The Unconstitutional Police Practice Of Removing The Wears Of Suspects During Detention: Practice Guide And Practical Steps To Enforce The Rights To Dignity Of Human Person And Presumption Of Innocence Breached Thereof By Gift Agbagbuo

The right to dignity of human person is one of the rights guaranteed under our constitutional jurisprudence. Particularly, section 34 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), hereinafter referred to as “the Constitution” makes emphatic provision for the said right. The section provides: Every individual is entitled to respect for the dignity of his person, and accordingly:-

1. No person shall be subjected to torture or to inhuman or degrading treatment;
2. No person shall be held in slavery or slavery servitude; and
3. No person shall be required to perform forced or compulsory labour.

We shall now attempt to clarify on key words used in paragraphs a, b, and c above with a view to unveiling the intention of the draftsman under the section. Paragraph (a), meaning of “torture”, “inhuman” and “degrading treatment”.

• TORTURE: According to the Black’s Law Dictionary, seventh edition, the word, torture, means the infliction of intense pain to the body or mind, to punish, extract a confessional information, or to obtain sadistic pleasure.

Similarly, the Google dictionary, defines torture as the action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something.

• INHUMAN TREATMENT:- The Black’s Law Dictionary, seventh edition, defines “inhuman treatment” as physical or mental cruelty so severe that it endangers life or health.

Similarly, the Google Dictionary, defines “inhuman treatment” as lacking human qualities of compassion and mercy; cruel and barbaric.

• DEGRADING TREATMENT:- According to the Google Dictionary, degrading treatment is a treatment that is grossly humiliating and undignified.

Paragraph (b), meaning of “slavery” and “slavery servitude.”

• SLAVERY:- According to the Black’s Law Dictionary, seventh edition, the word “slavery” is a situation in which one person has absolute power over the life, fortune and liberty of another.
• SLAVERY SERVITUDE:- This is simply a situation where one has the obligation to answer to a master, like a servant does.

Paragraph (c), meaning of forced or compulsory labour. (c) FORCED OR COMPULSORY LABOUR:- According to the Google Dictionary, forced or compulsory labour is “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In the same vein, article 5 of the African Charter on Human and Peoples’ Right(Enforcement and Ratification) Act,  makes provision for the right to dignity of human person and freedom from slavery, freedom from cruel, inhuman and degrading treatment or punishment. From our elucidation of the ingredients of the provision against a breach of the right to dignity of human person, it would suffice to posit here that, the crux of what the Constitution seeks to prohibit is unlawful actions of persons and agents of the state( which the police is a principal part of) that tends to humiliate, embarrass, or inflict pain to a person, in such a manner that removes the person’s respect and self-esteem. Hence, acts, such as stripping a suspect off his wears, asking him to sit on the bare floor, etc, are acts done in violation of his right to dignity of his person. Very connected to this right to the dignity of human person, is the right to the presumption of innocence as guaranteed under section 36(5) of the Constitution. The section provides: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. In the case of Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt.106) 652. The Supreme Court held inter alia, that, the term “charged” in the provision of the Constitution, means “accused”. It, therefore, means that since a suspect at the police detention still enjoys the right to be presumed innocent, removal of his wears at the police station without his consent amounts to the presumption of his guilt even before same is pronounced upon by a Court of competent jurisdiction! As such an act is intended to humiliate, shame, embarrass and of course, punish him. PRACTICE GUIDE TO THE ENFORCEMENT OF A BREACH OF THE ABOVE STATED RIGHTS BY THE POLICE. The preamble to the Fundamental Rights Enforcement Procedure (FREP) Rules, 2009, enjoins the Court to: Constantly and conscientiously seek to give effect to the overriding objectives of these rules at every stage of human rights action, especially whenever it exercises any other power given to it by these rules or any other law and whenever it applies or interprets any rule. The said overriding objectives of the 2009 FREP Rules are as follows:

1. The Constitution, especially chapter iv as well as the African Charter shall be expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them;
2. For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions.

These bills include the following:

• The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African region human rights system.
• The Universal Declaration of Human Rights (UDHR) and other instruments (including protocols) in the United Nations human rights system.

From the above, it be could be gleaned that the summary of the preamble and overriding objectives of the FREP Rules is that the Courts are enjoined to discountenance technicalities erected in the way of fundamental rights enforcement and ensure that justice is substantially, speedily and proactively done in fundamental rights cases. However, the onus of proving the breach of the right to dignity of the human person rests on the applicant in line with sections 131, 132 and 133 of the Evidence Act, 2011. Hence, it is trite law that the burden of proof in civil cases is generally on the party whose case will be adversely affected if the particular facts in issue are not proved. See Wilson Esi v. CNPC/BEP International & Anor. (2014) All FWLR (pt. 742) 1813. It is, therefore, incumbent on an applicant for the enforcement of his fundamental rights to disclose in his supporting affidavit, factual situations that pointedly reveal the fact of the breach of his rights as guaranteed by the Constitution or any other law. It is when this is done and there is no credible factual counter-affidavit to match what has been deposed to in the applicant’s affidavit in support or justifiable reply on point of law, but mere legal technicalities, that counsel can then, urge the Court to consider the preamble and the overriding objectives in the Fundamental Rights Enforcement Procedures Rules, 2009 in addition to the averments in the affidavit in support of his application, to enter judgment in favor of the Applicant. PRACTICAL STEPS TO ESTABLISH THE BREACH OF THE RIGHTS TO THE DIGNITY OF HUMAN PERSON AND PRESUMPTION OF INNOCENCE IN THE CONTEXT OUR DISCOURSE Although it is now common practice across the various police formations in Nigeria for suspects to be dehumanized, by way of stripping them off their wears and leaving them with bare pants in the process of detaining them.  Yet, it is neither one of those facts for which the courts would take judicial notice of nor one of the rebuttable or irrebuttable presumptions of law. Hence, same must be positively proved, where it is alleged, and by who so alleges. We shall briefly itemize some of the ways by which to establish it as follows;

1. Affidavit Evidence of The Applicant and a Co-detainee-where possible.

Often times, it is the word of the Applicant against the police in matters where, apart from the evidence of the applicant, there is no other corroborative evidence. To obviate this, the counsel on behalf of the applicant may have to secure the corroborative facts of the violation of the right to dignity of the applicant, from the place of detention, and have such facts stated in the supporting affidavit. However, such facts from a co-detainee must meet the requirements of section 115(3) of the Evidence Act,2011, which provides that: When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly, the facts and circumstances forming the ground of his belief.

2. Attached photograph of the Applicant upon been released from police custody.

It is usual to see a detainee who has just been granted bail, at the police counter, in police stations, not to be on his wears–which would have been stripped off him at the point of detention. It is in this wise, that counsel, unbehalf of the Applicant or any other person, detailed to secure the police bail of the Applicant, may where practicable, smartly and quietly take the photograph of the Applicant upon being released from police custody. In order not to cause pandemonium, such photograph should preferably be taken with a camera phone whose picture lights and shots sounds would have been turned off. Where the photograph is successfully taken, it should be “pleaded” in the supporting affidavit and so attached. However, such photograph must be accompanied by a document of identification in line with section 84(4) of the Evidence Act, 2011.  

3. Supporting Factual Statement of A Person Who Accompanied Counsel To Secure Police Bail.

Counsel may deliberately seek the permission of a learned colleague to accompany him to the police station in order to secure the police bail of the Applicant, with a view to using the factual statement of the person to corroborate the evidence of the Applicant. In conclusion, the gravamen of what we have canvassed so far is that it is not lawful for the police to wantonly dehumanize suspects by way of stripping them off their wears during detention. This practice should no longer be condoned by the public, especially a Court of law and justice that the FREP Rules, 2009 has given the power to expansively and purposely interpret and apply the Constitution, the African Charter on Human and Peoples’ Rights and other human rights instruments, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them. The era of the conservative judicial adjudicative process of trivializing as normal, weighty human rights violations such as the one under discussion, should deservedly give way to an era of radical judicial activism aimed at policing the enjoyment of the fundamental rights guaranteed the Nigerian citizens under the Nigerian Constitution and other domesticated human rights instruments. GIFT AGBAGBUO is a Port Harcourt based constitutional lawyer., EMAIL: giftagbagbuo@gmail.com., TEL: +2348038903103, +2348154533627.]]>