When Supreme Court ruled on Nigeria police

The policing Institution in almost all democratic nations is such a critical platform that is so vital for the sustenance of civil rule and constitutionalism.

This is the reason the advanced western jurisdictions from which Nigeria copied the fundamentals years back to set up the Nigeria Police force have so much codified the ethics and rules of policing so much so that the police operatives themselves are aware of their responsibilities and are accountable for their public and private conduct.

In Nigeria, for several decades, the administration of the policing institution has been anything but edifying just as there is too much indiscipline and the collective collapse of professionalism amongst a clear majority of police operatives. Definitely, political leaders in over 60 years, failed to adopt contemporary changes and modifications of policing institution as are done in developed societies from where hitherto we copied our own police.

Two years back, Nigerians in their numbers trooped out on the streets of Nigeria to denounce police brutality, extra-judicial killings and other malfeasance tearing the police apart.

Hardly has the dusts that reverberated from the nation-wide anti-police protests died down, when Nigerians realised that the then Federal Attorney, the Kebbi state born Alhaji General Abubakar Malami and the then Inspector General of Police Alhaji Mohammed Adamu from Nasarawa State, due largely to their egotistical interest, plotted to torpedo and incapacitate the police service commission (PSC) so as to allow police impunity and lawlessness to continue to thrive.

The duo, Malami and Mohammed Adamu, aforementioned, wanted to take over the statutory duty of the police service commission in the area of police recruitment which is at the core of setting up that near- independent ombudsman for the regulation of police conducts.

Their plot resulted in a heated court case that went through all of the court system and has just ended at the apex court after nearly five years. In these years, police institution stagnated even as fresh energy were not reinjected into the near-moribund Nigeria Police Force due largely to the pursuit of selfish interest by hust two persons who opportunistically found themselves in offices of AGF and IGP under the infamous and inglorious administration of Major General Muhammadu Buhari(rtd).

In the heat of the crisis, the then Federal Attorney General Abubakar Malami, against the clear constitutional provision on the independence of the Police Service Commission, authored a letter supporting the illegal attempt by the then Inspector General of Police to hijack police recruitment from the statutory body in charge of that legal obligation-the Police Service Commission (PSC).

On September 24th 2019, it was reported Attorney-General Abubakar Malami had advised President Muhammadu Buhari to allow the Nigeria Police Force conclude the ongoing recruitment of new constables, dealing a crucial blow to the Police Service Commission that has long asserted constitutional powers over recruitment and regulatory obligations of the police.

The then allegedly crooked nation’s chief law officer told the president that a history of rivalry between the two organisations exists, but the Force Headquarters should have its way in the disagreement around the latest recruitment exercise, as learnt from a presidential memo and administration officials familiar with the matter.

He also recommended an urgent amendment to the Police Act, the Police Service Commission (PSC) Act and the Constitution in order to forestall a repetition of the disgraceful rivalry between both institutions.

As captured in a news report, the jaundiced legal opinion of Abubakar Malami came as the police force under Mohammed Adamu and its regulatory body under the then acting Chairman qho is a retired Justice of the Supreme Court, locked horns over which of either organisation should supervise the recruitment of additional 10,000 constables into the police this year.

Whereas PSC under the then activist acting Chairman, a Woman from South West but married to her husband from North East, called for applications for police recruitment as directed by then President Muhammadu Buhari the Force Headquarters under Mohammed Adamu dismissed the commission’s claims as baseless and spurious, saying instead that it has the powers to supervise new intake of constables. It admonished the commission to focus on its regulatory functions.

The police received 315,032 applications for the 10,000 openings through an online portal that expired on January 11, 2019.

Following disagreements about shortlisting of candidates, the commission announced a suspension of the exercise altogether in August. It cited its constitutional powers to appoint, promote, transfer and dismiss officers from the police.

The Force Headquarters, against good reasoning, however, went ahead with the process, with the then IGP who is Alkali Baba’s predecessor and indeed the protagonist of the original plot which was inherited actually by Alkali Baba, issuing directives to all police commands across the country to conduct medical screening and other related activities for candidates.

Mr Adamu said the commission has legal powers to appoint and regulate officers, but cannot recruit the rank-and-file.

The commission, however, insisted that Mr Adamu’s action would ultimately be rendered useless because it has no legal underpinning.

The PSC has regulated appointment, promotion, transfer and dismissal of police officers (except the inspector-general) since its establishment in 2001.

It has, however, clashed with the Force Headquarters over recruitment of constables due to a string of ambiguities in their respective enabling laws.

In 2010, President Goodluck Jonathan deferred recruitment of constables by a year following clashes between the police and the commission over who should supervise the exercise.

Both agencies were later allowed to play a joint but unequal role, with the police being asked to shortlist candidates and submit the list to the commission for ratification.

With both bodies asserting superior legal grounds over one other to conduct recruitment, the attorney-general was asked to weigh in with a legal framework for the president’s intervention. Sadly, Malami saw in it an opportunity to feather his nests of interests so the core North will continue to dominate the staff strength of the police since the IGPs are mostly from the Muslim North.

Mr Malami’s position came in a September 16 memo to the Mr Buhari’s Chief of Staff, Abba Kyari.

In copies of the legal advice exclusively obtained by an online medium, Mr Malami said since the inspector-general has control of operations through the chains of command, it was only logical that he supervises recruitment.

“It is the IGP and not the PSC that has the operational and command control of the NPF all over Nigeria,” Mr Malami said. “Therefore, it is quite easier and prudent for the structures and designated officers of the NPF to be utilised for the purpose of recruitment or enlistment as provided for in the Nigeria police regulations.”

“It is the duty of the NPF to admit and prepare persons to become worthy of appointment by the PSC,” he added.

The AGF said the police affairs minister should monitor the recruitment to ensure compliance with extant regulations and federal character.

“The eventual appointment of successful candidates into the NPF will be done by the PSC,” he advised the president.

The attorney-general acknowledged that ambiguities in enabling laws allowed both agencies to claim legal superiority in recruitment, but said there have been previous judicial pronouncements that favoured the police over the commission.

The attorney-general said both the police and the commission “should set up a joint committee to iron out modalities of recruitment and appointment into the police.”

“There is a need for a symbiotic relationship between the PSC and NPF in order to achieve greater synergy and harmony in the engagement of new entrants into the police,” he said.

Mr Malami supported his position with the resolution of his predecessor Bello Adoke, who, in 2010, advised Mr Jonathan that the police should be in charge of shortlisting potential members of the rank-and-file while the commission should be allowed to conduct final vetting and approval.

To forestall future crises, Mr Malami urged the president to open a channel with the National Assembly towards an expedited amendment to the laws governing the police and the commission.

“The National Assembly should pass a new law and constitutional amendment to designate agencies that should be responsible for recruitment, appointment, promotion, transfer, dismissal and discipline of the rank-and-file and superior officers of the police to lay all contention to a permanent rest before future engagements into the NPF will commence,” Mr Malami wrote.

The two plotters against the powers of the PSC to recruit police luckily found a willing ally in one of the Abuja Federal High Court Judges.

So around December 2019, Justice Inyang Ekwo of a Federal High Court, Abuja dismissed the suit brought by the Police Service Commission (PSC) challenging the power of the Inspector General of Police (IGP) to recruit personnel into the force.

In a judgment, Justice Ekwo said it was the Nigerian Police Council under the supervision of the IGP that has the statutory power to recruit into the force.

In the motion on notice filed on Sept. 24, with suit number FHC/ABJ/CS/1124/2019, the commission prayed the court for an order of interlocutory injunction restraining the defendants from “appointing, recruiting or attempting to appoint or recruit by any means whatsoever any person into any office by the NPF pending the hearing and determination of the substantive suit”.

The NPF, IGP, the Nigerian Police Council, Minister of Police Affairs and the Attorney General of Police (AGF) were defendants in the case.

However, Ekwo dismissed the PSC’s suit, stating that it lacked merit.

The judge held that the plaintiff was unable to prove it has the power to recruit into the force and the court cannot ascribe to the plaintiff power it does not have.

Ekwo said though the Police Act gave the PSC the power to promote, transfer, and discipline policemen, it does not confer on it the power to recruit except it is directed by the president of the country, otherwise the power to recruit rests with the Police Council which the IG heads.

He, therefore, struck out the suit filed by the PSC to stop the ongoing exercise.

“Consequently, I hold that it is the police council under the supervision of the Inspector General of Police that has the power to carry out recruitment into the police force. I hereby make an order dismissing the case for lacking in merit,” Ekwo held.

He held that by the provision of Section 71 of the Police Act, it was the Nigeria Police Council under the leadership of the IGP that was empowered with the enlistment of rank and file in the force.

The judge further held that the law guiding the enlistment of constables into the NPF was the Nigeria Police Regulations of 1968, issued by the Nigerian president in accordance with the provisions of Section 46 of the Police Act 1967 (No 41), providing for the organisation and administration of the police force.

According to the judge, there is nothing in the documentary evidence placed before the court by the PSC to support its claims that the IGP has usurped the powers of the commission in the enlistment of rank and file into the Nigerian police.

Justice Ekwo said that though counsel to the plaintiff had defined the word “recruitment” to mean “appointment”, the definition of recruitment in Chapter 1 (2) number 02, 03, 01 of the Public Service Rule 2008 edition is not in total agreement with the legal framework of the 1st defendant.

He said the reason was that the NPF could not be portrayed as a normal civil service where the public service rule could be applied.

“It is not in controversy that the 1st defendant is a paramilitary body and for that reason, shares several characteristics with the military service,” Ekwo said.

He noted that relevant provisions of the 1999 Constitution and PSC Establishment Act 2001 referred to by the plaintiff were consistent in using the word “appointment” in respect to the power of the plaintiff.

President Muhammadu Buhari had earlier given an order for 10,000 policemen to be recruited into the force.
The suit by PSC sought the interpretation of the powers of the commission to handle recruitment, promotion, discipline and other constitutional powers of the commission.

Luckily for constitutional purists, the Appeal Court interpreted the law correctly by annuling the Federal High court’s ruling.

A year later, the Court of Appeal nullified the recruitment of 10,000 constables conducted by the Inspector General of Police (IGP), Mohammed Adamu, in 2019.

The appellate court also declared as illegal aspects of the Police Act 2020, enacted in September this year. The court said some parts of the new law contradict certain provisions of the 1999 constitution that empowers the Police Service Commission (PSC) to appoint persons into offices in the Nigeria Police Force except the office of the Inspector General of Police.

Recalled that after the Federal High Court in Abuja dismissed the suit challenging the recruitment exercise of 10,000 police constables in December 2019, the PSC headed to the appeal court.

“Justice Emmanuel Akomaye Agim, one of the three justices of the court in his concurrent judgment ruled that Paragraph 30 of Part 1 of the Third Schedule to the 1999 Constitution has given the power to the commission to appoint persons into offices in the Nigeria Police “and did not exclude constables and cadets to Nigeria Police Academy from offices in the Nigeria Police into which the Appellant can appoint persons.”

“Justice Agim noted that even if the Nigeria Police carried out the disputed enlistment pursuant to a directive or approval of the President of the Federation, the enlistment would remain contrary to the constitution and therefore unconstitutional and void. Such a directive cannot repair its unconstitutionality and illegality.”

The PSC spokesperson noted that in the lead judgment delivered by Justice Olabisi Ige, the appellate court gave a declaration that any piece of legislation or instrument relied upon by the IGP to exercise the powers to appoint, promote, dismiss or discipline any officer in the Nigeria Police Force is invalid.

This is because they are being “inconsistent with the provisions of the Constitution particularly section 153 subsection (1)(m), section 153 subsection (2) and section 215(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Paragraph 30 part 1 of the Third Schedule to the Constitution.”

According to him, Mr Ige also gave an order of perpetual injunction restraining the police from interfering with the commission’s discharge of its functions regarding appointment, promotion, dismissal, or exercise of disciplinary control over any police officer other than the Inspector General of Police.

Dissatisfied, Malami and then IGP Alkali Baba who succeeded Mohammed Adamu, further appealed to the Supreme Court.

The nation’s apex court has just given an unambiguous verdict emphasizing that the PSC, not the IGP has the legal powers to recruit police constables.

Around August 2023, the Police Service Commission says the Supreme Court has ruled in its favour to solely take the responsibility of recruiting constables into the Nigeria Police Force.

The spokesman for the PSC, Ikechukwu Ani, claimed that on July 11, 2023, the apex court in the land decided and laid to rest the contentious issue and controversy between the commission and the police.

“In the judgment, the Supreme Court ‘unequivocally pronounced’ the commission as an agency statutorily mandated to do so,” Ani said, quoting the Chairman of the PSC.

Ani added that it was highly embarrassing to the government and indeed other stakeholders for the duo which ought to work in harmony and mutuality to have engaged in such avoidable legal disputation over an issue that sought understanding, respect and compromise.

He further quoted the commission’s boss, Arase, to have said the judgment simply and legally cements the resolution of the issue in a win-win situation for the two institutions which ordinarily cannot effectively function and deliver on their respective mandates without the cooperation of each other.

“It must be said and seen, therefore, that the judgment is delivered for the overall best interest of our national security, and goes to underscore the imperative need for harmonious working relationship and mutual trust amongst agencies of the government.

He further disclosed that Arase announced that a recruitment board has been constituted, and it would be chaired by the PSC chairman with other relevant stakeholders as members, adding that the board would be inaugurated soon.

“The board will screen and ensure that only able and qualified members of the public are recruited into the NPF, reflecting also the principle of Federal Character,” the PSC spokesperson added.

Nigeria’s Supreme Court’s verdict on this critical aspect of the policing institution in Nigeria, reminds us of the need for critical spyl searching by all and sundry who lead the polity on the need to sanitise the police of Nigeria from the deep rooted crisis of legitimacy, indiscipline and lack of professionalism.

This is so because as stated in a UK report on the police, despite making important and often time-critical decisions, police officers are still accountable through the law for their actions. Respect for an individual’s human rights should be the central focus throughout the entire policing process.

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All officers have an individual responsibility for ensuring that they are aware of relevant legislation, and are informed about the extent of their legal powers and the context within which those powers can be properly exercised. Police forces should continually identify any relevant legislation for the continued professional development of firearms commanders and authorised firearms officers (AFOs).

When police are required to use force to achieve a lawful objective, such as making a lawful arrest, acting in self-defence or protecting others, all force used must be reasonable in the circumstances. Use of force by police officers can result in judicial proceedings in both the criminal and civil courts. In cases where death has resulted, a public inquest or other inquiry will be held by the coroner or other officer. Every effort should be made to resolve a situation without resorting to the use of force or firearms, however, the overriding consideration should be a human rights-based approach to public and officer safety. This write up dovetails into certain fundamental laws protecting right to life including the European Convention on Human Rights.

Accordingly, the state has a positive obligation to ensure that the rights and freedoms guaranteed by the European Convention on Human Rights (ECHR)(opens an external website in the same tab) are protected. The relevant texts of the articles can be found in the ECHR and in Schedule 1 of the Human Rights Act (HRA) 1998(opens an external website in the same tab). Their application to policing and other activities by public authorities is made clear by an examination of section 6 of the HRA and related case law.

The following ECHR rights and freedoms are most relevant to policing.

Article 2 – right to life

Article 2 of the ECHR states:

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Article 2 imposes on EU states an obligation to safeguard life. This consists of the following main duties.

· An obligation to protect the right to life.

· Prohibition on the taking of life.

· Procedural obligation to investigate deaths resulting from the state’s use of force or from the state’s failure to protect the right to life.

Article 2 can also require, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Certain well-defined circumstances were defined in Osman v United Kingdom (1998) 29 EHRR 245(opens an external website in the same tab):

It must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. (www.collegepolice.uk)”.

This writer thinks the decision of the Supreme Court must be applied to sanitise the rotten police force of Nigeria by making sure that the entry point into the Nigeria Police Force is not corrupted and compromised so armed robbers, prostitutes and outlaws don’t get access to be recruited as alluded to by then President Olusegun Obasanjo who accused the authority of the policing institution in Nigeria of enlisting hoodlums and prostitutes as police operatives. A stitch in time, saves nine. Will the Solomon Arase led PSC exercise the wisdom of Solomon by doing the needful to ensure that only merit, competence and ethical right steps guide the recruitment process into the Nigeria Police Force? Only time will tell!

*EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA and was NATIONAL COMMISSIONER OF THE NATIONAL HUMAN RIGHTS COMMISSION OF NIGERIA.