Man pass man, is one of our local streetwise aphorisms that approximates George Orwell’s averment in the Animal Farm, that, ‘All animals are equal, but some are more equal than others’. I recall also that while growing up, there was one feisty fellow with an ugly face and huge biceps that used to terrorise our neighborhood, who went by the name Man pass man. The guy was a law unto himself, and for a young mind, I equated him with what I have come now to realise is the prerogative of the state – the right to superior violence. In civilianised parlance, it is called the power of the police.
In the accusations and counter accusations between Government Tompolo and former Minister Iheanacho, the born of contention primarily is whether Tompolo, acting on behalf of the Nigerian Maritime Services Agency (NIMASA), rightfully exercised the power to arrest and detain Captain Iheanacho, summarily. According to the former Minister, Tompolo abducted him and kept him in NIMASA office for a day, before handing him over to the State Security Services (SSS); which immediately released him. The allegation against the former Minister is that crude oil, stolen from the Niger Delta by suspected bandits, was traced to his tank farm; and as such he is suspected to be complicit in the crime.
As a friend commented when the news broke, the problem is the pedigree of Tompolo, a ‘retired general’ of the Niger Delta militancy, acting now as ‘a police’ of the Federal Government. Prior to the late President Yar’Adua’s historic amnesty in 2009, Tompolo was like my childhood man pass man, albeit at a much higher level. He was not only feared by the ordinary folks, he was a terror against the state; and with other militants successfully challenged the police power of the Republic, before they were granted amnesty.
Arguably, Government Tompolo has been reformed and is now a by product of President Jonathan’s transformation agenda. It can be assumed that in pursuit of that transformation, Tompolo was handed over a multi billion dollar contract to look after the maritime corridor of the country and of course Nigeria’s crude oil facilities, which he and his former outlaw colleagues were sabotaging to bring the Nigerian state to its knees. Such a transformation is what rankles many, as he bars his ‘new police’ fangs against his first major public victim – former Minister Iheanacho. I agree as some have argued, that such incongruity is fully a made in Nigeria stuff.
But in his alternate personality, as a NIMASA/Naval police or simply security contractor, the constitution and case laws provide for clear presumption to warrant a lawful arrest, irrespective of who is affecting an arrest. For if the Nigerian police legitimized under section 214 of the 1999 constitution (supplemental), can be held accountable for the exercise of the power of arrest and detention, how can any person rightfully argue that Tompolo’s agency created via an ordinary statute, is presumably beyound any reproach. Now, if Captain Iheanacho carries out his threat to sue NIMASA and Tompolo, the legitimacy of the arrest will be one strong issue that will truly determine the remedy that will be available to him.
A legitimate arrest can be carried out with or without a warrant of arrest. A warrant of arrest as clearly explained by learned author, Oluwatoyi Doherty in Criminal Procedure in Nigeria (Law and Practice), is usually issued by a Magistrate, when the statute or law provides that such alleged offender can not be arrested without warrant; when a serious offence is alleged to have been committed; and when a summons issued by a Magistrate has been disobeyed. It is usually executed by a police officer for the purpose of bringing the alleged offender to court. On the other hand, an arrest without a warrant can be affected by a police officer, judicial officer or even a private person.
One recurring requirement for a lawful arrest without warrant is that either the offence is committed before the person making the arrest or there is reasonable suspicion of the commission of an office. In many of the cases quoted by Doherty, the test of reasonableness is the determinant. Where for instance the owner of a property or his agent acts reasonably to protect his proprietary interest, he must with reasonable dispatch take the arrested offender to the nearest police station. Both the Criminal Procedure Code and Criminal Procedure Act generally governing the northern and southern jurisdiction of Nigeria respectively provide for this text.
The latitude provided under the common law, the Police Act, the CPA and CPC must all however be in tandem with the extant provisions of section 35 of the 1999 constitution on right to personal liberty. I must however say that the constitution and the statues are not incongruous, once the text of reasonableness is met. See sections 35(1)(c) and (4) of the constitution. In Government Tompolo versus Minister Iheanacho, the former Minister alleged that he was abducted by Tompolo and that the intention is to cripple his business. In effect he was alleging premeditated malice, which if he can prove by evidence, will defeat the test of reasonableness, and avail him the eloquent protections of the constitution on fundamental rights.
The other characteristics of Man pass Man as a local terror or the obvious circumstances that all animals are equal, but some are more equal than others, must worry the larger society. If truly Tompolo has metamorphosed through a Jonathan’s transformation process, it remains to be seen whether the former warlord has acquired the trained instincts of a constitutional police man or the ordinariness of a reasonable man.
