The Nigeria Police Force (Establishment) Act, 2020 (‘the new Act’) which came into force on the 17th of September 2020, repealed the Police Act of 2004. The general objective of the new Act is to provide an effective police service that is based on the principles of accountability and transparency, protection of human rights, and partnership with other security agencies. In achieving this objective, the Act did not only improve on the provisions of the erstwhile Act, it has its own novel provisions.
In this article, we will be looking at both the new provisions and the improvements introduced by the Nigeria Police Force (Establishment) Act, 2020.
What is new?
In ensuring that the new Act fulfils its objectives, provisions were made in accordance with international best practices and in tandem with some recent National Laws on Administration of Justice in Nigeria. This is to blur out areas of seeming discrepancies between the old Police Act and other interrelated Federal Legislations. Some of the novel provisions of the new Act are:
1. Arrest on Civil Wrong
The erstwhile Police Act was silent on the power of the Police to arrest for a civil wrong, this void was abused by a lot of police officers and citizens alike as Police meddled in and even became an instrument of torment or oppression in purely civil matters. The new Act has specifically prohibited the Police from arresting a person merely on a civil wrong or breach of contract [1]. This is to further give effect to the provisions of Section 8(2) of the Administration of Criminal Justice Act, 2015 which has a similar provision.
2. Information about Rights when making an arrest
The new Police Force Act makes provisions for certain rights that accrue to a person who is arrested. With the coming into effect of the New Act, the Police officer making an arrest has a duty to inform the suspect of his/her rights to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice; consult a legal practitioner of his own choice before making, endorsing or writing any statement or answering any question put to him after the arrest; and free legal representation by the Legal Aid Council of Nigeria or other organizations where applicable [2].
While this notification of rights was often done discretionarily before now, the New Act has now made it mandatory.
3. Notification of Next of Kin
Prior to now, it was possible, in fact, it was commonplace for a person to be arrested and denied the right to inform his/her people that he has been taken into custody; but not anymore! With the new Act, when a person is arrested and is being kept in custody, the Police have a duty to inform the next of kin or any other relative of the suspect of the arrest, at no cost to the suspect [3].
4. Arrest in lieu
As part of ensuring that the New Act is in conformity with, and gives effect to the ACJA, 2015 [4], the New Act has now prohibited the arrest of a person in place of a suspect [5]. Consequently, a son cannot be arrested in place of his father and a wife cannot be arrested in place of her husband where the husband is the suspect.
5. Torture and Inhumane Treatment prohibited
The right to the dignity of the human person is a fundamental right guaranteed in the 1999 Constitution. A person who is arrested must also be granted this right. He must not be subjected to any form of torture, cruel, inhuman, or degrading treatment [6]. This provision is also included in Section8(1) of the Administration of Criminal Justice Act, 2015
6. Statements
Before now, when a person is arrested, he is usually compelled to make a statement. In the new Act, a statement should only be made if the suspect wishes to make one; that is, it is now optional to make a statement. Where a suspect chooses to make a statement, the statement must be made in the presence of a legal practitioner of his choice or an officer of the Legal Aid Council or a Justice of the Peace or any other person of his choice. When the suspect does not speak or write in the English language, an interpreter who shall endorse and attest to the making of the statement shall be provided for him [7].
7. Notification of delayed detention
Section 35 (4) of the 1999 Constitution of Nigeria (as amended) provides that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometres from the police station; and where a court is out of the reach of a forty kilometres radius from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable. In furtherance of this provision of the Constitution, the New Act requires that where a suspect who is arrested for an offence other than a capital offence is not released on bail within 24 hours, a court having jurisdiction with respect to the offence may be notified by application on behalf of the suspect. While it is unclear whether the application is to be made by a relative or an interested person on behalf of the suspect or by the Police, the New Act provides that the application for bail may be made orally or in writing, and the court shall consider the reason for continuous detention and grant the suspect bail if it is necessary to do so [8].
8. Report to the Magistrate
In the new Act, the police officer in charge of a police station has a duty to make a report to the nearest Magistrate on the last working day of every month on cases of persons arrested without warrant whether they have been granted bail or not. The Magistrate shall forward the report to the Criminal Justice Monitoring Committee who shall analyze and forward the reports to the Attorney General. The Chief Magistrate or any other Magistrate who has been appointed by the Chief Judge is now also required to conduct an inspection of the Police Station within his territorial jurisdiction [9].
9. Prosecution by a Police Officer
Whereas in the Police Act of 2004 [10], the Police are empowered to prosecute a case in any court in Nigeria; in the new Act, the right to prosecute has been redefined such that only police officers who are legal practitioners have the right to prosecute any form of offence in any court while those who are not legal practitioners an only prosecute offences which non-qualified legal practitioners are allowed to prosecute under the relevant criminal procedure laws in force at the Federal or State level [11].
What has been improved?
Apart from introducing totally new provisions, here are some of the important improvements on the old Police Act that came with the New Act:
1. Establishment and Duties of The Nigeria Police
Section 4 of the New Act has extended the duties of the Nigeria Police beyond detection and prevention of crimes and protection of rights, lives and properties, maintenance of public safety, law and order; and the enforcement of laws and regulations to include collaborating with agencies to provide assistance to persons in distress, victims of road accidents, fire disasters, earthquakes, and flood, facilitating the free passage and movement on the highways, roads, and streets open to the public and adoption community partnership. The Nigeria Police Force also now has the duty to vet and approve the registration of private detective schools and private investigation outfits.
2. Duty to Enforce Constitutional Rights
In ensuring that the Nigeria Police Force promotes and protects the fundamental human rights of persons as provided for by the Constitution, the African Charter on Human and Peoples Right, and other international legal instruments on human rights, The Police Force is forthwith expected to collaborate with relevant agencies to provide legal services to accused person where necessary [12].
In order to further achieve this, the new Act requires that every Police Division must be assigned a police officer who is qualified to practice as a legal practitioner whose responsibility will be to promote human rights compliance by the officers of the Division.
3. Drinking on Duty
In the erstwhile Act, it was an offence for a person to sell or give alcohol to a police officer on duty [13]. The new Act has expanded this scope such that forthwith, it will no longer be an offence on the part of the person selling or giving the alcohol, it will similarly be an offence on the part of a police officer who, while on duty, drinks alcohol or become intoxicated. According to the new Act, such police officer will be punished in accordance with the Police Disciplinary Procedures [14].
4. Stop and Search
Prior to now, the power of the police to stop and search has been derived from Section 29 of the erstwhile Act which is to the effect that ‘A police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.’ In the new Act, that scope has been largely extended. Now, by virtue of section 49 of the new Act, the police have the right to exercise the power to stop and search a person or vehicle when there is a reasonable suspicion that a person or vehicle is having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained; or carrying an unlawful or stolen article; or that an incident involving serious violence may take place within the locality; or carrying a certain type of article at an unusual time. Such a search may take place at any public place or any other place where the public has access provided it is not a private residence.
Before carrying out the search, the police officer, who must be in uniform or wear visibly a valid Police Identity Card, is expected to tell the person to be searched his name and the name of the police station to which he is attached, the essence of the search and his reasons for undertaking the search. He may then proceed to ask questions about the person’s behaviour, where the person to be searched gives a satisfactory explanation, the search may not take place [15].
Where the search is to be carried out, a reasonable effort must be taken to minimize the embarrassment that the person, or the person whose property is being searched, may experience; as such, the search does not include the power to ask a person to remove his clothing in the public. However, where there is a need to conduct a more thorough search, such search must be conducted out of public view and by an officer of the same sex as the person being searched [16].
If in the course of the search, a prohibited article such as an offensive weapon, or an article reasonably believed to be stolen is found on the person or vehicle, such item may be seized [17].
Conclusion
The Nigeria Police Force (Establishment) Act, 2020 is, without doubt, a welcomed development, particularly with laudable provisions, some of which have been identified above. We, therefore, look forward to the implementation of this Act in accordance with the spirit of the draftsman to achieve its intended purpose of ensuring cooperation and partnership between the Police and host communities in maintaining peace, protecting liberties, lives, and properties.
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[1] Section 32(2) Police Force (Establishment) Act, 2020
[2] Section 35(2) Police Force (Establishment) Act, 2020
[3] Section 35(3) Police Force (Establishment) Act, 2020
[4] Section 7 thereof which prohibits arrest in lieu of suspect
[5] Section 36 Police Force (Establishment) Act, 2020
[6] Section 37 Police Force (Establishment) Act, 2020
[7] Section 60 Police Force (Establishment) Act, 2020
[8] Section 64 Police Force (Establishment) Act, 2020
[9] Section 69 & 70 Police Force (Establishment) Act, 2020
[10] Section 23 Police Act, 2004
[11] Section 66(1) and (2) Force (Establishment) Act, 2020
[12] Section 5, Police Force (Establishment) Act, 2020
[13] Section 41 Police Act, 2004
[14] Section 100 Police Force (Establishment) Act, 2020
[15] Section 50 Police Force (Establishment) Act, 2020
[16] Section 51 Police Force (Establishment) Act, 2020
[17] Section 49(3) Police Force (Establishment) Act, 2020
In this act are you saying a persons mobile phone can be searched ?
lawpavilion, in your article from online source https://lawpavilion.com/blog/things-you-should-know-about-the-new-police-act-2020/ titled “THINGS YOU SHOULD KNOW ABOUT THE NEW POLICE ACT, 2020” under the sub title What is new? – 9. Prosecution by a Police Officer reproduce thus “Whereas in the Police Act of 2004 [10], the Police are empowered to prosecute a case in any court in Nigeria; in the new Act, the right to prosecute has been redefined such that only police officers who are legal practitioners have the right to prosecute any form of offence in any court while those who are not legal practitioners can only prosecute offences which non-qualified legal practitioners are allowed to prosecute under the relevant criminal procedure laws in force at the Federal or State level [11]. “
I strongly disagree with the above viewpoint of yours base on the following hard facts or reasons
1. That it is settled that statutory provision must be interpreted/construed holistically or as a whole, but not in isolation or disjointedly, in order to ascertain the intention of the legislature inter alia the provision of section 66 Nigeria Police Act 2020 must be interpreted/construed holistically or as a whole, thus place reliance in the supreme court decision as per stare decisis/judicial precedent in a case of Oni & Ors.v. Gov., Ekiti state (2019) Vol.298 LRCN 190 @ 203 : 13(SC) “On The Need To Interpret Documents And Statutes Holistically” wherein it was held that “it is also a basic principle that documents and statutes are to be interpreted holistically.” Also See-W.R.P. Co. Ltd. v. Gecmep Nig. Ltd. (2020) Vol.301 LRCN 203 @ 208 : 4(SC) “On How The Interpretation Of A Statutory Provision Should Be Construed” wherein it was held that “It is well settled that in the interpretation of a statutory provision, it should not be considered in isolation or disjointedly, in order to ascertain the intention of the legislature. It must be construed as a whole.” See:(I) S.P.D.C. v. Isaiah (1997) 6NWLR (Pt.505) 236; (II) Obi v. INEC (2007) 11 NWLR.(Pt.1046) 565; (2008) 155 LRCN/EPJ 58;(III) Chime & Amor. v. Ude & Ors. (1996) LPELR 848 (SC) at 15 B-C. Therefore in the light of the above legal authorities/stare decisis binding every court of law, it is obvious that the legislature using the words or phrase “whether or not the information or complaint is laid in his name” in section 66(1) and did not use same in 66(2), does not implies, infers or means that it is not applicable to section 66(2) of the same provision of section 66 Nigeria Police Act 2020 holistically, also the legislature using the words or phrase “subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level” in section 66(2) and did not use same in 66(1), does not implies, infers or means that it is not applicable to section 66(1) of the same provision of section 66 Nigeria Police Act 2020 holistically, hence your interpretation/construction of the provision of section 66 Nigeria Police Act 2020 is wrong except to the extent of your phrase/averment inferring to the effect that non-qualified legal practitioners are allowed to prosecute under the relevant criminal procedure laws in force at the Federal or State level is correct, unlike some people out of ignorance speculating that only “Police officer who is a legal practitioner” mentioned in section 66(1) can prosecute in court and that “Police officer” vis-à-vis “non-qualified legal practitioners” mentioned in section 66(2) cannot prosecute in court under the same provision of section 66 Nigeria Police Act 2020 holistically, despite clear and unambiguous words “can prosecute” insert or used in the extant Police Act by the legislature/draftsmen, and of which the legislature also using the words or phrase “any other written law” in section 32(3) Nigeria Police Act 2020 clearly include or absorb FRN ACJA 2015 at federal level or Abia State ACJL 2017 at state level among others such as CPA/CPL, Criminal Codes etc as any written law upon which a suspect shall be brought before the court to be tried or dealt with inter alia the legislature using the words or phrase “subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level” in section 66(2) Nigeria Police Act 2020 clearly absorb, encapsulate or engross section 268(1)(2)FRN ACJA 2015 or section 265(1)(2)Abia state ACJL 2017 as the provisions of the relevant criminal procedure laws in force at the Federal or State level respectively, hence justify “Police officer” vis-à-vis “non qualified legal practitioners” power to prosecute in court under section 66(2) or 66 Nigeria police Act 2020 holistically, yet people out of ignorance speculate that only “Police officer who is a legal practitioner” mentioned in section 66(1) can prosecute in court and that “Police officer” vis-à-vis “non-qualified legal practitioners” mentioned in section 66(2) cannot prosecute in court under the same provision of section 66 Nigeria Police Act 2020 holistically, likewise people out of ignorance speculating that “Police officer” vis-à-vis “Public officer” in official capacity can no longer prosecute in court under the new FRN ACJA at federal level and ACJL at state level which is absolutely wrong to envisaged and used section 106 FRN ACJA 2015 or 104 Abia state ACJL 2017 which as to do with the Powers of Attorney General ab initio as a vehicle of fraud/destruction to denied or deprived “Police officer” vis-à-vis “Public officer” of accrued statutory right to institute proceedings in respect of an offence and prosecute same in official capacity in the name of IGP or COP under the express provision of 268(1)(2) FRN ACJA 2015 at federal or section 265(1)(2) Abia state ACJL 2017, of which it is trite law that the court or counsel cannot waive substantial compliance with the statutory provisions; See-Okolie Vs Aneke(2019) 17 NWLR (pt.1700) 90 @ 92 : 2(SC) “On Whether The Court Or Counsel Can Waive Substantial Compliance With Statutory Provisions” wherein it was held that “Neither the court nor counsel for the parties on their own can waive substantial compliance with statutory provisions, nor confer nonexistent rights and privileges on themselves which ordinarily circumvent the wheels of justice, even when adversary has acquiesced to that wrongful procedure.” inter alia court or counsel cannot waive substantial compliance with the statutory provisions of section 66(2) or 66 Nigeria Police Act 2020 holistically, section 268(1)(2) or 268 FRN ACJA 2015 holistically and section 265(1)(2) or 265 Abia state ACJL 2017 holistically, even when adversary like myself, IGP, COP, O/c legal and any other person has acquiesced to that wrongful procedure. Also See-Saraki Vs F.R.N (2018)16 NWLR (pt.1646) 405 @ 425 : 35 “On Need To Comply Strictly With Statutory Provisions” wherein it was held that “when the law directs that an act be done in a particular way, unless the act was done in that particular way prescribed, such an act done otherwise is illegal.”
2. That the legislature/draftsmen having mentioned “Police officer who is a legal practitioner” in section 66(1) and “Police officer” vis-à-vis “non-qualified legal practitioners” in section 66(2) confers with the power to prosecute respectively under the same section 66 Nigeria Police Act 2020 excludes others, upon application of the literal rule of statutory interpretation to the clear and unambiguous words used in the extant Police Act and rule of language or maxims “Expressio Unius Est Exclusio” and taking solace in the supreme court decision as per stare decisis/judicial precedent in a case of Oni & Ors.v. Gov., Ekiti state (2019) Vol.298 LRCN 190 @ 202 : 11(SC) “On The Meaning Of The Latin Maxims” “Expressio Unius Est Exclusio” wherein it was held that “One of the maxims of statutory interpretation is expressio unius est exclusio (express mention of one thing excludes others), i.e although there is no express exclusion, exclusion is implied.” Hence the express mention of “Police officers who a legal practitioner” and “Police officer” vis-à-vis “non-qualified legal practitioners” in section 66(1)&(2) or 66 Nigeria Police Act 2020 holistically excludes others, i.e although there is no express exclusion, exclusion is implied.”
3. That the legislature using the words or phrase “those offences” in section 66(2) and did not use same in 66(1), does not implies, infers or means that it is not applicable to section 66(1) of the same provision of section 66 Nigeria Police Act 2020 holistically, thus the legislature / draftsman having deliberately not mentioned those offences which “Police officers who is a legal practitioner” can prosecute under section 66(1) and those offences which “Police officer” vis-à-vis “non-qualified legal practitioners” can prosecute under section 66(2), implies, infers or means that there is no offence or offences the two category of police officer i.e “Police officers who a legal practitioner” and “Police officer” vis-à-vis “non-qualified legal practitioners” cannot prosecute under section 66(1)&(2) or 66 Nigeria Police Act 2020 holistically, because no offence is expressly prohibited therein and what is not expressly prohibited is implicitly permitted in law, and upon application of the literal rule of statutory interpretation and rule of language or maxims “Expressio Unius Est Exclusio” and taking solace in the supreme court decision as per stare decisis/judicial precedent in a case of Oni & Ors.v. Gov., Ekiti state (2019) Vol.298 LRCN 190 @ 202 : 12(SC) “On when an implied exclusion argument lies” wherein it was held that “An implied exclusion argument lies whenever there is reason to believe that if the legislature meant to include a particular thing within the ambit of a statute, it would have referred to that thing and because of this expectation its failure to mention that thing becomes grounds for inferring that it was deliberately excluded. Simply put, the express mention of one thing in any statutory provision automatically excludes any other, which otherwise, would have applied by implication with regard to the same issue” inter alia failure of legislature to mention those offences in section 66 sub(1)&(2) or 66 Nigeria Police Act 2020 holistically was deliberate and becomes grounds for inferring that no offence(s) was excluded or prohibited for prosecution which implies that there is no offence that cannot be prosecuted by the two category of Police officers mentioned therein i.e “Police officer who is a legal Practitioner” and “Police Officer” vis-à-vis “non-qualified legal practitioners” under the provision of section 66 sub(1)&(2) or 66 Nigeria Police Act 2020 holistically, because no offence is expressly prohibited therein and what is not expressly prohibited is implicitly permitted in law. See-Supreme Court decision as per stare decisis in the case of Mumini Vs FRN (2018) Vol.283 LRCN 227(para.Z-EE)
4. That even a court of law with competent jurisdiction cannot read or import into statutory provision words not used by the legislature, but you did so in your article/phrase reproduce thus “only police officers who are legal practitioners have the right to prosecute any form of offence in any court” & by using the words/phrase “any form of offence” therein, you have read or import into statutory provision of section 66 Nigeria Police Act 2020 words/phrase not used by the legislature/draftsmen, despite clear and unambiguous words used by the legislature, hence introduce an illegal back door amendment and go against the literal rule of statutory interpretation, principle governing interpretation of statutory provision and common law as per stare decisis/judicial precedent in a case of Emejuru & Anr. Vs Abraham & Ors (2019) Vol.293 LRCN 216 @ 225 : 16 (SC) “On Whether Court Can Play The Role Of The Legislature When Interpreting The Law” “The court, in any guise of exercising its interpretative jurisdiction, is not permitted to play the role of the legislature. It is not permitted to place a gloss on the provisions by reading or importing into the provisions extraneous matters or words not used by the legislature in enacting the provisions in the first place.” Also See-Ecobank Nig.Ltd Vs Honeywell F.M.Plc (2018) Vol.283 LRCN 1 @ 17 : 11(SC) “On The Duty Of A Court When Interpreting Statutes” The law is well settled that in interpreting Statutes, the Court should always give them their ordinary meaning. Where it is clear, unambiguous and direct to the point any addition or subtraction will be sequel to introducing an illegal back door amendment. Also See-Bello v. Yusuf & Ors (2020) Vol.304 LRCN 143 @ 157 : 14(SC) “On The Basic Function Of The Court To Declare What The Law Is And Not To Make Law” wherein it was held that “The Court, in its interpretative jurisdiction, is enjoined, when the provisions of the constitution or Statute are clear and unambiguous, to give the provisions the meaning that accords with the natural ordinary grammatical meaning of the provisions. In other words, the Court must not construe the provisions to mean what the provisions do not actually mean. Nor must the provisions be construed not to mean what they actually mean. This interpretational restraint on the Court is an outflow from the basic function of the court which is only to declare what the law is, and not to make laws. Legislation or law making constitutionally belongs to another branch of government, but not to the judicature.”
Do i have the right to ask a police officer his name and post of duty