POLICE BRUTALITY: A PRODUCT OF THE MISTAKEN IDENTITY BETWEEN THE ENFORCEMENT OF MORALITY AND THE LAW
TAIWO. I. ABIODUN-ONI
ENDSARS!!! This power word is probably the most important activism slogan in the world at the moment, arguably a rival to the BLACKLIVESMATTER movement that trailed in the United States of America earlier this year. The ENDSARS movement is Nigerian and one that started out as a protest against a rogue government unit called the ‘Special Anti-Robbery Squad’ (SARS), notorious for atrocious human rights violations, civilian brutality, extra-judicial killings, extortions and gross impunity.
Protesters, made of up of a predominantly youthful population have taken to the streets across the different states of the federation in tens of thousands calling for the end of this notorious police unit.
Brooding over this subject and the events that have trailed this subject this past month, it has become clearer to me that the modus operandi of this rogue unit are not exclusive to this unit, it seems to me that the these modus operandi has become an enforcement ideology ingrained in the structure of the Nigeria police itself and by extension its officers. This ideology is incontrovertibly traceable to the long age interdependency and mistaken identity between law and morality.
Debates about the legal enforcement of morality are as old as the 14th century and traceable to Victorian England. This subject was ignited by the Wolfenden report on Prostitution and Homosexuality and led to the Hart-Devlin debate, and continue today with the challenge of new (or newer) moral problems, such as gay marriages, surrogacy and may be immoral ostentatiousness as it is perceived in Nigeria.
The questions that comes to mind at this point are
- How is law and morality related?
- How is the subject of enforcement of morality and law related to police brutality.
In attempting to answer these questions, the teachings of H.L.A Hart are evergreen. He argued that law and morality are two distinct and separate concepts which should not be treated as same thing. Hart says that there is no logically necessary connection between law and coercion or between law and morality. According to him, law and morality are two parallel lines which can never meet and further explained that whether law or its enforcing agency is unjust or not, it is still a law nevertheless which must be obeyed or else one will face the consequences therefore projecting the fact that the law is an instrument of social control.
Contrary to the position of Hart, legality and morality may be intimately connected. Most legal rules contain implicit or explicit normative messages pointing to proper behavior that ostensibly best serves social needs. It is not surprising, therefore, that the enforcement of law is often understood by police officers as a moral as well as a legalistic enterprise. It is pointed out, that the growth of modern policing developed in tandem with a more pervasive sense of moral order created and protected by the state.
Determinatively, the social contract theory points to the undeniable fact that the government has a role in the creation of a moral order through the creation of a legal order. It is in this light that we come to the knowledge of the fact that the rules of state thus requires and enacts morality daily, often through the construction and enforcement of its legal structure. This enforcement in many countries is usually undertaken by the police force. A look at the modus operandi of police officers around the world (especially in countries where there is no major separation in the identity between law and morals) most especially in countries such as Nigeria, we are given gives the impression that the enforcement agencies are preeminently focused on those who violate moral-cum-legal codes, and define their actions as part of an attempt to protect the good through expunging the evil.
This raises two provocative questions: What accounts for the regular and emphatic invocation of moralistic dictums to guide and justify police actions? And what influence does their morality have on police officers’ practices?
An average Nigerian police officer is faced with the contradiction between stated police aims, the near impossibility of achieving those aims and an inherent ambiguity in many situations that should best be ignored if the officer wishes to effect speedy resolution; and the inescapable rationality, hence, the often recourse to coercive and, ultimately, lethal force.
All these fundamental constituents of the police’s daily problems pile a lot of tensions, frustrations and present countless professional and ethical dilemmas before the police officer; in order to navigate these many problems in the best way possible, a certain trans-situational morality that is largely subjective within the African reasoning process is usually adopted. One would wonder if the average Nigerian police officer is trained to apply this subjective approach or may be this practice is perfected due to the demands of the law enforcement.
Unfortunately, the successes of this approach is on the high side being that an average Nigerian citizen is ingrained with the fear and reverence for religion which is the biggest source of morality, whose subjectification is weaponized by law enforcing agencies and applied in the determinative execution of law enforcement functions against the very citizens. In fact when these victories occur and some supposed ‘law breakers’ are apprehended, the offences stated by the arresting police officers project more moralistic underpinnings than legalistic norms. That is why in Nigeria, a young man adjudged to be incapable of owning a successful business enterprise could be arrested for driving a fairly expensive car or another arrested for sagging trousers or using latest technological gadgets; these do not culminate into the breach of any laws in Nigeria but perceptively many may agree that these acts raise a question of morals. Hence, it would seem that law enforcement bodies are much more focused on the enforcement of morality than they are of the law or maybe they cannot differentiate between the two.
To a rational thinking member of the society, these law enforcement approaches makes no sense and though resistance may be impossible due to fear of brutalization or even death, nevertheless, the continuous exaction of force on citizens would ultimately lead to inevitable resistance to police commands but sadly, this resistance would be met with much more brutal coercion from the police officers who obviously possess a wide array of tactics, governmental authority and tools to ensure their ultimate authority prevails. In many cases, however, the use of force is not seen in such wary terms but is a badge of distinction that officers wear proudly.
Subjective police morality, the seeming incompatibility between the use of coercive force and the ultimate goal to do good is undeniably the problem facing the Nigeria police. The difficulty of balancing the harm of lethal force against the larger social aims for which it is ostensibly employed is perhaps the most basic dilemma facing police officers. On the one hand, officers wish to portray themselves as saviors for the troubled and the vulnerable, the thin blue line” that protects the orderly from the chaotic. On the other hand, the police exist primarily as a repository of legitimate coercive force, which they stand ready to employ on extremely short notice.
The dangers of excessive moralizing are quite clear. It is understandable why officers might regularly vilify those they adjudge as immoral because of the almost impossible separation of morals from law leading to the enforcement of the former over the latter. Morality could be very subjective and that there is subjectivity inherent in human judgment does not mean we descend into the arbitrary.
Until a time when Nigeria is free from the existential shackles of morality, only then can law enforcement agencies focus on the enforcement of law rather than the enforcement of morality which unarguably is one of the sources of unflinching police brutality.