By Femi Falana
By a letter dated 21st May 2003, the All Nigeria Peoples’ Party had requested the Inspector-General of Police to issue police permits to its members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused by the police chief without any reason. The ANPP decided to hold the rallies. The first rally which held in Kano on the 22nd of September 2003 which was attended by General Muhammadu Buhari and other leaders of the ANPP was violently disrupted by the police on the ground that the organizers had not obtained a police permit.
The ANPP and 10 other opposition political parties instructed our law firm to challenge the constitutional validity of police permit for rallies in Nigeria. In the suit filed at the federal high court it was contended that provisions of the Public Order Act requiring permit for rallies were in conflict with the fundamental right of Nigerians to freedom of assembly and freedom of expression. In defending the action the police counsel maintained that the rally was stopped because it was not authorized by the Inspector-General of Police.
Fundamental right of Nigerians to freedom
In dismissing the defence of the Police the trial judge, Chinyere J. held that police permit was inconsistent 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.
According to the learned trial judge said “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 also 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 these rights can be violated.”
Even though the trial court confirmed that the governor of each state was the appropriate authority to grant permit under the Act the trial court did not hesitate to declare illegal and unconstitutional the provisions of the Public Order Act which require permit for public meetings and rallies. Consequently, the court proceeded to grant 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 the Inspector-General of Police appealed to the Court of Appeal. On a critical perusal of the Public Order Act, Olufunmilayo Adekeye J.C.A (as she then was) said that ‘’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.” (See All Nigeria Peoples Party & Ors. v. Inspector General of Police)
However, on the fundamental right of Nigerian citizens to assemble freely and protest without any inhibition whatsoever, Adekeye JCA proceeded to hold that “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.” 4
Recalling that the British colonial regime had introduced and imposed the Public Order Ordinance to stop the Nigerian people from protesting against foreign domination and exploitation Justice Adekeye was compelled to ask “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?”
On the fear usually expressed by the Police that a rally might be hijacked by hoodlums leading to a breach of the peace the Court was of the view that “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.”
Amending the Public Order Act
In his contribution to the leading judgment of the Court, 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 view of the aforesaid judicial pronouncements the authorities of the Nigeria Police Force have recognized the fundamental right of Nigeria to protest peacefully without police permit. Hence, in the Nigeria Police Code of Conduct 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.” Based on the Code the police did not disrupt the rallies convened by the Save Nigeria Group in 2010 to protest the seizure of power by a cabal when the Late President Umaru Yaradua was on admission in a foreign hospital. Although the rallies had culminated in his emergence as Acting President of the Republic, Dr. Goodluck Jonathan later turned round to deploy battalion of soldiers to stop the January 12, 2012 mass protests against the removal of fuel subsidy.
About a year later, the regime dispatched armed thugs to attack and disperse the BBOG members in Abuja for reminding the State of its responsibility to free the abducted Chibok girls. As if the barbaric attack was not enough the Nigeria Police Force banned public protests in the Federal Capital Territory. The illegal ban was successfully challenged at the Federal Capital Territory High Court in the unreported case of Hadiza Bala Usman &Ors v Commissioner of Police & Anor. (Suit No: FCT/HC/CV/1693/2014 of 30th October, 2014). In upholding our submissions the court held that “it is wrong for the counsel to the Respondent (IGP) to insist that the Applicants must obtain Police Permit before they can gather together for their peaceful protests.”
When public rallies were similarly banned in Abuja last year the BBOG members ignored it and continued their protests. Other aggrieved groups equally defied illegal police ban on public protests. In the circumstance, the National Assembly was compelled to amend the Public Order Act in line with the judgment of the Court of Appeal in IGP v ANPP (2008) 12 WRN 65. Thus, section 94 (4) of the Electoral Amendment Act, 2015 states that “Notwithstanding any provision in the Police Act, the Public Order and any regulation made thereunder or any other law to the contrary, the role of the Nigeria Police Force in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection 1 of this section.”
Incessant disruption of public meetings and rallies by the police
In conclusion, since democracy admits of freedom of expression, the right of Nigerians to hold protests, marches, rallies and demonstrations for or against the government should no longer be enjoyed at the whims and caprices of the ruling class. Therefore, the incessant disruption of public meetings and rallies by the police and other security agencies should always be resisted by the Nigerian people. As any of the fundamental rights guaranteed by the Constitution can only be abridged or restricted by a procedure permitted by law, a police officer who has information that any rally or demonstration may lead to a breakdown of law and order is advised to apply for a an injunctive relief in a competent court of law.