Citizens right of protest is protected under the constitution
By Douglas Ogbankwa Es
I watched with great surprise the Inspector General of Police -Dr Kayode Egbetokun issuing Directives to Protesters which said Directives are not provided for by any written or valid law promulgated by the National Assembly.The “Law” that the Inspector General of Police relies on has been declared null and void by the Court of Appeal, Per Justice Adekeye (J C.A.),as he then was .The Law was the Public Order Act .The Law was found to be incompatible with Sections of the Constitution.The Judgment was pronounced against the Inspector General of Police in a case instituted by the All Nigeria People’s Party (ANPP) and others.
That Judgment was not appealed against by the Inspector General of Police , which is in continuum and same remains the valid case law on the issue through out the Federal Republic of Nigeria.
The Right to peaceful assembly is provided for by Section 40 of the Constitution of the Federal Republic of Nigeria,1999 (As Amended).It is an inalienable and inviolable right .The same Constitution does not give any one any powers to provide guidelines for such peaceful assembly.The Inspector General of Police therefore was untra vires his powers by giving guidelines for the protests .Let us build strong institutions and not strong men. The Law is for both the government and the governed and both are obligated to give equal attention to the obedience of the Law .
For the avoidance of doubt find below the ratio of the court of appeal on the referenced matter :
*[2007] 18 NWLR 475 INSPECTOR GENERAL OF POLICE V. ALL NIGERIA PEOPLES PARTY & ORS*
.
COURT OF APPEAL
(ABUJA DIVISION)
CA/A/193/M/05
RABIU DANLAMI MUHAMMAD, J.C.A. (Presided)
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A. (Read the Leading Judgment)
ABDU ABOKI, J.C.A.
TUESDAY, 11TH DECEMBER 2007
Issues:
Facts:
The respondents, being registered political parties in Nigeria requested the appellant, by a letter dated 21st May, 2004 to issue police permits to their members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused. There was a violent disruption of the rally organized in Kano on the 22nd of September, 2003 on the ground that no permit was obtained. The respondents, in turn, instituted an action at the Federal High Court, by way of originating summons, against the appellant where they submitted the following issues for determination of the court:
“(1)
Whether the police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria.
(2)
Whether the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria. 1990. which prohibit the holding of rallies or processions without a police permit are not illegal and unconstitutional having regard to section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.”
The respondents then claimed as follows:
A declaration that the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria (1990).
A declaration that the provisions of the Public Order Act, Cap. 382, Law s of the Federation of Nigeria 1990
which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
(III)
A declaration that the defendant is not competent under the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 or under any law whatsoever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
(IV)
An order of perpetual injunction restraining the defendant 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.”
At the trial court, both parties contended as to whether the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990, particularly its section 1(2), (3), (4), (5) and (6) and sections 2, 3 and 4 are inconsistent with the fundamental rights to peaceful assembly and association as guaranteed in sections 39 and 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights, Cap. 10, Laws of the Federation of Nigeria, 1990. They also contended as to whether there is any provision of the Public Order Act which authorizes the Inspector General of Police to grant permit before holding rallies or to disrupt rallies and as to when sections 39 and 40 of the 1990 Constitution and the African Charter can be violated pursuant to section 45 of the 1999 Constitution.
In its considered ruling, the trial Court granted the reliefs of the respondents.
Aggrieved by the judgment, the appellant appealed to the Court of Appeal.
In determining the appeal, the Court of Appeal considered the provisions of Order 3 rule 15(1)&(3) Court of Appeal Rules, 2002, section 1(2), (3), (4), (5) & (6) and sections 2, 3 & 4. Public Order Act Cap. 382, Laws of the Federation of Nigeria, 1990 and sections 40 and 45(1), 1999 Constitution. They provide as follows:
Sections 40 and 45(1), 1999 Constitution –
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition.”
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:
In the interest of defence, public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedom of 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.”
Sections 1(2), (3), (4), (5) & (6), 2. 3 and 4, Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 –
“1(2)
Any person who is desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort shall, unless such assembly, meeting or procession is permitted by a general licence granted under subsection (3) of this section, first make application for a licence to the
Governor not less than 48 hours thereto, and if such Governor is satisfied that the assembly, meeting or procession is not likely to cause a breach of the peace, he shall direct any superior police officer to issue a licence, not less than 24 hours thereto, specifying the name of the licensee and defining the conditions on which the assembly, meeting or procession is permitted to take place; and if he is not so satisfied, he shall convey his refusal in like manner to the applicant within the time hereinbefore stipulated.
(3)
The Governor may authorise the issue of general licences by any superior police officer mentioned in subsection (4) below setting out the conditions under which and by whom and the place where any particular kind or description of assembly, meeting or procession may be convened, collected or formed.
The Governor may delegate his powers under this section
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; and
in relation to any local government area or part thereof, but subject to any delegation made under paragraph (a) above, to any superior police officer or any police officer for the time being acting as the District Police Officer.
and references in this section to the Governor shall be construed accordingly.
(5)
Any person –
aggrieved by any decision of the Commissioner of Police or any superior police officer under paragraph (a) of subsection (4) of this section, may within 15 days of such decision appeal to the Governor;
aggrieved by any decision of any police officer mentioned in paragraph (b) of subsection (4) of this section, may within 15 days of such decision appeal to the Commissioner of Police and shall have a right of further appeal from any decision of the Commissioner of Police under this paragraph to the Governor.
and the Governor or, as the case may require, the Commissioner of Police shall give a decision on any appeal lodged pursuant to this section not later than 15 days after the date of its receipt by him.
The decision of the Governor under subsection (5) of this section shall be final and no further appeal shall lie therefrom.
Any police officer of the rank of inspector or above may 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 of this Act, and may order any such assembly, meeting or procession which has been prohibited or which violates any such conditions as aforesaid to disperse immediately.
Any assembly, meeting or procession which –
takes place without a licence issued under section 1 of this Act; or
violates any condition of any licence granted under section 1 as aforementioned; or
neglects to obey any order given under section 2 of this Act,
shall be deemed to be an unlawful assembly, and all persons taking part in such assembly, meeting or procession, and in the case of an assembly, meeting or procession for which no licence has been issued, all persons, taking part in the convening, collecting or directing of the assembly, meeting or procession, shall be guilty of an offence and liable on conviction to a fine of N1.000 or imprisonment for 6 months or to both such fine and imprisonment.
Notwithstanding any licence granted under section 1 of this Act. if a superior police officer, having regard to the time or place at which and the circumstances in which any public assembly, meeting or procession is taking place or is intended to take place (and in the case of a public procession to the route taken or proposed to be taken by the procession), has reasonable grounds for apprehending that the assembly or meeting or procession may occasion serious disorder, he may give directions imposing upon persons organizing or taking part in the assembly or meeting or procession such conditions as appear to him necessary for the preservation of public order including, in the case of a public procession, conditions prescribing the route to be taken by the procession or conditions prohibiting the procession from entering any public place specified in the directions:
Provided that no conditions restricting the display of symbols or emblems shall be imposed under the provisions of this subsection except such as are reasonably necessary to prevent risk of a breach of the peace.”
Order 3 rule 15(1) & (3), Court of Appeal Rules, 2002 –
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
(3) If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”
Held (Unanimously dismissing the appeal)
1
On Powers to make laws for public safety –
Section 315 of the 1999 Constitution empowers the National Assembly to promulgate laws for public safety and public order and section 45(1), 1999 Constitution authorizes laws made in the interest of defence, public safety, public morality or public health and for the purpose of protecting the rights and freedom of other persons. (P. 484, paras. A-B)
On Right of the Nigerian citizens to peaceful assembly and association –
By virtue of section 40 of the 1999 Constitution, every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. Provided that the provisions of section 40, 1999 Constitution shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to Political Parties to which that commission does not accord recognition. (P. 492, paras. A-C)
On Importance of rights to freedom of assembly and expression –
The rights to freedom of assembly and freedom of expression are the bone of any democratic form of government. Besides their embodiment in the supreme law of the land, the 1999 Constitution, and the African Charter on Human and People’s Rights adopted as Ratification and Enforcement Act Cap. 10, Law s of the Federation of Nigeria, 1990, a plethora of decisions of Nigerian courts have endorsed same. (Pp. 494-495, paras. H-A)
On Supremacy of the Constitution –
The Constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law, the grundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people both the governed and the government. [F.R.N. v. Ifegwu (2003) 15 NVVLR (Pt.842) 113; A-.G., Abia State v. A-.G., Federation (2002) 6 NWLR (Pt.763) 264; Abacha v. Fawehinmi (2000) 6 NVVLR (Pt.660) 228 referred to.] (P. 496, paras. C-E)
On Principles governing interpretation of the Constitution –
A document such as the Nigerian Constitution, which is written, cannot be interpreted following judicial decisions band on principles of common law or judicial decisions that interpreted statutes or Constitutions which are not in pari materia with the provisions of the Constitution. However judicial decisions based on foreign statutes and Constitution with similar or identical provisions as the Nigerian Constitution carry some measure of weight and persuasive effect, but they lack binding effect on Nigerian principle of stare decisis. [N.P.A. v. Ali Akar & Sons (1965) 1 All NLR 259; Obadara v. President Ibadan West District Council Grade B Customary Court (1964) 1 All NLR 336; Alii v. Okulaja (1970) 2 All NLR 35; A-.G., Ondo State v. A-.G., Federation (2002) 9 NWLR (Pt.772) 222; Olafisoye v. F.R.N. (2004) 4 NWLR (Pt.864) 580; Adigun v. A-.G., Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197 referred to.] (Pp. 495- 496, paras. F-A)
On Principles governing interpretation of the Constitution –
In the interpretation of the Constitution, beneficial interpretation which would give meaning and life to the society should always be adopted in order to enthrone peace, justice and egalitarianism in the society. (P. 496, para. F)
7.
On Principles guiding interpretation of the Constitution and Statutes –
One of the basic principles of interpretation of the Constitution and Statutes is that the legislature will not be presumed to have given a right in one section of a statute and then take it in another. [Osadebay v. A-. G., Bendel State (1991) 1 NWLR (Pt. 169) 525; A-G.. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 referred to.] (P. 499. para. A)
On Duty on courts in interpreting Law or Constitution –
Per ADEKEYE, J.C.A. at pages 496-497, paras. G-E:
“The duty of the courts is to simply interpret the law or Constitution as made by the legislators or framers of the Constitution. It is not the constitutional responsibility of the judiciary to make laws already made by the legislature.
Courts cannot through its interpretation amend the Constitution, neither can they change the words used. Where saddled with the obligation of interpreting the Constitution the primary concern is the ascertainment of the intention of the legislature or law makers.
The Constitution cannot be strictly interpreted like an act of the National Assembly, and it must be construed without ambiguity as it is not supposed to be ambiguous.
All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. All cannons of Constitution must be employed with great caution. A liberal approach must be adopted. Where the provisions of a statute are clear and unambiguous effects should be given to them as such unless it would be absurd to do so having regard to the nature and circumstance of the case. The court of law is without power to import into the meaning of a word, clause or section of the Constitution or Statute what it does not say. Indeed, it is a corollary to the general rule of construction that nothing is added to a statute and nothing is taken from it unless there are grounds to justify the inference that the legislature intended something which it omitted to express. The court must not or is not concerned with the result of its interpretation that is it is not the courts province to pronounce on the wisdom or otherwise of the
[2007] 18 NWLR
I.G.P. v. A.N.P.P.
469
statute hut to determine its meaning. The court must not amend any legislation to achieve a particular object or result. [Awolowo v. Shagari (1979) 6-9 SC 51; Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt.1004) pg. 1; Rabin v. State (1980) 8-11 SC 130: A-.G., Bendel State r.. A.-G.. Federation (1981) 10 SC 1; Onena v. NSE Ltd. (1997) 8 NWLR (Pt.515); Bronik Motors Ltd v. Wema Bank Ltd. (1983) 1 SCNLR 296.”
On Purpose and validity of the African Charier on Human and People’s Rights –
The African Charter is an understanding between concerned African States to protect the human rights of their citizens within the territorial jurisdiction of their countries. It is now part of the domestic law s of Nigeria and like all other laws, the court must uphold it. (P. 492, para. H)
On Status of the African Charter on Human and People’s Rights –
The African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Law s of the Federation of Nigeria, 1990 is a statute with international flavour. Being so, therefore, if there is a conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. [Abacha v. Fawehimni (2000) 6 NWLR (Pt.660) 228 referred to.] (P. 500, paras. B-C)
11.
NOTABLE PRONOUNCEMENT
On Right of Nigerian citizens to hold rallies –
Per ADEKEYE, J.C.A. at pages 498-500, paras. B-B:
“I am persuaded by the incident cited by the learned counsel for the respondents that Nigerian Society is ripe and ready to be liberated from our oppressive past. The incident
Nigerian Weekly Law Reports
31 December 2007
captured by the Guardian Newspaper edition of October 1st 2005 where the Federal Government had in the broadcast made by the immediate past president of Nigeria General Olusegun Obasanjo publicly conceded the right of Nigerians to hold public meetings or protest peacefully against the government against the increase in the price of petroleum products. The Honourable President realized that democracy admits of dissent, protest, marches, rallies and demonstrations. True democracy ensures that these are done responsibly and peacefully without violence, destruction or even unduly disturbing any citizen and with the guidance and control of law enforcement agencies. Peaceful rallies are replacing strikes and violence demonstrations of the past.
If this is the situation 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.
I hold in unison with the reasoning in the case of Shetton v. Tucker 364 US 479,488 (1960) where the United States Supreme Court observed that –
“Even though the Governments purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties.”
The Police Order Act – relating to the issuance of police permit cannot be used as a camouflage to stifle the citizens’ fundamental rights in the course of maintaining law and order ……………
The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should
[2007] 18 NWLR
I.G.P. v. A.N.P.P.
471
exercise without impediment as long as no wrongful act is done.
If as speculated by law enforcement agents that breach of the peace would occur 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. Finally, freedom of speech and freedom of assembly are part of democratic rights of every citizen of the Republic; our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests….
Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. 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 recognized 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.”
Per R.D. MUHAMMAD, J.C.A. at page 501, paras. G-H:
“In present day Nigeria, clearly police permit has outlived its usefulness 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 consequence.”
On Source of the Public Order Act –
The Public Order Act is an Act of the National Assembly. The 1999 Constitution empowers the National Assembly to make laws among other things for public safety and public order. It has power to make any law that is reasonably justifiable in a democratic society for the maintenance of public order and for protecting the rights and freedom of persons. The Public Order Act can be ad judged as a creation of the Constitution. It is also an existing law by virtue of section 315 of the 1999 Constitution. (P. 494, paras. G-H)
13.
On Essence of power of Governor of a State to issue permit under Public Order Act –
The power given to the Governor of a State to issue permit under the Public Order Act cannot be used to attain unconstitutional result of deprivation of right to freedom of speech and freedom of assembly. The Constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result. (P. 499, paras. B-C)
14.
On Whether the Public Order Act is constitutional –
The Public Order Act violates the provision of the Constitution and as such it is null and void.
Per ADEKEYE, J.C.A. at pages 499-500, paras. F-B:
“The Constitution should be interpreted in such a manner as to satisfy the yearnings of the Nigerian society. The 1999 Constitution is superior to other legislations in the country and any legislation which is inconsistent with the Constitution would be rendered inoperative to the extent of such inconsistency. Section 1 subsections (2), (3), (4). (5), (6), and sections 2, 3.4 of the Public Order Act are inconsistent with the Constitution – they are null and void to the extent of their inconsistency.
Osho v. Phillips (1972) 4 SC 259; A.-G., Abia State v. A.-G.. Federation (2002) 6 NWLR (Pt.763) pg.
[2007] 18 NWLR
I.G.P. v. A.N.P.P.
473
264; Ifegwu v. FRN (2001) 13 NWLR (Pt.729) pg 103; Ikine v. Edjerode (2001) 18 NWLR (Pt.745) pg. 446.
Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. 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 recognized 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.”
15.
On Need for issue for determination to flow from ground of appeal –
For an issue to be sustained it must be formulated within the perimeter of a ground of appeal. (P. 481, para. H)
16.
On Treatment of ground of appeal not arising from judgment appealed against –
A ground of appeal which does not arise from the judgment of the lower court must be discountenanced by the Court of appeal and consequently struck out as an issue for the determination of an appeal must flow from the ground of appeal, while the ground filed in the appeal must be complaints against the ratio decidendi in the case. [Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188; Mark v. Eke (2004) 5 NWLR (Pt.865) 54; Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) 144 referred to.] (P. 482. paras. C-D)
474
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17.
On Importance of objection challenging competence of ground of appeal –
An objection which challenges the competence of a ground of appeal and the issue raised therefrom cannot be discarded as a minor one. Any issue of competence challenges the jurisdiction of court to hear and determine that particular aspect of the appeal. (P. 482, paras. B-C)
18.
On How to raise preliminary objection in Court of Appeal –
By virtue of Order 3 rule 15(1) & (3), Court of Appeal Rules, 2002, a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall the such notice together with twenty copies thereof with the registrar within the same time. If the respondent fails to comply, the court may refuse to entertain the objection or may adjourn the hearing therefore at the cost of the respondent or may make such order as it thinks fit. In the instant case, the respondent defaulted in complying with Order 3 rule 15(1), Court of Appeal Rules .
Appeal:
This was an appeal against the judgment of the Federal High Court which granted the reliefs of the respondents and declared the Public Order Act unconstitutional. The Court of Appeal, in a unanimous decision, dismissed the appeal.
History of the Case:
Court of Appeal:
Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Abuja
Names of Justices that sat on the appeal: Rabiu Danlami Muhammad. J.C.A. (Presided); Olufunlola Oyelola Adekeye, J.C.A. (Read the Leading Judgment); Abdu Aboki, J.C.A.
Appeal No.: CA/A/193/M/05
Date of Judgment: Tuesday, 11th December, 2007
Names of Counsel: Mr. C.O. Assam – for the Appellant
Mr. Egbeyinka (for Mr. Falana) – for the Respondents
High Court:
Name of the High Court: Federal High Court, Abuja
Date of Judgment: Friday, 24th June, 2005
Counsel:
Mr. C.O. Assam – for the Appellant
Mr. Egbeyinka (for Mr. Falana) – for the Respondents .
ADEKEYE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja delivered on the 24th of June, 2005. The respondents before this court are twelve political parties registered in Nigeria. They commenced this suit by way of an originating summons dated the 9th of February, 2004 as follows:
Whether the police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria.
Whether the provisions of the Public Order Act (Cap. 382) Laws of the Federation of Nigeria, 1990, which prohibit the holding of rallies or processions without a police permit are not illegal and unconstitutional having regard to section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights
(Ratification and Enforcement) Act. Cap. 10, Laws of the Federation of Nigeria, 1990.
The plaintiffs/respondents also claimed as follows:
A declaration that the requirement of police permits or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
A declaration that the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal an unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
A declaration that the defendant is not competent under the public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 or under any law whatsoever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
An order of perpetual injunction restraining the defendant 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 germain issues before the trial court over which both parties made vigorous submissions are whether the provisions of the Public Order Act. Cap. 382. Laws of the Federation of Nigeria. 1990, particularly section 1(2) (3) (4) (5) and (6) and sections 2, 3 and 4 are inconsistent with fundamental rights to peaceful assembly and association as guaranteed in sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 11 of the African Charier on Human and People’s Rights, Cap. 10, Laws of the Federation of Nigeria, 1990 on the one hand, and whether there is any provision of the Public Order Act which authorizes the Inspector General of Police to grant permit before holding rallies or to disrupt rallies. That the fundamental rights guaranteed by sections 39 and 40 of the Constitution. On the other hand, the African Charter can only be violated during a state of emergency properly declared under section 45 of the 1999 Constitution.
In the considered ruling, the lower court held as follows: –
“In the instant case, I have no difficulty in answering the question raised by the plaintiffs. I answer the first question in the negative, that is to say that no police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria. I answer the second question in the affirmative meaning that the provisions of the Public Order Act, Cap. 382. Laws of the Federation of Nigeria, 1990, which prohibit the holding of rallies or processions without police permit are unconstitutional having regard to section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s rights (Ratification and Enforcement) Acts, Cap. 10, Laws of the Federation of Nigeria, 1990.
I accordingly grant the reliefs claimed by the plaintiffs. I make declaration as follows/-
(i)
That the requirement of police permit or other authority for the holding of rallies or procession in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
(ii) That the provisions of the Public Order Act Cap. 382, Laws of the Federation of Nigeria 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.
That the defendant is not competent under the Public Order Act (Cap. 382) Laws of the Federation of Nigeria, 1990 or under any law whatsoever to issue or grant permit for the holding of rallies or processions in any part of Nigeria.
And I make an order of perpetual injunction restraining the defendant 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.”
Being aggrieved by this judgment, the appellant filed notice of appeal with five grounds of appeal in this court on the 13th of July 2005. Parties exchanged briefs. At the hearing of the appeal on the 18th of September, 2007, Mr. Assam, learned counsel for the appellant adopted and relied on the appellant’s brief deemed filed on 14/6/07. Three issues were distilled for determination as follows:
Whether in view of section 45(1) of the 1999 Constitution, the provision of the Public Order Act are not inconsistent with the said 1999 Constitution.
Whether it is not ultra vires for the trial court to declare the entire Public Order Act unconstitutional when the court only considered section 1, (2), (3), (4), (5) and (6), 2, 3 and 4 of the Act alleged to be inconsistent with the 1999 Constitution.
Whether the defendant is competent under the Public Order Act or any other law whatsoever to stop the holding of any assembly, meeting, procession or rally without permit or licence.
All these issues flow from the grounds of appeal filed. The respondents in their joint brief filed by their learned counsel Mr. Falanaon 6/12/06, raised three issues for determination as follows:
(1) Having regard to section 45(1) of the 1999 Constitution whether some provisions of the Public Order Act are not inconsistent with section 39 and 40 of the Constitution.
(2) Whether the defendant/appellant is competent to issue or grant licence or permit for the holding of meetings, assemblies or processions in Nigeria.
Whether the lower court was right in granting an injunction restraining the defendant/appellant from further preventing the plaintiffs/respondents from holding meetings, assemblies or processions.
At page three of the respondents’ brief, there is what the respondents referred to as notice of preliminary objection. Therein the respondent raised an objection against ground C of the notice of appeal and Issue II in the appellant’s brief of argument. The respondents argued and submitted that the ground for the objection is that the said ground of appeal has not arisen from the judgment of the lower court.
In other words, the learned trial Judge did not declare the entire Public Order Act unconstitutional and illegal. He went on to argue further that the respondent set out ab initio to challenge the constitutional validity of the requirement of police permit or other authority for the holding of rallies or processions in Nigeria. Consequently, they sought a declaration to declare illegal and unconstitutional the provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 which require police permit or any other authority for the holding of rallies or processions in any part of Nigeria.
The learned counsel quoted from the penultimate paragraph of the ruling of the lower court where the learned trial judge declared sections 1, 2, 3 and 4 of the Public Order Act as being inconsistent with the fundamental rights provisions of 1999 Constitution and declared them void to the extent of their inconsistency. It is clear that the lower court did not declare the entire Public Order Act illegal and unconstitutional.
The learned counsel urged this court to declare ground C in the notice of appeal as well as the issue formulated therefrom in the brief of argument of the appellant as totally misconceived and ought to be discountenanced by this Honourable Court. Since the issue has not arisen from a competent ground of appeal it is liable to be struck out.
It is trite law that an issue to be sustained must be formulated within the perimeter of a ground of appeal.
The learned counsel cited cases in support of the foregoing submission as follows:
KLM Royal Dutch Airlines v. Kitmzih (2004) 8 NWLR (Pt. 875) 231: (2004) 46 WRN 59 at pg. 76: Salami v. Mohammed (2000) 9
NWLR (Pt. 673) pg. 469; Alhaji Kokoro-Owo v. Lagos State Government (2001) 11 NWLR (Pt. 723) pg. 552.
The appellant did not file a reply brief neither was any oral evidence proffered in court in respect of the objection at the hearing of this appeal.
The learned counsel for the appellant considered this point under issue No. II in his brief.
An objection which challenges the competence of the ground of appeal and the issue raised therefrom cannot be discarded as a minor one. Any issue of competence challenges the jurisdiction of court to hear and determine that particular aspect of the appeal. A ground of appeal which does not arise from the judgment of the lower court must also be discountenanced by this court and consequently struck out as an issue for the determination of an appeal must flow from the ground of appeal, while the ground filed in the appeal must be complaints against the ratio decidendi in the case. Oniah v. Onyia (1989) 1 NWLR (Pt. 99) pg. 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) pg. 188; Markov. Eke (2004) 5 NWLR (Pt.865) pg. 54; Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) pg. 144.
An objection of the magnitude raised in this appeal must obviously comply with the set standard and the procedure as stipulated in the Court of Appeal Rules.
Order 3 rule 15(1) of the Court of Appeal Rules, 2002 which stipulates as follows: –
“15(1)
A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
If the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.
The respondent has clearly defaulted in compliance with Order 3 rule 15(1).
The only option left for the court is to invoke order 3 Rule 15(3) to strike out the objection. Furthermore. I perceive this objection as a gross misconception of the judgment of the lower court. A judgment of court cannot be read in bits and pieces. In the notice of appeal on page 60-64, in ground C – the ground of appeal states as follows:-
“The learned trial judge erred in law when she held that the entire Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 was inconsistent with the provisions of the 1999 Constitution.”
The particulars of error states:
The learned trial judge in her judgment specifically considered sections 1, 2, 3 and 4 of the Public Order Act finding these sections inconsistent with the fundamental rights provision in the 1999 Constitution and void to the extent of their inconsistency.
Despite the aforegoing, the court proceeded to declare the entire provisions of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 illegal and unconstitutional.
Section 1(3) of the 1999 Constitution invalidates any law deemed to be inconsistent with the provisions of the Constitution void only to the extent of its inconsistency.
The preliminary objection cannot therefore be justified from the error in law alleged and the particulars of the error. The respondent could have considered this by way of observation under issue two for determination before the court.
The application is overruled and accordingly struck out.
Issue Number One
Whether in view of section 45(1) of the 1999 Constitution the provisions of the Public Order Act are not inconsistent with the said 1999 Constitution.
The learned counsel for the appellant submitted that the issue is meant to determine the validity of the Public Order Act against the background of the provisions of section 40, 45 of the 1999 Constitution and Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990. He re-emphasised the pronouncements of the Supreme Court on many occasions on the proper principles to interpret statutes and the Constitution with reference to the cases of Mobil Oil Plc v. IAL 36 Inc (2000) FWLR (Pt. 10) pg. 1632 at 1650; (2000) 6 NWLR (Pt. 659) 146; Minister of Housing and Local Governments v. Lambert (1969) 2 WLR pg. 447.
The purpose of enacting the Public Order Act is as stated in the preamble to the Act – but this appeal shall touch upon the Public Order Act as it relates to maintaining public order. By virtue of section 315 of the Constitution the National Assembly is empowered to promulgate laws for public safety and public order and section 45(1) of the 1999 Constitution authorize laws made in the interest of defence, public safety, public morality or public health and for the purpose of protecting the rights and freedom of other persons.
The learned counsel for the appellant submitted that the Public Order Act is a creation of the Constitution itself. One of the bulwarks of a democratic form of government is freedom of association. Right to assemble with other persons is not absolute as such rights can be violated during a state of emergency – by virtue of section 45 of the 1999 Constitution. It was held in the case of Chukwuma v. Commissioner of Police (2005) 8 NWLR (Pt.927) pg. 278 at 287 that the Public Order Act and Police Act are some of the laws envisaged by section 45 of the Constitution for the presentation of law, order, public safety and public health.”
The case of A.-G., of Ogun State v. A.-G., of the Federation (1982) 3 NCLR pg. 166 was cited.
The learned counsel also cited two Indian cases. The State of Madras v. G. Row (1952) SCR 597 at pg 607
Superintendent Central Prison Fatehqrah v. Ram Manohar Lohia (1960) SCR 821 to hold that Public Order Act is reasonably justifiable pursuant to section 45(1) of the 1999 Constitution to maintain public order and public safety. It is the view of the learned counsel for the appellant that the cases A-.G., Botswana v. Dow (1998) 1 HRLRA 1 and New Patriotic Party v. I. G. P. Accra (2000) 2 HRLRA 1 relied upon by the learned trial judge at the lower court are not on all fours and cannot be relied upon in determining the issues raised in this case. In a democratic society, laws must be promulgated in the interest of public order to meet situations where activities have a tendency of causing public disorder, although in some cases those activities may not actually lead to breach of public order.”
The learned counsel examined the relevant sections of the Public Order Act particularly sections 1-3 and stated that from the definitions, principles and case law authorities to determine whether a law is reasonably justifiable in a democratic society – the court has to consider the circumstance in which the law was enacted, the mischief, it was aimed at preventing and the aims and objectives of the law, The Public Order Act is designed to ensure that the policing of assembly meeting and procession is properly planned, controlled and monitored. He gave an example of a rally held in Effurun, Delta State where 25 persons were killed when the rallies were hijacked by hoodlums. Reference was made to the Public Order Act, 1986 in the United Kingdom whereupon anyone organizing a march must give the police six days notice otherwise, he may be committing an offence. The learned counsel urged the court to consider peculiarities like the rising crime rates, political violence, youth restiveness, and the need for proper policing of assemblies procession and meetings, and hold that Public Order Act is a law reasonably justified in a democratic society called Nigeria. The trial court was wrong when it held that it is only during period of state of emergency properly so declared that allows for the derogation from the fundamental right as provided under section 40 of the 1999 Constitution.
In his reply to this issue, the learned counsel for the respondent Mr. Falana in his brief gave a resume of the history behind the Public Order Act which was promulgated as the Public Order Decree No.5 of 1979 and it became an Act of the National Assembly by virtue of section 274 of the 1979 Constitution. Case of Attorney-General of Ogun State v. Attorney-General Federation (1982) 3 NCLR 166 was cited. In a plethora of cases, the fundamental rights of Nigerians to freedom of assembly and freedom of expression have been upheld by the court.
The learned counsel cited some of these cases – Balarabe Musa v. Peoples Redemption Party (1981) 2 NCFR pg. 763 at pg. 768; Independent National Electoral Commission v. Balarabe Musa (2003) 3 NWLR (Pt. 806) 72; (2003) 19 WRN 1 at pg. 48; Arthur Nwankwo v. The State (1985) 6 NCLR pg. 228.
He cited the case of New Patriotic Party v. Inspector General of Police 1992-93 (585-2000) 2 HRLRA 1 a Ghanaian Supreme Court decision where the Public Order Decree 68 of 1982 which had required organizers or conveners of demonstrations and rallies to obtain police permit. In line with the foregoing cases, the lower court annulled some provisions of the Public Order Act. The learned counsel for the respondent made reference to the judicial interpretation given to the Public Order Act in other Common Wealth jurisdictions. In the United States, he cited the cases of Edwards v. South Carolina 372 US 229 (1963); Stauh v. Baler 355 US 313 (1858); Shuttles Worth v. Birmingham, Alabama 394 US 147 (1969);
In Germany, Brokdorf’s case 69 FCC 315 (1985) was made a reference point, the case of Platform Artise Fur Deis Leben from Austria, S v. Turrell & ors. (1973) (1) SA 248 C 256 G from South Africa and Hirst and Agu v. Chief Constable of West Yorkshire (1986) (85) Court of Appeal Report from the United Kingdom. These cases solidly supported right to free speech, free assembly and freedom to petition for redress of grievance. The plaintiffs/respondents submitted that in so far as certain provisions of the Public Order Act infringe on freedom of Assembly and expression guaranteed by sections 39 and 40 of the Constitution it cannot be said to be a law reasonably justifiable in a democratic society. Particularly, the section of the Act which requires that a licence should be obtained to convene a meeting is inconsistent with section 40 of the Constitution and Article 11 of the African Charter on Human and People’s Rights and to the extent of such inconsistency such provisions are illegal and unconstitutional. Since the Criminal Code has made adequate provisions for taking care of the breakdown of law and order, the requirement of permit to hold meetings and rallies can no longer be said to be justifiable in a democratic society. The requirement of a permit prescribed by the Public Order Act has become a substantial conditionality for the exercise of the right of freedom of assembly and association.
The respondent referred to the case of Arthur Nwankwo v. The State (1985) 6 NCLR 228 where the court declared that the provisions of the law which justified sedition on the ground of public order and safety illegal as they violated the right to freedom of expression. The respondent referred to the cases of INEC v. Musa (2003) 10 WRN pg. 1 at pg. 48; (2003) 3 NWLR (Pt. 806) 72; and F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361; (2006) 24 WRN 1 to hold that the requirement of police permit for meetings is unconstitutional and inconsistent with section 40 of the Constitution. The learned counsel to the respondent submitted that the State Policy of the Federal Government on peaceful protests has the force of law in Nigeria, as this has recognized the fundamental right of workers to organize peaceful protests in order to register their displeasure against the government.
Since the Federal Government has publicly conceded the right of Nigerians to hold public meetings or protest peacefully against the government, the defendant/appellant cannot be permitted to request this Honourable Court to sanction the violation of the freedom
of assembly of Nigerians. This court is urged to resolve issue one in favour of the respondent.
Issue Number 2
Whether it is not ultra vires for the trial court to declare the entire public order unconstitutional when the court only considered section 1, (2), (3) (4) (5) & (6), 2, 3 and 4 of the Act alleged to be inconsistent with the 1999 Constitution.
It is the submission of the appellant that the conclusion of the learned trial judge on this issue is against the constitutional norms in the interpretation of statutes wherein some sections of the Public Order Act are inconsistent with the Constitution. The trial court has no jurisdiction to declare the entire Public Order Act unconstitutional. The case of A.-G., Lagos State v. A.-G., Federation (2003) FWLR (Pt. 168) pg. 909 at pg. 1113; (2003) 12 NWLR (Pt. 833) 1 was cited where it was held that before a court can declare a whole statute as inconsistent with the Constitution and therefore a nullity, the court must examine the totality of the statute very carefully. The court is urged to resolve this issue in favour of the appellant.
Issue No. one in the respondents brief has adequately covered this issue.
Issue Number 3
Whether the defendant is competent under the Public Order Act or any other law whatsoever to stop the holding of any assembly, meeting, procession or rally without permit or licence.
The learned counsel to the appellant referred to paragraphs 4, 3, 7, 8, 9 and 11 of the affidavit in support of the originating summons before the lower court on pages 3-4 of the record. Further that by virtue of section 215(2) of the 1999 Constitution, the Nigeria Police Force including the contingent of the Nigeria Police Force in the States of the Federation and their Commissioner for Police as being under the command of the Inspector General of Police. Under the Constitution, the maintenance and securing of public safety and public order is the primary responsibility of the Inspector General of Police. Under the Public Order Act the Governor of a State is empowered to direct any superior police officer to issue a licence in respect of holding of assemblies, meetings and processions. The Governor may delegate his power to the Commissioner of Police or any superior officer or district police officer as the case may be. By virtue of section one of the Public Order Act. The combined effect of the Constitution and the Public Order Act cited above, one would definitely conclude that the Inspector General of Police has a role to play where the issuance of a licence for the holding of meeting or rallies may be detrimental to the maintenance of law and order. The learned counsel to the appellant hold that though the Inspector General of Police is not authorized under the Public Order Act to issue licence for the holding of rallies or provisions – he can cause the issuance of same as under section 215 of the 1999 Constitution the Commissioner of Police is under the command of the Inspector General of Police and is not under any obligation to take instructions from the governor.
It is therefore submitted that the issuance of permit or licence by the police under the Public Order Act is a mechanism employed by the government to maintain law and order. The duties and primary functions of the police are as set out in section 4 of the Police Act. The Police Act and the Public Order Act are together and inseparable. The appellant has the constitutional duty to give directives relating to maintenance of law and order to the Commissioner of Police therefore the Inspector General of Police determines the issuance of permit or licence for the holding of rallies or processions as a public order maintenance mechanism.
Under section I of the Public Order Act – the police is empowered to issue permit or licence for the holding of rally or procession. Under section 2 of the Public Order Act the police officer of the rank of Inspector or above may stop any assembly meeting or procession for which no licence has been issued. The appellant cited cases A-.G.,.of Ogun State v. A-.G., of the Federation (1982) 3 NCLR pg. 66; Chukwuma v. Commissioner of Police (2005) 8 NWLR (Pt.927) pg. 278.
The learned counsel to the respondents considered the order of perpetual injunction made by the learned trial Judge as being loo extensive. The order was made to cover other aggrieved citizens of Nigeria who are not parties to the suit, and as such are not entitled to any relief and the court has no jurisdiction to make such an order. The learned counsel cited cases – Awoniyi v. The Registered Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) 10 NWLR (Pt.676) pg. 522; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; (2002) FWLR (Pt. 134) pg. 604; A-.G Lagos State v. A-.G., Federation (supra) at pg. 1119.
The court is urged to resolve this issue in favour of the appellant.
The respondent responded to this issue that the Inspector General of Police has no constitutional power to interfere in the peaceful direction given by a State Governor to the Commissioner of Police in connection with the securing of public safety and order in the State in accordance with section 215 subsection (1) of the Constitution. The Governor of a State is to direct the issuance of a licence or authorize the Commissioner of Police or some State Senior Police Officers for covering meetings or assemblies in a State. A-.G., C Anambra State v. A-.G., Federation (2005) 9 NWLR (Pt. 931) pg. 572.
The power to issue licence for public meetings which may be delegated to a Commissioner cannot be usurped by the Inspector General of Police. Furthermore, under the principle of delegatus non potest delegare, a Commissioner of Police cannot further delegate the power to issue licence for public meetings to the Inspector General of Police. The Inspector General of Police cannot take over the powers of the President or the duly authorized ministers in the circumstances. Consequently, the Inspector General of Police has been excluded by the Constitution under the doctrine of expressio uni us est exclusio alterius.
The police have no powers under the act to cancel marches on the ground that the organizers have not obtained licence or permit. The learned counsel referred to the experience in the United Kingdom where all that is required under the Public Order Act is to give six days notice in advance to the police so as to make adequate security arrangement for the protesters or conveners or public meetings. The fear that any group may lake over a peaceful protest cannot be a legal justification for banning or proscribing rallies or protests. There are no peculiarities that can justify the restriction of the right to hold public meetings without licence. Some of the western countries have higher crime rates than Nigeria- yet have not empowered the police to ban rallies or meetings conveyed without permit or licence. Cases cited in support of the foregoing are – Beatty v. Gillbarks (1882) 15 Cox CC 138: Republic v. Tenia District Magistrate Grade 1 Exparte (1979) GLR 315; KolHa’am Company LMT & Al-Lhihad Newspaper v. Minister of the Interior selected judgment of Israel Supreme Court vol.l (1948-53) pg. 90: Amatratinga v. Sirimal & Ors. (Appeal No.4681/92) decided on 6th March. 1993.
This issue is to be resolved in favour of the respondent.
On whether the learned trial Judge was right in granting a perpetual injunction in the judgment of the lower court, the in respondent submitted that for as long as the provisions of the Public Order Act which make the issuance of licence a conditionality for exercising the rights of citizens to freedom of assembly and association thereby unconstitutional the order for restraint is in order.
The police have no powers to stop or restrict the fundamental rights of Nigerians to freedom of expression and assembly once those rights are exercised within the ambit of the law. If the demonstrators or marchers breach any law in the course of exercising their freedom of expression and assembly, the Criminal Code is there to take care of such infraction. In the Court of Appeal case of Dr. Chukwuma v. Commissioner of Police (2005) 8 NWLR (Pt.927) pg. 278 cited by the appellant which held that the Public Order Act is constitutionally valid, the court never decided that the Inspector General of Police was empowered to issue police permit or disrupt any public gathering for which no licence has been issued by the Governor of a State or his authorized agent. Superior police officers referred to under section 4 of the Public Order Act means the Commissioner of Police or any of the senior police officers under the state police command. The Inspector General has no statutory backing to usurp the powers of the governor to issue licence for public meetings or delegate such powers to the Commissioner of Police. The appellant has failed to appreciate the trend in all democratic countries whereby the right to hold meetings and assemblies is no longer subject to the whims and caprices of the government or security agents. Since the lower court has granted the reliefs of the respondents and concluded that the Inspector General of Police has no statutory power to issue licence for public meetings under the Public Order Act – the lower court rightly granted a perpetual injunction restraining him from further preventing the plaintiffs/respondents from exercising their fundamental right to assemble peacefully in any part of Nigeria. The court is urged to resolve this issue in favour of the respondents.
I have painstakingly considered the submission of the learned counsel to both parties in this appeal. I am intrigued by the brilliant and elucidating submission of the learned counsel and especially that of the learned counsel for the respondents. Mr. Femi Falana on the core aspect of this appeal which by all means is the interpretation of sections 39 and 40 of the 1999 Constitution touching on the fundamental rights of the citizens of this country to freedom of
expression and right to peaceful assembly and association and the application and the effect of the Public Order Act, Cap. 382, Laws of the Federation of Nigeria, 1990 on same. This court appreciates the level of research put into the preparation of his brief particularly the opinion of courts on contemporary issues from other parts of the world. It is the conclusion of the lower court in the ruling now being challenged in this appeal that:-
“I hold the view that the Public Order Act does not only imposes limitation on the right to assemble freely and associate with others, which right is guaranteed under section 40 of the 1999 Constitution, it leaves unfettered the discretion on the whims of certain officials, including the police. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society, it is inconsistence with the provisions of the 1999 Constitution.
The result is that it is void to the extent of its inconsistency with the provisions of the 1999 Constitution.
In particulars section 1(2), (3), (4), (5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency they are void – I hereby so declare.”
The court proceeded to answer the first question raised in the originating summons in the affirmative and the second question in the negative and accordingly granted all the reliefs claimed by the plaintiffs/respondents.
Issue Number One
Whether in view of section 45(1) of the 1999 Constitution the provision of the Public Order Act are not inconsistent with the said 1999 Constitution.
As rightly observed by the learned counsel to the appellant, this issue seeks to determine the validity of the Public Order Act against the background of the provision of sections 40, 45 of the 1999 Constitution and the Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria. 1990.
It is imperative to give insight into the relevant provisions of the Constitution and the Public Order Act.
Section 40 of the 1999 Constitution reads
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.
Provided that the provisions of this section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition.”
Section 45(1) reads 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 for the purpose of protecting the rights and freedom of other persons
(b)
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 exist 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.”
By Article 11 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990 the African Charter is an understanding between concerned African States to protect the human rights of their citizens within the territorial jurisdiction of their countries. It is now pail of the domestic law s of Nigeria and like all other law s courts must uphold it. These rights are already enshrined in our Constitution.
