By Abdul Mahmud and Okey Nwanguma
Speaking recently at the Dialogue Session organised by the Abuja-based Policy and Legal Advocacy Centre (PLAC) on the ‘Bill for an Act to Repeal the Police Act and Enact the Police Reform and other Related Matters’, the deputy majority leader of the Senate and Bill’s sponsor, Senator Bala Na’Allah, remarked that “the Nigeria Police Force is always criticised for not delivering on their responsibility; as a party that promised to leave Nigeria more secure than it met it, we decided to initiate this reform. We are not comfortable with the situation where only a few get good security, while the larger population is left at (its) own peril… We discovered that the structure of the Nigeria Police Force will never give it the kind of efficiency and effectiveness that it requires to be able to secure the population of Nigeria”.
Two principles – the principle of interest and the principle of representation – that make legislating remarkably profound are immediately discerned in the remarks of Senator Na’Allah; and it is both principles – including the principle of legality, which we shall come to later – that form the basis of this appraisal. Lawmaking in a nascent democracy is a complex process, even if more so complex in a nation-state with a broken polity and unstable legal order. The legislature is central to the making and unmaking of laws and its influence on the development of laws and the legal system is thus profound, as it regulates the process of legislation and manages the birth of laws. The legislature doesn’t make laws for the sake of it; it makes laws because as the representative assembly of the people, its essence – the lawmaking powers – not only coheres with the powers of the people but also corresponds with their interests. So, for us, it is in the process of lawmaking that the interests of the people and the legislature converge and representation finds greater resonance.
It is the principle of interest and representation, which underline lawmaking, that we now turn.
The Police Bill and the Principle of Interest and Representation The legislature, as one part of the people’s will that is transferred to the will of the state, deliberative and representative, is always corresponding to, mirroring and reflecting the people. The point, here, is that every legislative activity is driven and shaped by the interests of the people, so much so that the legislature not only represents the interests of the people but also expresses the will of the people. So, when the Police Reform Bill is proposed by its sponsor in a manner that seeks to “secure the population of Nigeria”, it is merely highlighting how legislation affects the people’s interests and the effect it has on the interests of the larger population generally. The principle of interest, which lies at the heart of lawmaking, when applied, distinguishes the legislature as the assembly for democratic legislation. This is essentially so because it is the purpose of the legislature to promote the interests of electorates as part of its broader purpose of representation.
Senator Na’Allah captures this essential point when he made the above quoted remarks; but what to us isn’t lost to the senator is the fact that it is in lawmaking that the interests of the people and representation by the legislature is embodied. Professor Jeremy Waldron reinforces our point in his brilliant seminal, ‘Representative Lawmaking’, thus: “legislation even on morally significant matters – matters of individual rights, for example – is never just the embodiment of principle. The principle may be in the background, but each piece of the legislation must be framed so that technical provisions, with their attendant definitions, procedures, exceptions, and administrative clauses will actually have the effect of promoting principle the public thinks are morally important… For these reasons, one might value the array of persons in the legislature acquainted with all walks of life, all types of interests and different experiences in the community. If the community is geographically diverse, for example, with different conditions in the north compared with those in the south, then one would value the presence of legislators from both ends of the country; if there is a diversity of interests as between town and country, again, one would value the presence of the people from rural and urban sectors. If there are differences and conflicts between the interests of the workers and the interest of their employers, then one would want labour unionists, as well as oligopolists in the legislature and so on”. The point here is: representation (read the legislature) helps aggregate interest the same way that lawmaking enhances interests.
Further, let us illustrate the point we make in the foregoing with this example that we are too well familiar with. When Senator Na’Allah remarked that “only a few get good security, [while] the larger population is left at (its) own peril”, he was merely inferring that the larger population of the youth, who for many years were at the peril of the killer officers of the Special Anti-Robbery Squad (SARS) until a certain Segun Awosanya came along with the EndSARS campaigns. Ostensibly, from reflection, it thus appears that Senator Na’Allah’s Police Reform Bill is a response to the agitations of the youth, giving credence to the view that representation is the “simplifier of interests and assimilator of subjects”.
The Principle of Legality in the Age of Gender Rights
In her well-publicised piece, ‘Reviewing the Police Act with Gendering Lens’, Nneka Egbuna argues that, “the Police Act with its Regulations and Force Orders which govern the internal and external workings of the Nigeria Police Force reveals alarming discriminatory regulations and workplace practices which reinforce gender discrimination in the 21st century. For instance, the language in the entire Act is not gender sensitive – throughout the document; all police officers are referred to as ‘men’. Force Order No. 60 ( for Traffic Training Course) for example, states that “candidates selected should be men of intelligence …”; Regulations 42 (3) of the Nigeria Police Force Regulations, 1968, which is attached to the current Police Act, mentions that a female candidate for the Police Force should be unmarried. Regulations 118-128 contains even more discriminatory provisions for women who want to be enlisted into the police as follows: “women who wish to be enlisted into the police must not be pregnant and must be unmarried”. While Ms. Egbuna’s argument centres around the discriminatory nature of the Regulations and Standing Orders of the Nigeria Police Force, there are two points clearly discernible in her piece. First, that Sections 46 and 47 of the Police Act, 2004, which deal with Regulations and Standing Orders, don’t sufficiently provide protection for fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria, 1999. Ms. Egbuna is right, the Police Act, an Act of the Parliament, provides no protection for gender rights; in fact, it provides a legal shield for gender discriminatory Regulations and Standing Orders and obviates the plausibility of the principle of legality being applied to them.
Second, that empowering Act, such as the Police Act, 2004, cannot authorise restrictions on constitutional rights, including gender rights, if it is not the intention of the legislature to restrict such rights. Ms. Egbuna’s view is that the current Police Act, particularly Sections 46 and 47, which deals with the “Power to make Regulations and Standing Orders”, doesn’t provide legal requirement that all Regulations and Standing Orders must be consistent with the fundamental rights chapter of the Constitution of the Federal Republic of Nigeria 1999. The point she makes in effect is that Regulations and Standing Orders made pursuant to the Police Act, 2004 must not only pass the principle of legality test but must be doubly subject to what we call the gender rights review and the scrutiny of the legislature.
So what do we mean by the principle of legality? Simply put, the principle of legality is the rule of interpretation which construes legislation, and for our purpose, the Regulations and Standing Orders made pursuant to the Police Act, 2004, as being consistent with the fundamental rights chapter of the Constitution of the Federal Republic of Nigeria, 1999; a presumption that the legislature would ordinarily not infringe on rights, without expressing its intention to do so in clear and unambiguous words. According to Lord Hoffman ( see: R v Secretary of State for the Home Department; Ex Parte Simms (2000) 2 AC 115), the principle of legality… “means that the parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts, therefore, presume that even the most general words were intended to be subject to the basic rights of the individual.”
While the principle of legality is an interpretive rule employed by the courts, “where the legislature, or a statute, including subsidiary legislations, fails to express its intention with unmistakable clarity, to protect fundamental rights by strictly or narrowly construing a statute, as the Supreme Court held in Abacha v Fawehinmi (2000) 4 SC, our argument here is that in enunciating the Police Reform Bill 2018, the sponsor of the Bill clearly makes sense of the power of this principle when he inserted fundamental rights safeguards into the Bill – as we shall see in the paragraph below. As if Senator Na’Allah understands the dangers of subjecting the legislature to political ridicule, or to the risks that ambiguous statutes and subsidiary legislation pose to the legislature, without providing legal protection for rights, or, too, the dangers of passing a Bill that would invariably provide legal shield for discriminatory Regulations and Standing Orders, he frames the Police Reform Bill 2018 in a manner that recognises the principle of legality within a framework that is consistent with the Constitution of the Federal Republic of Nigeria, 1999.
Good news. Here’s how the Police Reform Bill 2018 encapsulates the principle of legality: “The Police Force or other persons shall not, in the performance of his or its functions under the Act, Regulations or Standing Orders made pursuant to this Act, discriminate against any person on the basis of gender as provided under Section 42 of the Constitution”. The Bill further provides that “an officer who on reasonable grounds believes that an order given to him by a superior officer is unlawful, is not bound to comply with the order and shall immediately make a report in such form as shall be provided by the Police Force for that purpose”. Finally, there can be no better way of adhering to the principle of legality in the Age of Gender Rights than inserting the framework for promoting fundamental rights in a Bill that seeks to reform the Nigeria Police Force that is notorious for abusing the fundamental rights of Nigerians. As stated in the objectives of the Bill, we all desire “a more efficient and effective Police Force that is based on the principles of: accountability and transparency; and protection of human rights and fundamental freedoms”, don’t we?
Abdul Mahmud and Okechukwu Nwanguma are Police reform campaigners.