Is it illegal for individuals to carry pepper spray, as police spokesperson claims?

By Stephanie Adams-Douglas

Two top police officers at the core of public relations – the police spokesperson and head of the public complaints unit – had authoritatively pronounced the possession and use of pepper spray by private citizens as offences.

However, their position has generated controversy amongst the citizenry, many of whom have disagreed, citing the use of the item for self-defence in the face of danger.

A Twitter user @Mkayblack1 sought to find out if it was legal for citizens in Nigeria to own or employ the use of pepper sprays or tasers in self-defence. He directed the question at Olumuyiwa Adejobi (@PrinceMoye1), the Public Relations Officer of the Nigerian Police.

“@Princemoye1 Good morning, sir, I want to ask if it’s ok to own a pepper spray or shocker for self-protection due to the current security situation of the country. Is it safe to own any of the above-mentioned sir?”

In his response, Mr Adejobi declared that Nigerians are prohibited by law from owning tasers and pepper sprays.

“For now, the law of Nigeria doesn’t permit individuals to own these items. It’s a matter of law, not an opinion pls. I have many opinions, even from the so-called learned ones, such could be misleading. Thanks. Ire o.”

Although the police spokesperson did not specify what laws or provisions to support his position, he described contrary opinions as misleading,  sparking reactions from Nigerians on Twitter – many of whom have contested Mr Adejobi’s statement.

One user, Sulaiman (@dejavu112), asked: “What section of the law is against the acquisition of non-lethal weapons by Nigerian citizens, please? Kindly direct as appropriate.”

“Which law? Which legislation prohibits the use of tasers or pepper sprays? You have 24 hours to answer. If not, you’re just a liar who wants to expose Nigerians to grievous bodily harm,” another user tweeted.

In an earlier encounter, Abayomi Shogunle, an Assistant Commissioner of Police and head of the Police Public Complaint Rapid Response Unit (PCRRU), had described the possession of pepper spray by citizens as an offence.

“What are you doing with pepper spray? Pepper spray is an offensive weapon, Nigeria Law prohibits going armed in public,” Mr Shogunle tweeted in 2018, also setting off a debate on the issue.

However, unlike Mr Adejobi, who didn’t back his claims with legal provisions, Mr Shogunle had relied on section 417 of the Criminal Code.

The section reads, “Any person who is found in any of the following circumstances, that is to say, being armed with any dangerous or offensive weapon or instrument, and being so armed with intent to break or enter a dwelling house, and to commit a felony therein, is guilty of a felony, and is liable to imprisonment for three years. Without a deeper reflection, it doesn’t intend that persons who want to defend themselves against attacks be penalised.”

To set the records straight, DUBAWA interrogated existing relevant laws and consulted constitutional lawyers in the country to clarify the legal perspective of the ownership and usage of pepper sprays and tasers by citizens in Nigeria.

What lawyers say

A human rights and constitutional lawyer, Inibehe Effiong, said that Section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees every citizen the right to life, including the right to self-defence.

“A journalist in the field has the right to defend themselves from attack and harm. In doing so, the law allows the journalist and any person to deploy proportional and reasonable force to protect oneself from the aggression,” Mr Effiong said.

“One of the defensive tools that can be lawfully deployed for self-defence is pepper spray. Contrary to the position canvassed by the spokesperson of the Nigeria Police Force, the possession and use of pepper spray for defensive purposes is not a crime.”

Mr Effiong also noted that the pepper spray is not a firearm or one of the arms prohibited under Section 3 and Part 1 of the Schedule to the Firearms Act and, as such, did not contravene any laws.

Another lawyer, Mojirayo Nkanga, said police pronouncement was not enough to criminalise a person’s possession of pepper spray but that the intention behind its usage was important in determining a crime.

Referencing the Criminal Code, she said carrying the items is not illegal to defend oneself.

“The prosecution has the burden to prove beyond all reasonable doubt that Section 417 Criminal Code envisages or applies to an intention to defend yourself against attacks.

“No case will be blue and black. The circumstances of each case differ. The Court will consider the purpose – the intention, which in law is called the Mens Rea. The mens rea would have decided the culpability, but in this case, it won’t work as the police officer stated.”

She also said: “There’s a part of that provision that mustn’t be disregarded, which is, was the person in possession has an intention to break or enter a dwelling house? The prosecution counsel will labour if they think that this provision is a freeway.”

Pepper spray for defence mechanism; not a crime

DUBAWA spoke to a public interest lawyer and Senior Advocate of Nigeria (SAN), Jiti Ogunye, who described the use of pepper spray for self-defence as legal, barring the existence of any executive order or special legislation prohibiting it.

“It is a crime to handle a rifle without a licence under the Firearms Act. The use of pepper spray as a weapon of attack unjustifiably is a criminal offence,’’ he said.

Mr Ogunye referred to the 1999 constitution, which grants everybody the right to self-defence, as seen in section 33, which entrenches the right to life.

“However, the same provision then says nobody’s life will be regarded as having unjustifiably taken. The right to life imposes on individuals and the State the obligation not to deprive another intentionally of his right to life except within the permissible circumstances by law.”

Mr Ogunye added, “if a life is taken in self-defence or defence of property, the only caveat is that the force used to take that life must be commensurate with the evading force.

“Using pepper spray for self-defence is not a crime because it’s self-defence, and that’s what the law says.”

Mr Ogunye explained that if a lady uses pepper spray to defend herself from perpetrators, it is recognised as self-defence and is supported by the law.

“In conclusion, except there is a provision of law that makes the use of pepper spray for self-defence illegal, the use of the device is still within the premise of legality. As such, the police officer is incorrect,” he said.

Conclusion 

This analysis finds that contrary to the tweet made by the spokesperson of the Nigerian Police,  Prince Olumuyiwa Adejobi, no law nor executive order denies citizens the use of pepper spray for self-defence.

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