The Utility Of The Anti-Torture Act, 2017 Vis-A-Vis The Activities Of The Law Enforcement Agencies In Nigeria By Maxwell N. Uwaifo Esq

Anti-Torture Act 2017 was passed by the 8th National Assembly and signed into law by President Muhammadu Buhari on December 29, 2017.  Prior to the coming into effect of the Act, Section 34 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 provides that:

(1) Every individual is entitled to respect for the dignity of his person, and accordingly;

(a) No person shall be subject to torture or to inhuman or degrading treatment;

The Anti-Torture Act 2017 has now plainly made the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right, criminalising torture and protecting victims and witnesses from torture.

Framework of the Anti-torture Act 2017

The Anti-Torture Act 2017 is a very brief legislation. It has a title, explanatory memorandum and 13 sections.

Section 1 of the Act titled Duty of Government, imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture. It admonishes government to adhere to domestic and international standards on absolute condemnation and prohibition of torture.

Section 2 titled Acts of Torture, defines what amounts to torture. It states that:

(1) Torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to –

(a) Obtain information or confession from him or a third person;

(b) Punish him for an act he or a third person has committed or suspected of having committed; or

(c) Intimidate or coerce him or third person for any reason based on discrimination of any kind.’ It goes on to suggest that Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:

1. Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach.
2. Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten,
3. Electric shocks;
4. Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds;
5. The submersion of head in water or water polluted with excrement, urine, vomit or blood;
6. Blindfolding;
7. Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts;
8. Confinement in solitary cells put up in public places;
9. Confinement in solitary cells against their will or without prejudice to their security;
10. Prolonged interrogation to deny normal length of sleep or rest and
11. Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.

Section 3 titled No justification for torture, is the stand out provision of the Act. It states that no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It prohibits secret detention facilities, solitary confinement, incommunicado detentions where torture may be carried out. It makes it very clear that evidence obtained from torture is inadmissible in any court except for use against a person accused of torture.

Section 4 titled Right to complain, allows a person alleging that torture has been committed, whether the person is the victim of the offence or not, a right to complain to the police, National Human Rights Commission or any other relevant institution or body having jurisdiction over the offence. It provides that the victim and complainant must be protected.

Section 5 titled Assistance to filing complaints provides that a person who has suffered torture or any interested party on his behalf may seek legal assistance in the proper handling and filing of the complaint to the Human Rights Commission/NGOs/Private persons.

Section 8 titled Penalties, provides that a person who commits torture shall be liable on conviction to a term of imprisonment for of 25 years. If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take away the victim’s right to civil claim in court for damages or compensation for the torture.

Sections 9, 10 and 11, titled Regulatory Agency, Education Campaign, Rules and Regulations respectively, empowers the Attorney- General of the Federation and other law enforcement agencies to ensure effective implementation of the Act. This includes training and education of personnel involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. It also empowers the Attorney- General of the Federation with the approval of the President to make rules and regulations for the effective implementation of the Act. Section 12 and 13 are Repeal and Citation sections.

Significant features of the Anti-Torture Act 2017

1)  The Anti- Torture Act 2017 provides a comprehensive definition of torture. It goes on to give detailed instances of what constitutes torture.

2) The Act criminalizes torture. It prescribes offences and penalties for any person who commits torture or aids, abets, counsels or procures any person to commit torture.

3) It makes freedom from torture a non-derogable right. It states clearly no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It states further that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.

4) It expands Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.

5) The Act protects victims and witnesses of torture.

6) The Act allows for personal civil action in damages and compensation for torture.

End Product of Anti-Torture Act on Law Enforcement agencies

Before the enactment of the Anti-torture Act 2017, Torture by the police and other Law Enforcement agencies was seen more as a civil wrong except when death occurs. The police and other law enforcement officers having custodial powers could get away with torture as the law against torture was not clear and punitive enough. The coming into effect of the Anti-Torture Act 2017 has fundamentally changed this.  Torture is now officially a crime. A police officer can be prosecuted for torture; aiding, abetting or procuring any person to commit torture.  A police officer and or any other law enforcement officer can no longer rely on emergency powers or ‘orders from above’ as justification for using torture to obtain information or extract a confessional statement.

The criminal liability of police officers under the Anti-Torture Act 2017 is specific to the individual persons connected to the act of torture. This liability could be direct or indirect.

According to Section 7(1) of the Act “a  person” who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; (2) a superior military, police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal (4) the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.

Conclusion

The National Assembly, by passing the Anti-Torture Act 2017, has dealt with the negative practice of torture.  The challenge, however, will be enforcement.  We are expectant that the Attorney-General of the Federation and other relevant stakeholders will work together to put in place mechanisms to ensure compliance so that torture can be eliminated in Nigeria.

However, a public enlightenment on the details of the Anti-Torture Act 2017 cannot be overemphasized and should be encouraged, especially on the penalties for its violation by Police officers and other Law Enforcement Agencies otherwise the law will be like any other law that is observed in its breach.

Consequently, all Nigerians should be apprised with this law, so that legal remedies could be sought against individuals and/or Agencies whose actions might lead to avoidable death or stern injuries under the circumstances encapsulated under the Anti-torture Act 2017.

Maxwell N. Uwaifo Esq (PRO, YLF Warri Branch/Education Committee Chairman)
iamuwaifo@gmail.com
Legal Practitioner at Tri-Lex Partners LP

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.