In the concluding part of his article which began last Tuesday, the immediate past president of the Committee for the Defence of Human Rights (CDHR), Mr Malachy Ugwummadu examines Police powers to stop and search young persons, including search of wallets, vehicles, electronic gadgets (laptops, mobile phones etc) without warrant; unlawful detention and extortion.
Essentially, the practice of search by police officer is generally made in order to obtain evidence for use at the trial of an offence.
It may also be with a view to retrieving what is suspected to have been stolen. In effect, searches by police officers are allowed on persons, premises or of a thing.
The power of the police to search such things as vehicles ship wallet, electronic gadget is clearly derived from their general duty of the police to prevent and detect the commission of crime.
Unlawful arrests, detentions, extortions, not permitted
What is not permissible though are unlawful arrests, detentions and extortions. They are indefensible both in law and in morality.
The right to personal liberty and the presumption of innocence are guaranteed under the constitution. If the rights to liberty and movement are guaranteed and fundamental in the constitution, then it means that they cannot be breached without redress and compensation.
The law as shown above is that the police has the power to search, arrest and even detain a suspect provided that he exercises such power upon reasonable suspicion of commission of crime and such alleged crime must be one already existent in our statute book as at the time of the alleged commission of the crime.
Thus, the act of accosting a student, for instance, who had just walked out an examination hall and subject him to a lengthy interrogation and investigation over a reported armed robbery incident that occurred about the same time when the suspect was writing his exam cannot be upon a reasonable suspicion of having committed a crime.
Ditto for the arrest and detention of a suspect who was unable to redeem his or her financial obligation to his business partner for very credible reasons.
Police not recovery agency
There are ample judicial authorities that emphasis the point that the police is not a recovery agency and should not be utilised as such.
Therefore, the operative word here is that there must have been a reasonable commission of a crime. In the same vein, once a victim of an unlawful arrest alleges illegal arrest or detention, the onus to justify the action shifts unto the police.
In the context of this discourse, law enforcement agents who abuse the rights of citizens to liberty, privacy and movement may attempt or be able to explain or rationalise the abuse albeit unsuccessfully, but none of such explanations can be offered in respect of extortion.
In fact, I have had course to argue elsewhere that extortion of money by law enforcement agents including the police from innocent and vulnerable Nigerians is actually armed robbery because they menacingly extort those monies wielding their guns and weapons in a manner that instill fear in their victims. Importantly, section 8(1) has expressly provided that a suspect shall not under any circumstance be subjected to any form of inhuman treatment.
To be sure, it provides thus;
8(1) “A suspect shall;
(a) Be accorded human treatment, Having regard to his right to the, dignity of his person; and
(b) Not be subjected to any form of torture, cruel, or inhuman or degrading treatment”.
Similarly, sections 1(a), 2 and 3(1)16 out-rightly criminalise any form of torture in the course of investigation and even prosecution.
They provide as follows;
- The Government shall;
(a) Ensure that the rights of all persons, including suspects, detainees and prisoners are respected at all times and that no person placed under investigation or held in custody of any person in authority shall be subjected to physical harm, force, violence, threat or intimidation or any act that impairs his free will.
Thus, wide as the powers of the police appear with respect to search and arrest, there are clear limits beyond which their actions could be rendered illegal.
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First is that the police officer who intends to search a suspect must identity his or herself. Learned author and friend Frank Agbedo in his book “Rights of Suspects and Accused Persons Under Nigerian Criminal Law” had this to say at P.38
“If he (the police) fails to identify himself sufficiently to you, then you are not obliged to obey him or submit yourself for any form of search or further restriction on your freedom of movement.
This is because your civic duty is to obey proven law enforcement agents and not some hustlers who may be out there to take undue advantage of innocent and law abiding citizens for their selfish end.”
Where the proper identification is made, then the suspect reserves the right to either speak or remain silent. This is protected under S. 35(2) of the 1999 Constitution even if the request to speak is in the counsel of their investigation.
- 35(2) “Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultations with a legal practitioner or any other person of his choice.”
Similarly section 3(2)18 provides that a police officer or the person making an arrest shall inform the person arrested of his right to
- a) Remain silent or avoid answering any question until after consultation with a legal practitioner or any person of his own choice
Thirdly, the arresting authority must ensure, that in deference to suspect’s right to dignity of person, that he is treated humanely and civilty. This include the right not to be arrested by use of excessive force. In the same vein, he (the suspect) must be notified promptly of the cause of his arrest.
In fact, the proviso to S. 6(2)(c) ACJA imposes an additional responsibility on the arresting authority to notify the next of kin or relative of the suspect of the arrest at no cost to the suspect.
Ancillary to those are the rights of the suspects to be taken to the police station or to court once they are unable to resolve amicably.
Conclusion
This paper has tried to resolve an intriguing question relating to the power of the Nigerian police to search personal belongings and effect of citizens.
It examined the laws relating to the powers of the police to conduct search and even detain suspects but also explained that the exercise of such powers can only be justifiable upon REASONABLE suspicion of commission of crime.
It insisted that such crime or criminal actions are not what the arresting officer thinks or believes constitutes a crime but that which has been positively provided for and criminalised by the statute books.
The paper further examined the wide powers of the police in relating to investigations pursuant to S.4 of the Police Act but outlined the limitations to those powers.
In the end, it struck a balance between the investigative powers of the police vis-à-vis the fundamental rights of citizens under the constitution and relevant statutes including the Administration of Criminal Justice Act 2015.
Thank you for your patience.
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