#EndSARS Anniversary: No Law Against Protest in Nigeria - Falana

Femi-Falana

Femi Falana

Mr Femi Falana, a Senior Advocate of Nigeria and human rights crusader has argued that the threats against peaceful rallies oozing out of the Police Headquarters and State Commands are illegal. He argued in a 14 October statement that they constitute a gross infringement of the fundamental rights of the Nigerian people to freedom of expression and freedom of assembly. These are guaranteed by sections 38 and 40 of the Nigerian Constitution as well as articles 9 and 10 of the African Charter on Human and Peoples Rights Act.

He said this against the background of the first anniversary of #EndSARS protest slated for tomorrow, Wednesday, 20 October 2021.

In the case of the All Nigeria People’s Party v, Inspector-General of Police (2006) the Honourable Justice Anwuri Chiyere, as Falana argued, declared that a police permit as a precondition for holding rallies in Nigeria was illegal and unconstitutional. “Consequently, her ladyship granted an order of perpetual injunction restraining the Inspector-General of Police and other police officers from preventing Nigerian citizens from convening and participating in rallies.”

When the Police dragged the matter to the Appeal Court, it was dismissed in December 2007. In the unanimous decision of the Court, Falana said their Lordships described police permit as “a relic of colonialism” which is anomalous in a democratic society.

Based on the epochal judgment of the Court of Appeal the National Assembly, as Falana put it, amended the Electoral Act 2010 in March 2015 to impose a duty on the police to provide security for participants in public meetings and rallies. He added that for the avoidance of doubt, section 94 (4) of the Electoral Act 2010 (as amended) provides:

“Notwithstanding any provision in the Police Act, the Public Order Act 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.”

Furthermore, Section 83 (4) of the Police Establishment Act 2020 provides as follows:
“Where a person or organization notifies the police of his or its intention to hold a public meeting, rally or procession on a public highway or such meetings in a place where the public has access to, the police officer responsible for the area where the meeting rally or procession will take place shall mobilize personnel to provide security cover for the meeting, rally or the procession.”

#End SARS was a series of mass protests against police brutality in Nigeria. It was targeted at making the government disband the Special Anti-Robbery Squad (SARS), a unit of the Nigerian Police notorious for brutality. The exercise started in 2017 as a Twitter campaign using the hashtag #EndSARS to demand the disbanding of the unit by the Nigerian government.
It resurfaced in October 2020 as a result of more revelations on social media of the brutality of citizens by the Police.  The protests had a domino effect; they expanded in major cities of Nigeria and among Nigerians in Diaspora. It had a dramatic denouement on 20 October 2020 at the Lekki Toll Gate.

Read more on Falana’s speech at NECA House today:

GOVERNORS ARE IN CHARGE OF RALLIES NOT POLICE! 

By Femi Falana

The defunct All Nigeria Peoples Party applied to the Nigeria Police Force to hold rallies protesting the alleged rigging of the 2003 general election. The application was turned down by the Police Authorities. Convinced that the action of the Police could not be justified the ANPP proceeded with the plan to hold the rallies. The first in the series of rallies which held in Kano On September 22, 2003 was attended by the leaders of the party including General MohammaduBuhari (as he then was). Even though the rally was peaceful it was violently disrupted by the police. To put an end to such crude violation of the freedom of citizens to convene rallies without official harassment the ANPP and 10 other political parties instructed our law firm to challenge the disruption of the Kano rally.

We accepted the brief and filed the suit at the federal high court to challenge the constitutional validity of police permit as a precondition for exercising the freedom of expression and freedom of assembly guaranteed by sections 39 and 40 of the Constitution and articles 10 and 11 of the African Charter on Human and Peoples Rights Act. In defending the action the defendant contended that by failing to obtain police permit the conveners of the rally had violated the provisions of the Public Order Act. In the epochal judgment of the Court in the case of All Nigeria Peoples Party v Inspector-General of 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. Persons desirous of convening or collecting any assembly or meeting or of forming a procession in any public resort must apply and obtain the license 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.”

In upholding the fundamental rights of Nigerians to freedom of expression and assembly enshrined in sections 39 and 40 of the Constitution and Articles 10 and 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 these rights can be violated.

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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.” 

After declaring the specific sections 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:

“1.    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.

  1. 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 EnforcementAct (Cap 10) Laws of the Federation of Nigeria, 1990.
  2. 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.
  3. 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 for public meetings the Inspector-General of Police appealed to the Court of Appeal. In Inspector-General of Police v All Nigeria Peoples Party (2008) 12 WRN 65 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 each the state of the federation,  OlufunmilayoAdekeye 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 is hand.”

On the fundamental right of Nigerian citizens to assemble freely and protest without licence or permit issued by the police, 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.” 

 

In urging Nigeria to join other democratic societies in respecting the right of citizens to protest peacefully against the policies and activities of the government the learned Justice said:

“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 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.”

As the judgment of both the Federal High Court and Court of Appeal could not be faulted the authorities of the Nigeria Police Force did not appeal to the Supreme Court on the illegality of police permit and the limit of the enormous powers vested in State Governors under the Police Order Act. However, the apex court has had taken advantage of other cases to uphold the powers of State Governors with respect to the maintenance of law and order in all the States of the Federation. Thus, in the case of Attorney-General of Anambra State V Attorney-General of the Federation (2005) 9 NWLR (Pt 931) 572, 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.” 

Last year, some lawyers questioned the legal validity of the decision of 28 out of the 36 State Governors in the country to institute judicial commissions of inquiry to investigate serious allegations of police brutality after the #endsars protests in October 2021. I was compelled to draw the attention of such lawyers to the case of Chief GaniFawehinmi v. Ibrahim Babangida(2003) 12 WRN 1 where the Supreme Court held that the power to set a Tribunal of Inquiry is vested in state governors and that the power of the President to institute a commission of enquiry under the Tribunal of Enquiry Act is limited to the Federal Capital Territory. Consequently, while the State Governors set up the judicial commissions for each of the states the panel instituted by the President was limited the Federal Capital Territory.

In view of the foregoing, Governors should take control of the security situation in all states of the Federation. In particular, State Governors should henceforth exercise the exclusive powers conferred on them to manage public meetings, rallies and processions in line with the provisions of the Public Order Act and the relevant judicial authorities. Therefore, the Inspector-General of Police and Commissioners of Police should stop usurping the powers of State Governors to infringe on the fundamental right of the Nigerian people to protest peacefully against public policies considered inimical to their interests. State Attorneys-General are enjoined to ensure that police officers are prosecuted whenever they refuse to provide adequate security for participants in public meetings, rallies and processions in contravention of section 83 (4) of the Police Establishment Act, 2020 which provides as follows:

“Where a person or organization notifies the police of his or its intention to hold a public meeting, rally or procession on a public highway or such meetings in a place where the public has access to, the police officer responsible for the area where the meeting rally or procession will take place shall mobilize personnel to provide security cover for the meeting, rally or the procession.”