Senior Advocate of Nigeria, Femi Falana, has said that if the trend of accusing every person of engaging in terrorist activities or treasonable felony for criticizing the Buhari administration continues the Nigeria Police Force and the State Security Service will soon turn Nigeria into a country of terrorists.

The Learned Silk made this statement whilst presenting a paper at the annual public lecture of the Public Interest Litigation Section of the Nigerian Bar Association held at Aba, Abia State from November 7-9, 2019. Speaking on the topic, “Public Protest And The Law”, the learned silk narrated how the right to protest was heavily prohibited and restricted in the colonial era, and the different challenges faced thereafter. He noted while speaking on the right of citizens to protest, that the fundamental right of citizens to freedom of expression and freedom of association are guaranteed by Sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 and articles 10 and 11 of the African Charter on Human and Peoples Act (CAP A9) Laws of the Federation of Nigeria, 2004.

Citing plethora of cases and other relevant laws and authorities, Mr. Falana stated how in recent times, protests were challenged in the democratic era, and he took up the challenge to get judicial pronouncement on the issue.

“In recent time, we had situations whereby the police suspended public meetings without the knowledge or consent of governors while rallies attended by governors have been disrupted by the Police and other security forces. In All Nigeria Peoples Party v Inspector-General of Police  the claimant held a rally in Kano on September 22, 2003 to protest the alleged rigging of the 2003 general election. The rally which was attended by party leaders including General Mohammadu Buhari and other leaders of the plaintiff was violently disrupted by the police. To put an end to such crude violation of the freedom of citizens to convene rallies without official harassment the ANPP and 10 other political parties instructed our law firm to challenge the disruption of the Kano rally.

“We accepted the brief and filed a suit at the federal high court to challenge the the constitutional validity of police permit as a precondition for exercising the freedom of expression and freedom of assembly guaranteed by sections 39 and 40 of the Constitution and articles 10 and 11 of the African Charter on Human and Peoples Rights Act. In defending the action the defendant contended that by failing to obtain police permit the conveners of the rally had violated the provisions of the Public Order Act. The defence of the Police was rejected by the trial judge, the Honourable Justice Chinyere,” he said.

Speaking further, he cited some of the words of the trial judge in holding the right:

“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 right to assemble freely and associate with other persons. I am therefore persuaded by the argument of Mr. Falana that by the 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 right 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 theses rights can be violated.

I also agree with Mr. Falana that the criminal law is there to take care if protesters resort to violence in the course of demonstration and that once the rights are exercised peacefully, they cannot be taken away. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society. It is inconsistent with the provisions of the 1999 Constitution. In particular, sections 1(2),(3),(4),(5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency, they are void. I hereby so declare.”

He also noted that they were completely dissatisfied with the judgment of the Federal High Court on the issuance of police permit for public meetings, therefore, the Inspector-General of Police appealed to the Court of Appeal, and that, upon hearing the matter the Justices of the Court of Appeal unanimously affirmed the judgment of the Federal High Court.

Citing the decision of the penultimate court, he noted that 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.

“Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. A 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. It is a tread recognized and deeply entrenched in the system of governance in civilized countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.” (See Inspector-General of Police v. All Nigeria Peoples’ Party (2008) WRN 65),” he said.

Moving further in his presentation, the learned silk spoke on the official recognition of the right to protest. According to him, the authorities of the Nigeria Police Force were convinced that the decision of the Court of Appeal in IGP v ANPP (supra) could not be faulted. Hence, instead of appealing against the judgment to the Supreme Court the then Inspector-General of Police, Mr. M.D. Abubakar directed all police officers to recognize the fundamental right of Nigerians to assemble freely and protest without harassment.

In the same vein, the Acting President Dr. Goodluck Jonathan ensured that the members of the Save Nigeria Group when not harassed by the police when they held rallies in Lagos and Abuja in 2010 to protest the seizure of power by a cabal when the Late President Umaru Yaradua was indisposed in a hospital in Saudi Arabia. It is also on record that the members of the APC led by General Muhammadu Buhari held a rally in Abuja on November 18, 2014 to protest against insecurity in the country.

Speaking on the renewed onslaught against public protests, however, Mr. Falana, SAN, gave sad accounts of how the current administration violate this right.

“In a bid to prevent Nigerians from organising themselves against repressive rule the Buhari regime has proscribed some organisations and banned all forms of public protests. Because of the vital role of the press in exposing the incompetence, corrupt practices and abuse of power the regime has charged some journalists with terrorism and treasonable felony. For daring to admit one of the journalists to bail the State Security Service has threatened to report a judge to the National Judicial Council. Since then other judges trying the cases of media personnel either refused bail or grant bail under suffocating conditions.

“For agitating for the excision of the Republic of Biafra from Nigeria the Indigenous People of Biafra (IPOB) was branded a terrorist organisation and proscribed in 2017. The proscription has since then been invoked to justify the brutal killing of members of the IPOB by the police and the army. For organizing rallies to compel the federal government to comply with a court order by releasing the Shia leader, Sheikh Ibraheem Elzakzaky and his wife from the custody  of the State Security Service the Islamic Movement of Nigeria (IMN) was branded a terrorist body and proscribed in 2019. The police and the army have also relied on the proscription of the IMN to kill scores of its members.

“For daring to convene protests against misrule by the Buhari administration Mr. Omoyele Sowore was accused of engaging in terrorist activities. At the instance of the State Security Service the federal high court ordered the detention of his detention for 45 days under the Terrorism Prevention Act, 2011 and the Terrorism Amendment Act 2013. Even though no evidence of terrorism was established against him the order of the federal high court for his bail was treated with contempt by the State Security Service. As if that was not enough the SSS had the temerity to threaten to report Justice Taiwo Taiwo for admitting Mr, Sowore to bail.

Instead of calling the SSS to order the Attorney-General of the Federation, Mr. Abubakar Malami has since charged Mr. Sowore and Mr. Bakare with treasonable felony, insulting the President Buhari and money laundering. Other activists who took part in the protests in Calabar, Cross River State, Osogbo, Osun State, Abeokuta, Ogun State and Yaba, Lagos State have been charged with unlawful assembly. The trial judge, Ifeoma Ojukwu J. admitted the defendants to bail under stringent and suffocating conditions. A journalist, Mr. Agba Jalingo has been charged with terrorism for accusing Governor Ben Ayade of Cross River state of engaging in corrupt practices. In the body of the charge Mr Jalingo has been described as “an associate of Mr. Omoyele Sowore,” he added.

Mr. Falana also criticized Mr. Abubakar Malami, SAN’s challenge of the call for revolution by Sowore. According to him, the statement credited to Mr. Malami SAN is a sad reminder of the jittery reaction of the British Colonial invaders to series of lectures organised by the Zikists Movement in 1948 which Comrade Edwin Madunagu has described as a major intervention at a time that bourgeois politicians were dividing the country along ethnic lines. For demanding revolution via public lectures the Zikists were charged with sedition, tried, convicted and jailed. In proving the charge, Osita Agwuna was alleged to have said that he was no longer bound by colonial laws and that he had asked Nigerians to stop paying taxes to the British colonial regime.

He thus concluded by reminding our judges and lawyers that even under the most brutal military dictatorship in Nigeria when the jurisdiction of the courts was ousted for anything done or purported to have been done pursuant to obnoxious decrees, our judges did not hesitate to strike down detention orders and dismissal letters that could not be justified in law.

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