UN recently released a damning report highlighting the inadequacy of measures to end torture and ill-treatment of detainees in Nigeria. In this report, YEJIDE GBENGA-OGUNDARE examines the vicious cycle of enforcement amid the violence currently taking place in the country with a prominent Silk, Femi Falana, lending his voice.
In a report by the United Nations, the head of the UN Subcommittee on Prevention of Torture (SPT), Shujune Muhammed, following a recent visit to Nigeria to assess detention centres for men, women, and children, as well as police stations and criminal investigation departments, stated that “the situation in most places of detention is abysmal. Legal safeguards must be immediately implemented, and the current impunity of perpetrators for acts of torture must end. We were confronted with a climate of hostility and faced access issues in several places of detention.”
The second visit of the committee was between September 8 to 19, 2024 to assess the treatment of individuals in detention, and whether the country had strengthened its capacity to protect the human rights of people deprived of liberty, including through the proper functioning of a National Preventive Mechanism (NPM). The SPT delegation visited numerous places of deprivation of liberty.
“The situation in most places of detention is abysmal. Nigeria must urgently take measures to prevent torture and ill-treatment, and to improve conditions of detention, especially in police stations and other similar facilities.
“Legal safeguards must be immediately implemented, and the current impunity of perpetrators for acts of torture must end. It has been 10 years since the first SPT visit, and Nigeria is yet to establish a functional national preventive mechanism. This unfortunately shows that the prevention of torture and ill-treatment is not taken seriously by the State party, and the horrific situation we have documented speaks to this. We urge authorities to urgently finalize the establishment of an independent functional preventive mechanism,” Shujune said.
The delegation also met with the Minister of Justice, parliamentarians, judges, prosecutors, and other relevant authorities, the Bar association, civil society organizations, as well as UN agencies and at the end of the visit, it presented its confidential preliminary observations to the Government of Nigeria, highlighting its serious concern about the lack of commitment from authorities in preventing widespread torture, ill-treatment and in improving conditions of detention.
The UN report claimed that the ill-treatment and torture of suspects by security operatives especially the police resulted in needless loss of lives, in spite of the existence of laws like the Anti-Torture Law of Nigeria, 2017, aimed at curbing the excesses of stakeholders.
Its section one imposes an obligation on the government and law enforcement agencies to ensure that all persons, including suspects, detainees and prisoners are always respected and that no person under investigation or held in custody is subjected to any form of physical or mental torture.
Knocks
The Rule of Law and Accountability Advocacy Centre (RULAAC) recently stated that Nigeria has failed to fulfill its voluntarily undertaken obligations under regional and international human rights and humanitarian laws prohibiting torture, calling for the enforcement of the anti-torture law.
RULAAC through its executive director, Okechukwu Nwanguma, while commemorating the 2021 International Day in Support of Victims of Torture, said the culture of violence inherited from the colonial police remains within the Nigeria police yet “the Nigerian Constitution prohibits torture. The African Charter on Human and People’s Rights (Ratification and Enforcement) Act prohibits and criminalises torture. The Anti-Torture Act was passed and signed into law in 2017. The Administration of Criminal Justice Act (ACJA), which repealed and replaced the colonial Criminal Act and Criminal Code, was passed in 2015 after Lagos State had passed the Administration of Criminal Justice Law (ACJL) in 2007 and revised it in 2011. Many other states have followed suit by adapting and passing versions of the ACJL in their various states”.
Nwanguma further stated; “The violence against persons (Prohibition) Act was passed in 2015. The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) was passed in 1981; Nigeria ratified it without reservation in 1985, signed the Optional Protocol in 2000 and ratified it in 2004. Nigeria has also domesticated the Child Rights Act. The new Police Act passed and signed into law in 2020 also criminalises and expressly prohibits the use of torture by the police. The framework of legal standards on policing in Nigeria also includes international laws and treaties and laws accepted by or applicable to Nigeria as a member of the international community.
“Despite these enactments, commitments, reforms and ‘revolutionary changes’ in criminal justice laws and legislation, the practice of torture remains widespread in law enforcement practices in Nigeria just as lawlessness and violence remain the defining features of national life in Nigeria.
“The culture of violence inherited from the colonial police remains within the Nigeria police. Many police officers still believe that torture is a legitimate means of interrogation. Police training has not succeeded in changing this colonial culture and orientation of violence and subjugation. Many citizens also leave with the wrong notion that torture is a standard and legitimate way to extract the truth. But torture is a crime in Nigeria, as seen from the array of local laws and international legislation and standards that Nigeria subscribes to. It is also a transnational crime classified among crimes against humanity under the Rome Statute.
“It is our view that the government has not demonstrated genuine commitment to end torture and the culture of violence in Nigeria. President Buhari’s shoot-at-sight orders and the Inspector General of Police’s orders to police officers to act without regard to the rules of engagement and without sensitivity to the respect and protection of human rights all help promote the culture of violence, including torture.
“Several laws that aim to promote professionalism and respect for human rights in law enforcement practices are not strictly implemented and enforced by the leadership at both law enforcement and political levels. All staff of the Nigeria Police ought to be conversant with and have access to these applicable laws and standards. However, in its 2006 report, the Presidential Committee on Police Reform acknowledged that ‘these important regulatory books that all officers must acquaint themselves with are either in short supply or no longer in circulation,” he argued.
NHRC decries poor observance
The issue of torture is a long-term menace in Nigeria; it has been identified by many stakeholders over the years with no visible improvement seen despite advocacies. In December 2023, the Solicitor General of the Federation and Permanent Secretary, Ministry of Justice, Beatrice Jeddy-Agba, called on judges and prosecutors in the country to ensure full implementation of the Anti-Torture Act (2017), noting that the implementation of the Act has yet to meet the reality it espouses.
Since 1975, Nigeria has been a signatory to the United Nations Treaty Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torturing suspects to extract information, or to subdue them.
Section 34 of the Nigerian Constitution provides that every individual is entitled to respect for the dignity of his person, and accordingly (a) No person shall be subject to torture or inhuman or degrading treatment.
The Anti-Torture Act was established to put an end to torture and other forms of inhuman treatment. However, many people in country have fallen victims to inhuman treatment by security operatives.
“This legislation, borne out of our collective commitment to human rights, stands as a testament to our pledge to eradicate the scourge of torture from our society. I encourage each one of you to actively engage, share your thoughts, and provide invaluable insights. Let this be a space for candid dialogue, constructive criticism, and, most importantly, the formulation of practical strategies to bridge the implementation gap,” she charged.
The Executive Secretary, National Human Rights Commission, Chief Anthony Okechukwu, also highlighted the fact that the Anti-Torture Act is yet to translate into an impactful implementation while the Country Director of Amnesty International, Mr. Isah Sanusi encouraged the government to put effective training and framework in place for investigations by security operatives, adding that “training and framework for investigations should be put in place. The security agencies should use modern and sophisticated methods to get information from suspects.”
Justice Ibrahim Bubba, a retired judge of the Federal High Court, equally weighed in at an event, noting that apart from the security operatives, inmates also perpetrate torture and there is need for the Anti-Torture Act to take cater for that. He also stated that, there is need for prosecutors and judges to look at the confessional statement and interrogate the statement for evidence of torture during trials.
“Let us thoroughly interrogate confessional statements when they are presented before us as prosecutors. For instance, why will a sane man deny an act five times and all of a sudden admit to the crime?” he asked, encouraging the prosecutors and judges to carry out trial within trial to ensure that victims of torture standing trials in court get the needed justice” he charged.
Falana’s plea
Speaking on prohibition of torture in Nigeria, Femi Falana (SAN) highlighted that Section 32 of the 1979 Constitution provides that every individual is entitled to respect for the dignity of his person and accordingly, no person shall be subject to torture or to inhuman or degrading treatment while Article 5 of the African Charter on Human and Peoples Rights Ratification and Enforcement Act, Cap A9, Laws of the Federation of Nigeria 2004 provides that all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
“In utter breach of the above provisions of the Constitution and the African Charter, the police and other security agencies subjected lowly placed Nigerian citizens to torture in detention facilities, markets and other places. In Mogaji V. Board of Customs & Excise (1982) 3 NCLR 552, the armed agents of the defendant invaded and raided markets in Lagos and seized contraband goods. In the process, some of the traders were brutalized.
“The victims sued the defendant for damages in the Lagos high court. Adefarasin CJ held that it was a violation of the constitutional prohibition of inhuman or degrading treatment to organize a raid with the use of guns, horse-whips and tear gas in a market in the course of a purported search of contraband goods and to injure custodians of such goods. The judge opined that ‘Those in authority in customs and excise matters ought to intensify methods for apprehending offenders at the point of entry of goods into the country as it becomes more difficult to do so afterwards’.
“Notwithstanding that section 34 of the 1999 Constitution equally guarantees the fundamental right of every citizen from torture, inhuman or degrading treatment, the police and other security agencies continued to subject poor citizens to horrendous torture. In 2007, the Government of Nigeria was indicted in the report of the then United Nations Rapporteur on Torture, Mr. Manfred Nowak. In his detailed report, Mr. Nowak said, ‘Police shoot prisoners, beat them and hung them from the ceiling for long periods… detainees in Nigerian police cells were frequently tortured to extract confessions’.
“The Rapporteur also found that torture is an intrinsic part of how law enforcement services operate within the country. In particular, he confirmed that the police engaged in ‘flogging with whips, beatings with batons and machetes, shooting suspects in the foot, threatening suspects with death and shooting them with power cartridges. . . as well as ‘suspension from the ceiling or metal rods in various positions and being denied food, water and medical treatment’, Falana alluded.
According to him, following such international embarrassment and indictment by local human rights bodies, Nigeria ratified the Anti-Torture Convention of the United Nations in 2007 and the Optional Protocol in 2017, while the National Assembly domesticated and enacted the Anti-Torture Act in 2017. He pointed out specifically that, the Anti-torture Act 2017 has criminalised torture, cruel, inhuman and provided protection for victims and witnesses of torture.
According to him, “Section 1 of the Act has imposed an obligation on government to ensure that the rights of all persons, including suspects, detainees and prisoners to freedom from torture are respected at all times and that no person under investigation or held in custody is subjected to any form of physical, mental or psychological torture.
“Section 2 titled ‘Acts of Torture’ defines what amounts to torture thus: torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to – obtain information or confession from him or a third person; punish him for an act he or a third person has committed or suspected of having committed; or 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: systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach; food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten; electric shocks; 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; the submersion of head in water or water polluted with excrement urine, vomit or blood; blindfolding; threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts; confinement in solitary cells put up in public places; confinement in solitary cells against their will or without prejudice to their security; prolonged interrogation to deny normal length of sleep or rest; and causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.
“Section 8 of the Act 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 away the victim’s right to institute a civil claim in court for damages or compensation for the torture.”
On how to stop the menace, Falana said “in order to stop the practice of torturing lowly-placed suspects to make confessional statements during the investigation of criminal offences, Sections 15 of the Administration of Criminal Justice Act 2015, {makes compulsory that} the taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audio virtual means. “Section 17 thereof further provides that the statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an officer of a civil society organization or a Justice of the peace.
“Even though the Administration of Criminal Justice Act became effective in May 2015, confessional statements are still obtained by force in the absence of lawyers, leading to trial within trial during the prosecution of criminal cases.
“However, in Federal Republic of Nigeria.v. Akaeze [2024] 12 NWLR (Pt. 1951) 1 the Supreme Court held that it is mandatory for law enforcement agencies in Nigeria under sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 (“ACJA“) to record electronically confessional statement of suspect during criminal investigation in an audio-visual format. See also Friday Charles v. The State of Lagos (2023) 13 NWLR (Pt. 1901) 213.
“It is public knowledge that, in spite of the clear provisions of the Constitution and other local and international human rights instruments, the fundamental right of children, indigent citizens and criminal suspects to freedom from torture, cruel and degrading treatment is routinely violated in all states of the Federation and the Federal Capital Territory. Hence, it has become necessary for the National Human Rights Commission, the Nigerian Bar Association and the human rights community to mobilise Nigerians to expose and report private individuals and public officers whenever they contravene the provisions of the Anti Torture Act 2017,” he concluded.
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