When Those Who Guard the Law Need Someone Watching Them

This article was first published by ciironews.com

Some devastating news came out of Nigeria last month; at least thirty-seven people died in detention after they were arrested by the Nigeria Security and Civil Defence Corps (NSCDC) in connection to alleged illegal mining. The circumstances surrounding their deaths are currently the subject of official investigation, and the cause of their death is yet to be conclusively established and made public.

This is an opinion piece, and should not determine guilt before coroners, investigators and the courts do their work. Neither should an incident happening in one sovereign state be used to make judgement of that country’s ability to protect its people.

However, there is a bigger question of governance that goes beyond Nigeria; who watches those who exercise power on behalf of the State? Across the world, democratic societies are gradually acknowledging that law enforcement through policing, detention, public order management and others require something more than internal discipline. It requires independent civilian oversight.

And the reason is simple; the state gives extraordinary powers to the police, prison officers, paramilitary personnel and other law-enforcement officials. These powers to order, search, arrest, detain, use force under prescribed circumstances, and deprive people of their liberty come with responsibility to ensure that those deprived of liberty remain safe, alive and dignified. When a person is in the custody of the state, the latter assumes the heightened responsibility for that person’s safety and dignity. This is where independent oversight becomes indispensable.

Oversight is not an attack on policing as it is sometimes portrayed, neither is it hostility towards the police or security agencies. It is actually the opposite because effective oversight is one of the mechanisms through which professional policing is built. A law enforcement agency that is aware that its decisions and actions can be independently examined is encouraged to be professional by documenting its actions, following established procedures, preserving evidence, respecting human rights and exercising force lawfully.

Oversight protects both the public and the integrity of the institution being oversighted. It protects officers because independent investigations can establish facts where allegations against them are false or unsupported. Allegations that a police officer unlawfully killed someone should not ordinarily be investigated solely by the same institution to which that officer belongs. Similarly, if and when a person dies in custody, the investigation should not depend entirely on the institution responsible for the detainee’s safe custody.

Independence should not merely be an administrative arrangement. It should be a confidence-building mechanism and an evidentiary safeguard.

Some countries like the UK, South Africa and Kenya have already built these institutions and so it is not an untested proposition.

The Independent Policing Oversight Authority (IPOA) in Kenya was established in 2011 to provide civilian oversight over the National Police Service (NPS), with its statutory functions including investigating deaths and serious injuries arising from police action, investigating police misconduct, monitoring policing operations and inspecting police premises, including detention facilities.

The preventive component of IPOA is particularly very important. The Authority inspects police premises and detention facilities with the latest statistics showing that it has so far conducted over 4,500 inspections and monitored over 50 policing operations since inception. Inspection of detention facilities controlled by the police is a preventive intervention for Kenya.

An overcrowded, poorly ventilated police cell with inadequate sanitation, lack of separation of detainees based on gender and age, absence of bedding, poor medical arrangements or inadequate emergency procedures could become a death trap. These are not merely administrative deficiencies; they can be matters of life and death.

This is the essence of civilian oversight; finding danger before it becomes tragedy. South Africa offers another important model. Its Independent Police Investigative Directorate (IPID), which is established to investigate specified serious matters involving members of the South African Police Service and municipal police services.

Just like IPOA, the IPID’s mandate includes investigations concerning deaths in police custody and deaths resulting from police action. It also inspects police premises to ensure that they meet recommended standards.

The same philosophy exists at the international level. In Canada, the Special Investigations Unit (SIU) which is also a civilian law-enforcement agency independent of the police investigates cases involving law enforcement where someone dies, suffers serious injury, alleges sexual assault or is shot. New Zealand too demonstrates the preventive dimension through its Independent Police Conduct Authority which investigates complaints and incidents involving the police. It also monitors places of police detention to ensure human-rights standards are met. The significance of such institutions is not that they convict or punish police officers or eliminate misconduct overnight. None of these oversight body can make that promise.

The value of these institutions lies in creating a structure in which serious allegations are independently examined, evidence preserved, accountability pursued and institutional lessons extracted and learned.

Preventive human-rights architecture does not wait for misconduct or death before investigating what happened because history offers the same warning containing painful examples over and over again. The 2012 fire at Comayagua National Penitentiary in Honduras is an example. After the incident, the Inter-American Commission on Human Rights documented severe overcrowding, noting that 100 to 110 inmates were confined in 75 square metre room designed for only 20 people.

The Commission in its report reiterated the State’s responsibility for people in custody and called for an investigation not only into the cause of the fire but also possible failures of prevention and rescue. This is just a confirmation that detention oversight cannot be reduced to investigations after death. The red flags often exist; overcrowding, poor ventilation, inadequate sanitation, insufficient medical capacity, failure to separate vulnerable detainees, inadequate emergency preparedness and can be addressed beforehand.

The big question is whether such independent oversight institutions are empowered and well-resourced to identify those warning signs—and whether their recommendations are implemented or remain on paper.

The 37 deaths in Nigeria should therefore provoke a wider question; if there existed a system capable of independently entering the detention facility before the deaths occurred and inspecting its conditions, would the deaths have been prevented? This is the kind of question that every country should be prepared to ask of itself.

There is also need to broaden the conversation on whether oversight must extend beyond the police because people are detained in police stations, prisons, immigration facilities, psychiatric institutions and facilities operated by other law-enforcement or security agencies.

The United Nations’ approach to the monitoring of detention facilities reinforces this principle under the Optional Protocol to the Convention against Torture. The logic behind it is simple; that regular, repeated visits allow independent bodies to detect deterioration, follow up on recommendations made earlier and create a continuing deterrent against abuse.

Strong oversight systems have at least five characteristics; institutional independence, unrestricted access, investigative capacity, public reporting and follow-ups.

Independent oversight does not weaken the state because its policing services are scrutinised. Ultimately, it strengthens the state because public power is exercised within clear legal boundaries. This should be understood as part of modern public-sector governance.