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The legal right of Nigerians to protest against government (2) by Femi Falana

Continues from last week
Incidentally, the Honourable Justice Adekeye J.S.C. (rtd) who delivered the historic judgment of the Court of Appeal which confirmed the illegality of police permit is a member of the Nigeria Police Service Commission. We have no doubt that the respected Justice will rightly advise the Nigeria Police Force to stop the illegal practice of insisting on the issuance of police permit for political meetings and rallies in Nigeria.

In particular, the attention of the Court was not drawn to the case of Attorney-General of Anambra State v. Attorney-General of the Federation.3 where Uwais CJN (as he then was) had held that “The Constitution in section 215 subsection (1) clearly gives the Governor of Anambra State the power to issue lawful direction to the Commissioner of Police, Anambra State, in connection with securing public safety and order in the State.

In the circumstance, the Court of Appeal correctly jettisoned its decision in Chukwuma v Commissioner of Police (supra) and affirmed the judgment of the Federal High Court on the illegality of police permit.

Protest Against Government are not treasonable: In a special broadcast on the eve of the industrial action and public protests President Goodluck Jonathan conceded the right of Nigerians to kick against the painful economic programme of subsidy removal.

Monitor the strikes and the protests

Both the Attorney-General of the Federation and the Inspector-General of Police also conceded that Nigerians were constitutionally entitled to protest peacefully against official policies.

Notwithstanding such official pronouncements armed police personnel detailed to monitor the strikes and the protests opened fire and killed unarmed protesters in Ilorin, Kano and Lagos. Embarrassed by the incident the Police Commissioner, Mr. Kasali ordered the arrest of the trigger happy cop, apologized to the parents of the deceased and promised to prosecute the suspect as there was no basis for his action since the protests in Lagos were peaceful.

However, despite the fact that over 2 million demonstrators in the streets of Lagos conducted themselves peacefully armed soldiers were deployed in a desperate bid to suppress the protests on the orders of the Commander-in-Chief of the Armed Forces, Dr. President Goodluck Jonathan.

As there was no insurrection to be contained by the army as envisaged by section 217(2)(c) of the Constitution the deployment of the armed troops was roundly condemned by Nigerians. Instead of protesting the usurpation of the constitutional duties of the police by the armed forces the Inspector General of Police addressed a press conference in Abuja wherein he justified the deployment and threatened to charge demonstrators with treasonable felony. The spokesperson for the State Security Service, Mrs. Mary Ogan also accused some leaders of the civil society for making inciting statements which could provoke terrorism!

The right to protest: Since Nigeria is under a democratic dispensation it is germane to join issues with an elected regime that is bent on imposing fascism on the country. More so, that Nigerians fought and defeated murderous military juntas to pave way for the restoration of civil rule.

Hence, when a cabal of power mongers attempted to plunge the nation into crisis following the ill health of the Late President Umaru Yar’Adua in November 2009 civil society groups staged peaceful protests in Lagos and Abuja.

It was those protests that culminated in the emergence of Dr. Goodluck Jonathan as the Acting President of the Republic. Ironically, when the Police Authorities asked for police permit for the demonstrations I reminded the Inspector-General of Police, Mr. Onovo of the case of Inspector-General of Police. V. All Nigeria Peoples Party (supra) wherein the Court of Appeal had declared that the requirement of police permit for public protests was illegal and unconstitutional.

Illegality of  demolition of houses

Sometime in 1989 about 300,000 people were rendered homeless in Maroko, a shanty town in Victoria Island in Lagos State where their houses were demolished by the defunct military junta.  All efforts by the displaced people of Maroko to halt the demolition exercise failed on the ground that a breach of the fundamental right to property could not be enforced under the Fundamental Rights Enforcement Procedure Rules, 1979.  Upon the appropriation of Maroko it was sand filled with public funds and distributed by the government to some top civil servants, military officers and the business elite. Even though the Court of Appeal later held that the refusal of the high court to grant the relief sought by the displaced community was wrong the ruling military junta arrogantly named one of the streets after the judge who had refused the injunction!

However, following the destruction of their homes by the Lagos state government the Maroko people took over the uncompleted Abesan estate.

To prevent the government from ejecting them forcefully from the estate we approached the Lagos High Court for legal protection. In its stiff opposition to the suit the government contented that since the occupants of the estate were squatters they could be ejected forcefully.

In rejecting the spurious contention, the presiding judge, Alabi J. (as he then was) ruled that the occupiers of the estate were entitled to be served a 7-day quit notice and be sued if they refused to quit the premises.

Notwithstanding the clear provisions of the law enunciated by the Lagos High Court in Ayeyemi’s case the Lagos state government has continued to embark on mass demolition of houses occupied by the poor in the state. It is our submission that all the demolition exercises carried out so far are illegal as they violate section 36(4) of the Constitution which stipulates that in the determination of their rights and obligations every citizen shall be entitled to make a representation to the authority. It is pertinent to note that the right of owners or occupiers of houses to make representation to the government before any demolition exercise is carried out is enshrined in the Lagos State Urban and Regional Planning and Development Law Cap U2 Laws of Lagos state 2015 (herein referred to as the URPD law).

Thus, by virtue of section 49 of the URPD law there shall be a Renewal Agency which shall be saddled with the responsibility to issue enforcement notices including the following:

(a) Contravention Notice;

(b) Stop Work Order;

(c) Quit Notice;

(d) Seal-up Notice;

(e) Regularization Notice; and

(f) Demolition Notice.

Before enforcing the order contained in any of the aforesaid notices  a committee of members of the Renewal Agency shall be set up to hear, consider and report on any representation or objection which may be made orally or in writing by the owner or occupier of any building on which a notice has been pasted. It is further provided that before a demolition order is made in respect of any building or a part of it, estimates of the compensation payable to the owner or occupier shall be determined and made available.

Written  notification

If the Agency dismisses the objection and confirms the demolition order the aggrieved owner or occupier has the right to appeal against the decision to the Physical Planning and Building Control Agency Appeals Committee. Furthermore, an aggrieved person or any interested party may appeal against the decision of the Appeals Committee and such appeal shall lie as of right to the High Court of the State. The appeal to the high court must be made within twenty-eight (28) days after written notification of the final decision of the Appeals Committee.

It is clear from the foregoing that it is after the complaint of the aggrieved person has been dismissed by the High Court that any demolition can be carried out in Lagos state. However, a building cannot be demolished in any part of the state without a valid court order unless it has been established that it is structurally defective or found to constitute environmental hazard.  Therefore, the practice of demolishing houses after the expiration of a 48-hour notice is illegal in every material particular.  In a judgment delivered by the Federal Capital Territory High court on February 2, 2017, in Chief Jacob Obor & Ors v Federal, Capital Territory & Ors (unreported suit no  CV/3998/12) Kutigi J. declared the planned demolition of all the houses in Mpape illegal on the ground that the notices purportedly served on the plaintiffs did not meet  statutory requirement.

Indeed, the illegality of demolition of houses in Lagos state is compounded by the refusal of the Ministry of Physical Planning to hear and determine the objections and complaints of owners of buildings which are marked for demolition.  In other words, the action of the government constitutes a reckless violation of the provisions of sections 57-89 of the Law. It is also a breach of section of 36 (4) of the Constitution which guarantees the fundamental right of every citizen to make a representation before any matter affecting their civil rights and obligations is determined.

In SERAP v. Federal Republic of Nigeria (2002) 2 CHR 537 at 562 the African Commission on Human and People’ Rights condemned the demolition of a number of houses in Ogoniland. While upholding the human right of the owners of the demolished houses to shelter the Commission said: “At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes.

Integrity of the  individual

The State’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs.”

To check the menace of land grabbers and prevent a breakdown of law and order the Lagos state government has enacted the …….Law, 2016 which has criminalised the seizure of land and houses without a valid court order. Thus, by forcefully taking over house before demolishing them the Lagos state government has violated its own law.

By Femi Falana


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