There was a debate over whether the police erred in charging protesters arrested outside the FCT, who were later freed without trial. Assistant Editor ERIC IKHILAE reviews the case and sought the views of legal giants
The police on November 1 charged 114 protesters with treason and related offences before the Federal High Court in Abuja.
A total of 119, among which were 32 young men (between the ages of 14 and 17), were originally charged in two batches of 76 and 43.
The first charge, containing 10 counts and marked FHC/ABJ/CR/503/2024, had 76 defendants, out of which 72 were arraigned, with the exclusion of four, who exhibited ill-health in court before the arraignment.
The second charge, which contained four counts, marked: FHC/ABJ/CR/527/2024, had 43 defendants, out of which one was excluded during arraignment on grounds of ill-health.
On the same day, Justice Obiora Egwuatu granted each of the defendants bail at N10million with two sureties, one of which must be either a parent or sibling.
Justice Egwuatu then adjourned till January 24 next year and ordered that the defendants be remanded in the appropriate facilities pending when they are able to perfect the bail granted.
The proceedings attracted huge attention, prompting the intervention of the Attorney General of the Federation (AGF), Lateef Fagbemi (SAN), who took over the case and, with the consent of the parties and the court, had the case brought forward for hearing on November 5.
Although Femi Falana (SAN) filed an application on behalf of the defendants challenging the jurisdiction of the court, it could no longer be heard on November 5 when the AGF, acting through the Director of Public Prosecution of the Federation (DPPF), Mohammed Abubakar, discontinued the trial.
Some of the charges
The defendants were charged, under the Miscellaneous Offences Act and the Penal Code, with offences like conspiracy, destruction of public property, attack on law enforcement agents and treason.
Some of the counts read:
• While acting in concert with drew Martin Wynne (aka Andrew Povich) a British Citizen, with intent to destabilise Nigeria, levied war against the state in order to intimidate or overawe the President by attacking and injuring police officers and burning police stations, High Court complex, NCC Complex, Kano Printing Press, Government House Kano, Kaduna Investment and Promotions Agency office, NURTW office and several other buildings thereby committed an offence contrary to Section 410 of the Penal Code (Northern States) Federal Provisions Act CAP P3 LFN 2004.
• While acting in concert with Andrew Martin Wynne (aka Andrew Povich) a British citizen with intent destabilise Nigeria, incited to mutiny by calling on the military to take over government from President Bola Ahmed Tinubu by chanting ‘Tinubu most go’ ‘soja muskeso’ (meaning Tinubu must go), ‘it is military we want’, while rioting and disturbing public peace and thereby committed an offence contrary to section 413 of the Penal Code (Northern States) Federal Provisions Act CAP P3 LFN 2004.
• Between 1st August, 2024 to 10th August 2024 in FCT, Jos, Kano, Kaduna, Gombe, Katsina and many other states, while acting in concert with Andrew Martin Wynne (aka Andrew Povich) a British citizen, with intent to destabilise Nigeria, incited disaffection to the government by inciting public disturbance while carrying placards the inscription ‘end bad government’ and several other inscriptions to incite disaffection to the government and thereby committed an offence contrary to ion 416 of the Penal Code (Northern States) Federal Provisions Act CAP P3 LFN.
• Between 1st August 2024 and 4th August 2024 at Sharada Yahaya Gusau Road Kano State and Brigade Gwagwarwa Nasarawa L.G.A of Kano Municipal Council Kano State, within while acting in concert carrying Russian Flags chanting violent songs unlawfully and with intent to destroy, damage National Communication Commission (NCC) Office and carted away with doors windows, chairs, cushions and many valuable properties in the said public buildings and you thereby committed an offence Punishable under Section 1(3)(a) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004.
• What constitutes treason?
Treason is defined in section 410 of the Penal Code as “levying war against the state” with the intention of “over-awing the (President)”.
It is punishable by death.
Treasonable felony (or “crimes”), on the other hand (as defined in section 412 of the Penal Code), manifests in, amongst others, an overt act done with the intention of either compelling the government to effect a change of policy, to intimidate, or to overawe the Legislature or to instigate a foreigner to invade Nigeria. It is punishable with life imprisonment.
*The unending debate
Despite the decision by the Federal Government to end the trial and pardon the defendants, the case has remained a subject of debate in many quarters, with many raising various questions.
Many have wondered if it was wrong for the police to charge the protesters with treason for allegedly carrying foreign flags and calling on the Nigerian military and other foreign entities to ensure a regime change.
There are also questions about whether it is unlawful to prosecute minors/young people below 18 years for criminal offences and whether it is against any existing law to charge young people/minors with treason.
Some have also queried the manner the police handled the case.
Law experts have equally added their voices, citing various legal provisions to support their positions.
Lawyers, including former President of the Nigerian Bar Association (NBA), Joseph Daudu (SAN); rights activist, Prof Mike Ozekhome (SAN), Reverend John Baiyeshea (SAN), Akinlolu Kehinde (SAN), Dr. Wahab Shittu (SAN), Adoyinka Kotoye (SAN), Daniel Makolo and Oluwole Adaja faulted the manner the police went about the case.
The legal giants agreed that it was within the prerogative of the police to charge any offender with any offence, but Daudu, Ozekhome, Baiyeshea, Kehinde, Shittu and Kotoye however queried the propriety of charging the alleged rioters with treason.
While Daudu, Ozekhome, Kehinde and Kotoye are of the view that it was wrong for the police to charge the rioters with treason irrespective of their ages, Shittu, Makolo and Adaja think otherwise.
Daudu said: “For me, the highest offences that they could have been charged for are ‘conduct likely to cause a breach of the peace,’ ‘unlawful assembly,’ ‘willful destruction of public property,’ ‘theft’ (otherwise known in the Southern part of Nigeria as ‘stealing’) and other offences of like nature, example ‘affray’, which are not only state offences but bailable offences.”
He added: “For the avoidance of doubt, there was nothing treasonable in the conduct of these children or young men as discernible from the charge and if our systems were working, they could easily have been charged for the offences mentioned above in Juvenile or Magistrate courts, within the territory of the states where it is alleged they committed those riot induced offences.”
Ozekhome agreed, saying: “It appears to me too far-fetched to charge a person with treason simply for merely waving a foreign flag in Nigeria, without more.
“There must be something overt, capable of igniting the intention, otherwise it will amount to criminalising a person’s right to freedom of speech and expression which is guaranteed under the 1999 Constitution.
“Instigating our military (or that of another country) to overthrow the government would clearly constitute such an act, but nothing of the sort was shown in the case of the minors.”
Kehinde argued that to sustain the charge of treason, the police would have to establish that the protesters intended to overthrow the government or intimidate it into ceding power and that their actions posed a real and imminent threat to the government’s stability.
He added: “Allegedly carrying foreign flags and calling for external intervention, while provocative, may not meet the legal standard for treason.
“It risks infringing on the protesters’ rights to freedom of expression and peaceful assembly as protected under Sections 39 and 40 of the 1999 Constitution.
“These provisions enshrine the rights of Nigerians to protest and express dissent.
“While carrying a foreign flag or calling for regime change may be viewed as seditious or inciting, it may not necessarily meet the threshold of treason unless it includes an overt act of attempting to overthrow the government through violence or insurrection.
“Simply holding a foreign flag or expressing discontent does not equate to an attempt to overthrow the government,” he said.
Kehinde argued that mere criticism or symbolic acts, such as the display of flags or the voicing of controversial opinions, would not meet the legal threshold for treason unless accompanied by concrete actions that undermine the state’s stability.
He added: “In this context, the police’s use of a treason charge could be seen as an overreach unless there is substantial evidence that the protesters intended to incite or initiate a violent overthrow of the government.
“Typically, such acts might fall under charges related to sedition, unlawful assembly, or public incitement rather than treason.”
Kotoye said: “I don’t think that the offence (treason) is still part of our laws. It is an offence of colonial antiquities.”
Shittu referred to the Blacks Law Dictionary which defines treason as “the offence of attempting to overthrow the government of a state to which one owes allegiance by making war against the state or by materially supporting its enemies.”
He noted that Section 37 (2) of the Criminal Code states that “any person who levies war against the state in order to intimidate or overawe the President or Governor of a state is guilty of treason and is liable to punishment by death.”
Shittu also referred to Section 38 of the Criminal Code, which provides that “any person, who instigates any foreigner to invade Nigeria with an armed force is guilty of treason and is liable to the punishment of death.”
He then argued that, based on the various definitions of treason, “the acts of carrying foreign flags and calling on the military to change the government is by law, without a doubt, visible to the blind as an act of treason and punishable by death as it falls under Section 38 ( instigating invasion of Nigeria).
“I would also like to point out that inasmuch as a ‘protest’ is legal as the right to freedom of speech and expression is entrenched, not only in Section 39 of the national constitution but also in other laws like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), however, ‘treason’ is illegal.”
Makolo said it was not wrong in law for the police to have charged the young protesters for allegedly carrying foreign flags and calling on Nigeria military and other foreign entities to ensure a regime change in Nigeria.
He added: “The alleged act of the young protesters meets some elements of treason under Nigerian law as contained in the Criminal Code Act, that any person who levies war against the state in order to intimidate the President or Governor is guilty of treason and is liable to punishment of death.
“So the alleged actions of the young protesters can be pigeonholed into treasonable act if and when the prosecutor is able to proof beyond reasonable doubt of the alleged actions of the young protesters.”
According to Adaja: “The act of calling for the overthrow of a democratically elected government is a treasonable offence which is triable in court.
“Therefore, the police, as the primary law enforcement agency, acted within the ambit of law when they arraigned the young protesters in court.”
*Does the law allow the prosecution of minors for criminal offences or charge them with treason?”
Anyone above 17 can be prosecuted
The lawyers were unanimous that young individuals above seven years could be lawfully prosecuted for criminal offences.
They also agreed that no law, in real sense, prohibits the prosecution of individuals who is above seven years.
Daudu noted that “minors, and that is, if they are less than 16 years, are usually treated as adults when they are found committing crimes”.
He said he would not have had any problem with the case if the rioters if “they charged for the right offences in the territory of the states where they allegedly misconducted themselves.”
As noted by Ozekhome, no law prohibits the prosecution of a person for violating any law – including treason or treasonable felony – unless he or she is less than seven years old or if, between the ages of seven and 12, he lacks the requisite maturity and capacity to understand the nature and consequences of his or her acts, as provided in Section 50 of the Penal Code.
He added that subject to those exceptions provided, a person of less than 18 years of age should only be arraigned before a Family Court established under the Child Rights Act or Law (comprising of a High Court judge or Magistrate sitting with two assessors), but not in a regular court.
Baiyeshea noted that, in the case of a young offender, the only unique thing in law is that children cannot be given capital punishment even if found guilty.
He added: “No one is absolutely immune from criminal liability merely because he is a child. Children are capable of being manipulated no doubt, because adults may be ‘using’ them to commit such crimes.
“So, during trials, such revelations can come out. And if children act in concert with or at the behest of adult criminals, the revelations will come during investigations and/or trials.
“Children can not be allowed to walk freely away from crimes just because they are children.
“Truly, the position of the Law is that a child or children do not know or realise the consequences of their actions, that is why the full weight of law regarding sentence is not usually imposed on children but mitigated sentence.
“If children were to be fully insulated or free from punishment for crimes, it would spell doom for the society,” Baiyeshea said.
Kehinde cited sections 30 of the Criminal Code Act and 50 of the Penal Code Act, which provide that “a person under the age of 7 years is not criminally responsible for any act or omission.”
The sections add that a person under 12 years is not criminally responsible unless it is proven that the person had the capacity to know they were doing something wrong.
He explained that the cited provisions in both laws recognise that, while young people may engage in acts that constitute criminal offences, they should be judged differently due to their age and developmental capacity.
Kehinde added: “The Nigerian legal framework does not prohibit prosecution entirely, but it does emphasises that minors should be treated in ways that reflect their age and potential for rehabilitation.
“Consequently, while minors may face legal action, the guiding principle is always in the child’s best interest, aligning Nigeria’s juvenile justice system with global standards of child protection.”
Kotoye said: “I don’t know of any law prohibiting the prosecution of minors/young people below 18 years for criminal offences.
“However, the concern is, being minors, a juvenile court, as opposed to open trial, in the regular court, should have been the appropriate forum.”
Shittu citing Section 30 of the Criminal Code argued that anyone above 12 years old can be criminally responsible and prosecuted in a court of law.
He added that although the Child Rights Act and other child protection laws provide that anyone under the age of 18 years should be tried in a juvenile court as opposed to being tried in a normal court of law, there are some exceptions to this rule.
Some of such exceptions, he noted, include if the young person committed the offence with an adult and if it is a major/capital offence punishable by death
He added: “In these two instances, the person, irrespective of age, would be tried under due process according to law like an adult.
“It is also pertinent to note that while a juvenile can be tried for capital offences, he can not be sentenced to death or sent to normal prisons, irrespective of the offence.
“Rather he will be housed in juvenile detention facilities or borstal homes. In conclusion, the police did not break any known law by charging the young protesters to court as well as thier adult counterparts” Shittu said.
Did the police handle the case well?
The law experts argued that the police did not display sufficient professionalism in the handling of the case.
They alleged the violation of the defendants’ rights in many ways, including their detention beyond the time allowed, denying them access to lawyers, and inadequate feeding, among others.
Daudu said there was the need to interrogate the sense of responsibility of those, who had custody of these young men since they were arrested and allegedly incarcerated for about three months.
He added: “What happened to the monies voted for taking care of them whilst in custody? Did any of them die in custody? These to me are the points to interrogate.
“If FGN or the President is serving Nigerians, there ought to be a multi-departmental inquiry into this matter.”
Ozekhome, who faulted the venue of the trial, argued that “the police should have charged the underage defendants in either Kaduna or Kano (and other states where they were arrested) under the relevant laws of those states instead of dragging them to Abuja.
“The trial in Abuja was farcical and contrary to law. It was right and proper that same was discontinued.”
Kehinde was of the view that several issues arose from the police’s handling of the arraignment of the protesters in Abuja, one of which was that “the transfer of jurisdiction to Abuja from Kano and Kaduna states appears to violate Nigerian jurisdictional principles.”
He also noted that alleged denial of access to legal representation undermines the right to a fair defence; reports of prolonged detention without bail access contradict constitutional protections, and the mass arraignment tactic raises concerns about attempts to intimidate and suppress dissent.
Kehinde said: “These actions suggest procedural, legal, and human rights concerns that conflict with Nigeria’s constitutional provisions, statutes, and international obligations.
“Moving forward, Nigerian authorities would benefit from a commitment to lawful, fair, and transparent procedures in handling cases involving public protests to maintain democratic freedoms and uphold human rights principles.”
Baiyeshea stated that the only issue with the handling of the minors by the police in Abuja was only as to the shoddy manner of their detention.
He added: “The children were kept in subhuman conditions and looked severely malnourished on television. This terrible appearance evoked pity, emotions and sentiments.
“Then, the peculiarity of the matter lies in the subject which was participation of the children in protest against a (momentarily), unpopular Government.
“So, Nigerians are no longer thinking about the treasonable nature of the children’s protest, but the anti-people government policies that led to the protests in the first place.
“Therefore, in this case, emotions and sentiments have overridden criminal responsibilities,” Baiyeshea said.
Kotoye was of the view that bundling them together in one charge and taking them out of the location where the incident occurred was wrong.
He added that the police, the office of the National Security Adviser (NSA), the Department of State Services (DSS) should have collaborated with the office of the AGF before the charge was filed.
Shittu noted that in the eyes of the public, almost everything was done wrong if not everything, adding that “but, from the legal perspective, we can analyse the wrongs, starting from the detention period of the suspects in police custody.”
He also identified the alleged animalistic manner in which the suspects were treated in police custody without access to proper feeding and water and the disregard for the fundamental human rights of the suspects in general.
Shittu cited Section 35(4) of the Constitution, which provides that any person arrested or detained should be brought before a court of law within a reasonable time (a reasonable time being defined in subsection 5 as a period of one day if there is a court of competent jurisdiction within a radius of 40 kilometers and two days or longer otherwise).
He argued that in the circumstance of this case, there is a court of competent jurisdiction and therefore they should have been tried within a period of one day.
Shittu said: “This blatant disregard for fundamental human rights could also be noticed as videos of malnourished and underfed men and children were seen.
“Pointing to the fact that they were not well taken care of while in custody, this goes against a lot of their rights and is wrong on the part of the Nigerian police as everyone should be treated as humans,” Shittu said.
Adaja argued although the police cannot be faulted in bringing the protesters to the court for the purpose of arraignment, the events that played out in the court revealed that the police did not follow the provision of the law to the letter with respect to the rights of the young protesters.
He noted that the Child’s Rights Act provides, amongst others, that the parents or guardian of a child should be immediately notified (Section 211(1)(A)(i); that the legal status of the child should be respected and that harm should be avoided (Section 211(1)(C)(iii).
Adaja added that the law equally provides “that the child should be given care, protection and all necessary individual assistance including social, educational, vocational, psychological, medical and physical assistance while in detention (Section 212(2).
“Without doubt, all these were not complied with in the event that led to the arraignment of the young protesters,” Adaja said.
