…‘Inside bail room where you are guilty simply because you have no money’
…Vicious cycle: Torture in police cells despite anti-torture law since 2017
By Levinus Nwabughiogu
Mr. Anthony Okechukwu Ojukwu is the Executive Secretary, National Human Rights Commission, NHRC. Amid the #EndSARS protests, he speaks exclusively to Sunday Vanguard, giving a chilling account of human rights abuses and police brutality in Nigeria. He also points the way forward for the security agency. Excerpts:
Nigeria has been in the news basically because of #EndSARS protests and that brings to mind so many human rights abuses, violations and police brutality stories. What can you really tell us about human rights abuses in Nigeria?
There are human rights abuses in Nigeria but this is not peculiar to Nigeria. There are human rights abuses all over the world. The most important thing is that there should be accountability for human rights violations. So, what we should try and build in our own environment is to ensure that, if there are human rights violations, there should be accountability for them. That is the clearest way to send a signal that you should not violate human rights.
If there is impunity and human rights violations go unpunished, not investigated or not dealt with well, there will be nothing to discourage who violates human rights. And of course it is a notorious fact that within the Nigeria Police, the people, most of the time, don’t get a fair deal, just for the fact that the people are powerless and police is all powerful and, even where they oppress you, they are the people who will prosecute you in court and so, if they oppress you and decide not to prosecute you in court, there is nothing you can do.
So, what has happened is that, first of all, the issue of bail; bail is a right as long as it is not a capital offence but that is not the case. If you are being investigated and you need bail, you have to pay for it. If you don’t have the money to pay, you will be subjected to all kinds of inhuman and degrading treatment; that is a violation of people’s right. In the first place, you start from the beginning of investigation.
How do people get investigated by law enforcement agents? Most times, it is through a simple petition and the Constitution says if you are accused of any offence, you are innocent until proven guilty. But the pattern of investigation presupposes that you are already guilty and you have to now prove your innocence. Otherwise if there is a petition against anybody, there should be investigation, preliminary investigation to find out whether the allegation has any basis for you to now ask further questions, that is the presumption of innocence. So, there is an allegation, the law should presume that the allegation is not true and give you a fair hearing, give you a fair opportunity, carry out some basic investigation to find out whether there is any truth in that petition that warrants further questions but that is not the case.
You see that once there is an allegation against anybody, the first level of investigation is arrest and you are put behind bars and, once you are put behind bars, a whole lot of scenario plays out. If you are able to be extorted and you pay some money, maybe you get your freedom and then you start following up. Then there will be other levels of extortion if you are able to pay your way too, the matter would be looked upon on the facts of it and then you may not end up being charged to court. So, even if you are innocent, you have already been subjected to some discomfort in terms of your arrest and detention and then having to pay money to get your freedom.
That means you are already adjudged guilty by being made to pay money; that is a violation of your rights. But if you are unfortunate and probably you don’t have the money, a lot of other scenarios also play out. If you are not able to bring money for bail within the constitutional period of 48hours, they get jittery and in order to justify holding you beyond the constitutional period, they throw you to the court and when the case gets to court, at times even with the arraignment, you are, of course, now formally charged and then remanded in prison custody. By this you are no longer in police custody and, of course, the case is adjourned and you start struggling to get a lawyer to apply for your bail and all of that.
Then if there is no evidence, the case will be adjourned and adjourned, the police will keep adjourning the case maybe for another six months. You are on a journey until the magistrate now strikes out the case for want of evidence and you must have suffered that six months in detention for an offence you have not committed and you know our people, because of poverty, the ability to now bounce back and claim for their rights for compensation and apology is not there. They say, “Well, I leave it to God”, and they go home and that has been the pattern. Well, there are also criminals.
There is no doubt about that but they are also not spared; even though somebody is a criminal, they are presumed innocent until proven guilty. But at times, the investigation process is more brutal in the sense that probably you are going to be tortured to confess. So, you go to court, more than 80% of the cases brought to court are confessional statements. Now it may be or may not be true but any evidence obtained through torture is not valid evidence and the law was not very clear on the consequences of torture.
The only thing it said was that if it gets to court and there is an allegation of torture for evidence when confessional statement was taken, that there will be a trial within a trial to find out if there was torture and if there was torture, the evidence is not accepted. But the torturer goes back and continues torturing the next accused person. But there is an anti-torture legislation now in place since 2017 and, under that Act, if you torture and it is established you obtained evidence through torture, you will be tried for a criminal offence, but, to the best of my knowledge, I don’t think anybody has been convicted based on that because it is also police that is going to charge their own people for torture. So, it a vicious cycle.
With all of these challenges, how have you been able to curtail those excesses?
We have what we call a human rights desk in police stations but it is not everywhere, but we are trying to see how we can put this from the State Command to the Area Commander and to the Divisional Command of the police. We are trying to train some of their own officers who will help them to make sure that human rights of accused persons are respected at the police station and we also organise training for the police to sensitize them on the right way to do things. Now, the Police Act has also been passed and we try to put in provisions there to reduce the opportunities of violating human rights.
Of course, we also push for the Administration of Criminal Justice Act which has now prescribed that while evidence is being taken from a suspect, there should be some basic guarantees. For instance, it should be recorded with a camera and probably your lawyer or a family member should be around and so on and so forth. But despite all that, the challenge persists. And, of course, you have seen the challenge in the #EndSARS movement which was a total rejection of the way, not only SARS but the entire police on how they have related with citizens over the years.
You just made some submissions to the Attorney General of the Federation where you made some recommendations about some persons that should be prosecuted or sacked. Tell me about that.
It is all about the struggle of the Commission over the years to investigate complaints against brutality by SARS and other officers of the police. I remember that, as far back as 2006, 2007, 2008, the Commission, in collaboration with Network of Police Reforms in Nigeria, carried out public hearing; we called it then Public Hearing on Extra Judicial Killings and Police Abuse. We captured that in our report and hinted that this was becoming a little bit endemic but you know that in our country, we don’t take things serious until they get out of hand. Then, in 2017, the Commission, collaborating with Kleen Foundation and some civil society groups and NBA, we started holding public hearings on police reforms especially on SARS and the police and, while we were doing that, the #EndSARS movement broke out and that attracted the attention of Vice President Osinbajo then and he requested the Commission to embark on a full scale of SARS complaints and then to see how the police could be reformed. And the Commission, of course, went through that process.
We went to many parts of the country, listening to complaints from Nigerians and on the 3rd of August 2019, we submitted a report to the President and he then set up a white paper committee made up of myself, the Executive Secretary, the IG of Police and the Permanent Secretary of the Federal Ministry of Justice to look at it and advise government on the modalities for implementation.
And we did that and submitted that report to government in November 2019. Of course, government has studied the report, accepted our recommendations, but the only recommendation they did not accept was the issue of state and local government police because government was already implementing the community policing programme which, in the wisdom of government, has similarities with the state and local government police. What has happened now is that we are implementing the report. In that report, about 35 people were recommended for dismissal by the police because of the role they had played while 33 were recommended for prosecution. Some others were recommended for demotion in rank while in some cases it was recommended that compensations of about N264million should be paid to victims.
Then there were also recommendations where it was required that the police should reinvestigate some cases and then there were cases where officers who had auctioned people’s property to themselves and refused to surrender to the panel were also to be arrested and prosecuted. So what we did was to follow up on the implementation of the recommendations government had accepted; we had to take dossier and names of those who were supposed to be prosecuted to the Attorney General because the law says that any case requiring prosecution should be given to the AGF. Then, the ones for dismissal were taken to the Police Service Commission and the IGP because they must use internal processes, give them formal queries and dismiss them from the system before you start prosecuting them because that is what the Public Service Rule requires.
Do you think your recommendations will be strictly followed?
Well, it is out there and, today, Nigeria is agitating that the police should be reformed based on that report and I have no doubt in my mind, and that is the only way to show sincerity of purpose in government. If government doesn’t implement that report, that means they will be saying that what the youths are protesting is clear. So, I am sure that report is going to be implemented, action is already being taken. Of course, you know that one of the recommendations was the disbandment of SARS and it has already been done.
One of the recommendations was the amendment of the Police Act which has overdue because it was from colonial time, and that has already been done. And now we are looking at individual officers and even the welfare of the police was one of the issues because, really, let us face the facts, the police officer doesn’t have what it takes for him to do his work optimally. There is no argument about that because if you go to a police station to investigate a case, there is no fuel to put in their car, sometimes no stationery, no light.
Initially, there was a genuine effort to get the place working but, knowing human beings, the thing degenerated into personal interest and both justified case and unjustified case, people were now being extorted, maybe higher charges were being slammed on them and those who couldn’t pay had to suffer for offences they didn’t commit or had to go through torture and this had festered for a very long time. And you can see that the overwhelming complaints of the #EndSARS movement by the young people show that a large percentage of Nigerians have validated this because they have experienced it themselves.
It is just that these were the people who were able to speak out and a lot of people have suffered in silence and from the complaints we have received here, each day, I confirmed that actually that was the state of impunity of SARS officers and other officers of the police.
Many governors have set up judicial panels of inquiry. Are you going to work with them?
Yes, it is obvious because you will see that all the state panels of enquiry have officers of the Human Rights Commission as members, that is the idea. The common denominator in all the panels in the 36 states is the existence of the Human Rights Commission. The panel we set up here at the centre is going to work with all these panels; they will do their own reports but we must collate because majority of the implementation will also be at the federal level especially since the police is a federal institution.
For instance if a police officer is to be dismissed, it cannot be done by the state government, it will be a recommendation to the Federal Government and we have to collate all that and present one report to the Federal Government which we will now have a white paper on and then direct the implementation at the various levels. Those to be prosecuted will be handed over to the state Attorneys-General to prosecute in their states and those to be disciplined will be sent to the Federal Service Commission and the IGP here. So the Commission has to coordinate everything so that we can have one report going to the Federal Government.
The issue of human rights is really taken very seriously by the international community. In terms of rating, how can you rate Nigeria? Does the rating fall short of the international community’s expectations?
Respect for human rights is still a major challenge in Nigeria for the most part of the history of the country. Most of the time, we have had military rule where human rights are not emphasized; in fact, human rights take a back seat and most of us were born and grew up in that circumstance and you can see the young people who had a different orientation thinking differently.
The way the young people took this matter, you can see that it is not acceptable to their system but we the older generation have tolerated it over the years and we think we can keep managing, but the young ones, they can’t take it, so that is a clash of generations. That is the same thing with the international community, they operate in a system that respects human rights. It is bizarre to them to hear that it is happening like this in Nigeria.
So, everybody is talking out based on its own background, but we will all get there. What we need in our system is to ensure accountability and once we start a culture of accountability, violation of human rights will start taking the back seat, but as long as we don’t emphasis accountability, there will be nothing discouraging perpetrators. The basic human being wants to overreach another person but your own right should stop where my own starts and that is the international community understanding of rights. But we are living in a clime where some people feel they are above the law, that they are richer than others, some people worship wealth, a lot of us are poor people, they don’t believe we should all sit on the same chair, so it is something which is both cultural and poverty induced and we need to deal with all of these issues. People need to accept that whether you are big or small, you are equal before the law. Your rights are the same as mine. You respect my own rights and I respect your own rights but where people think their own rights should be given priority over your own rights, then there is a problem.
President Buhari during his national broadcast recognised democratic rights of citizens. But he also emphasized national security. How can you situate both?
They are both complementary. They are not anti each other. If you ensure the human rights of the people, you ensure national security. Why was there this challenge of #EndSARS movement? It was because of social injustice in the past, because of violation of rights.
If you want internal security, if you want internal peace, the sustainable method is to respect the human rights of the people. So, security forces should struggle to enforce human rights because that is what will give them the enabling climate to maintain law and order. The only misunderstanding there is the background of our security officers. It came from the era of military rule which didn’t recognise human rights and that is why if you go to America, the culture of respect for human rights is there, along with national security.
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National security ensures that rights of people are protected at all costs and, with that, you have a peaceful environment where you don’t have the challenge of national security. But we don’t understand it that way here because of our military background, because of past years of military rule. So, we think that we get obedience through suppression, through compulsion and that is the way law enforcement agents see it but that is not how it is supposed to be. Police, for instance, is supposed to protect the rights of the people. So why is it that they are now those brutalizing the people? So, there is a total misconception of what their duty should be.
Their duty should be to protect the rights of the people, not to violate the rights of the people. And if they play their rules of engagement and standard operating procedures which all in writing talked about the protection of the rights of the people, the so-called tension between national security and human rights will not be there, it shouldn’t be there. So it is just a total misunderstanding of roles. So we are all working towards that clear understanding in the near future that national security and human rights will not stoke tension. They will see themselves as complementary to each other and the only sustainable way for national security is for there to be peace and social justice.
Can you give us the statistics of human rights violations if you have?
The figures are not with me here but we handled about 200 cases in the presidential panel which are human rights violations across Nigeria as of 2018, but I can tell you that is just a drop in the ocean because how many people come out to complain? A lot of people in this country accept their fate.
Like in this Commission when people are arrested at times, their relations come here and we go to the police station and we get them released and some of them have overstayed the constitutional period. Now they are entitled to compensation under the Constitution if your rights are violated and if you are unlawfully arrested and detained. But how many of them are willing to pursue that claim? They are okay that you have released them from the police custody, they just go home and if you want to do any other thing they will say “no, no, we are okay” and so that gives you an idea that most people don’t pursue their rights in this country.
Have you had direct brushes with the police in the course of your work?
Of course, in fact most times, police will tell suspects that if they involve Human Rights Commission, they will be in trouble because they think that we are spoiling business for them. They want people who don’t know their rights because they can easily oppress them but when Human Rights Commission comes and tells you your right; for instance, look at bail from which they earn money and when Human Rights Commission comes and they tell you that you are not supposed to pay for bail, so how can the police appreciate Human Rights Commission?
They don’t, especially the corrupt ones. I think we need to look at the level of entering into the police because each time I talk with senior police officers, you have fine officers who are ready to see reasons with you, who are ready to help you but these low ranking officers, some of them, their intention to enter the police is to go and collect bribe or extort people or subjugate people and they are not educationally enlightened enough that even, if you have training for them, it doesn’t sink, it doesn’t have impact on their lives.
But if you are fairly educated first of all, you have your own dignity and you are likely to respect the dignity of others. But for somebody who is not educated, who is poor, who is not exposed, he doesn’t value his own dignity, he has low esteem; in fact he is angry with you if you want to be treated decently.
What should be your recommendations for entry?
I will recommend that the lowest qualification to enter into the police, if we want to get the police we need, is degree because we have enough people who are graduates in this country who can work for the police.
Can you unveil the identity of those recommended for prosecution?
We have already released that. It is in the domain.
Was it done state by state?
Yes, we broke it down state by state or at least zone by zone but for prosecution we have broken into state by state now.
Beyond #EndSARS, some analysts are saying that the protests are actually a metaphor. Do you think bad governance is also what has fueled the struggle?
What is bad governance? The inability to hold erring officers accountable is also bad governance. Forget about other aspects of it because now I don’t want us to go outside of the police we are focused on, and that is part of the challenge the young people had. Initially they focused on a popular, united argument, but immediately they started veering off that, people felt this was becoming political and then you had divided lines and that was the confusion you have because once things get political, people will have divided opinions. But on the issue of police brutality, I think that was a common denominator for everybody, nobody disagreed on that which is a lesson that when you have made progress, you engage and consolidate that and, for the campaign, it was a huge success and we should build on that and consolidate those gains and I believe that this country will never be the same again. Honestly this is a turning point in our history.
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