Femi Falana

By Femi Falana

The satanic Boko Haram sect was officially banned in Nigeria by the federal government and declared a terrorist network in June 2013. The office of the Attorney-General of the Federation has since successfully prosecuted many of the members of the sect for sundry offences under the Terrorism Prevention (Amendment) Act. The Special Prosecutor of the International Criminal Court has also investigated and indicted the leaders of the sect for committing crimes against humanity. Having regards to the brutal killing, rape, abduction and bombing of innocent people in the north east region the Nigerian people are fully in support of the proscription of the dreaded sect and the counter insurgency operations being carried out by the armed forces.

However, it is worrisome that the Buhari administration has decided to extend the ambit of the Terrorism Prevention (Amendment) Act to cover individuals and organisations that are critical of official policies or perceived marginalisation within the federation. Thus, the Indigenous People of Biafra (IPOB) was proscribed as a terrorist body in 2017 for agitating for the excision of the Republic of Biafra from Nigeria while the Islamic Movement of Nigeria (IMN) was proscribed last week for organising rallies to compel the federal government to comply with a court order by releasing the Shia leader, Sheikh Ibraheem Elzakzaky and his wife from custody.

Yesterday, the authorities of the Nigeria Police Force threatened to prosecute the organisers of the peaceful rallies scheduled to hold in Nigeria on Monday August 5, 2019 for terrorism and treason to press for a change in the poverty induced agenda of the federal government. 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.

Indeed, by virtue of section 37 of the Criminal Code Act, any person who levies war against the State, in order to intimidate or overawe the President or the Governor of a State, is guilty of treason, and is liable to the punishment of death while section 41 provides that any person who forms an intention to remove the President during his term of office otherwise by constitutional means is guilty of treasonable felony and is liable to be sentenced to life imprisonment. The Terrorism Prevention (Amendment) Act has defined an act of terrorism to include any act which is deliberately done with malice which may seriously damage a country or an organization, or seriously intimidate a population, otherwise influence government by intimidation, destroy public facility, seize an aircraft, ship or other means of public transport likely to endanger human life or in result in major economic loss etc.

From the above definitions of treason, treasonable felony and terrorism it is crystal clear that the organisers of the peaceful rallies cannot be said to have planned to engage in acts of terrorism or formed an intention to remove President Muhammadu Buhari from office. The intention of the organisers of the rallies to protest the worsening security situation in the country, demand for payment of N30,000 minimum wage to workers and job creation for our army of unemployed youths etc cannot by any stretch of imagination be said to constitute terrorism or treason in any material particular.

No doubt, the Nigeria Police Force has capitalized on the use of the word “revolution” to criminalise the protests. If revolution has become a criminal offence in Nigeria why were the leaders of the APC not charged for claiming to have carried out Nigeria’s democratic revolution which terminated the 16-year rule of the PDP in 2015? Why was Dr. Kingsley Chiedu Moghalu, the presidential candidate of the Young Progressive Party (YPP) not threatened with treason when he asked Nigerians to rise up for revolution via the 2019 general election? Did all Nigerian senators led by APC members not commit treason or terrorism when they spent one and a half hours on May 14, 2019 to debate Senator Chukwuka Utazi’s timely motion on “Bridging the gap between the haves and have-not to nip in the bud the seeds of a looming violent revolution”?

I wish to submit, without any fear of contradiction, that neither the Criminal Code Act nor the Terrorism Prevention (Amendment) Act has classified the demand for revolution in Nigeria as a treasonable offence or terrorist activity. The statement credited to the Police 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.

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.

Since the Shehu Shagari elected government was overthrown by a band of coup plotters led by General Muhammadu Buhari in December 1983 the Constitution was suspended. Consequently, Nigerians were subjected to intimidation and ruled by martial law. 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 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 treasonable felony for merely organising street protests and rallies to end a corrupt military dictatorship in our country.

Apparently 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, some journalists and human rights activists were not so lucky as they were convicted for being accessories after the fact of treason by the Sani Abacha junta. But with the restoration of democratic rule in May 1999 the Treason Offences Decree No 29 of 1993 was repealed.

On duty of the Police to provide security during rallies

Under the current political dispensation the anti democratic tendencies of the Peoples Democratic Party (PDP) were regularly challenged by the Nigerian people. Incidentally the opposition political parties were involved in resisting the encroachment of the fundamental rights of citizens to freedom of expression and freedom of assembly. On September 23, 2003 the leaders of the defunct All Nigeria Peoples’ Party (ANPP) including General Muhammadu Buhari and Dr.Chuba Okadigbo held a rally in Kano, Kano State to protest the alleged rigging of the 2003 general election. Embarrassed by the development the Olusegun Obasanjo administration directed the police to stop the rally. Accordingly, the Police violently disrupted the rally and dispersed the participants with heavy dose of teargas. Two days later, Dr. Okadigbo passed on due to breathing problems. The ANPP blamed the federal government for Dr. Okadigbos’s death which was alleged to have arisen from the poisonous teargas used by the Police to stop the rally.

In order to put an end to such crude violation of the freedom of expression through demonstrations and rallies by aggrieved Nigerian people the ANPP instructed our law firm to challenge the disruption of the Kano rally. Thus, in the case of ANPP v IGP (2006) CHR 181, the plaintiff questioned the constitutional validity of police permit as a conditionality for rallies, marches and other public meetings in Nigeria. In her judgment delivered on June 25, 2005, the presiding judge, Chinkere J. held that police permit was illegal and unconstitutional as it was inconsistent with sections 39 and 40 of the Constitution and Article 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004.

According to the learned trial judge, “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.” Consequently, the court granted an order of perpetual injunction restraining 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.”

The epochal decision of the federal high court was upheld by the Court of Appeal in the case of IGP V ANPP (2008) 12 WRN 65. The Presiding Justice, Adekeye JCA (as she then was) asked “…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?” 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 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.”

Happily, the Police decided to abide by the judgment with respect to the management of public protests. Hence, in the Nigeria Police Code (issued in 2010) it is expressly stated that police officers shall “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.” On the basis of the new official policy the Police provided security for the members of the Nigeria Labour Congress and Trade Union Congress during the anti fuel protests. Similarly, the Police did not disrupt the street protests convened by the Save Nigeria Group when the late President Umaru Yar’Adua was said to have been admitted in an undisclosed foreign medical centre in 2010.

However, in 2014, in violation of the judgment and the Police Code the Federal Capital Territory Police Command decided 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. But the ban 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) 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.”

In view of the judicial recognition of the fundamental right of Nigerians to convene and participate in rallies, protest marches and other public meetings for or against the government the National Assembly was compelled to amend the Electoral Act, 2010 in March 2015. Thus, 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 there under 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.”

In the light of the relevant constitutional and statutory provisions and judicial authorities which have recognised the fundamental right of the Nigerian people to convene and participate in rallies, demonstrations and protest marches the threat of the Nigeria Police Force to stop the August 5, 2019 should be withdrawn without any further delay. Furthermore, the Inspector-General of Police, Mr. Mohammed Adamu is advised to direct the Commissioners of Police in all the states of the federation earmarked for the protests to ensure that adequate protection is provided for the organisers and participants as required by law.

The State Security Service should release Mr. Omoyele Sowore, one of the conveners of the protests. In the alternative, he should be arraigned in court if there is reasonable suspicion that he has contravened any penal statute. However, the nation’s security agencies should stop embarrassing President Buhari who had cause, from 2003-2014, to lead peaceful rallies to protest election malpractice and insecurity in the country.

Finally, the attention of security agencies is hereby drawn to that part of the judgment of the Court of Appeal in IGP v ANPP (supra) wherein Justice Adekeye cautioned thus:

“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.”

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