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The Right to Protest: Legal or Not? (2)

February 14, 2021 | Estimated Reading Time: 3 minutes
Written by Tolu Okunade

This is the second part of a two-part piece that hopes to shed light on the Right to Protest and the Controversy surrounding the arrest of Protesters at Lekki Toll Gate Yesterday.

  • The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

Under Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is entitled to assemble freely and associate with other persons.

Section 45 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.

National Legislation

The 1979 Public Order Act is the primary legislation regulating assemblies in Nigeria.

In 2007, the Court of Appeal quashed several sections of the Public Order Act; the Court’s decision, however, has not yet been reflected in legislative changes. Notification is no longer required unless the organisers wish to receive police protection. In its 2007 judgment in All Nigeria Peoples Party V. Inspector-General of Police, Justice Adekeye held that:

“The Public Order Act should be promulgated to complement 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 trend 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.”

  • The International Human Rights Framework on the Right of Peaceful Assembly

Nigeria is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:

“The right of peaceful assembly shall be recognized. 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 in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

At a Regional level, Nigeria is a state party to the 1981 African Charter on Human and Peoples’ Rights. Article 11 provides as follows:

“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.”

Nigeria is a state party to the 1998 Protocol on the African Court on Human and Peoples’ Rights but has not allowed the right of petition to the Court by individuals and non-governmental organisations.

In conclusion, the Nigerian government should endeavour to internalize the fact that sovereignty belongs to the people and that government exists solely for the welfare and security of the people and must preserve and defend the people and the Constitution of the Federal Republic of Nigeria, which they swore in their Oath of Office to protect. The Army and other security forces should understand that right to protest is a constitutional right of citizens to hold the government accountable which will invariably lead to the progress and development of the country and in the long run will be of great benefit to everyone whether in uniform or not. The security agencies are strongly advised to be patriotic in the discharge of their duties and must at all times protect the lives, rights and well-being of the Nigerian people.

Overzealousness to harm fellow citizens who are patriotic enough to demand a better Nigeria is simply foolhardy, imprudent and an act of gross misconduct. They should learn from their colleagues all over the world. Just last year in Malawi, the Malawian army played a crucial role during times of political and social turbulence in March 2019 by standing with the people and ensuring that their country becomes a better place.

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