Constitutional Right to Protest

Constitutional Right to Protest: Is Police Permit; or Submission of Application Letter to Government Agency, Ministry or Parastatal a Prerequisite to Lawful Protest in Nigeria?

In view of the nation-wide protest slated for 1st – 10th August, 2024 by the vexed Nigerian youths, some government officials such as the police, governors and ministers have insisted that for the planned protest to be lawful, recognized and allowed, the protesters must have obtained a police permit or submitted an application letter and such application granted.

The minister of the Federal Capital Territory, H.E Nyesom Wike was very emphatic in his response to the letter alleged to have addressed to him by a non-governmental organization known as “Take It Back Movement” which happens to be one of the organizers of the protests wherein he stated that for the protesters to be allowed access to Eagles square as requested by the movement, they must among other things submit an application letter to his office and then pay the necessary fees that may be required by the ministry of the Federal Capital Territory, Abuja.

The legal question that therefore flows from the above assertion is whether a Police permit is a prerequisite to a lawful protest in Nigeria or whether protesters need to submit an application letter and such application must be granted for there to be a lawful protest?

Laws to consider: Right to Protest

In addressing the above questions, recourse shall be made to two basic laws that are pari-materia to the issue under discussion and the position of the court in that regard. First is the Constitution of the FRN, 1999 (as amended) which is the basis and foundation of all our laws; while the second is the Public Order Act, Cap 382, Laws of the Federation of Nigeria, 1990 which is an enactment of the National Assembly.

Let’s therefore consider the relevant sections of the Constitution. Section 40^[1] provides that; every person shall be entitled to assemble freely and associate with other persons and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests.

Provided that the provisions of this section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission.

Section 45^[2] provides that;  nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:

(a) in the interest of defence, public safety, public order public morality or public health or for the

purpose of protecting the rights and freedom of other persons;

(b) an act of the National Assembly shall not be invalidated by reason only that it provides for the taking during periods of emergency of measures that derogate from the provisions of section 33 or 35 of this Constitution but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.

Provided that nothing in this section shall authorize any derogation from the provisions of section 33 of this Constitution except in respect of death resulting from acts of war or authorize any derogation from the provisions of section 36(8) of this Constitution.

Right to Protest in the Constitution

Stemming from the above, it is clearly seen that the right to protest is a constitutional right conferred on Nigerians by virtue of section 40 of the Constitution. This is because by reason of that very section, the Constitution allows every person to gather freely and associate; and champion a lawful cause.

However, this right is not absolute as it is curtailed by virtue of section 45 of the same Constitution which has been reproduced above. One of the things provided by section 45 of the Constitution is that there is nothing in sections 37, 38, 39, 40 and 41 that will render any law invalid which is legally, justifiably and democratically made as long as it is made for the purpose of paragraphs (a) and (b) of section 45. The question that begs for an answer is; who has the power and duty to make these laws?

It is thus in pursuant to this power conferred on the National Assembly by the Constitution that the Public Order Act came into being and it is important to note that the reason why we can hear some state governors and ministers demand for a Police permit and application letter from the protesters ahead of the planned protest is because of this very Act. The aim of Public Order Act as was succinctly captured in its preamble is to among other things, ensure that public order is maintained and  which also is in tandem with the provision of section 45 of the Constitution.

Having considered the Constitution, it behoves us to look at the relevant sections of the Public Order Act.

Public Order Act

Section 1 (1) of the Act provides that; for the purpose of the proper and peaceful conduct of public assemblies, meetings and processions and subject to section 11 of this Act, the governor of each state is hereby empowered to direct the conduct of all assemblies, meetings and processions on public reads or places of public resort in the state and prescribe the route by which and the times at which any procession may pass.

Accordingly, subsection (2) of the Act provides that; any person who is desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort, shall unless such assembly, meeting or procession is permitted by general licence granted under subsection (3), first make application for a licence to the Governor not less than 48 hours thereto, and if such Governor is satisfied that the assembly, meeting or procession is not likely to cause a breach of the peace he shall direct any superior police officer to issue a licence, not less than 24 hours thereto, specifying the name of the licence and defining the conditions on which the assembly, meeting or procession is permitted to take place, and if he is not so satisfied, he shall convey his refusal in like manner to the applicant within the time herein before stipulated.

Subsection (3) of the Act equally provides that; the Governor may authorize the issue of general licences by any superior police officer mentioned in subsection (4) of this section setting out the conditions under which and by whom and the place where any particular kind or description of assembly meeting or procession may be convened, collected or formed.

The Governor may also under subsection (4) delegate his powers as conferred by subsection (3) to the Commissioner of Police.

Given that the Constitution empowers the National Assembly to make law for the peace, order and safety of Nigeria, it is submitted that the Public Order Act which is an Act made for the sake of public order and safety is a valid law.

However, the question as to whether a police permit must be sought and obtained before protesters can carry out its protest was well considered by the Court of Appeal in the case of  Inspector-General of Police v All Nigeria Peoples Party and Others^[3].

The brief fact of the case which lead to the  institution of the action before the lower court was that the respondents being a registered political parties requested the defendant/appellant, the Inspector-General of Police by a letter dated 21 May 2004 to issue police permits to their members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused. There was a violent disruption of the rally organised in Kano on the 22nd of September 2003 on the ground that no police permit was obtained. In the circumstance, the police based the reason for the performance as violence and breach of the peace which may occur at the holding of the rally. The plaintiffs then went to court and when the matter got to Appeal Court, the court held in favour of the plaintiffs/respondents.

The court in aligning with the decision of the court in the case of FRN v Ifegwu^[4]; held that the constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law, the grundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in a format, emphatic and binding principles the rights, liberties, powers and responsibilities of the people both the governed and the government.

Additionally, the Appellate Court subscribed to the verdict of the court in the case of FRN v Osahon^[5] wherein the court held that in the interpretation of the Constitution, beneficial interpretation which would give meaning and life to the society should always be adopted in order to enthrone peace, justice and egalitarianism in the society.

Hence, it was the position of the Court of Appeal in that case that the Constitution cannot be strictly interpreted like an act of the National Assembly and it must be construed without ambiguity as it is not supposed to be ambiguous. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. All canons of the Constitution must be employed with great caution. A liberal approach must be adopted. Where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so, having regard to the nature and circumstance of the case. The court of law is without power to import into the meaning of a word, clause or section of the Constitution or statute what it does not say.

The court went further to hold that it is a corollary to the general rule of construction that nothing is added to a statute and nothing is taken from it unless there are grounds to justify the inference that the legislature intended something which it omitted to express and that the court must not or is not concerned with the result of its interpretation, that is, it is not within the purview of court to pronounce on the wisdom or otherwise of the statute but to determine its meaning. The court must not amend any legislation to achieve a particular object or result.

The appellate court cited a litany of cases in support of this position such as the case of  Awolowo v Shagari^[6]; Alamieyeseigha v FRN^[7]; etc.

In determining the question of issuance of Police Permit under the Public Order Act of 1990 before a calm and peaceful demonstration is carried out, the appellate court pointed out that the mischief in which the legislators envisaged is the possibility of violence and breach of public peace in the process of carrying out such protest and that it was in a bid to arrest that mischief that the legislators drafted and enacted the Public Order Act. However, the Court described the Act as an indictment and unveiling of the incompetence and inefficiency of the Nigerian Police to carry out its statutory duties as stipulated by the Police Act, Cap 439, Law of the Federation of Nigeria of which duties are to ensure that law and order are maintained. Hence, the court held that the Public Order Act is not only untenable but does not have such power to deprive a citizen of the right conferred on him by the Constitution.

In furtherance of its position, the court relied on the foreign case of New Patriotic Party v Inspector General of Police^[8] where the Supreme Court of Ghana held that Police permit has outlived its usefulness and statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. The Supreme Court of Ghana further held that Police permit is the brain-child of the colonial era and ought not to remain in our statute books.

The appellate court went deep in its judgement to hold that the Nigerian society is ripe and ready to be liberated from our oppressive past and that true democracy ensures that peaceful protest and rallies are done responsibly and peacefully without violence, destruction or even unduly disturbing any citizen and with the guidance and control of law enforcement agencies. According to the court, peaceful rallies are replacing strikes and violence demonstrations of the past.

Above all, the Court of Appeal cited in approval the case of Shetton v Tucker^[9] where the Supreme Court of the United States of America held that even though the government’s purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties and that the Police Order Act relating to the issuance of police permit cannot be used as a camouflage to scuttle the citizens’ fundamental rights in the course of maintaining law and order.

The appellate court also cited in approval the Nigerian case of A-G Federation v Abubakar^[10]where the Supreme Court held that one of the basic principles of interpretation of the Constitution and statutes is that the legislature will not be presumed to have given a right in one section of a statute and then take it in another. Thus, the Court of Appeal in expressing its dissatisfaction on the Police permit held that the power given to the governor of a state to issue a permit under Public Order Act cannot be used to attain the unconstitutional result of deprivation of right to freedom of speech and freedom of assembly.

This is because according to the court, 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. According to the court, even if the breach of the peace would occur, our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.

The appellate court therefore affirmed that freedom of speech and freedom of assembly are part of democratic rights of every citizen of Nigeria and advised that our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests.

Not only that, the court held the constitution should be interpreted in such a manner as to satisfy the yearnings of the Nigerian society and that 1999 Constitution is superior to other legislations in the country and any legislation which is inconsistent with the Constitution would be rendered inoperative to the extent of such inconsistency. Section 1 of subsections (2), (3), (4), (5), (6), and sections 2, 3, 4 of the Public Order Act are according to the court inconsistent with the Constitution — they are null and void to the extent of their inconsistency.

Moreso, the appellate court advised that Public Order Act should be promulgated to compliment sections 39 and 40^[11] in context and not to cripple it while holding that 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; and that 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 permit to hold a rally. According to the court, we must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.

The appellate court concluded by holding that the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act^[12] is a statute with international flavour. Being so, therefore, if there is a conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation.^[13]

Hinging on the above authority, it is expedient that while it is the unconditional right of every citizen in a democratic system like Nigeria to protest, it is equally the duty of the citizen to ensure that such protest is not in any way used as an instrument of violence, destruction or fraud. This is because where the right of one stops, the right of another begins.

On the other hand, it is equally the duty of the law enforcement agencies such as the police to ensure that the protesters are protected and to ensure that peace and order are maintained in the course of the protest.

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^[1] CFRN, 1999 (as amended)

^[2] Ibid

^[3] (2007) AHRLR 179 (NgCA 2007)

^[4] (2003) 15 NWLR pt 842 113

^[5] per late Justice Pat Acholonu

  (JSC as he then  was)

^[6] (1979) 6-9 SC 51

^[7] (20O6) 16 NWLR pt 1004 1

^[8] 1992-93 GLR 585 – (2000) 2 HRLRA 1

^[9] 364 US 479 488 (1960)

^[10] (2007) 10 NWLR pt. 1041 1

^[11] CFRN, 1999 (as amended)

^[12] Cap 10 Laws of the Federation of Nigeria 1990

^[13] Abacha v Fawehinmi (2000) 6 NWLR pt 66

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