The Police Act, 2020; What Has Changed?

By Emine Akpanukoh

Long before the awakened cries for an end or at least a reformation of the Special Anti Roberry Squad, President Mohammadu Buhari of Nigeria had on the 16 of September, 2020 assented to the Police Bill 2020. Since then much ink has flowed and I reckon it will continue to flow for some time, as so many issues have been raised by keen commentators about the new Act which repeals the police Act Cap P19 LFN, 2004. Some of the popular issues raised include; that the powers of arrest and searches have been unnecessarily enlarged as to encourage the already existing police highhandedness and brutality, that there are several ambiguous and vague provisions, that some provisions of the Act impedes the power of the state legislatures and several other issues.

The defunct Police Act had 11 parts and 69 sections, whereas the new Police Act has 17 parts and 145 sections. That means 76 new sections (even more than the old act had). Therefore it is goes without necessarily saying, that quite a lot has changed, at least as regards the number of sections. But is there more? Although we will not be considering the Act line by line, this work briefly takes a short ride through the police Act 2020, with the chief aim of bringing to the fore interesting new additions, comparing its provisions with the now repealed police Act, 2020 to the end of determining whether or not there are any changes. And if we conclude that there are changes, why then do we have the same issues as we were having under the defunct Act.

Despite a huge gully of technological, economic and social differences between 1943 and 2020, a public institution as vital as the Police has seen no comprehensive review since its initial promulgation in 1943. From this background of a putrid legislation barely alive to current economic, technological and social realities, as well as the background of public outcry against police brutality generally and calls for the scrapping of the Special Anti- Robbery squad (SARS)[1], the police bill (now an act) had/has the chief objective of seeking to among other things “provide  for a police force that is more responsive to the needs of the general public and has entrenched in its operations the values of fairness, justice, equity, accountability, co-operating and partnering with the communities it serves; and also to uphold and safeguard the fundamental rights of every person and respect the dignity of all persons ”[2] This is the main thrust of part 1 of the Act which has two sections and sets out the general objectives of the Act as well as the specific objectives of the bill. Therefore, the objectives differ between both Acts as the new Act seeks to smolder problems encountered under the now repealed act.

Part 11 of the Act borders on the establishment, composition and duties of the Nigerian Police. The importance of the functions performed by the police in maintaining law and order as well as the security of lives and properties cannot be emphasized, but the officers of the Nigerian police have more often than not used the wide powers bequeathed under section 4 of the police Act P19 as a succor and an easement for trampling on the rights of common men. The defense to all claims of breach of human rights is usually answered with “section 4” which gives wide powers. Therefore, it is very laudable that the Police Act 2020 makes it clear that it is also a function of the police to not only detect crimes and prevent them, but to also protect the rights and freedoms of every person in Nigeria as provided in the Constitution and the African Charter on Human and Peoples Rights.[3] Section 5 (1) makes the police responsible for promoting and protecting the fundamental rights of persons in police custody as guaranteed by the constitution. Another novel inclusion here is the responsibility of the police to collaborate with other agencies to take necessary action and provide the required assistance or support ton persons in distress, including victims of road accidents, fire disasters, earth quakes and floods.[4]

It deserves mention that the powers to prosecute under both acts are remarkably different. Section 23 of the now repealed police Act, provides that subject to the powers of the AG of the federation and of the state to institute and undertake, take over and continue or discontinue criminal proceedings, “any police officer” may conduct in person all prosecutions “before any court”. The above provisions are clear and unambiguous and gave the police the right to prosecute in person any criminal proceeding in any court in Nigeria. Olusemo v. C.O.P[5] It amounts to a sweeping change when the Police Act 2020 in section 66(1) prescribes that subject to the Attorney General’s right to institute and undertake, take over and continue or discontinue criminal proceedings; “a police officer who is a legal practitioner” may prosecute in person before any court. This actively precludes police officers who are not legal practitioners from prosecuting. Or does it? Section 66(2) prescribes that a police officer (not necessarily one who is a legal practitioner) subject to the relevant provisions of federal or state criminal procedure laws in force; prosecute before the courts those offences which non legal practitioners can prosecute. This subsection poses more questions than it answers, what offences can non legal practitioners prosecute? Does the federal legislature have the jurisdiction to legislate on prosecuting offences under the residual list? It is the writer’s opinion that the courts have a job to do in interpreting this section. But it is clear that under the new Act, prosecuting powers of the police have been hampered and limited. By giving prosecutorial powers majorly to police officers who are legal practitioners[6], it means every police division must have at least one police officer who is a legal practitioner.[7] This police officer who is also a legal practitioner is also supposed to ensure that human rights are preserved in the police division.[8] Appealing yet again but only time will tell if these legal practitioners will not be the brain behind helping erring police officers escape the wrath of the law for their human rights abuse.

Reading through diverse commentaries on this new Act, that of David Hundeyin[9] particularly attracted my interest. He alleges amongst other assertions that Section 38 providing for the power of police officers to arrest without a warrant; “effectively ends the right to be assumed innocent one of the founding principles of the 1999 constitution”. I disagree on the strength of the known fact that the presumption of innocence cannot die because of any provisions in any Act, as this right is constitutionally guaranteed and every Act that provides otherwise shall to the extent of its inconsistency be null and void. More so, not only is there nothing “remarkably” different in the provisions of both Acts, but nothing in the sections complained about presuming any person guilty before conviction of a court. That having been said, I concede that the powers to arrest without a warrant are possibly wide. Section 38(1)(a) of the police Act 2020 provides that; “a police officer may without an order of court and without warrant arrest a suspect whom he suspects on reasonable grounds of having committed an offence”[10] Considering the very nature of some Police officers to abuse their powers, it is not very unreasonable to complain that the powers are too wide and subjective, but we also have to reasonably understand that these wide subjective powers are necessary to prevent crime and keep everyone safe.

However, what is new about the power of arrests is that by the provisions of section 32; Arrests are lawful but (a) not in respect of merely civil wrongs and breach of contracts[11]. Very laudable, considering that overtime the police have made recovery of private debts and enforcements of contracts one of their primary duties notwithstanding several court judgments against this act. (b) if the suspects submits to custody by word or action, then while arresting it is not necessary to touch him or contain him.[12] (c) a person cannot be arrested in place of a suspect[13]

More so, a suspect or defendant may not be handcuffed, bound or subjected to restraint  except (i) there is reasonable apprehension of violence or an attempt to escape (ii) the restraint is necessary for the safety of the suspect or (iii) by order of court.[14] I see zero reasons to talk about this provision because as appealing as it appears, it actually exists to achieve nothing because of the use of the phrase “may”. There is nothing binding the police officer to the prescription there. “Shall” would definitely have guaranteed more.

The above arguments on arrests suffice also for searches. Although some new provisions have been made which appear to have expanded and given the police sweeping powers of stop, detention and search, the powers were not absent in the old Police Act. The police Act 2020 merely makes it more obvious. [15] More so, the police Act makes copious efforts to inject sanity and humanity into search by providing in section 51 thus: (a) that reasonable effort shall be taken to minimize the embarrassment that a person or the person whose property is being searched may experience. (b) the cooperation of the person to be searched shall be sought in every case (c) forcible search shall only be necessary as a last resort and where the person is unwilling to cooperate or resists. (d) searches in public shall be limited to a mere superficial  examination of the outer clothing. (No matter the gender of the person searching or being searched) (e) where a thorough search is required, it shall be done out of public view and by a person of the same sex as the person being searched.

In a good attempt to ensure transparency of the activities of the police, section 69(1) provides that an officer in charge of a police division, or an official in charge of any agency authorized to make arrest[16], shall on the last working day of every month, report to the nearest magistrate the case of all suspects arrested without warrant, within the limits of their respective station or agency, whether the suspects have been admitted to bail or not. According to the Act, the magistrate shall on receipt forward same to the Criminal Justice Monitoring committee which shall analyze the report and advise the Attorney general of the federation.[17] Furthermore, section 70 provides that a chief magistrate or other magistrate designated by the Chief judge for that purpose, shall at least every month conduct an inspection of the police stations and other places of detention within his jurisdiction and may during such visit; (a) call for and inspect the record of arrests (b) direct the arraignment of a suspect (c) where bail has been refused, grant bail, provided the offence is one within his jurisdiction. With increase in stories of suspects languishing in police cells for months without action,(despite constitutional provisions against this), regular inspection will make sure the law is respected and illegal detentions are brought to an end.

Conclusively, the Police Act 2020 which repeals the Police Act CAP P19 LFN 2004 aims to provide to more effective and well organized police force driven by the principles of transparency and accountability, in its operations and management of its resources. As we have seen above some interesting additions include, inclusion of protection and preservation of human rights among the duties of the police officers, express exclusion of the police from debt recovery and contracts, limitation of police prosecutorial powers to only police officers that are legal practitioners, regular inspection of the police station by a chief magistrate, etc. However, reports of police brutality have not reduced at all and new incidences have seen fervent calls for reforms of the Special Anti Robbery Squad return. In response to the protests, the speaker of the federal House of Representatives has proposed a new legislation to improve accountability of the police[18]. We submit that new laws or amendments of laws will very little.

The powers bequeathed to the police both under the old and new Act remains very wide and subjective. Take for instance the power of arrest and searches. The operative phrase will always and must necessarily be “reasonable suspicion”. As long as the power remains subjective to each police officer, more laws will never solve the problem.  If we must see an era where the police do not torture suspects in detention, are not trigger happy, or power drunk, we must attack their minds and that begins with the training these officers undergo and I dare say, giving new police officers exemplary superior officers and rooting out the bad eggs which give the force the bad name. A hurt person is definitely configured to hurt others.

The Police Act 2020 has so many laudable objectives and provisions on paper but it is the writers’ opinion that we should realistically not expect much change in the operations of the Nigerian Police force until the domineering, peremptory mentality and psyche of the officers given so much subjective powers under our laws are very considerably changed. The Police Act 2020; Not yet Uhuru!

[1] A splinter cell of the Nigerian Police.

[2] Report of the senate committee on police affairs, on the bill to enact the Nigerian Police Act, 2020. Dated the 22^nd of April, 2020.

[3] Section 4 (a)

[4] The Act also makes it a responsibility of the police to vet and approve the registration of private detective schools and private investigative outfits.

[5][5] (1998) 11 NWLR (pt. 575) 547

[6] Subject of course to the powers of the attorney general of the federation and of the states

[7]  Section 66(3)(a)

[8] Section 66 (3)(b)

[9] https://newswirengr.com/2020/09/24/insincerity-bad-faith-isomorphic-mimicry-theharmonised-police-bill-2020-in-focus/

[10] Although this provision is absent in the old Act, a combinative reading of the provisions of the Act will expose that the police still had this wide power.

[11] Section 32(2) of the police Act 2020.

[12] Section 33 of the police Act 2020

[13]Section 36 Police Act, 2020.

[14] Section 33 police Act 2020

[15] Section 52 of the police Act 2020 is not very different from the provisions of section 28 of the old police Act

[16] It beats my imagination how the police Act 2020 can make provisions affecting other agencies like the EFCC, DSS, ICPC etc.

[17] What happens to the Attorney General of the state, even in offences which are covered under state laws?

[18] https://nairametrics.com/2020/10/07/endsars-house-of-reps-to-draft-new-police-legislation-in-30-days/