Protest Right And Limitations Under The Nigerian Human Rights Law Amidst The #EndSars Protest In Nigeria

By Hameed Ajibola Jimoh Esq.

It is no doubt that in Nigeria, the laws recognises and permits protest which aims at showing public’s disapproval and or reaction to government’s policies or laws made in such a manner that same does not destroy the peaceful co-existence and or established sovereign status of the nation. Some persons are likely to assume that the right to protest is absolute and unrestricted or that such right is absolute so far the protestant do not carry any ammunition and or weapon that could harm another, hence, the insistence that government must permit them to protest and do their protest in any way and manner that they desire under the guise of human rights. The #ENDSARS PROTEST is another protest by which some Nigerians have decided to utilize their right to protest to press home their demands to the Nigerian government, though, it would be observed that those who are in the majority in this protest are the Nigerian youths in both within Nigeria and those in diaspora. Notwithstanding this right to protest, this paper is of the respectful view that the right to protest is not an absolute right rather, it is restrictive and this is what the protestants ought to know and there are some lawyers among these protestants who are supposed to in my humble view, educate and sensitise these angry and emotional youths as to the limits set down by law as duties to their right to protest so that the use of this right to protest does not bring the nation down in the heat of the hot temper and uncontrolled emotional and sentimental (and likely sponsored tribal or ethnical or political) reactions, hence, this topic.

First and foremost, the word ‘protest’ has been defined by the Merriam Webster online Dictionary among other meanings (but relevant to this topic) as ‘the act of objecting or a gesture of disapproval, especially: a usually organized public demonstration of disapproval’. From the above definition of the dictionary, it is clear that ‘protest’ is ‘public’ and it is a form of ‘demonstration’ towards ‘objection’ or ‘gesture of disapproval’.

Furthermore, I must state that there is no such right in our Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution known as right to ‘protest’ rather, the right to protest emanates from the citizen’s right to of expression guaranteed under section 39(1) of the Constitution, which provides thus ‘‘Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference’. A check on this right to freedom of expression under the Nigerian Constitution from which the right to ‘protest’ has been derived, would reveal that this right ‘is not absolute’, rather, it is ‘restricted’ and or ‘limited’. In support of this my respectful submission, section 45(1) of the constitution provides a derogation from this Constitutional right thus ‘Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) 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 persons’. (Underlining is mine for emphasis). This derogation or limitation or restriction is what our protesting but commended youths must know and which lawyers among them (or ready to offer free legal services to) must sensitise them about. In my humble view, a ‘protest’ is not and will not be regarded as clothed as peaceful only because it is termed as ‘peaceful protest’ rather, it is indeed a matter of facts which the burden would in my humble view, be on the protestant to prove to the satisfaction of the court of law as being peaceful, else, the contrary would be considered! See the meanings and categorization of ‘burden of proof’ in the case of ZENITH BANK PLC v. UMOM (2013) LPELR-22001(CA), held thus

“In the case of Kala v Potiskum (1998) 3 NWLR (540) 1 at page 17, the Supreme Court had defined the phrase “burden of proof” as follows:- “The phrase “burden of proof” has three meanings, namely:- a) The persuasive burden. This is the burden of proof as a matter of law and pleadings; the burden of establishing a case whether by preponderance of evidence or beyond reasonable doubt. This is also referred to as the legal burden of proof. b) The evidential burden. This is burden of proof in the sense of adducing evidence. c) The burden of establishing the admissibility of evidence. See also Nwavu v Okoye (2008) 18 NWLR (1118) 29 at 64-5; Ajide v Kelani (1985) 3 NWLR (12) 248; Olusesi v Oyelusi (1986) 3 NWLR (31) 634.” Per GARBA, J.C.A. (Pp.35-36,paras.G-C). Also see the case of STERLING BANK PLC v. FALOLA (2014) LPELR-22529(CA) “Now, burden of proof is the duty to offer evidence in proof of a party’s assertions or counter-assertions, and evidence is the means whereby a Court is informed as to the issue of facts as ascertained by the pleading, that is, the testimony – oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. As Oputa JSC, so very aptly put it – “Evidence is nothing but proof legally presented at the trial on an issue”- see Akintola v. Solana (1986) 4 SC 141.” Per AUGIE, J.C.A (Pp. 34-35, paras. G-B). And it is now the position of law that he who asserts a position or fact must prove that same exists as he has asserted. See the case of: Omin & Ors v. Etim & Ors (2002) LPELR-7146(CA) “Burden of proof is described by section 135 of the Evidence Act as the duty imposed on one who asserts facts to prove the existence of the facts.” Per OLAGUNJU, J.C.A.(P. 26, Para. A). Furthermore, the protesting youths need to be equipped with the consequences of a protest that is beyond their control as they might be jointly liable for whatever illegal or unlawful consequences that might arise as a result of the protest even where the protest is termed as ‘peaceful’. Furthermore, the Constitution has prohibited any form of undemocratic or militant or violent taking over of Nigeria in section 1 of the Constitution thus ‘1.—(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.’. Furthermore, it is quite surprising that despite the facts that some persons had utilized their right to electing their leaders into government, they turn around to violently object to the same government which they had through their power of vote brought into power and have aimed at destroying the sovereign status of Nigeria, this situation is indeed undemocratic and a call for the Nigerian government to prevent same from happening and the government must study all circumstances to discover any hidden agenda in any termed ‘peaceful protest’ as that is the duty of a democratically reasonable government because if care is not taken, government might lose its status as a sovereign and indivisible nation as espoused by its Constitution as well as control over its people that it governs. For instance, the indivisible sovereign status of Nigeria is as espoused in section 2 and 3 of the Constitution thus ‘2.—(1) Nigeria shall be one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria. (2) Nigeria shall be a Federation consisting of States and the Federal Capital Territory, Abuja. 3.—(1) There shall be thirty-six States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara. (2) Each State of Nigeria named in the first column of Part I of the First Schedule to this Constitution shall consist of the area shown opposite thereto in the Second Column of that Schedule. (3) The Headquarters of the Government of each State shall be known as the Capital City of that State as shown in the Third Column of the said Part I of the First Schedule opposite the State named in the First Column thereof. (4) The Federal Capital Territory, Abuja, shall be defined in Part II of the First Schedule to this Constitution. (5) The Provisions of this Constitution in Part I of Chapter VIII hereof shall, in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder. (6) There shall be seven hundred and sixty-eight local government areas in Nigeria as shown in the second column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule’. Therefore, it means that any attempt by any person geared towards the destruction of the peaceful co-existence and to implant division in the heart of Nigerians is not only an abuse of the right to freedom of expression (and any other human rights) guaranteed under the Constitution but also criminal or an attempt to commit offence by which section 35 (1) (c) of the Constitution shall become relevant and applicable to curb such likelihood of deviation. The said section 35(1) (c) of the Constitution provides thus ‘35. —(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law—  (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;’ (Underlining is mine for emphasis).

Furthermore, it must be noted by the protesting youths and or persons that the provisions of the Constitution is not interpreted by a Court of law in isolation rather, the entire provisions of the Constitution are construed and interpreted by the Court in deriving the appropriate meanings and or inferences from the Constitution. Therefore, the grant of a right to protest also inputs the obligation of certain duties jurisprudentially on such protesting persons and their failure to fulfill such obligations and or duties cannot be hung on defence of human right to freedom of expression or right to peaceful protest. The burden of proof therefore, lies on such persons to prove to the court of law at the appropriate time that what they carried out was ‘peaceful’, however, such protesting persons must bear in mind that they are likely to be parties in crimes and or conspirators where a crime is committed in the course of utilization of their right and then the right would have been either abused or misused. For instance, in the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC). v. ADMIRAL MURTALA NYAKO & ORS (CONSOLIDATED) (2011) LPELR-CA/A/117/2011, the Court of Appeal of Nigeria held thus ‘INTERPRETATION OF STATUTES – CONSTITUTION: Whether provisions of the Constitution should be interpreted in isolation or not. “The law is settled that the provisions of the Constitution should not be interpreted in isolation but rather along with other related and relevant provisions thereof which assist in achieving the object intended by the framers. For instance, in the case of P.D.P. v. INEC. (1999) 7 SC. (Pt. II) 30, (1999) 11 NWLR (626) 200 at 249, Uwais, CJN had pointed to what is required to be done in interpreting the provisions of a Statute or Constitution as follows:- “It is settled that in interpreting the provisions or Section of a Statute or indeed the Constitution, such provisions or Sections should not be read in isolotion of the other parts of the Statute or Constitution, In other words, the Statute or Constitution should be read as a whole in order to determine the intendment of the makers of the Statute or Constitution.” See also OJUKWU v. OBASANJO (2004) 7 SC. (Pt. II) 117 at 124.” Per GARBA, J.C.A. (P.48, Paras.C-G). The Court further held thus ‘COURT – DUTY OF COURT: The duty of the court where the provisions of a Statute or Constitution are clear. “Similarly, the law is also well known that where the provisions of a Statute or Constitution are clear and unambiguous, the duty of the court would simply be to give them their plain and ordinary meaning since the words used best say the purport of the provisions. The only caveat is that where giving plain and ordinary meaning would result in an absurdity, giving the peculiar facts and circumstances of a case. RE:OLAFISOYE (2004) 1 SC (pt. II) 27 at 60. OJUKWU v. OBASANJO (supra) at page 124. AGBAREH v. MIMRA (2008) 2 MJSC. 134, SHEHM v. GOBANG (2009) 6 MJSC (pt. II), 162. In addition, in the interpretation of constitutional provisions, all the accepted canons or rules of interpretation would be employed and would not abate in the effort to get at what the aim and intent of provisions are in the context of the facts to which they are to be applied. See: F.R.N. v. OSAHON (2006) ALL FWLR (312) 1975 at 2001, LEMBOYE v. OGUNSUJI (1990) 6 NWLR (155) 210. It is also settled law that the provisions of the Constitution are to be interpreted literally and liberally particularly where they admit of no ambiguity.” Per GARBA, J.C.A. (P.49, Paras.A-F). Finally, relevant to this discourse too, the Court held thus ‘7. COURT – DUTY OF JUDGE: Duty of Judge when interpreting the Status or Law “The duty of a judge is to expound the law and declare it to be what it is. A judge is not a propagator of public policy. See IN RE MIRANS, Ex PARTE OFFICIAL RECEIVER (1891) 60 L.J.REP. (N.S.) Q.B.399 where CAVE, J. said thus: “Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.” HON. JUSTICE ADEREMI, JSC, cautioned judges in OBI V. INEC (supra) at 643 as follows: “The power of interpretation must be lodged somewhere and the custom of the Constitution has lodged it in the Judges. If they are to fulfill their functions as Judges that power could hardly be lodged elsewhere. But, justice according to law which any good Judge must ensure he dispenses at all times, demands that even when he (the Judge) is seen to be free by the enormity of the power conferred on him, he is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness or what colouration a piece of law should take. The Judge must always draw his inspiration from consecrated principles. The next question that follows, is, what are these principles? Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meanings without any colouration. It is true that courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counseling. The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the Statute. If at the end of the interpretative exercise carried out on the provisions of Statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy. That will not be healthy for the development of the law and its administration.” Per Adumein, J.C.A. (Pp.130-132, Paras. G-B).

Therefore and finally, it is my humble view and submission that the protesting youths must continue to carry out their protest in such as a way and or manner as allowed by law and democracy as no reasonable government would permit disorderliness, criminality and or abuse of human right or deviation in any guise and the onus or the burden of proof would lie on such protestants to prove at the appropriate time that they have all the while been within the limits set by laws. Also, the Nigerian lawyers that have vowed to render free legal services to any protesting person arrested and or detained should not wait until there is an arrest and or possible detention before they act! Lawyers hold the professional and ethical duties as Ministers in the temple of justice to duly and legally give legal and professional counsel/advice (especially in such a way that would not permit arrest and or detention, as prevention is better than cure) to their clients or prospective clients and the societies in such a way that the public are not mislead and or misguided. The said Rule 1 of the RPC provides thus ‘‘A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner’. Furthermore, lawyers are officers of court. For instance, Rule 30 of the RPC provides thus ‘A lawyer is an officer of the court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely; affect the administration of justice.’. Also, lawyers must remember that the same law that governs the society governs them too as lawyers and nothing says that lawyers when acted criminally are absolved from any criminal liability! Therefore, they must be well guided and act within the bounds of the law. See: Rule 15 of the RPC. Finally, I humbly request that both the government and the protestants have the duties to maintain law and order that keeps Nigeria progressive. Therefore, it is recommended here that government should utilize all available powers to reach concession with the protesting youths in as much as the Protestants act within the bounds of the law. Also, united we stand but divided we fall! Nigeria and Nigerians shall continue to rise and not fall by God’s grace!

God bless the Federal Republic of Nigeria! God bless the Nigerian citizenry!

Email: hameed_ajibola@yahoo.com