By Francis Udoh
500 level Law Student, University of Uyo
“Nigerian Army ‘shot and killed #EndSARS protesters:’ Report”
BBC, November 15, 2021
“Student shot dead, two others injured during protests against fees hike in Kaduna”
Premium Times, June 28, 2021
“One killed, many injured as police shoot to disperse Protesting Nigerian students”
Premium Times, September 10, 2019
“Nigeria fuel protests: two killed and dozens wounded as police open fire”
The Guardian, January 9, 2021
Having to wake up to news headlines reporting the cruel treatment and death of Nigerians, whose only “wrong” is the attempt to air their grievances against the government through the exercise of their right to protest, is sickening. Time and again, the Nigerian Police and other law enforcement agencies have displayed a weak capacity to handle protests and peaceful demonstrations by adopting undesirable and preposterous methods in the course of dealing with demonstrating protesters. These methods involve the use of oppression, intimidation, harassment, arrest, maiming, and killing of protesters. Instances abound where the Nigerian Police have used live ammunition to disperse crowds taking part in peaceful protests and rallies.
A recent instance that remains fresh in the minds of Nigerians is the intimidation and killing of protesters in several states in the country during the #EndSARS Protest in 2020; the most notable of them all being the Lekki toll gate incidence where the Police and the Nigerian Army fired live ammunition at peaceful protesters who had gathered to protest against Police brutality, social injustice, corruption and bad governance in the country. According to the leaked version of the Justice Okuwobi Judicial Commission’s report on the incidence, not less than 48 protesters were either shot dead, injured with bullet wounds, or assaulted by security agencies during the protest. The sad incident attracted worldwide condemnation and has been described as a massacre.
Also, in October 2021, Policemen at the gate of the Headquarters of the Nigeria Petroleum Development Company (NPDC) in Benin City shot at aggrieved students who were protesting against the refusal of the authorities at the oil firm to fulfill their promises at the end of a training workshop on the Petroleum Industry Act (PIA), an event organized by the NPDC. The result was a student being hit on the leg by one of the bullets fired in a volley of shots by one of the Policemen.
Another incidence was the death of a salesgirl, Jumoke Oyeleke, who was allegedly killed by a stray bullet during a Yoruba Nation rally in Lagos on the 3rd day of July 2021. Agitators for the Yoruba Nation had gathered that day amid the presence of armed policemen and soldiers. The victim was hit by a stray bullet when the Police in a bid to disperse the crowd, chased and shot at some agitators who ran into the premises where she worked.
On the 28th day of June 2021, a student of the Kaduna State College of Education in Jema’a Local Government Area of the state was killed by security operatives and two others injured during a protest against a school fees hike.
In January 2012 the Nigerian Police in an attempt to disperse crowds of persons taking part in a national strike in protest against fuel subsidy cuts opened fire on the crowd using live ammunition which resulted in the death of at least two persons while dozens more were wounded.
These instances are but only a few of the innumerable displays of the waning capacity of the Nigerian law enforcement agencies to properly handle protests and demonstrations especially by the law and acceptable global practice.
What is a Protest?
A protest is simply a public expression of disapproval and objection, ventilation of anger, or resistance against a particular phenomenon. It is the right of the people to voice out their displeasures, disappointments, and frustrations. In modern times, it can be physical as well as remote (social media protests). A protest could be in form of demonstrations, riots, or political strikes. However, demonstrations are the most used means of protest or resistance in the world today. A demonstration is a public display of group opinion. It is an organized, non-violent protest by a group of citizens, as opposed to a riot which is any violent demonstration or clash of a group of citizens. However, the words ‘protest’ and ‘demonstration’ shall be employed interchangeably hereinafter.
Protests are very fundamental to the civil, political, economic, social, and cultural life of all societies. History has proven that they are a significant tool for the initiation of positive social change and improved protection of human rights. They promote the development of an engaged and informed citizenry and advance representative democracy by enabling direct participation in public affairs. It is an avenue for the citizenry to expose the flaws in governance and to publicly demand the authorities to rectify problems.
Are Protests Illegal in Nigeria? (What does the law say about protests?)
The right of Nigerians to protest is adequately safeguarded under both municipal and international law. The 1999 Constitution of the Federal Republic of Nigeria makes no express mention of the right of citizens to protest or carry out demonstrations. However, considering the nature of protests, it is conclusive that the right of every Nigerian to protest is guaranteed under sections 38, 39, 40, and 41 of the 1999 Constitution. Put differently, the right to protest is a conglomerate of four fundamental rights; firstly, the right to freedom of thought, conscience, and religion (section 38); secondly, the rights to freedom of expression (section 39); thirdly, the right to peaceful assembly and association (section 40); and lastly, the right to freedom of movement (section 41). These rights are fundamental to a man’s means of self-determination and protection in society. A deeper and broader look at the nature and rationale for protests reveals that the right to protest is related to a string of other fundamental rights including the right to life, the right to privacy, etc.
In the international regime, the aforementioned fundamental rights are also guaranteed by a number of international laws. Firstly, the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, of which Nigeria is a signatory, proclaims that “everyone has the right of freedom of peaceful assembly and association.” Also, Article 21 of the 1966 International Covenant on Civil and Political Rights (ICCPR) provides that the right of peaceful assembly shall be recognized and that no restrictions may be placed on the exercise of this right. Nigeria is a state party to the ICCPR and as such is bound by its provisions. The right to peaceful assembly is also guaranteed under Article 11 of the African Charter on Human and Peoples’ Rights of 1981, which binds Nigeria as well as other African Union member-countries.
It is pertinent to also mention that the UN Human Rights Council’s Resolution at its 38th Session on Promotion and Protection of Human Rights in the context of Peaceful Protests is quite significant to this discussion. Principle 1 of the Resolution on Promotion and Protection of Human Rights in the context of Protest recognizes that a protest can engage in actions targeting any audience, including public authorities, private entities or individuals, or the general public, and may annoy or give offense to people who are opposed to the ideas. It also recognizes that protest may temporarily hinder or obstruct the activities of third parties. Principle 2 then imposes obligations on nation-states to respect the right to protest. Principle 4 makes provision for the protection of internationally guaranteed human rights during all protests even where restrictions or exceptions might be applicable. Principle 9 provides that everyone should have the freedom to choose the form and manner of a protest, including its duration. It also recognizes non-violent direct action or civic disobedience actions as a legitimate form of protest.
The right to protest has also been upheld by Nigerian Courts. In the case of IGP v. ANPP (2008) 12 WRN 65, the Court of Appeal stated thus; “certainly in a democracy, it is the right of citizens to conduct peaceful processions, rallies or demonstrations without seeking and obtaining permission from anybody. It is a right guaranteed by the 1999 constitution and any law that attempt to curtail such right is null and void and of no effect.” The Court further stated per Adekeye JCA that “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…”
Thus, in the light of the foregoing, it is conclusive that protests are not only legal in Nigeria but are also safeguarded as a fundamental right of every Nigerian citizen.
The Role of Law Enforcement Agencies during Protests (What is expected of law enforcement agencies during protests)
Many a time, people are forced to question the very presence of the Police and other law enforcement agencies at the scene of protests. Sometimes, they ask questions like “what role does the police have to play during protests? Do they have any reason to be there?”
The Nigerian constitution and other domestic, as well as international laws, answer these questions. They specify the role of the Police and other law enforcement agencies during protests. These roles include facilitating the enjoyment of the right of peaceful assembly and ensuring the maintenance of public order. Particularly, section 4 of the Police Establishment Act, 2020 is replete with extensive functions of the Nigeria Police Force (NPF), notably, imposing an obligation on the Police to protect the rights and freedom of every Nigerian in accordance with the Constitution of the Federal Republic of Nigeria, the African Charter on Human and Peoples Rights, and other applicable laws. Section 83(4) of the Act further saddles the NPF with the duty to provide adequate security for citizens who participate in public meetings and rallies. Moreover, Principle 2 of the Resolution on Promotion and Protection of Human Rights in the context of Protest imposes obligations on nation-states to respect the right to protest. This entails that States should protect the right to protest and should undertake reasonable steps to protect protesters by adopting measures necessary to prevent violations by third parties.
Thus, the answer to the questions earlier posed is in the affirmative. Yes, law enforcement agencies have a role to play during protects, and indeed the Police have reasons to be present in the scene of protests. But do they have to appear with lethal weapons? Are they duty-bound to use lethal force? Do they always have the legal right to violate human rights at the scene of protests? NO, of course not! Law enforcement ought to carry out their duty in accordance with the law and with the utmost regard for human rights.
Consequent to the duty of the Police to preserve peace and order as well as protect the lives and properties of citizens and the state, the Police also have the duty to control and disperse protests which have metamorphosed into riots or violent assemblies or those that may likely metamorphose into one. It is pertinent to note nevertheless that shutting down a protest by dispersal order must only be law enforcement’s last resort. Police may not break up a peaceful protest or assembly unless there is a clear and present danger of riot, disorder, or threat to public safety.
The dispersal of a violent protest or riot must be done in accordance with the law and the Force’s rules of engagement and with high great regards for the rights of those involved in the protest. The principle of minimum force and proportionality which is a highlight of the Nigerian armed forces’ rules of engagement and code of conduct must be applied at all times. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary. In the dispersal of violent assemblies, the UN law states that a law enforcement official may only use a firearm against a specific individual where it is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Principle 12 of the Resolution on Promotion and Protection of Human Rights in the context of Protest imposes duties on States to adopt a human rights approach to policing protests. Policing of protests by law enforcement agencies should be guided by the human rights principles of legality, necessity, proportionality, and non-discrimination and should comply at all times with international human rights law and standards on policing, in particular the UN Code of Conduct for Law Enforcement Officials. It also imposes a duty on States to prohibit the deployment of the military armed forces for the policing of protests. This thus leads to the question; “does the military have any role to play during protests?”
The Role of the Military (if any) during Protests
Primarily, the role of the Nigerian Military as established under the Constitution of the Federal Republic of Nigeria 1999 (as amended), by the virtue of section 217, is to defend Nigeria from external aggression; maintain its territorial integrity and secure its borders from violation on land, sea, or air; suppress insurrection and act in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly, and to perform other such functions as may be prescribed by an Act of the National Assembly.
Therefore, the Military’s primary responsibility is to secure Nigeria from all forms of external attack and insurrection. Accordingly, their duty does not extend to interference with an otherwise peaceful protest by Nigerian citizens for the enforcement of their rights. The army does not seem to have any business with civil protests unless there is an attempt to overthrow the government through violent means. By section 4 of the Police Act 2020 and Section 1 of the Nigeria Security and Civil Defence Corps (Amendment) Act 2007, it is the duty of the Nigeria Police Force (NPF) and Nigeria Security and Civil Defence Corps (NSCDC) to monitor and maintain internal peace and order as provided in the relevant laws.
Nonetheless, the use of military may only be necessary for extremely exceptional circumstances to serve only as a support for the police and placed under the command of the police upon the request of the civilian authorities when the police are unable to handle violent protests or where the protest has developed into a threat to national security. This position is grounded on the fact that although Nigerian citizens have the right to peaceful assembly, that right is not absolute. Section 45 of the CFRN (as amended) is to the effect that notwithstanding the rights provided under sections 37, 38, 39, 40, and 41 of the constitution, the Government is duty-bound to uphold the interest of defense, public safety, public order, and protection of the rights and freedom of others.
Where the Military becomes involved in a civil protest, the military must comply fully with international human rights law and standards on policing and principles on the use of force and must adopt operational procedures other than the “fight-the-enemy” approach. The Military must adopt a law enforcement approach, including de-escalation, minimal or no use of force, change of equipment, and the correct use of equipment.
How then can law enforcement carry out its roles during protest effectively without negatively making the news?
At this point, it is apparent that the primary role of law enforcement during protests is to facilitate the enjoyment of the right of protesters and ensure the maintenance of public order. Hence, the following are recommendations on how Nigerian law enforcement agencies may effectively go about their duty.
1. Law enforcement agencies whose duty it is to manage protests must have sound knowledge and understanding of human rights, especially those that accrue to persons involved in protests, whether violent or non-violent. The recruitment and training processes of officers of law enforcement agencies should involve the provision of basic education on human rights. An officer of the law who is oblivious of the existence of a person’s right has taken the first step towards violating the same. Such an officer may be found wanting in the discharge of his duties eventually.
2. It is only expected that those who are to enforce and protect the law should know the law. Derogation from this expectation can only result in the existence of law enforcement agents that would adopt illegal means in ensuring legality. Thus, members of law enforcement agencies whose duty it is to manage protest must have sound knowledge of the law especially as it relates to protests.
3. The law enforcement agencies whose duty it is to manage protest must be well-trained and experienced in managing protest events and must be fully aware that their primary duty is to facilitate protests management. Training should include human rights standards, methods of understanding crowd behavior, and the methods and skills needed to minimize and de-escalate conflicts such as negotiation and mediation. They must learn to seek to establish or improve dialogue with the organizers of protests to create mutual understanding, reduce tensions, evaluate potential risks and conflict escalation and agree on how best to facilitate the protest. Nigeria could also like some developed democratic countries set up units specially trained for the management of protests, rallies, and riots.
4. Law enforcement should have a range of less-lethal equipment at their disposal that allows for the differentiated use of force in full respect of the principles of necessity and proportionality and ensures that harm and injury are kept to a minimum. They must ensure that anyone injured or affected as a result of the use of force receives immediate assistance and medical aid at the earliest possible opportunity. The practice of law enforcement confronting peaceful and unarmed citizens with live ammunition is unreasonable and has no place in a democracy. For the control of violent demonstrations and riots, the Nigerian government should equip law enforcement agencies with less-lethal weapons like batons, rubber bullets, water cannons, protective gears for riot police, tear gas, pepper spray, long-range acoustic devices, etc. Although it is agreed that law enforcement involved in protest management should take measures to protect themselves from possible harm, however, the point remains that the use of lethal weapons like firearms should only be a last resort.
5. Also, the populace should be sensitized and educated on the position of the law as it relates to protests. They should be made aware of the distinction between a riot and a protest as well as the legal implications of each scenario. This could go a long way in making sure that protests remain organized, acceptable by law, and do not give rise to confrontations between law enforcement agencies and protesters.
6. Finally, law enforcement agencies should resist the temptation of being used for the attainment of selfish and political ends.
Francis Udoh is a Final year law student of The University of Uyo. He is a legal researcher and author.
1. BBC – Nigerian Army ‘shot and killed #EndSARS protesters:’ Report
https://www.google.com/amp/s/www.bbc.com/news/world-africa-59300011.amp (accessed Nov. 24, 2021)
2. Premium Times – Student Shot Dead, Two Others Injured during Protest Against Fees Hike in Kaduna
https://www.premiumtimesng.com/news/headlines/470452-updated-student-shot-dead-two-others-injured-during-protest-against-fees-hike-in-kaduna.html (accessed Nov. 25, 2021)
3. Premium Times – One Killed, Many Injured as Police Shoot to Disperse Protesting Nigerian student
https://www.premiumtimesng.com/news/headlines/351695-one-killed-many-injured-as-police-shoot-to-disperse-protesting-nigerian-students.html (accessed Nov. 25, 2021)
4. The Guardian – Nigeria Fuel Protests: One Killed
https://www.google.com/amp/s/amp.theguardian.com/world/2012/jan/09/nigeria-fuel-protests-one-killed (accessed Nov. 26, 2021)
5. CNN – They Pointed Their Guns at Us
https://www.google.com/amp/s/amp.cnn.com/cnn/2020/11/18/africa/lagos-nigeria-lekki-toll-gate-feature-intl/index.html (accessed Nov. 26, 2021)
6. Punch – Black Tuesday: 49 Killed as Protest Turn Bloody
https://www.google.com/amp/s/punchng.com/black-tuesday-49-killed-as-protests-turn-bloody/%3famp (accessed Nov. 25, 2021).
7. Vanguard – Trigger Happy Cop Shoots 400level UNIBEN Student at NPDCS Gate
https://www.google.com/amp/s/www.vanguardngr.com/2021/10/trigger-happy-cop-shoots-400-level-uniben-student-at-npdcs-gate/amp/ (accessed Nov. 26, 2021)
8. Punch – Yoruba Nation Rally: Autopsy Faults Police Claim, says Salesgirl was Shot
www.google.com/amp/s/punchng.com/yoruba-nation -rally-autopsy-faults-police-claim-says-salesgirl-was-shot/%3famp (accessed Nov. 30, 2021)