The Nigerian’s right to public assembly: where does it begin, where does it end?

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In the aftermath of the EndSars protests, the horrifying events of October 20, 2020, and the ensuing undercurrent of unrest in the nation, several conversations around human rights, constitutional and other rights of Nigerians have come to the fore. Chief among these rights under consideration is the right to public assembly.

Stakeholders have responded differently. Some citing the actions of the “unknown soldiers” who advanced and fired at protesters, including citizens sitting, singing and waving the nation’s flag at the Lekki toll gate, advice deterrence to avoid “unnecessary” bloodshed. Some highlighting the ensuing destruction of personal property and businesses by persons protesting the events of October 20 and/or infiltrating elements stress that had the youth had the foresight to stop the protests and engage in dialogue with the government after the 5for5 demands, the legacy of the protests would have remained pristine. Others insist that the right to assemble in a protest is sacrosanct and given the reports of key figures of the EndSars movement being targeted, are wont to take to the streets again to insist on their rights. And still others, acknowledging the effect of the protests, considered it an obstruction to their right to movement, to earn a living and the economic integrity of the nation.

Last week, the police Public Relations Officer, Mr. Olumuyiwa Adejobi in a statement given on behalf of the Lagos state police warned residents against any form of “planned protests, procession or gathering” in the state, saying,  “The command… wishes to warn any individuals, group of students or any groups who might want to stage any form of protest, either peaceful or violent, or gathering whatsoever.”

Noting that the government and people of Lagos have not fully recovered from the violence that  followed the #EndSars protests, the police command further warned parents and guardians to discourage their children or wards from embarking on any protests in the state “as the police and other security agencies will collectively and tactically resist any security threats or threats to public peace which might be triggered by protest or protesters in Lagos State.”

The reason for this warning was that, “…based on intelligence gathering from relevant intelligence agencies, some unpatriotic elements or group of people have concluded plans to orchestrate another set of violence in the state, in furtherance to the recent violence, which has been analysed as dangerous and counterproductive”

While on the face of it, the police command’s warning indicates an intention to take action for the protection of residents and property based on intelligence that it may be hijacked, an equally valid consideration, perhaps a more pertinent one, is the role of the state in ensuring that its citizens, and where accorded, residents can exercise their rights within the ambits of the law trusting in the state’s duty to protect the exercise of said rights from being hampered or hijacked by illegal elements.

The right to public assembly, defined as “an intentional and temporary gathering in a private or public space for a specific purpose, including demonstrations, inside meetings, strikes, processions, rallies or even sits-in”, is recognised as a human right and as a constitutional right of every Nigerian citizen. Human rights are universally-accepted, inalienable rights and freedoms inherent to all human beings simply because they are human. These rights and freedoms are considered basic and cannot be withdrawn or curtailed except for the benefit of the citizen. Constitutional right are rights and liberties guaranteed by the constitution of a nation. The constitution is the suma divisio of the legal framework and these rights are considered paramount rights of the state; thus, any other law, policy, declaration made by any other act or authority must be in conformity with the constitution or it is ipso facto illegal.

 Human rights were codified in the 1946 United Nations Declaration on Human Rights and Article 20 on the right to assembly says:

“(1) Everyone has the right to freedom of peaceful assembly and association (2) No one may be compelled to belong to an association.”

Similarly, Article 40 of the 1999 Constitution of the Federal Republic of Nigeria defines the Right to Assembly as follows:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.

Thus, Nigeria which is a signatory to the UN Declaration of Human Rights has assented to its citizens’ right to public assembly at least twice over and according to the constitution the only exception to peaceful assembly is that “it not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

Section 10 of the Police Act 2020 on public safety and order says,

(1) The President may give to the Inspector-General such directions with respect to the maintaining and securing of public safety and public order as he may consider necessary, and the Inspector-General shall comply with those directions or cause them to be complied with. (2) Subject to the provisions of subsection (1) of this section, the Commissioner of a State shall comply with the directions of the Governor of the State with respect to the maintaining and securing of public safety and public order within the State, or cause them to be complied with: ( Provided that before carrying out any such direction the Commissioner may request that the matter should be referred to the President for his directions.

Further to the provisions cited hitherto, is the police command’s admonition valid? Is it necessary? Can it be argued that the exercise of the police’s duty can diminish the citizen’s free exercise of its inalienable and constitutional rights? Or on the other hand, does it pose a challenge to the state to find innovative ways to facilitate the citizens’ enjoyment of its rights and freedoms?

The latter seems to be the case in the European Union (EU) where the EU Commission on Human Rights noted that one of the elements to assess the peaceful character of an assembly is whether the organisers of protests have showed their peaceful intentions, either by declaring it or by virtue of their behavior. It also noted that an assembly would not be peaceful where “the participants or organisers” have violent intentions that result in public disorder, and that the inevitable obstruction which derives from a public gathering does not strip an assembly of its peacefulness.

In assessing the violations of the right to assembly in Middle Eastern and North African (MENA) countries, the MENA rights group in a report submitted to the UN Human Rights Committee said,

“In light of cases of violations (by the government) of article 21 (the right to peaceful assembly) documented in countries in the MENA region, we highlight that the intention to commit violence should also be materialised by the actus reus of (the assemblers) committing violence…such an approach would entail that the likelihood that an assembly might lead to violence should not enter into consideration in the assessment of its peacefulness. The likelihood that an assembly might turn violent should not be considered as an element to strip peaceful organisers and protesters of the protection of their right…Adopting a human rights approach under the spirit of a lex favorabilis would, in fact, entail that the assessment of the likelihood of violence should be considered as a positive step to be taken by the authorities in order to ensure, through the implementation of preventive measures, that persons participating in the assembly can carry on peacefully their demonstration, and that the latter as well as bystanders are protected from acts of violence and intimidation regardless of their perpetrator’s identity (state agents, participants, counter demonstrators etc.). Moreover, adopting a most favourable approach to right-holders should equally entail that an assessment of the likelihood of violence should not constitute a sufficient legal basis to ban the protest but should rather be considered as a means to facilitate the realisation of the right to peaceful assembly.

Indisputably, the apt balance of the Nigerian’s exercise of its rights and freedoms, the sanctity of the law and the various obligations of the state must be struck. It is to be hoped that the inalienable rights and constitutionally guaranteed freedoms of the Nigerian will be kept in view as the state seeks to fulfil its responsibilities, otherwise it may well run into the very terror it sought to avoid; a state whose citizens are governed by the whims and caprices of ill-intentioned, illegal elements.

 

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