On Saturday, May 13, 2023, a video of Oluwaseun Anikulapo Kuti, a popular Nigerian Afrobeat musician known as Seun Kuti, assaulting a police officer made rounds on social media.
While this video has prompted many observers and commentators to ponder on whether assaulting a police officer in any capacity has legal consequences, one cannot help but wonder if there are defences in law, under which offenders of this law can use as a shield.
Let’s take a look at the law. Section 356(5) of the Nigerian Criminal Code Act states that a person will be said to have committed ‘Serious Assault’ when such a person – “Assaults, any person on account of any act done by him in the execution of any duty imposed on him by law; is guilty of a felony and liable to imprisonment for three years.”
What does this mean? This means that if any person assaults anyone for performing, or in the course of executing a duty imposed on the assaulted by law, such a person shall be guilty of serious assault under this section.
Relating this law to the scenario of Seun Kuti, it is clear from the video released via social media that he assaulted this police officer, by slapping him and hitting him in what can be described as an aggressive manner. It is worthy of note, that this officer was most likely in the course of executing his duty as a police officer, just as the Criminal Code Act states.
Seun Kuti, in a social media post on his page via Instagram story, stated that the police officer tried to kill him and his family and that he had proof of his allegations.
Let’s take a look at some of the possible defences for a defendant in Seun Kuti’s case;
Provocation:
In the wordings of the Criminal Code Act in Section 284, “A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if the provocation deprives him of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as likely, to cause death or grievous harm”.
Let’s closely examine the ingredients of this section; the section tells us that a person will not be criminally liable for assault when the other person provokes him to the extent of him losing his self-control.
The ingredients of the defence of provocation were established in the groundbreaking decision of Oladipupo v. the State, (1993) LCN 2544 (SC), where the court held that for an accused to avail himself of the plea of provocation, he must have done the act for which he was charged in the following circumstances; In the heat of passion;
The act must have been caused by sudden provocation; the act must have been committed before there was time for passion to cool; the mode of resentment must be proportionate to the provocation offered.
In Nigeria, the reasonable man test is used to determine if the wrongful act against the defendant is adequate to have caused the defendant to lose his self-control, in other words, the court will consider what a reasonable man would have done in such a situation.
The court will also consider the proportionality rule, that is, was the act done by the victim enough to provoke an assault on him? Therefore considering how much bodily harm the defendant’s action caused the victim.
Provocation as a defence to assault is sufficient to justify an outright acquittal, a mitigated sentence or secure a conviction for a lesser charge, depending on the facts of each case.
Self-defence, defence of others or property from a threatened attack
Self-defence, gotten from the Latin term “se defendendo” means defending oneself. It is using force to protect oneself, another person or even property from threatened attack.
The court defined self-defence in the case of Ekpoudo v. State (2021) LPELR- 52826 (CA), to mean “the use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self-defence if he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.”
Section 34(1)(a) of the 1999 Constitution, makes it clear that no one shall cause another to be tortured or treated inhumanely or degradingly.
Assaulting a police officer can be argued to be a breach of this constitutional provision; however, it can also be argued that Section 287 of the Criminal Code Act, which covers the defence of self-defence, could avail such a defendant if he can indeed prove he committed such an assault in self-defence.
It must be noted that self-defence is not revenge but an immediate response to a threat to life or grievous bodily harm, this brings us to the ingredients of self-defence.
The court held in Ita & anor v. the state (2013) LCN 6236(CA) that –
“A man is justified in using against an assailant a proportionate amount of force in defence of himself or other persons who he is under a duty to defend, where he considers his life or such persons lives to be in danger”
The key ingredients to note here are; that the defendant relying on the plea of self-defence, must have used a proportionate force to that which the attacker used to attack him; he must also have done so to defend himself, which means, time is a key ingredient in the use of the plea of self-defence, therefore if it can be established that there was a lapse in the time between when the assailant committed the assault and the time the force was being used against him, the plea of self-defence may not avail him.
The defence of intoxication
This defence is provided for in Section 29 of the Criminal Code Act.
A person is intoxicated when he is affected by any intoxicating substance; such intoxication can be caused by alcoholic liquor, hard drugs and/or a combination of both.
Intoxication is a situation whereby a person because of taking intoxicants into his system, ceases to have firm control of his faculties, and is thus rendered incapable of acting in a manner in which an ordinarily sober, prudent, and cautious man, in full possession and control of his senses, would act under like conditions.
Section 29(1) of the Criminal Code Act, clearly states that intoxication is not a defence to a crime; hence, this defence will not exonerate a defendant who assaults a police officer from the punishment resulting from his intoxicated actions.
However, the level of intoxication may be to stop the defendant from forming the necessary mens rea of the crime. This means that the defendant was not in his right state of mind while committing the crime. Hence, he cannot be said to have had the intent to commit such a crime; However,
Section 29(2) of the Act, seems to insist that for the plea of intoxication to be successfully raised, the intoxication must have been caused without the consent of the defendant but by the negligent or malicious intent of another. Also, it must be proven by the defendant that he was intoxicated at the time he committed the offence and not before or thereafter.
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The defence of insanity
This defence is rooted in the provisions of Section 28 of the Criminal Code Act. The general rule is that every person is presumed to be of sound mind until the reverse is proved.
Section 28 Criminal Code Act reads,
“A person is not criminally responsible for an act or omission if, at the time of doing the act or making the omission, he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.”
Section 131 of the Evidence Act, buttresses that everyone who asserts a fact must prove that such facts exist. Therefore for a defendant who wishes to rest his plea on the defence of insanity, he must prove that he was insane when he committed the offence.
In addition, all these defences are some that a defendant who committed an assault against a police officer can rely upon. Remember, each case is peculiar and different from others. Hence the judge will treat each case, according to its facts.
Ijeoma Okorie is a lawyer who specialises in intellectual property and entertainment law.
