Jurisprudence of Citizens’ Right To Protest

Jurisprudence of Citizens’ Right To Protest

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“There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest”…Ellie Wiesel

Nothing strengthens authority so much as silence”…Leonardo Da Vinci

“To sin by silence, when they should protest, makes cowards of men”…Ella Wheeler

The citizens right to peaceful protest is drawn from the right of expression, peaceful assembly and movement. The freedom of assembly and association affords individuals with common aims and interests to advance their legitimate cause more strongly against subverting interests.

The right to freedom of expression is provided in Section 39(1) of the Constitution of the Federal Republic of Nigeria, 999 (as amended) which states unequivocally thus:

Every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference.’’

Concomitant to the right of expression is the right to peaceful assembly. Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees everyone the right to assembly freely and to associate with other persons. The said provision is reproduced infra

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.’’

Furthermore, Articles 10 and 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9 LFN 2004 provides respectively as follows:

Article 10(1) of the Charter provides that ‘’Every individual shall have the right to free association provided that he abides by the law.’’

Article 11: Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restriction provided for by the law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.’’

Sadly, cases of constant clampdown on protesters is fast becoming the norm as peaceful protesters are confronted with teargas canisters, water cannon and wild police dogs by law enforcement agents to attack, harass and disperse them.

The vast majority of such unprovoked attack are totally unwarranted especially where the protests are entirely peaceful, devoid of rancor or any form of violence, and constitutes no security risk nor a violation of any known law.

Agreeably, just like every other rights, the right to peaceful assembly and to stage peaceful protest is not absolute. It is not without its exceptions. Assembly that is riotous, disorderly, constitutes nuisance to the public, capable of causing breakdown of law and order cannot be allowed by the law enforcement agencies whose responsibility is to maintain law and order.

Regrettably, successive governments and power drunk security men have unduly taken advantage of the derogatory provisions in sections 45 (1) (2) of the 1999 Constitution and the Public Order Laws and other restrictive and derogatory laws, to interfere, stifle and stultify peaceful protests and assembly by groups and protesters most especially when such assembly and protest is targeted at exposing the rots and ill of the government. It is usually the pretext that the assembly or protest is capable of breaching public peace.

As experience has shown, these derogatory provisions and restrictive laws and exceptions to peaceful assembly and protest have often been abused. It is the belief of overzealous law enforcement agents, albeit erroneously, that peaceful expression of unpopular or anti-governmental views amounts to a breach of peace and order.

Another impediment to the enjoyment of this right is the requirement of “police permit” under the Police Act and Public Order Act. This requirement has come under immense critic by learned authors who see it as a political tool used against opponents and oppositions and what more, unconstitutional. The illegality of a police permit has also received the blessings of the court.

In the celebrated case of INSPECTOR GENERAL OF POLICE v. ALL NIGERIA PEOPLES PARTY (2007) LPELR-893, the court upheld the fundamental rights of Nigerians to freedom of expression and assembly and pronounced as follows:

“The police have no powers to stop or restrict the fundamental rights of Nigerians to freedom of expression and assembly once those rights are exercised within the ambit of the law. If the demonstrates or marchers breach any law in the course of exercising their freedom of expression and assembly, the Criminal Code is there to take care of such infraction. “Per ADEKEYE, (P.28, Paras .F-G)(emphasis mine)

In the same case of INSPECTOR GENERAL OF POLICE v. ALL NIGERIA PEOPLES PARTY (2007) 18 NWLR (Pt. 1066) 457 at 496, paras. C – E (CA), the court emphatically and correctly affirmed the fundamental right of Nigerians to peaceful assembly cum protest in the following terms:
‘’The rights to freedom of assembly and freedom of expression are the bone of any democratic form of government. Besides their embodiment in the supreme law of the land, the 1999 Constitution, and the African Charter on Human and People’s Rights adopted as Ratification and Enforcement Act Cap. 10, Laws of the Federation of Nigeria, 1990, a plethora of decisions of Nigerian courts have endorsed same.” Per ADEKEYE JCA.’’

Muhammad JCA, held emphatically that in present day Nigeria, clearly police permit has outlived its usefulness. Certainly, in a democracy, IT IS THE RIGHT OF CITIZENS TO CONDUCT PEACEFUL PROCESSIONS, RALLIES OR DEMONSTRATIONS WITHOUT SEEKING AND OBTAINING PERMISSION FROM ANYBODY. It is a right guaranteed by the 1999 Constitution and any law that attempts that curtail such rights is null and void and of no consequence.

In MR. PAUL OKAFOR & ORS v. OBI VICTOR NTOKA & ORS (2017) LPELR-42794(CA), the Court of Appeal elucidated on the importance of fundamental rights and the need to protect them when it admonished thus:

“The importance of Fundamental Rights to the citizenry cannot be overemphasized. They are rights that are not only basic to humans, they form the bedrock for a free society devoid of forces of unbridled aggression, oppression, repression, authoritarianism. They have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria (as amended) due to their sacrosanct nature and importance. Per OGUNWUMIJU, J.C.A. (Pp. 20-21, Paras. F-B)

The ANPP Case above clearly settled the position that Nigerians have the fundamental right to stage rallies and protests without permit.

Notwithstanding the clear position of the law, armed police personnel detailed to monitor protest have always interrupted or in some cases, opened fire and killed unarmed protesters by trigger loving cops.

Quite recently, members of the “Our Mumu Don Do Movement” came under serious attack by men and officers of the Nigerian Police during a peaceful demonstration/ protest at the Unity Fountain, Maitama when they embarked on a sit out protest over the prolonged absence of Mr. President from the country and demanding that the president either resumes or resign.

The Convener of the Movement, Mr. Charles Oputa approached the court to enforce is fundamental right (with the writer as part of the legal team). In a keenly contested suit, the court per Justice J.I Tsoho in a well-considered judgment delivered on October 22, 2018 held that the right of the protesters was violated and awarded the sum of N50,000,000 against the Police.

At the expense of repetition, I must say that the powers to maintain public order and public safety under Section 215 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and Section 4 of the Police Act Cap. P19 L.F.N. 2004 does not empower the Nigeria Police Force and other agencies to disrupt, disperse or interfere with a peaceful protest by any citizen of Nigeria. Doing same is anti-masses, counter-majoritarian, undemocratic, illegal, unlawful, arbitrary, oppressive and indefensible and in contravention of the fundamental rights of citizens.

Interestingly, most of these protests sends the right message and helps the government or concerned authorities right the wrong. For example, the Federal Governments’ policy of January 1, 2012 to increase pump price of petrol from N65 to N140 was greeted with nationwide protest which led to a partial reversal of the policy. Also, the recent End SARS protest (with the writer at the fore front of the protest) snowballed the steady but gradual reforms of the SARS today. Instances abound where these protests have culminated to the emergence of more humane and masses friendly policies.

Democracy will be worthless, if the citizens (and the electorates) cannot join issues with the government and express themselves on policies and issues embarked upon by an elected regime which concerns and affects them. Denying this cherished right is a subtle move towards tyranny and fascism.

As rightly demonstrated, the right to protest peacefully within the ambits of the law is one that cannot be taken away in a democratic society bounded by the rule of law and constitutionalism. It is a fundamental attribute of a free society. It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. Neither the government nor the law enforcement agents ought to interfere with the exercise of this cherished fundamental right save within the legally allowable exceptions.

In the coming years, the government should accept the fact that democracy admits of dissent, protest, marches, rallies and demonstration. It allows the citizens to ventilate their remonstrance. It is a trend recognized and well accommodated in more civilized climes. Protest are global phenomenon and should be seen as tools of societal development. The earlier our law enforcement agents come to this realization, the better for all.

I conclude with the following notable quotes,

If you are neutral in situations of injustice, you have chosen the side of the oppressor.”

Desmond Tutu

“A patriot must always be ready to defend his country against his government”

Edward Abbey

Protest beyond the law is not a departure from democracy; it is absolutely essential to it

Howarn Zinn

“I saw courage both in the Vietnam War and in the struggle to stop it. I learned that patriotism includes protest, not just military service”…John F. Kerry

SEPREBOFA M. OYEGHE ESQ., Legal Practitioner based in Abuja, Nigeria. seprebofaoyeghe@gmail.com

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