By Aare Afe Babalola, SAN,
The Constitution of the Federal Republic of Nigeria, 1999 (as amended), under Section 40 thereof, guarantees the right of every person to peaceful assembly and to associate with other persons.
However, going by historical antecedents, this right is one of the most abused in Nigeria. And all demonstrations, particularly when such is perceived as anti-government, have been met with stiff oppositions by armed law enforcement officials, usually with the mandate to disperse such public remonstrations by all means necessary.
In view of this, I will, in this edition, examine the legal, practical, and statutory framework of the constitutionally guaranteed right to peaceful assembly within the Nigerian polity.
History of protests in Nigeria: Protests and agitations are intrinsic to the Nigerian system of governance and from the pre-and post-colonial, pre-and post-independence epochs, protests and direct confrontations with the traditional or political class are the veritable tools of the masses to voice out their discontent against injustice, ineptitude, insecurity, and economic fails. However, these actions have either resulted in a definitive, anticipated change or have further sparked an even bigger chain of reactions.
Back in the Old Oyo Empire, the Alaafin of Oyo was then a very powerful monarch, but the system of government rested on the Ogboni to avoid excesses by the Alaafin. The Ogboni played this role very well to the extent that when an Alaafin flouts the separation of powers in place; he is sent a calabash, which by implication is an order to commit suicide. This was the very case of Alaafin Aole when he was sent a calabash in 1817 by his famous war general Afonja, who felt he was a weakling and unfit to rule.
Between 1925 and 1930, women in the Eastern region of colonial Nigeria stood their ground and kicked against the intolerable tax levy imposed by the colonial government. Since protests of this kind were unheard of prior to this time, many women were assaulted, beaten, and arrested.
As soon as this protest started, news soon got to Aba on December 6, 1929, leading to the famous Aba Women’s Riot. Simultaneously, the entire Eastern region was engulfed by protests ably led by women. In October 1946, the Abeokuta Ladies Club under the leadership of Madame Olufunmilayo Ransome-Kuti submitted a list of demands to the Alake of Egbaland, Oba Sir Ladapo Ademola II and one of their demands was the abolition of tax on women in Abeokuta among other issues around their welfare.
Their demands were ignored; Madame Olufunmilayo was arrested and fined 3000 Pounds or risk going to prison. On November 29, 1947, she led a protest of 10,000 women to the palace of the Alake of Egbaland. They camped around the palace for more than two days, sleeping, cooking, and conducting all their affairs around the palace grounds. The pressure was so huge on the colonial government that they had to abolish the tax laws and the Alake of Egbaland abdicated the throne on January 3, 1949.
The #EndSARS protest was, by and large, a unanimous voice of Nigerians against police brutality and extra-judicial killings. For days, it was peaceful until the night when the protesters were reportedly attacked. The recent protests and agitations held in Lagos for the declaration of the Yoruba nation was reportedly marked by heavy police presence set to quell the protests, and the reported killing of a girl by a stray bullet. Against these historical antecedents, it is pertinent to review the Nigerian statutory regime on protests and peaceful assembly.
Statutory regimes on the right to protest: Without a doubt, protests play an important part in the civil, political, economic, social, and cultural life of all societies. As seen from history, protests have more often than not inspired positive social changes and improved protection of human rights, and they continue to help define and protect civic space in all parts of the world. Protests encourage the development of an engaged and informed citizenry and strengthen representative democracy by enabling direct participation in public affairs.
They enable individuals and groups to express dissent and grievances, to share views and opinions, to expose flaws in governance, and to publicly demand that the authorities and other powerful entities rectify problems and are accountable for their actions. This is especially important for those whose interests are otherwise poorly represented or marginalized. In the Nigerian context, it is important to review the statutory backing, international and local, on the right to peaceful assembly and protests.
Besides the 1999 Constitution, the 1966 International Covenant on Civil and Political Rights, ICCPR, to which Nigeria is a State Party, equally governs the right of peaceful assembly and protests. Article 21 of the ICCPR provides that: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 11 of the African Charter on Human and Peoples’ Rights makes similar provisions.
Notwithstanding these, the Public Order Act, 1979 was promulgated to regulate assemblies in Nigeria. While section 1(2) of the Act mandates the grant of a license by the Governor of a State in order to hold peaceful protests, section 2 empowers the police to stop any assembly for which no license has been issued. Fortunately, the provision of the Public Order Act has received judicial interpretation in the case of Inspector General of Police v. All Nigeria Peoples Party & Ors. (2007) 18 NWLR (Pt.1066) 457 C.A wherein the Court of Appeal held to the effect that the issuance of licenses is no longer mandatory to hold peaceful protests in Nigeria, except the organisers wish to receive police protection. The Court held, in the following words:
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 recognised and deeply entrenched in the system of governance in civilised 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 (italics added for emphasis).
The use of firearms in curbing peaceful protests: International Law imposes a duty on the State and its law enforcement agencies to facilitate the enjoyment of the right of peaceful assembly. Accordingly, the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that: In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary. Notwithstanding this provision, Section 73 of the Criminal Code Act essentially empowers the police to “use all such force as is reasonably necessary” towards ensuring the dispersal of protesters; and where such force occasions harm or death to any person, the police officers shall not be liable in any criminal or civil proceeding.
Conclusion: Certainly, a greater injustice is done to a people whose rights to voice out their discontent against the leadership, particularly in a democratic society, is forcefully quashed. The government’s usual recourse to force of arms has constantly received a backlash from the international community. The 2019 Freedom House Index Report noted that “Rights groups have criticized federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups like the Islamic Movement of Nigeria, IMN, and the separatist group Indigenous People of Biafra, IPOB. In October 2018, soldiers responded to rock-throwing protesters from the IMN in Abuja, who were protesting the continued detention and charges against Ibrahim El-Zakzaky, by opening fire and killing as many as 45 people.
Reports such as this do not portray the most populous black nation – Nigeria – in the positive limelight in the international community. I, therefore, invite the government to take proactive steps in fostering a major review of the law, operational guidelines, and strategies in managing protests in Nigeria; to adopt international best practices, and to live by the wordings of the commencing statement of the Constitution which boldly declares that: “to live in unity and harmony as one indivisible and indissoluble sovereign nation under God dedicated to the promotion of inter-African solidarity, world peace, international cooperation, and understanding”.