By: C.K. ANYANWU ESQ (LL.B, B.L, LL.M, PhD IN VIEW)* & DR. (MRS) EKANEM-OTU O. OLOWONIYI
INTRODUCTION
In the International Community as applicable in Nigeria, many acts, conducts or events have been considered as torture particularly where such acts are carried out by agents of the state like the police and other security agencies mostly with the aim of obtaining information from the victims. Torture as a form of violence against the person of another could take different forms which could be in the form of beating, rape, electrocution and other inhuman treatment of human beings. It is said to be a grave violation of human rights and is rigidly prohibited. To this end, several International and regional instruments like the United Declaration of Human Rights, African Charter on Human and People Rights etc have in diverse ways taken necessary measures to prohibit and punish those found guilty of torturing humans. In Nigeria, the 1999 constitution which is the apex law of all laws made provisions against torture. Furthermore, in 2017, an Act was enacted (i.e Anti-Torture Act 2017) which sole objective was the prohibition and punishment of torture and other forms of cruel, inhuman or degrading treatment. This piece therefore is an interpretation of torture in the light of the Nigerian Anti-Torture Act and jurisprudence of International bodies.
Torture is defined by various International Instruments. Most of the instruments are not solely dedicated for the protection of the right against torture. However, due to the seriousness of the abuse many International instruments on human right protection have added weight to the fight against torture. The convention against torture is the only international instrument that is solely dedicated to the protection of the right against torture.
Article 1 of the Convention against Torture defines the term torture, thus;
“The term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third party information or confession, 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, inherent in or incidental to lawful sanctions.
Similarly, section 2 of the Anti- Torture Act[1] defines what amounts to torture. It states that torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to- (a) obtain information or confession from him or a third person; (b) punish him for an act he or a third person has committed or suspected of having committed; or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind. It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions.
1.02 ELEMENTS OF THE DEFINITION OF TORTURE
Many acts, conducts or events may be viewed as torture in certain circumstance, while they will not be viewed as torture in some other situations. In fact, there is no single definition existing under international law but most international dispositions and bodies tend to agree on four constitutive elements of torture.
Thus, elements to be taken into account for qualifying an act as torture are the following:
1. The nature of the act:
The legal definition of torture encompasses both acts and omissions that inflict severe pain or suffering. Indeed, the term “act” which is mentioned in the article 1 of UNCAT, must not be given a narrow interpretation. Its origins can be found in the Greek case decision delivered by the European Commission of Human Rights[2]. The decision explicitly held that deprivation of food and other items constitutes an “act” of torture[3].
Moreover, pain and suffering may be either physical or mental[4]. Thus, the threat of torture or mock executions is comprised within this concept of mental suffering[5].
2. The intention of the perpetrator
Pain and suffering must intentionally be inflicted on the victim in order to qualify as torture. Therefore, even if it has been recalled at one be intentionallyoccasion that negligence is “a well – established subjective component of criminal liability”[6]; nevertheless, for the time being, negligence is not sufficient to qualify an act as torture under international law, whereas recklessness might suffice.
3. The purpose
The different purposes that an act of ill-treatment must fulfill to be considered as torture or cruel, in human and degrading treatment are the following:
The list established according to UNCAT may be viewed as indicative rather than exhaustive.
4. The involvement of public officials or assimilated
While the question of the involvement of public official is usually straight forward, the recognition of “other person acting in an official capacity” may be more problematic. Similarly, while it is easy to consider that ill-treatment inflicted at the instigation of a public official is torture, such act inflicted “with the consent or acquires” of the same public official, is a more delicate issue.
1.03 ACTIONS THAT COULD BE BROUGHT UNDER THE ANTI-TORTURE ACT
It is important to underscore the fact that actions in torture could be brought under the criminal or civil suit. But prior to the enactment of the Anti – torture Act 2017, torture by the perpetrator was seen more as a civil wrong except when death occurs.
Section 8 of the Anti-Torture Act provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years. If death occurs as a result of the torture, the person involved with be charged with murder under the relevant law.
In the same token, it goes on to say that this does not in any way take away the victims right to civil claim in court for damages or compensation for the torture, most civil claims are achieved by way of claim or enforcement of the fundamental human rights which entitles the claimant/applicant to claim for damages and compensation.
1.04 ELEMENTS OF DISTINCTION BETWEEN TORTURE AND CRUEL, INHUMAN AND DEGRADING TREATMENT
Torture and cruel, inhuman and degrading treatment are concepts that might be difficult to distinguish. Indeed, while it may be easy to differentiate between degrading and inhuman treatment/torture, the separation between inhuman treatment and torture is much more complex. Torture is a severe form of inhumane treatment, but there is no objective element of distinction between the two categories.[7] Acts at stake are usually identical and only the level of intensity/severity of the ill-treatment, taking into account the vulnerability of the victim, may vary. The distinctive element being subjective, the whole complexity of this distinction is illustrated below with the various elements that can be taken into account to determine the threshold between the two.
The United Nations Special Rapporteur on Torture and other Cruel Inhuman and Degrading Treatment or Punishment, Manfred Nowak, stated that
“a thorough analysis of the travaux preparatoires of articles 1 and 6 of the
Convention as well as a systematic interpretation of both provisions in
Light of the practice of the Committee against torture leads one to
Conclude that the decisive treatment may best be understood to be the
Purpose of the conduct and the powerlessness of the victim, rather than
The intensity of the pain or suffering inflicted”
Accor dingly, it might be the powerless of the victim that can enable to distinguish between torture, cruel or inhuman treatment. Thus, ill- treatment applied in a situation of powerlessness (e.g detention) will be more likely to amount to torture.[8]
The European Court considers that in order to fall within this scope, an act of ill treatment, whether it is torture, inhuman or degrading treatment or punishment, must attain a minimum level of severity. The assessment of this threshold of severity is made in regard of the specific circumstances of the case and the court considers the following:
*duration of treatment
*physical effects of treatment
*mental effects of treatment; and
*sex, age and state of health of the victim
Thus, in one instance, the European Court held that methods of interrogation using the “five techniques” (sleep deprivation, maintaining in painful positions, deprivation of food and drink, subjection to noise and hooding) caused “if not actual bodily injury, but at least intense physical and mental suffering and also led to physical disturbances during interrogation”, and therefore fall into the category of inhuman treatment. However, it did not recognize that these practices “occasion(ed) suffering of the particulars intensity and cruelty implied by the word torture.
In some other instances, the court held that the so-called “Palestinian hooding” was sufficiently severe to amount to torture,[9] and that the rape of an individual by two police officers during custody also amounted to torture.[10]
Parameters used to define whether the perpetrated acts amounted to torture might be as follows:
“the question would then be: was the applicant’s pain and suffering severe
And did the police have the specific intent (dolus specialis) for example, to
Discriminate against or punish the applicant? If we considered the pain and
Suffering undergone by the applicant to be less than “severe” then in terms
Of the CAT, we would be speaking of “inhuman and degrading treatment”[11]
The late European Commission of Human Rights held that while the severity of pain and suffering enables to distinguish between inhuman and degrading treatment, it is the purpose of such conduct that is the decisive feature in distinguishing cruel , inhuman and degrading treatment from torture.[12]Thus, when it is considered the five interrogation technique described above, the commission viewed them in the circumstances of that case as amounting to torture.
The European Court held that the European Convention on Human Rights must be interpreted in light of the present day conditions. Thereby, acts which were considered as amounting to cruel, inhuman and degrading treatment formerly may now amount to torture.
“The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the convention is a “living instrument which must be interpreted in the light of present day conditions”, the court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”[13]
Thus, in 2000, the European Court was of the view that the presence of some twenty-five traces of skin lesions, erosions, abrasions and bruises on the first applicant’s lower and upper limbs, “taken as a whole and having regard to its purpose and duration, was particularly serious and cruel and was capable of causing “severe” pain and suffering. It therefore amounted to torture within the meaning of Article 3 of the Convention.[14]
1.05 PROOF THAT TORTURE OCCURRED
Under the Nigerian evidence law, burden of proof means the obligation on one or more of the parties in a suit to adduce evidence either in proof of the whole case or a particular fact. Where the party on whom this obligation is cast, fails, refuses or neglects to adduce the relevant evidence, then either he loses the whole case or he fails to prove the particular fact. In MADUABUM V. NWOSU[15], it was held inter alia that a party must make out his case by the best available evidence. Where weaker, extraneous or insufficient or feeble evidence is give, then it will amount to failure of proof[16].
Burden of proof may either be “general burden” or “accidental burden”. Where the burden is to prove the whole case, the burden of proof is then referred to as “general burden”. But where it is a burden to a proof a particular fact, it is known as evidential burden. While evidential burden shifts, the general burden is static.
Interestingly, in a criminal proceedings particularly during trial-within-trial, wherein the defendant while in custody was tortured by the state agencies in order to elicit information, the burden of proof rest squarely on the defence counsel to establish that the information was elicited through unfairly means. This is achieved by proving the nature of theacts that amounted to torture, the intention of the perpetrator, the purpose for which the harm was inflicted on the defendant and the involvement of public officials that assimilated it (i.e the police, army, EFCC etc).where this has been successfully established, the said information (i.e statement) is expunged or rejected in evidence.
More so, a situation where death occurs as a result of the torture, the public official (being the perpetrator) would no longer be tried under the act but the relevant law (such as criminal code, penal code, etc) depending on the geographical location where it occurred.
In a civil proceedings,the general burden of proof is determined by the pleadings. This is usually decided by the court, because it is a matter of law. Furthermore, the burden is on the plaintiff to establish all facts contained in the statement of claim. Thereafter, the burden shifts to the defendant to prove contrary facts as canvassed in his statement of defence. For instance, where someone was healthy before his arrest and detention by the men of Nigeria Police force, but became sick after he was admitted to bail as a result of the beatings he suffered in the hands of the police officers. Considering the sickness, he was admitted to the hospital wherein he spent a month before recuperation which amounted to him losing his job as a result of long absence from work. The burden is on the claimant to proof the existence of tortures acts and how it led to the damages he suffered. Thereafter, the burden shifts to the defendant to establish to the satisfaction of the court any contrary facts in rebuttal.
1.06 PARTIES TO AN OFFENCE OF TORTURE
Basically, the Nigerian criminal code recognizes two classes of parties viz: principal offenders and accessories there is no limitation as to the number of persons that can be tried and/or convicted for the commission of an offence of torture. This is because a number of persons may be involved in its commission. The principal offender is the actual perpetrator of the crime and he is also referred to as first – degree principal. He is the most immediate cause of the actus Reus of the offence. Put differently, others not being principals who participate in the commission of an offence are referred to as accessories or secondary parties and would be liable for conviction if it is proved that they aided, abetted, counseled or procured the commission of the crime by the principal.
However, torture may be said to have been inflicted on a victim even without the perpetrator causing the harm himself.
Instances that make a person principal offender
Going by section 7(1) of the Act, “a person” who participates in the infliction of torture is liable as the principal offender. For example:-
“If A provides the object used by B in torturing C,
A is said to have participated in the infliction of
torture on C and therefore a principal offender”
Similarly, a person who is present during the commission of the act is also liable as a principal for example:
”A divisional police officer who witness where a suspect is being tortured for the purpose of obtaining an information from him is said to be a principal offender having been present when the harm was inflicted on the suspect”
In the same vein, section 2 provides that a superior military police or law enforcement officer or senior government official who issues an order to lower ranking personnel to torture a victim for whatever purpose is equally liable as a principal.
“If for instance a Divisional Police Officer orders a sergent to
Forcefully obtain a statement from a suspect, he Is said to be
a principal offender even though he wasn’t the one that
applied the force”
When an offender is said to be an accessory
Section 4 provides that the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.
1.07 EVIDENCE OBTAINED UNDER TORTURE: HOW TREATED
Article 15 UNCAT provides that confessions and other evidence obtained by torture are in admissible in legal proceedings except against a person accused of such treatment as evidence that the statement was made. The exclusion of such evidence is an important aspect of states obligations to prevent torture. It counteracts one of the main enumerated purposes of torture to elicit a confession. The rationale for the exclusionary rule stems from the combination of factors to wit:-
In Nigeria, the evidence act of 2011 further corroborates the position of the law at the international level regarding evidence obtained by oppression (which is defined to include torture, inhumane or degrading treatment, and the use of threat of violence whether or not amounting to torture).
Given this, section 29 (2)[17] provides that a court shall not allow a confession to be given in evidence where it is represented to “Court that the confession was or may have been obtained:-
Was likely, in the circumstances existing at the
Time, to render unreliable any confession which
Might be made by him in such consequence.
It is now the law that a confession obtained as a result of oppression of the maker is involuntary and inadmissible. Any confessional statement obtained by use or threat of violence or force whether or not amounting to torture is involuntary and inadmissible.[18]
Interestingly, in the case of AMACHREE v. NIGERIAN ARMY[19], it was held that the clamping of chains around the Defendant’s legs when he was being interrogated and when he was making his alleged confession amounted to oppression, rendering inadmissible the confessional statement.
It has also been held that no matter how heinous the crime of a suspect may be, including cases of the offence of terrorism, any confession obtained by instrumentality of “torture” remains inadmissible in law.[20]
In the very recent case of BANJO V. STATE[21], the Court of Appeal per Ikyegh JCA observed as follows:
The appellant’s evidence-in-chief at the trial-within-trial stated inter alia that police officers – one Hausa one Asmo – suspended him in the air on a hanger and beat him with sticks, cutlass and wire urging him to confess the crime to which he eventually capitulated. The cross-examination of appellant on the said pieces of evidence was weak. Earlier in the course of cross-examination of the recorder of the statement at the trial-within-trial, appellant had asked questions foreshadowing the participation of other police officers in beating and torturing him to force the confessional statement from him. Appellant went ahead to testify in the trial-within-trial that: “I was in fetters bother on the hands and on the legs, my hands with the handcuffs to the ceiling fan hook on the ceiling of the small room. They removed the drum from under my feet and I was hanging. They started beating me with the stick, the cutlass and wire urging me to confess… they later brought me down forcefully and I hit my head on the wall..” The appellant was not cross-examined on the “fetters both on the hands and on the legs” at the time he made the statement in Exhibit B. Appellant’s cross-examination at the trial-within-trial revealed that he sustained injuries on his head, left arm and left leg from the alleged torture. In admitting the statement in evidence, the court below did not advert itself to the fetters and chains under which the appellant was subjected to at the time he made the confessional statement, also the court below did not comment on the injuries appellant asserted he sustained from the alleged torture, nordid the court below make any observation on the failure of respondent to call the other two police officers as witnesses to clear the accusation by appellant that they participated in torturing him to give the confessional statement in Exhibit B. the above identified lapses were not revisited or redressed by the court below in its final judgment. I am therefore in agreement with Mr. Idowu of learned counsel for appellant, that the admissibility in evidence of the confessional statement in Exhibit B was fraught with dead wounds.”
However speaking, there is a provison in section 29 (2) of the Act[22] to the effect that the court shall not allow the confession to be given in evidence against a defendant except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of section 29 of the evidence Act.
To this end, it is globally accepted phenomenon that every person has the right to have his physical, mental and moral integrity respected. No one shall be subjected to torture, or cruel, in human, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. This is recognized at least in Article 5 of the Universal Declaration of Human Rights, 1948[23], Article 5 of the African Charter of on Human and People’s Right 1981[24] and section 34 of the 1999 Constitution of Nigeria (as amended).[25]
1.08 ACTS THAT AMOUNT TO TORTURE
The form and acts that mounts to torture is so wide that often times it starts will the arrest and detention of the victim. Put in another sense, what amounts to torture in a particular circumstance might differ in another circumstance, but what matters most is that the victims have undergone either physical or mental sufferings.
Section 2 (2) of the Act[26] defined torture to include:-
(a) Physical Torture, which refers to such cruel, in human or degrading treatment which causes pain exhaustion, disability or dysfunction of or more part of the body.
(b) Mental or Psychological Torture, which is understood as referring to such cruel, in human or degrading treatment calculated to affect or confuse the mind or undermine a person’s dignity and moral.
PHYSICAL TORTURE
The Act has defined Physical Torture to include the following:-
(i) Systematic beatings, head-banging, punching, kicking, striking with rifle butts and humping on stomach.
(ii) Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten.
(iii) Electric shocks
(iv) Cigarette burning, burning by electrically heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spice directly on the wounds.
(v) The submersion of head in water or water polluted with excrement, urine, vomit or blood.
(vi) Being tied or forced to assume fixed and stressful bodily position.
See: The Anti-Torture Act for more acts that constitute physical torture
MENTAL OR PSYCHOLOGICAL TORTURE
The Act has defined mental torture to include the following:-
See: The Anti-Torture Act for more of the acts that amount to mental or psychological torture.
1.09 CONCLUSION
The enactment of the Anti-torture Act is a welcomed idea into our legal system. Prior to its enactment, police and other law enforcement officers having custodial powers could get away having inflicted torture on an individual as the law against torture wasn’t clear and precise. The coming into effect of the Anti-torture Act 2017 has fundamentally changed this. Torture is now officially a crime and an event where a victim of torture doesn’t want to come under the criminal proceedings, actions could still be brought under the fundamental right enforcement procedure rules either for damages or compensation as the case may be. More specifically, it makes freedom from torture a non-derogable right and also makes it clear that there is no justification for an act of torture.
**C.K. Anyanwu Esq was called to the Nigerian Bar as a Barrister and solicitor of the Supreme Court of Nigeria on 15 December 2015, having excelled with a second class upper in the faculty of law, Imo State University in the year 2014. He is sound in legal research and has consistently carried out research works towards the growth/development of Nigeria’s legal system. He has a robust, expansive and expanding experience as a legal Practitioner and currently practices the legal profession in Aba, Abia State, in the chambers of C.C. Elele & Associates, which is situated at 3c Pound Road Extension, Aba.**
[1]Cap L12 LFN 2017
[2] European Court on Human Rights, “The Greek case”, Danemark v. Greece, Communication 3321/67
[3] M Novak, UN Convention against Torture, A Commentary, Oxford Commentaries on International law, Oxford University Press, P75
[4] See also Committee on Civil and Political Rights, General Comment 20 on article 7 ICCPR, para 5
[5] Committee against Torture, A/45/44 para 90
[6] Discussion of Denmark, Committee against Torture, Summary record of the 75th meeting, UN Doc CAT/C/SR/SR.757 (8 May 2007) para 35.
[7] M Nowak, UN Convention against Torture, A commentary, Oxford Commentaries on International law Oxford University Press, page 73
[8] Report of the social Rapportuer on torture and other cruel, inhumane or degrading treatment of punishment, UN Doc E/CN.4/2006/6, Para 39
[9]European Court of Human Rights, Aksoy v. Turkey, Communication 21987/93 18 December 1996, para 64
[10]European Court of Human Rights, R Aydin v. Turkey, Communication 23178/94,25 September 1995, para 86
[11]European Court of Human Rights, Rehbock v. Slovenia, Communication 29462/95, 28 November 2000
[12]European Court of Human Rights, “The Greek Case”, Denmark v Greece, Communication 3321/67
[13]European Court of Human Rights, Selmouni v France, op cit
[14] European Court of Human Rights, Dikme v. Turkey, Application no. 20869/9, 11 july 2000, para 96
[15] (2010) 13 nwlr (PT. 1212) 623
[16] See also A-G ANAMBRA STATE V. A-G FEDERATION & ORS (2005) 9 NWLR (PT.931) 572
[18] See section 29(5) of the E.A. 2011
[19](2003) 3 nwlr (Pt. 807) 256 at 279-280 C.A.
[20] A v. Secretary of State (2006) 1 ALL ER 573 HL cited by S.T. Hons in his book: Law of Evidence in Nigeria, 2nd Edn
at page 238
[21] (2012) All fwlr (Pt. 609) 1175 CA at 1184-1185
[22] 2011 Evidence Act
[23] Adopted and proclaimed by the United Nations General Assembly resolution 217A (111) on 10 December 1948
[24] Adopted by the Organisation of African Unity (now African Union) on 17 June 2018. Entered into force on 21 October 1986
[25] Cap C23 LFN 2004
[26] Anti-Torture Act (2017)
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