THINGS YOU SHOULD KNOW ABOUT THE NEW POLICE ACT, 2020

The Nigeria Police Force (Establishment) Act, 2020 (‘the new Act’) which came into force on the 17th of September 2020, repealed the Police Act of 2004.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 nouvelle provisions.

In this article, we will be looking at both the nouvelle provisions and the improvements introduced by the Nigeria Police Force (Establishment) Act, 2020.

What is new?

In ensuring that the new Act fulfills 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 nouvelle 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 same; 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 peace or any other person of his choice. When the suspect does not speak or write 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 kilometers 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 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 co-operation 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

lawpavilion • October 29, 2020


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