#EndPoliceBrutality: The Right To Protest Is A Human Right.

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#EndPoliceBrutality: The Right To Protest Is A Human Right. Daily Law Tips (Tip 676) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

There are fundamental human rights in Nigeria for persons in Nigeria. Some of the fundamental human rights are for Nigerians only, while some are for all person in Nigeria. Right to Protest is a fundamental human right in Nigeria and not a privilege. It is a right and no government approval is needed for it. This work will examine the right to protest in Nigeria, focusing on the nature of the right to protest, constitutionality of the Public Order Act, the need for license/permit to protest and how to enforce the right to protest.

What are Fundamental Human Rights?:

Like the name suggest, fundamental human rights are the entitlement of persons, they are legally provided by law and cannot be ordinarily denied by any person or government. Fundamental human rights are basic, elementary, mandatory, compulsory and unshakable entitlements of persons. Fundamental human rights are never purchased rather inborn by being a person (human being or corporate being). 

Fundamental human rights are universal (they are operational across the world) and they are so basic that no human being can survive without them; like the Right to be alive, the Right to Own Property, the Right to Move Around, the Right to Express One’s View and the Right to Live Without Being Falsely Convicted. Without fundamental human rights, life would have been very short and rough, worse than what anyone knows now. Fundamental Human Rights are built or drawn from the basic needs of man and society. Hence, fundamental human rights grow and evolve with society just as the needs of man and the society. This explains the growing inclusion of environmental rights to fundamental human rights in countries across the world. By the way, some day, there may be a “Right to Internet and Cloud Space” in the list of fundamental human rights. 

Colours of Rights, Human Rights and Fundamental Human Rights:

It is important to note that not all rights are human rights and not all human rights are fundamental human rights in Nigeria. For example, right to be issued receipt and purchased item after payment, is a right, but not a human right or fundamental human right. Right to education, the right to Food and the Right to Housing are human rights but they are not fundamental human rights under the Constitution of Nigeria. However, they are now fundamental human rights in Nigeria since Nigeria signed the African Charter on Human and People’s Rights. 

Fundamental human rights may vary country to country, depending on the constitution of a country and international conventions signed by a country. Anything can be a fundamental human right, once it is declared as such and stated in the constitution of the country. So, the Right to steady electricity supply can be declared a fundamental human right and included in the constitution of Nigeria by the National Assembly (Federal Legislatures of Nigeria). 

Arguably, the quality of fundamental human rights in a country is directly proportional to its standard of living. Imagine the place of countries, where Right to Education, Right to Good Health, Right to Vibrant Economy, Right to Responsive Government and Right to Social Order are not Fundamental Human Rights. That is the case of Nigeria, although the Political, Social, Educational, Foreign Policy, and Environmental objectives of Nigeria are contained in the constitution of Nigeria (Chapter 2), they are not fundamental human rights. 

As a matter of fact, all the fine objectives of Nigeria and Nigerians contained in the Chapter 2 of the constitution of Nigeria are not contestable in any court in Nigeria. So, no person can go to court to challenge the failure of government to protect him/her, provide good health and stable economy. So, a country with rich list of fundamental human rights and high rule of law, must be a country where human beings are respected and allowed to be human beings. This also determines how human beings from other countries will be eager to visit a country and how safe a country can be.

List of Fundamental Human Rights In Nigeria: 

There are not too many fundamental human rights in Nigeria. The few fundamental human rights in Nigeria are contained in the Constitution of Nigeria, 1999 and also in the African Charter on Human and People’s Rights. The African Charter on Human and People’s Rights has expanded the fundamental human rights in Nigeria.  

The fundamental human rights contained in the constitution of Nigeria are: Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and then, Right to Acquire and Own Immovable Property anywhere in Nigeria. These rights should not be violated by any person, including law enforcement agencies or agents in any part of Nigeria. Consequently, where there is a violation or even mere attempted violation of a fundamental human right, the victim and any other person on behalf of the victim, can seek justice against the violator. 

The Right to Protest: 

Protest is simply the expression of disapproval and objection. It can come in different forms and can be: verbal, written, physical, gesture, social media and others. Both under the constitution of Nigeria and under the African Charter on Human and People’s Rights, persons in any part of Nigeria have the fundamental human right to privately or publicly protest over any issue, any time and any day. 

A protest can be physical and even remotely (social media). Looking at the nature of a protest (physical protest), there will be physical meeting/assembly, songs, chanting, walks and expression of idea/view. All these are protected by several fundamental human rights in Nigeria. A combination of several fundamental human rights, makes up the Right to Protest. 

Composition of The Right to Protest:

The combination and interaction of almost all human rights make up the Right to Protest. Planning for a protest and a protest itself, call to action almost all fundamental human rights. Post protest reactions also affect several other human rights. Below, is a summary of interactions between protests and all fundamental human rights under the constitution of Nigeria. 

1. The Right to Life ensures that protesters are not killed and that protesters do not kill. 

2. The Right to Dignity of Human Person ensures that protesters are not molested, dehumanised and that protesters do not do such to any person. 

3. The Right to Personal Liberty ensures that protesters cannot be detained or confined against their wish without an order of court and that protesters do not do such to any person. 

4. The Right to Fair Hearing ensures that protesters are to be listened to by any court before any decision is taken against protesters rights for their conducts.

5. The Right to Private and Family Life ensures that protesters are free to be with their family and friends and that the phones and personal belongings of protesters cannot be invaded without an order of court and the protesters cannot do such to any person. 

6. The Right to Freedom of Thought, Conscience and Religion ensures that protesters cannot be forced or cajoled to drop their views, ideas, religions and opinions. Rather protesters are free to show and promote their ideas, believes and views in any part of Nigeria. Also, the protesters cannot do such to any person.   

7. The Right to Freedom of Expression and the Press ensures that protesters are free to make known, publish and circulate their views, ideas and opinions. Also, the protesters cannot stop, limit or prevent any other person from doing same. 

8. The Rights to Peaceful Assembly and Association ensures that protesters are free to meet, converge, assemble peacefully with others and associate with them, before, during and after their protest. No government or person can stop such meetings, so far as it is lawful and peaceful. Protesters must also allow non-protesters to be and allow any opposition protesters to exist, too. 

9. The Right to Freedom of Movement ensures that protesters can freely move, walk, march, run, drive, cycle and by any lawful means move in their protest peacefully in any part of Nigeria, without trespassing into any other persons property. Also, protesters must not violate the free movement of any other person. 

10. The Right to Freedom from Discrimination ensures that no protester is discriminated against by any government because of the person’s participation or relationship with a protest or the person’s views on a protest or towards any issue; sex, religion, politics, ethnic group or community. 

11. The Right to Acquire and Own Immovable Property anywhere in Nigeria ensures that no protester is forced to sell his/her property and that no person/government forcefully takes over the landed property of any person because of the owner’s participation or relationship with any protest. Also, protesters must not disturb the rights of other persons to purchase or own landed property. 

Protesters and the Permission to Protest: 

There is an undemocratic federal law (now declared invalid) made since 1979 that requires protesters to seek license/permission from the Governor of the state where protest is to be held, at least within 48 hours before the protest. By that law, if the Governor of a state believes that public peace will not be violated, the Governor may direct a superior police officer to grant permission to the protesters. The federal law (the Public Order Act) is contrary to the constitution of Nigeria since it sets a barrier to the enjoyment of fundamental human rights of protesters in Nigeria. It seeks to contradict the Constitution of Nigeria by violating the fundamental human rights (particularly the Right to Freedom of Expression and the Press and the Right to The Rights to Peaceful Assembly and Association). Any law that attempts to contradict the constitution of Nigeria becomes invalid immediately. 

In a 2006 judgment of the Federal High Court, the Public Order Act was declared invalid sequel to the argument of Mr. Femi Falana, SAN. The same judgment was also affirmed (supported) on appeal by the Justices of the Court of Appeal of Nigeria. The Court of Appeal of Nigeria, stated that: “In 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.”

In declaring the Public Order Act invalid, the Court of Appeal of Nigeria also relied on the decision of the Supreme Court of Ghana, where the Justices in Ghana, stated that; “Statutes requiring such permits 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.” In all, protester in Nigeria do not need any permit or license from any person, government, governor or police before they can protest on any issue, any time, any day and in any part of Nigeria. 

Recommendation and Conclusion: 

Nothing on earth is perfect, inclusive of government and government policies. In democracy, people are free to have an opinion over anything, advance and publicise their opinions without violating public peace and the right of others. This is where public protest and demonstrations come in. All persons in Nigeria have right to peacefully protest in any part of Nigeria. No person needs any permission, permit, clearance, notice or signal for him/her to protest and exercise his/her fundamental human rights in Nigeria. Any law or order that suggest that there is need for such permission is contrary to the constitution of Nigeria and as such invalid. 

Where there is violation of any law during a protest, law enforcement agents can arrest and prosecute the suspected offenders. Protest does not suspend laws, rights and peace. So, law enforcement agents have a duty to respect and protect protesters while the protesters have a duty to respect and protect law enforcement agents and other persons in Nigeria. Live and let live is the key (Ibiri kam biri). 

My authorities, are:

  1. Sections 1, 2, 3, 4, 5, 6, 33 to 46, 214, 215 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 1, 2, 3, 12 and 13 of the Public Order Act, 1979.
  3. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of RANSOME-KUTI & ORS v. AG FEDERATION & ORS (1985) LPELR-2940(SC)
  4. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of AGBAI & ORS v. OKOGBUE (1991) LPELR-225(SC)
  5. The Judgement of the Court of Appeal of Nigeria (on the Unconstitutionality of the Public Order Act) in the case of Inspector-General of Police v. All Nigeria Peoples’ Party (2008) WRN 65
  6. The Judgement of the Federal High Court of Nigeria (on the Unconstitutionality of the Public Order Act) in the case of All Nigeria Peoples Party & Ors. v. Inspector General of Police (2006) CHR 181
  7. Judgment of the Supreme Court of Ghana (on that no permit or license is needed for protests) in the case of of New Patriotic Party v. Inspector-General of Police, Accra (1992-1995) GBR 585.
  8. Femi Falana, “Police Permit Not Required For Rallies in Nigeria” (Premium Times, 23 January 2014) <https://www.premiumtimesng.com/opinion/153860-police-permit-required-rallies-nigeria.html> accessed 14 October 2020. 
  9. “Human Rights” (Stanford, 14 October 2020) <https://plato.stanford.edu/entries/rights-human/> accessed 14 October 2020.
  10. Aisha Salaudeen, “Kanye West and other stars join global protests over police brutality in Nigeria” (CNN, 13 October 2020) <https://edition.cnn.com/2020/10/13/africa/global-end-sars-protests-nigeria-intl/index.html > accessed 14 October 2020. 
  11. Lemmy Ughegbe, “Nigeria: Public Order Act Unconstitutional, Says Law Reform Commission” (All Africa, 14 October 2020) <https://allafrica.com/stories/201411140986.html> accessed 14 October 2020.
  12. Temilade Adelaja, “Thousands of Nigerians Demand Police Overhaul for Sixth Day” (Aljazeera, 13 October 2020) <https://www.aljazeera.com/news/2020/10/13/thousands-of-nigerians-demand-police-reforms-for-sixth-day> accessed 14 October 2020.
  13. Onyekachi Umah, “#EndSarsNow: Nigeria Police Lacks Power To Punish” (Daily Law Tip [Tip 670]) <https://learnnigerianlaws.com/endsarsnow-nigeria-police-lacks-power-to-punish/ > accessed 13 October 2020

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