Posted in PERFECTLY LEGAL, THEY SAY IT BETTER

NONVIOLENT PROTEST AND THE LEGALITY OF THE PUBLIC ORDER ACT IN A DEMOCRATIC GOVERNMENT

By Joshua Onuekwusi Esq*

In light of the brouhaha generated over the planned protest by popular Nigerian musician Innocent Idibia known as “2 face” attributing the reasons for the protest under the following subjects: Education, Health, Transparency, Cost of Governance, Power and Unemployment which are, according to him, fundamental problems plaguing the Nigerian nation and in view of the censure of the planned protest by major government interest and security agencies; I took out time to explore and ponder on what the role of non-violent protest is in a democratic setting and the legality or otherwise of the Public Order Act under Nigeria extant laws.

Permit me to take brief detour of some historical nonviolent protest from the early 1930’s.

When Mohandas Gandhi began his famous Salt March on March 12, 1930, he could not have known the influence it would wield on the history of India and the world. Not only did it play a major role in India’s eventual freedom from British rule, but it also went on to inspire future protestors to incredible acts of nonviolent. Under British rule, Indians were prohibited from collecting or selling salt—Britain had a monopoly on that staple product, and taxed it heavily. Gandhi assembled his supporters in 1930 to march from his ashram to the Arabian Sea to collect salt from the ocean. The crowd snowballed along the way; more than 60,000 Indians were arrested for breaking the salt law. It was an ideal method of protest, because collecting salt was a completely non-violent activity and involved a commodity that was truly important to Indians. The protest continued until Gandhi was granted bargaining rights at a negotiation in London. India didn’t see freedom until 1947, but the salt satyagraha (his brand of civil disobedience) established Gandhi as a force to be reckoned with and set a powerful precedent for future nonviolent protestors, including Martin Luther King Jr.

By 1963, African-Americans had been freed from slavery for a century yet continued to live lives burdened by inequality in every realm of society. The March on Washington for Jobs and Freedom was intended to push lawmakers to pass legislation that would address these inequalities, and its organizers were so successful that more than 200,000 supporters turned out for the action—double their estimate. Martin Luther King Jr. delivered perhaps the most famous speech in American history, his “I Have a Dream” address, at the base of the Lincoln Memorial, and the leaders met with President Kennedy afterwards to discuss their goals. The march was credited with helping build support to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Occupy Nigeria was a non-violent sociopolitical protest movement that began in Nigeria on Monday, 2 January 2012 in response to the fuel subsidy removal by the Federal Government of President Goodluck Jonathan on Sunday, 1 January 2012. Protests took place across the country, including in the cities of Kano, Lagos, Abuja, and at the Nigerian High Commission in London. The protests were characterised by civil disobedience, civil resistance, strike actions, demonstrations and online activism. The use of social media services such as Twitter and Facebook was a prominent feature. Protesters shut petrol stations and formed human barriers along motorways. Nigeria’s main trade unions also announced an indefinite strike and mass demonstrations from Monday, 9 January 2012 unless the removal of a fuel subsidy is reversed which was eventually addressed by the then government.

A scholarly appraisal of nonviolent protest in the Nigerian context will reveal a disturbing discovery most particularly with regard to the draconian military era’s Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990. The Public Order Act has its origin from the United Kingdom. The Act was passed to control extremist political movements in the 1930’s such as the British Union of fascists. The Colonialists brought this obnoxious law to Nigeria in order to suppress the aggressive agitation for independence in the 1930’s and 1940’s. This law has since been repealed and has no place either in the statute books or the justice system of Britain and United Kingdom. Unfortunately, we incorporated it into our laws of federation 1990 without bearing in mind local peculiarities and its consequence to a democracy.

The Nigerian police force has continually – though unlawfully – hinged on this void law to bar non-violent protests regardless that it has been severely overruled by courts of law in Nigeria. After the controversial Kano rally, which was alleged to have led to the death of the former Senate President, Dr. Chuba Okadigbo, the Conference of Nigeria Political Parties filed a suit at a Federal High Court in Abuja challenging the constitutionality of the Act. Nigerian Court of Appeal in 2007 upheld the judgment of the Federal High Court in June 2005 that the Public Order Act, which in Section 1 of the Act makes it mandatory for a Police permit to be applied for and obtained by any person or group before embarking on a public rally or procession is unconstitutional. Under the Public Order Act, no group or person can organize a public rally or procession without first applying for and obtaining a Police approval. The Court of Appeal in its decision struck down the requirement under the Act for Police permit holding it as an infraction of the fundamental human rights of persons and groups in the country. The Court of Appeal held that the provisions of the Public Order Act are unnecessary as Nigeria is “in a democracy” and “has joined the league of civilised society.”

At the risk of sounding elementary, fundamental human rights are rights which by their very nature have become fundamental to existence. They are not just mere rights. The Supreme Court declared of them in Saude V Abudullah (1989) 4 NWLR Pt. 116 page 387@419 as: “fundamental rights are important and they are not just mere rights. They are fundamental. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner they are to be sought.” It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence according to Eso J.S.C. in Ransome Kuti & Ors V. A.G. of Federation & Ors (1985) 2 NWLR P. 211 @230. As Nigerians, our Fundamental Human Rights are provided for under Chapter IV of the 1999 constitution as amended and it includes inter alia section 40; right to peaceful assembly and association providing that every person shall be entitled to assemble freely and associate with other persons.

In the opinion of Femi Falana (SAN) in a related matter; “In view of the settled state of the law on the subject matter it is pertinent to draw the attention of the police and other security agencies to the celebrated case of All Nigeria Peoples Party v Inspector-General of Police (2008) 12 WRN 65 decided by the Court of Appeal on December 12, 2007. In that case the court upheld my submission that Nigerians have the fundamental right to stage rallies and protests without police permit.”

In the leading judgment of the Court of Appeal Adekeye JCA (as she then was) held inter alia:

“…democracy admits of dissent, protest, marches, rallies and demonstrations. 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.”

In brief contribution to the lead judgment Muhammad JCA had this to say:

“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 attempt to curtail such rights is null and void and of no consequence.”

Giving esteem to the binding pronouncement of the Nigerian Supreme Court and Court of Appeal on the fundamental right of Nigerians to freedom of assembly and expression through peaceful rallies and protests the Federal Government should toe the part of legality and restrain the police, army and other security agencies to desist from further killing, harassing or intimidating protesters.

Internationally, public rallies and nonviolent protests are part and parcel of democracy. This is evident in the recent protest that has marred some executive proclamations of the newly elected 55th President of the United States of America Donald Trump where a single drop of blood has not be shed amidst widening nonviolent protest.

Nonviolent protest is an extension of the citizens’ freedom of expression and association and should not be restricted or disrupted. It is the duty of the law enforcement agents to monitor public rallies and processions and bring to the law any person who comes in conflict with the law and not the obligation of security agencies to instigate violence in such protest as an avenue to quench such nonviolent protests. It is now an entrenched custom for security agencies to bar nonviolent protest using unverifiable claims and information that hoodlums would hijack the public protests. It amounts to dereliction of duty if our security agencies cannot apprehend hoodlums whose objective is to disrupt nonviolent protest rather than customarily falling back on such fallacious and infantile claims. Inhibiting or disrupting peaceful assemblies by the law enforcement agents is antiquated, tyrannical and abuse of the human rights of persons in Nigeria.

Nonetheless it is incumbent upon those who wish to demonstrate against government policies considered inimical to their interests to understand that there is a corollary duty on them to conduct themselves peacefully. Otherwise, they may run contrary to certain provisions of the criminal or penal code and be liable to prosecution.

Joshua is a contributor to this blog. Read his other work here

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