Introduction

Many, especially officers of the Nigerian Police Force, have argued that no protest is lawful under the law unless and except permission is obtained from the Nigerian Police, or the Governor of a State. This line of argument is mostly supported by the citation of Section 1, 2 and 3 of the Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004 of which provision shall be reviewed subsequently.

Notwithstanding, it must be clearly understood that the protection of the right to freedom of assembly is absolute and fundamental in a federal, democratic society like Nigeria.

The state is primarily saddled with the responsibility to protect the right to freedom of assembly, as well as every other right of citizens as enshrined in the constitution and other relevant body of laws. Regarding the right to freedom of assembly however, there is also an obligation on the part of the citizen to ensure that their right is exercised in accordance with the law.

Constitutional and Legislative Provisions on Right to Protest in Nigeria

Protest simply means a solemn declaration of opinion, usually of disagreement, usually through various means like verbal, written, physical demonstrations, social media etc. Worthy of note, 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, when ever (any time, any day), but note however (it must be in accordance with the law).

The Public Order Act, 2004

Under the Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004, the governors of the respective states of the Federation were exclusively vested with the power to regulate public meetings, processions and rallies within their jurisdictions. Thus, by virtue of Section 1 of the Act, the Commissioner of Police or any other police officer has no power to issue a permit for any meeting or rally unless with the authority of the governor. 

The 1999 Constitution

However, the Constitution of the Federal Republic of Nigeria in Sections 39 and 40 provides for the absolute and exclusive right of freedom of expression and of assembly thus:

Section 39:

1. Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
2. Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.
3. (a) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.

Section 40:

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 this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.

You can read a simplified version of this section and other sections of the Constitution here.

The above sections of the Nigerian constitution make it clear that every citizen of Nigeria has undisturbed right to expression, assembly and association in accordance with the law.

The 1999 Constitution and The Public Order Act, 2004

Remember that Section 1 of the Nigerian Constitution mandates that;

the provisions therein contained are superior to any other law, and if such laws are in any way inconsistent with the provisions of the constitution, such laws shall to the extent of their inconsistency be void.

It is right to state that if the constitution has given every person the right to express themselves lawfully, assemble, protest peacefully, form lawful associations etc, then any other law that prohibits these constitutionally guaranteed rights shall be void.

Remember that Section 1 of the Nigerian Constitution mandates that the provisions therein contained are superior to any other law, and if such laws are in any way inconsistent with the provisions of the constitution, such laws shall to the extent of their inconsistency be void.

It is right to state that if the constitution has given every person the right to express themselves lawfully, assemble, protest peacefully, form lawful associations etc, then any other law that prohibits these constitutionally guaranteed rights shall be void.

In the case of All Nigeria Peoples Party & Ors. v. Inspector General of Police (2006) CHR 181 the Plaintiffs being registered political parties held unity rallies throughout the country to protest the rigging of the 2003 elections. There was a violent disruption of the rally organized in Kano on the 22nd of September 2003 on the ground that no police permit was obtained.

In a suit filed at the Federal High Court against the Inspector-General of Police the Plaintiffs challenged the constitutional validity of police permits under the Public Order Act and the violent disruption of the rally. In defending the action the Defendant contended that the conveners of the rally did not obtain a police permit.

On the inconsistency of police permit with Sections 39 and 40 of the Constitution and Article 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004 the learned trial judge dismissed the argument of the Defendant and upheld that of the Plaintiff Counsel, recognizing the combined effect of Sections 39 and 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights.

Further, it was stated that the above mentioned constitutionally guaranteed rights can only be violated by the procedure permitted by law, under Section 45 of the Constitution, in which case there must be a state of emergency properly declared (in situations where the protesters resorts to violence and endangering the security of lives and properties of other citizens – read Section 45 of the 1999 Constitution to see all the exceptions laid down by the Constitution). The judgement of the Federal High Court in this matter has been upheld by both the court of Appeal and the Supreme Court.

Conclusion

Protesters in Nigeria do not need any permit or licence from any person, government, governor or police before they can protest on any issue, any time, any day and in any part of Nigeria. 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.

The sections of the Public Order Act which requests that people who desire to engage in a peaceful protest are to first obtain a licence from their state governor is invalid and unconstitutional as the Courts ruled in ANPP & ORS V. Inspector General of the Police, 2006 Supra. All persons in Nigeria have the right to peacefully protest in any part of Nigeria as is contained in the 1999 Constitution.

Finally, persons who plan on embarking a peaceful protest in Nigeria must take note of the following tips:

• Always ensure to avoid violence during protests.
• When confronted by police officers, calmly inform them that the law does not require the issuance of a permit before a rally can be organised.  
• When harmed by security agents, first seek medical attention and obtain medical reports and pictures of the harm done. Then contact a lawyer, human right organisation or NHRC for assistance in notifying the appropriate authority in charge of the offender, attaching the medical reports and pictures to the notice. If no positive response is received, then proceed to file a case in court to seek the enforcement of your right. As an alternative to filing a suit, you could ask a lawyer to write a petition to the authorities in charge of the offender (the AIG or Human Rights Department of the Nigerian police Force, in the case of an offending police officer).

Written by Desmond Otikpa