Falana To AGF Fagbemi: Court Case Ongoing, Protests Not In Contempt, Seeks Police Security For NLC Planned Protests

The Nigeria Labour Congress (NLC) has announced plans to hold rallies across Nigeria on February 27th and 28th to protest the rising cost of living in the country. This was disclosed in a letter written by human rights lawyer, Femi Falana SAN to the Attorney General of the Federation and Minister of Justice, Mr. Lateef Fagbemi SAN.

According to the letter, the NLC accused the federal government of failing to fully implement a 16-point memorandum of understanding reached last year when fuel subsidy was removed. The NLC said it had conducted a peaceful protest on August 2nd, 2023 over the issue but the government failed to honor parts of the agreement.

The planned rallies are aimed at expressing the frustration of Nigerians with the high inflation rate, which the NLC blames on government policies like fuel subsidy removal. The letter stressed that the NLC has a constitutional right to peaceful protest. It referred to a Court of Appeal judgment which upheld the rights of citizens to protest on issues of public concern without needing police permit.

The NLC asked the Attorney General to direct the Inspector General of Police to provide security for the protesters as required by Section 83(4) of the Police Establishment Act 2020. The human rights lawyer, Femi Falana SAN, who authored the letter on behalf of the NLC, said the planned protests cannot be deemed contemptuous since the substantive case on withdrawal of fuel subsidy is still pending in court.

The letter puts the federal government on notice that the NLC is proceeding with the mass action. The rallies threaten to paralyze economic activities if the demands of the organized labour are not addressed by the authorities.

February 24, 2024

Mr. Lateef Fagbemi SAN,

Honourable Attorney-General &
Minister of Justice,
Federal Ministry of Justice,
Maitama District,

Abuja, FCT.

Dear Honourable Minister,

RE: MEMORANDUM OF UNDERSTANDING REACHED BETWEEN THE FEDERAL GOVERNMENT OF NIGERIA AND THE TRADE UNION CONGRESS (TUC) AS A RESULT OF DISPUTE ARISING FROM WITHDRAWAL OF SUBSIDY ON THE PRICE OF PREMIUM MOTOR SPIRIT (PMS) ON MONDAY THE 2^ND DAY OF OCTOBER, 2023.

Your letter in respect of the above subject matter refers.

It would be recalled that following the removal of fuel subsidy by President Bola Ahmed Tinubu on May 29, 2023, the Federal Government commenced negotiations with the Nigeria Labour Congress (NLC) and the Trade Union Congress (TUC) as the subsidy removal policy had brought untold hardship to Nigerians.

While the negotiations were in progress, the Federal Ministry of Justice rushed to the National Industrial Court to file Suit No NICN/ABJ/158/2023 between Federal Government of Nigeria & Anor. v Nigeria Labour Congress & Anor in respect of the same issues. On June 5, 2023 the Honourable Justice Yemi Anuwe granted the application of the Federal Government for an ex parte order to restrain the NLC and TUC from embarking on strike against the removal of fuel subsidy.

Although both the NLC and TUC complied with the ex parte order, they promptly filed an application to set aside same for want of jurisdiction. They equally asked for a stay of execution of the order ex parte pending the determination of the motion. The application to set aside the ex parte order filed by the Defendants and the motion for interlocutory injunction filed by the Claimants have not been considered as parties resolved to settle the case out of court.

Even though the parties signed a 16-point memorandum of understanding, the Federal Government did not implement all the terms of the Agreement. Hence, on August 2, 2023, both NLC and TUC held a peaceful protest throughout the country.

Instead of implementing the Agreement the Federal Government initiated contempt proceedings against the NLC and TUC at the National Industrial Court. We challenged the competence of the contempt proceedings. However, the Federal Government turned round to withdraw the application for contempt.

On November 10, 2023, the Federal Government filed another Suit, No NICN/ABJ/322/2023 between Federal Government of Nigeria & Anor. at the National Industrial Court against the NLC and TUC, notwithstanding the pendency of Suit No. Suit No NICN/ABJ/158/2023. On that same day, the President of the National Industrial Court, the Honourable Justice Benedict Kanyip granted an ex parte order to restrain the NLC and TUC from embarking on the planned strike. However, His Lordship directed that the case file be transferred to Justice Olufunke Yemi Anuwe who is handling a similar labour dispute between the same parties. Both NLC and TUC challenged the competence of the fresh suit on the ground that it constitutes a gross abuse of court process, inter alia. The application has not been heard and determined by the National Industrial Court.

Having withdrawn the contempt proceedings filed against the NLC and TUC for embarking on public protest on August 2, 2023, you ought not to have threatened the NLC with contempt of court over its plan to hold rallies from February 27-28, 2024 against the astronomical cost of living in the country. We submit, without any fear of contradiction, that the proposed public protest of the NLC is not contemptuous of the two ex parte orders of the National Industrial Court. In particular, the issue of contempt does not arise as the NLC has challenged the jurisdiction of the National Industrial Court to entertain the substantive case.

It is further submitted that the National Industrial Court has not restrained the members of the NLC from exercising their fundamental rights to freedom of assembly and freedom of expression to protest against the excruciating economic pains being experienced by the masses. In the case of Inspector- General of Police v All Nigeria Peoples Party (2008) 12 WRN 65, the Court of Appeal upheld the fundamental right of Nigerians to protest on matters of public interest without police permit. In the leading judgment of the Court, Olufunmilayo Adekeye JCA (as she then was) held inter alia:

“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…

If as speculated by law enforcement agents that 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.”

Since freedom of speech and freedom of assembly are part of the democratic rights of every citizen of Nigeria the Court of Appeal further held that, “the legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests.” Consequently, the National Assembly has ensured that the right of aggrieved citizens to protest peacefully for or against the Government is protected. Thus, section 83(4) of the Police Establishment Act 2020, which “where a person or organization notifies the police of his or its intention to hold a public meeting, rally or procession on a public highway or such meetings in a place where the public has access to , the police officer responsible for the area where the meeting rally or procession will take place shall mobilize personnel to provide security to provide security cover for the meeting, rally or the procession.”

While we have advised the members of the NLC to conduct the rallies scheduled for February 27-28, 2024 in a peaceful manner, we urge you to use your good offices to direct the Inspector-General of Police to provide adequate security to the conveners and participants in the protest in line with the provisions of Section 83(4) of the Police Establishment Act.

Finally, while awaiting your favourable reply to this letter, please accept, as usual, the assurance of our highest esteem.

Yours Sincerely,

FEMI FALANA SAN, FCI Arb.