The controversy surrounding the authority of policemen and other security agents to randomly search people’s belongings has always excite heated discussion in Nigeria. Policemen take it for granted these days that they have the right to randomly accost people on the road and demand for their mobile phones, laptops and other communication devices to search their contents. The police routinely carry out this search under the pretext that the suspect is an internet fraudster popularly known as “Yahoo boys”. As a legal practitioner, I have had to intervene on behalf of friends and family members who have been subjected to such random and indiscriminate searches by the police. The frequency and the indiscriminate manner in which the police carry out these act against Nigerians have made many to come to the conclusion that the act is carried out in pursuance of a legitimate authority given to the police. Also the divergent views generated from senior officers of the Nigerian Police force based on a sample poll recently conducted by Punch Newspaper, also showed that the police themselves might not understand the extent of their authority as far as this issue is concerned. This article seeks to shed more light on the legal issues involved to ensure more clarity on the subject.
FOUNDATIONAL BASIS FOR RIGHTS OF CITIZENS AND POWERS OF THE POLICE
Like in the case of any exercise of right by individuals and government agencies in Nigeria, the primary consideration is the 1999 Constitution as amended. Section 1 of the 1999 Constitution provides that the provision of the Constitution is supreme and its provisions shall have binding effect on all persons and authorities in Nigeria, and where any law is inconsistent with the provisions of the Constitution, such law shall to the extent of its inconsistency be null and void. The ordinary effect of this is that where any exercise of right by any person or authority including the Nigerian police is contrary to any provision of the Constitution, such act shall be null and void – a complete illegality.
The 1999 Constitution in section 37 expressly guarantees the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. This recognition by the 1999 Constitution is in line with global practices as exemplified in Article 12 of the 1948 United Nations Universal Declaration of Human Rights which provides thus
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”
In its most basic form, the right to privacy has been interpreted as “the right to be left alone”, or the right to be protected against intrusion, and prying into one’s private affairs. The right is inextricably linked with Citizens’ right to the dignity of their person which is equally protected as a Human Right under section 34 of the Constitution. The right is one which attaches to the person as a human being as opposed to other social rights such as right to assembly or freedom of association, or the right to property.
DEROGATIONS ON THE GROUNDS OF PUBLIC SECURITY, MORALITY AND NATIONAL DEFENCE
While it is taken for granted that Right to privacy is protected as a sacrosanct Human right by the 1999 Constitution, it must be admitted that the right is not absolute and admits of limitations in its enjoyments. Because the nature of the right is one which is protected by the Constitution, the only permissible limitations on its enjoyment is as provided for by the Constitution itself. The relevant section of the Constitution in this regard is section 45 of the 1999 Constitution.
Section 45 of the Constitution provides that nothing in section 37 shall invalidate any law that is reasonably justifiable in a democratic society which is made in the interest of defence, public safety, public order, public morality or public health. It is on the basis of this that laws are usually made giving law enforcement agents the power they exercise in the prevention of crime, and apprehension of criminals. Examples of such laws are Police Act, Administration of Criminal Justice Act 2015, Administration of Criminal Justice Law of Lagos State, and Criminal Procedure Law which give the police powers of arrest and searches of offenders.
POLICE POWERS TO CONDUCT SEARCHES.
Section 29 of the Police Act gives the Nigerian Police general power to search persons suspected of, or detained for having committed an offence. The crucial element for the exercise of this power by the police is that in the case of a person detained, the police must have accused him of having committed an offence before he can be searched. Thus it will amount to misuse of power by the police to claim to arrest a person randomly accosted on the road for refusing his person to be searched. This is because accusation of commission of an offence comes before search and not the other way around.
In the case of persons suspected of having committed an offence, the police must have “reasonable grounds” for suspecting the person before they can demand to search his person. It is in the exercise of power of search in respect of the latter part of this authority given to the police that frequent abuses and misuse of powers by the police has occurred. The crucial element is the “reasonable suspicion” by the policeman that a crime has been committed by the person to be searched. The element carries with it the requirement of prima facie grounds, and facts to justify the belief that a person has committed an offence.
For instance if the police were informed that a shop selling computers and phones has been burgled by bandits, the police can cordon off the area and question persons passing by carrying laptops and phones fitting the descriptions of the ones stolen. It would amount to an “unreasonable suspicion” for the police to leave their office without prompting, set up a road block, randomly stop passers-by holding phones and laptops and demand explanations concerning ownership of the devices. Thus the perennial actions of policemen in stopping young men carrying laptops on the road and accusing them of being internet fraudsters to justify searching their phones and laptops is nothing but a gross misuse of powers. Such acts are violations of citizen’s rights to privacy protected by the Constitution. As experiences have shown in Nigeria, the random stop and search are usually done as a pretext to extort money from innocent citizens.
The power of the police to ask questions in deserving cases concerning electronic devices owned by persons, is only relevant to ascertain the ownership of the devices. The power does not extend to prying into the contents of those devices to fish for incriminating evidence. The general powers of the police to detect and prevent the commission of a crime under Section 4 of the Police Act cannot justify the frequent harassment of innocent citizens by seizing their phones and searching its contents. Because of the specific nature in which the rights to privacy have been itemized in the Constitution, they take precedence over general provisions of the law such as section 4 of the Police Act. The age-long rule of interpretation of laws in Nigeria is that specific provisions of the law take precedence over general provisions Generalia specialibus non derogant Shroder v. Major & Co (Nig) Ltd (1989) 2 NWLR (Pt.101) p1. In the instant case, the general provision (section 4 of the Police Act) is an Act of National Assembly which is subordinate to the Constitution.
In the case of Onagoruwa v. IGP (1991) 5 NWLR (Pt.193) p593 Niki Tobi JCA (As he then was) cautioned against the use of the general powers of the police under section 4 to restrict citizens’ rights. According to Niki Tobi, because of the large and apparently volatile language of section 4 of the Police Act which is generally inimical to the rights of the citizens, the section should be interpreted liberally whenever possible in favour of the rights of the citizens.
The practice in most democratic countries – and I daresay the legally recognized method in Nigeria – for searching people’s phones and communications devices is by way of a lawful order of Court usually a Magistrate or a High Court Judge. Such orders are usually made after presentation of prima facie case that the mobile device in question has been used in connection with the commission of an offence, and that the communication device contains evidence the police needs to prove its case. The courts in such instance have the inherent power as custodian of public morality, security and order to order the disclosure of the information contained in the device or to order the forceful opening of such devices after being satisfied that the evidence presented by the police justify the making of the order.
WHAT TO DO WHEN CONFRONTED WITH AN INCIDENCE OF ILLEGAL SEARCH BY THE POLICE.
The preliminary point to consider is that prevention is better that cure like the popular saying goes. The first step to prevent illegal searches of your communication devices is to have security lock on them. Majority of mobile devices which are available in the market have features for password, fingerprint, face-lock, and voice activation security features. When these are used on mobile devices, it prevents the incidence of inadvertent and intentional prying and searches into the contents of the devices by the police without the consent of the owners.
Due to the high handed and trigger-happy nature of Nigerian police officers, it is more than likely that the owner of such devices would be forced at gun-point to open them. I would not advice anybody to argue with a gun-wielding maniac on the road. My advice in such circumstance is that you oblige the police man but at the same time you should do the following
Demand an explanation why the policeman wants to open your phone or laptop.
Demand to know if you are being accused of committing any offence.
Politely inform the policeman that the opening of your communication device is without your consent.
If you can, demand to be allowed to call your lawyer to speak with the policeman.
If all these fail, try to get the details (Names, Tag Number, Patrol Vehicle details) of the police officer to lodge a formal complaint with the authorities.
Visit the nearest police formation where there is an X-SQUAD department to lodge a formal complaint. The X-Squad is the department charged with the duty of arresting errant and rogue policemen in Nigeria.
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