HOW CITIZENS CAN CURB THE EXCESSES OF SARS – BY FEMI FALANA (SAN)

Popular Nigerian lawyer and human rights activist, Femi Falana (SAN) has penned an interesting piece on how Nigerians can curb the excesses of SARS operatives. It’s a must read!

During the colonial era, the police force was set up to oppress and intimidate the Nigerian people, coerce and extort taxes from them and prevent them from challenging the ruthless exploitation of the human and natural resources of the country by the British colonial regime. For instance, not less than 55 women were brutally killed by the colonial police during the Aba women’s peaceful marches against excessive taxation in 1929. Twenty years later, 21 Enugu coal miners were also killed by the police while protesting against the slave wages paid by the colonial regime.

Similarly, many workers who embarked on strikes to press for improved conditions of service were mowed down in other parts of the colony. In a grand cover up of the serious criminal and racist attacks, the colonial regime never prosecuted the policemen who committed such egregious human rights abuse.

Although Nigeria became politically independent in 1960 the local ruling class did not change the orientation and structure of the police. Professor Claude Ake once observed rather poignantly that “At independence, the form and function of the State in Africa did not change much. State power remained essentially the same, immense, arbitrary, often violent, always threatening.” The situation has the remained the same in post colonial Africa where the police force has remained an integral part of the violent state apparatus. In Nigeria, members of the Nigeria Police Force have continued to behave like an army of occupation by subjecting citizens to harassment and brutalization without any sanction whatsoever.

Militarization of SARS

The Special Anti Robbery Squad (SARS) is a typical offshoot of the colonial police. No doubt, the SARS has acquired notoriety for unleashing violence on the people but its operations are not markedly different from those of the other departments of the Nigeria Police Force and other law enforcement agencies operating in the country. It is pertinent to recall that the SARS was established by the defunct military junta after the civil war to combat the menace of armed robbery. The outfit was set up based on the erroneous belief of former military dictators that armed robbery and other violent crimes could not be contained by armed police personnel. Even though the SARS was constituted by military and police personnel, majority of the members were soldiers. Regrettably, the situation has not changed under the current democratic dispensation.

Since its emergence in the maintenance of law and order in the country the SARS has always operated like a military task force which engages in the reckless brutalization of armed robbery suspects and other “bloody civilians” who are accused of committing all manners of offences. All complaints of the excesses of the SARS have been treated with disdain by successive military and police authorities. So, the officials of the security outfit operate above the law and have since specialized in the horrendous brutalization of the civilian populace.

Upon the restoration of civilian rule in 1999, the demand of the human rights community for the disbandment of the SARS was discountenanced by the federal government. As there was no demilitarization of the society at the end of military rule the SARS was left intact by the various state governments. It ought to be pointed out that apart from the payment of the salaries of the operatives of the SARS by the federal government the task force is fully funded by all the state governments. But despite such funding of the operations of SARS, the state governments have failed to monitor the operations of SARS and halt the harassment and intimidation of law abiding citizens by the paramilitary outfit.

The campaign for abolition of SARS

Notwithstanding that the federal and state attorneys-general are in charge of criminal prosecution in the country the SARS has been allowed to engage in illegal media parade and extrajudicial execution of armed robbery and kidnap suspects. Before the recent popular agitations, several complaints of the illegal arrest, detention and brutalization of suspects and innocent citizens by the SARS were ignored by governments. Owing to the failure of governments to sanction erring operatives of the SARS the impunity of the security outfit has been institutionalised. Having been left in the lurch by governments, many victims of police brutality and other aggrieved citizens have been compelled to join the popular agitation for the abolition of the SARS.

In fact, in responding to the campaign for the abolition of the SARS the authorities of the Nigeria Police Force have made it abundantly clear that the security outfit has come to stay. The official response is not surprising in view of the fact that the neo-colonial State has virtually lost the monopoly of violence to armed gangs in all the states of the federation. In the circumstance, the Nigerian people have no other alternative than to organize themselves and prevent the SARS and other fascist law enforcement agencies from further brutalizing them. In this regard, the organizers of the #ENDSARS campaign deserve commendation for forcing the Inspector General of police, Mr. Ibrahim Idris to embark on the reform of the SARS.

Before now, the police headquarters had a penchant for defending the illegal operations of the SARS. For instance, in 2009, the London based Amnesty International published a comprehensive book on the illegal killings of a number of suspects and other persons by the SARS in some states of the federation. Although the serious allegations of the gross human rights abuse contained in the book were not denied, the police authorities claimed that the publication was designed to expose the federal government to ridicule before the international community!

In 2014, I received many complaints pertaining to alleged disappearances of scores of armed robbery suspects in police custody. In the course of investigating the complaints our law firm found that not less than 532 armed robbery and kidnap suspects were arrested, detained and paraded at crowded press conferences addressed by police commissioners in all the states of the federation. To my utter dismay, majority of the suspects were illegally executed by the operatives of the SARS! My call for a public inquiry into the secret executions of the suspects was ignored by the federal government. But in my private discussions with senior police officers I was informed that in the recent past, a number of notorious armed robbery suspects who were arraigned in court and admitted to bail pending trial had turned round to kill some of the SARS operatives who arrested them. Hence, the resort to the extra judicial execution of armed robbery and kidnap suspects by SARS operatives with the connivance of authorities of the Nigeria Police Force!

Thus, even though armed robbery suspects are regularly paraded by police chiefs majority of them are no longer charged before criminal courts in any part of the country. Hence, when Chukwudume Onwamadike (a.k.a. Evans) was arrested in Lagos last year I had to warn the Inspector-General of Police to ensure that the suspect was not killed while attempting to escape from custody. I also called on the Attorney-General of Lagos State, Adeniji Kazeem Esq. to personally monitor the investigation and prosecution of the suspect. Apart from the alleged notorious kidnapper only a handful of other armed robbery suspects are currently standing trial in Lagos state!

The danger of the resort to self help by the police is that many suspects who are paraded and killed by the SARS were not involved in armed robbery or any criminal offence whatsoever. There are instances when some operatives of the SARS in Lagos state had broken ranks and turned round to advise family members and friends of detained armed robbery suspects to contact our law firm. In such situations we have intervened to frustrate the planned extra judicial execution of such suspects by the SARS. Invariably, they have been charged with armed robbery in the Lagos High Court.

I have noted that in a bid to prevent the courts from indicting the operatives of the SARS for extrajudicial executions, criminal suspects are now shot in the back to give the impression that they were killed while trying to escape from custody! Others are said to have been killed during “shoot out” with the operatives of the SARS. Instead of resorting to such jungle justice I have advised police authorities to request the judiciary to review the granting of bail to armed robbery and kidnap suspects. Whenever the proof of evidence discloses a prima facie case of armed robbery and kidnapping against suspects the courts ought to deny bail and speed up the trial.

While it is commendable that police authorities have resolved to sanction the operatives of the SARS who infringe on the human rights of the Nigerian people they must ensure that all indicted police officers are prosecuted and made to pay part of the damages awarded by the courts to victims of police brutality. This must be complimented by the determination of the federal and state Attorneys-General to give fiat to victims of police brutality to enforce judgment debts awarded by the courts against the Nigeria Police Force. Furthermore, members of the armed forces should be removed from the SARS since it is the constitutional responsibility of the Police to maintain law and order in a democratic society.

At the same time, the police personnel in the reconstituted SARS should be well trained, well motivated and well equipped to deal with dangerous crimes in the society. In addition, the teaching of basic human rights ought to be made compulsory in the police academy and similar institutions. With the recent enactment of the Anti-Terror Act, 2017 by the national assembly the relations and friends of any suspect killed in police custody should press charges against the culprits. Where the identity of the culprits is not disclosed an inquest should be conducted to identify them with a view to prosecuting them. The government should also be made to pay compensation to the family members of suspects who are killed illegally in police custody.

Using the law to curb the excesses of SARS

Over the years, many victims of police brutality have had to approach the courts for legal redress. Majority of the cases succeeded as the courts awarded damages running to hundreds of millions of Naira to the victims of police brutality. But such damages have not been paid to victims as the judgments cannot be enforced against the Police without the fiat of the Attorney-General in line with the provision of section 84 of the Sheriffs and Civil Process Act. Not only are such damages not paid to the victims of police brutality the individual operatives of the SARS indicted by the courts for human rights abuse have also been treated like sacred cows by the authorities of the police and the armed forces. In fact, there have been reports of many indicted police and armed forces personnel who have been rewarded with promotions and appointments. Thus, the efforts of the courts to halt the impunity of the police have not had any positive effect on the society.

However, it is germane to draw the attention of the Nigerian people to the provisions of the Administration of Criminal Justice Act, 2015 which if implemented, can put an end to the atrocities of the SARS and other law enforcement agencies. For instance, the law has banned the police from subjecting criminal suspects to torture or degrading or inhuman treatment. To prevent the torture that is usually meted out to suspects the law has enjoined the authorities to provide facilities for video recording of confessional statements made by suspects during investigation. If bail is refused by the Police a suspect is at liberty to apply to a High Court since every suspect in custody is entitled to bail unless there are cogent reasons why bail should be refused. As a police officer is not competent to admit a murder suspect to bail the application shall be made to the High Court.

The law has also prohibited the Police from dabbling into debt recovery and other civil matters. The arrest of any person by the police in lieu of a criminal suspect has also been banned. Most importantly, the fundamental right of suspects to consult their lawyers before making statements has been recognized and protected. If a suspect is indigent and is unable to hire a lawyer the Government shall engage one for him/her. If any person is not going to be arraigned in a competent court within the maximum period of 24 or 48 hours prescribed by the Constitution the Police shall obtain a remand order from a Magistrate Court. Legal advice in respect of any offence shall be made available not later than 2 weeks after the receipt of a case file by the office of the Attorney-General.

Furthermore, the law requires the Inspector-General of Police to compile the list of arrests made quarterly and enter same in the Central Criminal Registry while the Attorney-General of the Federation shall have a manual and electronic database of all arrests made in the country. An officer in charge of a police station or any other detention centre shall, on the last working day of every month, report to the nearest Magistrate the cases of all suspects arrested without warrant, whether the suspects have been admitted to bail or not. Upon the receipt of the reports the Magistrate shall forward them to the Criminal Justice Monitoring Committee which shall analyse the reports and advise the Attorney-General of the Federation as to the trends of arrests, bail and related matters.

The law has also empowered the Chief Judge of every State to designate Chief Magistrates or senior Magistrates who shall, at least every month, conduct an inspection of police stations and other places of detention within their territorial jurisdiction. During such visitations, the magistrates may order that suspects be admitted to bail or arraigned in competent courts. Based on our law firm’s request, the Chief Judges of Lagos state and the Federal Capital Territory have designated some Magistrates to conduct such visitation. Therefore, the recent announcement of the inspector-General of Police, Mr. Idris to allow the media representatives to inspect detention facilities of the SARS is not a favour.

It ought to be pointed out that victims of human rights abuse have the right to file an application in a high court in the state where the violation has occurred or may occur. Even the dependants or representatives of any suspect killed in police custody or in any other detention centre may file a civil claim in a high court for damages payable by the Nigeria Police Force or any other authority or person. However, indigent citizens who cannot afford the services of legal practitioners to secure the enforcement of their abused fundamental rights have the right to request the Legal Aid Council to provide legal representation for them. In the alternative, victims of human rights abuse have the right to lodge a complaint or submit a petition to the National Human Rights Commission or the Office of the Public Defender or Non-Governmental human rights bodies including the Nigerian Bar Association.

Convinced that police brutality cannot end in an atmosphere of impunity, I am compelled to call on the National Assembly to repeal section 84 of the Sheriff and Civil Process Act which provides that a judgment creditor cannot garnishee the accounts of a public institution without seeking and obtaining the fiat of Attorneys-General. The colonial legacy cannot be justified under section 287 of the Constitution which stipulates that the decisions of the High Court, Court of Appeal and the Supreme Court shall be enforced by all authorities and persons in Nigeria. If the judgment shall be enforced by all persons and authorities why should a judgment creditor seek the leave to enforce a judgment that is binding on the Attorney-General and the government? Happily, the Supreme Court has recently ruled that it is against the rules of natural justice to expect the Attorney-General who has been defeated in court to turn round and grant leave for to the judgment creditor to garnish the account of the government.

Finally, since the human rights community and individual civil rights advocates alone cannot successfully protect the people from the increasing wave of human rights abuse by security forces in the country it is high time that the victims of human rights abuse were mobilized to defend themselves. Therefore, the human rights community should immediately embark on massive enlightenment programmes to empower the people to challenge the infringement of the fundamental rights guaranteed by the Constitution and the African Charter on Human and Peoples’ Rights Act.

About the Author:

Femi Falana is a Senior Advocate of Nigeria, and human rights activist. He contested and lost the governorship election of Ekiti State in 2007 on the platform of National Conscience Party, a party he served as National Chairman in 2011.