COMBATING UNLAWFUL ARRESTS, TORTURE AND EXTRA-JUDICIAL KILLINGS IN NIGERIA

BY

Prof. Muhammed Tawfiq Ladan (PhD)

Professor of Law,

Department of Public Law, Faculty of Law,

Ahmadu Bello University, Zaria

+2348037015634

, or

BEING A PRESENTATION MADE AT

THE RETREAT OF THE NATIONAL ASSEMBLY HOUSE COMMITTEE ON HUMAN RIGHTS

DATE: - 30TH APRIL, 2013

VENUE: - ABUJA

COMBATING UNLAWFUL ARRESTS, TORTURE AND EXTRA-JUDICIAL KILLINGS IN NIGERIA

BY

Prof. Muhammed Tawfiq Ladan (PhD)

INTRODUCTION

Unlawful arrests, torture and extra-judicial killings are acts violative of the constitutional rights to personal liberty, human dignity and life guaranteed under sections 35, 34 and 33 of the 1999 Constitution of Nigeria, as amended. Hence efforts to combat this culture of impunity being promoted by law enforcement, and security agents in Nigeria is very laudable, constitutionals and consistent withy Nigeria’s human rights treaty obligations. (See Table 1 below).

Law enforcement practices must conform to the basic principles of legality, necessity and proportionally. Any law enforcement practice must have its basis in law. Recourse to it must be unavoidable, given the circumstances of a particular case in hand, and its impact must be appropriate in relation to the seriousness of the offence and the legitimate objective to be achieved. The relationship between law enforcement practices and the perception and experience of rights and freedoms and/or the quality of life in general within a society are subjects that still receive insufficient thought and attention.

Table on Status of Ratification or Signature by Nigeria of International and Regional Legal Instruments relevant to Women and Children’s Rights:as of June, 2012

Prepared by Prof. M.T. Ladan, Faculty of Law, ABU, Zaria

S/No. / Title of Instrument / Date
1. / UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); / Ratified 13-6-1985
2. / Optional Protocol to CEDAW; / Signed: - 8-9-2000
3. / UN Convention on the Rights of the Child (CRC) / Ratified 19-4-1991
4. / Optional Protocol to the CRC on the involvement of children in armed conflict; / Signed: - 8-9-2000
5. / Optional Protocol to CRC on the sale of children, child prostitution and child pornography; / Signed: - 8-9-2000
6. / UN Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (CAT); / Ratified 28-6-2001
7. / International Covenant on Civil and Political Rights (ICCPR); / Ratified 29-7-1993
8. / International Covenant on Economic, Social and Cultural Rights (ICESCR); / Ratified 29-7-1993
9. / International Convention on the Elimination of all forms of Racial Discrimination; / Ratified 16-10-1967
10. / Convention on the political rights of Women; / Ratified 17-11-1980
11. / Protocol relating to the status of Refugees; / Ratified 2-5-1968
12. / Convention relating to the status of Refugees; / Ratified 23-10-1967
13. / African Union Charter on the Rights and Welfare of the Child; / Ratified 23-7-2001
14. / African Charter on Human and People’s Rights / Ratified 22-6-1983
Signed: - 31-8-82
15. / OAU Refugee Convention; / Ratified 23-5-1986
Signed: - 10-9-69
16. / Protocol to the African Charter on Human and People’s Rights Relating to the Rights of Women in Africa; / Ratified 16-12-2004
Signed: - 11-7-2003
17. / UN Convention Against Transnational Organized Crime; and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children; / Ratified 28-6-2001
18. / ECOWAS Declaration on the decade of a culture of the Rights of the child in West Africa; / Signed: - 21-12-2001
19. / ECOWAS Declaration on the fight against Trafficking in Persons in West Africa; / Signed: - 21-12-2001
20. / ECOWAS Protocol on Democracy and Good Governance;
21. / ILO (1999) Convention on the Elimination of the Worst Forms of Child Labour; / Ratified in 2001
22. / ILO Convention (No. 45) concerning the employment of women on underground work in mines of all kinds; / Ratified as of 31-12-1998
23. / ILO Equal Remuneration Convention (1951); / Ratified as of 31-12-1998
24. / UNESCO Convention Against Discrimination in Education (1960); / Ratified as of 31-12-1998
25. / Protocol to the African Charter on the Establishment of African Human Rights Court; / Ratified on 20-5-2004
26. / AU Protocol on the Peace and Security Council; / Ratified on 23-12-2003
27. / Protocol on the Pan-African Parliament; / Ratified on 23-12-2003
28. / Protocol on Amendments to the Constitutive Act of the African Union; / X
29. / Constitutive Act of the African Union; / Ratified on 29-03-2001
30. / Treaty Establishing the African Economic Community; / Ratified on 31-12-1991
31. / Cultural Charter; / Ratified on 24-09-1986
32. / African Convention on the Conservation of Nature (Revised);
33. / African Union Convention on Preventing and Combating Corruption; / Ratified on 2-09-2006
34. / 1986 OAU Convention on the Conservation of Nature; / Ratified on 2-04-1974
35. / Protocol to the AU Convention on the Prevention and Combating of Terrorism; / X
36. / AU Convention on the Prevention and Combating of Terrorism; / Ratified on 28-04-2002
37. / AU Convention on Mercenarism in Africa; / Ratified on 14-05-1986
38. / AU Treaty on Nuclear Weapon-free Zone; / Ratified on 20-04-2000
39. / Africa Charter on Democracy, Elections and Governance; and / X
40. / AU Convention for the Protection and Assistance of Internally Displaced Persons / Ratified on 17-04-2012

1. COMBATING UNLAWFUL ARREST

…No one shall be subject to arbitrary arrest or detention… The prohibition of arbitrariness in the second sentence of the ICCPR’s Article 9.1 represents an additional restriction to the deprivation of liberty. This injunction is directed both at the national legislature and at the enforcement agencies. It is not enough for deprivation of liberty to be provided for by law. The law itself must not take place arbitrarily, and the enforcement of the law in a given case must not take place arbitrarily. The word “arbitrary” in this sense is understood to contain elements of injustice, unpredictability, unreasonableness, capriciousness and disproportionality.

The prohibition of arbitrariness is to be interpreted broadly. Cases of deprivation of liberty provided for by law must not be manifestly disproportionate, unjust or unpredictable, the specific manner in which an arrest is made must not be discriminatory and must be justified as appropriate and proportionate in view of the circumstances of the case.

Arbitrary arrest is also prohibited under the ACHPR (Article 6); and the ACHPR (Article 7.1-3). The ECHR (Article 5.1) sets out the specific circumstances under which a person may be deprived of his or her liberty. While the ECHR is a applicable only to States Parties, its provisions provide excellent guidance to all law enforcement officials on the various situations in which deprivation of liberty may be considered reasonable and necessary. According to the ECHR, a person may be deprived of his or her liberty in the following circumstances:

  • following conviction by a competent court;
  • for non-compliance with a lawful order of a court or to secure an obligation prescribed by law;
  • for the purpose of bringing a person before the competent legal authority on reasonable grounds of having committed an offence;
  • (of a minor) by lawful order for the purposes of educational supervision or bringing him or her before a competent legal authority;
  • For the purpose of preventing the spread of infectious diseases, and in respect of persons of unsound mind, alcoholics or drug addicts, or vagrants;
  • For the purpose of preventing unauthorized entry into, or residence in, the country.

Conduct of Law Enforcement Officials

The principles of legality and necessity, along with the prohibition of arbitrariness, require the conduct of law enforcement officials in arrest situations to meet certain expectations. Those expectations relate to a knowledge of the law and the proceedings to be observed in specific situations and/or circumstances that might lead to a deprivation of liberty.

The Body of principles states that arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for the at purpose (Principles 2).

The word “competent” does not only mean “authorized” but is also to be understood as referring to the mental and physical aptitude and attitude of law enforcement officials in arrest situations. To effect an arrest that meets all the requirements of legality, necessity and non-arbitrariness, much more is needed than the mere application of the law. Only training and experience can develop the capacity of law enforcement officials to distinguish between individual situations and to adapt their reactions to the circumstances of a particular case in hand.

The behavior of individual law enforcement officials in arrest situations will determine in each situation the extent to which that behavior is judged to be arbitrary. To guarantee equality and to prevent discrimination is in the hand of individual law enforcement officials – as is the responsibility to ensure respect for the rights, according to the law, of each arrested person.

Victims of Unlawful Arrest or detention

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. (ICCPR, Article 9.5)

This provision entitles every victim of unlawful arrest or detention to a claim for compensation, whereas the analogous provisions of Article 5.5 of the ECHR guarantees compensation only in the event of a violation of Article 5.

Under the ACHR (Article 10) compensation is payable to a person who is sentenced by a final judgement through a miscarriage of justice. Unlawful arrest may be an element in a miscarriage of justice.

For all instruments it is equally applicable that actual compensation is a mater of domestic concern, to be taken care of under national legislation.

The Declaration of Basic Principles of Justice for Victims of crime and Abuse of Power (Victims Declaration) may offer some guidance in defining state responsibility and the rights of victims.

In its Article 4 the Victims Declaration states that victims should be treated with compassion and respect for their dignity.

It goes on to recommend, in Article 11, that “Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted.”

Obligation of law Enforcement Officials

The rights of the arrested person as set out above impose clear obligations on law enforcement officials. The first of these obligations is to effect only arrests that are lawful and necessary. Law enforcement officials may use only the powers granted to them by law. The exercise of these powers is subject to review by a judicial or other authority.

The said rights can be translated into the following obligations for law enforcement officials, namely:

  • to give prompt information AT the time of arrest about the reasons for arrest;
  • to inform the arrested person promptly of any charges against him or her;
  • to inform the arrested person promptly of his or her rights and how to avail himself or herself of these rights;
  • to duly record for each arrested persons:
  • the reasons for arrest;
  • the time of arrest;
  • the taking of the arrested person to a place of custody;
  • that person’s first appearance before a judicial or other authority;
  • the identity of the law enforcement officials concerned;
  • precise information concerning the place of custody;
  • to communicate these records to the arrested person or to his or her legal counsel in a form prescribed by law;
  • to bring the arrested person promptly before a judicial or other authority who can judge the lawfulness and the necessity of the arrest;
  • to provide the arrested person with legal counsel and allow adequate opportunity for communication between them;
  • to refrain from torture or other cruel, inhuman or degrading treatment or punishment during and after arrest;
  • to arrest the arrested person is further afforded the rights to which he or she is entitled as a detainee;
  • to strictly observe the rules for the protection of the special position of women and juveniles.

Finally it should be emphasized that under the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and summary Executions, it is the responsibility of governments to ensure strict control (including a clear chain of command) over all officials involved in arrest, detention, custody and imprisonment – as well as over those authorized to use force and firearms.

Police officials with command and supervisory responsibilities are obliged to ensure that the necessary control measures and chain of command are in place in order to prevent extra-legal killings during arrests and/or detention.

2.COMBATING TORTURE

The prohibition of torture is absolute and knows no exception. These are no situations in which torture can be lawful, nor are there possibilities for a successful legal defence for acts of torture committed. A public emergency that threatens the life of the nation (ICCPR, Article 4) does not permit a derogation from the prohibition of torture. Confirmation of this prohibition can also be found in the Geneva Conventions of 1949 and their Additional Protocols of 1977, which outlaw torture in all forms of armed conflict to which those instruments of humanitarian law apply.

The prohibition of torture is part of customary international law and has been codified in the UDHR (Article 5), the ICCPR (Article 7), the ACHPR (Article 5), the ACHR (Article 5), the ECHR (Article 3) and in the above-mentioned instruments of humanitarian law.

The Convention against Torture contains provisions which emphasize the personal responsibility of law enforcement officials – and again confirm that superior orders or exceptional circumstances cannot be invoked as a justification for torture (CAT, Article 2).

With regard to education and training, States party to the CAT are urged to include the prohibition of torture in training curricula for law enforcement personnel (CAT, Article 10.1) and in the rules or instructions relating to the execution of their duties and functions (CAT, Article 10.2).

The Prohibition of Torture

Under international law torture is defined a severe pain or suffering, whether physical or mental, inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or person acting in an official capacity, for such purposes as obtaining from the person on whom it is inflicted or a third person information or a confession, punishing that person for an act which he or she has committed or is suspected of having committed, or intimidating that person or other persons. (Convention against Torture, Article 1).

Further codification of the prohibition of torture was effected with the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) cited above, a multilateral treaty which has been ratified by some 105 UN member States.

The following provisions are drawn from the Convention against Torture and are legally binding on all States party to it:

  • no exceptional circumstances whatsoever may be invoked as a justification of torture (Article 2.2);
  • superior orders may not be invoked as a justification of torture (Article 2.3);
  • torture must be prohibited under domestic laws Article 4);
  • all persons accused of committing torture must be brought to justice irrespective of their nationality or where the crime is alleged to have been committed (Article 5,6,7);
  • the training of law enforcement officials must take full account of the prohibition against torture (Article 10.1);
  • the prohibition on torture must be incorporated into general rules and instructions issued to police officials responsible for the custody of detainees (Article 10.2);
  • interrogation rules, instructions, methods and practices must be kept under systematic review (Article 11);
  • arrangements for the custody and treatment of persons deprived of their liberty must be kept under systematic review (Article 11);
  • suspected acts of torture must be promptly and impartially investigated (Article 12);
  • (alleged) victims of torture are entitled to a prompt and impartial investigation and must be protected against all ill-treatment or intimidation as a consequence of their compliant (Article 13);
  • Domestic law must ensure redress and an enforceable right to fair and adequate compensation for victims of torture (Article 14);
  • Evidence obtained through torture is inadmissible in court (Article 15).

The Committee against Torture, established under Article 17 of the CAT, monitors implementation of its provisions by States Parties.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment establishes a committee with tasks similar to those of the UN Committee against Torture, The European committee visits detention facilities and examines the treatment of prisoners and detainees with a view to strengthening the mechanisms of protection against torture. The member States of the United Nations have also appointed a Special Rapporteur on Torture, who has the authority to receive complaints, to make country visits and to conduct other investigations into situations of torture anywhere in the world. The Special Rapporteur reports on his or her findings directly to the UN Commission on Human Rights.

The key provisions of the CAT are reflected in Article 5 of the Code of conduct for Law Enforcement Officials, which states that: “No law enforcement official may inflict, instigate or tolerate any act of torture.. nor …invoke superior orders or exceptional circumstances … as a justification of torture … “

Needless to say, the scope of the prohibition of torture encompasses all aspects of law enforcement and is not limited to detention and imprisonment.

3.COMBATING EXTRA-JUDICIAL KILLINGS

The Principles on the Effective Prevention and investigation of Extra-legal, Arbitrary and Summary Executions, annexed to Economic and Social Council Resolution 1989/65 also contains specific references to the professional ethics and personal responsibility of law enforcement officials for the way in which they discharge their responsibilities in the conduct of law enforcement operations.

Article 3 urges governments to prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extra-legal, arbitrary or summary executions. It places particular stress on the right (and the duty) of all persons to defy such orders. In addition, it states that the training of law enforcement officials must emphasize these provisions. It is therefore the responsibility of each individual law enforcement official not to become involved in the kind of practices prohibited under this instrument. To underscore this fact, Principle 19 specifically stipulates that orders from a superior officer or a public authority may not be invoked as a justification for extra-legal arbitrary or summary executions.

EFFECTIVE PREVENTION AND INVESTIGATION OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS

One of the observations made by the UN Human Rights committee with regard to the right to life was that “the deprivation of life by the authorities of the State is a matter of the utmost gravity”.

The focus must be placed on ‘strictly controlling and limiting the circumstances in which a person may be deprived of his [or her] life by State authorities” in an effort to prevent the arbitrary taking of life.

Extrajudicial executions are unlawful and deliberate killings, carried out by order of a government or with its complicity or acquiescence.

It is important to recognize that such killings are deliberate and not accidental and that they are unlawful and do not qualify as justifiable homicide.