As the world commemorates the UN International Day in Support of Victims of Torture, YEJIDE GBEDNGA-OGUNDARE brings the effectiveness of the legislation in Nigeria, under microscope.
ACROSS the world, the administration of criminal justice system is beguiled with issues of torture of persons either suspected of having committed an offence or anyone that is unfortunate to get entangled with law enforcement officers from various agencies. And in Nigeria, abuse of suspects is allegedly the norm and a negligible few, believe the slogan ‘police is your friend’ despite it, being a popular mantra of the police force. Indeed, many people hold the belief that security agencies’ uniforms in Nigeria are a tool of oppression and countless cases of abuse have made it difficult to change this perception even among children.
Nigeria has been indicted even by foreign agencies like Amnesty International for being a centre for abuse of people under the guise of upholding the law. And the frequency of such occurrence is what led to the disastrous EndSARS protest in October 2020. Although local and international laws prohibit torture in its entirety, it continues to occur regularly in Nigeria.
And it is with a view to stem the tide of torture and abuse, which has been categorized internationally as a crime, that the United Nations passed the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) obligating state parties to take administrative and legislative steps to prevent torture and inhuman treatment.
Nigeria signed and ratified CAT and the Optional Protocol that followed with the domestication of the law by the National Assembly when it promulgated the Anti Torture Act, 2017, primarily to stem the geometric rise in cases of torture that was rampant in the country and also to fulfill her international obligations. But there seems to be no difference and rather than reduce, torture of victims especially to induce them to speak perceived truths by law enforcement officers continue to rise systematically, though torture remains a crime against humanity globally.
Torture as a crime
Torture is a crime under international law and is prohibited. The United Nations condemns all acts of torture as one of the vilest acts perpetrated by human beings on their fellow human beings. And on December 12, 1997, by resolution 52/149, the UN General Assembly proclaimed June 26, as the United Nations International Day in Support of Victims of Torture, with a view to ensure the total eradication of torture and the effective functioning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Commemoration of the date annually aims to bring to the fore the need for all stakeholders including UN Member States, civil society and individuals to unite and take action in support of the hundreds of thousands of people around the world who have been victims of torture and those who are still tortured today.
Today, 174 nation-states are parties to the Convention.
But globally torture continues on a wide scale; UN Special Rapporteur on torture, Alice Jill Edwards confirmed the increase in the incidents when she said “there is an increase in the use of torture worldwide. It’s partly correlated to the fact that we have more wars going on in this world since 1945. The International Committee of the Red Cross says there are 100 armed conflicts currently going on. And regrettably, with armed conflict comes an uptick in the use of torture and other forms of inhuman treatment.”
The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment was adopted by the General Assembly in 1984 and came into force in 1987. Its implementation by States parties is monitored by a body of independent experts, the Committee against Torture. And in 2002, the Optional Protocol to the Convention against Torture was adopted, a treaty aimed at preventing torture and cruel, inhuman or degrading treatment by allowing for an international inspection system for places of detention.
The Protocol also obliges States to set up independent National Preventive Mechanisms to examine the treatment of people in detention, make recommendations to government authorities to strengthen protection against torture and comment on existing or proposed legislation. It is administered by the Subcommittee on Prevention of Torture. To date, 94 States are parties to the Protocol.
Many legislations, less coordination
While many states have provisions that prohibit torture, in most cases these do not align with the jurisprudential anti-torture framework required by UNCAT. Before the advent of the Anti-Torture Act, the Nigerian 1999 Constitution prohibited torture, but it was not really a crime, and any act or omission that constituted torture usually fell under the heading of a civil claim and could also be prosecuted under the criminal or the penal code. However, most cases were prosecuted as grievous bodily harm, attempted murder, assault or murder. The 1999 Constitution failed to detail what constituted torture; in fact, the use of torture did not diminish under the Constitution. To fully apprehend the present situation in Nigeria, it is important to understand the legislative framework and its compatibility with international standards.
There are also other constitutional safety valves and legislations aside the constitution that border on acts aggregating to torture without calling it expressly by the name. For example, the Penal Code in use, in Northern Nigeria, criminalizes acts relating to torture such as infliction of injury, hurt and grievous bodily hurt as well as homicide and rape with punishment ranging from fines to imprisonment or a combination of both. It also extends to capital punishment if the acts complained of, result in death.
There is also the Criminal Code used in Southern Nigeria, which criminalizes assault, homicide, offences endangering life, rape and excessive use of force. The punishments for these offences range from fines, imprisonment, or combination of both, and capital punishment if the acts complained of, result in death. In addition, the Child Rights Act, 2003 criminalizes offences against the Nigerian child such as child battering, mutilations including facial marks, female genital mutilation, and rape and the Violence against Persons Act.
Regional domestication
At the regional level, the African Charter on Human and Peoples’ Rights 1981 (ACHPR) which is domesticated in Nigeria clearly provides that ‘states should ensure that acts which fall within the definition of torture are offences within their national legal systems’. There is also the African Commission’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) which provides detailed guidance of State Parties’ obligations under article 5 ACHPR.
Before the Act, there was no law that criminalized and punished torture, inhuman and degrading treatment in Nigeria, though there subsists torrents of legal regimes touching on it. There was the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN) which provides a bundle of rights aimed at eliminating torture chiefly amongst which are: the right to dignity of the human person, the right to remain silent, the right to counsel of choice, right to be informed about the facts and grounds of arrest as well as the right to take an arrested person to court within a reasonable time.
Anti Torture Act, 2017 is the first instrument in Nigeria to define and criminalize torture by name but the Act still requires domestication, and despite the fine provisions, it seems not to be backed by political will, intensive sensitization and training of all actors in the criminal justice sector.
The Benue State University Law Journal 2017/2018 | 31 said torture of persons which constitutes grave violation of human rights is neither alien nor new. It added that “history is replete with instances of torture by various countries against citizens, but most often, against non-citizens of the state concerned. The use of torture is so widespread that no country is spared its deployment for assortment of reasons ranging from gathering information, inducing confessions and punishing people considered enemies of the state.”
Where are the gains?
While there are laws that clearly provide for the liability and punishment of perpetrators, the public has yet to see many cases of torture successfully prosecuted.
In 2007, the United Nations Special Rapporteur on Torture concluded that ‘torture and ill-treatment are widespread in police custody and particularly systematic at Criminal Investigative Department (CID). It concluded that torture is an intrinsic part of how Police operate in Nigeria.
Amnesty International found in 2014 that in Nigeria ‘many people are being convicted largely based on ‘confessions’ made to the police under torture’.
In 2015, the United States of America State Department found that in fighting Boko Haram and crime and security in general, ‘security forces perpetrated extra-judicial killings, and engaged in rape, arbitrary arrests, mistreatment of detainees and destruction of property.’
In 2016, Amnesty international asserted that officers of Special Anti- Robbery Squad (SARS) subjected detainees ‘to horrific methods of torture, including hanging, starvation, beating, shootings and mock executions, most times for the purpose of extorting money’ and locally, the Network of Police Reform in Nigeria (NOPRIN) reported that the practice of torture is formally rooted in Nigeria, institutionalized in Police detention centres, with torture facilities referred to as ‘torture chambers’ and officers designated to torture suspects as ‘O/C Torture’ (officer in charge of torture).
In November 2016, the African Commission on Human Rights after undertaking a promotional mission in Nigeria, expressed concern about the allegations of violations of human rights, including excessive use of force by security forces and civilian militia groups and lack of independent investigation into these allegations.
It was said that notable torture techniques include: clubbing of soles and ankles, banging of victim head against the wall, burning of victims with cigarette, hot irons or flames, squeezing or crushing of fingers and ripping out of fingers or toenails amongst others and what is reported of the police is not different from what obtains in other forces or para-military agencies.
By its robust provisions, people wonder why the Act seems unable to curb torture in the society.
‘Why Torture Act is ineffectual’
Speaking on the Act, Tolu Aladejana, a civil society activist stated that the Act has adequate provisions, but still appears faulty because of poor implementation, lack of political will and poor infrastructure to give platform to people that need restitution. She added that the Act gave an elastic definition of torture even beyond that given by CAT and proceeded to give instances of physical torture, psychological or mental torture.
The Act made torture a strict liability offence and made it a non derogable right in Section 3 (1) which provides that no exceptional circumstances whatever exist from derogating from the offence and this is irrespective of whether there is war or threat of war, internal political instability or any other public emergency that may be invoked as justification for torture.
The Act also outlaws secret detention facilities, solitary confinement, incommunicado or similar forms of detention facilities where torture may be carried out and renders inadmissible, any statement obtained as a result of torture in evidence against the victim except for proving the torture itself.
She added that “despite these provisions, investigators, prosecutors and judges continue to rely on the so called confessional evidence to prosecute and convict offenders in most cases stressing that confessions are the best form of evidence. This has made inducement of confessions from suspect to appear as a major incentive for police and other investigatory agencies to commit torture and ill- treatment.”
Part of factors that make the Act exceptional is that it not only imposes an obligation on government to ensure that all persons especially those denied of their liberty are respected at all times and that no person under investigation or held in custody is subjected to any form of physical or mental abuse or torture but also gives to victims of torture the right to complain to the police, National Human Rights Commission (NHRC) or any other relevant institution or body, having jurisdiction over the offence.
It also makes provision for the protection of the victim or complainant.
Gbenga Jones, a sociopolitical commentator stated that “it is virtually impossible to implement the law because there is a downside to the provisions. The persons to whom the complaint is to be lodged are themselves, the perpetrators of the torture and it is doubtful if the law enforcing officer would agree to investigate the act of torture committed by one of their own or a fellow law enforcement agency. Without change of orientation these may act as stumbling blocks towards its successful implementation.”
His assertion was in line with the views of the Global Governance Institute in a report where it said that good laws alone are not enough; “legislation must be backed by political will which is presently lacking in Nigeria.
It added that the lofty intentions of the legislature may not be realized without intensive sensitization and training of players in the justice sector, for effective implementation, noting that presently, little or no effort has been made to sensitize the citizenry of the existence of the Act, let alone train the corrupt and poorly-educated actors in the criminal justice sector, particularly, the police and the prisons,” he added.
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