Organised Public Demonstration: Objecting To Official Policy Is Lawful

By 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 demonstrations 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 a 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 AlaafinAole when he was sent a calabash in
1817 by his famous war general Afonja, who felt he was weakling and
unfit to rule.

Between 1925-1930, 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 the 6th of December 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 amongst other
issues around their welfare.

Their demands were ignored; Madame Olufunmilayo was arrested and
fined 3000 Pounds or risk going to prison. On November 29th, 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 3rd January 1949. The #EndSars protests 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 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 recognised.

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 licence 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 licences 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 recognized 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 Crimimal 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 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 IMN [Islamic Movement of
Nigeria] 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 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”.

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LLD.
(Lond.)

By 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 demonstrations 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 a 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 AlaafinAole when he was sent a calabash in
1817 by his famous war general Afonja, who felt he was weakling and
unfit to rule.

Between 1925-1930, 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 the 6th of December 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 amongst other
issues around their welfare.

Their demands were ignored; Madame Olufunmilayo was arrested and
fined 3000 Pounds or risk going to prison. On November 29th, 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 3rd January 1949. The #EndSars protests 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 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 recognised.

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 licence 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 licences 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 recognized 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 Crimimal 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 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 IMN [Islamic Movement of
Nigeria] 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 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”.

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LLD.
(Lond.)