INTRODUCTION

Police is a constitutionally established body saddle with the power to enforce law, maintain peace and order, protect lives and properties of all persons in Nigeria through investigation, comprehending and arresting those who act against the law. The importance of police cannot be over emphasized in a constitutionally democratic setting like Nigeria, because enforcement of law is very sacrosanct and fundamental towards the safety of people's lives and properties.

In recent years, we have been witnessing Police brutality, torture and other inhuman degrading treatment to some innocent Nigerians. Police brutality, torture and any acts of inhuman treatment to any alleged suspect is not justifiable and could never be justified in any democratic state like Nigeria. It is necessary in any purported democratic setting; the protection of citizens' lives, rights and their dignity as human beings. Being it our uncompromised constitutional provision, the presumption of innocent until and unless otherwise is declared by a court of competent jurisdiction and the fact that the police officers have only power of investigation of crimes and not imposing punishment on suspects or ultimately accrued to themselves the exclusive power of a court of law. (See section 4 of the Police Act 2020).

On this background the present article describes Anti-Torture Act (No 21) 2017 (to be referred to as the Act after now) as one of the unused solution we have towards the nationwide police brutality and makes recommendations for the effective enforcement of the Act’s intendments, It also suggests that if good laws such as the Act have been enforced in their full force to really address the problems they were meant to address, the problems of police brutality and inhuman treatment by police and other law enforcement agencies could have been largely reduced if not fully eliminated. Note that; the term Police used in this work includes all other security agencies.

ACT OF TORTURE AND ITS PUNISHMENT UNDER THE ACT

The Act has in luminous terms let no ball unturned in incorporating any act of inhuman and degrading treatment in its comprehensive definition of torture as prescribed under section 2 of the Act to mean any act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person in order to;

(a) Obtain information or confession from him or a third person;

(b) Punish him for an act he or a third person has committed or suspected of having committed; or

(c) Intimidate or coerce him or third person for any reason based on discrimination of any kind.

Subsection 2 of the section 2 moves further to explain torture acts in the context of the act which includes, to mention few;

Systematic beatings, punching, kicking, food deprivation or forcible feeding with spoiled food, electric shocks, being tied or forced to assume fixed and stressful bodily position, harmful exposure to the elements such as sunlight and extreme cold, the use of psychoactive drugs to change the perception, memory, alertness or will of the person; such as administration of drugs to induce confession or reduce mental competency, threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts, among others. See section 2(2) of the Act for more details

It is obvious that the drafters of the act have intended to comprise all acts of inhuman treatments and brutality as the example of torture upon which the punishment provided by the Act applies once occurred.

Furthermore, the Act gives no room for justification of torture including in unrest situations such as a state of war or a threat of war, internal political instability like protest or any other public emergency; cannot be a justification of torture. (See section 3 of the Act).

The learned drafters of the act in their commendable proactive sense, seemed to have appreciated the fact that most police officers are torturing suspect in order to obtain confession or other information in the cause of investigation. Hence the drafters make any confession, admission or statement obtained as a result of torture inadmissible as evidence in any proceeding, except against the officer accused of torture as evidence that the confession, admission or statement was made. This is in tandem with our long-time established principle of law as established in the locus classicos case of R V. SKYES (1913)8 C.A.R. P233 and also under section 29(2) of the Evidence Act 2011.

The act has clearly put liability of torture on both the person who actually participates in the infliction of torture and who is present during the commission of the act, and also a senior law enforcement officer who issues an order to lower ranking officer to torture a victim for whatever purpose. (See section 7 of the Act).

The said section 7 has further make a superior order as no justification for torture, therefore both the superior that gave the order and the junior that acted on the order will be held liable as principals in commission of the act, defense of superior order is thus not a defense for torture under the Act.

The act imposes up to 25 years imprisonment as a punishment of any officer convicted under the Act where the torture is not resulted to the death of the victim. But where the victim died the officer torture him will be charge for the murder of the victim under relevant law. (See section 8 of the Act).

In addition to criminalizing the act of torture, the act doesn’t restrain the victim from claiming damages and compensation available to him under relevant laws. (See section 8(3) of the Act.)

RECOMMENDATION AND CONCLUSION

After a holistic overview of the Act, one may opine that the act was well intended to end police and other security agencies’ brutality in Nigeria. Moreover, the Act intended to give no escape route or justification to any culprit officer, the provisions of the Act are obviously proactive as they should, however one must ask why even after the commencement of the act in 29th December 2017, Nigeria do not record any decrement of police torture and brutality?

The question is what the problem is? Since we have laws such as the Anti torture Act that criminalizes the act of brutality and put personal liability on the culprit no matter how high his rank is.

The major problem lies in the enforcement of those laws, a kin observer could say that Nigeria has the laws that could cure half, if not most of its problems, such as corruption, insecurity, election rigging, kidnapping, police brutality among others; such acts have never been legal in Nigeria. I believe if we are enforcing our laws, we will have a better nation. Subsequently, if the Act has obtained the full enforcement it deserves, the problem of police brutality could have been drastically reduced even if it was not totally eliminated and became history in Nigeria.

However, the Act is not free of all lapses and declensions. As the Act doesn’t provide any provision for mandatory superior officers’ supervision on the junior officers who are the major machinery of the torture. The Act should have provided for compulsory time to time report of torture by the head of all security units to the Attorney General; this will be very helpful in the enforcement of the provisions of the Act. The Act should have provided sufficient damages for the tortured victim instead of allowing him to seek the damages elsewhere. The Act ought to have put all the medical expenses on the security officer in case any injury is sustained during the act of torture. The act also lacks the provision for mandatory complain by any other officer witnessed or get to know about the torture after it has been done. The liability under the Act should also be imposed on any civilian who instigated or paid any officer to torture someone for his personal interest.

It is therefore humbly recommended that the above lacunae should be filled through amendment, and we finally call for the domestication of the Act in all the 36 states of the federation, for the provision of the Act to be enforced on other security agencies which are not federal Government’s agencies such as police and Army. This is sacrosanct for protection of the fundamental rights of Nigerians, It's very unfortunate that the body established and equipped to protect citizens’ lives and properties turned to become the greatest threat to the lives and properties they were meant to protect.

Article written by: Alkasim Abubakar