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Debate over new police Act and implications for criminal prosecution

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Nigeria police station. Photo/ AFP

On September 17, 2020, President Muhammadu Buhari signed the Nigeria Police bill 2020 into law. This Act repeals the Police Act Cap. P19, laws of the federation, 2004 and enacts the Nigeria Police Act, 2020 to provide for a more effective and well organized Police force driven by the principles of transparency and accountability in operations and management of resources.

The Act also establishes an appropriate funding framework for the Police force in line with what is obtainable in other federal government key institutions in the bid to ensure that all police formations nationwide are appropriately funded for effective policing.

According to its explanatory memorandum, the Act promises to enhance professionalism in the Police through provision of increased training opportunities for officers and other persons employed by the police; and to create an enduring cooperation and partnership between the Police and communities, in maintaining peace and combating crimes nationwide.

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Part of the novel contents of the new Act, which has also become contentious, borders on the power of prosecution. According to section 66 of the Act, lay Police officers will no longer prosecute suspects in courts. Others include the provision for the establishment of community policing committee, humane treatment of arrested suspect, serving of lawful court summons between the hours of 6am to 6pm only by any police officer, among other noble provisions.

On account of these new provisions, an online media group, Elombah TV organized a webinar where participants examined the Act and its implication for criminal prosecution. Principal partner Ogbah Isaac and Co. Bar Isaac Ogbah queried the insertion of “non-qualified legal practitioner can prosecute” as captured in section 66(2) of the Act. For purposes of clarity, the section under reference is reproduced here. It reads: “A police officer may, subject to the provisions of the relevant criminal procedure laws in force at the federal and state level, prosecute before the courts those offences, which non-qualified legal practitioners can prosecute.”

Ogbah believes that what the Act intends to give, it also attempted to take on the other hand. While it intends to stop non-lawyers from prosecuting suspects, it still talks about “those offences, which non-qualified legal practitioners can prosecute.”

Querying the wordings of section 66(2) of the Act, Ogbah said: “The question is; are there offences that non-qualified legal practitioners can prosecute? The answer is no. In federal level, we have the Administration of Criminal Justice Act (ACJA). Section 106 of ACJA, which states clearly that prosecution of all offences in any court shall be undertaken by only the following persons; Attorney General of the federation (AGF), the law officer in the office of the ministry of justice or department, a legal practitioner authorized by the AGF, a legal practitioner authorized to persecute by this Act or any other Act or National Assembly.

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“This new law talks about subject to the provision of the relevant criminal procedure in force at the federal or state. In the state under the Administration of Criminal Justice Laws (ACJL), who are those qualified to persecute matters in court? We either have the AGF, the law officers of the AGF as the case may be, Attorney General of the state, legal practitioners acting under the authority of the AGF, a public officer prosecuting in his official capacity, and any other person so authorized by the AGF, private prosecutor and a police officer who is equally a lawyer.”

He argued that police officers are not listed as prosecutors in the ACJL that many states have. “But this Act that we are talking about says subject to the provisions of the relevant criminal procedure laws in force in the FCT. So if this new police Act is saying that it is subject to those laws, it means that we must definitely have recourse to those laws. And what are the extant laws guiding prosecution in our courts? They are the ACJA in the federal courts and the ACJL in the state courts as the case may be. So if there are no policemen provided for in the ACJA, and the ACJL, are there offences where laymen can prosecute? I have not found such and I stand to be corrected.”

According to Ogbah, Section 66(3) is very interesting. His words: “It says there shall be assigned to every police division at least one police officer, who is a legal practitioner. It envisages that if every police division has a lawyer assigned there, before any Investigative Police Officer (IPO) drops a charge and goes to file it, the lawyer must give his verdict.” He believes that with such provision, there is an assurance that every charge that goes to court stands a chance of success.

Another lawyer, Mr. Emmanuel Ewere, believes that there is little or no difference between the 1943 Police Act and the current one. “They just aligned the Act with the provisions of the ACJA. Nevertheless, they still retained the power of the lay policeman to prosecute. This is more of a challenge to the Nigerian system because we already have a complex system where the office of the Attorney General is fused with that of the Director Public Prosecution (DPP),” he said, adding that giving the police both investigative and prosecutorial powers would not give the system a fair balance.

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Ewere explained that most of those lay policemen are only more knowledgeable in arrest, investigation and enforcement, but wondered how they go to court and try to muscle out an experienced and trained lawyer who has gone through the rudiments of the practice. “Actually, in 1943 when they brought in the lay policemen, we had few lawyers then. So this empowered policemen to actually handle prosecution just as our constitution made qualification for the office of the president the ability to read and write. That was how the policeman was actually given the power to prosecute. Even lay magistrates presided over criminal trials back then. But now that we have a lot of lawyers, I think that the current law ought to promote the process by which only lawyers who are trained in the act to prosecute undertake the task,” he said.

He argued that Section 66 of the Act, which made reference to sections 174 and 122 of the 1999 constitution as it relates to the powers of the attorneys general, actually empowers the police to still prosecute based only on the supervision and guidance of the AG. “The Act did not restrict policemen from prosecuting. So I think we still have a challenge with our criminal justice system,” he declared.

For Bar Obinime Ohaegbu, certain provisions were adopted from the ACJA 2015 and the constitution, especially the chapter four. He maintained that Nigeria needs to do something very fundamental, which is to review the foundation of policing in the country.

He said: “If they want to amend the police Act, we need to have state police. If we could allow the state government to appoint the CJs, judges and all those in their states, and nobody is complaining, why can’t we have the police, since whatever the police do still ends up in the court?

“If the state high court and federal high court can be in a state, why cant we agree that there is the need to have state police? I believe that what we have in the Act is short of my expectation.”

Emphasising the weakness of the Act, vocal lawyer and lecturer, Nigerian Law School, Lagos, Mr. Sylvester Udemezue, stressed that police officers are still empowered to prosecute cases in Nigerian courts. “We are not going to only rely on the provisions of the ACJA or ACJL of states to decide whether police officers have the power to prosecute cases in Nigerian courts. We also have to look at decisions of courts of law, and if we have to go down memory lane, we’ll discover that this started because we didn’t have sufficient legal practitioners from the beginning. Even non-lawyers used to practice in Nigeria until 1914 that the Chief Justice of Nigeria banned all non-lawyers from practicing in Nigeria said.

“It is so amusing that as far back as 1914, non-lawyers were banned from practicing, yet, police officers that are non-lawyers are allowed to practice,” he said.

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Udemezue pointed out that the ACJA does not apply to all courts in Nigeria. “It only applies to High court of the FCT, the magistrate court of the FCT and all federal high courts in Nigeria,” he explained.

Lagos based lawyer, Bar Stephen Azubike, while commending the Act, told The Guardian that the new Police Act evidences the law reform project of the Buhari’s administration. “There are a number of provisions in the new statute that are welcome, especially the one denying the Police general power of prosecution. Having said that, what the Police needs is much more than new law. They need adequate funding and sanitising of the force.

MEANWHILE, the Court of Appeal has ruled that the Police Act 2020 is unconstitutional, saying that it breaches the 1999 constitution as amended.

According to a statement signed by Ikechukwu Ani, the spokesperson of the Police Service Commission (PSC), the court ruled that the Police Act 2020 signed into law by President Buhari, violates the constitutional mandate that established the PSC.

In the ruling, the court held that paragraph 30 Part 1 of the Third Schedule to the 1999 Constitution “which empowers the commission to appoint persons into offices in the Nigeria Police Force except for the Office of the Inspector-General of Police,” has been breached by the Act.

The PSC said the court ruled that ‘no Act of the National Assembly can take away or curtail the power’ of the PSC as stated in the constitution.

“Any piece of legislation or instrument relied upon by the defendants (including but not limited to the Police Act and the Police Regulations) in exercising or purporting to exercise the powers to appoint, promote, dismiss or discipline persons holding or aspiring to hold offices in the Nigeria Police Force, being inconsistent with the provisions of the Constitution particularly section 153 subsection (1)(m), section 153 subsection (2) and section 215(1)(b) of the Constitution of Nigeria 1999 and Paragraph 30 part 1 of the Third Schedule to the Constitution, is invalid, null and void and of no effect whatsoever,” Justice Olabisi Ige held.

With the recent sustained agitations by Nigerian youths for Police reform, together with the decision of the court of appeal cited above, it does appear like an amendment to the new Act is imminent and a necessity.

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