Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) protects the right to life. Section 33(2), though, determines that:
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.
This provision by the Constitution is not in conformity with international standards as it allows the use of firearms in defence purely of property.
The Constitution also prohibits torture and inhuman or degrading treatment.S. 34(1)(a), 1999 Constitution of Nigeria.
Section 214(1) of the Constitution establishes the Nigerian Police Force. However, the Force's organisation, duties, and powers are set out in the 1943 Police Act.
1966 Covenant on Civil and Political Rights (ICCPR)
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||State Party|
1998 Rome Statute of the International Criminal Court
1981 African Charter on Human and Peoples' Rights
|1998 Protocol to the African Charter on the African Court||State Party|
|Article 34(6) declaration regarding individual petitions||No|
Malabo Protocol on Amendments to the African Court of Justice and Human Rights
Police Use of Force
A range of laws and order govern police use of force in NIgeria. Sections 3 and 4 of the 1945 Criminal Procedure Act (generally applicable in the Southern States of Nigeria) provides that:
3. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
4. A person arrested shall not be handcuffed, otherwise bound or be subjected to unnecessary restraint except by order of the court, a magistrate or justice of the peace or unless there is reasonable apprehension of violence or of an attempt to escape or unless the restraint is considered necessary for the safety of the person arrested.
The 1960 Criminal Procedure Code (generally applicable in the Northern states of Nigeria) also contains provisions relating to the use of force by police officers. Section 37 provides that "an arrested person shall not be subjected to more restraint than is necessary to prevent his escape". Section 102 also permits the use of force by police officers to disperse unlawful assemblies or riots. The extent of the force allowed in this instance is not defined.
The 2015 Administration of Criminal Justice Act (applicable in the Federal Capital Territory and other federal courts) also has provisions regulating the use of force by police officers. Section 5 of the Act provides that:
A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
(a) there is reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court.
Section 8(1) of the Act reiterates the right to dignity of person of a suspect. It reads:
(1) A suspect shall:
(a) be accorded humane treatment, having regard to his right to the dignity of his person; and
(b) not be subjected to any form of torture, cruel, inhuman or degrading treatment.
In relation to the dispersal of unlawful assemblies, Section 73 of the 1916 Criminal Code (as amended; generally applicable in the Southern States of Nigeria) provides as follows:
If upon the expiration of a reasonable time after such proclamation made, or after the making of such proclamation has been prevented by force, twelve or more persons continue riotously assembled together, any person authorised to make proclamation, or any police officer, or any other person acting in aid of such person or police officer, may do all things necessary for dispersing the persons so continuing assembled, or for apprehending them or any of them, and, if any person makes resistance, may use all such force as is reasonably necessary for overcoming such resistance, and shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused harm or death to any person.
Police Force Order 237, titled Rules of Guidance in the Use of Firearms by the Police, stipulates as follows:
A Police officer may use firearms under the following circumstances:
(a) When attacked and his life is in danger and there is no other way of saving his life;
(b) When defending a person who is attacked and he believes on reasonable grounds that he cannot otherwise protect that person attacked from death;
(c) When necessary to disperse rioters or to prevent them from committing serious offences against life and property.
N.B. remember that 12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation before the use of firearms can be justified.
(d) If he cannot by any other means arrest a person who being in lawful custody escapes and takes to flight in other to avoid re-arrest; providing the offence with which he is charged or has been convicted of is a felony or misdemeanor; and
(e) If he cannot by any other means arrest a person who takes to flight in other to avoid arrest, provided the offence is such that the accused may be punished with death or imprisonment for 7 years and above.
Paragraph 6 of the Order provides:
Fire should be directed at the knees of the rioters. Any ringleaders at the forefront of the mob should be singled out and fired on. Only the absolute minimum number of rounds necessary to suppress the riot should be used. NEVER UNDER ANY CIRCUMSTANCES WILL WARNING SHOTS BE FIRED OVER THE HEAD OF RIOTERS.
These provisions in Order 237 are extremely permissive and fall foul of international standards for the use of firearms by law enforcement. However, the permissive provisions in Order 237 are made possible by the broadness of section 33 of the Constitution, and also relevant provisions of the Criminal Code.
In February 2019, on the eve of national elections, the President issued a shoot-to-kill order to the military against anyone caught in the act of stealing ballot boxes. If implemented this would be a serious violation of international law.
Use of Force in Custodial Settings
The 1972 Prisons Act oestablishes the Nigerian Prisons Service.S. 1, 1972 Prisons Act.It also regulates the use of force by a prison officer. Section 10 of the Act (Use of weapons) provides as follows:
(1) Subject to subsections (4) and (6) of this section, a prison officer may use weapons against a prisoner escaping or attempting to escape, but resort shall not be had to the use of weapons unless the officer has reasonable grounds to believe that he could not otherwise prevent the escape.
(2) Subject to subsections (5) and (6) of this section, a prison officer may use weapons on any prisoner engaged in any combined outbreak or in any attempt to force or break open the outside door or gate or enclosure wall of a prison, and may continue to use weapons so long as the combined outbreak or attempt is being prosecuted.
(3) Subject to subsection (6) of this section, a prison officer may use weapons against a prisoner using violence to the officer himself or to any other prison officer or person if the officer using the weapons has reasonable grounds to believe that he or that other officer or person, as the case may be, is in danger of life or limb or that other grievous hurt is likely to be caused to him.
(4) Before using firearms against a prisoner under subsection (1) of this section, a prison officer shall give warning to the prisoner that he is about to fire.
(5) No prison officer, if there is a superior officer present, may use weapons of any sort against a prisoner under subsection (2) of this section except under the orders of the superior officer.
(6) The use of weapons under this section shall as far as possible be to disable and not to kill.
(7) Every police officer who is for the time being serving as an escort guard or as guard in or about a prison for the purpose of ensuring the safe custody of any prisoner in the prison shall have all the powers and privileges granted to prison officers under this section.
Two principal organs are provided for under the Constitution for the supervision of the Nigerian Police Force: the Nigerian Police Council and the Police Service Commission. Article 30 of Part 1 of the First Schedule to the Constitution describes the functions of the Police Service CommissionThe Police Service Commission was formally established by the Police Service Commission (Establishment) Act 2001as dismissing and also exercising disciplinary control over officers.
The Nigerian National Human Rights Commission (NHRC) also serves as an oversight mechanism as it has powers to investigate alleged violations of human rights.See the National Human Rights Commission Act 1995 and the National Human Rights Commission (Amendment) Act 2010.
Views and Concluding Observations of United Nations Treaty Bodies and Special Procedures
The Committee on the Rights of the Child, in its Concluding Observations in 2010 on Nigeria’s Periodic Report on the implementation of the Convention on the Rights of the Child, noted
with utmost concern ... reports that torture and other forms of ill-treatment are widespread in police custody, and particularly at reports that children as young as 11 years of age have been held in custody in inhuman conditions in the Criminal Investigation Department (CID). .Committee on the Rights of the Child, Concluding observations on the report of Nigeria, UN doc. CRC/C/NGA/CO/3-4, 20 June 2010, §38.
In his report on his 2006 mission to Nigeria, the then UN Special Rapporteur on extrajudicial, summary and arbitrary executions, Philip Alston, noted the flawed nature of Police Order 237. He noted that the rules were "deeply flawed" and that "they provide close to a carte blanche to the police to shoot and kill at will." Report of Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Philip Alston, Mission to Nigeria, UN doc. E/CN.4/2006/53/Add.4, 7 January 2006, §46.He recommended that:
Police Order No. 237 should be amended immediately to bring it into conformity with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The resulting emphasis should be on proportionality, on the use of lethal force as an absolute last resort, and only “when strictly unavoidable in order to protect life”. Thus, the possible escape of an alleged robber who presents no direct threat to the lives of others, cannot justify shooting to kill. Report of Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Philip Alston, Mission to Nigeria, UN doc. E/CN.4/2006/53/Add.4, 7 January 2006, §47.
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, in his 2007 report on his mission to Nigeria, also stated:
In Nigeria, torture and ill-treatment are widely practised in police custody; they are particularly systemic in the Criminal Investigation Departments (CID). Torture is an intrinsic part of the functioning of the police in Nigeria. This unacceptable state of affairs must end. The Government must take immediate and effective measures to ensure that this message permeates every level of every law enforcement agency in Nigeria.Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Mission to Nigeria, UN doc. A/HRC/7/3/Add.4, 22 November 2007, §63.
International Pen and Others (on behalf of Saro-Wiwa) v. Nigeria
In this 2000 case, the African Commission for Human Rights found a violation of Article 5 of the African Charter for Human and People’s Rights (which provides for the right to human dignity and the prohibition of torture, cruel, inhuman and degrading treatment).
One of the victims in the case, Ken Saro-Wiwa, was allegedly ‘kept in leg irons and handcuffs and subject to ill-treatment including beatings… during the first days of his arrest.”International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998), §80.The Commission noted that ‘there was no evidence of any violent action on his part or escape attempts that would justify holding him in irons."International Pen and Others (on behalf of Saro-Wiwa) v. Nigeria (2000) AHRLR 212 (ACHPR 1998), §80.
Hussaini Haruna Coomassie v. Inspector General of Police and Others
In this 2011 case before the Federal High Court in Abuja, the court found a violation of Sections 33(1) (right to life) and 34(1) (right to dignity) for the shooting of the applicant on the arm by men of the Nigerian Police; and a violation of section 34(1) for firing shots at the applicant’s vehicle and subsequent injuries to his arm.
The applicant was driving into the Police Headquarters when the respondents opened fire on his car in a bid to stop his entrance. The court noted that while the police had the power to arrest and apprehend offenders, there is nowhere in the law where they are permitted to “shoot at an unarmed person simply because he was driving trying to enter the force headquarter[s].”Suit No. M/1080/2009, Judgment, 19 May 2011, p. 10.
David Alunyo v. Inspector General of Police and Others
Here, the Federal High Court in Abuja, in finding in favour of the applicant in 2012 in a case involving alleged torture in police detention, noted that:
the applicant was subjected to grave inhuman condition, indignity and brutality which is not expected of any civilized police force. The conduct of the affected police officers who handled the investigation left much to be desired. It is roundly condemnable. A person or state agents who are called upon to deprive other citizens or persons of their personal liberties in the discharge of what they consider to be their duty should strictly observe the civilized forms and rule of law.Suit no. FCT/HC/M/5449/09, Judgment, 19 June 2012, p. 9.