Wanted: Nigerian legislation to criminalise torture

By Suleiman Oji

THIS article examines the posi­tion of torture under Nigerian concludes that there is no penal law which clearly makes torture a criminal offence. However, it rec­ommends for the enactment of pe­nal legislation which will prohibit torture – physical or psychological.

Introduction

In most jurisdictions of the world, including Nigeria, torture is an in­violable right in that it is classified among fundamental rights and its observation regarded as absolute. But constitutionally guaranteed right without a corresponding pe­nal law promotes impunity. This is because any resultant conse­quence, arising from infringement of such right may attract remedial corporate or personal liability as against retribution which is more effective in censoring. Torture viewed from the perspective of unlawful acts by security forces involves extra-judicial means of extracting confessional statement through coercion or intimida­tion. This may be in the nature of ‘physical torture.’

Torture may also exist in the matrimony. This arises as a re­sult of prolonged domestic vio­lence, which sap the resilience of a spouse, resulting in fatal conse­quence if such domestic violence erupts again in the future. This may be in the nature of ‘psycho­logical torture,’ although it could be both physical or psychological.

In English law, a spouse who kills another in such circum­stances can rely on the defence of Diminished Responsibility (DR), but his/her Nigerian counterpart would have to prove insanity if he/ she must escape from the hang­man’s nose. And in most cases, such defence will be unavailing because such a spouse may be un­able to prove insanity in the strict sense of that word.

The objective of this paper is to examine briefly the position of Nigerian laws on torture with a view to making recommendations for the reform of Nigerian laws on torture in order to achieve the fol­lowing:

1. Enactment of a penal law, which clearly defines physical torture as a punishable offence.
2. The enactment of Diminished Responsibility (domestic tor­ture or violence) in line with Section 2 of the English Ho­micide Act 1957. This should only be a defence in murder cases.

Torture under Nigerian laws:

Currently, one cannot point at any law in Nigeria which makes torture (physical) and (psycho­logical) a criminal offence. The two main legislations in Nigeria – the Penal Code (applicable in Northern states) and the Crimi­nal Code (applicable in Southern states), which contain substantive criminal laws of Nigeria have no specific sections that prohibit torture. Thus where a victim has been tortured by any member or members of the security force in Nigeria or by an individual, the remedy available to such victim is to seek redress in a Court of law in the nature of enforcement of right to life (Section 33) of the Constitu­tion of the Federal Republic of Ni­geria (CFRN) or right to personal liberty (Section 35) CFRN. Or the person may proceed under assault or assault occasioning grievous harm. In the case of assault occa­sioning grievous harm, the victim may suffer really grievous harm but the ability of the victim to pursue his trade for a period less than 21 days after the assault may be reckoned with thereby enabling the assailant to escape commensu­rate punishment.

The Nigerian Evidence Act 2011 (as amended) Section 28(a) thereof, dealing with inadmissi­bility of confessional statement did not use the word ‘torture.’ Instead, the sub-section renders inadmissible confessional state­ment obtained ‘by oppression of the person who made it.’ Thus, when legal practitioners object to the admissibility of a confessional statement the aim is to urge the Court to reject such confessional statement on the grounds that it is not admissible in law having been obtained by ‘oppression of the maker.’ The fact that such pur­ported confessional statement was made ‘by oppression’ of the maker can only be an issue for the pur­pose of remedial award.

The law relating to torture in Ni­geria is found in Section 34(1)(a) of the CFRN which reads:

Every individual is entitled to respect for the dignity of his per­son, and accordingly-

(a) No person shall be sub­jected to torture or to inhuman or degrading treatment.

Agreed the above right is con­stitutionally guaranteed but the provision lacks teeth hence it cannot bite from the criminal law perspective. Also, the word ‘tor­ture’ mentioned in the Section is vague and needs a complete re-statement by a penal law so that what amounts to torture; who can be a victim of torture; who can be guilty of torture are clearly de­fined.

Etymology

Torture is an act that involves both physical and mental agony of the victim. The physical agony may involve the maltreatment of the victim to the extent that he/she suffers severe injury and pain. The method used to inflict such injury and pain may involve beating with hands, with objects like stick, rod or the infliction of other inhuman pains with other painful objects so much so that the victim is put in a state of mind where his/her resil­ience is completely broken.

Mental agony involves psy­chological torture either through deprivations, verbal abuse and physical torture to such an extent that the victim suffers psychologi­cal trauma which completely di­minishes his/her resilience. This mostly occurs in the matrimony.

Definition

The Chambers Dictionary 10th edition defines torture as the in­fliction of severe pain, especially as means of punishment or per­suasion, extreme physical or men­tal pain, a cause of this; anguish, to subject to torture, to subject to extreme pain, to exact by torture, to distort violently.

It is clear from the above that torture may be both physical and psychological.

Physical torture

It should be pointed out that that though torture is mainly a strategy used by various security forces to obtain from their victim a lead about the occurrence of a crime and those behind such con­duct, individuals may also torture a victim particularly where the as­sailant is ‘stronger’ than the victim both in economic and social status. Therefore, any attempt to criminal­ise torture must take into consider­ation this fact. The problem here as noted earlier is that if security forces torture a victim, proceeding against the culprits criminally may be defeated because of the absence of a penal law, which prohibits such conduct. For the individual torturer he/she may beproceeded criminally by charging him/her for causing grievous harm or assault depending on the circumstance of the case. But the public officer, who acted arbitrarily in the execu­tion of the functions of his office may defeat such legal process by arguing that he acted within the confines of his authority.

Psychological torture

The law giver must be minded of the fact that torture exists in the matrimony in form of domestic violence, which may be physical or verbal. Prohibition of torture must take this fact into consider­ation. The effect of domestic vio­lence in form of physical assault, or verbal abuse is called Battered Women Syndrome (BWS) or Post Stress Disorder (PSD). Overtime physical or psychological torture affects emotion, will, perception, judgment and understanding. The effect of this on the mind of the victim may be regarded as a vari­ant of insanity though the degree is not within the Macnaughton’s Rule 1843.

In English law in the past (just as it is the current case in Nigeria) people who killed their spouse un­der such state of mind relied on the defence of insanity to escape lia­bility. And since such people were not insane in the extreme sense their discharge by the Court at­tracted a deluge of criticism from the public calling for the abolition of the defence of insanity. The English Law Reform Commission intervened by introducing the de­fence of DR under Section 2 of the English Homicide Act, 1957. The reasoning which underlined the introduction of such defence was that where there is lesser respon­sibility there should be lesser pun­ishment. Section 2 of the English Homicide Act reads:

If a person kills while suffering such an abnormality of mind as substantially impaired his mental responsibility for his acts or omis­sions.

Causes of the abnormality

The second part to Section 2 of the Homicide Act 1957 gives guidance about what might be considered as causes of the abnor­mality of mind. Only items on this list can be included and the judges should give guidance to the jury about which evidence should and should not be included.

1 An inherent cause.

2. Abnormality of mind caused by disease.
3. Abnormality of kind caused by injury.
4. Retarded development of the mind.

Of importance here is that one of the guidance to be given by judges is ‘an inherent cause.’ One of the possibilities of inherent cause is clinical depression. Clini­cal depression gives those who suffer from it profound feelings of unhappiness and despondency, which may produce irritability and suicidal feelings. Domestic tor­ture in form of physical torture and verbal abuse can be a vital source of clinical depression.

It should be pointed out here that under Section 24 of the Crimi­nal Code in particular limb (a) the matters listed above which may constitute veritable source of di­minished responsibility are differ­ent from the defence of insanity under the first limp of Section 24 of the Criminal Code which reads:

Subject to the express provi­sions of this Code relating to neg­ligent acts and omissions, a person is not criminally responsible for an act or omission which occurs in­dependently, of the exercise of his will, or for an event which occurs by accident.

But it seems that under this limp, persons whose mental state cannot be classified as insanity in the extreme case may place their defence under the first limp of section 24 of the Criminal Code. This is because persons who are not completely mad, but whose mental condition prevented them from controlling their impulses can place reliance on this sub-sec­tion. In that case, the question of intent is negatived, all the defence needs to do, is to tender a medical report showing that the accused’s inability to control his impulse was induced by disease which completely or partially impaired his responsibility. The distinc­tion between this limp of section 24 of the Criminal Code and sec­tion 2 of the Homicide Act, 1957, is that under the former a person is not criminally responsible for an act or omission which occurs independently of the exercise of the will or by accident although in the case of inability to control the will at the material time, the per­son may not be in a state of ‘men­tal defect or disease of the mind.’ Under section 2 of the Homicide Act such a person may be liable to some level of punishment once it is shown that such a state of mind is not insanity in the extreme case.

Other matters included in what amount to abnormality of mind are:

1. Psychopathy.
2. Paranoid-schizophrenia.
3. Epilepsy.
4. Pre-menstrual syndrome.

Recommendation

It is hereby proposed that a pe­nal law should be enacted that pro­hibits torture in any form. While emphasis in this regard should be on security forces who uses tor­ture as a tool of investigation, di­minished responsibility should be enacted as a defence for spouses who kills under a state of mind less than insanity. Also other state of minds as distinct from state of mind arising from ‘defect of rea­son from disease of mind or un­soundness of mind’ under Section 51 of the Penal Code should also be included in the defence of di­minished responsibility.

Conclusion

A civilised society should use the instrument of law to rid itself of all traces of acts that are primi­tive, barbaric and inhuman. Tor­ture in any form is a primitive practice. Using torture as a tool of investigation or obtaining a lead as to the commission of an offence smacks of ignorance that the truth or otherwise of any allegation is to be ascertained through forensic cross-examination. The Nigerian Law Reform Commission should do the needful by penalising tor­ture. Diminished responsibility should be enacted as a defence for people who kill in a state of mind that cannot be classified as insani­ty within the Macnaughton’s Rule.

Dr. Suleiman Oji can be reached on 08023806704.