The Police and Access to Justice: The Position of the Police Act in Nigeria
The role of the police in the administration of justice is very fundamental in that they are the first contact a defendant has with criminal justice system. Whether or not the suspect will obtain justice depends on how the police go about its business.
It is a well-known fact that the prime object of the criminal law of which the police form an essential part is the protection of the public by the maintenance of law and order. To this end, it has been stated that the general purpose of the criminal law and the establishment of the police force, amongst others, is to forbid and prevent conducts that threaten harm to individuals and the public at large, as well as to subject to public control, persons whose conducts indicate that” they are disposed to commit crimes.
Section 214 (2) (b) of the 1999 Constitution provides that the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law. The major law which provides for such powers and duties of the police is the Police Act.
But apart from the Police Act, sections 7 – 15 of the Sheriffs and Civil Processes Act, sections 3 – 11 of the Criminal Procedure Act, (L.F.N.,1990), amongst other laws, also provide for special and particular powers and duties of the police. The police act also deals with the special constabulary and traffic wardens.
Section 4 of the Police Act provides for the role of the police as follows:
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protect ion of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within and without Nigeria as may be required of them by or under the authority of this or any other Act.
It is the duty of the police to ensure the protection of lives and properties, the maintenance of law and order and the observance of the ethical values of the society. If the Society must remain in peace, individuals with criminal tendencies must be put under close checks and their activities closely monitored and checkmated.
The police therefore act to uphold the social norms and standards and the established law in every society, they apply criminal law to do justice to all and sundry. Therefore Nigerian police force is charged with the responsibility of maintaining law, order and internal security, especially as they affect protection of lives and property of the entire populace in addition to other functions that will enhance tranquillity and harmony in the country.
It is pertinent to note that the inclination of using the police to recover debts or for civil matters is reprehensible and runs contrary to the entire gamut of the police act. The provisions of the police act are very incontestable as regards the duties and powers of the police and debt collection and interference in civil matters is not within the purview.
In enhancing access to justice, the police after arrest of an alleged crime offender, hands over to a prosecutor, who is usually an attorney or an officer of his department or the investigating police officer or in some cases, the director of public prosecution brings charges against the offender.
The police act in section 23 empowers the any police officer to conduct prosecution before any court and the said police officer can even maintain an appeal up to the Supreme Court. Section 23 provides:
Subject to the provisions of sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court, whether or not the in- formation or complaint is laid in his name.
The power of the police officers to prosecute criminal cases before any court in Nigeria has received judicial imprimatur and finally laid to rest in the case of FRN v Osahon per Belgore JSC where he stated:
From colonial period up to date, police officers of various ranks have taken up prosecution of criminal cases in magistrate courts and other courts of inferior jurisdiction. They derived their powers under section 23 police act. But when it comes to superior courts of record, it is desirable though not compulsory that the prosecuting police officer ought to be legally qualified. This is not deleting from the provisions of section 174 (1) of the constitution, rather it maintains age long practice of superior courts having counsel rather than non-lawyers prosecuting matters. The confusion that this matter has caused is rather unfortunate for trial of criminal cases; it has caused disturbingly long delay. Previous constitution before 1979 provided for the post of director of public prosecutor, an independent officer with powers in a statute. The absence of this vital office from subsequent constitutions has created this dilemma. From the forgoing reasons, I hold that a police officer can prosecute by virtue of section 23 of the police act, section 56 (1) federal High Court Act, and section 174 (1) of the constitution of the federal republic of Nigeria.
The constitutional right of a defendant to the presumption of innocence as expressly provided by section 36(5) of the constitution and the burden of prove bestowed upon a prosecutor to prove his case beyond reasonable doubt as provided by section 137(1) of the Evidence Act never shift irrespective of the fact that the police officer may not be a lawyer.
Therefore, from all intent, I submit that the Supreme Court’s suggestion on the need for police officers who are lawyers to handle criminal prosecution than police officers who are non lawyers is to enhance diligent prosecution and speedy trial of cases.
When a person is arrested without a warrant, he shall be taken before a magistrate who has jurisdiction with respect to the offence with which he is charged or is empowered to deal with him under section 484 of the Criminal Procedure Act as soon as practicable after he is taken into custody:
Provided that any police officer for the time being in charge of a police station may inquire into the case and- (a) except when the case appears to such officer to be of a serious nature, may release such person upon his entering into a recognisance, with or without sureties, for a reasonable amount to appear before a magistrate at the day, time and place mentioned in the recognisance; or (b) if it appears to such officer that such inquiry cannot be completed forthwith, may release such person on his entering into a recognisance, with or without sureties for a reasonable amount, to appear at such police station and at such times as are named in the recognisance, unless he previously receives notice in writing from the superior police officer in charge of that police station that his attendance is not required, and any such bond may be enforced as if it were a recognisance conditional for the appearance of the said person before a magistrate.
Police bail is the temporary release of a person arrested and detained in connection with a crime. Bail by the police is that pending investigation. In recognition of the constitutional right to bail, the police are empowered to grant bail to arrested persons where it is impossible or impracticable to bring them before a court within a reasonable time as required by the constitution. The police have powers to grant bail other than for an offence of capital nature.
Bail is or may be granted upon application for bail. There is no laid down procedure in the police act for application for bail before the police station. It can be made by the suspect or by another person. It can be in writing or orally.
Bail pending investigation is revocable and can be revoked by the police if the term upon which the bail was granted was not fulfilled. Once the bail has been revoked by the police, it is only the court that can grant the bail again. Once the suspect has been arraigned in the court, the police bail elapses.