Whether or not or not a Police Officer is criminally responsible for an offence dedicated in discharge of his duties
By Boyode Favour Ejaita
(This text doesn’t in any means undermine the nationwide protests)
There’s a deep query of regulation, that has been debated in america courts and the Nigerian courts and a number of different nations. The problem of cops, whether or not they’re criminally responsible for any motion carried out within the execution of their duties.
Over the previous few days, the nationwide protest on the endSARS tag has gained momentum, and lives have been misplaced, sadly.
It’s ironical how the protest is focused in ending police brutality, however the reverse has been the case, as younger males have been gunned down within the protest. Calls have been made for this officers to be arrested and tried.
A query must be answered right here. What’s the place of the regulation? It’s based and undisputed that the best to life is sacrosanct. However after all, there are exceptions to each proper beneath regulation. Because the truism goes, the place one individual’s rights ends one other individual’s personal begins.
The benefit of the regulation is that just about all the things has been deliberate out.
So what’s the place of the regulation on cops taking pictures (which can end result to dying) at protesters throughout a riot or protest? (This text will focus on on the problem of riots)
Part 33(2)(C) of the 1999 structure of the federal republic of Nigeria as amended (hereinafter often called CFRN) supplies thus;
(2) An individual shall not be considered being disadvantaged of his life in contravention of this part, if he dies because of the use, to such extent and in such circumstance as permitted by regulation, of such drive as within reason essential
- For the aim of suppressing a riot, revolt or mutiny.
The literary and mischief interpretation of the above part covers the police officer, if within the occasion of the train of his authorized and official duties he kills somebody. Additionally, it needs to be recognized that, Protesting is an inalienable proper, recognizd by the Structure. RIOTING is against the law. Referring to rioters as protesters infers that their actions aren’t felony when, in truth, they’re. When regulation enforcement professionals take motion towards protesters then it’s seen as authorities brokers oppressing the folks.
It will convey us to the constitutional doctrine of QUALIFIED IMMUNITY
Certified immunity is a judicially created doctrine that shields authorities officers from being held personally responsible for constitutional violations—like the best to be free from extreme police drive—for cash damages beneath federal regulation as long as the officers didn’t violate “clearly established” regulation. It good points its roots from the authorized maxim, Rex Non Potest Peccare which implies, “A king can do no mistaken.”
In Pearson v Callahan( obiter dictum) america supreme court docket upheld the doctrine of certified immunity. Equally, In Fawehinmi v Inspector Basic of police & 2 ors (SC
201/2000)(2002)6 the court docket held inter alia “The police have a discretion, in acceptable circumstances in the way in which they perform their responsibility. When so exercised, it’s only in very apparent and distinctive circumstances…”
If a lawsuit is prima facie introduced towards a police officer earlier than a choose for financial damages, the doctrine covers the officer (as seen within the George Floyd case), if the doctrine is efficiently invoked, the case can be dismissed by the trial court docket. The one exception to this doctrine, is, if the lawsuit is focused at a coverage change, say, police reforms. When is the officer not coated by certified immunity
- A) When he/she violates the individual’s basic proper to privateness pursuant to part 37 of the
1999 CFRN as amended. This additionally signifies that the officer have to be performing on the stated time, on his Constitutional duties pursuant to part 214(2)(B) 1999 CFRN and the Nigeria Police Act 2020. Part 4(1) of the stated act supplies thus; The responsibility of the Police is to stop and detect crimes, shield the rights and freedom of suspects and non-suspects in accordance with the Structure, the African Constitution on Human and Peoples Rights and some other regulation.
- B) If the sufferer’s motion goes towards the regulation.
Now, the ‘B’ half is hard. It’s one thing opened up for in depth debates. Discover that protest are important to any democracy. Riots alternatively can be referred to as civil disobedience. Within the authorized side, protests are authorized, whereas a riot is prohibited. Authorized within the sense that everybody has the best to speech and meeting, riots aren’t, though that is opened as much as debates based mostly on the provisions of part 69 of The Felony Code act which defines a riot as an illegal meeting. And in part 70-73 of the felony code act, the punishment is outlined in keeping with part 36 (12) 1999 CFRN and the precept in Aoko v Fagbemi. Though, there’s a constitutional distinction between riots and protests, the tempo at which among the protests take, it rapidly turns into a riot. In IGP v ANPP (2007) LPELR-8932 (CA) the court docket held that; The best to show and the best to protest on issues of public concern are rights that are within the public curiosity and that which people should possess, and which they need to train with out obstacle so long as no wrongful act is completed.
Riots are civil disobedience as a result of it disrupts public peace, the blocking of roads, vandalism are deemed as social nuisance and that is what turns a protest right into a riot, as seen in Benin and components of Delta state, the place boys destroyed police Infrastructures and wounded cops. It’s worthy of notice to say that part 71 of The Felony Code supplies “any one that takes half in a riot is guilt of a felony, and is liable to imprisonment for 3 years.” And in part 72 & 73 of The Felony Code, a police officer shouldn’t be criminally liable if in quelling a riot, an individual dies.
So, is the officer responsible for offences commited in discharge of his duties. No, he’s not, so long as he meets the calls for of the doctrine and present legal guidelines. Even at that, the police officer ought to act in affordable care. In OMONYAHUY & ORS V IGO & ORS (2015) LPELR+25581 (CA) the court docket cited with approval Zimbabwe case of ZIMBABWE HUMAN RIGHTS NGO FORUM v ZIMBABWE, the court docket held; “firing a gun at somebody is considered the train of deadly drive. The overriding logic of the state of affairs stays the truth that the police have the ability to make use of deadly drive solely as an exception, motivated by a state of affairs of “self defence or in defence of others towards the approaching risk of dying or critical harm.”
Additionally, in AKINYEDE OLAIYA v THE STATE (2017) LPELR-43714(SC) Sanusi JSC held; “in train of official responsibility a police officer is responsibility sure to take essential precaution and in addition to train due care and warning with a view to keep away from inflicting harm, hurt or dying of different individuals.”
Be aware that, the doctrine of certified immunity is a judicial ruling and never a legislative enacted regulation, so it’s open up for debates.
As you go about protesting please watch out. Act protected and keep away from turning the protest right into a riot.
Boyode Favour Ejaita (UNN 100L Legislation)
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