The right of citizens to protest

“Historically, protests have often inspired positive social change and improved protection of human rights, and they continue to help define and protect civic space in all parts of the world. Protests encourage the development of an engaged and informed citizenry and strengthen representative democracy by enabling direct participation in public affairs.

They enable individuals and groups to express dissent and grievances, to share views and opinions, to expose flaws in governance and to publicly demand that the authorities and other powerful entities rectify problems and are accountable for their actions.

This is especially important for those whose interests are otherwise poorly represented or marginalized.” -Article 19 on the Right to Protest: Principles on the protection of human rights in protests

On the first week of October, 2020, Nigerian youths who have experienced a long history of police brutality, bad leadership, corruption, unemployment, abject poverty, amongst other vices, rose up in one accord to condemn the social vices under the tag #EndSARS.

It is important to note that even though the protest is styled “EndSARS”, the positive social change intended to be addressed goes beyond ending SARS and police brutality.

It includes putting an end to bad governance, corruption, social injustice and inequality and the general selfish attitude that characterises the Nigerian political class.

The youths simply demanded for a restructured Nigeria that is able to cater for the needs of its people.

Sadly, on October 20, 2020, a day never to be forgotten, soldiers were deployed to the Lekki area of Lagos which has served as a point of convergence for the peaceful protesters.

Protesters in what appears like a premeditated onslaught, were shot at and killed in cold blood. This led to an outcry by Nigerians and the international community, condemning the killing.

Nigerians’ rights to protest are safeguarded under sections 38, 39, 40 and 41 of the constitution. It is a fundamental human right of the people to voice out their displeasures, disappointments and frustrations.

The Court of Appeal upheld the right to protest in the case of IGP V. ANPP (2008) 12 WRN 65 that “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 attempts to curtail such right is null and void and of no effect.”

Under the International Law, the right to protest is equally protected. Articles 18, 19 and 20 of the Universal Declaration of Human Right, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Right and the UN Human Rights Council’s Resolution at its 38th Session on Promotion and Protection of Human Rights in the context of Peaceful Protests are quite apposite.

Principle 1 of the Resolution on Promotion and Protection of Human Right in the Context of Protest recognizes that a protest can engage in actions targeting any audience, including public authorities, private entities or individuals, or the general public and may annoy or give offence to people who are opposed to the ideas.

It also recognizes that protest may temporarily hinder or obstruct the activities of third parties.

Principle 2 then imposes obligations on states/countries to respect the right to protest.

States should not prevent, hinder or restrict the right to protest; states should protect the right to protest and should undertake reasonable steps to protect protesters by adopting measures necessary to prevent violations by third parties; states should fulfil the right to protest by establishing an enabling environment for the full enjoyment of right to protest.

Instead of the Nigerian government to protect her citizens exercising their right to protest, the protesters were despised and calculatedly made vulnerable and subject of attack.

Principle 4 makes provision for the protection of internationally guaranteed human rights during all protests even where restrictions or exceptions might be applicable.

Also Principle 5 permits states to derogate from international human rights commitments only in cases of public emergency situations that threaten the life of the nation. However, such derogation must be officially and lawfully proclaimed in accordance with both national and international law.

Hence, states should not resort to declaring a state of emergency in order to limit the right to protest.

Such restrictions on protests in emergency situations should be of an exceptional and temporary nature.

Principle 8 enables everyone the freedom to choose the location of a protest, and the location chosen should be considered integral to its expressive purpose.

States should ensure that protests are allowed in all public places, including places that are privately owned, but are functionally public and must equally ensure that protests can take place within sight and sound of their object or targeted audience.

States also should deploy adequate resources to ensure counter-protests within sight and sound of the other, do not lead to disorder.

That potential disorder arising from disagreement or tension between opposing groups should not be used to justify the imposition of restrictions on the protest.

State should also refrain from imposing restrictions on online protests seeing that Internet is a quasi-public place that is routinely used for public purposes.

Principle 9 provides that everyone should have the freedom to choose the form and manner of a protest, including its duration.

It also recognizes a non-violent direct action or civic disobedience actions as a legitimate form of protest.

President Buhari or any public officer is not in a position to determine the duration of protest or to adjudge whether or not protest demands have been met or not. It is the right of protesters themselves to do so.

Principle 12 imposes duties on states to adopt a human rights approach to policing protests.

Policing of protests by law enforcement agencies should be guided by the human rights principles of legality, necessity, proportionality, and non-discrimination and should comply at all times with international human rights law and standards on policing, in particular the UN Code of Conduct for Law Enforcement Officials.

It also imposes a duty on states to prohibit the deployment of the military armed forces for the policing of protests.

The use of military may arise only in extremely exceptional circumstances to serve only as a support for the police agency and placed under the command of the police upon the request of the civilian authorities when the police is unable to handle violent protests.

The military must comply fully with international human rights law and standards on policing and principles on the use of force and must undergo a complete change in their operational procedures from a combative (fight-the-enemy) approach, to a law enforcement approach, including de-escalation, avoiding the use of force, changes of equipment and the correct use of equipment.

Principle 13 imposes duties on states to adopt and implement a domestic legal and policy framework for the use of force by law enforcement, and ensure that all law enforcement agencies fully comply with international human rights law and standards on policing, in particular the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, as well as best practices in this area, such as Amnesty International’s Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Law enforcement should have a range of less lethal equipment at their disposal that allows for the differentiated use of force in full respect of the principles of necessity and proportionality, and ensure that harm and injury are kept to a minimum.

Principle 17 imposes duty of accountability and transparency on states to ensure that all decision-making processes by public authorities relating to protests are transparent, accessible and comply with international due process standards. States should investigate, prosecute, and ensure accountability for human rights violations committed in the context of protests.

Principle 18 mandates states to enable the free flow of information relating to protests, including through all types of media, so that everyone can freely impart
and receive information about protests before, during and after them.

Principle 19 mandates states to allow and actively facilitate reporting on, and the
independent monitoring of protests by all media and independent observers, without imposing undue limitations on their activities and without official hindrance, as far as is possible.

And that states should ensure that no individuals documenting police actions and human rights violations during protests are specifically targeted because of covering and reporting on protests.

In conclusion, the Nigerian government should endeavour to internalise the fact that sovereignty belongs to the people and that government exists solely for the welfare and security of the people, and must preserve and defend the people and the Constitution of the Federal Republic of Nigeria which they swore in their Oath of Office to protect.

The army and other security forces should understand that right to protest is a constitutional rights of citizens to hold the government accountable which will invariably lead to the progress and development of the country and in the long run will be of great benefit to everyone whether in uniform or not.

The security agencies are strongly advised to be patriotic in the discharge of their duties and must at all times protect the lives, rights and well-being of Nigerians.

Overzealousness to harm fellow citizens who are patriotic enough to demand for a better Nigeria is simply foolhardy, imprudent and an act of gross misconduct.

They should learn from their colleagues all over the world. Just last year in Malawi, the Malawian army played a crucial role during times of political and social turbulence in March 2019 by standing with the people and ensuring that their country becomes a better place.

The legislators are advised to hold the executive accountable against the killing of the people and enact laws specifically providing protection to citizens exercising their constitutional right to protest.

This law must be in consonance with international standard and best practices as recognised under the International Law. Curfew should not be used to curtail and stop citizens from exercising their right to protest.

Protesters at all times should conduct themselves reasonably and peacefully.

They must resist the urge to prevent other Nigerians from going about their businesses without let or hindrances. Just as you have the right to protest, others equally have a right to join or not to.

Uwandu, a legal practitioner based in Lagos, writes via [email protected]

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