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What a fatal accident taught me about arbitrage in Nigerian justice system

Nigerian justice system

On November 6, 2018, I watched a little girl die.

I was driving along Osborne Road on my way to an appointment in Ikoyi in fast-moving rush hour traffic when a group of four schoolgirls walking at the side of the road about 50 metres in front suddenly dashed across to the other side. The first three of them narrowly made it but the fourth was not so lucky. The SUV in front of me had no time to react as it slammed into her at over 50km/hr, sending her flying into another SUV to its right, which in turn knocked her full pelt into the air before she came to a stop in front of my fender amid the choking white smoke of my screeching tires.

It was absolutely horrible and she had no chance. The driver of the second SUV decided not to stop, but there was no way I was going to leave a child to bleed out on the road. The driver of the first SUV put her in his car and we both sped off to a nearby hospital in Dolphin Estate. Pastor Matthew Ashimolowo of KICC Church who happened to witness the accident also went in with us and graciously pledged to cover all her emergency treatment expenses. Despite his and our best efforts, however, she suffered catastrophic internal bleeding and she was soon pronounced dead. Sitting in the waiting room with my hands and feet quivering in a full-on panic attack, I couldn’t see how the day could possibly get any worse.

And then the police came.

The Nigeria Police Force: An arbitrage machine

In financial terms, the word “arbitrage” refers to the practice of making a profit by buying and selling the same asset in different places and exploiting the price differentials. For example, while petrol is available in Lagos via petrol stations selling at the official pump price, petrol in places like Ekwulobia or Issele-Ukwu is largely sold in plastic containers by the roadside for up to 1.8 times the official pump price in normal times. Someone who buys fuel in Lagos and sells it for a markup upcountry is thus doing a form of arbitrage.

The basic principle of arbitrage is the ability to get different results out of the same input in different places or situations. In terms of the Nigeria Police Force, arbitrage is the ability to interpret the law selectively and subjectively to get absolutely whatever outcome it wants out of any situation. The NPF is highly experienced at interpreting the same laws in different ways to achieve different outcomes for different people. Which brings me back to November 2018.

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The little girl had not actually been pronounced dead yet when a man walked into the hospital introducing himself as the Dolphin Police Station IPO and demanding that the other driver and I follow him to the station. He did not so much as a glance in her direction – we were to come to the station and bring our cars with us. Upon getting there, the keys were promptly seized and we were treated like we had done something wrong. As I later found out, the act of being two young men driving cars we owned was strike 1 against us.

First, he wanted to know, where did we work? Who were our fathers? Where did we live? Next, he took us separately into a dimly lit room to write a statement. Fortunately, I was streetwise enough to understand what game was being played when he started hinting that I was in trouble, but I could get out of it if I wrote a statement that pinned the blame on the other guy. I warned the other guy when I came out and sure enough, it turned out that he tried to do the exact same thing with him – so that we would both write conflicting statements of a straightforward, unfortunate incident that was really neither person’s fault and then create a problem out of nowhere for the police to profit from.

Now how arbitrage works in Nigeria’s criminal justice system is that the law does not cover specifics that will affect outcomes in Nigeria. The law, for example, says that in the event of such an incident, any driver involved who does not have a valid drivers’ license may under some circumstances be charged with manslaughter. What the law does not say is what should happen if as in my case, my driver’s license had expired and I had applied for a new one which for some reason took so long to produce that even the temporary license card had expired. From the FRSC’s point of view, keeping people coming back every few months to get a temporary card is more profitable than simply producing their permanent cards.

From a police point of view, this scam is profitable because it ensures that at least some drivers will neglect to obtain another temporary card the 3rd or 4th time it expires while waiting for the license that they already qualified and paid for months before. So here I was, a fully qualified driver with over 12 years of driving experience and valid UK and Nigerian driving licenses, effectively criminalised over a deliberate inefficiency. Combined with the legal regulatory grey area about what to do with valid license holders who have simply not been given their renewed license cards, this creates a situation that is ripe for police arbitrage opportunities as I soon found out. Fortunately, within 48 hours of the incident, the long-awaited card finally arrived.

Legislative arbitrage is a police and legal goldmine

He drew me aside as if he wanted to finally drop the charade and negotiate for an off-book cash settlement. Pay N30,000 he said, and I will make this go away. In my disoriented state, I made the payment but I had the presence of mind to do so electronically, so as to leave a paper trail. Then he disappeared for hours. Around 10PM, the other driver and I were put inside the police detention cell. Bear in mind that neither of us had actually committed any kind of offense. The next day – another set of stories, threats and bluster. We both spent another night in detention. Finally around 9PM on the 3rd day, after parting with N15,000 and then N50,000, I was released. My car however, was kept impounded and thus began one of the worst months of my life.

I spent much of the next month being summoned for this or that appointment at the police station, where I was constantly told to pay this or that sum of money or get “charged for murder,” ludicrous as it sounds. On one occasion, spotting me in a deeply upset state outside the station, an officer openly told me in pidgin, “Oga na you f*** up. Why you stop? You know say no be your fault and no be you kill am, so why you stop? See make I tell you, next time, if you know say no be your fault, dey go. No stop!” I could scarcely believe my ears – here was an officer of the law telling me that I should have left an 11 year-old girl to die by the roadside like a dog or a chicken.

The IPO tried every trick in the book to get both drivers to part with more money including leaking our numbers to the girl’s family after falsely portraying the incident to them as though we were at fault. I answered a call from a strange number one day only to find myself in the sort of unpleasant exchange you can imagine with people who have been dishonestly informed that you “killed” their daughter. When that did not work, he then said that in order to “prevent the case from going to court,” we would have to organise a “condolence visit”, which is code language for “pay some more money.” Needless to say, he would get a cut of this money from both source and destination.

A friend then recommended the services of a lawyer who had apparently won some high profile litigation for a record label against a pop artist. That however, ended up becoming the biggest waste of N60,000 I have ever experienced in my life – lots of words spoken, zero value offered. He actually billed N120,000, but after just one day of working with him, I cut my losses and moved on. He was clearly just in it for the fees, and had no actual capacity or desire to solve the problem.

The nightmare only came to an end when the case file from the Directorate of Public Prosecution finally returned stating what should have been obvious from the start – there was no case whatsoever to answer, and we were both free to go. Realising that they had been able to extort “only” N95,000 from me, the IPO and his fellow officers literally sulked as they showed me to the counter to collect my car key. Before I collected the key and finally moved on with my life, the policewoman at the counter spread out her palms and – no word of a lie – barked at me, “Oga where is my share?!”

Please get real

The reason I am telling this story now, two years after the fact is that it is time to tell ourselves some unpleasant truths about the Nigerian state, its institutions and how to regulate them. In the course of the debate around the recently signed Harmonised Police Establishment Act, I have come up against several lawyers who argue that the presence of vague clauses giving undefined powers to the police is “standard procedure” and that these powers were in the now-repealed Act anyway. They argue that whether the law gives the police overbearing powers or not, the focus should be on holding them accountable after the fact instead of restricting the powers they have access to in the first place.

To these people I have a simple response – get real. The Nigeria Police Force is one of the most dysfunctional public institutions in the entire world. Statistically, one is more likely to get robbed or harmed by a police officer in Nigeria than by a criminal. Like any other Nigerian public institution, the police revels in legislative arbitrage because that gives it a blank cheque to effectively print money off the backs of innocent, hard working Nigerians. The new Act has even created a ‘Police Reward Fund’ to aggregate the proceeds of institutionalised harassment and effectively turn criminality into a regulated, legal activity.

Perhaps our learned colleagues of the Bar believe that they are somehow exempted from the creeping fascism that Nigeria is experiencing, as it openly seeks to expand an already visible police state and criminalise every Nigerian citizen by default. If a law that was touted as a police “reform” bill only ends up reiterating that the police has a slew of completely subjective powers to be exercised in any way they see fit, then what difference does any purported improvement to oversight and tribunals make?

Can the ghost of the dead young man in Port Harcourt who was shot for refusing to unlock his phone make a complaint to a tribunal and claim compensation? Can I claim back my wasted time and excise the trauma inflicted on me by a deeply corrupt police in 2018? Can the thousands of Nigerians who have been molested, raped and killed by the country’s biggest armed gang have those experiences reversed through tribunals?

Some months ago in this column, I advised that we should all get real and stop trying to ape lockdowns from OECD countries. I said that we should let our own local circumstances guide our decision-making. As is often the case, my assessment turned out to be right, but of course, only after we did the exact opposite and suffered avoidable carnage as usual.

Can we please change the record this time?