Can Police Punish Unlawful Protesters? 

Can Police Punish Unlawful Protesters?  Daily Law Tips (Tip 736) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

One of the benefits of democracy (especially in theories) is the separation of power and the respect for rule of law. The three (3) arms of government stick to their constitutionally provided roles and above all, every person is under the law. Among the popular rights in a democracy are the fundamental human rights, which include the right to a peaceful protest. This implies that there could an unpeaceful protest, too and raises some questions. This work attempts to  answers the following questions; “In protecting lives and property, can the Nigeria Police punish unlawful protesters?”, “When is a protest unlawful?” and “Who can punish unlawful protesters?”.

Unlawful Protests, Protesters and the Nigeria Police Force:  

While a protest is a verbal or non-verbal expression of disapproval and objection, it can be lawful or unlawful. In Nigeria, by a combination of fundamental human rights, the right to protest is a fundamental human right.  Clearly, two (2) fundamental human rights (the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association) make up the right to protest in Nigeria.

The Igbo theory of “Egbe belu, Ugo Belu” reiterates the need for equality and equity. Direct translation of “Egbe belu, Ugo Belu” is “Let a Kite and an Eagle all perch” and it means let all persons (rich or poor, strong or weak) be treated equally. This is same ideology that led the forging of the principles of rule of law, so that everyone is below the law and everyone respects everyone’s rights. This also ensures that no person is allowed to violate the rights of another in the exercise of his/her own rights. On this foundation, fundamental human rights are no excuse for violation of any democratic laws. And, fundamental human rights have constitutionally approved circumstances and procedures for their suspension and limitation. Hence, although protest is a human right it becomes unlawful when unlawfully conducted in a manner that rights of others are violated. Where a protest is unlawful, police have a role to play in stopping the protesters but not in punishment of protesters.

A protest is expected by law to be peaceful and not destructive. Unpeaceful protest is not protected by human rights rather it is a violation of laws in Nigeria. Unpeaceful protest is better referred to as a “RIOT”. Like any other violation of law, there must be a punishment of rioters (participants in unlawful protest) after a court hearing and upon the order (judgment) of a court of law.

Unlawful protesters are never to be punished by law enforcement agents rather they are to be arrested and prosecuted in court, so that a court of competent jurisdiction will issue punishment, where the protesters are found guilty. Law enforcement agents (including, the Police) are not empowered to punish offenders. However, law enforcement agents are empowered to apply reasonable force in ending unlawful protest (riots). The key thing is reasonableness, so a police officer should not apply more force than necessary or purposefully injure protesters that are no harm to him or the public. For the avoidance of doubt, beating/ maltreatment of arrested/detained protesters is unlawful and the concerned police officers (law enforcement agents) should be prosecuted.

Conclusion:

Peaceful protests are lawful in Nigeria. No person needs approval of any government for a peaceful protest to be held in Nigeria. No human right in Nigeria needs the approval of any person before it can be enjoyed. The issue of whether any approval is needed before a peaceful protest can be held in any part of Nigeria has long being resolved by Nigerian courts. The archaic law  (Public Order Act) that the Nigeria Police relies on to claim that police permission is needed before a protest has been declared invalid by Nigerian courts. Any person in Nigeria can protest but where a protest becomes violent it is unlawful and participants can be arrested and prosecuted in a court of law. It is only a court of law that can issue punishment and not any law enforcement officer. Any law enforcement agent that punishes any person in Nigeria has committed an criminal offence punishable with not more than 25 years imprisonment and should be prosecuted.

References:

1. Section 1, 2, 3, 4, 5, 6, 33, 34, 39, 40, 41, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 3, 4, and 5 of the Police Act, 2020
3. Sections 2, 3, 7, 8 and 13 of the Anti-Torture Act, 2017
4. Sections 1, 2, 3, 4, 69, 70, 71 and 72 of the Criminal Code Act, 1916.
5. Sections 1, 3, 4, 5, 100, 105, 106 of the Penal Code Act, 1960
6. Sections 1, 2, 3, 7, 9 and 10 of the Riot (Damages) Act, 1963.
7. Sections 1, 2, 3, 4, 10, 18, 19 and 20 of the Riot Damage Act, 1958.
8. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of RANSOME-KUTI & ORS v. AG FEDERATION & ORS (1985) LPELR-2940(SC)
9. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of AGBAI & ORS v. OKOGBUE (1991) LPELR-225(SC).
10. The judgment of the Supreme Court of Nigeria (on when and why fundamental human rights can be restricted/suspended) in the case of DOKUBO-ASARI v. FRN (2007) LPELR-958(SC).
11. The Judgement of the Court of Appeal of Nigeria (on the Unconstitutionality of the Public Order Act) in the case of Inspector-General of Police v. All Nigeria Peoples’ Party (2008) WRN 65
12. The Judgement of the Federal High Court of Nigeria (on the Unconstitutionality of the Public Order Act) in the case of All Nigeria Peoples Party & Ors. v. Inspector General of Police (2006) CHR 181
13. Judgment of the Supreme Court of Ghana (on that no permit or license is needed for protests) in the case of of New Patriotic Party v. Inspector-General of Police, Accra (1992-1995) GBR 585.
14. Onyekachi Umah, “When Can A Protest Become A Riot?” (LearnNigerianLaws.com, 6 November 2020) <https://sabilaw.org/when-can-a-protest-become-a-riot/> 15 February 2021.
15. Onyekachi Umah, “#EndSarsNow: Punishment For Police (SARS) Torture” (LearnNigerianLaws.com, 6 October 2020) <https://sabilaw.org/endsarsnow-punishment-for-police-sars-torture/> accessed 15 February 2021.
16. Onyekachi Umah, “#EndSarsNow: Nigeria Police Lacks Power To Punish” (LearnNigerianLaws.com, 7 October 2020) <https://sabilaw.org/endsarsnow-nigeria-police-lacks-power-to-punish/> accessed 15 February 2021.
17. Onyekachi Umah, “#EndPoliceBrutality: How To Sue the Nigeria Police Force and Police Officers” (LearnNigerianLaws.com, 14 October 2020) <https://sabilaw.org/endpolicebrutality-how-to-sue-the-nigeria-police-force-and-police-officers/> accessed 15 February 2021.
18. “Demand justice for Police Brutality in Nigeria” (Amnesty International) <https://www.amnesty.org/en/get-involved/take-action/nigeria-end-impunity-for-police-brutality-end-sars/> accessed 15 February 2021.
19. Onyekachi Umah, “Who Can Be Lawfully Killed In Nigeria?” (LearnNigerianLaws.com, 26 October 2020) <https://sabilaw.org/who-can-be-lawfully-killed-in-nigeria/ > accessed 3 November 2020.
20. Femi Falana, “Police Permit Not Required For Rallies in Nigeria” (Premium Times, 23 January 2014) <https://www.premiumtimesng.com/opinion/153860-police-permit-required-rallies-nigeria.html> accessed 14 October 2020.
21. Onyekachi Umah, “Can A Person With A Nigerian Flag Be Shot Or Killed?” (LearnNigerianLaws.com,23 October 2020) <https://sabilaw.org/can-a-person-with-a-nigerian-flag-be-shot-or-killed/ > accessed 3 November 2020
22. Onyekachi Umah, “#EndPoliceBrutality: When & How Can Government Prohibit Protest In Nigeria?” (LearnNigerianLaws.com, 19 October 2020) <https://sabilaw.org/when-and-how-can-government-prohibit-protest-in-nigeria/ > accessed 3 November 2020.
23. Onyekachi Umah, “#EndPoliceBrutality: The Right To Protest Is A Human Right.” (LearnNigerianLaws.com, 15 October 2020) <https://sabilaw.org/endpolicebrutality-the-right-to-protest-is-a-human-right/ > accessed 3 November 2020.
24. Onyekachi Umah, “#EndPoliceBrutality: Do You Need A Police Permit To Protest?” (LearnNigerianLaws.com, 16 October 2020) <https://sabilaw.org/endpolicebrutality-do-you-need-a-police-permit-to-protest/> accessed 3 November 2020.
25. October 2020. 1 Onyekachi Umah, “Does The President/Governors Have Powers To Lockdown Any Part Of Nigeria Or Restrict Human Rights?” (Daily Law Tips [Tip 537]) <https://sabilaw.org/does-the-president-governors-have-powers-to-lockdown-any-part-of-nigeria-or-restrict-human-rights-daily-law-tips-tip-537-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
26. Onyekachi Umah, “Human Rights That Can Never Be Restricted Even In War, Pandemic or State of Emergency (Daily Law Tips [Tip 539]) <https://sabilaw.org/human-rights-that-can-never-be-restricted-even-in-war-pandemic-or-state-of-emergency-daily-law-tips-tip-539-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 18 October 2020
27. Onyekachi Umah, “Duty of Government to Pay Compensation for Damages Caused By Riot.” (LearnNigerianLaws.com, 4 November 2020) <https://sabilaw.org/duty-of-government-to-pay-compensation-for-damages-caused-by-riot/> accessed 15 February 2021.
28. Onyekachi Umah, “Who Pays For Properties Damaged or Lost In A Riot In Nigeria” (LearnNigerianLaws.com, 6 August 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-157-who-pays-for-properties-damaged-or-lost-in-a-riot-in-nigeria/ > accessed 3 November 2020.
29. Onyekachi Umah, “List of Fundamental Human Rights In Nigeria.” (LearnNigerianLaws.com, 22 October 2020) <https://sabilaw.org/list-of-fundamental-human-rights-in-nigeria/> accessed 15 February 2021.
30. Onyekachi Umah, “Does The President/Governors Have Powers To Lockdown Any Part Of Nigeria Or Restrict Human Rights?” (Daily Law Tips [Tip 537]) <https://sabilaw.org/does-the-president-governors-have-powers-to-lockdown-any-part-of-nigeria-or-restrict-human-rights-daily-law-tips-tip-537-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
31. Chris Admin, “Onyekachi Umah Speaks To ChannelsTv On SARS & The New Police Act” (LearnNigerianLaws.com, 9 November 2020) <https://sabilaw.org/onyekachi-umah-speaks-to-channelstv-on-sars-the-new-police-act/> accessed 15 February 2021.
32. Onyekachi Umah, “What Is The Punishment For Any Person Including Police Officers That Tortures Another Person” (LearnNigerianLaws.com, 18 December 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-251-what-is-the-punishment-for-any-person-including-police-officers-that-tortures-another-person/> accessed 15 February 2021.
33. Onyekachi Umah, “Is Obeying “Orders From Above” a Defence for Torture in Nigeria” (LearnNIgerianLaws.com, 7 September 2019) <https://sabilaw.org/is-obeying-orders-from-above-a-defence-for-torture-in-nigeria-daily-law-tips-tip-409-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
34. Onyekachi Umah, “Being Present During Torture Without Participating In It, Is A Crime” (LearnNigerianLaws.com, 25 November 2019) <https://sabilaw.org/being-present-during-torture-without-participating-in-it-is-a-crime-daily-law-tips-tip-464-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
35. Onyekachi Umah, “New Punishment for Security Officers Involved in Torture in Nigeria.” (LearnNigerianLaws.com, 27 August 2017) <https://sabilaw.org/new-punishment-for-security-officers-involved-in-torture-in-nigeria-daily-law-tips-tip-401-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
36. Onyekachi Umah, “Watching Torture but not Participating in it, is Torture.” (LearnNigerianLaws.com, 19 November 2019) <https://sabilaw.org/watching-torture-but-not-participating-in-it-is-torture-daily-law-tips-tip-460-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
37. Onyekachi Umah, “Any Security Agency’s Manual/Protocol that Allows Torture Even for National Security Cases is Unlawful and its Officers are Liable.” (LearnNigerianLaws.com, 11 September 2019) <https://sabilaw.org/any-security-agency-s-manual-protocol-that-allows-torture-even-for-national-security-cases-is-unlawful-and-its-officers-are-liable-daily-law-tips-tip-412-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021
38. Direct access to previous works on Torture in Nigeria <https://sabilaw.org/?s=torture+>
39. Direct access to previous works on Nigeria Police Force <https://sabilaw.org/?s=police+>

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Feel free to reach the author, ask questions or make inquiries on this topic or any other legal issues via onyekachi.umah@gmail.com or +2348037665878.

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