For a nation whose collective citizenry could hardly be termed docile, a visitor to Lagos State for example, may openly speculate about the remarkable transformation from lion to lamb which its citizens undergo, when caught on the 'wrong side of the Law'. It is however, not arguably, out of reverence for the law that the average man on the street stoops to conquer, but more likely for fear of the destruction of his property and debasement of his person by the arresting officer. To his mind, save the lofty rhetoric about human rights for the legal talk shows, and offer the arresting officer a quick "settlement'' to dispense with the alleged offence real or imagined. This practice is by no means restricted to the police alone, but cuts across all other law enforcement agencies in present times, including and perhaps even more peculiar to those empowered with the duty of road traffic management.
How then has it come to be, that the apparel of law enforcement in Nigeria is all but synonymous with jungle justice? Nigeria's protracted sojourn under military dictatorship has no doubt done its bit to lessen the esteem, with which the dignity of the person and his property are held by law enforcement agencies generally. However, in this present era of rule of Law mantras, and democratic slogans, is someone not forgetting to send the memo to these Law enforcement agencies that the ship of violation of fundamental rights has long sailed away from these shores?
The activities of the Lagos State Traffic Management Authority (LASTMA) provide a good case in point to illustrate the ready recourse to physical force and Gestapo practices, at the slightest pretext by law enforcement authorities nationwide. As an initiative of the Senator Bola Ahmed Tinubu led administration of Lagos State, LASTMA was borne out of an urgent need to rescue the State from the labyrinth of traffic congestion, which threatened to bring socio-economic and political transactions to a perilous impasse. Established via the Lagos State Traffic Management Authority Law on July 15, 2000, the agency is vested with the statutory mandate of ensuring effective traffic management within the Lagos metropolis. The distressing reality however is that its officers often operate in excess of their statutory power, as they employ a variety of unconventional – not to mention illegal, tactics in bringing road traffic offenders to book.
A Legal Viewpoint
Even to the lay man, the implications of succumbing to a demand for ''settlement'' by a law enforcement officer, are obvious: complicity. When trapped between the proverbial "devil and the deep blue sea...'' most would readily swap their dignity for a swift resolution of an uncertain predicament. In other words, fear of the unknown is the food which fuels the monster of oppression by law enforcement. The Law has become so far removed from the average citizen that he neither knows what constitutes an offence nor the applicable penalty. Even more importantly, what are his inalienable rights as guaranteed by the Constitution?
Unlawful actions by law enforcement officers in the course of their duty are not only egregious and distasteful, but also criminal acts punishable by law. Every citizen has the right to own both moveable and immovable property, free from interference except as authorized by Law. The Constitution concisely states in Section 44(1), that ''no movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law".
A citizen's right to property is also protected by Section 440 of the Nigerian Criminal Code which provides that "An act which causes injury to the property of another and which is done without his consent is unlawful unless it is authorized or justified or executed by law". The Criminal Code, further provides in Section 451 that; "any person, who willfully and unlawfully destroys any property, is guilty of an offence which unless otherwise stated, is a misdemeanor, and he is liable, if no other punishment is provided, to imprisonment for two years".
Members of LASTMA are empowered by their enabling Act, to apprehend erring motorists for trial by mobile and magistrate courts. They also have the duty where the gravity of the traffic offence so requires, to impound vehicles. Prudence perhaps would suggest that the arresting officer provide the offender with the written law verifying the applicable penalty whenever an offence is committed. Physical abuse and forced compliance would thereby become redundant.
Undoubtedly, the law obligates law enforcement officers in any civilized society, to protect against, and where possible forestall the unlawful destruction of its citizen's property. From the foregoing, the average citizen certainly has rights to enforce when his property is unlawfully dealt with. A situation where the reverse appears to be the case, therefore begs the question not only of means of redress for the aggrieved citizen, but also the more profound question of who is sleeping behind the wheel: why has it been condoned thus far?
The Question of Liability
The Fifth Schedule to the Constitution says that law enforcement officers and government security agents are public officers, and as such are bound to abide by the code of conduct for public officers, contained therein. This includes the provision that a public officer shall not do or direct to be done, in abuse of his office, any arbitrary act, prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.
It has however been judicially posited, that the foregoing constitutional directive does not create a private right or interest for which a litigant can claim relief. Onu J.C.A in Nwankwo v. Nwankwo (1992) NWLR (Pt.238) 693 at 708, said; ''the purpose of the fifth schedule as I see it, is to ensure that public officers show moral rectitude and probity...it vests neither a cause of action, interest nor right in the individual". In light of this, what is the extent of liability, if any, of those who are empowered to enforce law and order, particularly in Nigeria, and who inadvertently become law breakers themselves by destroying public and private property in the purported "course" of their official duty?
The Public Officers Protection Act (POPA), Cap P41, Laws of the Federation of Nigeria 2004 in section 2, provides some clarification on the issue of liability, to wit; ''where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law, or of any public duty or authority...the following provisions shall have effect...the action, prosecution or proceeding shall not lie...unless it is commenced within three months next after the act, neglect or default complained of..."
Clearly, the law contemplates that a public officer may in the execution of his duty commit some act, neglect or default for which a citizen has a right to seek judicial redress. The proviso however adds that the public officer is protected in such an instance, by the limitation of time prescribed to bring such an action. Nnamani J.S.C said in Egbe v. Alhaji (1990) 1 N.W.L.R (Pt. 128) pg 546 "if a public officer is obviously acting outside the colour of his office, or outside his statutory or constitutional duty...he loses the protection of the Act without question. Where however, he is acting within the colour of his office, he can only lose the protection of the Act if he is sued within three months, and if on the evidence in the case he is shown to have acted in pretended execution of his lawful duty, having acted from improper motives"
It is pertinent to note at this point, that no protection beyond the statutory limitation of time to bring an action will avail a public officer in offences of a criminal nature. In the dictum of Akpata J.S.C in Paul Yabugbe v. C.O.P (1992) 4 NWLR (Pt. 234) 152 at 171, His Lordship opined that it could never have been the intention of lawmakers to protect public officers from crimes committed under the guise of statutory or public duty. His Lordship said "The protection provided by section 2 of the Public Officers Protection Law is not available to him." This is very significant as most of the injury to property and person which law enforcement officers inflict, are in the realm of criminal offences, for example, unlawful assault, unlawful destruction of property and so on. As highlighted in Section 451 of the Criminal Code above, where no other punishment is prescribed for injury to property, the offender is liable to two years imprisonment. Majority of the victims of law enforcers brutality, seem to have slept upon this right of redress as the combined effect of the POPA and the Criminal Code, go to exclude any sort of protection when the officer in question has overstepped his lawful authority.
Notwithstanding the foregoing legal postulations, a simple starting point to forestall future abuses of power by law enforcement officers lies in the wholesome re-orientation and sensitization of the populace. Mainstream education of all relevant parties as well as urgent attention from heads of ministries, and government security agencies is vital. However all this will come to naught if the citizens themselves do not jealously safeguard their rights.
There is no doubt that the mandate of "law enforcers" such as LASTMA is one which the people can scarcely do without. However, their employment of scare tactics and assault on innocent lives and property is indicative of a larger and growing social vice of law enforcement brutality which comes under the guise of securing the peace.
To a large extent in Nigeria, the excessive use of force and abuse of power by law enforcement officers seems to go unpunished due to ignorance of basic rights on the part of the citizenry. Perhaps also, due to the deeply ingrained scars of military rule which manifest as an almost extreme complacency, even in the face of the most blatant violations of human rights. This notwithstanding, law enforcement agents such as the Police and LASTMA, are public officers, and as such should be held accountable for arbitrary acts done in excess of their public duty or authority.
George Orwell once said in expounding the justification of tyrants; "Obedience is not enough. Unless he is suffering, how can you be sure that he is obeying your will and not his own? " There is no doubt that majority of Nigerians are willing to comply, at least to a large extent with the laws of the land. Must they be put under the boot and whipped simply to prove their compliance? Concerted efforts must therefore be made to delimit the fledgling tyrants called law enforcement officers, before more harm is inadvertently inflicted upon the populace. The law holds every public officer liable for his actions according to the standards set out above. These officers are liable for any violation of the Law perpetrated during the course of their public service, and such should attract the full penalty of the Law.
(Published in BusinessDay Newspaper of Thursday, June 18, 2009)
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