Since the publication of the President’s statement on snatchers of ballot boxes paying with their lives for their illegality, I have come across so many opinions justifying extra-judicial execution of such violators of electoral law based on the provisions of section 33(2) of the 1999 Constitution.
My intention in this brief note is not to contradict the statement of the President, despite its inelegant and questionable construction, knowing that the legality of the use of force by law enforcement officers is a matter which is to be determined based on the particular circumstances leading to such use of force and that mere snatching of a ballot box may be combined with other surrounding circumstances that will necessitate the use of force to stem an imminent threat of death or serious injury. However, this academic intervention is inspired by the worrisome trend revealed in these opinions, to canvas an interpretation of the law that justifies extra-judicial murder or execution based on a statutory defence provided in the Constitution, without properly showing the limits of such a defense as interpreted by our apex Court. Such disservice to the law is indirectly emboldening the resort to self-help and extra-judicial killings by persons who are not aware of both the international and national regulation of the use of force and firearms. This will indeed cheapen the lives of our people and brutalize the psyche of citizens, thereby reducing us to the members of the legendary “suicide club” or a reversion to that state of nature where “homo homini lupus’ (man is a wolf to another man).
This is a very brief contribution which will not attempt to x-ray all the extant laws on the use of force by law enforcement officers especially the notorious Police Order No. 237 which had been criticized by Philip Alston, UN Special Rapporteur and other human rights stakeholders as being deeply flawed, because it provides close to a carte blanche to the police to shoot and kill at will. Such a thorough handling of the subject is best reserved for an academic audience that has the requisite time and focus for such detailed discourse. The cursory analysis of the law in this piece, will reveal that snatching of a ballot box or any other crime for that matter that is not accompanied with such violence that presents an imminent threat of death or serious injury to the law enforcement agents or other law-abiding citizens, does not qualify as a situation that will justify the use of lethal force to deprive the suspect of his right to life.
constitutional/statutory limitation on the right to life
Section 33(2) a and b of the constitution 1999 as amended provides:
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, TO SUCH EXTENT AND IN SUCH CIRCUMSTANCES AS ARE PERMITTED BY LAW, OF SUCH FORCE AS IS REASONABLY NECESSARY –
(a) for the defence of any person from unlawful violence or for the defence of property:
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) for the purpose of suppressing a riot, insurrection or mutiny (capitalization supplied for emphasis)
Before considering the decision of the Supreme Court in IBIKUNLE V. STATE (2007) 2 NWLR (Pt.1019) 546, which involved the extra-judicial execution of a suspected criminal by a member of the Nigerian Police Force, you may wish to observe that the constitutional defense provided in this section for lawful use of force is limited by the following requirements
- That the use of force must be to the EXTENT PERMITTED BY LAW
- That the use of force must be IN SUCH CIRCUMSTANCES AS ARE PERMITTED BY LAW
- That the use of force must be REASONABLY NECESSARY for the purposes outlined in that section namely, the defence of any person from unlawful violence or for the defence of property, to effect a lawful arrest or to prevent the escape of a person lawfully detained, for the purpose of suppressing a riot, insurrection or mutiny
These provisions are in partial compliance with the requirements of the international Covenants on Human rights which Nigeria is a party to, which requires that any limitation of the human rights must meet the following conditions;
- The restrictions must be contained in a valid law
- The restrictions must be for the legitimate purposes recognized under international law
- The restrictions must be necessary to achieve the set objective
- The restrictions must be a proportionate means to attain the objective being sought. (see for example the decision of the African Court on Human and Peoples’ Rights in the case of Lohe Issa Konate v Burkina Faso (Application No. 004/2013),  2 RCAfCHPR (Part 4) 104
To a thoughtful reader, those provisions entail a study of the extant laws on the use of force to determine the extent and the circumstances in which use of force is permitted in Nigeria, while a determination on the reasonableness or necessity of the force will depend on the case by case consideration of the circumstances necessitating the use of force. Be that as it may, the Supreme Court had pronounced on extra-judicial executions on many occasions, but the most apposite in this regard is the case of IBIKUNLE V. STATE (supra), which was decided on its peculiar facts. My interest in this note is the copious pronouncement of the justices who handled the case that section 33(2) of the 1999 Constitution does not provide a license to summarily execute any suspected criminal. The relevant holdings are reproduced hereunder;
“I am in agreement with the respondent that these statutory defences implied in these provisions set out above cannot avail the appellant, more so THAT NONE OF THEM GRANTED HIM A LICENSE TO SUMMARILY EXECUTE THE DECEASED EXTRA JUDICIALLY. Even if the deceased were to be a thief or a person of dubious character, which the evidence on record does not disclose him as one, the provisions of the Constitution and Criminal Procedure Law (ibid) quoted above DID NOT LICENSE THE APPELLANT TO BE THE COMPLAINANT, INVESTIGATOR, JUDGE AS WELL AS EXECUTIONER, ALL ROLLED INTO ONE… It is a misconception of the provisions of Section 7(1) and (2) of the Criminal Procedure Law (CPL) for the appellant to contend that the use of firearm was reasonable in the circumstances of this case. Even if the deceased were to be a thief or a person of dubious character, a fact not disclosed on the record, the provisions of the Constitution and the Criminal Procedure Law (ibid), did not license the appellant to be the complainant, investigator, as well as the Judge and executioner, all rolled into one… THE USE OF THE FIREARM WAS TOTALLY UNREASONABLE, HIGHLY INTIMIDATING AND UNCALLED FOR IN THE CIRCUMSTANCES OF THIS CASE. This is because as found by the court below, the deceased did not pose any scintilla of danger to the appellant. It was mischievous and unreasonable for the appellant to break the window of the deceased’s apartment, threw teargas into the room and then jumped into the apartment to callously release or pump bullets into the deceased. Per Onu J.S.C in IBIKUNLE V. STATE (supra) (capitalization supplied for emphasis)
Equally W. S. N. ONNOGHEN, J.S.C, stated
“The law does not permit or license any person, be he a policeman or soldier or otherwise to be the complainant, investigator, Judge and executioner all at the same time. In the circumstance of this case and particularly having regard to the provisions of section 33(2)(b) of the 1999 Constitution and section 7(1) and (2) of the Criminal Procedure … appellant has no legal right to summarily execute any person who refuses him ingress into an apartment that he believes a suspect is hiding…. I am compelled by the facts and circumstances of this case coupled with the now notorious extra judicial killings of innocent people by some members of the Nigeria Police to condemn the inability of some members of the police force to realize that the foundation of the police institution is preservation of life and property.”
These are irrefutable statements of hallowed principles of law, which guide the application of section 33(2) of the 1999 Constitution which any official called upon to use force in any circumstance must bear in mind. Failure to caution about this is giving a blanket mandate to law enforcement agents and ignorant folks to engage in extra-judicial killings. Superior officers who give such license may become liable under domestic and international criminal law as co-perpetrators in criminal conduct by sub-ordinate officers which occur as a result of such instructions.
Relevant Provisions Of The United Nations Basic Principles On The Use Of Force And Firearms By Law Enforcement Officials
Principle 2 – Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.
Principle 4 – Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
Principle 5 – Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life; (c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; (d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
Principle 7 – Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
Principle 8 – Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles
Principle 9 – Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
Principle 10 – In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.
Principle 24 – Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.
Principle 25 – Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.
Principle 26 – Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.
While acknowledging that some of these provisions are clearly guidelines rather than legal dictates, the Special Rapporteur has highlighted the fact that they were developed through intensive dialogue between law enforcement experts and human rights experts and that the process of their development and adoption involved a very large number of States and provides an indication of the near universal consensus on their content. Thus, some of its provisions, for example, principle 9 of the Basic Principles reflects binding international law.
These Principles are self-explanatory and do not require elaboration, although if one is interested in seeing how they have been implemented in the laws of progressive Nations, the amended section 49 of the South African Constitution provides a good example of such laws.
Principle 2 may make us wonder how possible it is for insufficiently trained law enforcement agents who are not provided with non-lethal incapacitating weapons for use in appropriate situations, to avoid use of lethal force which they might well consider their only option. This interrogates the neglect of the Police force and the contributory effect such neglect has on its professionalism and on corruption in the administration of criminal justice. However, this is a topic for another day.
The essence of these principles is that use of force is justifiable in the case of the imminent threat of death or serious injury, whether it is in self-defence or defence of others, or to prevent the perpetration of a particularly serious crime, or to arrest a person presenting a danger of an imminent threat of death or serious injury and resisting their authority, or to prevent his or her escape. In all these outlined cases, there must be such an imminent threat of death or serious injury and such use of force or firearms must be only when less extreme means is insufficient to achieve these objectives. Thus, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
The learned Law Lord, Onu J.S.C seems to have had this in mind when he stated in IBIKUNLE V. STATE cited above that “the use of the firearm was totally unreasonable, highly intimidating and uncalled for in the circumstances of this case. This is because as found by the court below, THE DECEASED DID NOT POSE ANY SCINTILLA OF DANGER TO THE APPELLANT” (capitalization supplied for emphasis)
W.S.N Onnoghen, J.S.C, also echoed the rationale behind these principles when he stated inter-alia that he was compelled “…to condemn the inability of some members of the police force to realize that THE FOUNDATION OF THE POLICE INSTITUTION IS PRESERVATION OF LIFE AND PROPERTY.
An instruction to the law enforcement agencies to use deadly force against violators of electoral law must be qualified to properly educate the enforcers of the law, on the permitted circumstances for the use of such force. This is imperative if we value the rule of law and the lives of our fellow men and do not wish to be grant a license to uninformed persons to take the law into their own hands and extra-judicially execute fellow citizens. For a legal practitioner it is also a great dis-service to the temple of justice and violation of the general responsibility of every legal practitioner to uphold and observe the rule of law, promote and foster the course of justice as laid down in Rule 1 of the Rules of Professional Conduct for Legal Practitioners, to advance an interpretation of the law that encourages jungle justice and extra-judicial executions without carefully advising the uninitiated about the safeguards and limitations of the law being touted. Snatching of a ballot box or any other crime for that matter that is not accompanied with such violence that presents an imminent threat of death or serious injury to the law enforcement agents or other law-abiding citizens, does not qualify as a situation that will justify the use of lethal force to deprive the suspect of his right to life. According to the UN special Rapporteur, “human rights standards on the use of force derive from the understanding that the irreversibility of death justifies stringent safeguards for the right to life, especially in relation to due process.
A judicial procedure, respectful of due process and arriving at a final judgement, is generally the sine qua non without which a decision by the State and its agents to kill someone will constitute an “arbitrary deprivation of life” and, thus, violate the right to life”. Thus, “States must not only refrain from killing but must also exercise due diligence in preventing murder”. Finally, it is worth bearing in mind the immortal words of Pope John Paul II that “the promotion of the culture of life should be the highest priority in our societies…If the right to life is not defended decisively as a condition for all other rights of the person, all other references to human rights remain deceitful and illusory.” Every individual who cares not only about his or her own family, but the whole family of man, must take seriously the fight for the right to life of every other human being, within the boundaries of the few recognized limitations to the right to life.
Nonso Robert Attoh is a law lecturer and writes from Enugu.