Section 32 of the 1979 Constitution provided that every individual was entitled to respect for the dignity of his person, and accordingly no person shall be subject to torture or to inhuman or degrading treatment.
Article 5 of the African Charter on Human and Peoples Rights *Ratification and Enforcement Act Cap A9 Laws of the Federation of Nigeria 2004 provides that “all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”.
In utter breach of the above provisions of the Constitution and the African Charter, the police and other security agencies subjected lowly placed Nigerian citizens to torture in detention facilities, markets and other places. In Mogaji V. Board of Customs & Excise (1982) 3 NCLR 552, the armed agents of the defendant invaded and raided markets in Lagos and seized contraband goods. In the process, some of the traders were brutalized.
The victims sued the defendant for damages in the Lagos high court. Adefarasin CJ held that it was a violation of the constitutional prohibition of inhuman or degrading treatment to organize a raid with the use of guns, horse-whips and tear gas in a market in the course of a purported search of contraband goods & to injure custodians of such goods. The judge opined that “Those in authority in customs and excise matters ought to intensify methods for apprehending offenders at the point of entry of goods into the country as it becomes more difficult to do so afterwards.”
Notwithstanding that section 34 of the 1999 Constitution equally guarantees the fundamental right of every citizen from torture, inhuman or degrading treatment, the police and other security agencies continued to subject poor citizens to horrendous torture. In 2007, the Government of Nigeria was indicted in the report of the then United Nations Rapporteur on Torture, Mr. Manfred Nowak. In his detailed report, Mr. Nowak, ” Police shoot prisoners, beat them and hung them from the ceiling for long periods… detainees in Nigerian police cells were frequently tortured to extract confessions
The Rapporteur also found that torture is an intrinsic part of how law enforcement services operate within the country. In particular, he confirmed that the police engaged in ” flogging with whips, beatings with batons and machetes, shooting suspects in the foot, threatening suspects with death and shooting them with power cartridges. . . as well as “suspension from the ceiling or metal rods in various positions and being denied food, water and medical treatment.”
Following such international embarrassment and indictment by local human rights bodies, Nigeria ratified the Anti Torture Convention of the United Nations in 2007 and the Optional Protocol in n 2017, the National Assembly domesticated and enacted the Anti Torture Act in 2017. Specifically, the Anti-torture Act 2017 has criminalised torture, cruel, inhuman and provided protection for victims and witnesses of torture.
Section 1 of the Act has imposes an obligation on government to ensure that the rights of all persons, including suspects, detainees and prisoners to freedom from torture are respected at all times and that no person under investigation or held in custody is subjected to any form of physical, mental or psychological torture.
Section 2 titled ‘Acts of Torture’ defines what amounts to torture thus:
“torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to –
(a) obtain information or confession from him or a third person;
(b) punish him for an act he or a third person has committed or suspected of having committed;
or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind’.
It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:
Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach;
Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten;
Electric shocks;
Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds;
The submersion of head in water or water polluted with excrement urine, vomit or blood;
Blindfolding;
Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts;
Confinement in solitary cells put up in public places;
Confinement in solitary cells against their will or without prejudice to their security;
Prolonged interrogation to deny normal length of sleep or rest;
Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.”
Section 8 of the Act titled ‘Penalties’ provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years. If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take way the victim’s right to institute a civil claim in court for damages or compensation for the torture.
In order to stop the practice of torturing lowly placed suspects to make confessional statements during the investigation of criminal offences, sections 15 of the Administration of Criminal Justice Act 2015, the taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audio virtual means. Section 17 thereof further provides that the statement may be taken in the presence of a legal practitioner or his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an officer of a civil society organization or a Justice of the peace.
Even though the Administration of Criminal Justice Act became effective in May 2015, confessional statements are still obtained by force in the absence of lawyers, leading to trial within trial during the prosecution of criminal cases. However, in Federal Republic of Nigeria.v. Akaeze [2024] 12 NWLR (Pt. 1951) 1 the Supreme Court held that it is mandatory for law enforcement agencies in Nigeria under sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 (“ACJA“) to record electronically confessional statement of suspect during criminal investigation in an audio-visual format. See also Friday Charles v. The State of Lagos (2023) 13 NWLR (Pt. 1901) 213.
It is public knowledge that, in spite of the clear provisions of the Constitution and other local and international human rights instruments, the fundamental right of children, indigent citizens and criminal suspects to freedom from torture, cruel and degrading treatment is routinely violated in all states of the Federation and the Federal Capital Territory. Hence, it has become necessary for the National Human Rights Commission, the Nigerian Bar Association and the human rights community to mobilise Nigerians to expose and report private individuals and public officers whenever they contravene the provisions of the Anti Torture Act 2017.
