By Uche Anyamele
Police brutality and extrajudicial killing are the norms in Nigeria. Overtime, the Nigeria Police Force, already criticised for being a relic of colonial oppression, has become killing machines, and tools wielded by the rich and powerful to oppress citizens of lesser means. Personal experiences with the police are at best vulgar and coarse communications if the victim is female, and at worst, murder if male.
The Special Anti-Robbery Squad, until its celebrated disbandment recently, was one of the police units, ‘in a league of its own’. Set up during the military era to curb proliferating armed robbery, SARS morphed into specialist torturers, oppressors and covert killers.
Following increased spates of killings by SARS operatives, without redress, citizens began making calls in 2017 to #EndSARS. These calls resulted in perhaps well-intentioned but superficial attempts by the government to disband the organisation, which made no real difference. However, as the killings continued, calls mounted for the government to #EndSARS. This culminated in the physical peaceful protests, which began on Thursday, October 8, 2020 following on the tragic killing of a young man in Ughelli in Delta State.
The police including SARS operatives have been condemned for being corrupt, inefficient and sick killers. But the police force is a microcosm of the Nigerian society – decayed, corrupt, and lacking accountability. From politicians to the ordinary man, our behavior runs the gamut of every imaginable morally reprehensible behaviour.
The right to protest falls within the right to peaceful assembly and association under Section 40 of the 1999 Constitution (as amended). The former part of the section states that ‘everybody shall be entitled to assemble freely…’
Both rights to assembly and association play a crucial role in the existence of a democratic system. The right to assemble is central in protecting the freedom of expression of individuals and groups in peaceful demonstration. The #EndSARS protest was therefore, simply an expression of the right to assemble and express discontent.
Article 20(1) of the Universal Declaration of Human Rights states that everybody has a right to freedom of peaceful assembly and association. Article 21 of the International Covenant on Civil and Political Rights 1966 also provides for the right to peaceful assembly without restrictions, except restrictions that are in conformity with the law and restrictions necessary in a democratic society in the interests of national security or public safety, public order… the protection of the rights and freedom of others.
It has been argued that the protests at the Lekki tollgate infringed on other people’s rights, like the right to liberty. Not necessarily. Surely, the right to life, which the youths were protesting, precedes the right to liberty. Rousseau’s theory of general will – that a society ought to be ordered such that people give up some individual freedom and rights for collective liberty, can be loosely applied here. The collective will of a significant number of Nigerians is that SARS should be disbanded. Apart from a few government officials protecting selfish interests, a majority of Nigerians who have had first and second hand experiences with SARS were sympathetic to the protest and lent their voices to amplify it globally. Thus, most felt that the restriction at the tollgate was a small price to pay for the right of the youths to live, and seemed willing to give up individual rights towards the fight for collective liberty. In any event, there was an alternative route for commuters, the Oniru road.
There is usually some tension between peaceful protesters and police when freedoms of peaceful assembly and expression run contrary to the duty of law enforcement officers to ensure public safety and security. In such circumstances, there are ways that the police can diffuse the tension. For instance, they could identify violent protesters – not that such behaviour was recorded during the protests – and disarm them with techniques such as strategic incapacitation. The police did none of these; it seems that they calculatingly set out to kill peaceful protesters.
Extrajudicial killing, a hallmark of the Nigeria Police Force is contrary to the duties of the police enshrined in Section 4 of the Police Act 2004 which is preservation of law and order, protection of life and property and due enforcement of all laws and regulations with which they are ‘directly charged’. The question here becomes whether the police were directly charged to kill protesters following the curfew announced by the Governor of Lagos State, Babajide Sanwo-Olu, and if they were who charged them.
Section 10(1) of the Police Act on Public Safety and Public Order states that the President can direct the Inspector-General of Police to maintain public safety and order. The governor can also direct the commissioner of police of the state to maintain such law and order, and the commissioner can refer the matter to the President, Section 10 (2). Although there have been denials about who conferred powers on the police, one thing is clear, any directive given to the police to act necessarily requires the President’s permission. It is baffling therefore that the President feigns ignorance of the shooting.
Sanwo-Olu stated that ‘the military’ is the culprit. The question still remains who in the military ordered the shooting. Such blanket identification of ‘the military’ without specifics is another glaring pointer to the lack of accountability in Nigeria.
No matter who charged the military, the charge to shoot protesters, is contrary to Section 33(1) of the 1999 Constitution (as amended) which provides that every person has a right to life save in the execution of the sentence of a court in respect to a criminal offence of which he has been found guilty. Shooting protesters without lawful judicial process is a clear breach of to the Constitution and characteristic of an oppressive regime.
Under Force Order 237, a police officer is allowed to use firearms in certain circumstances. One of such instance is ‘when necessary to disperse rioters or to prevent them from committing serious offence’. From video evidence, the military deployed at the Lekki tollgate were not trying to disperse ‘rioters’ or prevent them from committing serious offences’. The #EndSARS protest was not a riot.
Riots are completely different from peaceful protests. Riot, which emanates from unlawful assembly, is enshrined in Sections 69 and 100 of the Criminal Code and Penal Code respectively. Unlawful assembly is when at least three or more people, with the intent to carry out a common purpose, assemble in such a manner to cause reasonable fear that they would reasonably disturb the peace of the neighbourhood. Unlawful assembly graduates to riots where the assembly actually begins to disturb the peace of the neighbourhood.
Apart from the fact that the #EndSARS protest was peaceful, thus not classified as a riot, the Force Order states that even when firing shots at rioters, the fire should be directed at the knees of the rioters. Never should warning shots be fired over the heads of the rioters. A close look at the video shared by Amnesty International shows a glaring breach of the guidelines. The army fired shots into the crowd and over the head of peaceful protesters.
Sometime in 2019, it was reported that the police wanting to contain the misuse of firearms by policemen launched a revised Force Order 237. In the revised document, the Nigeria Police would adopt the use of taser and stun guns in place of conventional live bullets for low risk operations. Since the protests were peaceful, they could be classified as low risk operations and the police could have employed tasers and stun guns.
Restrictions such as the curfew announced by the governor were also permissible. Where protesters defied the curfew, police would have arrested them. After all, by virtue of Section 10 of the Criminal Procedure Act, the police are allowed to arrest without warrant. This would have given those arrested the chance to go through the judicial process. That is what it means for rule of law to be functional.
Section 12 of the Public Order Act requires that a permit must be obtained from the governor before meeting or procession in a public place. Despite being a tool employed to interfere with right to peaceful assembly, with various conflicting judicial pronouncement, the governor could have used it to quell the protests rather than the shoot.
There were several alternatives to shooting protesters but the military choose the deadliest approach. Since there was no legitimate threat to safety and property the shooting of 20-10-2020 is evidence that the police and government in Nigeria do not respect the right of citizens.
Nigerians are in pain and people are tired of a country that does not work. It would require empathy and honesty from the government to build a better country. Evidence has shown that post-crisis, conflict and wars provide a great platform for countries to start afresh, if handled properly. In the meantime, several things can be done. The government must tender a public apology for its failure to protect the lives of the citizens. The government must specifically identify persons responsible for the shooting and they must be held accountable. There must be compensation for families of victims of 20-10-2020. The regime must undertake that it will take steps to prevent similar violations in the future. There must be continuous engagement with the young people.