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. A 2007 Supreme Court decision held, however, that this provision does not permit a police officer to “summarily execute any person who refuses to allow him free ingress into an apartment that he believes a suspect has entered”.
The Constitution also prohibits torture and inhuman or degrading treatment.S. 34(1)(a), 1999 Constitution of Nigeria.
Under Section 40, every person shall be entitled to assemble freely and associate with other persons.
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
|1984 Convention against Torture (CAT)
|Competence of CAT Committee to receive individual complaints
|CAT Optional Protocol 1
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
|Article 34(6) declaration regarding individual petitions
Malabo Protocol on 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. The 1960 Criminal Procedure Code (generally applicable in the Northern states of Nigeria) 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.
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.
A longstanding Police Force Order 237, titled Rules of Guidance in the Use of Firearms by the Police, previously stipulated 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.
These provisions in Order 237 were extremely permissive and fell 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 even issued a shoot-to-kill order to the military against anyone caught in the act of stealing ballot boxes. If implemented, this would have been a serious violation of international law.
In October 2019, however, Mohammed Adamu, the Inspector General of the Nigeria Police, told a gathering of senior officers that the force had revised and simplified Force Order 237. He said the redesign would ensure the “protection of fundamental human rights” in policing. The revised Order 237 still allows violent assemblies to be dispersed using firearms--which international law does not--although it is further noted that indiscriminate firing into a crowd is always unlawful and in many other respects the new guidance does move far closer to respect for the right to life. It is provided that:
a Police Officer may use firearms/lethal or potentially lethal force under the following circumstances: -
(a) When attacked and there is an imminent threat that the police officer will be killed or seriously injured, and no other means are available to avert or eliminate the danger of saving his/her life. In such circumstance, a Police Officer would have to prove that he was in danger of losing his life or of receiving an injury likely seriously to endanger his life. It would be most difficult to justify the use of firearms if attacked by an unarmed man. If persons made a concentrated attack upon him, armed with machetes, firearms or bow and arrow or other lethal weapons he would be justified in using a firearm to save his life. In a case where a person fires at him, he would also be justified in firing to defend himself. If attacked by an individual with a heavy stick or machete he would have to prove that other less lethal means available to him were not sufficient to protect his life.
(b) When defending a person who is attacked and he/she believes on proportional grounds that he/she cannot otherwise protect that person being attacked from imminent death or serious injury;
(c) When necessary to disperse violent assemblies, but only when there is an imminent threat of death or serious injury, and less extreme measures are insufficient. In all circumstances, the Force Continuum should guide the officer’s actions.
It remains to be seen if Order 237 will be effectively implemented by the police and if those who transgress it are effectively sanctioned.
Use of Force in Custodial Settings
The 1972 Prisons Act establishes 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.
These provisions seemingly remain in force. The revised Police Order 237, however, stipulates that:
A person charged with or convicted of a simple offence who is escaping from lawful custody shall not be fired upon, except by his/her escape at that very moment poses an imminent threat of death or injury to the police or others.
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
In its 2019 Concluding Observations on Nigeria, the Human Rights Committee expressed its concern:
that the Constitution allows for a broad use of lethal force, including for the defence of property and that the provisions of the Code of Criminal Procedure, the Administration of Justice Act, and Police Order 237 authorize the use of force without adequately restricting the nature of the force and setting out the principles of necessity or proportionality.
The Committee was further concerned
about allegations of the excessive use of force against demonstrators, including the alleged killing of more than 150 members and supporters of the indigenous people of Biafra during Operation Python Dance, on the occasion of non-violent gatherings between August 2015 and November 2016; and the alleged killing of 350 supporters of the Islamic Movement in Nigeria in response to their barricading of roads blocking the passage of a military convoy in December 2015.
While noting that some investigations had been initiated, the Committee regretted the lack of information about the outcome of those investigations and recommendations, including the punishment of the perpetrators and the reparations granted to the victims.
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.
On 21 October 2020, Amnesty International said that at least 12 people had been killed the previous day at Alausa and Lekki Toll Gate in Lagos and hundreds of others were severely injured when police and soldiers opened fire with live ammunition at unarmed protesters. Amnesty said that CCTV cameras had been dismantled to prevent the collection of evidence.
In June 2020, Amnesty International published a report on the Special Anti-Robbery Squad (SARS), a unit of the Nigeria police tasked with fighting violent crimes such as robbery and kidnapping, asserting that SARS continues to commit torture and other human rights violations while discharging their law enforcement duties. The report documents cases of extortion, torture and ill treatment by SARS between January 2017 and May 2020. It reveals a pattern of abuse of power by SARS officers and the consistent failure by the Nigerian authorities to bring perpetrators to justice. It highlights the deficiencies in Nigerian police accountability that contribute to, and exacerbate, these violations.