Understanding the Right to Protest in Nigeria; A case Study on the #EndSars Protest

4 Minutes Read

Protests play an important part in the civil, political, economic, social and cultural life of all societies. It is simply the expression of disapproval and objection. It can come in different forms, verbal, written, physical, gesture, social media and others. Historically, protests have often inspired positive social change and improved protection of human rights, and they continue to help define and protect civic space in all parts of the world.[1]

One of the recently most abused rights in Nigeria is the right to protest entrenched in the right to peaceful assembly[2], freedom of thought, conscience and religion[3]and freedom of expression[4] under the 1999 Constitution of Nigeria as amended and International human right framework. This is evident in the unjustified use of firearms, tear gas, unreasonable force, unlawful arrest of protesters and extrajudicial execution of protesters as a way of dispersing, suppressing, demeaning the right to protest and silencing the voice of citizens.   

The End SARS Protest October 2020 is a classical example of the abuse of the right to protest in Nigeria. The End SARS Protest is a decentralized social movement against police brutality in Nigeria spear headed by the Nigerian Youth in the major cities of the country accompanied by vociferous outrage on social media with the Hash Tag #EndSARS, calling for the disbanding of the special Anti-Robbery squad (SARS), a notorious unit of the Nigerian police with long records of abuse and impunity.[5] According to the report by Amnesty International at least 12 people were killed at Aluasa and lekki Toll gate Lagos, and about 56 dead during the protest, hundreds severely injured and CCTV dismantled to prevent evidence which amounted to extrajudicial executions which were traced to be by the Nigerian police and Nigerian Army on government directives[6]. The recent ruling of the #EndSARS panel on November[7] also confirmed the actual use of force, ammunition and loss of lives occasioned by the government orders of the Arm forces at the Lekki and Alausa, Lagos amongst others. According to the report by Amnesty International, two years after the #EndSARS protests, over 40 protesters are still languishing in prisons across Nigeria, while panels set up to investigate police impunity have failed to deliver justice to hundreds of victims of police brutality. Another example is the excessive use of force and unlawful arrest of people in Abuja, Lagos, Abeokuta, osun and kano during the #revolutionnow protest on 5th August 2020 [8]and the Pro-Biafra agitation for a republic of Biafra.[9]

LEGAL FRAME WORK ON THE RIGHT TO PROTEST

Under the constitution of Nigeria and International legal frameworks, persons in any part of Nigeria have the fundamental human right to privately and publicly protest over any issue, any time and any day. Under Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)[10], every person is entitled to assemble freely and associate with other persons. Section 45[11] permits these rights to be restricted in the interests of defence, public safety, public order, public morality or public health, or to protect the rights or freedoms of others. Section 38[12] provides for the right to freedom of thought, conscience and religion and Section 39[13] provides for the right to freedom of expression. The right to protest is a fundamental right entrenched by the 1999 constitution under these rights mentioned above. However the right to protest even though not absolute can only be restricted in line with the provisions of the constitution which must be either by a valid order of a court of competent jurisdiction or where there is a valid state of emergency or where there is a valid democratic law prohibiting protest.[14]

The right to peaceful assembly has also been provided for under international law. The International Covenant on Civil and Political Rights (ICCPR)[15] which Nigeria is a state party to, in Article 21 provides for the right of peaceful assembly and that no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society. The Universal declaration of human right adopted by the united nation in1948[16] which Nigeria is a signatory to also provides that everyone has the right of freedom of assembly and association.

On regional level, Nigeria is a State Party to the African Charter on Human and Peoples Rights[17], Article 11 provides:

“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”

The right to protest is a fundamental right entrenched in the 1999 constitution of the Federal Republic of Nigeria and under the International legal framework

The Role of the State and Law Enforcement Agency in protest

The duty of the state and law enforcement agencies under local and international law is to facilitate protest and ensure the proper enforcement of the right to peaceful assembly and ensure maintenance of public order. It is the duty of the Nigerian police[18] and civil defense corps[19] in Nigeria to monitor and maintain internal peace and order as provided in relevant laws, they also serves as mediators and a neutral party in protest. Section 4 of the police establishment Act,2020 [20]provides for the role of the police force, amongst which is protection of rights and freedom of every Nigerian in accordance with the constitution of the federal republic of Nigeria, sec 83 (4)[21] provides for adequate security for citizens who participate in public meetings and rallies.

Principle 2 and principle 12 of the Resolution on Promotion and Protection of Human Rights[22] in the context of protest imposes obligations on nation state to respect the right to protest and ensure the protect the right to protest and adopt human right approach to police protest. In the case of All Nigeria Peoples Party & ors V. Inspector General of police[23]The court ruled against police permit as a requirement for holding protest, as it contradicts section 40 and 39 of the 199 constitution and section 11 of the African Chatter of human and persons right[24], unless the organizers wish to receive police protection.

The role of the military under the 1999 constitution by virtue of sec 217[25] is to defend Nigeria against external aggression, maintain its territorial integrity and secure its boarders from violation and act in aid of civil authorities to restore order when called upon to do so by the president which is usually in extreme cases. From the provision of the constitution the military do not have a role to play in protest except in extreme cases, however where the military becomes involved in protest the military must comply with international human rights law and standard on policing and principles on the use of force.[26]

The duty of the government and law enforcement agencies is to facilitate protest and ensure the proper enforcement of the right to peaceful assembly and ensure maintenance of public order.

The Right to arrest and Detention

Even though the police have the right to arrest under protest, such arrest and detention must be justifiable; any arrest done must be in the interest of defence, public safety, public order, public morality or public health or (b) for the purpose of protecting the rights and freedom of other person. It is clear that when a civil protest reinforces threats of violence, commission of crime, and threat to public safety, it becomes a threat to national security and must be aborted in order to ensure peace, in that situation police can arrest such individuals who pose such threat. In the same vein where a protest has no element of violence or crime in any form, the citizens should be allowed to exercise their right to express their grievances and enforce their rights and any form of arrest and detention would amount to unlawful arrest and detention

The use of force and fire Arms

According to the 1990 United Nations Basic Principles[27]on the use of force and fire arms by law enforcement officials it provides that, in the dispersal of assemblies that are unlawful but not violent, law enforcement officials shall avoid the use of force or where that is not practicable, shall restrict such force to the minimum extent possible.[28]

Section 102 of the criminal procedure code[29] (applicable in the northern states) permits the use of force by police, but does not define the extent of the force to be used. Sec 73 of the criminal code[30] as amended (applicable in the southern states) allows the use of force reasonably necessary to overcome resistance to dispersal.

Secondly, according to the united nation basic principles 1990[31] a law enforcement official in dispersing of violent assemblies may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and prominent threat to life. Sec 73 of the criminal code[32] provides that an officer dispersing an unlawful assembly/riot shall not be liable in any criminal or civil proceeding for having, by use of such reasonable necessary force, caused harm or death to any person.

The Police Force Order 237[33] rules of guidance in the use of firearms by police provides that police can use fire arms when necessary to disperse rioters or to prevent them from committing serious offence against life and property, furthermore 12 or more people must remain riotously assembled beyond a reasonable time after the reading of proclamation before the use of firearms can be justified. However paragraph 6 provides that fire should be directed at rioter’s knees and any ringleader at the fore front of the mob should be singled out and fired on. These laws violate international law and standard on the right to protest, as it allows for brutal use of lethal force.[34]

What happens when the custodians of human rights become the perpetrators of the violation of these rights?

Conclusion

The reoccurring abuse of the right to protest by the state and law enforcement agencies is a growing concern. It is also evident that even though the laws provides for protest, they are not efficient and there is a need for reform on some of the laws providing for the right to protest in Nigeria, especially on the use of force and fire arms, there is also a need to review the Security system especially the police system including a review of salaries and structures to give them more autonomy to carry out their duties independently, impartially and as neutral parties. Furthermore, the security/arm forces in carrying out their duties of protecting the rights of the citizens must not themselves be perpetrators of these violations, as it is ultra vires and amount to abuse of power. There is also an urgent need to educate law enforcement agencies on their role/responsibilities in protest, in other to protect and preserve the right to protest and citizens in the country. Summarily, the law enforcement agency must always see themselves as independent and neutral parties and must not allow themselves be used as puppets of human right abuse as it undermine the concept of a human right and the security of citizens in the Country.

Law enforcement Agencies must not allow themselves to be used as puppets of human right abuse as it undermines the fundamental concept of human rights and the security of citizens in the Country.


[1] Kingson Uwandu, Right to Protest: A Fundamental human right,  24th, Nov (2020). The Guardian

https://guardian.ng/features/law/right-to-protest-a-fundamental-human-right/

[2] Section 40, 1999 constitution of the federal republic of Nigeria (C.F.R.N) as amended Cap.23. Laws of the federation of Nigeria (L.F.N) 2004.

[3] Section 38,Ibid

[4] Section 39,Ibid

[5] Nigerria protests: president Buhari says 69 killed in unrest, 23 October (2020) BBC.

https://www.bbc.com/news/world-africa-54666368

[6] Press Release, Amnesty International, UK (21 Oct. 2020).

https://www.amnesty.org.uk/press-releases/nigeria-least-12-endsars-protestors-killed-military

[7] https://cdn.pmnewsnigeria.com/wp-content/uploads/2021/11/JPI-REPORT-FOR-LEKKI-INCIDENT.pdf

[8] Dennis Erezi, Police, Army arrest #RevolutionNow Protesters in Abuja, Others, 05 August 2020. The Guardian.

[9] Amnesty International, Nigeria: At least 115 People Killed By Security Forces In Four Months In Country’s Southeast.(Aug.05 2021)

[10] Supra (n.2)

[11] (1999) C.F.R.N as amended, Cap.23 L.F.N 2004.

[12] Supra (n.3)

[13] Supra (n.4)

[14] Ibid (n.11)

[15] United Nations (General Assembly), (1966) Treaty Series, Vol. 999 p.171

[16] UN General Assembly,(1948) pp.art.21.3

[17] African Union (1981) CAB/LEG/67/3 rev, 5,21 I.L.M. 58

[18] section 4 Nigeria Police Act ( 2020)cap.p19,L.F.N 2004

[19] section 1 Nigerian Security and Civil Defence Corps Act(2007) Act No.6

[20] Ibid

[21] Ibid

[22] UN Human Right council(2016)A/HRC/RES/32/13

[23] (2007)18 NWLR (pt.1066)457 at 498-499

[24] Supra (n.14)

[25] (1999) C.F.R.N as amended, Cap.23 L.F.N 2004

[26] Francis Odoh, The Consistent Failure of Law Enforcement Agencies in Proper Handling of Protest in Nigeria: A Rising Concern. (December 2, 2021) Legal Ideas Forum.

https://legalideasforum.com/2021/12/the-consistent-failure-of-law-enforcement-agencies-in-proper-handling-of-Protest-in-nigeria-a-rising-concern.html

[27] UN Crime Congress (1990)

[28] The International Human Right Framework on the Right of Peaceful Assembly (10 may 2021) Right of Assembly Info, Laws on Right of Peaceful Assembly Worldwide.

https://www.rightofassembly.info/country/nigeria

[29] (1978) Cap 21 laws of FIJI

[30] (1916) Cap C38 LFN 2004.

[31] Supra (n.27)

[32] Ibid

[33] Order 237, rules of engagement.

[34] Ibid (n.28)

Published by faithakatiki

Faith Joseph is a Nigerian Citizen, a Personal Development Blogger and a young social development champion and a Lawyer by Profession. Akatiki is an lover of all forms of expressive art and has excelled in performing various. She is a passionate Writer and an Activist, she believes strongly in gender equity and holds the view that rather than being treated as male or female, we should be treated as humans irrespective of gender and make the world a better place for all.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: