The controversy on whether a police permit is required for rallies and political processions has taken the centre stage lately. Lagos lawyer, IKECHUKWU IKEJI writes on why a permit may be needed for rallies
We have been reading and following with relish and a learning mentality the recent outbursts of emotions on the subject whether or not police permit is required to hold protests or rallies or demonstrations. The issues are direct fall outs from the present trend of events in Rivers State where police has had to intervene to stop certain rallies, which hide under the cloak of NGO meetings to further pursue political agenda. Several commentators, legal or otherwise, have lent their voices in one way or the other to the debate. One of the loudest voices has been that of learned Senior Advocate of Nigeria (SAN) and lawyer per excellence, Femi Falana, who was very clear in saying that police permit is not required for rallies. Our view is that, on the face of it, police permit is not a sine qua non for rallies or demonstrations. However, it goes beyond that sweeping statement as a deeper study will show that, indeed, police permits may be a requirement for rallies and processions. Everything depends on the circumstances of each case.
We, therefore, most humbly beg to disagree with the learned silk and others who are in agreement with that sweeping statement. We state with every sense of responsibility that police permit, which by implication means a permit issued under the delegated authority of the Governor under the Public Order Act Cap P42, LFN 2004 (the Act), may be needed in certain instances, especially those instances where there is a threat of, or there is likely to be or there is a clear evidence of, a breakdown of law and order or where there is a conflicting claim of the same right of protest or right of venue, as the case may be. Our disagreement stems from the angle of objective analysis of the issues involved, devoid of emotions and bearing in mind the overriding need to adopt proactive measures of law enforcement rather than waiting for actual breakdown of law and order before reacting, a situation that may lead to loss of lives and property that otherwise could have been avoided.
The bone of contention actually is the constitutionality or otherwise of the Public Order Act Cap P42, LFN 2004. In our view, to dismiss the Act as unconstitutional with a wave of the hand and without more is too hasty a conclusion to be reached in the face of the delicate nature of our democracy and the peculiarities of the African political terrain and going also by the antecedents of the events in issue. We do not want to have anarchy on our hands and when it is too late, we begin to live in regret of what we could have done to prevent such. Even beyond the Act, the issue of police interference in the exercise of the fundamental rights of citizens may extend to an examination of the powers of the police under the Police Act, especially Section 4 thereof, which provides for the general duties of the police to the effect that the police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act. This is an omnibus provision that the police sometime misuses, but which it nevertheless uses, sometimes lawfully. Under it, the police can stop a rally pursuant to its power to preserve law and order, and to protect life and property.
With regards to rallies, there are some questions to be asked namely: whether the rallies are political or not and if they are, whether the time is right for political rallies/campaigns or not. In Nigeria today, we agree that the Independent National Electoral Commission (INEC) has fixed commencement of campaigns for sometime in November, 2014 the implication being that political campaigns are unlawful presently. Again, we must also ask whether the rallies are peaceful or not or whether they have the likelihood of being peaceful or not or leading to a breakdown of law and order or not. We cannot play the ostrich and close our eyes to this reality.
No doubt, Section 40 of the 1999 Constitution of Nigeria, as amended, guarantees the freedom of association and right to assemble freely, but is the right unlimited? Is the right guaranteed here an absolute right? We submit that it is not an absolute right, as can be seen from the provisions of Section 45 of the Constitution, which we shall highlight below. Can we say, for example, that a gathering of armed robbers is lawful by virtue of Section 40 and under the pretext of freedom of association? Can two distinct groups gather on opposite sides with daggers drawn, threatening at each other with violence, and we say that such gatherings are lawful?
The foregoing is the reason why the question must be asked whether obtaining police permit may be required in certain circumstances. What is the state of the law today on the issue, beyond the known provisions of the Public Order Act?
The Public Order Act clearly empowers the Governor of the state to issue permits for processions or gatherings in public places or on public roads. The Governor may also delegate such power to the Commissioner of Police. Specifically Section 2 of the Act empowers any police officer of the rank of inspector or above to stop any assembly, meeting or procession for which no licence has been issued or which violates any conditions of the licence issued under Section 1 thereof. Section 1(2) actually provides that if the Governor is satisfied as to give a license to assemble, he shall direct any superior police officer to issue a license. By Section 1(4), “the Governor may delegate his powers under this section- (a) in relation to the whole state or part thereof, 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….”
From the foregoing, it may safely be presumed that when acting with regards to public processions or rallies, the Commissioner of Police is acting under the delegated authority of the state governor. Where the Commissioner of Police is deemed to have acted wrongly, the Public Order Act makes provision for an appeal to the Governor within 15 days and the decision of the Governor is final. In the final analysis, where any person alleges that pursuant to the exercise of the powers under the Public Order Act, his or her rights have been infringed, Section 46 of the Constitution empowers the person to approach a High Court for redress under the fundamental right enforcement procedure rules.
The simple implication of all this is that, the police may lawfully insist on a permit before any rally can take place. But, this position has received judicial interpretations in recent times raising even more confusion as to the exact position of the law.
As at the last count, there are two conflicting judgments of the Court of Appeal on the issue and it will serve well for our jurisprudence if the Supreme Court is approached to make final pronouncement on the matter.
On one hand, in ALL NIGERIAN PEOPLES PARTY & ORS. v. INSPECTOR GENERAL OF POLICE (2006) CHR 181, the Court of Appeal held that police permits are not needed for protests or rallies, while in CHUKWUMA v COP (2005) 8NWLR Pt. 278, the same Court of Appeal was also very unequivocal in declaring that a police permit is definitely required for protests and rallies. Those who argue that police permits are not needed for rallies rely on the ANPP case while those who argue that police permit is needed rely on the CHUKWUMA case. This writer’s position is a middle point, not completely excluding the requirement of police permit.
One can, however, conveniently decipher a dividing line between the two decisions of the Court of Appeal.
In the case of ALL NIGERIAN PEOPLES PARTY & ORS. V. INSPECTOR GENERAL OF POLICE (2006) CHR 181, the court declared that police permit is not needed for citizens to gather or to protest or to engage in rallies.
This is a fair statement of the law, in our view. The court, however, went ahead to declare that Section 45 of the 1999 Constitution, which derogates from the right to freely hold rally can only be invoked under a state of emergency.
It was on this premise that the court declared that there is an inalienable right to hold rallies without the need for a police permit. With the greatest respect to the honorable court, no interpretation of the said Section 45 can be farther from the intendment of the Constitution than to say that it can only be used under a state of emergency. For the avoidance of doubts, we hereby reproduce the said Section 45 of the 1999 Constitution as amended:
“45. (1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom or other persons
(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorise any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.
(3) In this section, a “ period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under Section 305 of this Constitution.”
From Section 45(2) above, it is clear in simple interpretation, that a state of emergency is specially mentioned only with particular reference to Sections 33 and 35 both of which deal on right to life and personal liberty respectively. Where there is no state of emergency, Sections 33 and 35 cannot be abridged arbitrarily. This is not the case with Sections 37, 38, 39, 40 and 41, all of which, by the express provision of Section 45(1), can be derogated from by a law that is reasonably justifiable in a democratic society without the need for a declaration of a state of emergency. This is where we respectively disagree with the decision of the Court of Appeal in ANPP & ORS V. IGP, supra.
One common denominator in terms of requirement that runs through Section 45 is that a law that portends to derogate from the fundamental rights listed therein shall be reasonably justifiable in a democratic society, and not that it should only be during a state of emergency. This must be clear, so that we all proceed from a correct premise since a wrong premise will always lead to a wrong conclusion. Our enquiry should always be whether the law or the action proceeding from under such law is reasonably justifiable in a democratic society, and not to make a sweeping statement that all laws or actions abridging these rights are in themselves without more unlawful or to even suggest that the rights can only be derogated from only when a state of emergency is declared.
In point of fact, in the ANPP case, there was clearly no threat or likelihood of violence or breakdown of law and order as the rally was meant to be a simple protest march to show disaffection with the results of an election. All the police needed to have done in the circumstance was to provide adequate protection and security while the protest goes on. It was, therefore, inappropriate for the police to have stopped the said protest march. On closer scrutiny, and given the circumstances of the clearly irrational action of the police, one can easily proffer that the distinguished Court of Appeal had no option than to declare the action of the police as unlawful. But to extend its opinion in such a way as to bring in a state of emergency as the sole purview of Section 45 appears to be an inappropriate extension of the principles as intended under Section 45.
The Court of Appeal’s decision in CHUKWUMA v COP (2005) 8NWLR Pt. 278 presents a balancing perspective to the question of the need for police permits. In that case, their Lordships held that police permit is a requirement for the holding of public meetings or assembly in private or public places. There is no doubt that this case upholds the constitutionality of the requirement of police permits for protests. Perhaps, an understanding of the facts of the case will help the reader appreciate why there is some justification in asking for police permits in specific instances.
The CHUKWUMA case involved a potential conflict between two warring factions of a socio-cultural association known as Igbo Community Association. While one faction of the Association wanted to host a meeting of all Igbo delegates assembly comprising of all Igbo Community Associations in Northern States of Nigeria in Ilorin, Kwara State, the other faction petitioned the Commissioner of Police alerting his office that the meeting was going to constitute a security risk. This petition informed the decision of the police to disperse the meeting. The Court of Appeal while stating that police permit is required for such rallies held, and rightfully so, that the dispersal of the gathering by the police was lawful as anything less may have seen the gathering lead to a breakdown of order.
Since we have two conflicting judgments of the Court of Appeal on our hands, it may be misleading to uphold only one of the decisions and ignore the other given the fact that our laws are based on judicial precedents. What we need to do is to look at the circumstances of each case and make appropriate opinions with regards to the peculiarities of same. To make a sweeping condemnation of the requirement of police permit is not a true reflection of the law as it is today in Nigeria and the earlier we bring this to the notice of the populace the better for us all. We have a responsibility not to fuel anarchy while maintaining the basic elements of fundamental rights. The appropriate step to take is to approach the courts anytime anybody complains of breach of his or her right. If the police refuses to allow a rally, the organisers should do well to take advantage of Section 46 of the 1999 Constitution, which allows for such a person to approach a court for redress. To do otherwise or to stubbornly enter the streets under the impression that it is an inalienable right can only lead to unpleasant circumstances.
