Protest against bad policies of government is a constitutional right – Part 2

Taking a cue from the above, it is not in doubt that the police only role in a protest of this nature is to provide adequate security and protect the people especially the protesters. Therefore, the call or threat by the police to descend on protesters is uncalled for and can only be counter-productive.

What is more? It needs be pointed out that the contention of the police in the case of IGP V ANPP Supra, was that there was need for police permit to be obtained under Section 1 of the Public Order Act Cap P42 LFN 2004, before the ANPP can hold a political rally and on that ground, the respondent (ANPP) had sought for police permit to hold its rally across the country in protest against the rigging of the 2003 general election but the police refused to issue the permit so sought by the ANPP and on that basis, the police disrupted the rally organised by the respondent in Kano on the 22nd of September 2003.

Expectedly, the respondent (ANPP) filed a suit at the Federal High Court to challenge the unconstitutionality of the police power. In dismissing the contention of the police that protesters must obtain police permit before staging protests, the learned trial Judge, Hon. Justice Chinyere posited as follows:

“The gist of the provision of Section 1 of the Act, is that the governor of each state is empowered to direct the conduct of all assemblies, meetings, and processions on public roads, or places of public resort in the state and prescribe the routes by which and times at which the procession may pass.

Persons desirous of convening or collecting any assembly or meeting or of forming a procession in any pubic resort must apply and obtain the license of the governor. The governor can delegate his powers to the Commissioner of Police of the state or to other police officers. Persons aggrieved by the decisions of the Commissioner of Police may appeal to the governor and the decision of the governor shall be final and no further appeal shall lie therefrom.”

The learned trial judge then went further to declare thus: “In my view, the provision in Section 40 of the Constitution is clear, direct and unambiguous. It is formulated and designed to confer on every person the rights to assemble freely and associate with other persons. I am therefore, persuaded by the argument of Mr. Falana that by combined effect of Sections 39 and 40 of the 1999 constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental rights to peaceful assembly and association.

I agree with Mr. Falana that violation can only be done by the procedure permitted by law, under Section 45 of the Constitution, in which case, there must be a State of Emergency properly declared before these rights can be violated.”

Funny enough, this decision did not go down well with the police authority then, and the police appealed against the judgment. Dismissing the appeal filed by the police, the Court of Appeal observed as follows: “the power given to the governor of a state to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation or right to freedom of speech and freedom of assembly.”

“The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest, and that which individuals must possess and which they should exercise without impediment, as long as no wrongful act is done.”

In his own contribution to the judgment of the Court of Appeal, Mohammed JCA declared that: “In the 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.”

Similarly, the idea of obtaining police permit for rally and protest is not limited to Nigeria alone but also other African Countries. To this end, the Supreme Court of Ghana in the case of New Patriotic Party V. IGP Accra, (1992-1995) GBR 585, had occasion to nullify such requirement of police permit under Ghana law and held thus: “Statutes requiring such permit for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain child of the Colonial Era and ought not to remain in our statute books.”

Having said that, it is submitted that by the law in Nigeria today, every citizen has the right to demonstrate or protest through any lawful means against any bad policy of government, and the governors have the right to issue directives to the Commissioner of Police in their states for the purpose of securing public safety and order within the state. See AG Anambra V AG Federation (2005) 9 NWLR (Pt 931) 572-616, where the Supreme Court, per Uwais CJN, had this to say: “The Constitution in Section 215 (1) clearly gives the Governor of Anambra State the power to issue lawful direction to the Commissioner of Police, Anambra State, in connection with securing public safety and order in the state.”

What the above then means is, in my opinion that, an obligation is imposed on the governor in the case of any protest to issue directions to the Commissioner of Police in the state to ensure the safety of people and property on the one hand, and public order on the other hand.

That being the case, it would be out of place and illegal for any government or authority to frown at, or disallow the planned protest in Nigeria against bad governance slated for 1st to 10th of August 2024. This is because the right to protest is constitutionally guaranteed and permitted in Nigeria under our law and the courts have so declared long time ago.

One last thing before ending this piece is the analogous rights of individuals to criticise and speak against bad policies of government without any intimidation or threat. See the case of Nwankwo V The State (1984) NCLR 228 at 252, where Olatawura JCA, declared in the following memorable way;

“Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and therefore, belong to a different class.

They must develop thick skin and where possible, pluck their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by our constitution will be meaningless. As long as the constitution is not suspended and this is not done in any democratic society. Freedom of expression should be protected.”

Riding on the horse of the above memorable dictum of his lordship, it is very clear that those planning protests against the killing and suffocating policies of the government of Nigeria today are exercising their constitutional rights to complain when things are not going well as we have in the country today where the welfare of the citizens is very poor and cost of living unbearable. Petroleum subsidy removal has made transportation extremely expensive and even though petrol is expensive, it is very scarce and quieu still abound in filling stations across the nation. In truth, one can expect people to be quiet without challenging the status quo because the man dies in him who keeps silent in the face of oppression and injustice. Apologies to W.S.

Be it noted that the president Mr Tinubu himself abhors oppression both in words and actions before he got to power and this he had done for decades starting from the era of military rules. As a matter of fact, in 2012, he encouraged the masses to protest against the bad policies of government under Jonathan then and said it was within the rights of the citizens to do so because their properties and lives are involved.

What then made the situation different now that he is the president of the country? I think it is unfair to disallow people from exercising their constitutional rights to protest against his bad policies. It is hereby humbly suggested that he directs the Inspector General of Police and the Commissioner of Police for the thirty six states through the governors to provide adequate protection for the people, to effectively exercise their rights to protest under the law.

Things are bad and the government should be told in clear language and the best way to do that is through civil protest of this nature. Long live the president, long live the Federal Republic of Nigeria. 
Concluded.
Akingbolu, a Public Affairs Analyst, Lawyer and Human Rights Activist, wrote from Lagos.