On 25th May 2020, George Perry Floyd Jr. – an African American man was killed during an arrest after a store clerk alleged he had passed a counterfeit $20. A white officer (Derek Chauvin) knelt on Floyd’s neck for an estimated eight minutes before he gave up breath. George Floyd’s death gave rise to widespread protests (in most American cities and internationally) against Police brutality especially towards Americans of black extraction. The credit for the recording of Floyd’s horrifying death was to brave and unrelenting bystanders exercising their rights under the First Amendment of the American Constitution.
The #EndSarsNow# protests was borne of the physical abuse, maiming, killings and wanton atrocities/ illegalities of officers of the now proscribed ‘Special Anti-Robbery Squad – SARS’ in Nigeria. The Inspector General of Police – Muhammad Adamu, in a rather hurried fashion, and within a few hours of the proscription of SARS, announced the setting up of the Special Weapon Tactical Team “SWAT” which development has further drawn flak across a wide range of Nigerians.
For this writer, the experience with a wider section of the Nigerian Police is of unbridled power particularly powers to bear arms without basic monitoring, control and or accountability. Cases of trumped up charges being leveled against innocent citizens (“accused persons”) languishing in Nigerian prisons are rife and replete and it can only be human, humane and honorable for all Nigerians of goodwill to condemn the numbing trail of Police abuses and killings in Nigeria.
Whilst the current protests has fared credibly and may seem to be approaching its peak, the rising potential of violent and criminal opportunists to hijack the moment to inflict hardship, pain and terror on innocent Nigerians is most worrisome and a sad trail. It is crucial for our protesting youths to quickly seize the moment and focus on key and quick milestones that can be achieved as they now have the attention of the Federal Government and the world.
In the view of this writer, one of the most crucial milestone that can be achieved by the current protest is to negotiate and secure the power of ‘private media’ to every Nigerian citizen in Nigeria. And it must be accepted that the recordings of police officers, whether by witnesses to incidents, with officers or individuals who are themselves interacting with officers, or by members of the press, are the most veritable tool in the fight to drive police accountability. Often, it’s the video alone that leads to disciplinary action, firing, or prosecution of an officer.
As legal background, Section 34 of the 1999 Constitution provides “(1) Every individual is entitled to respect for the dignity of his person, and accordingly – (a)no person shall be subject to torture or to inhuman or degrading treatment; (b)no person shall be held in slavery or servitude; …..”.
Section 35 of the Constitution provides that “(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…..”. The exception to this provision includes the execution of Court Orders or similar situation.
Section 36 provides that “(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
Section 37 provides that “The Privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”. A telegraph is defined as an apparatus, system, or process for transmitting messages or signals to a distant place, especially by means of an electric device consisting essentially of a sending instrument and a distant receiving instrument connected by a conducting wire or other communication channel”. It is beyond contest that the modern day mobile phone ticks all the boxes to robustly qualify as a telegraphic to align with the language in the Constitution.
This writer honestly believe that our protesting youth should now be open and prepare to dialogue with the Federal Government a view to make reasonable and practical demands on the government. The following are few crucial points to contemplate with respect to securing private media going forward:
• The right of every Nigerian to record (photos or video) police officers in course of their official duties – this is not to suggest interference with investigation or police officers in course of their duties. A bystander should stay at a safe distance from the scene when recording and not constitute an interference
• It must be made a disciplinary offence where not a criminal infraction for Police officers to order any Nigerian to move or arrest such a Nigerian because he or she is recording an incident
• It must be made a disciplinary offence where not a criminal infraction for Police officers to search the cell phone or other device of any Nigerian without a warrant from a Court based on reasonable suspicion of the commission of a crime. Nigerians must be entitled to decline an order from an officer to review or delete what is recorded in a private phone. Nigerians shall also be entitled to refuse to unlock their phone or provide their passcode except by order of court
• Investigation and detention of suspects that exceeds 48 hours without arraignment must be backed by video or photographic evidence presented to a duly constituted Court
• The process for the investigation, arrest and arraignment of all suspects must be backed by credible video or pictorial recordings from the phone of the suspect, the investigating or arresting officer or a bystander.
Fisayo Esan is the founding partner of Ivy-Law Practice LP of 202, Awolowo Road, Ikoyi, Lagos.