DOES THE NIGERIA POLICE FORCE HAVE THE CONSTITUTIONAL RIGHT TO BAN A PEACEFUL PROTEST?

The Nigerian constitution guarantees the citizen’s  right to peaceful protest. This can be seen in sections 39 and 40. Section  39 provides for freedom of expression, including freedom to hold opinion and to receive and impact ideas & information without interference. while Section 40 provides for freedom to assemble freely and associate with other persons and in particular may form or belong to any political party, trade union or any other association for the protection of his interests.

However, it is pertinent to point out that this right which are known as fundamental human rights are not absolute per say but can be limited in some circumstances or situation. Section 45 of the constitution provides that for the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the right and freedom of other persons, this rights may be limited. Also, in the period of “state of emergency”properly declared by the president, it may be limited. 

One may ask, apart from the provisions of Section 45 which to some extent limits the right of citizens to gather peacefully and protest, is there any other law empowering the police to ban or disrupt a peaceful protest? The answer is in the affirmative. The Public Order Act Cap 283 LFN empowers the police to regulate a protest at the order of the Governor.

Section 1 of the act provides that for the purpose of proper & peaceful conduct of public assembly, meeting & procession,  the Governor of each state is empowered to direct all assemblies, meetings & procession on the public roads or public places & prescribe the route & time by which the procession is to take place. Section 2 provides that anyone who wants to organise a protest shall be issued a general licence if the Governor is satisfied that the protest is not likely to cause a breach of peace.

Sections 3 & 4 provides that the Governor may direct a superior police officer to set the conditions under which the assembly may be formed & also the Governor in relation to the whole state can delegate his powers to the commissioner of police or any other superior police officer.

The combined effect of the above provisions of the PUBLIC ORDER ACT is that the governor through the police has the discretion to regulate, stop, ban or disrupt any assembly, procession, rally or meeting. It also goes further to imply that for any such procession or protest to be legal, the organisers must obtain a general licence(police permit)

Whether police permit is required for rallies or not has been a subject of legal dispute over the years. In the case of All Nigeria Peoples Party v. Inspector General OF Police(2006).  The plaintiff being a registered political party requested for police permit to hold a rally against the rigging of 2003 election which was rejected by the police. The party went ahead with the rally and was disrupted by the police. The party instituted an action against the police. In defending their actions, the police contended that the conveners did not obtain a police permit.

The trial court dismissed the contention and stated inter alia that the PUBLIC ORDER ACT which empowers the police to regulate & conduct all assemblies on the public road & also that the conveners of a rally must obtain a police permit before embarking on a rally is directly inconsistent with Sections 39 & 40 of the constitution and as provided by Section 1(3) is null and void to the extend of its inconsistency. The trial court went further to state that so far as the law affects the right of the citizens to associate freely it is therefore illegal and unconstitutional, Aggrieved, the police went on appeal. On hearing the case, the Appeal court judges unanimously affirmed the judgement of the federal high court on the grounds that the powers given to the police by the Act is unconstitutional and as such deprive citizens the right to freedom of speech & freedom of assembly.

In further proving the unconstitutionality of the police permit,  the court of appeal relied on the case of New Patriotic Party v.  Inspector General of police Accra where the supreme court of Ghana observed that “statute requiring such permits for peaceful demonstrations  are things of the past. Police permit is the brain child of the colonial era & ought not to remain in our statute Books”.

Similarly in the case involving the BringBackourGirls v. Inspector General of police. Where the police banned the activities of the group within  FCT. In an action brought against the police. The trial court not only maintained that police have no right to ban the protest but went ahead to award 200million naira damages to the group. In view of the aforesaid judicial pronouncement, The Nigeria Police code of conduct launched at Abuja on Jan 10 2013 has mandated the police officer to maintain a neutral position with regard to the merits of any labour dispute, political protest or political demonstration while acting in an official capacity. In line with the said provision the supreme court in Atiku Abubakar v. IGP (2007) held inter alia “Having regards to the nature of the functions which the Nigerian police force performs, that body must also insulate itself such that impartiality & fairness may at all times be ascribed to it.

In conclusion, since there is no direct pronouncement made by the supreme court as regards to the constitutionality of the police permit known to the writer,  at such,  Nigeria being a democratic state governed under the principles of Rule of Law which freedom of expression, freedom to assembly & Association is laudable features of a democratic state, it is humbly submitted that the police have no constitutional right to Ban, stop, direct or disrupt a peaceful protest.

Valentine Ezeuchu is a law graduate of Chukwuemeka Odumegwu Ojukwu University,  Anambra State. 

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