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Public protests and the law- Falana

Apart from authorising the police and other security forces to brutalize peaceful protesters the Buhari administration has charged conveners and participants in public protests with treasonable felony, terrorism and allied offences in the Magistrate Courts and Federal High Court.

Femi Falana SAN

Introduction

Under the British colonial regime in Nigeria, public meetings and rallies were completely prohibited. The purpose of the ban was to prevent the Nigerian people from rising up against the exploitation of the resources of the country by the alien government. Thus, pursuant to the Public Order Ordinance and several provisions of the Criminal Code any form of public meeting or public gathering without official permission constituted a serious criminal offence. It was under such obnoxious statutes that the Enugu miners’ protest and other workers strikes and the revolt of Aba Market women’s revolt, the Egba women against double taxation were violently attacked by the colonial police leading to the cold murder of many unarmed protesters.

Even though Nigeria became independent in 1960 the anti people’s  laws and policies of the alien regime were refurbished and retained by the indigenous ruling class. Hence, successive regimes have engaged in the massive violations of human rights including the right to protest against policies considered inimical to the interests of the Nigerian people. Apart from authorising the police and other security forces to brutalize peaceful protesters the Buhari administration has charged conveners and participants in public protests with treasonable felony, terrorism and allied offences in the magistrate courts and federal high court. Since the anti democratic cases are ongoing we may not be able to comment on them.

In this presentation, we shall argue, on the basis of a plethora of judicial authorities, that the physical attacks unleashed on protesters by security forces and the criminalisation of public protests constitute a crude infringement of the fundamental rights of the Nigerian people to freedom of expression and freedom of assembly including the right to participate in public meetings, protests marches and peaceful rallies guaranteed by the Constitution and the African Charter on Human and Peoples’ Rights. While drawing the attention of the the federal government to the law which requires the police to provide protection during protests we shall call for the immediate amendment of section 33 (2) © of the Constitution which permits the use of such force as is reasonably necessary “for the purpose of suppressing a riot, insurrection or mutiny”.

The right of citizens to protest

The fundamental right of citizens to freedom of expression and freedom of association are guaranteed by Sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 and articles 10 and 11 of the African Charter on Human and Peoples Act (CAP A9) Laws of the Federation of Nigeria, 2004. In INEC v Balarabe Musa (2003) 10 WRN 1 the Supreme Court upheld the fundamental right of the Nigerian people to freedom of association guaranteed by section 40 of the Constitution. According to Tobi JSC (of blessed memory) “ While the section vests in the individual the right to associate, and assembly with other political party, the proviso restricts the right, and the restriction is to the effect that the provision will not derogate from the powers of INEC with respect to political parties to which the Commission does not accord recognition. In other words, section 40 applies only to political parties which INEC accords recognition. In this respect, section 22 of the Constitution comes into play as that section provides for conditions to be fulfilled or satisfied before an association can function as a political party which INEC accords recognition.”

It is pertinent to note that the right of Nigerian workers to embark on industrial action, picket or lock out is protected by the Trade Union Act. However, in exercising the right trade unions are required to follow the procedure set out by the Trade Dispute Act. In Adams Oshiomole V Federal Government of Nigeria the Court of Appeal held that workers have no right under the Trade Union Act to strike to protest against the N1. 50k per litre modulation policy of the federal government on Petroleum Motor Spirit (PMS) and the Automobile Gas Oil (AGO) or any other official policy not being within the purview of the Trade Union Act Cap 437 Laws of the Federation of Nigeria, 1990.

However, pursuant to section 1 of the Public Order Act, governors have been empowered to direct the conduct of all assemblies, meetings and processions on public roads or places of public resort and prescribe the route by which and the times at which any procession may pass. Under Section 2 of the Act any person who is desirous of convening any assembly or meeting or forming any procession in any public road or place of public resort, shall apply to the governor for a licence not less than 48 hours thereto. If satisfied that the meeting will not cause a breach of the peace the governor may authorize the issue of general a licence by any superior police officer setting out the conditions under which the assembly or procession may hold. Section 4 of the Act provides that the governor may delegate his powers in relation to the whole state, to the Commissioner of Police and in relation to a local government, to any superior police officer acting as the district police officer. It is common knowledge that governors have allowed the Inspector of police and state commissioners to usurp the powers conferred on them by the Public Order Act to regulate pubic gatherings in each state of the federation.

In recent time, we had situations whereby the police suspended public meetings without the knowledge or consent of governors while rallies attended by governors have been disrupted by the Police and other security forces. In All Nigeria Peoples Party v Inspector-General of Police  the claimant held a rally in Kano on September 22, 2003 to protest the alleged rigging of the 2003 general election. The rally which was attended by party leaders including General Muhammadu Buhari and other leaders of the plaintiff was violently disrupted by the police. To put an end to such crude violation of the freedom of citizens to convene rallies without official harassment the ANPP and 10 other political parties instructed our law firm to challenge the disruption of the Kano rally.

We accepted the brief and filed a suit at the federal high court to challenge the the constitutional validity of police permit as a precondition for exercising the freedom of expression and freedom of assembly guaranteed by sections 39 and 40 of the Constitution and articles 10 and 11 of the African Charter on Human and Peoples Rights Act. In defending the action the defendant contended that by failing to obtain police permit the conveners of the rally had violated the provisions of the Public Order Act. The defence of the Police was rejected by the trial judge, the Honourable Justice Chinyere who stated inter alia:

“The gist of the provision in section 1 of the Act is that the Governor of each State is empowered to direct the conduct of all assemblies, meetings and processions on public roads or places of public resort in the state and prescribe the route by which and times at which the procession may pass. Persons desirous of convening or collecting any assembly or meeting or of forming a procession in any public resort must apply and obtain the license of the Governor. The Governor can delegate his powers to the Commissioner of Police of the State or to other police officers. Persons aggrieved by the decision of the Commissioner of Police may appeal to the Governor and the decision of the Governor shall be final and no further appeal shall lie therefrom.”

In upholding the fundamental rights of Nigerians to freedom of expression and assembly enshrined in sections 39 and 40 of the Constitution and Articles 10 and 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004, the learned trial judge said:

“In my view, the provision in section 40 of the Constitution is clear, direct and unambiguous. It is formulated and designed to confer on every person the right to assemble freely and associate with other persons. I am therefore persuaded by the argument of Mr. Falana that by the combined effect of sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental right to peaceful assembly and association. I agree with Mr. Falana that violation can only be done by the procedure permitted by law, under section 45 of the Constitution, in which case there must be a state of emergency properly declared before theses rights can be violated.

I also agree with Mr. Falana that the criminal law is there to take care if protesters resort to violence in the course of demonstration and that once the rights are exercised peacefully, they cannot be taken away. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society. It is inconsistent with the provisions of the 1999 Constitution. In particular, sections 1(2),(3),(4),(5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency, they are void. I hereby so declare.”

After declaring the specific sections of the Public Order Act which require police permit for public meetings and rallies illegal and unconstitutional the Federal High Court proceeded to grant the following reliefs:

“1.​A DECLARATION that the requirement of police permit or ​other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.

2. A DECLARATION that the provisions of the Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.

3. A DECLARATION that the Defendant is not competent under the Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990 or under any law whatever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.

4. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant (the Inspector-General of Police) whether by himself, his agents, privies and servants from further preventing the Plaintiffs and other aggrieved citizens of Nigeria from organizing or convening peaceful assemblies, meetings and rallies against unpopular government measures and policies.”

Completely dissatisfied with the judgment of the Federal High Court on the issuance of police permit for public meetings the Inspector-General of Police appealed to the Court of Appeal. Upon hearing the matter the Justices of the Court of Appeal unanimously affirmed the judgment of the Federal High Court. With respect to the powers of governors to authorize the issuance of permit for holding public meetings and rallies in each the state of the federation, Olufunmilayo Adekeye JCA (as she then was) had this to say:

“On a proper perusal of the provisions particularly section 1 subsection 1-6, and sections 2-4 there is no where the name of the Inspector General is mentioned in connection with the issuance of permit for the purpose of conducting peaceful public assemblies.

Such application is to be forwarded to the Governor within forty-eight hours of holding such. The Governor may delegate his powers under the Act to the Commissioner of Police of the State or any superior police officer of a rank not below that of a Chief Superintendent of Police as applicable to this case in hand.”

On the fundamental right of Nigerian citizens to assemble freely and protest without licence or permit issued by the police, Adekeye JCA proceeded to hold as follows:

“The power given to the Governor of a State to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation or right to freedom of speech and freedom of assembly.

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.

Public Order Act should be promulgated to compliment 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 tread 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.” (See Inspector-General of Police v. All Nigeria Peoples’ Party (2008) WRN 65).

On the fear that a rally might lead to a breach of the peace, her ladyship said that “our Criminal Code has made adequate provisions for sanctions against the breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.” The Justice was compelled to ask : “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?”

In urging Nigeria to join other democratic societies in respecting the right of citizens to protest peacefully against the policies and activities of the government the learned Justice said:

“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 recognised 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.”

In his brief contribution to the judgment of the Court of Appeal Muhammad JCA stated that “In present day Nigeria, clearly police permit has outlived its usefulness. 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 rights is null and void and of no consequence.” In consigning police permit to the dustbin of history where it rightly belonged the Court of Appeal relied on the case of New Patriotic Party v. Inspector-General of Police, Accra (1992-1995) GBR 58. In that case the Supreme Court of Ghana had observed that, “Statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain child of the colonial era and ought not to remain in our statute books.”

It is submitted that notwithstanding that the provisions of the Public Order Act relating to the issuance of permit for holding public meetings and processions have been struck down the Constitution has empowered governors to issued directives to commissioners of police with respect to public order and security in their respective states. This was confirmed by the Supreme Court in the case of Attorney-General of Anambra State v. Attorney-General of the Federation (2005) 9 NWLR (PT 931) 572 at 616 where Uwais CJN (as he then was) held that “The Constitution in section 215 subsection (1) clearly gives the Governor of Anambra State the power to issue lawful directive to the Commissioner of Police, Anambra State, in connection with securing public safety and order in the State.“

Official recognition of the right to protest

Based on the judicial endorsement of the right of the Nigerian people to protest without police permit the peaceful rallies convened by the Nigeria Labour Congress and Trade Union Congress against incessant hike in the prices of petroleum products in 2005 were not disrupted by the police. In acknowledging the development the Court of Appeal had observed thus:

“Nigerian society is ripe and ready to be liberated from our oppressive past. The incident captured by the Guardian Newspaper edition of October 1st, 2005 where the Federal Government had in the broadcast made by the immediate past president of Nigeria General Olusegun Obasanjo publicly conceded the right of Nigerians to hold public meetings or protest peacefully against the Government or against the increase in the price of petroleum products. The honourable President realized that democracy admits of dissent, protest, marches, rallies demonstration. True democracy ensures that these are done responsibly and peacefully without violence, destruction or even unduly disturbing any citizen and with the guidance and control of law enforcement agencies. Peaceful rallies are replacing strikes and violent demonstrations of the past.

If this is the situation how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and pagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution.”

It is interesting to note that the authorities of the Nigeria Police Force were convinced that the decision of the Court of Appeal in IGP v ANPP (supra) could not be faulted. Hence, instead of appealing against the judgment to the Supreme Court the then Inspector-General of Police, Mr. M.D. Abubakar directed all police officers to recognize the fundamental right of Nigerians to assemble freely and protest without harassment. In particular, the Nigeria Police Code of Conduct launched at Abuja on January 10, 2013 directed all police personnel to “maintain a neutral position with regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity; not make endorsement of political candidates, while on duty, or in official uniform.”

In the same vein, the Acting President Dr. Goodluck Jonathan ensured that the members of the Save Nigeria Group when not harassed by the police when they held rallies in Lagos and Abuja in 2010 to protest the seizure of power by a cabal when the Late President Umaru Yaradua was indisposed in a hospital in Saudi Arabia. It is also on record that the members of the APC led by General Muhammadu Buhari held a rally in Abuja on November 18, 2014 to protest against insecurity in the country.

Renewed onslaught against public protests

In total violation of the judgment of the Court of Appeal in IGP v ANPP (supra) and the Police Code the police resorted to violence in disrupting the January 2012 protests against the removal of fuel subsidy organised by the labour movement and civil society coalition. In fact, some demonstrators were shot dead by trigger happy police officers in Lagos and Ilorin during the protests. On the directive of President Jonathan the Nigerian Army aided the police in the disruption of the protests. About a year later, the Federal Capital Territory Police Command announced the suspension of all rallies in the Federal Capital Territory in a desperate bid to stop the daily rally held in Abuja by the Bring Back Our Girls (BBOG) members in Abuja to remind the State of its responsibility to free the abducted Chibok girls.

However, the suspension of rallies by the police was successfully challenged by the BBOG at the Federal Capital Territory High Court through our law firm.  In upholding our submissions in the unreported case of Hadiza Bala Usman &Ors v Commissioner of Police & Anor. (Suit No: FCT/HC/CV/1693/2014 of 30th October 2014), the presiding judge, Aladetoyinbo J. held that “it is wrong for the counsel to the Respondent (IGP) to insist that the Applicants must obtain Police Permit before they can gather together for their peaceful protests.”

About a year later, the Ekiti state chapter of the APC held a rally to kick against the alleged planned rigging of the June 21, 2014  governorship election in the state. The police disrupted the rally and arrested 11 people including the then commissioner for local government, Honourable Niyi Afuye for taking part in the protest. They were taken to Abuja where they were charged with terrorism at the federal high court. But following the preliminary objection filed by us on behalf of the defendants against the competence of the charge  the case was hurriedly discontinued and struck out while the defendants were discharged.

The national assembly has reviewed the management of public protests in the country in line with the terms of the judgment in IGP v ANPP (supra). In giving statutory backing to the judicial recognition of the fundamental right of Nigerians to convene and participate in rallies, protest marches and other public meetings without harassment the federal legislators in both chambers of the national assembly unanimously amended the Public Order Act and the Police Act. Specifically, section 94 (4) of the Electoral Amendment Act, 2015 states that “Notwithstanding any provision in the Police Act, the Public Order and any regulation made thereunder or any other law to the contrary, the role of the Nigeria Police Force in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection 1 of this section.”

Renewed onslaught against public protests

Under the current rickety political dispensation, the anti-democratic tendencies of the neo-colonial State have been consistently challenged by the Nigerian people. Incidentally, the All Progressive Congress (APC), as an opposition political party was involved in the popular resistance against the encroachment of the fundamental rights of citizens. But having successfully militarized and manipulated the electoral process to keep itself in power the APC-led administration is convinced that it has defeated the people. In recent time, out of sheer arrogance of naked power, top officials of the regime have been celebrating the emasculation of the opposition in the country.

Through active involvement in the struggle to reclaim the country from the highly corrupt forces of reaction in the past four decades, I can say, without any fear of contradiction, that no autocratic regime has ever succeeded in cowing the Nigerian people to submission. I am convinced beyond any shadow of doubt, that the current set of dictators will also be defeated by the Nigerian people sooner than later. While I cannot vouch for the involvement of the elite and professional bodies in waging the national democratic revolution I am happy to disclose that a group of lawyers have resolved to defend all victims of repression in the country pro bono publico. Convinced that a people united can never be defeated such public interest litigators are also involved in organising the Nigerian people in the herculean task of liberating the country from the tiny grip of reactionary forces who are masquerading as converted democrats.

Since the Buhari regime has demonstrated its incompetence in addressing any of the multifarious social and economic crises  plaguing the country it has decided to proscribe all alternative views. Civil rule under the Constitution has given way to full blown dictatorship. Under the pretext of defending national security orders of courts for the restoration of the civil liberties of detained citizens have been treated with disdain. The Nigerian army has directed all citizens to prove that they are not criminals by identifying themselves with national identity cards, international passports, voters cards and driving licences. Since majority of the Nigerian people have no any means of identification our law firm has obtained an interim order for the suspension of the illegal military operation.

In a bid to prevent Nigerians from organising themselves against repressive rule the Buhari regime has proscribed some organisations and banned all forms of public protests. Because of the vital role of the press in exposing the incompetence, corrupt practices and abuse of power the regime has charged some journalists with terrorism and treasonable felony. For daring to admit one of the journalists to bail the State Security Service has threatened to report a judge to the National Judicial Council. Since then other judges trying the cases of media personnel either refused bail or grant bail under suffocating conditions.

Even when the suffocating bail conditions have been met the State Security Service has refused to release the defendants from custody. By not releasing the defendants the Buhari regime has dared the court to invoke its power of contempt over the management of the State Security Service for operating above the law of the realm. As far as the regime is concerned the trial judges erred in law in granting any form of temporary reprieve for journalists who ought to have been jailed, even without trial. It is hoped that judges will pluck up the courage to commit indicted officials for contempt and suspend proceedings until the government has purged itself of such brazen contempt of court.

For agitating for the excision of the Republic of Biafra from Nigeria the Indigenous People of Biafra (IPOB) was branded a terrorist organisation and proscribed in 2017. The proscription has since then been invoked to justify the brutal killing of members of the IPOB by the police and the army. For organizing rallies to compel the federal government to comply with a court order by releasing the Shia leader, Sheikh Ibraheem Elzakzaky and his wife from the custody  of the State Security Service the Islamic Movement of Nigeria (IMN) was branded a terrorist body and proscribed in 2019. The police and the army have also relied on the proscription of the IMN to kill scores of its members.

In December 2015, the Nigerian Army killed 347 shiites during a religious gathering in Zaria, Kaduna state. Hundreds of members of shiites were arraigned in court for conspiracy and culpable homicide. But both the high court and the Magistrate court in Kaduna state have discharged and acquitted not less than 300 members of the IMN.  Furthermore, in YUSUF MAGAJI ABDULLAHI & 4 ORS. V COP, KANO SUIT NO: K/M582/2018 the Kabo State high court (per Hon. Justice Nasiru Saminu) held that “The Applicants are entitled to peacefully practice their religion either alone or in community with others in public or in private.”  The court also granted an injunction  “restraining the Respondent either by himself or any other person or persons acting under his instruction from any further harassment,  molestation and violating, attacking or arresting the Applicants during their peaceful religious activities.”

For daring to convene protests against misrule by the Buhari administration Mr. Omoyele Sowore was accused of engaging in terrorist activities. At the instance of the State Security Service the federal high court ordered the detention of his detention for 45 days under the Terrorism Prevention Act, 2011 and the Terrorism Amendment Act 2013. Even though no evidence of terrorism was established against him the order of the federal high court for his bail was treated with contempt by the State Security Service. As if that was not enough the SSS had the temerity to threaten to report Justice Taiwo Taiwo for admitting Mr, Sowore to bail.

Instead of calling the SSS to order the Attorney-General of the Federation, Mr. Abubakar Malami has since charged Mr. Sowore and Mr. Bakare with treasonable felony, insulting the President Buhari and money laundering. Other activists who took part in the protests in Calabar, Cross River State, Osogbo, Osun State, Abeokuta, Ogun State and Yaba, Lagos State have been charged with unlawful assembly. The trial judge, Ifeoma Ojukwu J. admitted the defendants to bail under stringent and suffocating conditions. A journalist, Mr. Agba Jalingo has been charged with terrorism for accusing Governor Ben Ayade of Cross River state of engaging in corrupt practices. In the body of the charge Mr Jalingo has been described as “an associate of Mr. Omoyele Sowore”.

It is interesting to note that a number of Nigerians including lawyers have condemned Mr Sowore for calling for revolution in the country. The fact that General Buhari called for the revolutionary transformation of Nigeria under the PDP is of no moment. In fact, in a recent BBC interview, the Attorney-General, Mr. Abubakar Malami SAN challenged Mr. Sowore for organising protests after he had been defeated by President Buhari in the last presidential election. Mr. Malami SAN might have forgotten that General Buhari held rallies in 2003 and 2007 after his defeat in presidential elections. But Mr. Malami SAN could not have forgotten the fact that the December 1983 coup de tat which terminated the second republic was led by General Buhari who was never charged with treason upon the restoration of democratic rule.

The statement credited to Mr. Malami SAN is a sad reminder of the jittery reaction of the British Colonial invaders to series of lectures organised by the Zikists Movement in 1948 which Comrade Edwin Madunagu has described as a major intervention at a time that bourgeois politicians were dividing the country along ethnic lines. For demanding revolution via public lectures the Zikists were charged with sedition, tried, convicted and jailed. In proving the charge, Osita Agwuna was alleged to have said that he was no longer bound by colonial laws and that he had asked Nigerians to stop paying taxes to the British colonial regime.

Comrade Agwuna who delivered the first lecture in Lagos, Tony Enahoro who was the chaired the lecture and Habib Abdallah who delivered the second lecture together with Oged Macaulay were convicted and sentenced to prison terms ranging from 6 months to 3 years. In Director of Public Prosecutions v Dr. Chike Obi (1961) 1 NLR 186, the respondent was charged with sedition, tried and convicted for distributing a pamphlet in which he had said, “Down with the enemies of the people, the exploiters of the weak and oppressors of the poor” directed at the federal government. However, in in the case of Arthur Nwankwo v The State (1985) N.C.L.R. 228 the provisions of the Criminal Code which provided for sedition and seditious publications were declared illegal and unconstitutional by the Court of Appeal on the ground that they constituted a violation of the fundamental right of Nigerian to freedom of expression.

Like the colonial regime the Ibrahim Bbangida junta charged civilians with treasonable felony for organising public protests. For insatnce, in May 1992, I was one of the five civilians charged with treasonable felony by the Ibrahim Babangida junta for organizing protests demanding an end to military rule in the country. The late Chief Gani Fawehinmi SAN and I who represented ourselves and the other defendants argued that street protests against military dictators were not captured under section 41 of the Criminal Code. We also argued that it was ironical that General Babangida and his fellow coup plotters who should be standing trial for treason had turned round to charge us with a treasonable felony for merely organising street protests and rallies to end a corrupt military dictatorship in our country.

Embarrassed by our submissions the Babangida junta abandoned the case and abandoned it. In the circumstances, the charge was struck out for want of diligent prosecution while we were discharged by the trial Chief Magistrate.  However, the Sani Abacha junta resorted to phantom coup to deal ruthlessly with its perceived enemies. Some journalists and human rights activists were also implicated and convicted for being accessories after the fact of treason in questionable secret trials. But with the restoration of democratic rule in May 1999 the Treason Offences Decree, No 29 of 1993 was repealed.

Conclusion

If this trend of accusing every person of engaging in terrorist activities or treasonable felony for criticising the Buhari administration continues the Nigeria Police Force and the State Security Service will soon turn Nigeria into a country of terrorists. To stop the dangerous trend it is high time the federal government restrained the security agencies from further exposing Nigeria to ridicule in the comity of civilized nations. Therefore, all criminal cases pending against demonstrators and critics of the President Buhari and state governors should be discontinued forthwith.

Having regards to the authoritative pronouncement of the Court of Appeal on the fundamental right of Nigerians to freedom of assembly and expression through peaceful rallies and protests the Federal Government is legally obligated to restrain the police and other security agencies from further harassing protesters in the country. To avoid the reckless killing of protesters by the police and other security agencies the federal government should equip the police with non lethal weapons and water cannon for crowd control in the country. Section 33 of the Constitution which permits the police to breach the fundamental right of citizens to life during a riot should be expunged without any delay.

Permit me to conclude this paper by reminding our judges and lawyers that even under the most brutal military dictatorship in Nigeria when the jurisdiction of the courts was ousted for anything done or purported to have been done pursuant to obnoxious decrees our judges did not hesitate to strike down detention orders and dismissal letters that could not be justified in law. In the celebrated case of the Military Governor of Lagos State v Chief Emeka Ojukwu (1986) 2 NWLR (Pt 18) 621 the Supreme Court ordered the appellant to restore the respondent to the disputed house since he was forcefully ejected therefrom when the case was pending in court. Until the order of the apex court was fully complied with the matter did not proceed.

(Being the paper presented by Femi Falana SAN at the annual public lecture of the Public Interest Litigation Section of the Nigerian Bar Association held at Aba, Abia State from November 7-9, 2019)

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