Protests: Between constitutional rights and social disturbance

The right to peaceful protest is constitutionally protected. Section 40 of the 1999 Constitution guarantees citizens’ rights to assemble and associate with other persons to protect their interests. However, these rights are increasingly being challenged by the government and security agencies due to the propensity of such protests turning violent, and leading to loss of lives and property, AMEH OCHOJILA reports.

There is no argument about the right of citizens to embark on peaceful protests. This constitutional right is further reinforced by the Court of Appeal in IGP vs. ANPP and others (2007) AHRLR 179. The judgment affirmed that the Public Order Act cannot be used to deprive individuals of their rights to freedom of expression and assembly.

In that matter, the court held that: “The right to demonstrate and protest in relation to issues of public concern are rights, which are in the public interest, which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done.”

Protests and peaceful assemblies are vital forms of civic engagement that allow citizens to voice their opinions and influence government actions and policies. This aligns with the principles outlined in Section 14(2)(b) of the Constitution, which underscores the importance of public participation in governance. By engaging in such activities, citizens can help ensure that their government remains responsive and accountable to the people.

However, recent events have threatened this constitutional right, subjecting it to serious scrutiny. This is because exercising this right often pits the demonstrators against the government and security agencies, who are usually apprehensive that the process may not remain peaceful till the end. Their fears are justified as so many protests in the past were hijacked and mayhem unleashed on public and private property.

A particular example was the #EndSARS protest, where official figures indicate that 51 civilians and 11 policemen were killed.

Similarly, protests against the removal of fuel subsidy in 2012 also led to clashes with the police, resulting in at least three deaths. Such incidents highlight the tension between exercising protest rights and the government’s responsibility to maintain law and order.

In addition, protests by members of the Shiite Islamic Sect have, in the last couple of years turned violent, in Kaduna, and Abuja, resulting in the loss of lives and property.

“While we have supported the right of the #EndBadGovernanceInNigeria protesters, we have a patriotic duty to call on them to distance themselves from the undemocratic forces, who have taken advantage of the peaceful protests to engage in violence, or campaign for another military coup in the country,” human rights lawyer, Femi Falana (SAN), warned in the aftermath of the recent protest that turned violent in the North.

He continued: “It has become necessary to point out that calling for a military coup or waving the flag of Russia, a country that is noted for supporting unconstitutional change of government in Africa, constitutes a gross abuse of the constitutional right to protest.

“The legitimate protests against hardship in the land should not be turned into a campaign for an unconstitutional change of government,” the SAN added.

Also, the Executive Secretary of the National Human Rights Commission (NHRC), Tony Ojukwu (SAN) during the #Endbadgovernance protest, called on law enforcement agencies to respect protesters’ rights, while ensuring the protection of public and private property and conducting thorough investigations into human rights violations.

He also called on the protesters to respect the rights of others by conducting themselves peacefully during the protests.

Ojukwu charged the protesters to ensure that the protest was peaceful and avoid provocative actions such as carrying arms, hate speeches, attacks on security agencies, or looting of public and private property.

“They must ensure that the protest remains peaceful and law-abiding because violence and destruction of property will undermine the legitimacy of the protest. While the right to protest is guaranteed, protecting critical infrastructure is also essential,” he declared.

Ojukwu urged them to co-operate with law enforcement agencies to ensure peaceful protests and to identify infiltrators. For those in authority, the executive secretary tasked them to ensure that the protest is peaceful and avoid provocative actions.

But despite the charge, the protest turned violent in some areas for several reasons. In Abuja, security agencies, citing a high court order, insisted on restricting the protesters to a location against their wish to move to the city centre. The protesters accused security operatives of using maximum force against them, stressing that they have the right to protest, which does not require permission from the police.

In Lagos, the protests were largely peaceful, except for confrontations and altercations with the security agencies over protest locations and harassment from politically sponsored thugs, who assaulted protesters and journalists in an attempt to scare them away.

However, the wanton destruction and vandalisation of public and private property in Kano, Kaduna and some parts of the North in the guise of protest justifies the concerns of the government in allowing citizens to embark on these protests. A number of casualties were recorded as a result of these lootings by irate youths, when the police confronted them.

The police in their response to the allegations of using brutal force and live bullets denied it, explaining that that the details of the organisers were unknown.

The Inspector General of Police (IGP), Kayode Egbetokun said: “It is essential to know who is planning the assembly (protests) in each state as allowing faceless groups to operate unchecked could jeopardise the peace and stability of the country, and leave us with pains, sorrows and tears as experienced in the 2020 violent #EndSARS protests.

“If organised labour and other recognised bodies were involved, it would have provided a more structured and safer environment for such protests. In this way, requesting the details of protest organisers and their leaders and the schedules of their protests which includes location, period, routes etc., is a standard procedure to facilitate effective communication, ensure the safety of all participants, and prevent any unlawful activities.”

There is no doubt that the opposition against the constitutional right to protest stems from the need to balance civil liberties with maintaining law, order and protecting national assets.
While the constitution and judicial rulings strongly support the right to peaceful protest, violent incidents during public protests have led to stricter controls, illustrating the complex dynamics between safeguarding freedoms and ensuring security.

Although Section 40 of the Constitution guarantees the right to peaceful assembly and association, legal experts debate whether it is absolute or not.

Douglas Ogbankwa, a lawyer, argued that the constitutional right to protest cannot be derogated or restricted. He noted that the fear of protest in the mind of the political class, and the brutal crackdown by security agencies embody a major challenge to the peaceful exercise of this right.

He criticised the use of live bullets against protesters, advocating non-lethal means like rubber bullets, or water cannons, as used in other countries.

Ogbankwa highlighted the principles of international humanitarian law, which dictate the use of proportionate force and moral persuasion to manage protests.

He stated that if the Federal Government redirects the energy it uses against protesters towards fighting terrorists, the issue of insurgency would be mitigated.

He called for the demilitarisation of protests and the protection of citizens’ rights to express their views. Ogbankwa also criticised recent judicial orders restricting protests, noting that such actions are inconsistent with legal principles and the judiciary’s role.

Another lawyer, Joseph Akogwu, said that protests regarding change of government through an undemocratic process are worrisome and of serious concern.

He, however, added that citizens do not require police permits to hold peaceful protests, and that notification to the police does not equate to seeking permission but serves as an avenue for ensuring the safety and orderly conduct of protests and assemblies.

Marvin Omorogbe, another lawyer, noted that the constitutional right to protest is facing challenges due to a combination of restrictive government policies, excessive law enforcement actions, and political repression.

According to him, reports of police brutality during protests are on the rise, with law enforcement and military personnel often using excessive force. “Incidents of violent suppression and the use of live ammunition against unarmed protesters have been documented, instilling fear and discouraging public demonstrations,” he said.

Omoregbe explained that political repression remains a significant issue of concern, as the government is accused of targeting activists, opposition leaders, and civil society groups.

“Arbitrary arrests, illegal charges, and harassment are common tactics used to stifle dissent and protests,” he pointed out.

He alleged that the authorities disrupted Internet services and imposed restrictions on online communication during the period of protests. These measures, he said, prevent the organisation and coordination of demonstrations, limiting the spread of information, and invariably provoking protesters the most.

He argued that public demonstrations often require a permit, which can be arbitrarily denied, or delayed by authorities to prevent spontaneous protests.

He stressed that the authorities frequently cite public safety and security concerns as reasons for restricting protests.

His words: “However, these concerns are sometimes used as pretexts to impose restrictions and use force against peaceful gatherings, thereby undermining the constitutional right to protest. With these challenges, the ability of Nigerians to engage in peaceful protests is increasingly constrained.”

He stressed the need to address these issues to protect the fundamental rights of freedom and expression.