Constitutional Amendment: How Constitution Empower Police To Kill Nigerians

 [ Masterweb Reports ] – “In furtherance of our contributions towards the attempts to give Nigeria and Nigerians a people-oriented Constitution, the leadership of International Society for Civil Liberties & the Rule of Law, again, wishes to bring to the attention of your public committee the existing ouster clauses in the Chapter Four of the Constitution of Nigeria 1999 for immediate amendment so as to bring them in conformity with regional and international standards. As you may know, ouster clauses are those immunity and impunity oriented sections, subsections and paragraphs deliberately inserted into the constitution or statutes either to frustrate the application and enforcement of their mother provisions or to provide an escape route under the law for….–Intersociety

 

Ref: Intersociety/NG/002/012/HOR/NA/ABJ/FRN

 

The Clerk/Secretary, House of Reps Committee on Constitution Review
Thro
Honourable Victor Afam Ogene, Member, Representing Ogbaru Federal Constituency
Room 0.28, House of Reps New Building Extension, National Assembly Complex
The Three-Arms-Zone, FCT, Abuja, Nigeria.

 

Dear Clerk/Secretary,

 

Ousting The Ouster Clauses In The Chapter Four Of The Constitution Of Nigeria 1999

 

Above subject refers.

 

(Onitsha-Nigeria, Sunday, November 18, 2012)-In furtherance of our contributions towards the attempts to give Nigeria and Nigerians a people-oriented Constitution, the leadership of International Society for Civil Liberties & the Rule of Law, again, wishes to bring to the attention of your public committee the existing ouster clauses in the Chapter Four of the Constitution of Nigeria 1999 for immediate amendment so as to bring them in conformity with regional and international standards. As you may know, ouster clauses are those immunity and impunity oriented sections, subsections and paragraphs deliberately inserted into the constitution or statutes either to frustrate the application and enforcement of their mother provisions or to provide an escape route under the law for their violators usually the State actors.

 

Ouster clauses are inherent in the Constitution of Nigeria 1999 especially in her Chapters Two and Four. Those in the Chapter Four have been responsible for high incidences of police killings/ torture, long pretrial detentions or detention without trials, long detentions arising from committal proceedings, abandonment/death of gunshot victims and abandonment/ non-State compensation of the victims of violent crimes in Nigeria, etc. The notorious Order 237 of the Nigeria Police Force, under which it kills Nigerians mindlessly for sheer reasons of crime fighting and prevention, is constitutionally backed by relevant subsections of Sections 33 and 35 of the Constitution. These subsections are in conflict with their mother sections and inconsistent with the African Charter on Human & Peoples’ Rights, the Universal Declaration of Human Rights, the International Covenant on Civil & Political Rights, the UN Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power, the Basic UN Principles for the Use of Firearms by the Law Enforcement Personnel and the UN Code of Conducts for the Law Enforcement Officers, all of which Nigeria has either signed, ratified or domesticated.

 

The US Constitution, proclaimed in 1776 and enacted for American public in 1789 has undergone various amendments including her 14th amendment of July 28, 1968 so as to be brought in tune with the yearnings and aspirations of Americans taking into account modern realities. Her libertarian concept (rights of US citizens first) and eminence over other indigenous and foreign laws is still well pronounced all over the world. In a like manner, the egalitarian concept of the EU Rights Convention (recognition of the rights of Europeans side by side with the rights of the non-Europeans) is also traditionalized. The prominence and eminence of the Nigeria’s 1999 Constitution over other indigenous and foreign laws is clearly stated in the case of Gani v IGP/FGN. Practically speaking, the country’s Constitution must at all times be the worthy mother of all laws under her midwifery by way of periodic credible and popular amendments otherwise she runs the risk of being a mother without breasts. The Constitution under reference must at all times be brought in conformity with the regional and international standards. The yearnings and aspirations of Nigerians to be captured in periodic Constitutional amendments such as the ongoing are local contents that must be purified so as not to be repugnant to the international standards. It is, therefore, fundamentally incontestable that some subsections and paragraphs of the 14 sections of the Chapter Four are repugnant to the regional and international rights and jurisprudential norms. As a result, we dutifully recommend for the re-working of the following subsections and paragraphs under the Chapter Four:

 

1. Under Section 33(1): Right to Life, its subsection 2 contains ouster clause to wit: A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use, to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary:

 

33(2) (a) for the defence of any person from unlawful violence or the defence of property;

 

33(2)(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or 2(c) for the purpose of suppressing a riot, insurrection or mutiny

 

Our Observations: Within the contemplation of the 1999 Constitution; our questions are: what is 1. Reasonably necessary permitted by law? 2. What constitutes unlawful violence under which a Nigerian can be killed extra-judicially? 3. What is riot or insurrection?

 

Answers to these questions are not provided by Part IV of the 1999 Constitution under Interpretation, Citation & Commencement (definition section). Unlike reasonable time which is defined by Section 35(5), none of them is constitutionally defined, thereby creating room for their abuse and misinterpretations by relevant State-actors, particularly police officers. For instance, among many war and crime experts, it is agreed that war is an act of violence with more than 999 casualties. Also, empirically speaking, conflict is different from dispute.

 

Therefore, we recommend that those undefined terms should be constitutionally and unambiguously defined. Also, in the modern riot control trends, live bullets are no longer in use, but rubber bullets and other non-lethal human body control kits. Insurrection as an act of war with its globally defined weapons of war and insurrection as an act of non-violent protest with instruments of civil protest should be constitutionally differentiated and stated. Under Section 33(2)(b) the death of a citizen in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; it should be constitutionally stated that the use of lethal weapons and maximum force (guns and other deadly weapons) in the course of any State arrest particularly with respect to non-violent crimes is forbidden. The only global exception or defence to this is the invocation of the right to self defence if under deadly attack with the application of force proportionate to one applied against those State-actors under attack.

 

Under the foregoing circumstances, the doctrine of Intervening Force should no longer be made a blanket defence for State and non-State actors. For instance, if a passerby gets killed by a bullet fired by a State-actor in the course of exchanging fire with his or her violent attacker, he or she should be sanctioned for unprofessional conduct and tried for manslaughter, because he or she is not trained and armed to miss his or her professional targets. These are in line with the spirit and letters of the UN Code of Conducts for Law Enforcement Officers and the UN Basic Principles for Use of Firearms by the Law Enforcement Personnel. The victim if alive should be treated promptly and unconditionally by the State. If the victim dies, the State should adequately compensate his or her family with public apologies for misuse of public procured weapons. Specifically, the use of guns and other deadly weapons to carry out the arrests of suspects suspected of committing non-violent offences or offences carrying the penalties of fines, one day to six months imprisonment and six months to three years imprisonment, that is to say strict and statutory liability offences, simple offences and misdemeanors, should be constitutionally forbidden.

 
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