LANRE ADEWOLE and YEJIDE GBENGA-OGUNDARE connect the past to the present on the legality of protests as a right of the people.
24 hours to the planned nationwide protest by Nigerians to place their hardship before the rest of the world, multiple judicial decisions have their back on their right to conduct the exercise.
Past decisions of Nigerians courts have interpreted various legal writings in favour of peaceful protest, calling it a major right of the people.
The latest judicial pronouncement backing protests is of regional substance, coming from the Court of Justice of the Economic Community of West African States (ECOWAS).
Incidentally, Nigerian leader, President Bola Tinubu is the current chairman of the ECOWAS and the outgoing Chief Justice of Nigeria (CJN), Justice Kayode Ariwoola is the current chairman of ECOWAS Judicial Council (ECJ).
The ECJ Bureau is also currently located in the capital of Nigeria and in February, Ariwoola hosted and presided over a three-day statutory meeting of the Council in Abuja.
The hosting was Nigeria’s first, with the leading jurist leading other ECOWAS Chief Justices to Aso Presidential Villa, to parley with President Tinubu on how to further empower the court as the judicial arm of the regional body.
The Abuja meeting of the ECOWAS Judicial Council was equally backed with visits to some ECOWAS countries by Ariwoola, accompanied by top officials of the National Judicial Council (NJC).
As Ariwoola begins his retirement on August 22, about three weeks from today, his successor, current vice chairman of the NJC and most senior judicial officer in the country, Justice Kudirat Kekere-Ekun is expected to assume the leadership of the ECJ.
With Nigeria practically leading the most critical arms of the regional body, the pronouncements of the ECOWAS Court, long domiciled in Abuja, are expected to be respected by the nations’ leaders.
Protests, legal
The ECOWAS Court ruled on Wednesday July 10, 2024 that Nigeria violated the provisions of the African Charter on Human and Peoples’ Rights (ACHPR) in its response to the EndSARS protests that took place in October 2020.
The court was speaking to its ruling in a press statement.
The ruling, given in a joint matter brought by three participants in the protests, held that Nigerian authorities violated the plaintiffs’ “right to life, security of person, freedom of expression, assembly and association, prohibition of torture, the duty of the state to investigate, and the right to effective remedy,” as stated in articles 1, 4, 6, 9, 10, and 11 of the ACHPR.
The court noted that the violations against these Nigerians took place during the 2020 mass protests against police brutality that swept across the country.
Justice Koroma Mohamed Sengu, who delivered the unanimous verdict, noted that the court dismissed the allegations of breach of the right to life according to Article 4 of the ACHPR raised by the applicants.
Judge Sengu added that the three claimants do not have the right to an effective remedy. Nevertheless, the court held that the Nigerian government disregarded several articles of the ACHPR which constituted fundamental breaches of human rights.
Consequently, the court ordered the Nigerian Federal Government to compensate each claimant whose rights under the ACHPR were violated. Additionally, the court ordered Nigerian authorities to investigate the violations and prosecute the perpetrators.
It added that Nigeria’s government must comply with its obligations under the ACHPR, giving the government a six-month notice to report on the measures it would take to implement the judgment.
Our case
In October 2021, the three plaintiffs filed the case on the one year anniversary of the protest, through their lawyers.
Four lawyers; Bolaji Gabari, Mojirayo Ogunlana-Nkanga, Gaye Sowe, and Nelson Olanipekun, from three different chambers, jointly signed the document to represent the suing victims, pro bono. They also explained that the applicants approached the ECOWAS Court, because it is a regional court that adjudicates cases within its jurisdiction of member states in West Africa sub-region, and known for its neutrality and adherence to international standards in adjudicating cases.
The lawyers also claimed that justices that comprise the panel at the ECOWAS Court are judges with various international experiences, adding that the court has lived up to its name as it would analyse the issues and facts before it, to give an international standard judgment, and has the boldness in determining cases without being influenced.
Its judgments are also expected to have a ripple effect.
The applicants in the suit, claimed that the Nigerian State violated her obligations under the Nigerian Constitution, International laws and most especially, the African Charter, in subduing the protests.
According to their lawyers; “Three Applicants who witnessed and were victims of the military and police onslaught that occurred in the event popularly known as #EndSARS protests which took place on the 20th of October 2020 at Lekki Tollgate have filed an action before the ECOWAS Court seeking the enforcement of their fundamental rights.
“The Applicants, who continue to suffer untold psychological and mental trauma and threat to life, from that day, have approached the ECOWAS Court, known for its neutrality and adherence to international standards in adjudicating cases, to consider and hold that the rights of the Applicants and other peaceful protesters have been grossly violated by the Nigerian State and its agencies.
“The Applicants seek amongst others, the declaration that the Nigerian State has violated her obligations under the Nigerian Constitution, International laws and most especially the African Charter; failed and fails to protect the lives of the Applicants and citizens; protect its citizens from extrajudicial killings, police brutality and to promote and provide security for its citizens.
“They also seek a declaration that the State persistently tolerates and promotes a climate of impunity in the country as a result of its systemic failure to condemn, effectively identify and secure accountability for a series of grave attacks against the Applicants and people of Nigeria and failure to convict perpetrators of human rights violations in the years preceding the 20th and 21st of October 2020 Lekki Tollgate Shooting and till date.
“All of these constitute a gross violation of fundamental human rights guaranteed by Sections 38 and 40 of the Nigerian Constitution and Articles 9 and 10 of the African Charter on Human and Peoples Rights.
“Given this disregard for the rights of Nigerian people, we are commencing litigation against the Federal Government of Nigeria at the ECOWAS Court of Justice to seek redress for the victims and accountability against the Government who through her agents were involved in the rights abuses that led to the #EndSARS protests and its aftermaths.
“We will pursue our demands through the ECOWAS Court to ensure that the government of Nigeria is held to account for the killing of Nigerian citizens and the abuse of their rights as enshrined in the Nigeria Constitution, the African Charter of Human and Peoples Rights and other International Human Rights instruments that Nigeria is a signatory to.”
They also lamented that, “Today, victims of police brutality are yet to be adequately compensated, and justice has yet to be served either for their families or on the perpetrators.
“Post the proscription of the protests by President Muhammadu Buhari, the online and offline attacks on human rights defenders, the arrests and illegal detention of protesters, the deregistration of organisations and blanket tag of terrorism on bank accounts belonging to protesters, etc. were some tactics the government and its agencies employed, presumably to silence the dissenting voices.”
The lawyers noted that the choice of ECOWAS Court was strategic, to push back against clampdown of citizens across Africa, adding “we are not just fighting for Nigeria, we are fighting for Africa.”
The first applicant claimed that she witnessed and recorded police forces shooting protesters and that she had to live in an asylum because of threatening phone calls. The second applicant alleged that the police shot at protesters after cutting electricity. She added that she was personally hospitalised because of the use of tear gas by police forces.
The last applicant stated that she was shot during the protests and didn’t receive proper medical care because soldiers refused an ambulance entry.
In response to their allegations, the federal government denied all the claims and insisted the protests were unlawful, claiming that the security agents were bound by “strict rules of engagement” and did not shoot at protesters.
The central government also alleged that the three applicants’ participation in the protests wasn’t peaceful and that they stirred violence among the crowd.
The United Nations and other world leaders condemned the federal government handling of the crisis, with Lagos State government eventually setting up a judicial investigation into what was eventually established as Lekki massacre.
Right not absolute
Speaking on the issue, Chief Yomi Alliyu (SAN) told Nigerian Tribune that “Protest is a Constitutional right guaranteed by both sections 39, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Now the right is a three way traffic according to s.45 of the Constitution; the rights of the protesters, the public and government. None should impede the other from enjoying their rights. Protesters are free to ventilate their grievances without impeding the rights of other members of the public from their rights to freedom to perform their daily chores.
Government will protect them too and do everything to prohibit attrition and/or hindrance of either’s rights.
Dave Ajetomobi esq, a former chairman of Nigerian Bar Association (NBA), Ikeja branch, stated that there are obligations to rights, including the right to protest.
He said, “Right to peaceful protest is guaranteed by the Constitution, that right is qualified by ‘peaceful.’ If protest is not peaceful but turned violent, the participants are liable for the breach of peace and for any destruction of private or public assets.
“It is the history of Nigeria that most of our protests, especially those with faceless leaders or led by people or professionals seeking fame usually turned violent, example is the 2020 #endsars.
“We are still to recover from the havoc foisted by the lack of planning of the protest. In such situation, it becomes an issue of national security, the responsibility for which the Constitution vests in the government and government is duty-bound to protect lives and properties of Nigerians.”
Barrister Foluso Olapo in his submission stated that “protest is a fundamental right which cannot be derogated from or limit except by an order of court. However, no right is absolute. To the extent to which a right to protest against any grievances to that extent is the reciprocal duty to respect other people’s right by not derogating from or limiting same.
For instance, the duty to protect public properties does not enure just because a person is protesting. Therefore, destroying public property during protest is a criminal offence which may actually lead to a jail term.
With respect to national security; what constitutes national security can only be determined by the court of law. However, every citizen has a legal duty not to sabotage the economy and to maintain decorum
The D-Day
Nineteen civil society groups have come together to defend the right to the nationwide protest which began in Niger State on Monday and expected to go countrywide tomorrow.
They are advocating for the protection of protesters’ rights and urging the Nigerian Judiciary and National Human Rights Commission to ensure a fair and just response to any related charges.
According to their statement, “In light of recent events and ongoing discussions surrounding the appropriateness of citizens expressing their dissatisfaction with government policies and actions, we, the undersigned civil society organisations, are compelled to reaffirm the fundamental right of citizens to peaceful protest as a fundamental pillar of democratic governance.
“This right is a cornerstone of any democratic society and a critical means for citizens to express their dissatisfaction, demand accountability, and advocate for change.
“Protesting is a legitimate form of expression enshrined in international human rights instruments, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and Nigeria’s 1999 Constitution (as amended), among others.
“It allows citizens to publicly voice their concerns, challenge injustices, and participate actively in the democratic process.
“Protests serve as a vital mechanism for holding leaders accountable and ensuring that government actions reflect the will and needs of the people.
“History has shown that protests can lead to significant changes in government policies, processes and practices, highlighting the power of collective action to address grievances and promote good governance.
“While the right to protest is a fundamental principle of democratic nations, we concede that it must be exercised peacefully and responsibly without violating the rights of others.
“Accordingly, we urge all parties engaged, including protest organisers, participants, and law enforcement agencies, to prioritise safety and the rule of law.
“Law enforcement has a duty to safeguard protesters while upholding public order. Demonstrators must avoid activities that might exacerbate tensions, cause unrest or threaten public safety.
“Attempts to suppress demonstrations through intimidation, excessive use of force, or unjust legal actions are unacceptable and counterproductive.
“Every protest is deemed peaceful, and if intelligence indicates otherwise, it is the role of the appropriate government agencies to identify such saboteurs and arrest them immediately.
“Arresting protest organisers show a lack of understanding of the enemies of the state. We urge the Nigerian Judiciary and the National Human Rights Commission (NHRC) to uphold the rights of all protesters and establish a mechanism to promptly address and dismiss oppressive charges that may arise from these protests.
“The demands include reducing the cost of living, curbing insecurity, reducing the cost of governance, electoral reform, judicial reform, and constitutional reform, which are all recurring themes in Nigeria’s journey towards a healthy democracy.
“We reaffirm our commitment to the principles of democracy and human rights and stand in solidarity with those who decided to exercise the right to peaceful protest.
“We encourage all citizens to actively participate in shaping a just and accountable society, and we call on all stakeholders to uphold the principles of democracy, human rights, and the rule of law.”
Members of the coalition include; 21st Century Community Empowerment for Youth and Women Initiative, Accountability Lab Nigeria, Africa Institute for Energy Governance (AFIEGO) Uganda, and BudgIT Foundation.
Others are Centre for Accountability and Inclusive Development, Centre for Inclusive Social Development, Centre for Journalism Innovation and Development, Civil Society Legislative Advocacy Centre, Dataphyte Foundation, DigiCivic Initiative, Enough is Enough (EiE) Nigeria, Farnnel Women Foundation, Gee Foundation for Social Justice and Development, Global Rights, Health Education and Human Rights Advocacy Initiative, HIFWAC Relief, Hope Behind Bars Africa, Institutional and Sustainable Development Foundation, and International Peace and Civic Responsibility Centre.
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