Is the President’s shoot-on-sight directive against bandits bearing dangerous firearms valid without an executive order? What happens when the order contravenes existing security agencies’ rules of engagement? Can the police, military or paramilitary shoot to kill an armed person when their lives are not threatened? ROBERT EGBE analyses the issues.
President Muhammadu Buhari could not have given a sterner notice of his intention to stamp out banditry, kidnapping, farmer-herder clashes and other acts of terror than he did last Wednesday.
In an interview with The BBC, his spokesman Garba Shehu said security agencies had been directed to shoot on sight anyone seen with an AK-47 or other deadly weapons if the person fails to disarm.
“The President has ordered security forces to go into the bushes and shoot whoever they see with sophisticated weapons like AK-47. He ordered that whoever is seen with terrible weapons at all should be shot immediately.”
According to him, it showed the seriousness with which the government was taking the problem.
“What can be stronger than the fact that the President has directed the operatives to shoot anyone seen with dangerous weapons like AK-47, on sight, in as much as the person is not a security operative?
“Government is doing this with all seriousness. The President equally directed that the security (operatives) should go after them and kill them except they lay down their arms,” Shehu said.
The directive was welcomed by many Nigerians, including politicians across political divides.
The President’s order covered AK-47 and other dangerous weapons. Such weapons are also regulated by and listed under the Firearms Act as prohibited firearms and cannot be owned by civilians without a licence. They include: Artillery; Apparatus for the discharge of any explosive or gas diffusing projectile; Rocket weapons; Bombs and grenades; Machine-guns and machine-pistols; Military rifles, namely those of calibres 7.62 mm, 9 mm, .300 inches and .303 inches, Revolvers and Pistols whether rifled or unrifled (including flint-lock pistols and cap pistols) and any other firearm not specified in the Act.
Others are personal firearms such as shotguns other than – (a) automatic and semi-automatic shotguns; and (b) shotguns provided with any kind of mechanical reloading device; Sporting rifles, namely rifles of calibres; Air-guns, air-rifles or air-pistols and Humane killers of the captive bolt type.
What President may have meant
But, according to lawyers, the President’s directive may, besides being possibly illegal, also lead to unintended consequences.
Senior Advocate of Nigeria (SAN) Seyi Sowemimo reasoned that the implications of the directive were so weighty that he could not have expected security operatives to implement it in toto.
Sowemimo said: “I think the President should not be speaking literarily. I don’t expect the President to say they should just be shot on sight.
“What he is suggesting is that the practice of carrying weapons without a licence is totally unacceptable and that sanctions will be strictly meted out against those found with arms.”
He said he believed that the president was trying to tell bandits, kidnappers and other criminal elements that if they use weapons without a licence, they would be arrested and prosecuted.
Sowemimo’s concern is similar to that held by other lawyers who, though conceding that the president had good intentions with the order, noted that he might be paving the road to constitutional hell.
Is shoot-to-kill order lawful without Executive Order’s backing?
Chino Obiagwu, SAN, said for the order to be lawful, it had to have been issued in the form of an Executive Order, otherwise, it would clash with, for instance, police regulations on how to disarm suspected criminals.
Obiagwu, national coordinator of Legal Defence Assistance Project (LEDAP), wondered whether the order even emanated from the President.
He reasoned that, to dispel doubt, such a weighty directive ought to have been given by the President personally.
According to him, the order “did not come directly from the President and there was no evidence that it was the President that gave the directive. His assistant cannot issue such an important directive without the President clarifying it. It was not issued from the Presidency. Garba Shehu is not the spokesperson for the Presidency. We have a Chief of Staff and a Secretary to the Federal Government.”
Nevertheless, there has not been any contrary directive from the President since the order was announced.
He said: “For such an order to emanate from the Presidency, there should be an Executive Order that would dispel the Police Regulation. Remember the Police Regulation has a procedure for disarming an armed person.
“If the President wanted to waive the provision of the Police Regulation which was made under Police Act, but which he can suspend, he has to issue an Executive Order, saying for the issue of security, this is the position.”
The Black’s Law Dictionary (Seventh Edition) defines an Executive Order as “an order issued by or on behalf of the President, usually intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.”
Executive orders stem from the President, or a governor’s executive powers provided for in Section 5 of the 1999 Constitution as amended in 2011.
Section 5(1) reads: “Subject to the provisions of this Constitution, the executive powers of the Federation:
- “shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
- “shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”
Before President Buhari came to power, no civilian president issued an Executive Order. The closest the country came to Executive Orders were the so-called ‘General Circulars’ issued by the Secretary to Government of Nigeria to guide the public service of the Federation.
Can police kill unauthorised AK-47 holder on sight?
Police regulations on deadly force are as contained in the Police Force Order 237, among other laws and regulations. Inspector-General of Police (IGP) Mohammed Adamu, last December 8, during his one-day work visit to Ebonyi State Police Command, Abakiliki, cautioned his officers and men against deadly use of force.
He advised the police to apply “Force Order 237” only when their lives were endangered, warning that they were not trained to kill but to maim.
This suggests that shooting an unlawfully armed person on sight might be problematic if the police’s life is not threatened.
Adamu said: “As police officers, you are not allowed to kill, you are only to maim that person and you are to target the person’s knee, not the chest.
“So when it comes to a situation where you need to use maximum force, especially in the use of firearms, don’t forget to apply the rule as it covers ‘Force Order 237’ which is when your life is endangered.
“Again, there is another way of using the firearms as contained constitutionally in section 33 of the constitution as amended.”
Police regulations on firearms use
Section 33 that the IGP referred to permits deprivation of life for the defence of any person from unlawful violence or for the defence of property; to effect a lawful arrest or to prevent the escape of a person lawfully detained; or for the purpose of suppressing a riot, insurrection or mutiny.
Force Order 237 stipulates Police rules of guidance in the use of firearms
It provides that a Police officer may use firearms under the following circumstances:
(a) “When attacked and his life is in danger and there is no other way of saving his life;
(b) “When defending a person who is attacked and he believes on reasonable grounds that he cannot otherwise protect that person attacked from death;
(c) “When necessary to disperse rioters or to prevent them from committing serious offences against life and property;
(d) “If he cannot by any other means arrest a person who being in lawful custody escapes and takes to flight in order to avoid re-arrest, provided the offence with which he is charged or has been convicted of is a felony or misdemeanour.
(e) “If he cannot by any other means arrest a person who takes to flight in order to avoid arrest, provided the offence is such that the accused may be punished with death or imprisonment for seven years or more.”
Military’s Rules of Engagement (RoE)
Section 217 (2) (c) of the 1999 Constitution and Section (8) (1) and (3) of the Armed Forces Act 2004 provide the code of conduct and rules of engagement for the armed forces in internal security.
Section 217 (2) (c) of the 1999 Constitution (as amended) provides that Nigeria’s armed forces shall suppress insurrection and act in aid of civil authority to restore order when called upon to do so by the President.
This is reinforced by Section (8) (1) and (3) of the Armed Forces Act, which emphasises that this presupposes that troops have to use necessary force to quell crisis resulting in deaths, injury and damages to properties.
Other highlights of the RoE include:
“The principle of minimum force and proportionality must be applied at all times; whenever the operational situation permits, every reasonable effort shall be made to control the situation through measures short of using force, including personal contact and negotiations;
“The use of lethal force shall only be resorted to if all other means to control the situation have failed or in case of unexpected attack or suspected Improvised Explosive Device (IED) attack during which a delay could lead to loss of life or serious injury to personnel, and that any force applied must be limited in its intensity and duration; it must also be commensurate with the level of threat posed.
“Force shall be used only when absolutely necessary to achieve an immediate aim; the decision to open fire shall be made only on orders and under the control of the on-scene commander unless there is insufficient time to obtain such order. Fire can however be opened if the life of a soldier, any law-abiding member of the public and/or property of which it is the military’s duty to protect is in grave danger; fire must be aimed and controlled. Indiscriminate firing is not permitted.
“Fire may be opened to forcefully stop any vehicle that fails to stop at a checkpoint or roadblock when ordered to stop for search; automatic fire will only be opened as a last resort; avoid collateral damage; after fire has ceased, render medical assistance and record details of incident both in writing and using audio/visual equipment whether or not casualty has been recorded; and whenever in doubt, seek clarification from higher headquarters.”
Presidential order vs military, paramilitary RoE
Obiagwu’s reference to Police regulations raised the question of whether there is a clash between the President’s directive and existing military, paramilitary rules of engagement.
He argued that an executive order would have made such a clash unnecessary.
This may, among others, be because Section 33 of the Firearms Act empowers the President to, after consultation with the National Council of Ministers, make regulations covering a wide range of issues relating to firearms.
Is unlawful possession of AK-47 punishable by death?
Obiagwu agreed that under the law if a non-security operative is found with firearms, there is a presumption that the person is a suspected criminal, “because even if he has a licence for arms, once you are asked to surrender it, you must comply and show your licence.”
Nevertheless, he argued that if the person refuses to surrender the arms, the law does not automatically authorise security agents to kill that person.
This is because the punishment for unlawful weapons possession is as stated in the Firearms Act.
Section 3 of the Act states: “Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 1 of this Act or the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than 14 years but not more than 20 years.
3(1) provides further punishment for illegal possession of firearms It states: “Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of N20,000 or imprisonment for not less than ten years, or to both.”
Obiagwu said: “So, if you are asked to surrender your licence and you refuse, then you pose a danger and any security operative can shoot you, not to kill you, but to disarm you. So there would have been nothing wrong with that directive if it was ‘shoot to disarm’, rather than ‘shoot to kill’ and that is covered by the Police Regulations.
“Even the Administration of Criminal Justice Act says no restraint upon arrest. So, once you want to arrest someone there must be no restraint, no use of force. However, if the person resists, then you can use force. The force used must be proportionate to the threat. That means if the person is with an AK-47 and points it at the security officer, of course, the officer can shoot the person to kill because the threat is proportionate and the response must be proportionate to the threat posed. But if the response is not proportionate, for instance, if the person with the AK-47 flees and you shoot to kill, then the response is disproportionate.”
Lagos lawyer, Jiti Ogunye, also shared a similar sentiment in a post on his Facebook wall last Wednesday.
Ogunye said: “Shoot AK-47 gun carriers on sight? No. Illegal possession of firearms does not attract a death penalty under our criminal law.
“Arrest AK-47 gun carriers and seize their weapons, and apply force, including lethal force, if they resist arrest or pose threat to lives of law enforcement agents?” A big yes.”
Similarly, the Socio-Economic Rights and Accountability Project (SERAP) faulted the order and urged President Buhari to rescind it.
According to SERAP, the most effective way to address the killings, abductions and violence is to ensure full compliance with the Constitution and human rights law.
“If the authorities are truly committed to ending the killings and abductions, they should take meaningful measures to protect Nigerians; immediately identify, arrest, probe and prosecute suspected perpetrators; and provide victims access to justice and effective remedies.
“The shoot-on-sight policy is a threat to human rights-based law-enforcement approaches; may be abused and (may) exacerbate the impunity by law enforcement officials. Non-violent means should as far as possible be applied before resorting to the use of force and firearms.”