Tackling Police Corruption & Indiscipline: Are Orderly Room Trials Valid?
"A FURTHER REASON WHY THE ORDERLY ROOM PROCEDURE IS INVALID, IS BECAUSE POLICE OFFICERS, ARE PUBLIC OFFICERS. BY VIRTUE OF PARAGRAPH 9 OF PART II OF THE FIFTH SCHEDULE TO THE CONSTITUTION, ALL POLICE OFFICERS, ARE BOUND BY THE CODE OF CONDUCT FOR PUBLIC OFFICERS IN THE CONSTITUTION"
Introduction
The noticeable drive of the current leadership of the Police, to rebrand the Force, was graphically illustrated by the recent dismissal, following an Orderly Room Trial, of four officers of its Ijebu-Ode, Ogun State Command, on charges of corruption (bribery) and discreditable conduct under the Nigerian Police Regulations 1968, a subsidiary instrument made pursuant to the Nigeria Police Act, Cap P19, LFN 2010. Coming on the heels of the recent successes of the Force in bursting two notorious self-confessed criminals, ‘Vampire’ and ‘Evans’, the dismissals were broadly welcomed by the public as signposting the dawn of a brave new Police Force.
Before we shout ‘Hurrah’, however, we must pause to reflect on the procedure under which the ‘Ijebu-Ode Four’, were sanctioned. This is because of the legal and constitutional implications, of the combination of their status as public officers, and the fact that their alleged offences (along with at least half of the offences under the Police Regulations), are also criminal offences under general criminal laws such as the Criminal Code, the Penal Code, the ICPC Act, etc.
Discipline of Police Officers in Nigeria By virtue of Paragraph 30(b) of the Third Schedule to the 1999 Constitution, the discipline of police officers in Nigeria - with the exception of the Inspector General of Police - is the responsibility of the Police Service Commission. Contrary to this provision, however, Regula
tion 372 of the Regulations provides that “the competent authority for the exercise of disciplinary control shall be the Nigeria Police Council” This provision is obviously invalid, as it is inconsistent with the foregoing provision of the Constitution. Both the Police Council and the Police Commission are established by and conferred with different functions under Paragraphs 27 – 30 the Third Schedule and Section 153(1)(l) & (m) of the Constitution.
For the purposes of discipline, different provisions are applicable to superior police officers and junior police officers, as defined in Section 2 of the Police Act and Regulation 370 of the Police Regulations respectively. The former defines a “superior police officer” as “any police officer above the rank of a Cadet Assistant Superintendent”, whilst the latter defines junior police officers as “Inspectors, Non-commissioned Officers or Constables”. By this definition, the ‘Ijebu-Ode Four’ were junior police officers; this is the only category of officers, who are subject to the Orderly Room provisions of the Police Regulations.
Orderly Room Procedure Regulations 381 – 383 of the Police Regu
lations provide for the Summary Investigations of and Orderly Room Procedure, in respect of offences against service discipline committed by junior police officers, as specified in the Regulations. Such investigations are initiated whenever a suspect denies a written charge of committing a disciplinary offence.
I believe that the validity of the Orderly Room Procedure, depends in turn on the validity of the offence or offences in the Regulations with which an officer may be charged in any given case. This is because of the glaring similarity, in my view, between at least half of the disciplinary offences in the Police Regulations and certain provisions of the Code of Conduct for Public Officers in the Constitution on one hand, and the Corrupt Practices & Other Related Offences Act/the Penal Code/the Criminal Code, on the other. One of the key provisions of the Regulations is Paragraph C titled Corrupt Practice, which includes demanding and receiving bribe, one of the two offences which cost the ‘Ijebu-Ode
Four’ their 2 careers in the Force. I believe its provisions are synonymous with Sections 8, 9, 10 and 18 of the Corrupt Practices and other Related Offences Commission Act 2000, as well as Sections 115 – 199
and 122 of the Penal Code in force in the nineteen Northern States, as well as Abuja. Similar provisions exist in the Criminal Code in force across the seventeen Southern States.
Apart from bribery and corruption, the following offences in the Regulations, in my view, are synonymous with the provisions of the Penal Code indicated against them, viz:
(i) Paragraph N (i), (iv) & (vii) of the Regulations (Neglect of Duty) - Sections 129 and 150 of the Penal Code: abandonment of duty by public servant and failing to assist public servant when bound to assist him/her. (ii) Paragraph B (i) (ii) (iii) & (iv) of the Regulations (Breach of Confidence) - Sections 98, 99 and 135 of the Penal Code: Breach of Official Trust: preventing service or publication of summons, orders, notices, etc (iii) Paragraph E (ii) of the Regulations (Discreditable Conduct) such as assaulting a member of the Force - Sections 240 – 253 of the Penal Code: causing hurt (iv) Paragraph D(i) of the Regulations: damage to article supplied to and officer
– Section 166 of the Penal Code: Destruction of document to prevent its production in evidence
(v) Paragraph K(i) & (ii) of the Regulations (Falsehood or Prevarication) - Section 178 of the Penal Code: giving false information in respect of an offence
To the extent that the foregoing and other disciplinary offences in the Police
Regulations, are also criminal offences triable in the regular courts, I believe that they are anomalous, because they are inconsistent with the Section 36(4) of the 3 1999
Constitution which provides that anyone accused of committing a criminal offence, is entitled to fair hearing in a court or tribunal constituted in such a manner as to ensure its independence and impartiality. This provision was construed in SOFEKUN
v AKINYEMI (1980) 5 S.C. 1 where the apex court laid down the principle that, once a person is charged with a criminal offence, “he must be tried in a court of law and no other tribunal, investigating panel or committee will do”. This principle was reiterated in F.C.S.C
v LAOYE (1989) 2 NWLR pt. 154 pg. 652 @ 680A where the apex court held that “Conduct amounting to crime must first be a matter for the criminal tribunal before disciplinary issues could be raised”.
The relevance of these dicta, is underscored by the fact that Regulations 383(5) & (6) expressly provide that not only are Orderly Room proceedings closed to members of the public, the officer on trial “shall not be entitled to be represented by any person whatsoever.”
The Police As Public Officers
A further reason why the Orderly Room Procedure is invalid, is because police officers, are public officers. By virtue of Paragraph 9 of Part II of the Fifth Schedule to the Constitution, all police officers, are bound by the Code of Conduct for Public Officers
in the Constitution. The implication of this is that, where a police officer is accused of conduct which contravenes the Code, the only authority which is competent to investigate it, is the Code of Conduct Bureau established under Section 153(1)(a) of the Constitu
tion. If necessary, the Bureau can refer the complaint to the Code of Conduct Tribunal for prosecution: Paragraphs 1 & 3(d)&(e) of the Third Schedule to the Constitution.
Only the Tribunal is competent to try a public officer charged with contravening the Code: Paragraphs 12, 15(1)&(2) of the Code in the Constitution.
I believe that Paragraphs 1 , 2(b), 8 & 9 of the Code of Conduct for Public Officers
are synonymous with relevant provisions of the Police Regulations referred to above as follows:
- Paragraph 1, which precludes a public officer from putting himself in a position where his personal interest conflicts with his duties;
- Paragraph 2(b), which precludes a public officer from engaging in any private business, profession or trade ;
- Paragraph 8, which prohibits bribery of public officers; and
- Paragraph 9, which prohibits a public officer from abusing his office.
It is trite that in such circumstances, the Constitution is deemed to have covered the field. Accordingly, any statute which makes similar or identical provisions - in this case, the said Police Regulations - will be otiose and inoperative, and if they are inconsistent with those of the Constitution, they will be invalid. See ATTORNEY- GENERAL OF ABIA STATE v ATT-GEN. OF THE FEDERATION (2002) 6 NWLR pt. 764 pg. 542 per Uwais , CJN.
Conclusion
It is axiomatic that, discipline is a sine qua non for optimum service delivery and excellence. This is particularly so, with security agencies such as the police and other branches of the armed forces. However, as the apex court held in NIGERIAN ARMY v AMINUN KANO (2010) All FWLR pt. 253 pg. 1805 @ 1839, “being a serving member of the armed forces does not exclude a citizen from the protection of the fundamental rights entrenched in the Constitution”. This is simply because a fundamental right cannot be waived: OGBA v THE STATE (1992) 2 NWLR pt. 222 pg. 164.
Accordingly, to the extent that the aforesaid provisions of the Police Regulations for dealing with disciplinary offences committed by junior police officers, are inconsistent with the fundamental right of fair hearing and the Code of Conduct for Public Officers under the Constitution, they are aberrations, which should be scrapped forthwith, in the interest of the rule of law and constitutional supremacy.