THE RIGHT TO FREEDOM FROM TORTURE AND INHUMANE TREATMENT

by

Lilian Nwokolo

Project Officer & Researcher, JURITRUST                  

The right to freedom from torture is a fundamental human right which must be respected at all times. Several international, regional and national laws protect persons from different forms of physical or mental torture.

Article 1 of the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) 1984 (CAT) describes torture as “Any act by which severe pains and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from or inherent in or incidental to lawful sanction.” 

Section 34(1) CFRN states that "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;”. While the right to dignity according to the 1999 Constitution as amended, is obviously non-derogable, there is no explicit provision as to the non-derogable status of freedom from torture, cruel and inhuman treatment.  It is instructive that section 7 of the Anti-Torture Act 2017 criminalises the act of torture It also imposes a duty on the government in Section 1, to ensure all persons, including suspects, detainees and prisoners are respected at all times and no one is subjected to any form of physical/mental torture at all times.

In addition, Section 8 (1) of the Administration of Criminal Justice Act 2015 provides that a suspect shall be accorded humane treatment, having regard to his right to the dignity of his person and shall not be subjected to any form of torture, cruel, inhuman or degrading treatment. Thus, no law enforcement officer or a private person shall torture anyone. However, not minding the sacrosanct provisions of the Constitution and other enabling statutes, the administration of criminal justice in Nigeria is fettered by incidents of torture, cruel and inhumane treatment, as suspects and persons illegally detained are made to daily experience gruesome forms of torture.

In a bid to prevent oppression, section 17 of the Administration of Criminal Justice Act 2015 provides that a suspect who was arrested shall have his statement taken if he so wishes and that such statement may be taken in the presence of a legal practitioner or in absence of a legal practitioner, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a CSO or Justice of Peace or any organization. However, this is a safeguard which does not supersede evidence taken in accordance with the Evidence Act (See Adio v FRN (2021) LPELR-54517 (CA).  

Although confession is the best form of evidence, proof of can destroy the case of the prosecution by the exclusion of confessional statements obtained thereby. A confessional statement is relevant and admissible in evidence once it satisfies the conditions of sections 28 and 29 of the Evidence Act 2011(as amended) that is it is voluntary and without oppression.  Likewise, Section 4 of the Anti-Torture Act provides that evidence produced at trial obtained through torture shall be discountenanced. However, it is for the court to determine the voluntariness and admissibility of the statement. The burden of proving beyond reasonable doubt in accordance with the Evidence Act that the confessional statement was voluntary is on the prosecution (See Hassan v State (2016) LPELR-42554(SC).

In spite of these provisions, the yearly record of cases of torture and inhumane treatment is appalling with incidents of beatings with objects, arbitrary detention, hanging of victim upside down in cells, poor feeding, etc. What then is the strength of the laws and provisions protecting the right to freedom from torture?

There is no doubt a major implementation and enforcement problem in the Nigerian criminal justice system.  The need to constantly review the Operating procedures of law enforcement officers cannot be overemphasised. Given the high level of obnoxious practices during arrest, investigation and detention, it is necessary to supervise and ensure that the rights of suspects are protected. The ACJA 2015 attempts to cater to this need in section 34 where it mandates periodic visits to detention facilities by Magistrates. Through this channel, persons who are illegally detained and tortured can be identified and protected from further dehumanisation nevertheless, more can be done.

Additional consideration should be given to strongly enforcing punitive measures against erring officers as existing disciplinary protocols seem ephemeral with no deterring effect. Implementation and enforcement of law must be goal of every enforcement officer. It is therefore further recommended that periodic trainings and support be given to law enforcement officers, keeping them abreast with the best practices in criminal justice administration during arrest, investigation and detention. Orientation and sensitization through NGOs and human right institutions is welcomed to create continuous awareness to law enforcement officers on human rights protection and compliance.

Lastly, it behoves on all persons to report torture and acts of torture to the proper authorities and all appropriate authorities to act in accordance with stipulated law. Therefore, support should be given to victims of inhumane treatment like torture by creating more reporting avenues as well as creation of rehabilitation centres for victims so as to strengthen confidence in the system. Support displayed in handling such reported cases either through adequate punishment of erring officers or strong implementation and enforcement of the laws, would translate into real protection and freedom from torture, inhumane and degrading treatment, thereby boosting confidence in the administration of justice and criminal justice system of the country.