I have taken pains to elucidate on the issue under consideration which is as simple as ABC. It is not because there are no serious and pressing legal controversies in the country requiring my intervention, but to basically portray the reckless, arbitrary and intolerable abuse of law enforcement powers by the police. This matter calls to question the level of institutional sanity in the Nigeria Police Force.
A 30-year-old trader, Mr. Joe Fortemose Chinakwe, of No 10, Omikunle Street, Sango-Ota, Ogun State was arrested last Saturday and incarcerated for about three days by the police for naming his pet dog "Buhari". The arrest and detention followed a complaint by an unnamed Mallam, who is said to be an alien from Niger Republic. Confirming the arrest to Vanguard Newspaper, the Police Public Relations Officer (PPRO) in Ogun State, ASP Abimbola Oyeyemi had this to say:
"I have made enquiries. The man bought a dog and inscribed Buhari on both sides of its body. One Mallam lodged a complaint and when our men got there, we found out that it was true. You know such thing can cause serious breach of the peace and ethnic or religious unrest. We are charging him to court for conduct likely to cause a breach of peace.” Continuing, he said:
"He was arrested last Saturday and we are taking him to court later today (Tuesday) or tomorrow morning (today). You know an average Northerner will feel bad over such a thing. It can cause serious ethnic crisis or religious confrontation because when you are relegating such a name to a certain person, you are indirectly insulting him.”
Narrating his ordeal and the rationale for naming his pet dog "Buhari" to Vanguard upon his release on Tuesday, Chinakwe said:
"It is annoying because the complainant is from Niger Republic and I am sure he is one of those illegal aliens in this country. He connived with one Police Sergeant from the Northern part of Nigeria called Musa, who works at Sango Police division to humiliate me. Worse still, the Divisional Police Officer there, did not help matters as he refused to entertain any plea from me after I was arrested that Saturday night. He simply ordered his men to throw me into the cell.”
Continuing he said “I did not commit any offence. I named my beloved pet dog Buhari, who is my hero. My admiration for Buhari started far back when he was a military Head of State. It continued till date that he is a civilian President. After reading his dogged fight against corruption, which is like a canker worm eating into the very existence of this country, I solely decided to rename my beloved dog which I called Buhari, after him. I did not know that I was committing an offence for admiring Buhari.
From the foregoing, the sole issue for determination is whether the arrest and detention of Mr. Chinakwe in the circumstance is constitutional?
The starting point in resolving the above issue is whether the naming of a dog "Buhari" is a criminal offence. The Police is of the view that it amounts to "conduct likely to cause a breach of public peace" because according to them, "an average Northerner will feel bad over such a thing.
This is where the police got it all wrong.
The offence erroneously alluded to by the police is provided for in Section 249 (1) (d) of the Criminal Code Cap 29 Vol.11 laws of Ogun State of Nigeria 2006. The provision is to the effect that "every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace" shall be deemed idle and disorderly persons, and may be arrested without warrant, and shall be guilty of a simple offence, and shall be liable to imprisonment for one month.
How does the naming of a dog "Buhari" amount to a conduct likely to cause a breach of the peace? The conduct envisaged by the law should not merely be offensive to an individual's or group's perception of acceptable conducts. The fact that an individual or a section of the public considers a person's conduct repulsive and reprehensible does not necessarily bring such conduct within the contemplation of Section 249 (1) (d) of the Criminal Code so as to occasion a likelihood of breach of the peace.
The correct test for determining whether a conduct is likely to cause a breach of the peace was articulated by the then Federal Supreme Court of Nigeria in the case of Nelson Ohanyere & 9 Others v Inspector General of Police (1957) SCNLR 213, where Jibowu, AG. F.C.J. (as he then was) held thus:
"The test to be applied is whether the conduct of the accused was such that a breach of the peace might reasonably have ensued, and the fact that no breach of the peace, in fact, took place is irrelevant."
Reasonableness is a decisive consideration as correctly stated by the court. There is no reasonable likelihood of a breach of public peace in an individual deciding to give his pet dog the name of a human being. In the eyes of the law, it is immaterial that the human name so given is equally borne by a public figure, such as the president of Nigeria or any other person for that matter.
The Supreme Court of Canada took a more definitive position on the issue in the case of Frey v. Fedoruk ET AL (1950) S.C.R. 517 when it held that:
"Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct, which has not up to the present been regarded as criminal, is now to be so regarded."
In that case, the appellant was chased, caught and detained by the respondent, Fedoruk, after he had been seen on Fedoruk's property looking into a lighted side window of the house where a woman was preparing for bed. A policeman, the other respondent, was called and, after some investigation, arrested appellant without warrant.
On a charge that he "unlawfully did act in a manner likely to cause a breach of the peace by peeping ..." appellant was convicted by a Police Magistrate but acquitted by the Court of Appeal. In upholding the appellant's claim for damages for false imprisonment, Kerwin J. who read the leading judgment of the court insisted that the act of peeping was not in itself a crime as such the appellant could not be prosecuted for acting in the manner likely to cause a breach of the peace by peeping. The court emphasised that for such a charge to be sustained, the particular act complained of must itself be a crime.
The Canadian precedent only has a persuasive effect on Nigerian courts. It is not binding. I submit that despite its non-binding nature, the decision is logically tenable and legally sound.
It is not permissible under our constitutional law and criminal jurisprudence for a person to be prosecuted for conduct likely to cause a breach of the peace contrary to Section 249 (1) (d) of the Criminal Code when the very conduct complained of is not in itself a criminal offence.
In the instant case, is it a criminal offence in any Act of the National Assembly or law of any State House of Assembly of the federation, including Ogun State for a person to give his pet dog a human name or name a dog after a particular human being, irrespective of the status of the human being after which the dog is named?
The police knew that the answer to this simple question is Capital NO. Yet, it recklessly and unlawfully proceeded to effect the arrest and detention of Mr. Chinakwe for naming his pet dog "Buhari".
Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) states thus:
" Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law."
This constitutional provision enshrines the right to be tried for an offence that is known to law. It forbids the arrest, detention, prosecution or conviction of any person except for a crminal offence that is prescribed in a written law. This provision was first tested in the locus classicus of Aoko v Fagbemi (1961) 1 All NLR 273 where the Apext Court unanimously quashed the conviction of the appellant for adultery since adultery was found not to be a criminal offence in any written law in the South.
The police stated that Chinakwe's "conduct" was "likely to cause a breach of public peace" because "an average Northerner will feel bad over such a thing.
This is most ridiculous.
Why should "an average Northerner" feel bad because someone named his dog "Buhari"? Is President Muhammadu Buhari the president of Nigeria or the president of the North? While it is morally imperative for the office and person of the president to be respected by all, refusal to accord Buhari "respect" is not a crime.
There is a distinction between calling President Muhammadu Buhari a dog on the one hand and naming a pet dog "Buhari". While the former on the face of it is offensive and derogatory of the president, the latter may be either innocous or derogatory depending on the circumstances and motive of the owner of the dog. However, none of the two cases can justify arrest, detention or prosecution. The reason being that no criminal offence is committed in either cases.
At worst, such "conduct" is merely 'contra bonos mores' (Against good morals) but not 'contra pacem' (Against public peace) in the sense of being a breach of the criminal law. The maxim is 'nullum crimen nulla poena sine lege', that is, there is no crime nor punishment except in accordance with law.
The owner of the dog told Vanguard that he actually named the dog "Buhari" because of his "admiration" for Buhari who he said is his hero. Even if he did so out of sheer animosity and disdain for President Muhammadu Buhari, it will still not justify his arrest and detention. There is nothing sacred about the name Buhari in the eyes of the law. Our president is not the only person bearing Buhari.
The allegation by the police that Chinakwe inscribed "Buhari" on both sides of his dog's body and walked around with it does not make any difference. It is fashionable for people to give dogs human names. It is also fashionable for pet dogs to be carried around. Some people even go the extent of putting dogs in their vehicles and sleeping with them on the same bed.
If there was a law that criminalize the "conduct" of giving a human name to a dog, it would have had a universal application in the country or any part thereof where same is enacted.
In other words, it would not only be a criminal offence for a person to name his or her dog "Buhari", it would also be a crime for a dog to be named Moses, Musa, Antonio, Chukwu, Okon, Babalola, Christiana, Halima and so on.
For such unthinkable law to be capable of enforcement within the framework of the legal system and the criminal jurisprudence, it must not only define in clear terms what a "human name is" but also equally list the names so defined. This is legislatively, humanly and logically impracticable. Supposing without conceding that it is practicable, such an absurd law would still be manifestly unconstitutional as it would violate the fundamental right to freedom from discrimination under Section 42 of our Constitution since some human names will be unavoidably omitted.
The Nigeria Police Force has an uncharitable way of shaming itself. This is a case where the complainant is said to be an alien from Niger Republic but was able to maliciously and illegally set the police in motion against a citizen of Nigeria.
In its characteristic manner, the police detained Mr Chinakwe beyond the period allowed by law and denied him bail despite entreaties by his family in violation of his fundamental right to personal liberty under Section 35 of the Constitution. He was only released on the fourth day after his arrest.
This is condemnable and unacceptable. Mr. Chinakwe should seek redress in a court of law.
In conclusion, unprecedented and radical reforms are needed urgently in the Nigeria Police Force. Countless innocent Nigerians have been serially humiliated, tortured and murdered by the police for the most flimsy and senseless reasons.
We cannot continue like this as a nation.