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A 30-year-old trader, Mr. Joe Fortemose Chinakwe, of No 10, Omikunle
Street, Sango-Ota, Ogun State was arrested last Saturday and
incarcerated for about three days by the police for naming his pet dog
"Buhari". The arrest and detention followed a complaint by an unnamed
Mallam, who is said to be an alien from Niger Republic. Confirming the
arrest to Vanguard Newspaper, the Police Public Relations Officer (PPRO)
in Ogun State, ASP Abimbola Oyeyemi had this to say:
"I have made enquiries. The man bought a dog and inscribed
Buhari on both sides of its body. One Mallam lodged a complaint and when
our men got there, we found out that it was true. You know such thing
can cause serious breach of the peace and ethnic or religious unrest. We
are charging him to court for conduct likely to cause a breach of
peace.” Continuing, he said:
"He was arrested last Saturday and we are taking him to court
later today (Tuesday) or tomorrow morning (today). You know an average
Northerner will feel bad over such a thing. It can cause serious ethnic
crisis or religious confrontation because when you are relegating such a
name to a certain person, you are indirectly insulting him.”
Narrating his ordeal and the rationale for naming his pet dog "Buhari" to Vanguard upon his release on Tuesday, Chinakwe said:
"It is annoying because the complainant is from Niger Republic
and I am sure he is one of those illegal aliens in this country. He
connived with one Police Sergeant from the Northern part of Nigeria
called Musa, who works at Sango Police division to humiliate me. Worse
still, the Divisional Police Officer there, did not help matters as he
refused to entertain any plea from me after I was arrested
that Saturday night. He simply ordered his men to throw me into the
cell.”
Continuing he said “I did not commit any offence. I named my
beloved pet dog Buhari, who is my hero. My admiration for Buhari started
far back when he was a military Head of State. It continued till date
that he is a civilian President. After reading his dogged fight against
corruption, which is like a canker worm eating into the very existence
of this country, I solely decided to rename my beloved dog which I
called Buhari, after him. I did not know that I was committing an
offence for admiring Buhari.
From the foregoing, the sole issue for determination is whether the
arrest and detention of Mr. Chinakwe in the circumstance is
constitutional?
The starting point in resolving the above issue is whether the naming
of a dog "Buhari" is a criminal offence. The Police is of the view that
it amounts to "conduct likely to cause a breach of public peace"
because according to them, "an average Northerner will feel bad over
such a thing.
This is where the police got it all wrong.
The offence erroneously alluded to by the police is provided for in
Section 249 (1) (d) of the Criminal Code Cap 29 Vol.11 laws of Ogun
State of Nigeria 2006. The provision is to the effect that "every person
who, in any public place, conducts himself in a manner likely to cause a
breach of the peace" shall be deemed idle and disorderly persons, and
may be arrested without warrant, and shall be guilty of a simple
offence, and shall be liable to imprisonment for one month.
How does the naming of a dog "Buhari" amount to a conduct likely to
cause a breach of the peace? The conduct envisaged by the law should not
merely be offensive to an individual's or group's perception of
acceptable conducts. The fact that an individual or a section of the
public considers a person's conduct repulsive and reprehensible does not
necessarily bring such conduct within the contemplation of Section 249
(1) (d) of the Criminal Code so as to occasion a likelihood of breach of
the peace.
The correct test for determining whether a conduct is likely to cause
a breach of the peace was articulated by the then Federal Supreme Court
of Nigeria in the case of Nelson Ohanyere & 9 Others v Inspector
General of Police (1957) SCNLR 213, where Jibowu, AG. F.C.J. (as he then
was) held thus:
"The test to be applied is whether the conduct of the accused
was such that a breach of the peace might reasonably have ensued, and
the fact that no breach of the peace, in fact, took place is
irrelevant."
Reasonableness is a decisive consideration as correctly stated by the
court. There is no reasonable likelihood of a breach of public peace in
an individual deciding to give his pet dog the name of a human being.
In the eyes of the law, it is immaterial that the human name so given is
equally borne by a public figure, such as the president of Nigeria or
any other person for that matter.
The Supreme Court of Canada took a more definitive position on the
issue in the case of Frey v. Fedoruk ET AL (1950) S.C.R. 517 when it
held that:
"Conduct, not otherwise criminal and not falling within any
category of offences defined by the criminal law, does not become
criminal because a natural and probable result thereof will be to
provoke others to violent retributive action; acts likely to cause a
breach of the peace are not in themselves criminal merely because they
have this tendency. It is for Parliament and not for the Courts to
decide if any course of conduct, which has not up to the present been
regarded as criminal, is now to be so regarded."
In that case, the appellant was chased, caught and detained by the
respondent, Fedoruk, after he had been seen on Fedoruk's property
looking into a lighted side window of the house where a woman was
preparing for bed. A policeman, the other respondent, was called and,
after some investigation, arrested appellant without warrant.
On a charge that he "unlawfully did act in a manner likely to cause a
breach of the peace by peeping ..." appellant was convicted by a Police
Magistrate but acquitted by the Court of Appeal. In upholding the
appellant's claim for damages for false imprisonment, Kerwin J. who read
the leading judgment of the court insisted that the act of peeping was
not in itself a crime as such the appellant could not be prosecuted for
acting in the manner likely to cause a breach of the peace by peeping.
The court emphasised that for such a charge to be sustained, the
particular act complained of must itself be a crime.
The Canadian precedent only has a persuasive effect on Nigerian
courts. It is not binding. I submit that despite its non-binding nature,
the decision is logically tenable and legally sound.
It is not permissible under our constitutional law and criminal
jurisprudence for a person to be prosecuted for conduct likely to cause a
breach of the peace contrary to Section 249 (1) (d) of the Criminal
Code when the very conduct complained of is not in itself a criminal
offence.
In the instant case, is it a criminal offence in any Act of the
National Assembly or law of any State House of Assembly of the
federation, including Ogun State for a person to give his pet dog a
human name or name a dog after a particular human being, irrespective of
the status of the human being after which the dog is named?
The police knew that the answer to this simple question is Capital
NO. Yet, it recklessly and unlawfully proceeded to effect the arrest and
detention of Mr. Chinakwe for naming his pet dog "Buhari".
SOURCE: Sahara Reporters
THE Ogun State Police
Command yesterday, said it had rearrested Mr. Joe Chinakwe, who named
his pet dog Buhari, noting that the suspect would be arraigned in court
on Monday. It also stated that Chinakwe, who was earlier released a few
days ago, was picked up again based on its belief that the suspect’s
action was capable of provoking an ethnoreligious crisis.
Read more at: http://www.vanguardngr.com/2016/08/man-named-pet-dog-buhari-rearrested-appear-court-monday/
Read more at: http://www.vanguardngr.com/2016/08/man-named-pet-dog-buhari-rearrested-appear-court-monday/
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