It is more rewarding to examine
the question of police officers engaging in private business, including being
commercial vehicle drivers, not just from the narrow precinct of the law but also
from a broader sociological standpoint. Therefore, I examine the question from
both the legal and sociological (as well as economic) perspectives.
First, the legal perspectives are
examined from the constitutional and statutory provisions. From the legal point
of view, the practice of police officers engaging in any private business,
including driving commercial vehicles, to make additional income, whether
during duty or when they are off duty, or on leave, is not only
unconstitutional, it is equally illegal.
By virtue of section 318(1) of the Constitution
of the Federal Republic of Nigeria, 1999, as amended, a police officer is a
public officer who is bound by paragraph 2(b) of Part 1 of the Fifth Schedule
to the Constitution, that is, the Code of Conduct for Public Officers. The said
Paragraph 2(b) of the Code of Conduct for Public Officers provides that all
public officers who are engaged on full time basis “shall not engage or participate in the management or running of any
private business, profession or trade but nothing in this sub-paragraph shall
prevent a public officer from engaging in farming.” Therefore, from the
above constitutional provision, public officers can only engage in farming in
addition to their work as public officers. Any other form of private business or
trade is unconstitutional.
Section 36 of the Police Act,
also prohibits police officers engaging in any form of private business,
without written permission. This section provides, verbatim, as follows:
“36. Police officers
not to engage in any private business.
No member of the
Force shall, while he holds such appointment, engage in any private business or
trade, without the written consent of the Nigeria Police Council or any person
to whom such power is delegated.”
There is no valid defence for a police
officer to claim that he or she engages in private business, including driving for
private gain, during off duty hours or when on leave. Regulation 368 of the Nigeria Police Regulations provides that the
Regulations (as well as provisions of the Act) bind police officers on vacation,
or on leave, or on leave prior to retirement, and that no police officer shall
engage in private employment for reward without having previously obtained
government permission.
The provisions of Regulations 360 and 361 of
the Nigeria Police Regulations may also have the indirect effect of compelling
a poor police officer to engage in private businesses. While Regulation 360 prohibits police officers from borrowing from people subject to
their authority or residing or possessing land within their areas of
authority/operation, Regulation 361
provides that a police officer must not be in a “serious financial embarrassment”. Among other definitions,
“serious financial embarrassment” is understood to be a situation in which a
police officer incurs debts and liabilities which exceed the sum of three times
his or her monthly emoluments.
Now,
to the sociological point of view. In a situation of massive collapse of
the purchasing power of wages and salaries, non-payment of wages, skyrocketing inflation,
commercialized education, commercialized healthcare system, lack of social
security schemes to provide succor to the marginalized and vulnerable groups, can
we in all fairness blame public officers who seek additional income to ensure
physical and/or material survival as human beings?
Both the Constitution and the Police Act
were made within the framework of the understanding that decent wages and
salaries would be paid, as and when due. The legal framework is also predicated
upon systematic and regular upward reviews of wages, salaries and pension, as
the National Minimum Wage is reviewed. In the circumstances of Nigeria’s
economic collapse, can we fairly criticize or crucify police officers who
engage in private businesses to augment their legitimate earnings?
In the context of top public officers
such as legislators, governors, commissioners and Ministers who also engage in
private businesses through private companies, stooges and cronies, and tend to take
government contracts that are usually and unduly inflated, can we validly and
fairly isolate police officers and accuse them of violating the Code of Conduct
for Public Officers?
Where salaries are not paid as and when
due, where inadequate salaries are paid, where inflation has weakened the
purchasing power of the quantum of salaries paid, and where police officers are
not to borrow to the extent of being in a “serious
financial embarrassment”, can the police officer be condemned for engaging
in private business with the intent of
ensuring bare physical and/or material survival of himself/herself and his/her
family, including children?
A government can demand loyalty,
obedience and observance of laws, rules, and/or regulations only if it fulfills
its basic or primary obligations to the people. Where public officers are paid
decent wages as and when due, where top public officers such as governors,
ministers, commissioners, and so on who equally violate the Code of Conduct for
Public officers are prosecuted for violating the Code of Conduct, public
officers at the lower levels in the public service would conduct themselves
within the framework of the law. Police officers who engage in private
businesses are therefore victims of objective life-threatening economic situations.
Any rational human being would want to rest rather than using his/her off duty
periods to engage in other forms of private businesses. It is the harsh (and
increasingly stressful) economic conditions that compel police officers to
engage in private businesses as economic “coping
mechanisms”.
The living and working conditions of the
rank and file of police officers, which compel them to engage in private
businesses demand pity and/or understanding rather than condemnation.
Femi Aborisade, Esq.
27th
February 2016.
You can read also the PUNCH interview here.
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