A Critical Appraisal of Nigeria Police Force Act, 2020

On 17^th September, 2020, the President of the Federal Republic of Nigeria, President Muhammadu Buhari, signed the Nigeria Police Bill into Law. The Police Act 2020 is indeed a welcome development because, for almost 8 decades, the legal regime of police administration in Nigeria was regulated by the Police Act of 1943 and the clamour for a new Act remained persistent.

The new Act provides for a more effective and organized Police Force which will be transparent and accountable in all its operations. It also reflects the mandate to enhance professionalism in the Police Force via adequate training opportunities for police officers and other employees in the Force. The ultimate aim of the new Act is to create cooperation and partnership between the Police Force and communities, so as to ensure peace, safety of lives and properties.

This work examines in detail, the provisions of the new Police Act. Greater emphasis is laid on the novel provisions and departures from the old Act as well as criticisms and concerns that arise from the new Act. Also, recommendations which are relevant to the evident criticisms are provided.

2.0  THE POLICE ACT, 2020, AT A GLANCE

This Act is aimed at providing a more effective and well-organized Police Force, founded on the principles of transparency and accountability in its operation and management of resources. A part-by-part synopsis of the new Act is presented below:

Part I: Preliminary

This part comprises two (2) Sections only. It reflects the recommendations of previous police reform panels for a people-friendly Police Force. It focuses on the general and specific objectives of the Act, which is to provide a more efficient and effective police service through accountability and transparency and to ensure the protection of Fundamental Human Rights and freedom. The Act further aims at fostering an effective partnership between the Police Force and other security agencies.

Part II: Establishment, Composition, and Duties of the Nigeria Police Force

This part has four (4) Sections. Section 3 of the Police Act 2020 establishes the Nigeria Police Force. This part further provides for the general functions and duties of the Police Force which includes the prevention and detection of crimes, maintenance of public safety, protection of lives and property, to facilitate free passage and movement on the highway, roads and street and so on. This part also establishes the Nigeria Police Council, the highest policy making body in matters relating to the Nigeria Police Force. The Council is saddled with the organisation, administration and supervision of the Police Force.

Part III: Appointment, removal, functions, and powers of the Inspector General of Police

This part consists of four (4) Sections. It provides detailed procedures for appointing the Inspector General of Police (IGP), who must be a Senior Officer not below the rank of an Assistant Inspector General of Police. By the Act, The IGP is to be appointed by the President, on the advice of the Police Council, serving a tenure of not more than four (4) years. This part further provided for the functions and powers of the IGP which includes the development of a yearly financial plan for the police, setting out the priorities, objectives, cost implication and expected outcome for policing.

Part IV: Appointment and functions of the Deputy Inspector-General of Police, Assistant Inspectors-General of Police, Commissioners of Police, and other persons into the Nigeria Police Force

This part begins from Section 11 to Section 16. It provides that the Police Service Commission shall, on the recommendation of the IGP, appoint Deputy Inspectors General of Police and Assistant Inspectors General as well. It stipulates their duties and functions to include performance of duties as assigned by the IGP. The Police Service Commission shall also appoint the Commissioners of Police.

Part V: General Administration

It contains nine (9) Sections and provides for the Police Officer’s Oath, the Recruitment Committee, compulsory police training and re-training program. It also makes provisions for the remuneration of Police Officers, emphasizing that their salary shall be equivalent to what is obtainable in other security agencies.

Part VI: Financial Provisions

This 5-section part deals with the finances of the Police Force. It makes adequate provisions for their funding, expenditures, estimates, accounts, audits and annual report.

Part VII: Powers of Police Officers

This qualifies as the widest and most important part of the Act. It comprises forty (40) Sections and addresses the powers of the Police Officers regarding protection of human rights and freedom. The powers contained in this Act were made to align with the provisions of the Administration of Criminal Justice Act (ACJA) 2015. Powers not contained in the previous Act, but which can be enforced by other statutes such as the ACJA has been included. Its provisions on Searches, Warrants and Arrests are extensive. This part further addresses the acts of the Police Officers that cast aspersions in the eye of the public such as inhumane treatment of suspects in custody, arrest in lieu, denial of right to dignity, medical and legal services in custody. It also provides for some circumstances where reasonable suspicion should not exist, which includes personal attributes like hair color, age, hairstyle, manner of dressing. It removes the stereotype image that some certain persons or group of persons are more likely to commit crime.

Part VIII: Warrants

It consists of thirteen (13) Sections and gives comprehensive provisions on the authority to issue a warrant including the forms of a warrant, the days it could be issued, the duration, execution, and directions of the court with respect to the execution of warrants.

Part IX: Prevention of offences and security for good behavior

This part contains four (4) Sections only. It provides for the duty of the Police to intervene in the prevention of commission of crimes and injury to public health and property.

Part X: Property found and unclaimed

This part has four (4) sections. It states that where a person or Police officer finds a lost property, such property should be taken to the nearest Police Station within 24hours. Such would be recorded in the register of lost properties or any book kept for such purposes.

Part XI: Establishment of the Police Reward Fund and other provisions related to the police fund

This 5-section part establishes the Police Reward Fund. The fund is to be applied and disbursed at the direction of the IGP, as reward for exemplary services by Police Officers, payment of compassionate gratitude to widows or children of deceased members of the Police Force, and for other purposes. It further provides for the  mode of satisfaction and discharge of a Police Officer’s indebtedness.

Part XII: Offences

This part consists of nine (9) Sections. It states the offences that can be committed by a Police Officer in the exercise of his duties which includes desertion, drinking, use of psychotropic substances and stimulants. It also provides for some offences that can be committed against a police officer such as, assault and impersonation.

Part XIII: Special Constables

This part has eight (8) Sections. It provides for the appointment of special constables, the tenure of service being one year and also makes provisions for their allowances and renumerations.

Part XIV: Community Policing Committee

This part has seven (7) Sections. It establishes the Community Policing Committee. It makes provisions for both divisional and State Community Policing Committee. This is to maintain partnership, promote communication and cooperation, improve transparency between state polices.

Part XV: Traffic Warden Service

This part contains eleven (11) Sections. It establishes the Traffic Warden Service and lays down the recruitment, qualifications, powers, tenure of office and ranks of traffic wardens. A traffic warden deals generally with the control and direction of motor traffic on the highway. Traffic Wardens have the powers, privileges, and immunities of a Police Officer under any law relating to the regulation of road traffic.

Part XVI: Police Public Complaints and Discipline

This part consists of four (4) sections. This part empowers the IGP to establish a Police Complaint Response Unit in every Police command in all States and the Federal Capital Territory. This unit shall receive complaints of police officer’s misconduct from other police members, and the public. The unit monitors investigations into such complaints and conducts investigations. This is to check police officers and increase the public trust in the Police Force.

Part XVII: Miscellaneous provisions

This part has eight (8) Sections. It addresses discrimination against gender and reinforces Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It further provides for the power of the Minister to make regulations with respect to the policy, organization and administration of the Police Force.

3.0       NOTABLE INNOVATIONS AND DEPARTURES FROM THE OLD ACT

The Repealed Police Act had 11 parts and 69 sections while the Police Act of 2020 has 17 parts and 145 sections. This shows that 76 new sections have been added. Given this massive amendment, it is highly pertinent to shed light on some of the notable innovations which have been birthed through the enactment of the new Act, as well as the points of divergence from the old Act.

1. Power to Prosecute

The powers to prosecute under both Acts are remarkably different. Section 23 of the repealed Act provides to the effect that subject to the powers of the Attorney-General of the Federation and of the state to institute and undertake, take over and continue or discontinue criminal proceedings, any police officer may conduct criminal proceedings. This provision gave the Police the right to prosecute in person any criminal proceedings in any Court in Nigeria. However, the Police Act 2020 in section 66 (1) provides that subject to the Attorney-General’s right to institute and undertake, takeover and continue or discontinue criminal proceedings, a Police Officer who is a Legal Practitioner may prosecute in person before any court.

Evidently, this precludes a Police Officer who is not a Legal Practitioner from prosecuting in any criminal proceeding in any Court in Nigeria. This also implies that every Police division must have police officers who are Legal Practitioners. The New Act also expect that the Police Officers who are Legal Practitioners are to ensure that human rights are preserved in the Police division.

2. Report of Arrests Made Without Warrant/Monthly Inspection of Police Stations.

Another laudable Innovation of the Police Act of 2020 is the introduction of a monthly report  of all arrests made without warrant, which will be presented before a Magistrate within the division of the Police, stating if the suspects arrested without Warrant have been admitted to bail or not. The Act also states that the Magistrate, on receiving the report, shall forward same to the Criminal Monitoring Committee, saddled with the responsibility of analyzing the report as well as advising the Attorney-General of the Federation on such report. Section 70 of the Act also provided that a Chief Magistrate or other Magistrates designated by the Chief Judge  shall at least conduct an inspection of the Police stations and other places of detention and their duties will be to inspect the records of arrest, direct the arraignment of suspects and grant bail where bail has been refused. This development is expedient, to ensure that suspects do not languish in Police cells without any formal charge brought against them. It also encourages regular inspection which guarantees that the law is respected and illegal detentions are minimized.

3. Power of Arrest

The erstwhile Police Act was silent on the power of the Police to arrest for a civil wrong and this culminated into an abuse of power by some police officers, leading to oppression and intimidation of innocent citizens as well as the improper use of Police officers in private debt recovery and contract enforcement. Section 32 of the 2020 Police Act provides that a Police Officer is reserved with a power of arrest but not in respect of mere civil wrongs and breach of contract. Also, the Act reinforces the Constitutional provision which requires that a Police Officer making an arrest  has the duty to inform the suspect of the offence in question. The Act further reinforces the criminal procedural law which provide that a suspect or defendant may not be handcuffed, bound or subjected to restrain except:

1. There is a reasonable apprehension of violence or an attempt to escape,
2. The restraint is necessary for the safety of the suspect or,
3. By order of the Court.

Unlike the old practice, the Police Act 2020 clearly provides that a person cannot be arrested in place of a suspect, thus, arrest in lieu is prohibited.

4. Power to Conduct Search

The power to conduct search, though contained in the Repealed Act, was not too visible. This power gained visibility and clarity in the new Act as Section 50 provides that reasonable efforts shall be taken to minimize the embarrassment that a person whose property is being searched may encounter. The law now is that the person being searched must not be forced, and such search must be upon his cooperation. Also, section 51 (e) of the Police Act 2020 provides that where a thorough search is to be made, it shall be done out of public view and by a person of the same sex. These are procedural practices in administration of criminal justice and it is adequately captured in the new Police Act.

5. Qualifications, Appointment, Removal of Principal Officers and Tenure

Section 7 of the Police Act 2020 provides that an Inspector-General of Police (IGP) shall be a senior Police officer, not below the rank of an Assistant Inspector-General of Police, with academic qualifications not less than a first degree or its equivalent. The appointment and removal of the IGP is subject to the approval of the President and the recommendation of the Nigeria Police Council from among serving members of the Nigeria Police Force. Also, Section 7(6) states that an IGP shall hold office for four (4) years.

6. Disseminating Information to the Next of Kin

The Police Act 2020 provides that the Police Officer have a duty to notify the family members of a person who was arrested and is in custody. The Repealed Police Act was silent on this.

7. Prohibition of Inhumane Treatment

The right to dignity of human as enshrined in the constitution is regarded sacrosanct and this is captured in the new Police Act. The repealed Act was silent on the issue of dignity of human person. The Police Act 2020 provides that a person who is arrested must not be subject to any form of torture, cruel, inhuman, or degrading treatment.

8. Involuntary Statements

The repealed Police Act was silent on the issue of making involuntary statements. Before the inception of the Police Act 2020, most statements made at the station were involuntarily made. The new Act in Section 60 made provisions for a suspect’s voluntary statement to be made in the presence of a Legal Practitioner of his choice, and where there is no legal practitioner, before an officer of the Legal Aid Council or a Justice of Peace. Also, the new Ac provides that an interpreter should be availed to any suspect at the station who cannot speak or write in English.

9. Delayed Detention

As provided in section 35(4) of the Constitution, an accused person who has been arrested must be charged to Court within 24 hours, where a Court of competent jurisdiction is in the location where the arrest took place. The repealed Act was silent on this issue but the new Act requires that where a suspect arrested for an offence other than a capital offence is not released on bail within 24 hours, a court with jurisdiction over such matter may be notified by application on behalf of the suspect.

10. Expansion of Police Duties

Section 4 of the New Act expanded the duties of the Nigeria Police beyond prevention/detection of crime, protection of rights, lives and properties, maintenance of public safety, law and order, enforcement of laws and agencies to also providing assistance to persons in distress, victims of road accidents, earth quake, flood and fire disasters and also facilitating free passage and movement on highways, roads, and streets open to the public.

11. Community Police Committee

In line with the Federal Government’s policy on Policing as well as international best practices, the new Police Act in Section 113 provides for the establishment of Community Policing Committee in order to foster partnership, communication, and cooperation between the Police Force and the Community. This provision is commendable as it places particular focus on community policing, which is a great organizational strategy in improving police services to the community.

12. Police Complaints Response Unit

The establishment of a Police Complaints Response Unit by the new Police Act in section 131 is highly commendable. The implementation of this is also great as there are social media handles where complaints can be reported and swift action taken.

13. Funding Framework

The new Act also establishes an appropriate funding framework for the Police Force in line with what is obtainable in other federal government key institutions. This is to ensure appropriate funding of all police formations, all over the nation.

4.0 THE APPRAISAL OF THE INNOVATION IN THE POLICE ACT OF 2020

Indeed, the Act heralded a new dawn in the legal regime of Police administration in Nigeria, especially as the previous Act was enacted in 1943. The innovations highlighted in the previous section are laudable. Nevertheless, the Act has been caught in a web of criticisms and concerns which border on the effectiveness of the Act in meeting its objectives. Some of these concerns are highlighted in the paragraphs that follow.

1. Conflict with the Constitution

The Constitution of the Federal Republic of Nigeria is regarded as the grund-norm from which all other laws in Nigeria derive their validity. By virtue of this, any law which is inconsistent with any provision of the Constitution is void, to the extent of its inconsistency. Paragraph 30 of Part 1 of the Third Schedule to the 1999 Constitution vests power to the Police Service Commission to appoint persons into offices in the Nigeria Police. However, the new Police Act conflicts with the constitutional mandate of the Police Service Commission to appoint Constables and Cadets into the Nigeria Police Academy.

Thus, the Court of Appeal in October 2020 gave a ruling on the unconstitutionality of the 2020 Police Act in this regard. This reveals the absence of thorough research and strict regard for the provisions of the Constitution. This is a dent on the overall meticulousness of the National Assembly who prepared the bill which was assented to by the President.

2. Implementation

Generally, in Nigeria, the issue has not always been with the existence of laws, but the implementation. It is commonplace to find flagrant abuses of legislative enactments and this leads to the question of implementation of all the provisions of the new Police Act. Moreso, given the recent national outcry against police brutality in Nigeria, there are imminent fears of individuals becoming victims of oppression in the face of vague and undefined provisions in the new Police Act.

3. Power to Prosecute

Section 66 (1) of the new Police Act raises genuine concerns as regards police officers that can prosecute. The section provides that subject to the Attorney General’s right to institute and undertake, take over and continue or discontinue criminal proceedings; “a police officer who is a legal practitioner” may prosecute in person before any court. The question here is this: Does this provision preclude Police Officers who are not lawyers from prosecuting? If it does, it would automatically mean that every police division must have a Legal Practitioner, which is not currently the case. Sub-Section 2 of that particular section is more interesting. It states that a police officer may, subject to the provisions of relevant criminal procedures in force at the Federal or State level, prosecute before the courts, those offences which non-qualified legal practitioners can prosecute. This provision would need more interpretation by the courts, bearing in mind that there is no body of law or legislation in Nigeria that provides a compendium of offences which non-qualified legal practitioners can prosecute. It is, therefore, apparent that this section raises more unanswered issues and could pose a problem in overall justice delivery in the long run.

Also, prosecution of offences by police officers who are not legal practitioners has always been a challenge with regards to prosecutorial competence and technical knowledge of court processes. The new Act ought to have addressed this issue, rather than reinforce the right of those police officers to prosecute.

4. Definition of ‘Reasonable Grounds’ Under Section 38(1)

Section 38(1)(a) of the police Act 2020 provides that “a police officer may without an order of court and without warrant arrest a suspect whom he suspects on reasonable grounds of having committed an offence”. On one hand, there is need to grant wide powers to aid the prevention of crime and promote safety of lives and properties. However, the media is replete with reports of arbitrary arrests by police officers, even where no offence is committed by individuals. In this case, it is foreseeable that abusive police officers may rely on the absence of a specified definition of reasonable grounds which can cause belief in the fact that an offence has been committed. Where there is no such definition, which test of reasonableness will suffice?

5. Community Policing or State Police?

There have always been agitations for the decentralization of the Nigeria Police Force through the creation of the State Police so as to vest the control of the Police Force in the Governors of States. Apparently, following the introduction of Community Policing in Nigeria, states will have some form of control in the security structure and matters in their states. Apparently, this encourages strategic partnerships between the Police and community vigilantes, in order to foster the overall aim of combating crime. However, the total control by the Federal Government still remains, which is why community policing, no matter how effective it would be, would not grant solution to the quest for decentralization of the Police Force, which the structure of a State Police would bring.

5.0       RECOMMENDATIONS/CONCLUSION

On the whole, the Police Act, 2020 has done a remarkable job in changing the face of the legal framework regulating the Nigeria Police Force. Considering that nationwide protests against police brutality were staged barely a month after this enactment, one wonders whether this new Act would actually be implemented with religious piety.

In view of concerns highlighted in section 4.0 of this research work, it is recommended that Nigeria needs a holistic constitutional amendment which will adequately incorporate reforms of the Nigeria Police Force. The need for constitutional amendment cannot be overemphasized. It is apparent that Acts of the National Assembly must be in strict consonance with constitutional provisions as these Acts cannot override the provision of the constitution on any matter. It would be safer to amend the constitution upon a careful analysis of the reforms to be incorporated and this would lend a strong voice to the potency of the provisions.

The Judiciary, being the body created by the Constitution to interpret laws, will continually ensure that no law is indeed in conflict with the constitution. The Court of Appeal portrayed its powers in its recent ruling which declared some sections of the new Act unconstitutional. However, it will be better if legislators carry out due diligence to avoid such conflicts before recommending a bill for assent by the President. This due diligence is also required for the use of words that make up the statute. If this is done, there would be an unambiguous representation of the provisions relating to the powers of the police to prosecute

As regards the issue of implementation, massive awareness of the provisions of the new Act would assist in ensuring the implementation of the Act. If the general public is properly enlightened, it will be the first step in check-mating excesses of Police Officers who thrive on the ignorance of unenlightened individuals. Likewise, all Police Officers should be given a section-by-section analysis of the new Act so they can understand the implications of all the letters in the enactment.

There is no gainsaying that the Nigeria Police Force needs a total overhaul, driven by thorough reforms that are in consonance with international best practices. Time will definitely reveal whether the new Act will have a great scorecard in driving the needed reforms.

Doreen Obairi, Esq., Executive Associate @ doreen.obairi@harlemsolicitors.com

JulieCash Oduma, Esq., Associate @ juliecash.oduma@harlemsolicitors.com

Grace Kalu, Esq., Associate @ grace.kalu@harlemsolicitors.com