In May, 1999, a ‘democratic’ regime was inaugurated in Nigeria after a protracted period of military rule. Since the advent of the ‘democratic’ regime, there have been uncountable incidents of politically motivated assassinations, thuggery and banditry. The menace of armed robbery and other violent crimes has become phenomenal. Lives and property have become very insecure in the Nigerian state. The various tiers of government in Nigeria have manifested their inability to secure lives and property. In many instances, there have been serious allegations of government involvement in some cases of judicial killing. The various tiers of governments have always come out to deny complicity in any extra-judicial killing in their area of jurisdiction. As a result of the inability of state security apparatuses to preserve lives and property, the people have taken the initiative of providing vigilante groups. These vigilante groups employ the system of torture to extract confessional statements from suspects. They go further to kill robbery suspects without judicial trial. The police are also frequently subject suspects to torture for the purpose of extracting confessional statements from them, or to satisfy whoever employs them to make the arrest.
Another disturbing trend in Nigeria’s present experiment on democracy is the upsurge of ethnic sentiments and the growth of the phenomenon of ethnic militia groups, which militarise ethnic conflicts. A lot of blood is wasted on communal clashes. The Federal Government’s response to the situation is to make a ‘shoot on sight’ order on members of the ethnic militia group involved.
Furthermore, with the expansion of the Sharia legal system to the field of criminal law by states in northern Nigeria, some people are tried, convicted and executed for not breaching any criminal criminal law of the land; but for transgressing some religious injunctions. A disturbing dimension was the passing, in 2003, of a death sentence on a journalist by the deputy governor of Zamfara State for alleged blasphemy.
In a democracy, the government has an obligation to refrain from taking life without due process. In addition it has a positive duty to protect lives and property. Even in a situation of emergency, the government cannot intentionally take life without due process. The killings by the vigilante and ethnic militia groups are antithetical to democracy. Furthermore, the execution of some persons by the state for breach of religious injunctions, which are not crimes under the penal laws of the land, are no less extra-judicial killing, which is incompatible with the concept of democracy. In the same web is the passing of death sentence on a person by a member of the executive arm of government. The Constitution of the Federal Republic of Nigeria guarantees the right to freedom from torture, inhuman and degrading treatment. Consequently, any act of torture is a violation of human rights.
The word democracy is susceptible of a variety of tendentious interpretations and definitions. However, Robert Dahl makes the point that democracy requires not only extensive political competition and participation, but also substantial levels of civil liberties and pluralism, that enable people to form and express their political preferences in a meaningful way. For Dahl, it is accountability which equates the rulers and ruled, politically. Based on the postulations of Robert Dahl, Diamond, et al, provides us with a working definition of democracy. He said that democracy is one:
That meets three essential conditions: meaningful and extensive competition among individuals and organised groups….. either directly or indirectly, for the major positions of government power; a ‘highly inclusive’ level of political participation in the selection of leaders and policies, at least through regular and fair elections, such that no major (adult) social group is excluded; and a level of civil and political liberties – freedom of expression, freedom of press, freedom to form and join organisations – sufficient to ensure the integrity of political competition and participation.
It is worthy to note that the concept of democracy received its greatest impetus is a result of advances in the physical and biological sciences. In fact, modern democracy is a by-product of modern science. Every scientific investigator takes nothing for granted and keeps on experimenting and searching until a final truth emerges or is attained, a truth which has been tested and found not to be wanting in any way, even then he allows others to challenge and probe what he thinks and discovers to be truth. Similarly, democracy implies the recognition of scepticism as a vital element and attitude in the lives of free men. The democrat realises the imperfect and selfish nature of human beings. Therefore, he is always sceptical. He would not accept anything for granted unless he is convinced of the truth, or the truth is proved to him. This scepticism of the democrat is based not only on philosophical grounds, but also on the common sense experience and observation that man is too often inclined to pronounce his interest and passion as universal truth. The democrat, therefore, has no absolute certainty about his own views and is willing to concede to his opponents the right to oppose or criticise him.
The real democrat, like the real scientist, treats his opponents as a friend rather than enemy. The scientist is always aware of the incompleteness of his data; he therefore feels no animosity against an opponent or a person who disagrees with him. A scientist does not look upon a fellow scientist who disagrees with him as an enemy or traitor or moral delinquent to be silenced or liquidated, but instead he regards him as a colleague, an honourable opponent who is to be respected. This is because the scientist acknowledges the fact that he could be wrong – since no one possesses perfect knowledge.
Democracy calls for an open society. It calls for free competition of ideas.
The link between democracy, humanity and the rule of law
Democracy and human rights
Professor Osita Eze wrote that it is difficult to make a distinction, conceptually or in practical terms, between human rights and democracy, for the democratic right to choose, direct and control those who govern, as well as participate in government is part and parcel of the political liberties guaranteed as human rights. By the same token, the degree to which democratic rights are enjoyed by the citizenry will, by and large, determine the measure of human rights protection, whether in the economic, social, civil or cultural field because they are all interdependent and mutually self-reinforcing. It has also been observed that since it is accepted that majority rule is essential to democracy, liberty is essential to majority rule and thus democracy; for who the true majority is, and what it wants cannot be known until everybody has been freely heard and a free and fair election held. Democracy, therefore, requires the continuous formation and reformation of majorities, a process that requires freedom of discussions and political organisations.
Democracy necessarily implies the notion of human rights, for citizens must have certain guaranteed rights if an effective democratic structure is to be put in place. Democracy entails the exercise of human rights and is ultimately about expanding human freedom and potentials. The erudite Justice Niki Tobi has pertinently observed:
in a democracy, human rights provisions in a constitution are sacrosanct, and should be so construed and interpreted. They are the bedrock of the constitution insofar as the liberty of the individual is concerned. No democracy worth the name or the salt can afford to reduce them to a second place because they will be an affront to democracy
Democracy and the rule of law
The chief aim of democracy is to prevent arbitrary government and to ensure that power flows from the consent of the governed. However, democracy has its own capacity for tyranny. Some of the most menacing encroachments upon liberty invoke the democratic principle and assert the right of the majority to rule. The doctrine of the rule of law, therefore, comes in to ensure that governmental power is exercised in accordance with pre-determined rules as opposed to the exercise of a arbitrary power.
The operation of the rule of law is a condicio sine qua non for the enjoyment of civil liberties in a state. It is in recognition of this fact that the Universal Declaration of Human Rights in its preamble states, inter alia:
Whereas it is essential if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
On the other hand, the doctrine of the rule of law can only thrive in a democracy – a fact acknowledged by the International Commission of Jurists in their Delhi Declaration. The contemporary definitions of the rule of law encompass democracy – a man should not be governed or ruled by just any laws except those enacted by a legislature, which is answerable to him, and such laws should embody such concepts or experiences that are acceptable to that society.
The rule of law does not mean only negative restraints on government. In the Delhi Declaration, the International Commission of Jurists in its definition of the rule of law in relation to the executive said:
There should not only be adequate safeguards against abuse of power by the executive, but also an effective government capable of maintaining law and order….
Let us now take a cursory look at the concept of torture and extra-judicial killing.
Torture and extra-judicial killing
Torture, according to the UN General Assembly, constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment. To the European Commission on Human Rights, the word ‘torture’ is often used to describe inhuman treatment, which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and is generally an aggregate form of inhuman treatment.
Section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria provides that
“……. no person shall be subjected to torture or inhuman or degrading treatment”.
‘Extra-judicial’ means happening out of court; out of the jurisdiction of the proper court. Thus, extra-judicial killing means killing not sanctioned by a court of competent jurisdiction in the process of criminal trial.
The 1999 Constitution, in section 33(1) guarantees the right to life in the following terms:
Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty.
The only permissible limitations on the right to life are contained in section 33(2) of the Constitution, which provides that a person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary:
(a) For the defence of any person from unlawful violence or property;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
( c) For the purpose of suppressing a riot, insurrection or mutiny.
It must be noted that the general omnibus derogation and limitation clauses in section 45 of the Constitution does not apply to the right to life. Thus, any killing not within the context of section 33(1) & (2) above will be unlawful and illegal.
The pertinent question is whether the limitation clauses allow intentional killing in the circumstances enumerated in section 33(2) (a)-(c). It is respectfully submitted that the killing permitted under section 33(2) should have the objective of achieving one of the specified aims and the killing is merely a consequence of using an absolutely necessary amount of force in doing so. The European Commission on Human Rights, in construing a similar provision, ruled that if disproportionate force is used and death results, the Convention is violated, even if death was unintentional. While the use of force may sometimes be necessary, conduct resulting in death, whether intentional, negligent or accidental, should always have to be justified.
The duty of the state is to secure life
Though the Constitution made no express provision on this matter, it can be implied from the spirit and some other provisions of the Constitution, that there is a duty on the State to act to secure life. Furthermore, though section 33 of the 1999 Constitution, which guarantees the right to life, appears to have merely imposed a negative obligation on the State not to take life, when that section is read together with section 14 (under the Fundamental Objectives, and Directive Principles of State Policy), it will be clear that the State has a duty to act to save life. Section 14 enacts that the security and welfare of the people shall be the primary purpose of government.
Furthermore, the Constitution provides that Nigeria shall be a democratic nation, which implies the doctrine of the rule of law.
The European Commission on Human Rights, while interpreting a provision under the European Convention similar to section 33(1) of the Nigerian Constitution, maintained that right to life imposes obligations on states to take appropriate steps to safeguard life. This will, for instance, entail taking appropriate steps to promote security and to prevent murder and other crimes threatening life. The United Nations Human Rights Committee has equally noted that the right to life includes a duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.
Having examined the concepts of democracy, torture and extra-judicial killing, and the circumstances in which some extra-judicial killing can be justified under the Constitution, and having stated the obligation on the part of the State to act to save life, let us now bring theory and practice into focus by juxtaposing the realities of Nigerian nascent democracy with the principles stated above.
Torture and extra-judicial killing in Nigeria’s 4th Republic
There have been numerous cases of torture and extra-judicial killings since the advent of the Nigerian nascent democracy. This is notwithstanding the constitutional guarantee of right to life in provision against torture, inhuman or degrading to treatment. Members of the police and armed forces regularly beat up, kill or maim protesters, criminal suspects and, in some cases, innocent persons. In Nigeria, gunshots and horsewhips are still instruments of compliance/obeisance employed by the security forces. In 2003, the police in Anambra State shot to death four persons when the driver of the vehicle conveying them refused to offer gratification to the police. The police on a regular basis employ torture as a means of extracting confessional statements from suspects.
During communal conflicts that have become recurrent in Nigeria, the police and the armed forces do not respond to them timorously. When they arrive late, the only solution they know is to kill and maim. Worse still, where in the course of communal conflicts or during riots, a member of the police or armed forces is killed, the police or armed forces will exact revenge by ordering a massacre of the people of the area. The people of Odi in Rivers State, Obiaruku in Delta State and the Tivs in Benue State have witnessed such massacre. In the Tiv case, the Tiv militiamen had murdered 19 soldiers sent to Zaki-Biam on a peacekeeping mission, mistaking them for spies of the opposing Jukun people. Nigerian soldiers went on a revenge mission, killing more than 200 innocent Tivs. The story of the manner of the execution of the revenge mission in Gbeji village is most horrifying. According to the Tell Magazine account,
The soldiers were said to have stormed the village and invited the residents for a peace meeting at a market square. All of them gathered, and were later told that they had a message from the President for the men. The women and children were told to go.
…….. shortly after the women departed, the soldiers opened fire at (sic) the men, killing over 70 of them.
In the case of Odi town in Bayelsa State, some irate youths kidnapped and murdered 12 policemen who were in the town on a surveillance mission. President Olusegun Obasanjo gave the youths a 14-day ultimatum to produce the policemen. At the expiration of the 14-day ultimatum, on the 20th November, 2002, the town came under bombardment by soldiers drafted to the area who employed heavy artillery, aircraft, grenade launchers, bombs and other sophisticated weapons in their operation. Many lives were lost in the process.
A similar incident occurred at Obiaruku in Delta, where the police alleged that some protesting youths shot at them; consequently they opened fire on the youths, which left many of them dead.
In response to the spate of violence being unleashed by some ethnic militia groups, President Obasanjo had on several occasions made a ‘shoot on sight’ order. He once ordered that any member of the Odua People’s Congress, an ethnic army of Yorubas, should be shot on sight. Killing of persons in such circumstance amounts to extra-judicial killing. No matter the motive of the President in positively ordering the coercive institutions of the State to kill, either in retaliation for the killing of their members, or as a means of stopping violence or riotous behaviour, it must be stated that he acted in breach of the rule of law, the constitution and democracy. In a democracy, the State cannot order its coercive apparatuses to intentionally take life without due process. Even in times of war, the State cannot take life arbitrarily.
Another disturbing trend since the advent of the civilian regime is the growing number of politically motivated assassinations. To use the words of the Nigerian-based news magazine:
More than 15 states of Nigeria have witnessed the kill-the-opponent trend so far. It has been most bloody in Enugu, Nasarawa, Lagos, Bayelsa and Taraba States. Across Nigeria more than 100 people suffered brutalities, death, harassment, threats or intimidation over political disagreements.
After every incident of assassination, the Governor of the State and other political officeholders will make a public statement denying complicity in the act. Assuming they have no hand in the assassinations, they tend to forget that they have a duty under the Constitution to take necessary steps to protect life and, as such, prevent such occurrence.
There has also been an upsurge in the incidences of armed robbery and other violent crimes in Nigeria. In a single robbery attack, 22 persons were left dead in Awkuzu, Anambra State on Wednesday, 18th July, 2001. A Nigerian news magazine captured the situation in its cover story entitled ‘Season of Terror, Armed Robbers and Assassins hold Nigeria hostage’. The period between April to October, 2002, recorded eight major armed robbery attacks on banks in which 15 persons were killed, while many others were injured. A total of 74.7 million Naira was lost to invading robbers. The situation got so bad that in August, 2002, the US State Department issued a warning to her citizens residing in Nigeria that the country has become an unsafe place to reside in as a result of the menace of armed robbery and other violent crimes.
Law and order perverted by corruption
The Nigerian state was unable to respond to the increasing spate of robbery activities and other violent crimes. The institutions and agencies for administration of justice in Nigeria have been perverted by corruption. The police and the judiciary appear to be the most corrupt institutions in the country. Corruption turns law enforcement into a moneymaking venture, with the result that some innocent persons are unlawfully kept in detention, while those who actually committed offences are left to go scot-free. It also turns justice into an auction sale that goes to the highest bidder. There is also the problem of politicisation of law enforcement agencies and the judiciary. With political pressure, people who commit heinous crimes in Nigeria are not prosecuted, or if prosecuted, are acquitted by the courts. Sentiments based on blood, or business relationship, or friendly ties with the members of the police force or the judiciary, enable many guilty people to go unpunished in Nigeria. In the circumstance, some gangsters have arisen to terrorise the State, and the justice system in Nigeria proved itself incapable of securing lives and property. One of the resultant state of affairs is that people lost faith in the ability of governmental agencies to protect lives and property.
Given the apparent inability of the government to secure lives and property, the people now take the initiative of setting up anti-robbery vigilante groups, like the Bakassi Boys in eastern Nigeria. Some ethnic militia groups like the OPC (Odu People’s Congress) and APC (Arewa People’s Congress) now add robbery control to their responsibilities. When the activities of the Bakassi boys became popular, because they reduced the menace of armed robbery the way the police could not do, some State governors in eastern Nigeria like Abia, Anambra, Imo and Eboyi States enacted enabling laws for these groups. The various vigilante groups subject robbery suspects they arrest to all manner of torture and inhuman treatment for the purpose of extracting confessional statements from them. When they ‘find’ a suspect ‘guilty’ in their chambers, the suspect is cut to pieces with a machete in the public glare and set ablaze. Alternatively, a gasoline-soaked tyre is hung around a victim’s neck and then ignited. Thus, mangled and decomposing corpses of suspected criminals became a common sight in several cities. The OPC was reported to have, on one occasion, nailed a robbery suspect to the cross.
There are also several instances where street mobs apprehended and killed suspected criminals. Though these informal security outfits succeeded in reducing violent crimes, their activities amounted to a repudiation of due process and a violation of human rights in a proportion that is incompatible with civilised life. The situation is reminiscent of man in a state of nature depicted by John Locke, where every man took personal vengeance on any perceived wrong done to him.
Another aspect of extra-judicial killing in the Nigerian nascent democracy, is the killings by some State actors of persons who transgress religious injunctions without violating the criminal law of the land. By section 36(12) of the 1999 Constitution of Nigeria, no person shall be convicted of a criminal offence unless such an offence is defined and the penalty, therefore, is stipulated by a written law. Written law, for the purposes of that section, is defined to be an act of the National Assembly, or a law of the State House of Assembly. In adopting the Sharia legal system, the Zamfara State Government legislated the entire corpus of the Islamic law as part of the formal sources of the law in the state. By implication, any offence under the Qur’an will be prosecuted and punishment imposed for it in the State even when such an act or omission is not an offence under written law in Nigeria. It is hereby submitted that it is an act of extra-judicial killing where a person is killed for breach of religious injunction, which does not amount to an offence under any written law in Nigeria. Furthermore, the execution of any death sentence imposed by any body our authority in Nigeria, other than a court of competent jurisdiction exercising judicial power, is tantamount to extra-judicial killing. For instance, if a death sentence (fatwa) imposed by a State governor or deputy governor for alleged blasphemy or insult to religion, were carried out; it would amount to extra-judicial killing.
Given the foregoing, the question of whether Nigeria is now in a democracy or a state of anarchy must be raised. In a democracy both the governor and the governed must act within the law. There cannot be a democracy where the people’s fundamental rights are not protected, particularly the right to life, which perhaps is the most fundamental of fundamental rights.
This is an abridged version of a paper by Osita Mnamani Ogbu for Rivers State University.
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