N.B- (This article does not in any way undermine the nationwide protests)
There is a deep question of law, that has been debated in the United States courts and the Nigerian courts and a host of other countries. The issue of police officers, whether they are criminally liable for any action carried out in the execution of their duties.
Over the past few days, the nationwide protest on the #ENDSARS tag has gained momentum, and lives have been lost, sadly.
It’s ironical how the protest is targeted in ending police brutality, but the reverse has been the case, as young men have been gunned down in the protest. Calls have been made for this officers to be arrested and tried.
A question needs to be answered here. What is the position of the law? It is founded and undisputed that the right to life is sacrosanct. But of course, there are exceptions to every right under law. As the truism goes, where one person’s rights ends another person’s own begins. The good thing about the law is that almost everything has been planned out.
So what is the position of the law on police officers shooting (which may result to death) at protesters during a riot or protest? (This article will discuss on the issue of riots)
Section 33(2)(C) of the 1999 constitution of the federal republic of Nigeria as amended (hereinafter known as CFRN) provides thus;
(2) A person shall not be regarded as being deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstance as permitted by law, of such force as is reasonably necessary
C. For the purpose of suppressing a riot, insurrection or mutiny.
The literary and mischief interpretation of the above section covers the police officer, if in the event of the exercise of his legal and official duties he kills someone. Also, it should be known that, Protesting is an inalienable right, recognizd by the Constitution. RIOTING is a crime. Referring to rioters as protesters infers that their actions aren’t criminal when, in fact, they are. When law enforcement professionals take action against protesters then it is seen as government agents oppressing the people.
This will bring us to the constitutional doctrine of QUALIFIED IMMUNITY
Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. It gains its roots from the legal maxim, Rex Non Potest Peccare which means, “A king can do no wrong.”
In Pearson v Callahan( obiter dictum) the United States supreme court upheld the doctrine of qualified immunity. Similarly, In Fawehinmi v Inspector General of police & 2 ors (SC 201/2000)(2002)6 the court held inter alia “The police have a discretion, in appropriate circumstances in the way they carry out their duty. When so exercised, it is only in very obvious and exceptional circumstances…”
If a lawsuit is prima facie brought against a police officer before a judge for monetary damages, the doctrine covers the officer (as seen in the George Floyd case), if the doctrine is successfully invoked, the case will be dismissed by the trial court. The only exception to this doctrine, is, if the lawsuit is targeted at a policy change, say, police reforms.
When is the officer not covered by qualified immunity:
A) When he/she violates the person’s fundamental right to privacy pursuant to section 37 of the 1999 CFRN as amended. This also means that the officer must be acting at the said time, on his Constitutional duties pursuant to section 214(2)(B) 1999 CFRN and the Nigeria Police Act 2020. Section 4(1) of the said act provides thus; The duty of the Police is to prevent and detect crimes, protect the rights and freedom of suspects and non-suspects in accordance with the Constitution, the African Charter on Human and Peoples Rights and any other law.
B) If the victim’s action goes against the law.
Now, the ‘B’ part is tricky. It is something opened up for extensive debates. Notice that protest are essential to any democracy. Riots on the other hand is also called civil disobedience. In the legal aspect, protests are legal, while a riot is illegal. Legal in the sense that everyone has the right to speech and assembly, riots are not, although this is opened up to debates based on the provisions of section 69 of The Criminal Code act which defines a riot as an unlawful assembly. And in section 70-73 of the criminal code act, the punishment is defined in line with section 36 (12) 1999 CFRN and the principle in Aoko v Fagbemi. Although, there is a constitutional difference between riots and protests, the pace at which some of the protests take, it quickly becomes a riot. In IGP v ANPP (2007) LPELR-8932 (CA) the court held that; The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done.
Riots are civil disobedience because it disrupts public peace, the blocking of roads, vandalism are deemed as social nuisance and this is what turns a protest into a riot, as seen in Benin and parts of Delta state, where boys destroyed police Infrastructures and wounded police officers. It is worthy of note to mention that section 71 of The Criminal Code provides “any person who takes part in a riot is guilt of a felony, and is liable to imprisonment for three years.” And in section 72 & 73 of The Criminal Code, a police officer is not criminally liable if in quelling a riot, a person dies.
So, is the officer liable for offences commited in discharge of his duties? No, he is not, as long as he meets the demands of the doctrine and existing laws. Even at that, the police officer should act in reasonable care. In OMONYAHUY & ORS V IGO & ORS (2015) LPELR+25581 (CA) the court cited with approval Zimbabwe case of ZIMBABWE HUMAN RIGHTS NGO FORUM v ZIMBABWE, the court held; “firing a gun at someone is regarded as the exercise of lethal force. The overriding logic of the situation remains the fact that the police have the power to use lethal force only as an exception, motivated by a situation of “self defence or in defence of others against the imminent threat of death or serious injury.”
Also, in AKINYEDE OLAIYA v THE STATE (2017) LPELR-43714(SC) Sanusi JSC held; “in exercise of official duty a police officer is duty bound to take necessary precaution and also to exercise due care and caution in order to avoid causing injury, harm or death of other persons.”
Note that, the doctrine of qualified immunity is a judicial ruling and not a legislative enacted law, so it’s open up for debates.
As you go about protesting please be careful. Act safe and stay clear of turning the protest into a riot.
About the Author
BOYODE FAVOUR EJAITA is 100L Law student of the University of Nigeria, Nsukka.
For knowledge and Justice