies

Many police agencies emerged from this Act. The agencies are meant to facilitate and promote the efficiency of Nigeria police. This includes Police Reward Fund, Community Police Committee and Police Complaint Response Unit. These agencies are saddled with specific functions that relate to their spheres of operation. All are meant to promote the administrative efficiency of Nigerian police.

Appointment of Certain Professionals as Specialist

The Act spelt out certain persons that will be employed as specialists.  Persons from these disciplines are expected to practice as specialist. These specialists are meant to deploy their expertise in serving the police force. The disciplines are:

  1. Engineering
  2. Medicine
  3. Pathology
  4. Aviation
  5. Law
  6. Psychology
  7. Accountancy
  8. Forensic science.[23]

3.0. 0. SOME GREY AREAS OF THE POLICEACT, 2020

While the positive impacts of the Act is commendable, objectivity demands that it will be nice to examined of the grey areas that are associated with the law. These grey areas are examined at the subsequent paragraphs.

Is Community Policing a Better Option than State Police?

One of the pertinent areas of concern that is addressed by this Act is community policing. Thus, the question, is community policing a better substitute for state policing proposed by many Nigerians? Many Nigerians may still prefer the concept of state policing as more preferable to community police. This is because the community policing still subjects the Governor to Federal power through the office of the IGP. However, by deploying the concept of state police, the concept of true federalism will be reflected in the Nigeria security architecture. It will give the Governors more powers to justify the accolade “Chief Security Officer” of their states. Therefore, it will be more progressive if the Police Act recognizes ‘State Police’ than Community Police.

Exception for Debt Recovery

Section 93 of the new Act prohibits police officer from indebtedness of any kind while in service. However, where he does, he shall be disciplined and deductions will be made from his salary. The only exception is seen in section 95 of the Act which states that:

The remuneration of the Police shall not be withheld on account of any debt or liability which may have been incurred before being appointed to the police.

The import of this section is that once a person is indebted and he later joins a police force, his account cannot be withheld in satisfaction to repay that debt. With due respect, relying on this section will amount to injustice on parts of creditors whose debtor joined police force without satisfying the debt. Also, there are some debts that are paid by installments. Thus, where a person collected tranche of the debt, while he was not yet a police, and latter collected the completion of the debt as police officer, what course will the law take within the precinct of section 95? It is the position of this writer the doctrine of fortissime Contra Preferentes shall be applied strictly against the said police officer. [24]If not so some mischief makers will be using police as shield.

Offenses in Sections 96(1) Of Police Act, 2020

The Act does not list abuse of human rights such as detention by the police officer beyond constitutionally approved time as an offence. This will put police officers who delight in malicious detentions of suspects at the behest of third parties. The offences only spelt out issues like desertion, abetment, mutiny, false information and other anomalies.

Prerequisite for the Registration and Accreditation of Private Detective School and Private Investigative Outfits

The law ought to expressly state the procedures for the application for the operation of the private detectives school. The law ought to spell the prerequisite for determining who is qualified to operate private investigative outfits.  The law is also silent on statutory bodies that can, register, admit or recruit private detective and investigators. One should expect that the Police Council or Police Service Commission should have a say here. But it appears that it is the IGP that has these overwhelming powers.

4.00. THE WAYS FORWARD

In order to compliment the robust initiative of the Police Act certain measures may be taken. These include need for more labour force, capacity building programmes, incentives for the police force and implementation of the leeter of this Act.

The first thing to note is the need for more professional labour force in the Nigerian Police. This is because the institutions of the police has proliferated into a more advanced one in dealing with civic policing, e-policing, forensic science, auditing and others specialties. Thus, there is the need for more manpower with expertise to man those offices. The current employment ratio of Nigeria police force should be increased.

There is the need for constant retraining and retraining of the Police Force in democratic policing. Areas of concerned include crowd management e-policing, emotional intelligence and other associated areas. This is essential in the 21st century policing. Capturing those traits in the law is not enough. They should be backed with action.

The IGP and the Police Service Commission shall promote the annual incentives scheme to encourage the Police force in line with the power conferred on them by the Act. This will boost the morale.

Again, for more transparency the promotion criteria should be spelt out under the Act. What years or achievements should one made before qualifying as for promotion to the next rank? Also what other parameters are used in gauging the promotion.

Lastly, it is not only studying or writing the law that matter, what matters most is the implementation of the law. It is the implementation that translates the ideal of the law into reality. Therefore, there is the need for government to equip Nigeria’s police force financially and materially. This will bolster the efficiency of Nigerian Police towards achieving its aims and objectives.

CONCLUSION

It is the candid view of this writer that the new Police Act comes with a lot of innovations. More importantly, the innovations reflect the public opinions, observations made by civil liberty organizations, notable pronouncements of the courts and intellectual expositions of this nature. It is the further view of the writer, that subsequent legislations in Nigeria should follow the same modus operandi, of accommodating public opinions and engagements in the course of legislative drafting.

[1]1.Nigeria Buhari Signs New Police Law, Premium Times,Abuja,17th September,[email protected]<accessed on 20th September,2020>

[2]1.Section 2 (b) and (h) and section  5 of the Police Bill,2020 

[3]2. Section2(b). Also, the sections 28 and 29 provides for the financial records of the Police to be submitted to the Auditor-General and the National Assembly, annually. See also sections 27 of the Bill.

[4]3.Section 114  and  115 of the Police  Bill,2020

[5]5. .(2020)7NWLR (PT.1729P.458 Paras.D-E

[6]6..Section 32 (2) of the Police Bill ,2020

[7]7.Some of these cases include  EFCC V Diamond PLC AND HRH Eze (DR) Peter Opara-LPELR44217(SC) and Kure VCOP (2020) 9NWLR PT.1729

[8]8.Pt.1729

[9]8. Section 47(1)Ibid

  1. Secton47(2)

[10] Secton47(3)

[11] Section 69(4)

[12]12.SeePrinciple 24 of the Basic Principles on The Use of Force and Firearms  by Law Enforcement Officials. Culled from UN Criminal Justice Standards for United Nations [email protected]>pdfid<accessedon sSeptember,20th,2020>

[13] Principle 26 of the Basic Principles on The Use of Force and Firearms  by Law Enforcement Officials. @www.refworld.org>pdfid<accessedon September,20th,2020> Also, in Nigeria, during Oputa Panel, Sgt Rogers attempt to rely on the Superior Order of Major Al-Mustafa to kill Kudirat  was discarded as baselses.See Hamza Al-Mustapha @en.m.wikipedia.org>wiki.Hamza..<accessed on 20 September, 2020> 

[14]14.Regulatioins 124 of the Repeal Police Act, CAP 19,LFN, 2004

[15]15.CAP.P42 ,2004

[16]16.ANPP&ORS V IGP(2006)CHR 1

[17] Secton88(1) and (2)of the Police Bill,2020

[18]  Secton88 (3) (a) and (b)of the Police Bill,2020

[19] Secton88 (3) (c) (d) (e) and (f)of the Police Bill,2020

[20]  Section 90 (1) (a)  and (b) of the Police Bill,2020

[21]21.Section 89(1)

[22]  Secton89 (3) of the Police Bill,2020

[23]23..Section 18(9) of Police  Bill, 2020.

[24]22.This maxim implies that  laws which seek to take way a person’s proprietary rights shall be interpreted against the acquiring authority but in favour of the persons whose property are taken away. See The Admin. .Exec .of  the Estate of Abacha V Eke-Spiff & Ors (2009) LPELR-3152(SC)