National Legal Framework on the Right to Protest

For as long as there have been governments there have been rules to restrict protest and dissent. Over the centuries the law in this area has developed piecemeal, adapting to the prevailing attitudes and concerns of the governments and courts of the day. This dynamic process reflects the struggle that lies at the heart of public order law - the natural tension between the amount of freedom we demand as demonstrators and the amount of restriction we as electors permit our Parliament to impose.

Different bodies of law have formulated the basis for the right to protest. Some may be territorially bound while others cut across states and are a result of collective agreements. Irrespective of how these frameworks are formulated and their scope, they are fundamental to the discourse on the right to protest.

Constitution of the Federal Republic of Nigeria 1999 (As Amended)

Enshrined within the provisions of Chapter IV of the Constitution are clear articulations of the right to protest. For the right to protest to be fully exercised, the life, liberty, free thought, expression, movement and peaceful assembly, of protesters is a crucial component and must be guaranteed in a democratic society. This “implies freedom from external coercion in the use of one’s good or faculties. It is the status of not being the property or chattel of another.”[1] Lord Denning[2] observed that these rights presuppose: “the freedom of every law-abiding citizen to think what he will, to say what he will on his lawful occasions, without let or hindrance from any other person.”

Since these provisions are the cynosure of the right to protest, it is germane to pluck it out from where it is ingrained in the constitution[3], verbatim ac literatim, thus;

Right to Life[4]: Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

Right to Dignity[5]: Every individual is entitled to respect for the dignity of his person, and accordingly - no person shall be subject to torture or to inhuman or degrading treatment; no person shall be held in slavery or servitude; and no person shall be required to perform forced of compulsory labour.

Right to Personal Liberty[6]: Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty. Except in accordance with the Law.[7] See Abubakar v A.G Kano State & Anor.

Right to Freedom of Thought, Conscience and Religion[8]: Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. See NMCN v Adesina[9]

Right to Freedom of Expression and the Press[10]: Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. See Shaibu & Ors v Utomwen & Ors[11]

Right to Peaceful Assembly and Association[12]: Every person shall be entitled to assemble freely and associate with other persons, and he may form or belong to any political party, trade union or any other association for the protection of his interests. See Registered Trustees of Association Of Tippers and Quarry Owners of Nigeria v Yusuf & Ors [13]

Section 40 of the 1999 Constitution of the FRN (as amended) does not permit the formation of associations or groups that will be at crossroads capable of creating anarchy and confusion. This position was upheld in Amarawa & Ors v Registered Trustees of Association of Traders of Fruits Vegetables & Other Related Products Kano[14]

Right to Freedom of Movement[15]: Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom. See Director of SSS & Anor v Agbakoba[16]

Restriction and Derogation from Fundamental Rights[17]: Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society,

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom or other persons.

Though these provisions guarantee inalienable rights to be enjoyed by all citizens and give basis to the right to protest, Section 45 permits these rights to be restricted in the interests of defence, public safety, public order, public morality or public health, or to protect the rights or freedoms of others. This section no doubt limits the extent to which these fundamental freedoms could be enjoyed.

In the notable case of Alhaji Dakubo-Asari v Federal Republic of Nigeria[18], the limitation of all fundamental human rights, including the right to peaceful assembly, based on defence was given practical importance. In that case, Alhaji Dakubo-Asari was arrested and his freedom was restricted including his right to bail. The prosecutors noted that his fundamental human rights were restricted on the basis of national defence. The respondent contended that such restriction was nevertheless an infringement of his fundamental human right. The court per Ibrahim Tanko Muhammad, JSC found that the fact of the case established a prima facie case of felony which was a matter of national defence and security; that the fundamental human rights of a person are not absolute and may be restricted on the ground of national defence and held that the lower courts were right in ruling that the rights of the accused were not violated. Following this case, the right to peaceful assembly may be restricted if a gathering is considered a threat to the security of the nation or a felonious crime.[19]

Apart from the 1999 Constitution of Nigeria, there are other major laws like the Criminal and Penal Code Acts that have made provisions for the control of the right to peaceful assembly and association. For instance, Section 102 of the 1960 Criminal Procedure Code (applicable in the northern states) permits the use of force by police officers to disperse unlawful assemblies or riots. The extent of the force allowed to achieve this is, however, not defined by the Act.

Section 73 of the 1916 Criminal Code[20] allows "all such force as is reasonably necessary" to overcome resistance to dispersal. Also, the Police Force Order, titled Rules of Guidance in the Use of Firearms by the Police, stipulates as follows:

“A police officer may use firearms when "necessary to disperse rioters or to prevent them from committing serious offences against life and property". Further, 12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation before the use of firearms can be justified.”[21]

Paragraph 6 of the Order provides:

Fire should be directed at the knees of the rioters. Any ringleaders at the forefront of the mob should be singled out and fired on. Only the absolute minimum number of rounds necessary to suppress the riot should be used. Never under any circumstances will warning shots be fired over the head of rioters.

It is worthy of note, that besides the Constitution, the position of the other Acts referred to do not conform with international standards or comply with international laws.

Public Order Act 1979

The Public Order Act is the major law that attempts to regulate protest demonstrations in Nigeria. It is “An Act to repeal all public order laws in the States of the Federation and to replace them with a Federal Act for the purpose of maintaining public order and to prohibit the formation of quasi-military organizations, regulate the use of uniforms and other matters ancillary thereto”[22]. The Act mandates individuals or groups to apply for and obtain police permits or approval to hold rallies and peaceful assemblies through the governor of the state.[23] The law stipulates further that “for the purpose of the proper and peaceful conduct of public assemblies, meetings and processions and subject to Section 11 of this Act, the Governor of each State is hereby empowered to direct the conduct of all assemblies, meetings and processions on the public roads or places of public resort in the state and prescribe the route by which and the times at which any procession may pass.”[24]

With this law, the police commissioner in a state, acting on the instruction of the governor, is empowered to decide whether a group of people can hold protest demonstrations at all. He can put limitations on the means of protest and can decide to regulate the activities of protesters and demonstrators using force thereby breaching the right guaranteed by the constitution on peaceful assembly. The Police are also empowered, by the same law, to withdraw hitherto given permission for reasons they only may deem fit.

In 2007, the Court of Appeal quashed several sections of the Public Order Act; the Court’s decision, however, has not yet been reflected in legislative changes. Notification is no longer required, unless the organisers wish to receive police protection. In its 2007 judgment in Inspector-General of Police v All Nigeria Peoples Party [25], Justice Adekeye JCA (as he then was) held that:

“The Public Order Act should be promulgated to complement Sections 39 and 40 of the Constitution in context and not to stifle or cripple it. A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of governance in civilized countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.”

The court further held that;

“The Public Order Act – relating to the issuance of police permit cannot be used as a camouflage to stifle the citizen’s fundamental rights in the course of maintaining law and order… The constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result. The power given to the Governor of a State to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation of right to freedom of speech and freedom of assembly. The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment if no wrongful act is done. If as speculated by law enforcement agents that breach of the peace would occur our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society. Finally, freedom of speech and freedom of assembly are part of democratic rights of every citizen of the republic; our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests.”

The surviving provisions in Section 1 of the Public Order Act empower a State Governor to prescribe the route by which and the times at which any procession may pass. In addition, while the use of uniforms is explicitly permitted by Section 7 of the Act, the Commissioner of Police in the relevant state may nonetheless prohibit it if he or she is of the opinion that wearing it is offensive or is likely to provoke a breach of the peace.

In its 2015 Concluding Observations on Nigeria, the African Commission on Human and Peoples' Rights (ACHPR) welcomed “the pronouncement of the Court of Appeal, which enables citizens to freely assemble without seeking prior police permit, as was previously required under the Public Order Act”.[26]

Section 91 (3) of the Electoral Act 2022 provides that “Notwithstanding any provision in the Police Act, the Public Order Act and any regulation made thereunder or any other law to the contrary, the role of the Nigerian Police Force and the Nigerian Security and Civil Defence Corps and any other security agency of the Federal Government in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection (1)”. This provision, irrespective of the extant Public Order Act, limits the actions and duties of security operatives so mentioned to the ‘provision of adequate security’ and nothing more. Although many will argue that this provision is only particular to rallies, processions and meetings that are entirely ‘political’ and does not regulate other security forces not mentioned, it is still correct that the intention of the lawmakers is to guarantee that the right to engage in rallies, processions and meetings are not stifled by officers of the NPF and NSCDC.

References

[1] His Lordship, Justice Oputa, cited in Oba Gabriel Orogie v A.G. Ondo State (1982), 3 NCLR, 349 per Justice Orojo.

[2] Blackstone [1765–69, vol. 1, p. 133; vol. 4, p. 432].

[3] 1999 Constitution of the Federal Republic of Nigeria (as amended 2018).

[4] Section 33, 1999 Constitution

[5] Section 34, 1999 Constitution

[6] Section 35, 1999 Constitution

[7] (2019) LPELR-48970(CA).

[8] Section 38, 1999 Constitution

[9] (2016) LPELR-40610(CA).

[10] Section 39, 1999 Constitution

[11] (2022) LPELR-58237(CA).

[12] Section 40, 1999 Constitution

[13] (2011) LPELR-5024(CA).

[14] (2019) LPELR-48265(CA).

[15] Section 41, 1999 Constitution

[16] (1999) LPELR-954(SC).

[17] Section 45, 1999 Constitution

[18] (2007) 12 NWLR (Pt. 1048) 320.

[19] Right to Peaceful Assembly and Association in Nigeria <https://www.chamanlawfirm.com/right-to-peaceful-assembly-and-association-in-nigeria> accessed 5 December 2022.

[20] as amended; generally applicable in the southern states.

[21] Order 237, Police Force Order

[22] Long Title, Police Order Act, 1979

[23] Section 1 (2), Police Force Order

[24] Section 1 (1), Police Force Order

[25] (2007) 18 NWLR (Pt. 1066) 457 at 498-499.

[26] Para. 31. Concluding Observations and Recommendations on the 5th Periodic Report of the Federal Republic of Nigeria on the Implementation of the African Charter on Human and Peoples’ Rights (2011 – 2014).