#EndPoliceBrutality: When & How Can Government Prohibit Protest In Nigeria? Daily Law Tips (Tip 678) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
Introduction:
There are several fundamental human rights in Nigeria. Fundamental human rights are contained in the constitution of Nigeria and as such are also constitutional rights. So, a change or alteration of fundamental human rights requires constitutional amendment. Although fundamental human rights are sacrosanct, they are not absolute and impeccable. There are some fundamental human rights that can be restricted and suspended in Nigeria. Also, there are some fundamental human rights that cannot be restricted, suspended or limited by any person, government or circumstance.
A ban on protest in Nigeria is either an unlawful violation of fundamental human rights or a lawful restriction of fundamental human rights. This work provides an overview on the nature of fundamental human rights, the list of fundamental human rights, the difference between violation of human right and restriction of human rights, the rights that can be restricted and the rights that cannot be restricted, how and when rights can be restricted and the legal implication of a ban on protest in Nigeria.
The Fundamental Human Rights on Protest:
Across the world, fundamental human rights are the entitlement of persons, they are legally provided by law and cannot be ordinarily denied by any person or government. Fundamental human rights are basic, elementary, mandatory, compulsory and unshakable entitlements of persons. Fundamental human rights are never purchased rather acquired by being a person (human being or corporate being).
Protest is simply the expression of disapproval and objection. It can come in different forms, verbal, written, physical, gesture, social media and others. Both under the constitution of Nigeria and under the African Charter on Human and People’s Rights, persons in any part of Nigeria have the fundamental human right to privately and publicly protest over any issue, any time and any day.
A protest can be physical and even remote (social media). Looking at the nature of a protest (physical protest), there will be physical meeting/assembly, songs, chanting, walks and expression of idea/view. All these are protected by several fundamental human rights in Nigeria. A combination of several fundamental human rights, makes up the Right to Protest. Specifically, persons in Nigeria, have right to protest flowing from the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association.
It is important to also note that there is no need or requirement for any permission to protest in any part of Nigeria. Protest is free and lawful, it is protected by the constitution of Nigeria. It is a fundamental human right of persons in Nigeria to be expressive and to propagate their views and ideas. Like any lawful event, protesters must ensure that their protests and actions are peaceful.
In the past, the Nigeria Police Force claimed that protesters needed consent or permit from Governors and Nigeria Police Force while relying on the Public Order Act. The Public Order Act of 1979 is rather an undemocratic federal law (now declared invalid) made since 1979 that requires protesters to seek license/permission from the Governor of the state where protest is to be held at least within 48 hours before the protest.
By that federal law, if the Governor of a state believes that public peace will not be violated, then the Governor may direct a superior police officer to grant permission to the protesters. The federal law (the Public Order Act) is contrary to the constitution of Nigeria since it sets a barrier to the enjoyment of fundamental human rights of protesters in Nigeria. It seeks to contradict the Constitution of Nigeria by violating the fundamental human rights and any law that attempts to do so, becomes invalid immediately.
List of Fundamental Human Rights In Nigeria:
The fundamental human rights in Nigeria are contained in the Constitution of Nigeria, 1999 and also in the African Charter on Human and People’s Rights. The African Charter on Human and People’s Rights has expanded the fundamental human rights in Nigeria. The fundamental human rights contained in the constitution of Nigeria are: Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and then, Right to Acquire and Own Immovable Property anywhere in Nigeria.
These rights should not be violated by any person, including law enforcement agencies or agents in any part of Nigeria. Consequently, where there is a violation or even mere attempted violation of a fundamental human right, the victim and any other person on behalf of the victim, can seek justice against the violator.
Difference Between the Violation of Human Rights and the Restriction of Human Rights:
There is a huge difference between the violation of fundamental human rights and the restriction of fundamental human rights. Although fundamental human rights are golden, there are not absolute. They are not absolute because there are specific circumstances where some fundamental human rights can be restricted. However, they are no circumstance or excuse for violation or breach of any fundamental human right.
In both the violation of fundamental human rights and the restriction of fundamental human rights, people are denied of their fundamental human rights. While the restriction of fundamental human right is a lawful denial of fundamental human rights, the violation of fundamental human right is an unlawful denial of fundamental human rights.
The violation of fundamental human rights is an illegal, unlawful breach and interference with any fundamental human rights. It means that without necessary constitutional powers, a person or government has gone contrary to the fundamental human rights of a person. The restriction of fundamental human rights refers to the lawful suspension and limitation of fundamental human rights within the constitutionally approved circumstance by the approved person following the approved process and procedure.
Everything about a restriction of fundamental human right, must be inconformity with the constitution of Nigeria. Where a restriction does not conform with the constitution of Nigeria, the restriction is rather a violation of fundamental human rights and the constitution.
The Fundamental Human Rights That Can Be Restricted:
Since fundamental human rights are not absolute and final, the same constitution that created fundamental human rights, provides certain fundamental human rights that can be restricted. The restriction of fundamental human rights simply means the lawful denial of fundamental human rights. The Constitution knows that there may be circumstances, where the country may need to interfere with some fundamental human rights of persons in Nigeria, for the common good of the entire country.
For example, imagine a Nigerian that has been convicted of killing people in Nigeria by a court, and the murder is clamoring that he has the Right to Life and that as such no court should sentence him to death. Also, imagine that Nigeria is at war and a Nigerian businessman in Lagos is shouting that he must be allowed to fly around Nigeria in his private jet because he has the right to freedom of movement. In the above the first example, it is in the best interest of Nigeria and all Nigerians, to restrict the fundamental human right to life of a murderer in order to make the murderer serve his punishment. Also, flowing from the second example, it is in public interest to restrict movement of persons during war to reduce collateral damage (civilian casualties) and tactical complication for the Nigerian armed forces.
As provided by the constitution of Nigeria, there are fundamental human rights that can be restricted in any part of Nigeria under certain circumstances. The fundamental human rights created by the Constitution of Nigeria, that can be restricted under certain circumstances, are: Rights to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and Right to Acquire and Own Immovable Property anywhere in Nigeria.
The Fundamental Human Rights That Cannot Be Restricted:
Arguably, although fundamental human rights are not absolute, there are few fundamental human rights that are absolute and impeccable. There are some fundamental human rights that can never ever be lawfully and constitutionally restricted by any person or government in Nigeria, even during war.
There really two (2) fundamental human rights that cannot be restricted or suspended even in any part of Nigeria. It is the Right not to held guilty of a non-existing offence or to be imposed heavier penalties contrary to law (both are under the Right to Fair Hearing). It is expressly exempted or omitted from the constitutionally provided restrictions to fundamental human rights. An order of court, state of emergency or a democratic law cannot override, restrict or suspend these particular rights.
When Some Fundamental Human Rights Can Be Restricted:
The Constitution of Nigeria provides specific circumstances when some fundamental human rights can be restricted. It also provides how the rights can be restricted in any part of Nigeria and the person that can make such restriction. Generally, there are only three (3) circumstances, where some fundamental human rights in Nigeria can be restricted.
The circumstances are where there is an Order of Court or a State of Emergency or a democratic law prohibiting a specific fundamental human right. For example, with an order of court (judgement) the right to life of a murderer can be restricted. In a state of emergency, the right to freedom of movement can be restricted. Through a democratic law, the right to Freedom from Discrimination can be restricted.
a. Legislative Circumstance
Specifically, seven (7) fundamental human rights can be restricted by any law in Nigeria, where such law is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health as well as protection of lives and freedom of other persons.
The concerned six (6) out of seven (7) fundamental human rights are: Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement and Right to Acquire and Own Immovable Property anywhere in Nigeria.
Also, Right to Freedom from Discrimination can be restricted by any law, where the law imposes restrictions with respect to the appointment of any person to any office under the State or as member of the armed forces of Nigeria or the Nigeria Police Force or any office for service of a statutory corporation.
b. Executive Circumstance:
Aside the above list of seven (7) fundamental human rights, there are two (2) other rights that can be restricted during a state of emergency. Rights to Life and Right to Personal Liberty can be restricted but only during periods of state of emergency and in line with an Act (a federal law) made by the National Assembly for measures that are reasonably justifiable for the purpose of dealing with situations that exist during such periods of emergency. However, restrictions to Right to Life must be due to death resulting from wars or ordered by a court of competent jurisdiction.
c. Judicial Circumstance:
Looking at judicial powers, a court of competent jurisdiction in Nigeria, can in the interest of justice, make orders to restrict the fundamental human rights of persons in Nigeria. An order of a court can affect fundamental human rights, including; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and then, Right to Acquire and Own Immovable Property anywhere in Nigeria.
How Some Fundamental Human Rights Can Be Restricted:
Having shown the three circumstances, when some fundamental human rights can be restricted and suspended in Nigeria, it is important to explain the mechanism, process and procedure for such restriction to be constitutionally executed. Any departure from the constitutionally approved processes of restricting fundamental human rights is on its own a violation of fundamental human rights and the constitution. In examining the circumstances for the restriction of fundamental human rights in Nigeria, it will be revealed that there are only three (3) persons that can lawfully restrict fundamental human rights under strict procedures. The persons are: the Judiciary, the Legislatures and the Executives.
a. Under an Order of Court:
Courts in Nigeria are empowered to determine disputes and make judgments that may affect rights of person in Nigeria. The highest court in Nigeria is the Supreme Court of Nigeria and its judgment if final. Where there is an order or judgment from any court, the decision of the court is binding unless and until there is a contrary order/judgement from a more senior court on the case.
Through, an order of a court, fundamental human rights can be restricted and suspended. The person, whose fundamental human right is to be restricted must be informed and be part of the processes and procedures of court except where the person refuses and fails to be part of such. Also, the concerned court must give fair hearing to all person before it and must entertain only cases within its jurisdiction. The existence of a valid order/judgments of a court of competent jurisdiction is one of the three circumstances where fundamental human right can be restricted in Nigeria.
b. Under a State of Emergency:
The periods of state of emergency are periods where there is in force a Proclamation of State of Emergency that has been declared by the President of Nigeria for Nigeria or any part of Nigeria. Such declaration by the President may be through an instrument published on the Official Gazette of the Government of the Federation.
The Official Gazette of the Government of the Federation containing the proclamation must be immediately transmitted to the Senate President and the Speaker of the House of Representatives, for them to convene meeting of parliament to pass a resolution approving or refusing the proclamation of the President. The President of Nigeria has powers to declare state of emergency for Nigeria or part of Nigeria, also subject to the approval of the National Assembly. A governor can request the President to proclaim a state of emergency for his state with approval of his state House of Assembly.
Note that the President can only make proclamation of a state of emergency when the entire Nigeria is at war, in danger of being invaded/war, actual breakdown or in danger of breakdown of public order and public safety across Nigeria or any part to the extent that extraordinary measures are needed to restore peace and security, natural disaster or natural calamity or in danger of such in any community in Nigeria, public danger that may affect existence of Nigeria or upon request from a governor for state of emergency in his state.
The constitutional procedures for proclaiming state of emergency must be adhered to for there to be a valid state of emergency in Nigeria or in any part of Nigeria. Where there is state of emergency, some fundamental human rights may be restricted/suspended for the public good of all. Where there is a restriction of fundamental human rights without following the constitutional procedure, it is rather a violation of fundamental human rights and can be challenged in courts.
c. Under a Democratic Law:
Not all federal or state laws are democratic laws. By the way, some laws made or adopted by a democratic government may not be democratic. For instance, few years ago, the Nigeria Police Force assumed that all person that seek to protest in Nigeria must obtain permit from the Nigeria Police Force. The Nigeria Police Force was relying on a federal law (the Public Order Act of 1979).
The federal law expressly demanded that protesters must have permits from the Governor of the state – also the Governor can delegate his powers to the Commissioner of Police- ahead of their protest. Later, the federal law was declared invalid for contradicting the Constitution of Nigeria by violating some fundamental human rights (particularly the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association).
Specifically, by a 2006 judgment of the Federal High Court, the Public Order Act was declared invalid sequel to the argument of Mr. Femi Falana, SAN. The same judgment was also affirmed (supported) on appeal by the Justices of the Court of Appeal. The Court of Appeal stated 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.”
So, this last circumstance, expects fundamental human rights to be restricted through a democratic law. By the way, a democratic law refers to a federal or state law restricting fundamental human rights but is reasonably justifiable in a democratic society in the interest of defence, public good, public health or public safety. Where there is a democratic law, fundamental human rights can be suspended and restricted as will be provided in such law. As was the case of the Public Order Act of 1979, where an undemocratic law attempts to violate any fundamental human right, the undemocratic law becomes dead on arrival.
Ban on Protest in Nigeria:
Since the right to protest in Nigeria is born by a combination of fundamental human rights (specifically, the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association), the right to protest is fundamental human right. Like any other fundamental human right, an attempt to violate the right to protest is illegal, unlawful, unconstitutional and challengeable in court.
Also, any restriction on the right to protest must be in line with the constitutional process and procedure for restriction of fundamental human rights. A ban on protest in Nigeria is either a violation of fundamental human rights or a restriction of fundamental human rights. Strictly adherence to constitutional provisions for restriction of fundamental human rights, makes the whole difference.
As shown above, the Right to Freedom of Expression and the Press and the Rights to Peaceful Assembly and Association are fundamental human rights, that although they cannot be violated, they can be restricted in strict adherence to the constitution of Nigeria. They can only be lawfully restricted by the Judiciary, the Legislatures and the Executives through a valid order of court, a state of emergency or under a valid democratic law, respectively.
Hence, there can be a ban on protest in Nigeria, where there is a valid order of a court of competent jurisdiction or where there is a valid state of emergency or where there is a valid democratic law prohibiting protest. In the absence of all the three (3) circumstances, there cannot be a valid prohibition (ban) of protest in any part of Nigeria.
Recommendation and Conclusion:
A ban on protest in Nigeria is either a violation of fundamental human rights or a restriction of fundamental human rights. The Right to protest is made up of fundamental human rights, (the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association). As such, the right to protest must be respected as a fundamental human right to avoid a violation of same.
Since the Right to Freedom of Expression and the Press and the Right to Peaceful Assembly and Association are rights that can be restricted, it means that the right to protest can be restrict (there can be a ban on protest). However, there must be a strict adherence to the constitutionally approved process and procedure for the restriction of fundamental human rights before there can be a lawful ban on protest in any part of Nigeria.
Any attempt to ban protest in any part of Nigeria, without strictly adhering to the constitutional process for restriction of fundamental human rights is at best a violation of fundamental human rights of all protesters or proposed protesters. Huge consequences follow any violation of human rights and the best venue to seek remedy is the court of law. #EndPoliceBrutality
My authorities, are:
- Sections 1, 2, 3, 4, 5, 6, 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 305, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
- Sections 1, 2, 3, 12 and 13 of the Public Order Act, 1979.
- 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)
- 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)
- The judgment of Supreme Court of Nigeria (on State of Emergency) in the case of ADEGBENRO v. AG OF THE FEDERATION & ORS (1962) LPELR-25118(SC)
- The judgment of Supreme Court of Nigeria (on State of Emergency) in the case of WILLIAMS v. MAJEKODUNMI (No.2)(1962) LPELR-25044(SC)
- 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
- 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
- The 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.
- Onyekachi Umah, “How To Legally Declare State Of Emergency Over COVID-19 In Nigeria Or Any State.” (Daily Law Tips [Tip 570]) <https://sabilaw.org/how-to-legally-declare-state-of-emergency-over-covid-19-in-nigeria-or-any-state-daily-law-tips-tip-570-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
- 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.
- “Human Rights” (Stanford, 14 October 2020) <https://plato.stanford.edu/entries/rights-human/> accessed 14 October 2020.
- 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.
- Aisha Salaudeen, “Kanye West and other stars join global protests over police brutality in Nigeria” (CNN, 13 October 2020) <https://edition.cnn.com/2020/10/13/africa/global-end-sars-protests-nigeria-intl/index.html > accessed 14 October 2020.
- Lemmy Ughegbe, “Nigeria: Public Order Act Unconstitutional, Says Law Reform Commission” (All Africa, 14 October 2020) <https://allafrica.com/stories/201411140986.html> accessed 14 October 2020.
- Temilade Adelaja, “Thousands of Nigerians Demand Police Overhaul for Sixth Day” (Aljazeera, 13 October 2020) <https://www.aljazeera.com/news/2020/10/13/thousands-of-nigerians-demand-police-reforms-for-sixth-day> accessed 14 October 2020.
- 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
- Victor Azubuike, “Wike bans End SARS protests in Rivers State” (Daily Post, 13 October 2020) <https://dailypost.ng/2020/10/13/wike-bans-end-sars-protests-in-rivers-state/> accessed 15 October 2020.
- Onyekachi Umah, “Nigeria Has No Law Against Public Gathering During Covid-19 Era” (LearnNigerianLaws.com, Daily Law Tips [Tip 547]) <https://sabilaw.org/nigeria-has-no-law-against-public-gathering-during-covid-19-era-daily-law-tips-tip-547-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
- Onyekachi Umah, “Can “NCDC” Make Regulations For Nigeria?” (Daily Law Tips [Tip 558]) <https://sabilaw.org/can-ncdc-make-regulations-for-nigeria-daily-law-tips-tip-558-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
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