What A Beneficial Law Obeyed More In Breach Than Observance
By. Obiaraeri N.O, PhD
The Compulsory Treatment and Care Of Victims of Gunshot Act, 2017 is a typical example of the many good laws passed by the National Assembly which have either been gathering dust in the shelves of libraries without Nigerian people knowing about them or which the affected public institutions or organisations in those legislations chose to obey more in breach than observance.
In the Monograph titled COMPULSORY TREATMENT AND CARE OF VICTIMS OF GUNSHOT ACT, 2017 – A LEGAL OVERVIEW published in 2022, I made the unassailable point that despite the passage of the Compulsory Treatment and Care for Victims of Gunshot Act since 2017, the tide of avoidable deaths arising from gunshot wounds had not abated. This was as a result of rejection of gunshot victims by hospitals, medical doctors and members of the public for fear of reprisals from security agencies and especially the Police. That work bemoaned the rampant unwillingness of public agencies and institutions to obey duly passed laws or to selectively choose which ones to obey or not to obey. It was noted that with rising insecurity in Nigeria, anyone can be a victim of gunshot and such a beneficial law that upholds the sanctity of life and right to health of victims of gunshot should never be spurned.
Thus, gunshot victims should not be denied prompt medical attention or rejected or allowed to die for fear of consequential police problems since it usually took considerable or sometimes unreasonable length of time to get the needed police report before medical attention is given to a gunshot victim.
It was further noted as a sad commentary that many years after the passage of the law for compulsory treatment and care for victims of gunshot, hospitals, whether public or private, still demand for police report before taking in or receiving and treating victims of gunshot because the existence of this life saving legislation was not adequately publicised and made known to the general public coupled with the refusal of the police authorities to give effect to that law. Aside critically analysing the textual provisions of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, the monograph pointed out loopholes in the law based on relevant judicial decisions while suggesting many pragmatic ways to improve the efficacy of that law. One clear recommendation in that work was to the effect that the office of the Inspector-General of Police should feel compelled or be mandated by the appropriate authorities to issue strong worded directive on strict compliance with this law to all police officers.
Recently, although belated, in an internal memo dated October 25, 2023 the current Inspector-General of Police directed the police hierarchy to comply with and enforce the provisions of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 “without any hesitation”.
The Inspector-General of Police further directed that this directive be circulated widely for the members of the public to be aware of Police compliance with the national law. In sum, the current Inspector-General of Police has finally agreed to obey the law that since 2017, hospitals were legally excused to treat gunshot wounds without insisting on a police report first.
On the face value, this nascent directive appears to be a good deed done to the general public by the Inspector-General of Police but the said directive failed to warn Police Officers about their strict liabilities and potential punishments under the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 should they fail, refuse or neglect to pay heed to the provisions of that law. That law goes far beyond the mere giving of treatment to gunshot victims without insisting on police report first as it also makes provision for various rights and obligations as well as imposes punishments and penalties in certain cases.
Against the public euphoria that has greeted the Inspector-General of Police’s directive aforesaid, this intervention is made to enlighten the public, medical doctors and stakeholders in the medical sector, police officers and members of the other security agencies on the salient and obligatory provisions of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017. It is against the foregoing background that by way of questions and answers series below, and shorn of confusing legalese, specific provisions of the law will be simply discussed for public enlightenment and awareness.
(a) Who is a “victim” of gunshot and what is “gunshot”, it may be asked?
Section 15 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 interprets “victim” to mean a person who sustains injuries as a result of gunshot, powder burn and other injuries arising out of or caused by the discharge of a firearm.” In section 11(1) of the Robbery and Firearms (Special Provision) Act, 2004, “firearms” is defined to include “any canon gun, riffle, carbine, machine – gun, cap gun, flint- lock gun, recover, pistol, explosive or ammunition or other firearms, whether whole or in detached pieces. On the other hand, there is no statutory definition of “gunshot” in the Compulsory Treatment and Care for Victims of Gunshot Act, 2017. However, in IDI v STATE (2016) LPELR-40813(CA) (Pp. 32 paras. A) the Court of Appeal per Tur, JCA, held among other things that “Gunshot’ is “… the bullets that are fired from a gun….”
(b) What is the right of a gunshot victim under the Compulsory Treatment and Care for Victims of Gunshot Act, 2017?
This law accords legal recognition to the unfettered right to treatment of a victim of gunshot. Under section 1 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, every hospital in Nigeria is under obligation to accept or receive for immediate and adequate treatment any person with gunshot wound. This mandatory obligation extends to private and public hospitals and the treatment and care shall be given to the victim with or without prior Police clearance. Hence under section 2(2) of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, a person with a gunshot wound should be given adequate treatment by any hospital in Nigeria without initial monetary deposit and a person with a gunshot wound shall not be subjected to inhuman and degrading treatment or torture by any person or authority including the police or other security agencies.
(c) What is the duty on every person including security agents to assist victim of gunshot wound?
Section 2 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 imposes a duty on every person to render positive assistance to any person with gunshot wounds. This includes the duty to ensure that the person is taken to the nearest hospital for immediate treatment. This duty is mandatory as the word “shall” is used and it extends to security agents. This is a novel provision that emphasises the primacy of the need to save the life of the victim of gunshot wound.
(d) What are the duties on the hospital and police in gunshot cases?
There is a duty on the hospital to notify Police and there is also a duty on the Police to investigate professionally. The first duty of the hospital towards a gunshot victim is to give immediate treatment with or without Police clearance and without insisting on initial monetary deposit. In addition, the hospital is also under a compulsory duty to notify the Police of this treatment. Under section 3(1) of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, a hospital that receives or accepts a case of a person with gunshot wound shall report the fact to the nearest Police station within TWO HOURS of commencement of treatment and upon receipt of this report from the hospital, the Police shall immediately commence investigation with a view to determining the circumstances under which the person was shot. This provision ensures that treatment of gunshot victim does not either obstruct or estop the power of the Police to investigate the circumstances that led to the gunshot wound.
By reason of the provision of section 4 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, the Police shall not invite any person with gunshot wounds from the hospital for the purposes of investigation unless the Chief Medical Officer of the hospital certifies him fit and no longer in dire need of medical care.
(e) Is there a duty on the hospital to inform family members of the gunshot victim and to maintain record of treatment?
In section 10 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, it is expressly provided that within 24 HOURS of ascertaining the identity of the victim, a hospital that receives any person with gunshot wound shall notify the family members or relations of the victim. On the other hand, section 12 of Compulsory Treatment and Care for Victims of Gunshot Act, 2017 provides that a hspital or facility that takes or receives for treatment any person with gunshot wound shall keep adequate record of the treatment.
(f) Is there protection of volunteer or helper of victims of gunshot?
Under section 8 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, volunteers or helpers of gunshot victim are guaranteed the unique right to be treated with respect and not to be subjected to unnecessary and embarrassing interrogation in their genuine attempt to save life although they are under a duty to volunteer background information on the victim as much as they know it to the hospital and security agents. This protection encourages the spirit of the Good Samaritan and removes genuine helpers from fear of victimization or undue prosecution by law enforcement agencies.
(g) What are the offences created under the law and their penalties?
The Compulsory Treatment and Care for Victims of Gunshot Act, 2017 creates sundry offences and penalties (which include option of fine or term of imprisonment or both and imprisonment without option of fine) firstly for the hospital and doctor, secondly for everybody who withholds information, thirdly against any person who commits an offence in relation to treatment and care of gunshot victims, fourthly against any person or authority that stands by and fifthly against corporate bodies.
The respective offences and penalties are as follows-
(i) Hospital and Doctor- Section 5 of Compulsory Treatment and Care for Victims of Gunshot Act, 2017 provides that a hospital that fails to make a report to the Police within two hours of commencement of treatment of gunshot victim (as required under section 3) has committed an offence and is liable on conviction to a fine of N100, 000.00 (one hundred thousand Naira. Furthermore, every doctor directly concerned with the treatment is liable on conviction to a term of six months or a fine of N100, 000.00 (one hundred thousand Naira) or imprisonment or both. It should be noted here that the punishment of the doctor on conviction is more severe than that of the hospital.
(ii) Persons who withhold information- A person who is helping a victim of gunshot is required under section 6 of Compulsory Treatment and Care for Victims of Gunshot Act, 2017 to furnish the hospital on demand or the investigating police officer with background information on the victim as he may be compelled to incriminate the victim. Thus, persons who are helping the gunshot victim to receive immediate care and treatment are not allowed to impede investigation or be evasive or dodgy in volunteering information they have or know about the victim and or concerning the circumstances under which the gunshot wound was inflicted or sustained. To this end, section 7 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 provides that any person who withholds information (fails or neglects or refuses to give the report) as may be required (under section 6) commits an offence and is liable on conviction to a fine of N50, 000.00 or imprisonment for a term of six months or both.
(iii) Persons guilty of the offence- Under section 9 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, any person who commits an offence which leads to or causes substantial physical, mental, emotional and psychological damage to the victim, commits an offence and is liable on conviction for a term of not more than fifteen years and not less than five years without option of fine. This very severe punishment is to compel the medical personnel, ancillary workers or hands and security agents to be highly professional in the care and treatment of the gunshot victims. Police officers must be very careful with this provision.
(v) Offence of standing by- Under section 11 of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 it is provided that “Any person or authority including any police office, other security agents who stands by and fails to perform his duty under this Act which results in the unnecessary death of any person with gunshot wounds commits an offence and is liable on conviction to a fine of N500,000 or imprisonment for a term of five years or both.
(h) Is the gunshot victim entitled to restitution (compensation) and when and how?
The unique provision for restitution or compensation for the gunshot victim should be noted. In section 14 of the Compulsory Treatment and Care for Victims of Gunshot Act 2017, it is provided that apart from other penalties available against offenders, the High Court shall order a person or corporate body convicted of an offence under the Compulsory Treatment and Care for Victims of Gunshot Act 2017 to make restitution to the victim by directing that the person or corporate body to pay to the victim an amount equivalent to the loss sustained by the victim. Restitution is available to the victim only although in computing the amount of restitution to be paid to the victim, the High Court will be required to take into account the nature or gravity of the gunshot wound and whether or not the victim will be needing support to live and for what length of time. The victim need not apply for restitution before the relief is granted by the High Court. For further reading on the ramifications of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017 and modalities for award of restitution to a gunshot victim see Obiaraeri, N.O., COMPULSORY TREATMENT AND CARE OF VICTIMS OF GUNSHOT ACT, 2017– A LEGAL OVERVIEW (Owerri, Zubic Infinity Concept 2022). See also the decision of the Supreme Court in OGULANA v THE STATE (1995) LPELR- 2341 (SC) and NWUDE v FRN (2015) LPELR (25858) 1 at 38-40 where it was held among other things that the essence of the order for restitution is not a punishment, it is rather to ensure social justice and act as a deterrent by ensuring that a criminal is not allowed to enjoy the proceeds of his crime in total disregard to the fate of the victim. See also EDUN & Anor v FRN (2019) LPELR-46947(SC) (Pp. 48-49 paras. D-D) per Peter- Odili, JSC.
The discussions above are fair representations of what the public, stakeholders in the medical profession and police officers should know about the Compulsory Treatment and Care Of Victims of Gunshot Act, 2017.
Now that the Inspector-General of Police has publicly directed compliance with the law on compulsory treatment of gunshot victims without firstly obtaining police report, is that end of the matter? In other words, what is the way forward with compulsory treatment of gunshot victims? To give full meaning to this law, is suggested that members of the public should be routinely enlightened that help can be given to save the life of a gunshot victim without legal sanctions or police harassment. This is where the National Human Rights Commission, National Orientation Agency, Nigerian Medical Association, Nigerian Bar Association, Federal Road Safety Commission, Civil Society Organisations and Non-Governmental Organisations and other stakeholders have big roles to play.
It is strongly opined that prescribing immediate care and treatment of gunshot victims from hospitals without the government improving the public hospitals by equipping them to be able to handle trauma and emergencies and carry out complicated surgeries is tantamount to enacting an empty legislation.
The law did not address the mechanism for payment of hospital bills and associated treatment costs of gunshot victims. Who takes care of the cost of treatment in the event that the gunshot victim is unable to pay at all or pay a part of the bill? Is it practicable for private hospitals to be compelled to treat such complicated cases without financial implications? This then throws up the need for government to take serious the introduction of a durable National Health insurance Scheme.
In conclusion, the law on compulsory treatment of gunshot victims will continue to be a mirage unless and until the right to health under section 17(d) of the Constitution of the Federal Republic of Nigeria, 1999 as (amended) is made justiciable in order to comprehensively address the understanding that right to health is a necessary handmaid to right to life and that human rights is holistic, indivisible and complement each other.
A new normal is possible!
🖋️
Prof Obiaraeri, N.O.