ANTI-TORTURE ACT 2017 - ISSUES AND IMPLICATION FOR POLICE OFFICERS[1].

INTRODUCTION

The Anti-Torture Act 2017 was passed by the 8th National Assembly and signed into law by President Mohammadu Buhari on 29th December 2017.  Prior to the coming into effect of the Act, there was no law in Nigeria whose sole objective is the prohibition and punishment of torture and other forms of cruel, inhuman or degrading treatment. Although Section 34 of the Constitution provides that (1) every individual is entitled to respect for the dignity of his person, and accordingly (a) No person shall be subject to torture or to inhuman or degrading treatment; the Constitution did not explicitly state that the freedom from torture, cruel and inhuman treatment is a non-derogable right. This perhaps explains the acceptance and continued use of torture, cruel, inhuman and degrading treatment by law enforcement officers. The Anti-torture Act 2017 fills the existing legislative gaps by explicitly making the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right, criminalizing torture and protecting victims and witnesses of torture.

FRAMEWORK OF THE ANTI -TORTURE ACT 2017

The Anti-Torture Act 2017 is a very concise legislation. It has a title, explanatory memorandum and 13 sections. 
Section 1 of the Act titled  ‘Duty of Government’ imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture. It admonishes government to adhere to domestic and international standards on absolute condemnation and prohibition of torture.  

Section 2 titled ‘Acts of Torture’ defines what amounts to torture. It states that ‘(1) torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to – (a) obtain information or confession from him or a third person; (b) punish him for an act he or a third person has committed or suspected of having committed; or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind’. It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:
  1. Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach
  2. Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten,
  3. Electric shocks
  4. Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds
  5. The submersion of head in water or water polluted with excrement urine, vomit or blood
  6. Blindfolding
  7. Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts,
  8. Confinement in solitary cells put up in public places
  9. Confinement in solitary cells against their will or without prejudice to their security
  10. Prolonged interrogation to deny normal length of sleep or rest
  11. Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.
Section 3 titled ‘No justification for torture’ is the stand out provision of the Act. It states that no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It prohibits secret detention facilities, solitary confinement, incommunicado detentions where torture may be carried out. It makes it very clear that evidence obtained from torture is inadmissible in any court except for use against a person accused of torture.

Section 4 titled ‘Right to complain’ allows a person alleging that torture has been committed, whether the person is the victim of the offence or not, a right to complain to the police, National Human Rights Commission or any other relevant institution or body having jurisdiction over the offence. It provides that the victim and complainant must be protected.
Section 5 titled ‘Assistance to filing complains’ provides that a person who has suffered torture or any interested party on his behalf may seek legal assistance in the proper handling and filing of the complaint from the Human Rights Commission/NGOs/Private persons.

Section 6 titled ‘Right to examination’ expands the Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.  

Section 7 titled ‘Liability’ provides that a person who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal; the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates. It makes clear that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.

Section 8 titled ‘Penalties’ provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years. If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take way the victim’s right to civil claim in court for damages or compensation for the torture.

Sections 9, 10 and 11, titled ‘Regulatory Agency, Education Campaign, Rules and Regulations’ respectively empowers the Attorney General of the Federation and other law enforcement agencies to ensure effective implementation of the Act. This includes training and education of personnel involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. It also empowers the Attorney General of the Federation with the approval of the President to makes rules and regulation for the effective implementation of the Act.
Section 12 and 13 are ‘Repeal and Citation’ sections.

SIGNIFICANT FEATURES OF THE ANTI-TORTURE ACT 2017
  • The Anti- Torture Act 2017 provides a comprehensive definition of torture. It goes on to give elaborate instances of what constitutes torture.
  • The Act criminalizes torture. It prescribes offences and penalties for any person who commits torture or aids, abets, counsels or procures any person to commit torture.
  • It makes freedom from torture a non-derogable right. It states clearly no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It states further that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.
  • It expands Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.
  • The Act protects victims and witnesses of torture.
  •  The Act allows for personal civil action in damages and compensation for torture.  
EFFECT OF THE ANTI - TORTURE ACT ON THE POLICE
Before the enactment of the Anti-torture Act 2017, torture by the police was seen more as a civil wrong except when death occurs. The police and other law enforcement officers having custodial powers could get away with torture as the law against torture was not clear and punitive enough.  The coming into effect of the Anti-torture Act 2017 has fundamentally changed this.  Torture is now officially a crime. A police officer can be prosecuted for torture; aiding, abetting or procuring any person to commit torture.  A police officer and or any other law enforcement officer can no longer rely on emergency powers or ‘orders from above’ as justification for using torture to obtain information or extract a confessional statement.

The criminal liability of police officers under the Anti-Torture Act 2017 is specific to the individual persons connected to the act of torture.  This liability could be direct or indirect.
According to Section 7(1) of the Act  “a  person”  who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; (2) a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal (4) the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.  

The Anti-Torture Act 2017 has also expanded Miranda rights to include the right to examination. A Police officer is now obligated to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation. 

CONCLUSION

The Anti-torture Act 2017 is an unsung legislation with far reaching implications for law enforcement in Nigeria.  The National Assembly by passing the Anti-torture Act 2017 has dealt a serious blow to the practice of torture.  The challenge however will be enforcement.  We are hopeful that the Attorney General of the Federation and other relevant stakeholders will work together to put in place mechanisms to ensure compliance so that torture can be eliminated in Nigeria.  


[1]
Paper presented by Collins Okeke, Senior Programmes Officer, The Human Rights Law Service (HURILAWS) at the Training of Trainers on Torture Prevention Strategies at Area E Police Station, Festac, Lagos. A LEDAP/UNDEF/NCOT partnership project titled: “Community Mobilization against Torture in Nigeria”.


The 6th World Congress against the Death Penalty was held 21-23 June 2016 in Oslo, Norway at the Opera House. I was privileged to participate in the congress. It was exciting meeting with, debating and sharing knowledge and experience with hundreds of abolitionists from different parts of the world. The two day event was packed full with two plenary sessions, six roundtables, six workshops and nine side events. I was able to participate in discussions on the following topics: Progress and setbacks in Asia lessons learnt; The political use of the death penalty in counter terrorism; Legal, social, and medical perspectives on protecting individuals with mental disorders from the death penalty; The importance of National Human Rights Institutions to the abolitionist cause; The Draft Protocol to the African Charter on Human and Peoples Rights on Abolition of the Death Penalty in Africa; Facing the Challenges of alternatives to the Death Penalty.

It was encouraging to hear at the Congress that China is reforming by reducing crimes to which the death penalty applies. They amended their criminal laws removing 9 crimes punishable by death including: smuggling weapons, ammunition, nuclear materials or counterfeit currency; counterfeiting currency; raising funds by means of fraud; arranging for or forcing another person to engage in prostitution; obstructing a police officer or a person on duty from performing his duties; and fabricating rumors to mislead others during wartime. It is the second time China has reduced the number of crimes punishable by death over the past 5 years.
Some countries in Africa (including Nigeria) and the Middle East appear to be doing the opposite by extending crimes to which the death penalty applies in the guise of fighting violent terrorism, even when there is no proof that the death penalty can stop terrorism. I was not surprised to hear complaints of how Egypt misuses the fight against terrorism to silence the opposition, criminalize human rights related activities and more generally violate human rights.  The best way to solve crime is to prevent it or at best apprehend the offender. When a criminal justice system is too weak to resolve crimes and apprehend offenders, the penalties, no matter how severe will have no deterrent effect.

The session that generated so much interest amongst African participants was the session on the Protocol to the African Charter on Human and Peoples Rights on the Abolition of the Death Penalty. The draft protocol was introduced during the first conference on the death penalty in Africa organized by the African Commission in collaboration with Benin Republic in Cotonou, sometime in July 2014; it was supported by many representatives of AU Member States, Members of Parliament, National Human Rights Institutions and Civil society Organizations. The African Commission on Human and Peoples Rights (ACHPR) officially adopted the draft protocol at its 56thordinary session in April 2015 and submitted it to the AU for adoption.

It requires member states to commit to protecting the right to life and abolishing the death penalty while respecting their sovereignty. This protocol is unique because it is indigenous to Africa. It shows the will of African governments to openly deal with the question of death penalty and prove the importance of this issue on the continent. The general trend in Africa is to abolish the death penalty. As of 1 January 2016, the majority of African Union’s Member States have legally abolished the death penalty (19) or apply a de facto moratorium on capital punishment (18); only a minority retains the death penalty (17). Our Federal Government as a matter of fact needs to change course by ratifying this protocol.

The session on mental illness and intellectual disability highlights gaps in most criminal justice systems, especially the distinction between Mental illness (what we call insanity) and intellectual disability. Nigerian law for instance recognizes insanity when proved as an exemption to criminal liability for capital offenses. However, it is unclear on other forms of mental health problems like intellectual disability (often referred to as mental retardation or learning disability) and personality disorders.  Mental retardation is a condition in which a person’s mental capacity has not developed during childhood and adolescence leaving the person less able to adapt to independent life and decision making. Personality disorder is not a mental illness that can be treated with drugs or therapy but rather constitutes a behavioral condition in which the affected person can lack empathy and understanding of others and can disregard social and legal conventions.
In its 2014 moratorium resolution, the UN General Assembly, called on states not to impose the death penalty on individuals with mental or intellectual disabilities. The General Assembly’s resolution reinforced long standing principles prohibiting such executions under international law. Nevertheless, few countries have enacted sufficient protections for persons with mental illness or intellectual disability. Lawmakers, judges, lawyers also lack awareness of the varied symptoms of mental illness, and fail to understand the different between mental illness and other disorders.

I was excited to hear that our National Human Rights Commission has taken interest in the campaign for abolition of the death penalty in Nigeria. The question of abolition and related issues such as the right to fair trial and conditions of detention are entirely related to what they do. It is important to engage even further this often neglected player and rally new and often reluctant institutions to the abolitionist cause. Finally, there is urgent need to think very deeply about alternatives to the death penalty. When the death penalty is abolished, what next? The solution cannot simply be life sentence without parole; it should take cognizance of the victims of crime and give hope to condemned persons. My general assessment is that great progress has been made around the world but a lot more needs to be done. It is my hope that at the next congress a lot of the challenges identified would have been resolved and a lot more countries would have abolished the death penalty.

SUPREME COURT JUDGEMENTS ON GOV. POLLS: A GOAL OR OWN GOAL




The Supreme Court surprised bookmakers on 27th  January and 3rd February 2016 when it decided the governorship elections in Abia, Akwa Ibom and Rivers states in favour of Okezie Ikpeazu, Udom Emmanuel and Nyesome Wike of  the People’s Democratic Party (PDP). Many had predicted the opposition candidates would carry the day. Unfortunately that was not the case.
The apex court disagreed with decisions of the lower courts especially in Rivers and Akwa Ibom and validated returns of the Independent National Electoral Commission (INEC). The Supreme Court has not provided reasons for its decisions but many believe their Lordships may have overruled evidence from the card readers.
The apex court decision is a big win for the PDP but the bigger question is; where do we go from here? Can the PDP or any opposition party going forward be able to defeat incumbent APC in a federal election without card readers? It is not impossible, but certainly will be very difficult.
The card readers we had hoped would empower the voter and create a level playing field for all political parties and candidates. But if the card readers are discountenanced at least until incorporated into the Electoral Act; what happens if the National Assembly now populated by the APC fail to make provision for card readers in the Electoral Act?
The country may be back to square one. A situation where free and fair elections will again be at the benevolence of the President. In my estimation, the PDP may have sacrificed a system that would have guaranteed their comeback to power on the altar of these three states. Our Supreme Court may have also inadvertently truncated a process that would have sanitized our elections.  We can only hope and pray the APC led National Assembly take the higher ground by ensuring card readers are incorporated into the Electoral Act.

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