BY FEMI FALANA, SAN
IN January 2012, the mass protests against the so-called removal of fuel subsidy were violently disrupted by the police and the army personnel. During its recent industrial action the Academic Staff Union of Universities had cause to direct its members to embark on protests to draw public attention to the underfunding of public universities in Nigeria. The police dispersed the protesting academics with tear gas. A fortnight ago, a political rally in Port Harcourt, Rivers State was brutally suppressed by the police. In justifying the violent attack, Mr. Joseph Mbu, the Rivers State Commissioner of Police claimed that the rally was unauthorized as the conveners did not obtain police permit.
Infringement of fundamental rights
Since the disruption of public meetings and rallies is an infringement of the fundamental right of Nigerians to freedom of association, assembly and expression it is pertinent to draw the attention of the authorities to the state of the law on public meetings.
Under the Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004 the power to regulate public meetings, processions and rallies in any part of Nigeria was exclusively vested in the governors of the respective states of the Federation. Thus, by virtue of section 1 of the Act the Commissioner of Police or any other police officer could not issue a licence or permit for any meeting or rally without the authority of the governor. In other words, no police officer was competent to issue a permit for holding any public meeting or rally or cancel any such public meeting or rally without the authority of the governor of a state.
In the case of All Nigeria Peoples Party & Ors. v. Inspector General of Police (2006) CHR 181 the Plaintiffs being registered political parties requested the Defendant, the Inspector-General by a letter dated May 21, 2004 to issue Police Permits to their members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused. There was a violent disruption of the rally organized in Kano on September 22, 2003 on the ground that no police permit was obtained.
In a suit filed at the Federal High Court against the Inspector-General of Police the Plaintiffs challenged the constitutional validity of police permit under the Public Order Act and the violent disruption of the rally. In defending the action the Defendant contended that the conveners of the rally did not obtain a police permit.
In dismissing the contention of the Police the trial judge, the Honourable Justice Chinyere stated inter alia: “The gist of the provision in section 1 of the Act is that the Governor of each State is empowered to direct the conduct of all assemblies, meetings and processions on public roads or places of public resort in the state and prescribe the route by which and times at which the procession may pass.
Licence of the governor
Persons desirous of convening or collecting any assembly or meeting or of forming a procession in any public resort must apply and obtain the licence of the Governor. The Governor can delegate his powers to the Commissioner of Police of the State or to other police officers. Persons aggrieved by the decision of the Commissioner of Police may appeal to the Governor and the decision of the Governor shall be final and no further appeal shall lie therefrom.”
On the inconsistency of police permit with sections 39 and 40 of the Constitution and Article 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004 the learned trial judge said: “In my view, the provision in section 40 of the Constitution is clear, direct and unambiguous. It is formulated and designed to confer on every person the right to assemble freely and associate with other persons. I am, therefore, persuaded by the argument of Mr. Falana that by the combined effect of sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental right to peaceful assembly and association. I agree with Mr. Falana that violation can only be done by the procedure permitted by law, under section 45 of the Constitution, in which case there must be a state of emergency properly declared before theses rights can be violated.
I also agree with Mr. Falana that the criminal law is there to take care if protesters resort to violence in the course of demonstration and that once the rights are exercised peacefully, they cannot be taken away. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society. It is inconsistent with the provisions of the 1999 Constitution. In particular, sections 1(2),(3),(4),(5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency, they are void. I hereby so declare.”
Permit for public meetings
After declaring the provisions of the Public Order Act which require police permit for public meetings and rallies illegal and unconstitutional the Federal High Court proceeded to grant the following reliefs:
A declaration that the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.
A declaration that the provisions of the Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.
A declaration that the Defendant is not competent under the Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990 or under any law whatever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
An order of perpetual injunction restraining the Defendant (the Inspector-General of Police) whether by himself, his agents, privies and servants from further preventing the Plaintiffs and other aggrieved citizens of Nigeria from organizing or convening peaceful assemblies, meetings and rallies against unpopular government measures and policies.”
Completely dissatisfied with the judgment of the Federal High Court on the issuance of police permit the Inspector-General of Police appealed to the Court of Appeal. Upon hearing the case the Justices of the Court of Appeal unanimously affirmed the judgment of the Federal High Court. With respect to the powers of governors to authorize the issuance of permit for holding public meetings and rallies in their states, Olufunmilayo Adekeye JCA (as she then was) had this to say: “On a proper perusal of the provisions particularly section 1 subsection 1-6, and sections 2-4 there is nowhere the name of the Inspector General is mentioned in connection with the issuance of permit for the purpose of conducting peaceful public assemblies. Such application is to be forwarded to the Governor within forty-eight hours of holding such. The Governor may delegate his powers under the Act to the Commissioner of Police of the State or any superior police officer of a rank not below that of a Chief Superintendent of Police as applicable to this case in hand.”
On the fundamental right of Nigerian citizens to assemble freely and protest without licence or permit, Adekeye JCA, proceeded to hold as follows: “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 or 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 as long as no wrongful act is done…
Public Order Act should be promulgated to compliment 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 tread 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.” (See Inspector-General of Police v. All Nigeria Peoples’ Party (2008) WRN 65).
In his contribution to the judgment of the Court of Appeal Muhammad JCA confirmed that police permit is alien to a democratic society when he reiterated 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 to curtail such right is null and void and of no consequence.”
In consigning police permit to the dustbin of history the Court of Appeal relied on the case of New Patriotic Party v. Inspector-General of Police, Accra (1992-1995) GBR 585 where the Supreme Court of Ghana observed that, “Statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain child of the colonial era and ought not to remain in our statute books.”
In line with the rule of law the current Inspector-General of Police, Mr. M.D. Abubakar has directed all police officers to comply with the verdicts of both the Federal High Court and the Court of Appeal by recognizing the fundamental right of Nigerians to assemble freely and protest without harassment.
Hence, in the Nigeria Police Code of Conduct launched at Abuja on January 10, 2013 it is stated that police officers shall “maintain a neutral position with regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity; not make endorsement of political candidates, while on duty, or in official uniform.”
In view of the aforesaid judicial pronouncements on the fundamental right of Nigeria to protest peacefully without police permit which has been recognized by the Inspector-General of Police as espoused in the Nigeria Police Code of Conduct we urge the Rivers State Commissioner of Police and other Police Commissioners to desist from cancelling or disrupting political meetings and rallies convened by Nigerians in exercise of their freedom of association and assembly.
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 now 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 and contemptuous practice of insisting on the issuance of police permit for political meetings and rallies in Nigeria.
Notwithstanding that the provisions of the Public Order Act relating to the issuance of permit for holding public meetings and processions have been struck down the Constitution has empowered governors to issued directives to commissioners of police with respect to public order and security in their respective states.
This was confirmed by the Supreme Court in the case of Attorney-General of Anambra State v. Attorney-General of the Federation. (2005) 9 NWLR (PT 931) 572 at 616 where Uwais CJN (as he then was) 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.”
Following the aforesaid judgment of the Federal High Court, the Olusegun Obasanjo Administration ensured that the protests organized by the Nigeria Labour Congress in 2005 against incessant hike in the prices of petroleum products were not disallowed by the police.
In the same vein, the then Acting President, Dr. Goodluck Jonathan, ensured that the rallies convened by the Save Nigeria Group in Lagos and Abuja in 2010 to protest the coup of the cabal that seized power when the late President Umaru Yaradua was in a state of coma in a foreign hospital were not attacked by the Police. Since democracy admits of freedom of expression the holding of dissent, protests, marches, rallies and demonstrations the right of Nigerians to freedom of expression should not be enjoyed on the basis of the whims and caprices of the ruling class.
In the light of the foregoing, it is submitted, without any fear of contradiction that the power to issue licence or permit for holding public meetings, assemblies and processions was never vested in Inspector-General of Police and Police Commissioners but in the State Governors.
Police permit which is a relic of colonialism has been annulled on the ground of its inconsistency with the provisions of the Constitution and the African Charter on Human and Peoples’ Rights on freedom of assembly, association and expression. To that extent, the disruption of public meetings and rallies by the police and other security agencies ought to be resisted by Nigerians as it is illegal and contemptuous.