by Inibehe Effiong
The Nigeria Police Force, Ogun State Command has rearrested a 41-year-old trader who named his pet dog “Buhari”, Mr. Joe Chinakwe and will arraign him before the Sango Magistrate Court in Ogun State on Monday. It is likely that the powers that be in Abuja have instructed the police to deal with the man for an act that is not a criminal offence.
Confirming his second arrest to the Punch, Mr Chinakwe said: “I had to leave for Eleweran very early on Friday after receiving a letter on Thursday evening inviting me to the Command. I thought I was being called over for a peace talk, I never knew it was for the purpose of detaining me again.
“I am a law-abiding citizen of this country, I have never deliberately committed any offence before, I don’t know why I am being treated like this.
“I only called the dog that name for the love I have for President Muhammadu Buhari and Nigeria, I didn’t mean to taunt or hurt anybody with it. I don’t know what next could follow this, I am afraid for my life, I am in danger, please help me.”
Narrating how the whole matter started to the Punch, Obinna Obasi, a relative of the detained man stated thus: “Kalilu, the main accuser, said Buhari was the name of his father and that Joe deliberately gave his dog that name to taunt him and the rest of the Hausa residents in the area. But we are still wondering if it is now an offence to give your pet animal the name of your choice.
“Even if you say it is an offence, at least we have all sat together to resolve the whole issue and the man himself has shown some sense of responsibility by saying he was sorry if his action offended anybody. So, why is he still being harassed till now?
This is not fair. His persecution is affecting his pregnant wife and little daughter who have both been very sick as a result of the problem,” he said.
Meanwhile, Chinakwe and his relatives according to the Punch have “vehemently” denied the allegation by the police that he inscribed “Buhari” on both sides of his dog’s body and walked around with it.
This development has made it imperative for me to once again intervene in this matter by drawing the attention of the authorities to the unconstitutionality of their actions against Mr. Chinakwe.
This government has proven once again that it has no respect for human rights. Chinakwe’s conduct may be morally questionable, but certainly not a criminal offence under our extant laws. There is no sanctity or special protection for the name ‘Buhari’ under the law.
If what Chinakwe did is a crime, it means that any Nigerian, including political office holders and policemen, that has given his or her pet dog a human name is liable to be arrested, detained and prosecuted.
The feeling of the so-called “average Northerner” as ridiculously stated by the police is legally inconsequential. Offences are not created by human feelings. They are created by the express provisions of the statute. The courts cannot rely on Section 249 (1) (a) of the Criminal Code to begin to define or itemize “conducts” that are “likely to cause a breach of the peace”.
That is the exclusive power of the legislature under Section 4 of the Constitution.
Crimes must enjoy precision under the law. It is not within the judicial powers of the courts to create offences by probing into the feelings of people. That will amount to setting fire on our constitutional freedoms and democracy. It will also be a rape on the principle of separation of powers.
Nigerians should know that the Criminal Code Cap. C38 LFN 2004 is a colonial legacy that was handed down to the country upon independence. The anachronistic law actually came into force on the 1st day of June, 1916 (100 years ago).
Most of the provisions in the law were made to meet the oppressive and undemocratic aspirations of the colonialists. Most states in the federation, including Ogun State (See Criminal Code Cap. 29 Vol. 11 Laws of Ogun State 2006) have merely reproduced the archaic law word for word without substantial amendments.
I submit that a “conduct” that is itself lawful (such as giving a dog a human name) cannot become unlawful overnight because of the peculiarities of the environment or the feelings of members of a given community, tribe and religion.
If it were not so, the National Assembly would not have bothered to enact the Same Sex Marriage (Prohibition) Act 2013 since homosexuality and lesbianism were repulsive and offensive to the feelings of most Nigerians before the intervention of the National Assembly.
The need for the National Assembly to enact the anti-gay law arose partly because except a conduct is specifically made a criminal offence, there can be no tenable argument about its likelihood of causing a breach of the peace under Section 249 (1) (a) of the Criminal Code.
This is very elementary.
The letters and spirit of Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) forbids the arrest, detention or prosecution of a person for a conduct that is not a criminal offence under a written law. The Supreme Court in the celebrated case of Aoko v Fagbemi (1961) 1 All NLR 400 said so clearly.
Under our criminal law and jurisprudence, offences are principally constituted by two indispensable elements: The physical element – act or omission (actus reus) and the mental element – criminal intent (mens rea). The offence that the police is erroneously alluding to is a simple offence with a punishment of one month imprisonment.
Giving a dog a human name, irrespective of the status of the human beings bearing that name, as at today is not a criminal offence in Nigeria. Both the actus reus and mens rea are absent and neither the police nor “the average Northerner” can arbitrarily manufacture them. If the police and the Government of Ogun State intend to criminalise giving pet dogs human names they should sponsor a bill to the parliament to that effect.
Until such an absurd law is enacted and tested to be consistent with the Nigerian Constitution, the offensive and illegal efforts to punish Chinakwe in the guise of enforcing Section 249 (1) (a) of the Criminal Code or any other provision thereof remains an exercise in futility.
This is the height of impunity.
This is one case that the police will not be able to prove and secure conviction. On a personal note, I would have willingly represented and enforced Mr. Chinakwe’s fundamental rights pro bono (free of charge) but for my current national assignment which is really holding me down from helping the oppressed. Fortunately my service period will be over in about six weeks time.
In the light of the foregoing, the Nigeria Police Force and those instigating them should immediately release Mr. Chinakwe and stop embarrassing Nigeria before the international community. The Police and the government should concentrate on pressing security challenges facing the nation and stop chasing shadows and dissipating scarce resources on frivolity.
May a day never come in this country when offences will be created based on the feelings of members of a particular community, tribe or religion and not by statute.
Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija
Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD).