By Adewole Kehinde
For the past two weeks now, the social media has been agog with EndSARSNow and SupportSARS campaign with each group giving reasons to substantiate their agitation for and against Special Anti-Robbery Squads.
I have been disturbed by the stories and videos of infringements allegedly by operatives of the Special Anti-Robbery Squads.
As we all know, the Special Anti-Robbery Squad (SARS) is a section under the Nigeria Police Force Criminal Investigation and Intelligence Department (FCIID), which is the highest investigating arm of the Nigeria Police.
Its functions include investigation and prosecution of serious and complex criminal cases within and outside the country.
The department also coordinates crime investigations/prosecution throughout the force.
As some familiar with the activities of the Special Anti-Robbery Squad (SARS), I will breakdown majority of SARS activities below for Nigerians and other residents of Nigerians under the theme: Arrest and Detention; Torture, Use of Force & Firearms; and Maintenance of Public Order.
An arrest is the act of depriving people of their liberty, usually in relation to an investigation or prevention of a crime, and thus detaining the arrested person in a procedure as part of the Criminal Justice System.
The purpose of arrest is to bring suspect before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. The methods of securing attendance of an accused person include: summons, written notice and indictment.
The manner in which arrest is properly administered is when an accused may be arrested with a warrant. It is always better to obtain a warrant. The advantage of obtaining a warrant is that it can safeguard the Police against civil claims of unlawful arrest. If a warrant is used, a copy must be provided upon request.
Arrest is allowed when the Police have reasonable grounds for suspecting that someone is committing, have committed or be guilty of committing an indictable offence.
The rights of suspects upon arrest includes but not limited to:
•No suspect shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
•Anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his or her arrest
•Anyone who is arrested shall be promptly informed of any charges against him or her
•Anyone who is arrested shall be brought promptly before a judicial authority
•Anyone who is arrested has the right to appear before a judicial authority for the purpose of having the legality of his or her arrest or detention reviewed without delay, and shall be released if the detention is found to be unlawful
•Anyone who is arrested has the right to trial within a reasonable time, or to be release from detention. Pending trial shall be the exception rather than the rule
•All arrested or detained persons shall have access to a lawyer or other legal representative and adequate opportunity to communicate with that representative
•A record of every arrest must be made and shall include: the reason for the arrest; the time of the arrest; the time the arrested person is transferred to a place of custody; the time of appearance before a judicial authority; the identity of involved officers; precise information on the place of custody; and details of interrogation
•The arrest record shall be communicated to the detainee, or to his or her legal counsel
•The family of the arrested person shall be notified promptly of his or her arrest and place of detention
• No one shall be compelled to confess or to testify against himself or herself
•Where necessary, an interpreter shall be provided during interrogation.
International law provides substantive safeguards against unlawful as well as arbitrary detention. “Arbitrariness” is to be interpreted broadly to include not only unlawfulness, but also elements of inappropriateness, injustice and lack of predictability. To guard against arbitrariness, any detention needs to be necessary in the individual case, reasonable in all the circumstances and proportionate to a legitimate purpose.
Further, failure to consider less coercive or intrusive means could also render detention arbitrary.
A SARS personnel must first of all determine whether there is sufficient evidence so that he can charge the arrested person with an offence. If the SARS official is unable to determine that there was such sufficient evidence, the arrested person must be released. The SARS official may not be willing to release the arrested person if he believes that there are reasonable grounds to believe that the detention of the arrested person is absolutely necessary.
Such reasonable grounds are for instance the need to secure the evidence, or the need to obtain the evidence by the questioning of the arrested person. In case such grounds are found, the SARS official must then authorise the detention of the suspected person. Following the authorisation, the detention record must be open for the suspect, the suspect must also be informed of the reasons for his detention, and the suspect must be also advised of his rights. The SARS official have the power to arrange for the detainee to be searched and certain items can be seized. As in accordance with the Police and Criminal Evidence Act, the items which can be seized include clothing or anything which could help the detainee damage himself, others or the SARS property, or which could help him escape or interfere with evidence which relates to the offence.
Finally, all SARS officials must respect the under listed International Human Rights Practice pertaining to Arrest:
•Review regularly, for a clear understanding, your powers of arrest and the procedures to adopt upon and following arrest
•Participate in training to develop and maintain the necessary interpersonal skills, and especially skills of communication, to enable you to effect arrests expertly, discreetly and with due respect for human dignity
•Where resistance is not evident, attempt calm, polite, disarming language when affecting an arrest, resorting to strong, authoritative tones only when necessary
•Develop and maintain the necessary technical and tactical skills to enable you to carry out arrests expertly, discreetly and with due respect for human dignity
•Develop and maintain skills in the use of handcuffs and other means of restraint
•Develop your self-confidence, including through self-defence skills
•Study carefully the chapter on the use of force, as it applies to arrests
•Seek an arrest order/warrant whenever possible
•Carry a small card in your uniform, setting out the rights of an arrestee, and read those rights, verbatim, to the arrestee once he or she has been secured
•Study conflict-resolution techniques, through in-service training or community education programmes
• Keep careful arrest records, with detail as the first rule of thumb Command and supervisory officials
•Issue and enforce clear standing orders on arrest procedures
•Provide continuous training to all officers on procedures for arrest, the rights of the arrested, and techniques for effecting arrest safely and humanely
•Provide training in interpersonal skills, conflict resolution techniques, self-defence and the use of restraint mechanisms
•Develop standard forms for the recording of arrest information, based on this chapter and the laws and procedures for arrest in your jurisdiction
•When arrests can be planned in advance, ensure that a range of options is available, and that planning, preparation, briefing and tactics adopted are appropriate to the circumstances and conditions under which the arrest is to be made
•Debrief the officers involved after every arrest, and carefully check the arrest record to be sure it is complete
•Establish procedures to ensure the unhindered access of legal counsel to arrested persons
If a suspect is arrested and held at a Police station or other premises he/she has certain statutory rights. Detained persons are treated in accordance with the Nigeria Criminal Procedure Act. The Police officer must ensure that the detained person is informed of his rights.
Other statutory rights of detainee include:
• All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person
• Everyone charged with a penal offence shall be presumed innocent until proven guilty in a fair trial
• No detainee shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, or to any form of violence or threats
• Detained persons shall be held only in officially recognized places of detention, and their family and legal representatives are to receive full information
• Juveniles are to be separated from adults; women from men; and un-convicted persons from convicted persons
•Decisions about the duration and legality of detention are to be made by a judicial or equivalent authority
•The detainee shall have the right to be informed of the reason for detention and any charges against him or her
•Detainees have the right to contact with the outside world, to visits from family members, and to communicate privately and in person with a legal representative
•Detainees shall be kept in humane facilities, designed to preserve health, and shall be provided with adequate food, water, shelter, clothing, medical services, exercise and items of personal hygiene
•The religious and moral beliefs of detainees shall be respected
•Every detainee shall have the right to appear before a judicial authority, and to have the legality of his or her detention reviewed
•The rights and special status of women and juvenile detainees are to be respected
•No one shall take advantage of the situation of a detained person to compel him or her to confess or to otherwise incriminate himself or herself or another person
•Measures for discipline and order shall be only those set out in law and regulations, shall not exceed those necessary for safe custody, and shall not be inhumane
The presumption of innocence is one of the most important and ancient rights embodied in criminal justice systems around the world. The right to be presumed innocent until proved guilty is one of those principles that influences the treatment to which an accused person is subjected from the criminal investigations through the trial proceedings, up to and including the end of the final appeal.
This principle is fundamental for the protection of human rights and must guide the prosecution as well as the defence lawyers.
In this context the term “presumption” should not be confused with the concepts of rebuttable or non-rebuttable presumption. In general, a presumption is a rule which permits a court to assume that a fact is true until a preponderance of evidence disproves or outweighs (rebuts) the presumption. A presumption is rebuttable if it can be refuted by factual evidence, on the contrary, it is conclusive or irrefutable if the presumption does not provide for a way to be disproved.
“Presumption”, in the context of the presumption of innocence, means that the burden of proving the charge is on the state. This guarantees that guilt cannot be declared until the charge has been proven by the state.
In many countries the presumption of innocence comes with the corollary that the accused must have the right to remain silent and there must be no need for him to participate in any way to the acquisition of evidence.
However, while this happens in some countries such as the United States, the presumption of innocence does not necessarily imply the right to remain silent. For instance, in France the right to remain silent is granted only during the judicial investigation, while during the investigatory detention conducted by the Police such right is not envisioned.
The presumption of innocence guarantees that the accused has the benefit of doubt, which has to be declared in the final decision by a fact finder. The fact finder must ignore all pre-trial evidence of guilt and determine the guilt or innocence evaluating only the evidence presented at the trial.
The presumption of innocence implies that people who are accused of a criminal act must be treated in accordance with this principle. When the circumstances require to have accused people temporarily deprived of their personal liberty they have to be separated from convicted persons, except for unusual circumstances. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media, moreover, should avoid news coverage undermining the presumption of innocence.
Defence lawyers should, always keep in mind the presumption of innocence when representing a client. For example, a lawyer should challenge the legitimacy of any domestic provision attempting to undermine this principle. Also, counsels should attempt to anticipate weaknesses in the prosecution’s proof and consider researching and preparing corresponding motions for judgment of acquittal if the prosecution fails to produce evidence on any element of a crime. In deciding on a defence strategy, the lawyer, together with the accused, should consider whether the client’s interests are best served by not putting on a defence case, and instead relying on the prosecution’s failure to prove guilt beyond a reasonable doubt.
The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.
During the investigation phase, the Police need only to establish a sufficient cause to arrest, and sustain a charge. They do not need to establish the arrested is guilt beyond a reasonable doubt. However, it is during this time that the arrested is most likely subjected to a violation of his rights, such as the right to remain silent or the right not to be forced to make any statement against himself and therefore his right to be considered innocent until a final decision is reached.
Finally, all Police officials must respect the under listed International Human Rights Practice pertaining to Detention:
•Enrol in training programmes to sharpen your counselling, riot-control, first-aid, self-defence, conflict resolution and supervisory skills
•Study the entry review and assessment records of all detainees to be aware of persons at risk
•Facilitate visits by clergy, legal representatives, family members, inspectors and medical personnel
•Study and employ modern best practice techniques for interviewing
•Wear a clearly visible identity badge at all times
•Do not enter the facility carrying a firearm, except to transport a detainee outside
•Carry out regular, periodic checks of detainees, to ensure safety and security
•Consult closely with medical personnel on all matters of diet, restraint and discipline
•Report immediately any suspicion of mistreatment of detainees, physical or mental
•Never use restraint instruments for punishment. Use them only where necessary to prevent escape during transfer; on certified medical grounds; or on the order of the Officer, where other methods have failed, for the purpose of preventing injury to the detainee or others, or damage to the facility
•Facilitate the use of recreational materials, books and writing materials
•Carefully study rules on the use of force
• Review and follow relevant recommendations set out below for command and supervisory officials
Command and supervisory officials
•Establish, disseminate and enforce, and regularly review, standing orders on the treatment of detainees
•Provide specialized training to all staff having duties in detention facilities
•Adopt special measures to ensure respect for religious and moral beliefs of detainees, including dietary customs
•Enforce a three-point notification system, giving the detainee: notice of the reason for his or her detention (immediate); notice of charges (prompt); and notice of his or her rights (twice: concurrent with notification of reason, and again with notification of charges)
•In making assignments, arrange to have officers supervising detainees independent from arresting officers and investigating officers
•Meet periodically with the prosecutor, a Judge, Police investigators and social workers, to assist in identifying persons for whom detention is no longer necessary
•Assign female staff to guard, search and supervise female detainees. Prohibit the entry in female sections of male staff, except in emergencies
•Assign a special room, separate from family visit areas, for detainees to meet privately with legal counsel
•Arrange a meeting area for normal face-to-face visits, with a grille, table or similar divider between visitor and detainee
•Strongly prohibit, immediately investigate and severely punish, including through initiation of criminal action, every act of torture or cruel, inhuman or degrading treatment or punishment
•Provide for meals, meeting basic dietary needs, at regular times, and with no more than 15 hours between morning and evening meals
•Assign at least one officer with training in psychological care and counselling, including suicide prevention, to be on duty at all times
•Assess all detainees, upon entry, for signs of illness, injury, alcohol or drug intoxication, and mental illness
•Handle minor matters of discipline discreetly and routinely. Handle more serious matters through pre-established procedures, the existence of which has been explained to all detainees upon entry
• Officers in detention areas should not carry firearms except when transporting detainees outside the facility
•Train all officers assigned to detention areas in nonlethal control methods and in riot-control techniques and equipment use
• Require all detention officers to wear clearly visible identity badges, to facilitate accurate reporting of violations
•Establish a positive relationship with the Amnesty International and other such organizations
•Establish and announce an appropriate range of penalties for police violations, from suspension, pay docking and termination, to criminal prosecution for serious violations
Torture, Use Of Force & Firearms
The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials was adopted by the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders and was welcomed by the General Assembly of the UN in resolution 45/166 in 1990. As such, it is not legally binding for the Member States, but rather seeks to further clarify aspects of the Code of Conduct for Law Enforcement Officials and provide guidelines that it encourages States to adopt and implement.
1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.
2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.
3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.
4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b)Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with Principle 22.
7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.
9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.
11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of fire arms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;
(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;
(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.
Policing unlawful assemblies
12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with principles 13 and 14.
13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in Principle 9.
Policing persons in custody or detention
15. Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.
16. Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9.
17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly rules 33, 34 and 54.
Qualifications, Training and Counselling
18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.
19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use.
20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents.
21. Governments and law enforcement agencies shall make stress counselling available to law enforcement officials who are involved in situations where force and firearms are used.
Reporting and Review procedures
22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 (f). For incidents reported pursuant to these principles, Governments and law Enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.
23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.
24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.
25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.
26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.
The following must be taken into consideration when using torture, use of force & firearms
• Everyone has the rights to life, security of the person, and freedom from torture and cruel, inhuman or degrading treatment and punishment
• Non-violent means are to be attempted first
• Force is to be used only when strictly necessary
• Force is to be used only for lawful law enforcement purposes
• No exceptions or excuses shall be allowed for unlawful use of force