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Beyond SARS/SWAT: Application of international norms in domestic policing 

By Festus Oguche
17 November 2020   |   2:55 am
The recent formation of SWAT by the Inspector General of Police (IGP) appears to be a veritable response of the intense #EndSARS protests, but it is bereft of the requisite guarantees and restrictions required of the 21st century institutional policing. Fears are that it is merely a change in nomenclature, and may not portend or…

Port Harcourt-based senior lawyer, Barrister Festus Oguche

The recent formation of SWAT by the Inspector General of Police (IGP) appears to be a veritable response of the intense #EndSARS protests, but it is bereft of the requisite guarantees and restrictions required of the 21st century institutional policing. Fears are that it is merely a change in nomenclature, and may not portend or represent the final end to police brutality in our clime. Skeptics believing that the new outfit will still have the insignia of the same murderous and draconian procedures of the former Special Anti-Robbery Squad (SARS). 

But then, while the IGP has shown a considerable measure of concern by his reactions to the protests, the genuineness or otherwise of the hurried measures he put on the ground is a different kettle of fish altogether. Indeed, beyond the prescription for the psychological test of ex–SARS officers are also real fears about the extent to which the measure will serve as an instrument of reorientation and transformation for the men, outside the realm of effective law and formal. 

While it may not be wholesomely appropriate to opine that the police authorities were merely playing to the gallery apparently to assuage the anger and agitations of the protesters and douse tensions, it is quite in order to approach the development with circumspection, as the measures appear less real and, somewhat cosmetic. 

The flaws and inadequacies in the security architecture of this country have in more recent times become more palpable and visible, apparently flowing the growing complexities inherent in the system, vis–a– vis the rising wave and dimensions of crime. 

For the police, the flaws are deeply embedded in the matrix of its emergence and establishment as a constabulary force, which was essentially meant for the protection of British Colonial interests and a wedge against the growing anti-colonial resentments and agitations that raged through the land at the turn of and a little beyond the first half of the 20th century. This pedigree has become its Achilles’ heel as it has been absolutely difficult for the force to shed itself of that toga that gives it a pro-establishment and anti-people outlook and proclivity in spite of all the several reforms at setting it on the right path towards a modern police agency. Suffice it to state that the recent amendments in the Police Act only amounts to scratching the problem at the surface, as it did not attempt in any manner to inject the necessary ingredients into the police legal framework and operations, sufficiently vigorous to effect the much-needed reforms into the system, beyond the constitutional provisions. 

By the Montevideo convention of 1933, the existence of an effective and efficient police force is one of the notable criteria for the attainment and recognition of statehood. The law enforcement content determines the effectiveness of the controlled territory that makes territorial sovereignty possible. It is obvious that from the circumstances of our current existence, Nigeria is gradually sliding towards the ignominious abyss of institutional failures, unless drastic measures are taken to shore up the reform process that will strengthen the institutions of governance as in this circumstance, the Nigerian Police Force, towards a more pragmatic result-oriented transformation and operational efficacy. 

The defining standards for policing are set by Declarations and Principles under the banner of the United Nations Human Rights System, to which Nigeria participated and committed itself to. This body of conventions, which are apt and pertinent to the existence of a modern police force, is the barometer for measuring globally the effectiveness and efficiency of the modern police force particularly in the area of capacity and professionalism. In other words, the status of a police force in the performance index or stable is incumbent upon the extent or otherwise of its adherence to these rules set by international law, as policing, not being a wholly domestic concern, must adhere to the dictates of universal values and standards set by convention law. 

They are about nine in number, and I shall take time to identify them in this discourse. 

Firstly, there is the Code of Conduct for Law Enforcement Officials approved by the General Assembly resolution 34/149 of December 17, 1979, which defines who is a law enforcement official and sets out the different international human rights norms that form part of his terms of engagement and which he must strictly adhere to. It sheds the light on the path, which the average police officer must tow in his service to the community and in the course of protecting persons against illegal acts, in a manner that is consistent with the high degree of responsibility required by their profession. It is stern on the issue of the use of force stating unequivocally that a police officer or any law enforcement official shall not in any circumstance inflict, instigate or tolerate any act of torture or other cruel inhuman and degrading treatment or punishment on persons – shall respect and protect human dignity and maintain and uphold fundamental rights at all times and in every situation. It emphatically states that in countries where police powers are exercised by military authorities or state security forces (as has become the current norm) their policing roles must be specifically defined by law.

Secondly, there is the Basic Principles on The Use of Force and Firearms by Law Enforcement Authorities, which was adopted by the 8th UN congress in Havana Cuba, on September 7, 1990, of which Nigeria was fully represented and participated. The main purport of that convention was anchored on the imperatives of the role of the police in the protection of the right to life, liberty, and security of the human person in accordance with the articles of the UN Declarations and Covenants on human rights, all of which Nigeria is a signatory. The United Nations Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman Degrading Treatment, just as the name suggests, prescribes procedures for fact-finding and documentation of victims of torture by domestic police institutions. States shall ensure that reports of torture or ill-treatment are promptly and effectively investigated, even in the absence of a complaint.

The current practice of investigating personnel asking or demanding for monies for transportation, accommodation, and other logistics from the complainants or family of the victims is a direct breach, by Nigeria of this all-important convention, as it enjoins all states members of the UN to keep at the disposal of the persons conducting the investigation, (who also must be independent), all the necessary budgetary and technical resources for effective investigation. There are also the UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power; Principles on the Effective Prevention and Investigation of Extra–Legal, Arbitrary and Summary Executions; UN Standard Minimum Rules for Non–Custodial Measures (otherwise known as the Tokyo Rules). Equally worthy of mention here is the UN Body of Principles for the Protection Of All Persons Under Any Form of Detention and Imprisonment, which provisions run contemporaneously with the UN standard minimum Rules for the Treatment of Prisoners, making such detentions and imprisonments subject to effective judicial control. Persons in detention shall be subject to treatment appropriate to their unconvicted status, which principle conforms to the constitutional presumption of innocence of persons until proven guilty by courts of competence.

These UN conventions and instruments are comprehensive and touch such wider areas as the protection of juveniles deprived of their liberty, total elimination of all forms of violence against women and other vulnerable persons, protection of persons from enforced disappearance, principles on the role of lawyers, and very importantly the UN Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly physicians in the protection of prisoners and Detainees against Torture and other cruel, inhuman or degrading treatment or punishment. 

The non–application of these universal rules and standards in our policing system explains why Nigeria’s law enforcement values are at the lowest rungs of the ladder in law global ratings. The absence of these noble tenets explains the large failings in police operations around the country. Ordinary Nigerians look at the force now more like a foe than a friend. It also explains the proclivity of the operators of the institution to view members of the public as threats to their survival and existence than as vested stakeholders in the drive to protect lives and property. Sadly, while smaller countries within the continent, Malawi, Gambia, Ghana, Togo, Namibia have upped the scale in their law enforcement machinery, in conformity with these noble goals and aspirations in the UN instruments, the authorities in Nigeria appear to feign ignorance of their existence and reduced policing with its attendant duties and responsibilities to crude disproportionate forms of archaic law enforcement strategies and values. While the quick response by the IGP to the demands of the protests is quite laudable, the formation of SWAT may turn out to be a little too hasty. Truth is that no amount of internal restructuring or reforms can eradicate the low level of law enforcement that has become the lot of our policing system. The situation is exacerbated by the fact of the involvement of the military authorities in the business of law enforcement in the absence of rules defining their operational modes and bounds as required under international norms. 

It is clear that Nigeria is acting in defiance of its international obligations, in the conduct and the performance of its law enforcement authorities in the area of observance and protection of human rights. Thus, the current engagement in violent, predatory, and harmful acts, which are within the full range of prohibitions under the constitution, our penal codes, and international human rights norms bring police operations around the country to a sub-standard level of indiscretions and unprofessionalism. Thus, it is not for the government or the police authorities to go applying quick response measures without tackling the underlying fundamental gaps in the system.

The solution lies in the entrenchment of viable long-lasting reforms that will make for the emergence of a credible and refined Nigeria Police Force through the observance and adherence to the time tested global norms and standards. They are the only guarantees for the emergence of a functional and credible police force that will conform to standards, and meet the yearnings and expectations of its citizenry for a force that will be properly positioned to tackle the current challenges of violence and crimes within the polity and stand the test of time. 

Chief Oguche is a legal practitioner based in Port Harcourt, Rivers State. 

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