THE POWER OF A POLICE OFFICER TO SHOOT AT AN ESCAPING FELON; AN AFFRONT ON SECTION 36(5) OF THE 1999 CONSTITUTION AS AMENDED
THROUGH THE EYES OF THE SUPREME COURT IN CPL WAFA AMINU V STATE (2020) 6 NWLR (PT.1720) 197.
WRITTEN BY: MBANG CONFIDENCE (2021/2022 LAW SCHOOL EXTERN)
IN HONOUR OF CHIEF MIKE OZEKHOME, SAN, OFR, FCIARB, LL.M, PH.D, LL.D.
24TH MAY, 2022.
One of the beauties of Constitutional democracy is the Constitutional provision that regulates the Administration of Criminal Justice in Nigeria. The Constitution provides for rules and exceptions guiding the process from the point of complaint, through investigation by law enforcement agencies up to the stage a matter goes to court for trial. Sections 33 to 46 in chapter IV of the 1999 Constitution (as amended), provides for fundamental human rights which have been described as immutable. The provisions permeate the entire procedure of the Administration of the Criminal Justice system in Nigeria.
This paper deals with pre-trial investigation carried out by law enforcement agencies. In this case, the police as the primary repository of the powers of maintenance and enforcement of peace, security and order by law. In the light of the above, the main focus of this paper pertains to the right of the Police, from preventing the escape of a suspected felon. The paper is divided into five parts, the first part is the introduction, the second part discusses the power of a police officer to use force reasonably necessary to prevent an escape and the right to shoot at an escaping felon, the third part is a crytical examination of the discourse, through the eyes of the Supreme Court in CPL WAFA AMINU V The State, part four is the recommendation of the work, and part five is the conclusion of the paper.
2:0 THE POWER OF A POLICE OFFICER TO SHOOT AT AN ESCAPING FELON AS AN AFFRONT TO THE 1999 CONSTITUTION AS AMENDED
Generally, the duties of the police as enshrined in Section 4 and 60 of the Police Act, 2020 (as amended), is to maintain and enforce peace, security and order in the society. These duties confer rights to effect interviews, interrogation, searches, arrest and even prosecution. Therefore, it is pertinent to ex-amplify these rights and consider them within their Constitutional limits. It is settled law that by virtue of section 33(2)(b) of the 1999 Constitution(as amended);a person shall not be regarded as having been deprived of his life 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 in order to effect a lawful arrest or prevent the escape of a person lawfully detained. No doubts, the above provision is an exception to the right of life, but the writer is in conundrum when it is discovered that the same Constitution fails to define what amounts to the use of force reasonably necessary’, and as an issue of fact, what is the parameters to be adopted by the court as a determinant factor?, In other words, what is the test for force reasonably necessary?, Is it subjective or objective? This is one of the question the writer seeks to ascertain.
Accordingly, assuming it is an objective test, it becomes a reasonable man, therefore who is a reasonable man in the stead of a Police Officer? It is propose to leave this question open for obvious reasons. The main focus of this paper is the right of a police officer to shoot at an escaping felon as one of the instances that grounds the exceptions to right to life. The present writer contends that this right granted to police is contrary to the spirits of section 36(5) of the 1999 Constitution (as amended). For purposes of completeness, section 271 of the Criminal Code Law of Rivers State provides thus; when a Peace Officer or Police Officer is proceeding lawfully to arrest, with or without warrant a person for an offence which is a felony and is such that the offender maybe arrested, it is lawful for the Peace Officer or Police Officer and for any person lawfully assisting him to use force as maybe reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender maybe punished with death or with imprisonment for seven years or more may kill him if he cannot by any means otherwise be arrested.
The writer expresses worries about the section in the light of section 36(5) of the Constitution which guarantees the right to presumption of innocence. For purposes of scholarship, the Section provides as follows; every person charged with a criminal offence is presumed to be innocent until the contrary is proven. Oh, how sacred is a right that it is enshrined in a section that is entwined and intertwined to other sister sections in chapter 1V of the 1999 Constitution as amended. The right to life as guaranteed in section 33, subsection 2(b) provides for use of force reasonably necessary to effect a lawful arrest and prevent escape of persons detained and death resulting there from not to be considered as deprivation of life, this right could not have impliedly conferred on the police the right to shoot at an escaping felon if it is remembered that, the law could not have been contemplated at the long run to give the Executive the power to prosecute, judge and sentence suspects, doing otherwise is tantamount to a denial of fair hearing which God gave Adam in the Bible, in other words, section 36(5) should be resorted to, before a police shoots; who knows if the man being shot was just a passer-by mistaken to be an escaping felon?. The exception in section 33(2)(b) of the 1999 Constitution should not be over expanded, therefore it is my contention that, to the extent that section 271 of the Rivers State Criminal Code empowers the police to execute escaping felons summarily, same should be declared inconsistent with section 36(5) of the Constitution for being a legislative tragedy as it rarely even avails a police Officer in practice. We shall see so in the case below.
3:0 THROUGH THE EYES OF THE SUPREME COURT IN CPL WAFA AMINU V THE STATE
The brief fact of this case is that, on the 17th day of September, 2006 at about 9:30 on one Nnamdi Ajikere a student of the University of Port – Harcourt was shot and killed by the appellant a police Officer. The deceased, younger sister and a female companion engaged in an altercation with a taxi driver (DW1): over transport on their way to buy food, the taxi driver (DW1) promised to deal with them with them and drove off. They boarded another taxi, meanwhile, the first taxi driver (DW1) on his way met some police officers at a nearby junction and reported to them that he had just been harassed and robbed by cultists/robbers of his Nokia phone and a sum of 1500 naira. . They drove and overtook the taxi carrying the deceased, stopped them, search and beat them without finding any incriminating items, the deceased was hit by the appellant with the butt of the gun, and when he was to be hit the second time, he took to his heals, the appellant then hit him at the back, hitting him on the neck and the deceased died on the spot.
At the trial Court, the defence of self defence raised by the defence was overruled, he was convicted for murder and sentenced to death by hanging, his appeal was also dismissed. On further appeal to the Supreme Court, his conviction was upheld. The court per Mary Peter Odili JSC( as he then was), stated pungently; ” section 271 of the Criminal Code Law of Rivers State permits a police officer to shoot at an escaping felon in order to restrain him. The defence offered by section 271 of the Criminal Code Law of Rivers State is not an excuse for unreasonable reckless killing that smacks of extra- judicial killing as in the instant case. The section only avails the accused if the force used to restrain the deceased was reasonably necessary to prevent the escape of the deceased from arrest. In the instant case, the trial Court and the Court of Appeal concurrently found that from the prosecution’s evidence the deceased had already been subdued and had been forced to lie on the ground. Shooting him at the back of his head was no longer a reasonably necessary act to prevent him from escaping”. (p. 235, Paras C-D).
I feign no enigma against the judgement other than these very question, does this not violate the presumption of innocence of the escaping suspected felon? I added ‘suspected’ before the felon because some few days ago I used the term ‘escaping felon’ and was bullied by a colleague. Again, would it not amount to extra- judicial killing? What is the true test for the exercise of this right, assuming but not conceding that it is consistent with the Constitution?
The position of the writer is that section 271 of the Rivers State Criminal Code Law and that of various States is contrary to the spirits of section 36(5) of the 1999 Constitution (as amended), it is strongly contended and recommended that legal pundits, luminaries and Scholars should revisit this aspect of law, and the Court should be invoked to deliver a proper and near mathematical interpretation of the Law vis-a-vis the Constitution. The writer is of the view that a total deletion of that provision of the law is better, if not, the provision should only be resorted to as a shield in situations where the escaping felon is armed with a weapon and attempts to commit an offence punishable with death, it will reawaken the consciousness of the Nigerian Police so as to guide them against such circumstances which has greeted so many with death sentence without any viable defence to hold on. Therefore, this paper is written in honour of Chief Mike Ozekhome, SAN my legal mentor, a renowned Constitutional lawyer and human rights activist, an academic, prolific writer and scholar par excellence, for his direction as the Nostradamus of the law.
The decision of the Supreme Court in Aminu’s case is evident of the fact that this right (albeit described as a defence by the Court) as provided in section 271 of the Rivers State Criminal Code Law and all other Laws of various States rarely see the light of the day because many a times, the fact proves violation of section 36(5) and 33(1) of the 1999 Constitution and this is not healthy for a Justice system like ours, many police officers have been sentenced to death trying to rely on this section. For instance, in Adiele & ors V State (2011) JELR 49263(CA), Adeboye V State (2017) LCN/4521, the Court of Appeals and Supreme Court respectively convicted and sentenced the appellants (police officers) to death and manslaughter respectively. The question that begs for answer is whether the section is not inimical to the police officers, because many a times, they have been sentenced to death for improper exercise of this power.
On the whole, it seems except an escaping felon is armed with a weapon and attempts a felony, a police officer cannot be protected under the section especially as it is in my humble view contrary to the Constitution. In FRN V Ifeagwu (2003) 15 NWLR (pt. 842)113, the Supreme Court was firm when it was declared as follows, ” … All actions of the government in Nigeria are governed by the Constitution and it is the Court as the organic law of a Country that declares on formal, emphatic and binding principles the rights, liberties, powers and responsibilities of both the governed and the government”.