“A search warrant is not lawful if it is general and does not specify the name and description of the premises and person to be searched”.
HAVE you ever received condemnation or criticism for not carrying out your duties, only to receive the same degree of condemnation or criticism when you do carry them out?
If you have, there is a strong probability that you belong to the law enforcement community and particularly, that you are, within the Nigerian context, a member of the Nigerian Police Force! Have you ever complained about the seeming ease with which criminals move about unchecked and yet fetl inconvenienced or irritated when your vehicle was stopped for a search at a road block set up by the Police on the highway?
If you have, you probably belong to the group of those Nigerians who daily place members of the Police, perhaps not unfairly on some occasions, in a situation they surely must find exasperating.
That this is so can hardly be subject to debate. No branch of the Nigerian public service receives so much public scrutiny like the Nigerian Police Force.
Enforcement and crime prevention
This is obviously due to the very important duties of law enforcement and crime prevention and detection which the Constitution imposes on the Police and the fact that Nigerians on a daily basis have reason to come into contact with Policemen. Such is the importance of this role that every citizen in the country, rich or poor, learned or uneducated, governed or public office holder are all bound to be affected, admittedly in varying degrees, by the ability or inability of the Police to effectively carry out their duties.
Indeed Nigeria presents a very good case study on the highs that could be recorded by excellent policing and the fails that could also be the order of the day where basic tenets of policing are either not adhered to or where the Police lack the necessary training or equipment to do their jobs.
In recent times, the celebrated capture of the Kidnap Kingpin Evans and arrest of some other violent criminals represent the former while a string of unresolved crimes including the assassination of a serving Attorney General and Minister of the Federation still serve as a reminder of the failings of the Police.
However while it is easy to blame the police for every of its failings, and this is a route that many including the Press have elected to take, I am convinced that a more effective way of approaching whatever shortcomings are evident in its operations would be to undertake a holistic examination of every aspect of its set up including statutory provisions, organisational and operational make up and even the attitude of successive governments over the years to the funding needs of the Police. This is why I will in the coming weeks examine not only the duties and current challenges being encountered by the Police, but also will proffer means by which improvements could be made to their operations to the overall benefit of society.
POLICE DUTIES UNDER THE LAW
The powers and duties of the Nigeria Police Force are contained principally in the Police Act Cap 359 Laws of the Federation of Nigeria, 1990 while some incidental powers are conferred by the common law and a variety of other statutes including the Criminal Procedure Code/ Act and the Penal Code. The general duties are defined in Section 4 of the Police Act to be:
“…the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of property and the due enforcement of all laws and regulations with which they are directly charged”.
The first encounter of a lawful citizen with the police often begins when he stops his car at the flashing torchlight that suddenly leaps into his path on a dark and lonely road. Inevitable questions follow as to his identity, his destination and “what he is carrying”. A search of his boot may follow and then his vehicle particulars including his driving license are inspected. If he is lucky he is then allowed to leave, inconvenienced perhaps humiliated and desperately trying to remember that he is heir to the charter of human rights (known as Chapter IV of the Constitution of the Federal Republic of Nigeria 1999) which guarantees him the right to dignity of his person, section 34; the right to personal liberty, section 35, the right to privacy, Section 37 the right to freedom of movement, section 44, the right to freedom from discrimination on grounds of community, ethnic group, place of origin, sex, religion, political opinion, section 42.
What powers do the police have, he wonders and what right to disturb his peace and obstruct his progress in this way?
POWER TO STOP AND SEARCH ON THE HIGHWAY
Section 25 of the Police Act empowers the police to detain and search person without arresting them and it is this power that the purport exercise in mounting road blocks. Yet, however laudable their intentions, that power comes with the significant and often forgotten restriction that any person so detained and searched must be a person reasonably suspected of having in his possession or conveying in any manner, anything which the policeman has reason to believe to have been stolen or otherwise unlawfully obtained. The suspicion must be reasonable, that is, there must be facts available to the officer or perceived by him, which raise a suspicion that would arouse a reasonable man. A reasonable man is one of some education, character and courage, a person clearly well above the average man. In the case of Onuorah v. C.O.P (1960) W.N.L.R 10, it was held that the policeman must not only inform the subject that he is suspected, he must also inform him of the grounds of the suspicion precedent to the search. Further, the suspicion must precede the detention. This is the simple logic which will be stoutly denied by the policeman who believe that he had to stop to see if there was reason to suspect.
Clearly therefore, if there is no reason to suspect and the search is illegal, not only according to Chapter IV of the Constitution but also according to the Police Act itself. However, events in the recent past, particularly with the setting up of the various security outfits across the states have clearly revealed the abuse of Section 25 of the Police Act by the Nigerian Policemen. Arrest and detention of persons at the numerous checkpoints is no longer based on reasonable suspicion of having in one’s possession stolen or unlawfully obtained object but on failure to pay a bribe. Infact the usual checking of vehicle particulars especially the commercial vehicles will only be necessary if the driver refuses to “cooperate”. He will then be told in a very harsh tone to “park well” and “produce” his vehicle papers for inspection as a way of humiliating him to submission. All this, it is submitted are contrary to the spirit and intent of both the Nigerian Constitution and the Police Act.
Duty of police to protect property
The constitution also guarantees the privacy of home and property. And so the police as an essential governmental organ has a primary duty under the general provisions of the Police Act to ensure that the law abiding citizen of this country are not deprived of their properties but also that their properties and the privacy of their home are not unduly invaded or interfered with except by due invitation.
However, the above position of the law is in practice obeyed in breach rather than compliance by the Nigerian Police. The police under the guise of search of premises upon the slightest suspicion and sometimes on a wrong information will not only invade ones premises but will cart away all the unfortunate victim’s moveables, thereby depriving the citizens of their properties.
The normal way that police gain entry into premises is by invitation, express or implied. Without any invitation, they must point to lawful authority to enter. Unlawful entry may be met by reasonable force and constitute the basis for an action for damages. Police have authority to search premises under authority of a search warrant issued by a Magistrate who must have satisfied himself of the facts basin it on the relevance and strength of these facts. A search warrant is not lawful if it is general and does not specify the name and description of the premises and person to be searched. To be continued.
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