Deaths In NSCDC Custody: Conflicting Accounts, Constitutional Duties And The Search For Accountability -By Oluwaleye Adedoyin Grace

Reports indicates that thirty-seven suspected illegal miners reportedly died in the custody of the Nigeria Security and Civil Defence Corps (NSCDC) in Niger State. Weeks later, a suspended commandant admitted before a judicial commission of inquiry that the deaths could have been prevented. Yet, conflicting accounts about the operation leave fundamental questions unanswered: Who authorized the arrests? Who was responsible for the detainees’ welfare? And who will answer for their deaths?

These are not merely administrative questions; they are constitutional ones. Arrest does not extinguish the right to life, and detention does not place a person beyond the protection of the law. The critical question is whether Nigeria’s legal framework can translate these guarantees into accountability when people die in state custody.

2. WHEN THE STATE TAKES CUSTODY

The death of a person in state custody raises a fundamental question about the limits of governmental power: does the authority to arrest and detain carry a corresponding obligation to preserve the life and dignity of the person detained? The answer must begin with the Constitution of the Federal Republic of Nigeria 1999. Section 33 protects the right to life, section 34 guarantees the dignity of the human person, and section 35 safeguards personal liberty. These provisions are not privileges reserved for law-abiding citizens; they protect persons generally, including those suspected of criminal offences. A suspicion of illegal mining does not suspend constitutional protection, nor does an arrest convert a suspect into a person without rights.

Section 33(1) provides that every person has a right to life and that no one shall be intentionally deprived of life except in execution of a court sentence in respect of a criminal offence of which the person has been found guilty in Nigeria. The Constitution recognises limited exceptions under section 33(2), including certain uses of force that are reasonably justifiable in the circumstances specified by the provision. However, the application of these exceptions depends on the facts and cannot be presumed merely because a death occurred during a law-enforcement operation. Where detainees die in custody, the circumstances must be independently established before conclusions can responsibly be drawn about the legality of the deaths or the liability of any officer.

Section 34 is equally significant. Its prohibition of torture and inhuman or degrading treatment reinforces the principle that state custody must not become an environment in which human dignity is abandoned. This protection is complemented by Articles 4 and 5 of the African Charter on Human and Peoples’ Rights, which safeguard life and prohibit torture and cruel, inhuman or degrading punishment and treatment. The Charter forms part of Nigerian law through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. The combined effect of these protections is that public authorities cannot treat the welfare of detainees as a matter of discretion detached from legal responsibility.

Section 35, meanwhile, regulates personal liberty and establishes safeguards governing arrest and detention. Its importance in the Niger State incident extends beyond whether the initial arrests were lawful. The legality of an arrest and the treatment of a detainee are distinct questions. Even where reasonable grounds exist to suspect a person of an offence, the arrest does not authorize treatment contrary to the Constitution or other applicable laws. The legal status of a detainee therefore remains fundamentally different from a finding of guilt following trial.

This distinction is particularly important where the authorities suspect illegal mining. Illegal mining may raise legitimate concerns about environmental damage, public safety and the unlawful exploitation of natural resources. Nevertheless, enforcement objectives cannot displace constitutional requirements. The state must pursue suspected offences through lawful procedures, while respecting the rights of those arrested. Otherwise, the enforcement of one law risks becoming the violation of another.

The Supreme Court’s decision in Ojukwu v Military Governor of Lagos State (1986) 1 NWLR (Pt 18) 621 remains instructive on the broader principle that governmental power must be exercised in accordance with the law. Although the case did not concern deaths in custody, its principle is directly relevant here: the power to arrest does not confer a license to detain persons outside legal safeguards. Applied to the Niger State incident, the inquiry must extend beyond the legality of the arrests to the conditions of detention, the welfare of the detainees, and the response of officials to any medical emergency.

A credible investigation should be prompt, independent, transparent and capable of identifying both individual and systemic failures. It should preserve custody records, medical records, communications, deployment orders and witness accounts before they are lost or altered.

3. CONFLICTING ACCOUNTS, UNCERTAIN ACCOUNTABILITY

The most troubling aspect of the Niger State incident is not merely the number of deaths, but the unresolved question of responsibility. Reports of conflicting accounts concerning the participation of the NSCDC Mining Marshals, coupled with testimony about the command structure and the legal officer’s advice, raise a fundamental issue: where an operation ends in the deaths of detainees, who must account for what happened?

The answer cannot be determined by rank, public statements or an apology alone. It requires a careful reconstruction of the operation: who authorized it, who participated in it, who exercised supervisory control, what happened after the suspects were arrested, and whether any officer failed to perform a legal duty. Each of these questions must be answered on evidence, not assumption.

The distinction between individual and institutional responsibility is particularly important. An officer who directly commits an unlawful act may face consequences under the applicable criminal law. An officer who authorizes, assists in, or otherwise participates in an offence may also incur liability where the relevant legal elements are established. Separately, the facts may support civil proceedings against an individual officer or a public authority, as well as fundamental-rights enforcement where a protected right has been violated. These forms of accountability serve different purposes: criminal proceedings address alleged offences; civil proceedings address compensable wrongs; constitutional proceedings address violations of fundamental rights; and disciplinary processes address professional or institutional failures. A single set of facts may justify more than one response, but each route must satisfy its own legal requirements.

Nor does the absence of direct physical involvement necessarily end the inquiry into an officer’s conduct. Where the evidence establishes a relevant legal duty, a failure to act may warrant investigation. However, supervisory position alone does not establish criminal guilt. Any allegation based on authorization, omission, participation or command responsibility must be tested against the applicable law and the evidence of the particular officer’s conduct.

The reported advice by the command’s legal officer to release underage suspects also deserves scrutiny. If that advice was given, investigators must establish its precise terms, its legal basis, whether it was received by the relevant decision-makers, and what action followed. The advice may help explain the decisions taken during detention, but it does not, without more, establish that ignoring it caused the deaths or that any particular officer committed an offence. Those conclusions require evidence connecting the relevant conduct to a recognized legal obligation and, where necessary, to the deaths themselves.

Where suspects include children, the duty of care is heightened. The Child Rights Act 2003 and applicable criminal-procedure requirements place particular emphasis on the welfare, identification, detention conditions and legal protection of children. A decision to disregard advice concerning underage suspects may therefore be relevant not only to the facts of the operation, but also to the adequacy of the command’s internal safeguards and the discharge of its custodial responsibilities.

The disputed involvement of the Mining Marshals presents a further evidential challenge. Investigators must establish which personnel participated in the operation and under whose authority they acted. Deployment records, custody registers, operational orders, communications, witness testimony and medical evidence are not merely administrative materials; they are the primary means by which the state can demonstrate that it discharged its duty of care towards persons in its custody. The reported discrepancy between the number of deaths announced by the authorities and the number of bodies received by a mortuary also requires urgent clarification. Accurate identification and accounting are essential to establishing what happened and ensuring that every death is properly investigated.

Ultimately, the commission’s task is not to select the most persuasive official account but to test each account against the available evidence. Its findings may establish facts, expose inconsistencies and identify institutional failures requiring further action. Criminal guilt, however, must be determined through the appropriate legal process. The governing principle remains straightforward: public office must not shield wrongdoing, but neither should public suspicion replace proof.

4. BEYOND THE COMMISSION OF INQUIRY

A judicial commission of inquiry may establish facts, examine official conduct and recommend measures to prevent a recurrence. However, its findings do not themselves amount to criminal convictions. Where the evidence discloses possible offences, the appropriate authorities must consider prosecution; where it discloses actionable civil wrongs or constitutional violations, affected persons may pursue the relevant legal remedies. Suspension or removal from office is likewise an administrative measure, not a substitute for legal accountability. The ultimate test is whether credible evidence leads to appropriate legal action.

The distinction between investigating a death and establishing criminal responsibility is fundamental. A commission may identify inconsistencies in testimony or conclude that institutional failures occurred, but criminal guilt must be determined by a competent court in accordance with the applicable law and the accused person’s right to a fair hearing. Public office must not shield wrongdoing, but neither should public suspicion replace proof.

The families of the deceased may also have remedies under Nigerian law, depending on the facts established. Where a death results from an unlawful act or a legally actionable failure to discharge a duty, civil proceedings may be available against the responsible person or public authority. Where a constitutional right has been, is being or is likely to be contravened, section 46 of the Constitution provides a route to seek redress before a competent court, subject to the applicable procedural requirements. Because the alleged victims are deceased, the question of standing becomes important. Under the Fundamental Rights (Enforcement Procedure) Rules 2009, proceedings may be brought not only by victims but also by persons acting on their behalf, including relatives, legal practitioners or human-rights organizations, subject to the Rules and applicable case law.

Compensation, prosecution and disciplinary action serve different purposes. Civil remedies may provide financial redress to eligible dependants or other claimants; criminal proceedings determine whether an offence has been committed and whether an accused person is legally responsible; and disciplinary action addresses breaches of professional or institutional rules. None should automatically be treated as a substitute for the others where separate legal grounds exist. A credible response must identify which forms of accountability the evidence supports and pursue each through the appropriate legal process.

The incident also demands attention to prevention. Nigeria should adopt a mandatory custodial-death response framework requiring the immediate preservation of the scene, custody records and medical records; prompt notification of next of kin; independent medical examination and autopsy; a custody register for every detainee; medical screening on admission and throughout detention; clear designation of the officer responsible for each detainee; mandatory reporting of deaths to an independent oversight body; and publication of the outcome of investigations. Where minors are detained, the authorities must also comply with applicable child-protection and criminal-procedure requirements. These measures would not prejudge culpability, but they would make evasion of responsibility more difficult and strengthen public confidence in custodial institutions.

Ultimately, the commission’s credibility will depend not simply on the seriousness of its hearings but on the clarity of its findings and the lawful action that follows. The bereaved families deserve an account of what happened, while the public deserves assurance that the circumstances have been independently and thoroughly investigated. Where responsibility is established, the law must provide a meaningful response. Where the evidence remains inconclusive, that uncertainty must be acknowledged rather than concealed by premature declarations of guilt or innocence.

5. CONCLUSION: WHO ANSWERS?

The question is not merely who authorized the operation, but which institutions are legally obliged to account for the deaths, remedy any established wrong, and prevent recurrence. The NSCDC must account for its custody practices; the Attorney-General and relevant prosecutorial authorities must assess whether the evidence supports criminal proceedings; the courts must determine civil and constitutional liability where properly invoked; and the commission must publish findings capable of supporting concrete reform. Accountability will be meaningful only if these processes operate together, rather than allowing an inquiry to become the final word.

A state that demands obedience to the law must also demonstrate that those entrusted with enforcing it are subject to the same law.

Oluwaleye Adedoyin Grace, LLB. (Hons.)

Oluwaleyeadedoyingrace2001@gmail.com  or 08106289069