Reflections On The Shoot At Sight Order By The President

By Dr. Osagie Obayuwana

BACKGROUND

Not a few people have complained about what had become the
silence of Mr. President for a long time especially over issues
where his voice should be heard loudly.

Over a long time, in matters of National concern, people of all
categories have repeatedly called on Mr. President to speak; most
of the time, he did not oblige the call. At a point, his handlers
argued that Mr. President is entitled to his style, which left many
people wondering whether what we have in Nigeria is a
constitutional democracy, founded on the principle of
accountability of public office holders to members of the public.
Even the way the invitation of the President to address the House
of Representatives on the security situation, which was once
accepted, was shortly thereafter turned down, left more questions,
than answers in the mind of many.

To close observers of the media policy of the Buhari Regime, it
seems like centuries ago that Mr. President had a media chat. This
graveyard silence, that does beyond taciturnity give some credence
to the speculation as to whether our President is alive or not.

It is as if Mr. President felt compelled to speak out, when the
security situation had clearly gotten out of hand, especially
following the repeated nature of mass abduction of school children
in different parts of the country. But what the Nation heard was a
reported speech, through Mallam Garba
Shehu, the President’s Senior Special Adviser on Media
that Mr. President had ordered that any person found with AK-47
Rifle should be shot at sight.

Trust the ever boisterous Nigeria Media; many queries
immediately surfaced; did the President actually say so, did he
mean shoot to kill or shoot to maim and disable? Did he actually
mean that a holder of an AK-47 wherever found should be shot dead?
Must the holder of the AK47 Rifle be alone or more than one?

How do we distinguish Policemen who adorn torn Jeans and
T-shirts while flaunting their AK-47 in the nooks and crannies of
Nigeria’s inner Cities and on high-ways or is the Order intended
only for those who wear turban? Is the Order limited to AK-47? What
about AK-49 and deadlier machine guns we have seen menacingly
flaunted on numerous video clips on the internet? Finally, to whom
is the President’s Order directed? Only Soldiers which includes the
Army, Navy and the Airforce, or the Police? What about Customs, and
the Nigeria Security and Civil Defence Corps?

As if to clear all doubts, as to the source of the directive, on
Thursday 11 March, 2021 the presidency released a 12 second video
clip, where President Buhari at a meeting with the National Council
of Traditional Rulers held at the State House, Abuja, personally
reinforced the directive, that anyone carrying an AK-47 Rifle
illegally, should be shot, because according to him, “AK-47 is
supposed to be registered and only given to security officials”.
The Oni of Ife and the Sultan of Sokoto were in attendance.
Hurrah!!! was the expected response from the Nigerian People; our
President has indeed woken up and risen to the occasion.

The essence of this write up is to cursorily contribute to the
examination of whether or not there is a legal justification for
the President’s Shoot at Sight Order.

THE LEGAL REGIME

The first point of call has to be the Constitution of
the Federal Republic of Nigeria 1999 (as amended) which is
Section 33, protects the right to life. Subsection
2 of Section 33 provides that a person shall not be regarded as
having being deprived of his right to life if he dies as a result
of the use of such force as is reasonably necessary for the defence
of any person from unlawful violence or for the defence of
property. Additionally, force that could lead to death has been
justified to effect a lawful arrest or to prevent the escape of a
person from lawful custody; and finally use of such force is also
permissible under the Constitution for the purpose of suppressing a
riot, insurrection or mutiny. This section of the Constitution has
been criticized for not been in conformity with international
standards, especially where it allows for the taking of life in
defence of property. The exceptions created under Section 33 of the
Constitution, it is argued, appear to trivialize the sanctity of
life, whereby defence of property under circumstances where no
threat is posed to the life of another, appears to be
justified.

Section 73 of the Criminal Code applies in
matters of dispersal of unlawful assemblies. Under the section, any
Police Officer may use such force as is reasonably necessary for
dispersing or overcoming resistance to dispersal. But there are
pre-conditions contained in the law, which require that there must
have been a proclamation made for dispersal and the expiration of a
reasonable period and the number of those assembled must be 12 or
more persons, and there must have been resistance to being
dispersed by those continuing in the assembly.

It seems clear that the Shoot at Sight Order given by Mr.
President has no bearing with Section 73 of the Criminal Code.

Police Force Order No. 237 is the rule that
guides the use of fire-arms by the Police, and stipulates the
circumstances under which a Police Officer may use fire-arms.

This Order has been criticized as being extremely premissive and
falls short of International Standards, it has been argued that the
section takes a cue from Section 33 of the Constitution, as well as
the relevant provisions of the Criminal Code.

This was the reason why in October, 2019, the Inspector General
of the Nigerian Police, Muhammed Adamu is reported to have
Revised Force Order 237 in a manner he said was
designed to ensure the protection of fundamental Human Rights in
matters of policing.

The New Order still permits the use of fire arms or lethal force
where a Police Officer is attacked or there is an imminent threat
of his being killed or seriously injured and no other means are
available to eliminate the danger of saving his or her life. The
burden of proving this is placed on the Police Officer it been
opined that under these circumstances, it becomes difficult to
justify the use of fire-arms, even if the Policeman is attacked by
an unarmed person. Similarly, a Policeman is justified in the use
of lethal force, where he or she believes that such force is
necessary and proportional in defending a person who has been
attacked and he or she believes that the person cannot otherwise be
protected from imminent death or serious injuries and of course
lethal force can still be used to disperse violent assemblies only
when there is an imminent threat of death and serious injury, and
less extreme measures are insufficient under the circumstances.

Again, there is no doubt that the shoot at sight order
proclaimed by Mr. President did not take into consideration the
Revised Force Order 237 on the use of firearms and lethal force by
the Police.

It should be recalled that in February, 2019,
just before the General Elections in Nigeria, President Buhari
issued the same Shoot To Kill Order directed to
the Military against anyone caught in the act of stealing
Ballot Boxes. It is as if the Nigerian Civil Society at
that time did not take up the President for the danger that order
posed to the right to life of the Nigeria People, vis a vis the
penalties stipulated in law for electoral malpractices.

It should also be remembered that in 2019 Concluding
Observations in Nigeria, the Human Rights Committee of the United
Nations expressed concerns about allegations of the excessive use
of force against demonstrators  who were part of
non-violent gatherings cases in
point included the killings of hundreds of the members and
supporters of the Biafra course during Operation Python
Dance between August and November, 2016; as well as the
killing of hundreds of supporters of the Shites, Islamic
movement of Nigeria for blocking the passage of a military
convoy in December, 2016. In the case of the Shites some
investigation was said to have been carried out but the outcome of
the investigation remains shrouded in secrecy and no person or
authority is known to have been punished as a perpetrator. The
point UN Special Rapporteurs on extra judicial, summary and
arbitrary executions in Nigeria, have repeatedly expressed concerns
about how deeply flawed Nigerian Rules and practices are which
provide the opportunity for law enforcement agents to shoot and
kill at will. After all, the Police Force in Nigeria use to be
known in local parlance as “kill and go”.

The point to be made is that there is in existence Basic
Principles on The Use of Force and Fire Arms by Law Enforcement
Officers, which emphasizes
proportionality and mandates that the use
of lethal force should be as an
absolute  last resort and only when strictly unavoidable, in
other to protect life.

Placed by the above standards, President Buhari’s Shoot at Sight
Order clearly has no basis in the law. The famous dictum is that
even in times of war, the law is not
silent as there are laws of wars.

No doubt, the security situation Nigeria’s contend with at this
time is grave, but the rational handling of the situation calls for
circumspection and not knee jerk reactions.

One would not want to believe that Mr. President in making his
order is playing to the gallery of public expectations. No
matter the gravity of the situation, the law is that a citizen is
presumed innocent until proven guilty by a Court of law and can
only be punished and stipulated in law. All members of the
society are exposed to danger in a situation where Mr. President by
casual order confers powers of life and death to a policeman or
soldier, who accuses, judges and executes punishment in spite of
the standard set in the law. After all Mr. President has not
declared a state of Emergency under Section 305 of
the Constitution, were Mr. President to have done so, a formal
proclamation will be necessary and the stipulations and
preconditions outlined in the Constitution will be complied with;
the duration will be as spelt out in the law, and the National
Assembly would have played its role in the process.

Shoot at sight orders pose a danger to us all and Mr. President
should have a rethink, even while combating the insecurity
challenge frontally.

DR. OSAGIE OBAYUWANA

NATIONAL PRESIDENT
COMMITTEE FOR DEFENCE OF HUMAN RIGHTS
(CDHR)

By Dr. Osagie Obayuwana

BACKGROUND

Not a few people have complained about what had become the
silence of Mr. President for a long time especially over issues
where his voice should be heard loudly.

Over a long time, in matters of National concern, people of all
categories have repeatedly called on Mr. President to speak; most
of the time, he did not oblige the call. At a point, his handlers
argued that Mr. President is entitled to his style, which left many
people wondering whether what we have in Nigeria is a
constitutional democracy, founded on the principle of
accountability of public office holders to members of the public.
Even the way the invitation of the President to address the House
of Representatives on the security situation, which was once
accepted, was shortly thereafter turned down, left more questions,
than answers in the mind of many.

To close observers of the media policy of the Buhari Regime, it
seems like centuries ago that Mr. President had a media chat. This
graveyard silence, that does beyond taciturnity give some credence
to the speculation as to whether our President is alive or not.

It is as if Mr. President felt compelled to speak out, when the
security situation had clearly gotten out of hand, especially
following the repeated nature of mass abduction of school children
in different parts of the country. But what the Nation heard was a
reported speech, through Mallam Garba
Shehu, the President’s Senior Special Adviser on Media
that Mr. President had ordered that any person found with AK-47
Rifle should be shot at sight.

Trust the ever boisterous Nigeria Media; many queries
immediately surfaced; did the President actually say so, did he
mean shoot to kill or shoot to maim and disable? Did he actually
mean that a holder of an AK-47 wherever found should be shot dead?
Must the holder of the AK47 Rifle be alone or more than one?

How do we distinguish Policemen who adorn torn Jeans and
T-shirts while flaunting their AK-47 in the nooks and crannies of
Nigeria’s inner Cities and on high-ways or is the Order intended
only for those who wear turban? Is the Order limited to AK-47? What
about AK-49 and deadlier machine guns we have seen menacingly
flaunted on numerous video clips on the internet? Finally, to whom
is the President’s Order directed? Only Soldiers which includes the
Army, Navy and the Airforce, or the Police? What about Customs, and
the Nigeria Security and Civil Defence Corps?

As if to clear all doubts, as to the source of the directive, on
Thursday 11 March, 2021 the presidency released a 12 second video
clip, where President Buhari at a meeting with the National Council
of Traditional Rulers held at the State House, Abuja, personally
reinforced the directive, that anyone carrying an AK-47 Rifle
illegally, should be shot, because according to him, “AK-47 is
supposed to be registered and only given to security officials”.
The Oni of Ife and the Sultan of Sokoto were in attendance.
Hurrah!!! was the expected response from the Nigerian People; our
President has indeed woken up and risen to the occasion.

The essence of this write up is to cursorily contribute to the
examination of whether or not there is a legal justification for
the President’s Shoot at Sight Order.

THE LEGAL REGIME

The first point of call has to be the Constitution of
the Federal Republic of Nigeria 1999 (as amended) which is
Section 33, protects the right to life. Subsection
2 of Section 33 provides that a person shall not be regarded as
having being deprived of his right to life if he dies as a result
of the use of such force as is reasonably necessary for the defence
of any person from unlawful violence or for the defence of
property. Additionally, force that could lead to death has been
justified to effect a lawful arrest or to prevent the escape of a
person from lawful custody; and finally use of such force is also
permissible under the Constitution for the purpose of suppressing a
riot, insurrection or mutiny. This section of the Constitution has
been criticized for not been in conformity with international
standards, especially where it allows for the taking of life in
defence of property. The exceptions created under Section 33 of the
Constitution, it is argued, appear to trivialize the sanctity of
life, whereby defence of property under circumstances where no
threat is posed to the life of another, appears to be
justified.

Section 73 of the Criminal Code applies in
matters of dispersal of unlawful assemblies. Under the section, any
Police Officer may use such force as is reasonably necessary for
dispersing or overcoming resistance to dispersal. But there are
pre-conditions contained in the law, which require that there must
have been a proclamation made for dispersal and the expiration of a
reasonable period and the number of those assembled must be 12 or
more persons, and there must have been resistance to being
dispersed by those continuing in the assembly.

It seems clear that the Shoot at Sight Order given by Mr.
President has no bearing with Section 73 of the Criminal Code.

Police Force Order No. 237 is the rule that
guides the use of fire-arms by the Police, and stipulates the
circumstances under which a Police Officer may use fire-arms.

This Order has been criticized as being extremely premissive and
falls short of International Standards, it has been argued that the
section takes a cue from Section 33 of the Constitution, as well as
the relevant provisions of the Criminal Code.

This was the reason why in October, 2019, the Inspector General
of the Nigerian Police, Muhammed Adamu is reported to have
Revised Force Order 237 in a manner he said was
designed to ensure the protection of fundamental Human Rights in
matters of policing.

The New Order still permits the use of fire arms or lethal force
where a Police Officer is attacked or there is an imminent threat
of his being killed or seriously injured and no other means are
available to eliminate the danger of saving his or her life. The
burden of proving this is placed on the Police Officer it been
opined that under these circumstances, it becomes difficult to
justify the use of fire-arms, even if the Policeman is attacked by
an unarmed person. Similarly, a Policeman is justified in the use
of lethal force, where he or she believes that such force is
necessary and proportional in defending a person who has been
attacked and he or she believes that the person cannot otherwise be
protected from imminent death or serious injuries and of course
lethal force can still be used to disperse violent assemblies only
when there is an imminent threat of death and serious injury, and
less extreme measures are insufficient under the circumstances.

Again, there is no doubt that the shoot at sight order
proclaimed by Mr. President did not take into consideration the
Revised Force Order 237 on the use of firearms and lethal force by
the Police.

It should be recalled that in February, 2019,
just before the General Elections in Nigeria, President Buhari
issued the same Shoot To Kill Order directed to
the Military against anyone caught in the act of stealing
Ballot Boxes. It is as if the Nigerian Civil Society at
that time did not take up the President for the danger that order
posed to the right to life of the Nigeria People, vis a vis the
penalties stipulated in law for electoral malpractices.

It should also be remembered that in 2019 Concluding
Observations in Nigeria, the Human Rights Committee of the United
Nations expressed concerns about allegations of the excessive use
of force against demonstrators  who were part of
non-violent gatherings cases in
point included the killings of hundreds of the members and
supporters of the Biafra course during Operation Python
Dance between August and November, 2016; as well as the
killing of hundreds of supporters of the Shites, Islamic
movement of Nigeria for blocking the passage of a military
convoy in December, 2016. In the case of the Shites some
investigation was said to have been carried out but the outcome of
the investigation remains shrouded in secrecy and no person or
authority is known to have been punished as a perpetrator. The
point UN Special Rapporteurs on extra judicial, summary and
arbitrary executions in Nigeria, have repeatedly expressed concerns
about how deeply flawed Nigerian Rules and practices are which
provide the opportunity for law enforcement agents to shoot and
kill at will. After all, the Police Force in Nigeria use to be
known in local parlance as “kill and go”.

The point to be made is that there is in existence Basic
Principles on The Use of Force and Fire Arms by Law Enforcement
Officers, which emphasizes
proportionality and mandates that the use
of lethal force should be as an
absolute  last resort and only when strictly unavoidable, in
other to protect life.

Placed by the above standards, President Buhari’s Shoot at Sight
Order clearly has no basis in the law. The famous dictum is that
even in times of war, the law is not
silent as there are laws of wars.

No doubt, the security situation Nigeria’s contend with at this
time is grave, but the rational handling of the situation calls for
circumspection and not knee jerk reactions.

One would not want to believe that Mr. President in making his
order is playing to the gallery of public expectations. No
matter the gravity of the situation, the law is that a citizen is
presumed innocent until proven guilty by a Court of law and can
only be punished and stipulated in law. All members of the
society are exposed to danger in a situation where Mr. President by
casual order confers powers of life and death to a policeman or
soldier, who accuses, judges and executes punishment in spite of
the standard set in the law. After all Mr. President has not
declared a state of Emergency under Section 305 of
the Constitution, were Mr. President to have done so, a formal
proclamation will be necessary and the stipulations and
preconditions outlined in the Constitution will be complied with;
the duration will be as spelt out in the law, and the National
Assembly would have played its role in the process.

Shoot at sight orders pose a danger to us all and Mr. President
should have a rethink, even while combating the insecurity
challenge frontally.

DR. OSAGIE OBAYUWANA

NATIONAL PRESIDENT
COMMITTEE FOR DEFENCE OF HUMAN RIGHTS
(CDHR)