21 April 2018

Nigeria: Lawyers React As Nigeria Police Classify Pepper Spray As Offensive Weapon

Last Tuesday, a Twitter user, Dolapo Pizzu, alerted Abayomi Shogunle, an Assistant Commissioner of Police in charge of the Police Complaint Rapid Response Unit, that she had been arrested and taken to a police station at Igando, Lagos, for being in possession of a pepper spray.

Mr. Shogunle responded:

"What are you doing with a pepper spray?

Pepper spray is an offensive weapon, Nigeria 🇳🇬 Law prohibits going armed in the public."

With pepper spray used as self-defence weapon by most ladies in Lagos against sexual harassment, PREMIUM TIMES sought the opinion of lawyers on the illegality of its use.

Gani Faniyi of Gani Faniyi and Co Chambers:

It is like saying you are going around with a gun for your self defense there are certain things that are not allowed for you to carry about in self defence and in the category of this pepper spray you have just mentioned it will come by way of a weapon.

It is actually questionable and is not admissible in law. it is an offensive weapon and I can tell you that. I agree that you are entitled to defend yourself against anybody that assault you but the defense must not give you what I call self help.

It is just what is available and it must be minimal otherwise in the course of you claiming to defend yourself, you also might be committing a crime because if your defence is disproportionate to the attack you have taken the law into your own hands.

What is acceptable in civilised society is to report anyone to the security agencies and that is the function of the security agencies especially the police. However because the police cannot be present at everywhere. If you walk into my car and you see pepper spray and I say am using it for self defense, you would question the type of transactions I have that I already know I need a pepper spray very close to me which I can quickly use for defence from attackers.

This attitude is not permissible in law and is not defensible because there is also the suspicion of using it as a weapon on other people. It is against the law generally to go about with weapons like the fulani herdsmen do claiming its part of their culture and we have seen instances where it has been misused and that is one of the consequences of carrying about offensive weapons and to that extent it is not permissible under the law.

You would be surprised what some women would be using it for and it is not few of them. if it is allowed for a category of persons to carry weapons you would just see people using it in the negative sense and that is why I talked about public policy. Public policy is to protect the generality of the people against the minority that might be tasking society. There is a merit to granting self defence to not just women but all human beings because there is nobody that is immune to attack.

Roland of Golden Era Chambers:

If you have a weapon while going about, it means you are already anticipating an attack, you are preempting events. What is the degree of assault you envisage, and the weapon you have would it be commensurate to the degree of assault. So if you leave you house with a weapon it means there is already an intention.

Do you know pepper spray can also be deadly? Someone has asthma and you use it on the person, you have just killed the person. Your only self defence for now is your fist and this is to tell you our law is incomplete because in places like America, you are allowed to carry a gun for self defence in commensurate with the attack. But as far as Nigerian law is concerned, going around with pepper spray is unlawful.

Monday Ubani, Second Vice President, Nigerian Bar Association

It is the law that defines what constitutes a crime in Nigeria and not the Nigerian Police. Whether pepper spray will be termed illegitimate if handled by a civilian will be determined by the fact that it is grouped as a weapon (arms and ammunitions) whose possession must be by licence.

The question to ask is whether the pepper spray is so defined by the law in the land. If it is not so defined by the law, then police pronouncement is not sufficient to criminalize its possession by the citizens.

If it is proven that it is defined as arms and ambitions whose possession must be by licence; then any citizen that has it without license would be said to have committed a crime. I am not too sure that pepper spray falls into that category as arms and ammunition . I may be wrong.

Wale Ogunade of Wale Ogunade Chambers

Generally it is an offence but it depends on how you go about it. It is an instrument for offence or defence but for ladies it is an instrument of defence. due to their vulnerability to the opposite sex and to me it is acceptable because there is a law that allows a form of self defence.

Police always have the right to arrest and investigate. There is no provision for self defence in the Constitution but it is in the Criminal Law and the Law of Tort. It is better you are harrassed and you feel protected than to leave yourself open because you don't want to be harrassed.

I advise Nigerians, particularly those with good intentions, to go about protecting themselves using the pepper spray particularly for ladies because I have seen ladies embarrassed and harrassed all over. The police arresting for that is not a big deal, Nigerians should ensure they feel safe. If people don't test the law, the law will not be there to avail the people and the police will continue to fall short. For example the issue of public protest, they now know people have the right to protest and even protect people protesting but before they only come to break it up.

What the law says

The Public Order Act states as follows:

8. (1) Any person who, while present at any public assembly or meeting or on the occasion of any public procession, has with him any offensive weapon or missiles, otherwise than in pursuance of lawful authority, shall be guilty of an offence and liable on conviction to imprisonment for 12 months without the option of a fine.

(2) For the purposes of this section, a person shall not be deemed to be acting in pursuance of lawful authority unless he is acting in his capacity as a police officer or as a member of the armed forces of the Federation or as a member of any corps recognised by law or as a member of a fire brigade established by law.

(3) In this section, "offensive weapon or missiles" includes any cannon, gun, rifle, carbine, machine gun, cap-gun, flintlock gun, revolver, pistol, air gun, air pistol or other firearms (whether whole or in detached pieces) bow and arrow, spear, cutlass, matchet, knife, dagger, axe, cudge, horsewhip or any piece of wood, metal or other material, or stone capable of being used as an offensive weapon or missile and includes tear gas, corrosives, inflammable substances or any other thing that is capable of being used to inflict or cause injury.

9. Except where otherwise specified, a police officer may without warrant arrest any person reasonably suspected by him to be committing an offence in contravention of any provision of this Act.

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