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Otteh: Protests expose failure of legislature, judiciary to protect citizens

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The convener, Access to Justice, Bar. Joseph Otteh in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, examines the fallout of the #EndSARS peaceful protest that snowballed into unimaginable crisis and gives the verdict that the three arms of government are complicit in creating the calamity.

What is your reaction to the shooting and alleged killing of unarmed protesters in the Lekki area of Lagos State by security forces?
I am outraged that the government could assault and murder its own citizens who were only protesting the killings and brutality they face every day in the hands of those who ought to be protecting them. And then you maim and kill them again for speaking up against state killings. However, if you place this incident side by side with the President’s track record in dealing with various forms of citizen protests, you will see that it is perfectly logical for him. Look at how this government indulged the murder of hundreds of Shiite sect members, including women and children, how soldiers slaughtered hundreds of IPOB members – who, by the way, are Nigerian citizens – and several other cases. You might just simply say, for the Lekki shootings, it is par for the course. Just what you might expect of this government!

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What does the law say about staging peaceful protests?
The law says that citizens have the right and freedom to express their opinion in any form that is lawful. And that government must respect that right, whether it agrees with the opinion or not, or whether the citizens accede to the government’s demands or not.

Under the international instruments, what measures are acceptable to disperse obstinate protesters?

There are no hard and fast rules on dispersing crowds but generally accepted principles. Those principles re-affirm the government’s fundamental obligation to first protect human life, dignity, and the security of each person. Crowd control measures must be consistent with those norms.

Shooting at unarmed, peaceably gathered protesters, injuring, and killing them violate the very core of what the government owes its citizens. Our Constitution, in section 14(2) reiterates this, saying the security and welfare of the people is the primary obligation of government. Mind you, it is not the security of the government that is the primordial responsibility of government itself, but that of the people.

Where a curfew is imposed and there is defiance by peaceful protesters, what should be the lawful action to take by the government?
If the curfew is lawfully declared if the curfew has indeed begun if the government is minded; if there is a law authorizing it to; if it can be done lawfully without killing anyone, then disperse the crowd.

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In established cases of deadly violence against peaceful protesters, what remedy is available for victims?
First, it is the government’s responsibility to independently, impartially, and promptly investigate every death in those circumstances. Thankfully, most governments are now doing so with the judicial inquiries they have set up. And then, they must undertake criminal proceedings against perpetrators of that violence. Alongside this, they must ensure that victims or relatives of victims of those atrocities are adequately compensated. It is a good thing that the government has set apart money for compensating victims of violence and we hope that the money serves its designated purpose. However, impunity will not likely end with the Lekki shootings and we urge governments not to think a specific intervention tied to a specific event will offer a sustainable solution. The more sustainable approach is to ensure there is always justice for victims of atrocities. This would include justice for the atrocities preceding Lekki, as well as justice for those post-dating it. We note that, unfortunately, most governments, systematically fail to prosecute State perpetrators of violence, nor do they offer victims an unencumbered path to justice.

Do you think the curfew is the best option to manage the escalating orgy of violence by hoodlums who took advantage of the peaceful agitation to burn down police stations, public and private facilities, and heightened insecurity across the states?
We can see that it seems a much better option to accommodate peaceful protests – which was widely acclaimed as such – than not to do so, or to choose an alternative capable of precipitating chaos and anarchy, which it did. In bringing the army into the situation, the government took a calculated risk. When the army opened fire on peaceful protesters, taking them off the streets, our government opened the streets up for others to step into the breach.

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This crisis is spiraling across States in Nigeria, including the FCT. What do you think about the response of the Federal Government to the whole development?
In a sense, one could ask: has the Federal government really responded besides sending in soldiers to attack protesters and escalate tension? I’m not sure. Watching our President’s national broadcast on the protests, where he was reeling out his administration’s economic policies in answering to grievances that our country has failed (and is still failing young people), made me feel he didn’t quite understand the overarching grievances behind the EndSARs movement.

The way I understand it, EndSARS includes, but extends beyond what is wrong with Nigeria’s police, and idiomatically references what is wrong with governance in Nigeria. Police brutality is rooted in much deeper and wider pathologies of things wrong in governance. You can often see this in the kinds of societies where you have this problem.

In the US, for example, the George Floyd killing (as well as many other killings) was attributed to a wider problem of race, with accusations that many police institutions were racially cultured to use violence against black people. It is, therefore, simplistic, in my opinion, to attribute police brutality to what is wrong only in the Police force. Our President unfortunately chooses to remain short-sighted about this grievance. In my view, this was an opportunity he really missed to call Nigerians together – politicians and all – and say: “you’ve all seen the despair in the land. You’ve all witnessed what social dislocation and injustice can bring, and how that our security and prosperity are tied to the well-being of the young ones too. The youth said we’ve missed it, and we really may have. Let’s re-order how we distribute economic opportunities across our land.” He would have found, I imagine, broad political support for far-reaching reform with a rallying cry like that. But he missed the boat.

In your view, how do we arrest these ugly situations, restore peace, and achieve the reforms being asked for by the youths? 
I fear we may have equally missed the boat. I’m not sure where this will lead to or how it may end up, but I hope that the blood of those who have gone down in this struggle will not be in vain.

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What does the protest say about the rule of law in Nigeria?
It says everything, from A-Z! From the failure of the government to overhaul the delivery of policing services, to impunity by government forces and the systematic, large-scale abuse of human rights. Interpreting the looting of warehouses that accompanied phases of the protests, you’ll see how it implicates welfare obligations of government to people as well, and the excoriating denial of economic and social rights to citizens.

“Warehouses” have taken on a new meaning, becoming heart-rending symbols of dispossession: showing how governments plunder even the meagre reliefs meant for the vulnerable and the have-nots – the destitute, orphans, widows, jobless, homeless, and the hungry. A statistic said Nigeria is the poverty capital of the world, but this is more than that. This looks like the State itself works extra hard to keep the poor dehumanised. The protests also say something broader. No good system of accountability relies on the goodwill of the executive arm of government alone. If the executive arm of government fails to ensure that its agencies and security organisations conduct themselves appropriately, the other arms, such as the judiciary and the legislature, also share a mandate to keep law enforcement and security institutions in check. I think the protests passed a judgment about how well the judiciary and the legislature have exercised that mandate. People feel a great sense of injustice when police officers abuse citizens’ rights and go free, and are not held to account for their actions. The legislature and the judiciary, in the perception of most people, have not lived up to expectation in this regard.

Let me speak a little more about the judiciary. Concern for, and activism by our judges to defend the rule of law in our country have, overall, been well below par. Our courts are not putting their best foot forward in this regard. If you compare how courts of some other jurisdictions defend the rule of law in those jurisdictions, and the dynamism, valour, and strength they bring into this, you’ll just see how much we are behind the curve in this respect. We are still fazed by the fog of long-abandoned legal doctrines that becloud loftier visions of making law become truly a handmaiden of justice, as one late Supreme Court Justice put it. For example, there are hundreds – possibly thousands – of judgments won by victims of human rights abuses against abusive agencies. Most of these judgments are and have been unenforceable for long, long periods. In attempting enforcement, many Judges – even appellate court Justices – throw up their hands and say, “our hands are tied”! You need the consent of the Federal Attorney-General before we can enforce these judgments.
So, our young people look left, right and centre, and there is no one to offer them respite. No one to right the wrongs done to them! They are left with little choice than to make the streets the new frontier for their struggle for the rule of law, dignity, and justice.

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