LEGAL IDEAS FORUM

REJOINDER-A CRITICAL ANALYSIS ON THE CONSTITUTIONAL RIGHT TO FREEDOM OF ASSEMBLY:THE NIGERIAN PROTEST.

Chigbo Chinemelum:
Section 39(1) talks about right to freedom of
expression including freedom to hold opinions, receive and impact ideas and information without interference.  Section  39(3) provides that nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society. Now pertaining to protest, an act of the national assembly provides that it must be registered with the police for it to be valid  Now, did Tuface and others register the protest with the police? No! This shows that right to freedom of expression is not absolute just like every other provision pertaining to fundamental human right under our constitution. It is qualified by subsection 3 as we can see.
Under Section 40, right to freedom of association is not wide enough to cover an assembly for protest even though  they said peaceful protest. So, every protest must be registered with the police. And ofcourse the police has the power to approve it or not. No need of wasting time on right to freedom of movement under Section 41
You can now agree with me that none of the sections of the criminal code is directly or indirectly inconsistent with any provision of the constitution as we have seen that no fundamental right is absolute.  the protest will likely bring about a breach the public peace. see sections 69 to 75 of the criminal code especially sections 72 and 73. “The armed forces can decide to exercise their powers under these sections.  If they are not in support of the protest.”
Section  73 provides that no civil or criminal proceeding shall make them liable if they cause harm or death of any person that proceeds with such assembly (protest etc) The combined effect of sections 72 and 73 (supra) is that the relevant authorities concerned have the discretion to term any assembly for peaceful protest an “unlawful assembly”,
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Valentine Nnabuenyi Ezeuchu:
The provisions of sections 72 &73 of Criminal Code, should not be inconsistent with the provision of the 1999 constitution. If it does,  Section  1 (3) makes it clear that to the level of its inconsistency it is null & void.
I beg to differ from your view. There is no law or an act of the National Assembly  that mandates citizens to register with the police before embarking on a peaceful protest, if you say there is a law “he who asserts must prove”. Similarly,  the FHC in 2014 declared the action of police null & void in the case of BringBackourGirls v. IGP, where the police banned the group from having a protest in the federal capital territory. It  is also pertinent to bring to your notice the decision of the supreme court in Atiku abubakar v IGP (2007) the apex court was of the opinion that the police having regard to the nature of their functions should at all times carry it out in such a manner that fairness and impartiality will at all times be ascribed to it.
All over the globe where democracy is practiced, the right to peaceful protest has received both judicial, legislative and even moral backing. Nigeria under president Buhari will not be an exception. A protest of this nature was carried out in the same Lagos state in 2012 when the Goodluck administration removed the fuel subsidy.
Also let me draw your attention to what is happening in America, there has been series of protest going on from the day Donald Trump  was declared winner till today and the American police are always there to protect lives. You must agree with me that both 1979 & 1999 Constitution to a great extent was drafted in replica to the of American Constitution. So my learning colleague in equity,  until you can show me the exact law supporting your argument, I think your position is made  par injuries. 
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Chigbo Chinemelum:
God forbid that a lawyer knows all the law, but a good lawyer is one who knows where to find the law” – Lord Denning. Now, see sections 1, 2 & 3 of the Public Order Act (cap 283, Laws of federation of Nigeria) based on my assertion above. The act actually vested the power on all the governors to approve and determine how every protest should be done, but the police
normally exercise this power on behalf of the governor of the state in question. In AG Ondo state v. AG Federation, the supreme court recognized the existence and validity of this act which was made under the then Sections 274 of 1979 constitution (See Osita Nnamani Ogbu on ‘Invoking The Original Jurisdiction of The Supreme Court”, Unizik Law Journal, Vol. 7, Number 10, 2007) Meanwhile, it is pertinent to point out that for the fact that prosecuting authorities fail to bring an action under any act does not affect its validity. OK, how many cases have been brought under Dogs Act? mosquitoes prevention Act etc? but those acts are still valid. That people have been breaching any given act without being prosecuted is immaterial. someone must surely become a scape goat on a very good day.
Furthermore, “Bringbackourgirls” as a party to the above suit which you mentioned is never a legal person which is capable of maintaining or defending any action in law. Meanwhile, you should know that although the Nigerian constitution resembles that of America because we imitated theirs, two of them are not coterminous. These are the correct positions of the law on some of the basic issues which you raised.
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Valentine Nnabuenyi Ezeuchu:
Thank you for that observation I must commend. But the Public  Order  Act  cap 382 LFN 1990 which you relied on making your submission is a dead & buried law. There have been series of judicial pronouncement on the law, the latest was in ANPP V IGP (2006). The plaintiff organised a rally to protest the rigging of 2003 election without the permit of the police.the police disrupted the rally. An action was brought against the police.  The defendant relying on sections 1, 2, 3  of the act to justify their action. In dismissing the police contention the FHC held inter alia that the police permit is directly inconsistent with sections  39, 40 and Article 11 of Africa charter.  Aggrieved the police went on appeal. The appeal court confirmed the decision of the lower court and was of the view that police can only exercise that right under section  45 which provides that there must be a state of emergence duly declared. The appeal court relied on the judgement of the Supreme Court of Ghana in New patriotic party v.  IGP Accra where it was observed that statutes requiring such permit before citizens will embark on peaceful protest are things of the past. According   to the court police permit is brain child of the colonial era & ought not to remain in our law.
Also see the Nigeria Police code of conduct enacted on 10th of Jan 2013. In the case of BBOG v IGP supra the judge S.E ALADETOYINBO not only maintained that the police have no right to ban a protest but went ahead to award 200million naira to the group. He overruled the objection that the group was not a legal entity recognised under CAC. you may read the case to see d reasoning behind his decision.
Also, the Nigerian constitution and that of America may not be coterminous, definitely they are synonymous. The sections 69, 70, 71 of the criminal code you mentioned above is specifically clear on what is unlawful assembly (riot) and does not include peaceful protest.
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Chigbo Chinemelum:
Nice, but there are still some misconceptions viz: one, you can’t  say that the public order act is a dead law because the apex court did not declare so. The decision of the Federal high court in ANPP v. IGP cannot be supported with due respect. The reason is that it is in conflict with the decision of the Supreme court in AG Ondo v. AG Fed. (See Osita Nnamdi Ogbu on ‘Invoking The Original Jurisdiction of The Supreme Court”, Unizik Law Journal, Vol. 7, Number 10, 2007). The practice direction in Nigeria is that court of appeal takes precedent from the supreme court while High court takes precedent from the court of appeal. It means that any judgment that is inconsistent with that of supreme court is void and of no effect. But the Federal high court has violated this rule. This amounts to judicial rascality and such judge is capable of being sanctioned. 
Again, the decision of foreign courts are merely persuasive, they can never be binding authorities on earth in Nigeria. so the decision of the supreme court of Ghana in New Patriotic  Party v. IGP Accra can not serve as a strong authority in Nigeria because it is not binding. So the Court of Appeal reached that decision per incuriam by relying solely on the decision of the supreme court of Ghana. From what we have said so far, nothing shows that the supreme court of Nigeria has invalidated the public order Act. It is hoped that you will show us the decision of the supreme court that buried that Act if there is any since the Evidence Act requires that he who asserts must prove. Of course  the onus of proof is strongly on you to establish what you posited. Otherwise,  all is nullity. Of course  like I said before, the supreme court has acknowledged the existence and validity of that Act in AG Ondo v AG fed supra. The decision by the trial judge in the case of BBOG v IGP cannot stand as well since it is in conflict with the decision of the SC in AG Ondo case. Then again, you agreed that the CFRN is not coterminous with the American constitution, it means that they are not on all fours even though they are synonymous. Synonymous things dont fit in at all places and at all time. finally, I was specific in directing you to sections 73 and 74 of the criminal code, I only included other sections for you  to understand other related issues. let me remind you again that sections 73 and 74 gave the police and other specific authorities the power to determine and dismiss any assembly that will likely breach the public peace on their own volution. This power can be exercised maliciously if the police is not in support of any protest.
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Valentine Nnabuenyi Ezeuchu:
With due respect I need to remind you that the public order Act was never the subject matter in the case of AG ondo v AG federation, as a matter of  fact the issue was the constitutionality of Laws made by the State  House  of Assembly. unless there is another case between AG ondo state v AG Federation which I may need the citation or better still you give us the fact. Similarly,  I have to remind you that the original jurisdiction of the supreme court can only be invoked in disputes between the state and federal government.  Clearly,  peaceful protest to the best of my knowledge has never been a dispute between the state and federal government which I may also need you to clarify me if there is any. Having said this,  according to hierarchy of courts, since the supreme court have not directly pronounced on the constitutionality of sections 1,2,3 of Public  Order  Act,  the recent appeal court decision in ANPP V IGP (2006) remains the only valid precedent on the subject matter. This also means that the case of BBOG v IGP (2014) were decided on true observance and respect to the principles of judicial precedent. Subsequently,  the basis of both sections 73, 74 of criminal code are very clear that on where the police or other relevant authorities can exercise this right are on unlawful assembly(rioters). You should read sections 73,74 in conjunction with sections 69,  70, 71 and 72 if you are finding it difficult to understand the meaning of unlawful assembly.
Also,  I may agree with u that our Constitution may not be on all fours with that of America but the observance of fundamental human right as enshrined in Article 5 of universal declaration of human right is binding in all democratic state. Similarly, Nigeria being a member of Africa Union is also governed  by the provisions of Africa charter on human and people’s right which Article 11 specifically provide for freedom of peaceful Assembly.
About the Authors. 
Chigbo Chinemelum  and Ezeuchu Valentine are both graduates of law, Chukwuemeka Odumegwu Ojukwu University, Anambra State. 
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