Right to protest: A fundamental human right

“Protests play an important part in the civil, political, economic, social and cultural life of all societies. Historically, protests have often inspired positive social change 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.” -Article 19 on the Right to Protest: Principles on the protection of human rights in protests.

On the first week of October 2020, Nigerian youths who have experienced a long history of depravity from police brutality, bad leadership, corruption, unemployment, abject poverty, amongst other vices, rose up in one accord to condemn the social vices under the tag, #EndSARS.

It is of great importance to note that even though the protest is styled “EndSARS Protest,” the positive social change it intended to address goes beyond ending SARS and police brutality. It includes putting an end to bad governance, corruption, social injustice and inequality and the general selfish attitude that characterizes the Nigerian political class. The youths simply demanded for a new restructured Nigeria that is able to cater for the needs of its people.

Sadly, on October 20, 2020, a day never to be forgotten, President Muhammadu Buhari allegedly deployed soldiers to peaceful, unarmed and unsuspecting protesters at the Lekki Toll Plaza area of Lagos metropolis, which has served as a point of convergence for the peaceful protesters. Protesters in what appears like a premeditated onslaught were shot at and killed in cold blood.

The State actors in order to disorganize and discredit the protesters were reasonably believed to have masterminded the criminal activities of hired hoodlums who went on rampage wreaking havoc everywhere after the shooting. These hired thugs started by attacking the protesters openly injuring and killing some of them. And there was no resistance from Law Enforcement Agencies. When the protesters could not be deterred, the hired hoodlums started destroying public and private properties, setting ablaze Police Stations and allegedly facilitating a Prison break in Benin, Edo State. All these ugly scenarios were set in motion to discredit and find a justification to violently suppress and disperse the protesters.

The Nigerian government in a warfare style silenced the voices of the people crying in the Nigerian wilderness to prepare way for the birthing of a new nation where bad governance, executive and legislative lawlessness and judicial ineffectiveness will be the thing of the past. The frustrated youths just like I who have lost every iota of hope in Nigeria as presently constituted and the “rulership” of president Buhari, are put in harm’s way.

The cruelty and cold-bloodedness of Lekki Toll Plaza killing led to an outcry by Nigerians both within and without Nigeria and the international community lent their voice to also condemn the killing of peaceful and unarmed citizens who were just exercising their constitutional rights. The clumsiness and lack of empathy of the President who remained silent and unperturbed led to breakdown of law and order. The criminal elements in the society had a field day. More police stations, public and private properties were attacked. Many more people were killed. Fear and anarchy became the order of the day.

When the President finally spoke on October 22, 2020 at 7pm, his speech was uninspiring and generally unhelpful. He did not even bother himself with the murder of the Nigerian youths whom he swore an oath to protect under the constitution. His reference that his prompt disbanding of SARS following the protest demand was seen by Nigerians as a sign of weakness shows how he understands his position vis-a-vis the right of the people. It is a typical example of the mentality of the Nigerian political class who always hold themselves out as lords and masters of the people.

The social contract theory underscores the undisputed facts that government exists and derives its authority from the people to act on their behalf primarily for their welfare and security. The origin and history of the social contract theory posits that before government or civilized society was formed, the lives of individuals were in what Thomas Hobbes in Leviathan regarded as “the state of nature.” In this state of nature, lives were “solitary, nasty, brutish and short.” Every individual was a god to himself and exercised unrestrained power. This aberration of people wielding absolute power as their might permit brought about the concept of social contract which was understood as an “occurrence” during which individuals came together, established a government and ceded some of their individual rights.

This occasioned the establishment of the State and institution of government where the people by choice in a free and fair manner elected individuals as trustees of the people and to serve as servants of the people and not their lords and masters. Of course, the people retained their basic rights, which inures and are inherent in any man by virtue of being human. These rights are known as God-given, natural, inalienable and fundamental human rights. It is called inalienable because it cannot be granted or contracted out to the State or anyone.

Consequently, it is an aberration, anomaly and unimaginable to see individuals exercising government power arbitrarily. Holding themselves as sovereigns, lords and masters of the people, they conduct themselves in ways and manners not granted or anticipated by the Constitution or the people. Under Part II of the Fifth schedule to the Constitution, both the president and every other holder of legislative, executive and judicial offices in Nigeria are termed public officers and were made to swear an oath to defend and preserve the Constitution and the people. They are servants of the Nigerian public and not otherwise. Nigerians’ rights to protest are safeguarded under sections 38, 39, 40 and 41 of the Constitution. It is a fundamental human right of the people to voice out their displeasures, disappointments and frustrations.

The right to protest is the manifestation of first, the right to freedom of thought and conscience and religion (Sec. 38) which precedes rights to freedom of expression (Sec. 39) followed by the right to peaceful assembly and association (Sec. 40) and accompanied by right to freedom of movement (Sec. 41). Right to protest also “embodies the exercise of a number of indivisible, interdependent and interconnected human rights” like right to life (Sec. 33), right to dignity of human person (Sec. 34), right to personal liberty (35), right to fair hearing (36), right to private and family life (37), and right to freedom from discrimination (42). The Court of Appeal upheld the right to protest in the case of IGP V. ANPP (2008) 12 WRN 65 that “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 effect.”

Under the International Law, the right to protest is equally protected. Articles 18, 19 and 20 of the Universal Declaration of Human Right, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Right and the UN Human Rights Council’s Resolution at its 38th Session on Promotion and Protection of Human Rights in the context of Peaceful Protests are quite apposite.

Principle 1 of the Resolution on Promotion and Protection of Human Right in the context of Protest recognizes that a protest can engage in actions targeting any audience, including public authorities, private entities or individuals, or the general public and may annoy or give offence to people who are opposed to the ideas. It also recognizes that protest may temporarily hinder or obstruct the activities of third parties.

Principle 2 then imposes obligations on States/countries to respect the right to protest. States should not prevent, hinder or restrict the right to protest; States should protect the right to protest and should undertake reasonable steps to protect protesters by adopting measures necessary to prevent violations by third parties; States should fulfil the right to protest by establishing an enabling environment for the full enjoyment of right to protest. Instead of the Nigerian government to protect her citizens exercising their right to protest, the protesters were despised and calculatedly made vulnerable and subject of attack.

Principle 4 makes provision for the protection of internationally guaranteed human rights during all protests even where restrictions or exceptions might be applicable. Also Principle 5 permits States to derogate from international human rights commitments only in cases of public emergency situations that threaten the life of the nation however such derogation must be officially and lawfully proclaimed in accordance with both national and international law. Hence, states should not resort to declaring a state of emergency in order to limit the right to protest. Such restrictions on protests in emergency situations should be of an exceptional and temporary nature.

Principle 8 enables everyone the freedom to choose the location of a protest, and the location chosen should be considered integral to its expressive purpose. States should ensure that protests are allowed in all public places, including places that are privately owned, but are functionally public and must equally ensure that protests can take place within sight and sound of their object or targeted audience. States also should deploy adequate resources to ensure counter-protests within sight and sound of the other, do not lead to disorder. That potential disorder arising from disagreement or tension between opposing groups should not be used to justify the imposition of restrictions on the protest. State should also refrain from imposing restrictions on online protests seeing that Internet is a quasi-public place that is routinely used for public purposes.

Principle 9 provides that everyone should have the freedom to choose the form and manner of a protest, including its duration. It also recognizes a non-violent direct action or civic disobedience actions as a legitimate form of protest. President Buhari or any public officer is not in a position to determine the duration of protest or to adjudge whether or not protest demands have been met or not. It is the right of protesters themselves to do so.

Principle 12 imposes duties on States to adopt a human rights approach to policing protests. Policing of protests by law enforcement agencies should be guided by the human rights principles of legality, necessity, proportionality, and non-discrimination and should comply at all times with international human rights law and standards on policing, in particular the UN Code of Conduct for Law Enforcement Officials.

It also imposes a duty on States to prohibit the deployment of the military armed forces for the policing of protests. The use of military may arise only in extremely exceptional circumstances to serve only as a support for the police agency and placed under the command of the police upon the request of the civilian authorities when the police is unable to handle violent protests. The military must comply fully with international human rights law and standards on policing and principles on the use of force and must undergo a complete change in their operational procedures from a combative (fight-the-enemy) approach, to a law enforcement approach, including de-escalation, avoiding the use of force, changes of equipment and the correct use of equipment.

The police whose duty it is to manage protest must be well-trained and experienced in managing protest events and must be fully aware that their primary duty is to facilitate protests management. Training should include human rights standards, methods of understanding crowd behavior and the methods and skills needed in order to minimize and de-escalate conflict, such as negotiation and mediation. They must seek to establish or improve dialogue with the organisers of protests to create mutual understanding, reduce tensions, evaluate potential risks and conflict escalation and agree how best to facilitate the protest.

Principle 13 imposes duties on States to adopt and implement a domestic legal and policy framework for the use of force by law enforcement, and ensure that all law enforcement agencies fully comply with international human rights law and standards on policing, in particular the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, as well as best practices in this area, such as Amnesty International’s Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Law enforcement should have a range of less lethal equipment at their disposal that allows for the differentiated use of force in full respect of the principles of necessity and proportionality, and ensures that harm and injury are kept to a minimum. They must ensure that anyone injured or affected as a result of the use of force receives immediate assistance and medical aid at the earliest possible opportunity and must report the incident promptly to superiors who must ensure an effective review is carried out by independent administrative or prosecutorial authorities who have the power to exercise authority where appropriate. It is only in Nigeria that you will see government release its Armed Forces with live ammunitions on its peaceful and unarmed citizens.

Principle 16 imposes duties on State to ensure that participation in a protest must never by itself be the basis of a criminal charge or for suspicion of involvement in criminal activity. Liability must always be personal, so that neither the organisers nor the protesters are subjected to sanctions of any kind on the basis of acts committed by others. Organisers and protesters must never be held liable or responsible for covering the costs of the provision of adequate security and safety measures, policing and first-aid services, and the costs of cleaning up after protests.

Principle 17 imposes duty of accountability and transparency on States to ensure that all decision-making processes by public authorities relating to protests are transparent, accessible and comply with international due process standards. States should investigate, prosecute, and ensure accountability for human rights violations committed in the context of protests. Investigations and prosecutions must be effective, speedy and carried out by independent judicial or adjudicatory bodies, and capable of bringing perpetrators, instigators and those overseeing violations to account through criminal or disciplinary proceedings as appropriate. States must also ensure accessible, effective, and cost-free remedies for violations of the rights of protesters, in particular through criminal and civil law processes. Flowing from this principle, we expect the president to announce and commence investigation into the role of the military in the death of innocent citizens and ensure that those the families of those who lost their lives are adequately compensated, likewise those who sustained gunshots injuries.

Principle 18 mandates States to enable the free flow of information relating to protests, including through all types of media, so that everyone can freely impart and receive information about protests before, during and after them. Principle 19 mandates States to allow and actively facilitate reporting on, and the independent monitoring of protests by all media and independent observers, without imposing undue limitations on their activities and without official hindrance, as far as is possible. And that States should ensure that no individuals documenting police actions and human rights violations during protests are specifically targeted because of covering and reporting on protests. Willful attempts to confiscate, damage or break related equipment, printed material, footage, audio, visual and other recordings should be a criminal offence and those responsible should be held accountable.

Principle 20 permits organisers of protests where possible and without any coercion, to establish relationships of cooperation and partnership with relevant authorities and with law enforcement officials in planning the course of the protests. In cases where public space needs to be booked or where large numbers are expected, organisers should comply with voluntary notifications procedures.

In conclusion, the Nigerian government should endeavour to internalize the fact that sovereignty belongs to the people and that government exists solely for the welfare and security of the people, and must preserve and defend the people and the Constitution of the Federal Republic of Nigeria, which they swore in their Oath of Office to protect. The Army and other security forces should understand that right to protest is a constitutional rights of citizens to hold the government accountable which will invariably lead to the progress and development of the country and in the long run will be of great benefit to everyone whether in uniform or not. The security agencies are strongly advised to be patriotic in the discharge of their duties and must at all times protect the lives, rights and well-being of the Nigerian people.

Overzealousness to harm fellow citizens who are patriotic enough to demand for a better Nigeria is simply foolhardy, imprudent and an act of gross misconduct. They should learn from their colleagues all over the world. Just last year in Malawi, the Malawian army played a crucial role during times of political and social turbulence in March 2019 by standing with the people and ensuring that their country becomes a better place.

The legislators are firmly advised to hold the executive accountable against the killing of the people and enact laws specifically providing protection to citizens exercising their constitutional right to protest. This law must be in consonance with international standard and best practices as recognized under the International Law. Curfew should not be used to curtail and stop citizens from exercising their right to protest. Protesters at all times should conduct themselves reasonably and peacefully. They must resist the urge to prevent other Nigerians from going about their businesses without let or hindrances. Just as you have the right to protest, others equally have a right to join or not.
Uwandu, a lawyer writes from Lagos