17 December 2007
opinion
Lagos — Chidi Anselm Odinkalu cautions that there remain worrying provisions in both the law and institutional instincts of the Nigeria Police Force that could subvert the effect of last week's decision of the Court of Appeal nullifying the Public Order Act
The predominant response to last week's decision of Nigeria's Court of Appeal to nullify the Public Order Act has swung between hyperbole and cliché. This peculiar piece of legislative incongruity with clear colonial provenance had for long justified maximum and arbitrary policing with sometimes fatal consequences. In bringing it to an end, the Court of Appeal potentially saves lives and encourages the evolution of plural and participatory politics in Nigeria.
The military government of General Olusegun Obasanjo updated and re-enacted the Public Order Decree, no. 5 of 1979, which survived as existing law under the transitional provisions first of S. 274 of the now defunct 1979 Constitution; and later of S. 315 of Nigeria's 1999 Constitution. S. 1(1) of the Act empowered the Governors of each of Nigeria's 36 States to "direct the conduct of all assemblies, meetings, processions on public roads or places of public resort in the state and prescribe the route by which and the times at which any procession may pass." S.1(2) requires persons desiring to assemble or demonstrate to apply for a license to the State Governor not later than 48 hours to the date of their proposed demonstration. The Act authorizes Governors to delegate their powers to license assemblies to State Police Commissioners.
S. 40 of the Constitution guarantees the rights to free association and assembly. S. 45(1) of the Constitution, however, provides for the limitation of these rights by law which is made in the interest of, among other things, public order or public safety. Articles 10 and 11 of the African Charter on Human and Peoples' rights guarantee similar rights and the circumstances in which these rights may be limited.
This is the brief legislative background to the decision in INSPECTOR-GENERAL OF POLICE v ALL NIGERIAN PEOPLES' PARTY (ANPP) & 11 OTHERS, Appeal No. CA/A/193/M/05 (unreported decision of the Court of Appeal, 11 December 2007). To protest the massive rigging of Nigeria's 2003 general elections, the ANPP and eleven other political parties decided to call a general protest. In May 2003, they applied unsuccessfully to the Inspector-General of Police (IGP) under the Public Order Act for a permit for this purpose. On September 22 2003, the parties eventually called a general protest in Kano which the Police violently disrupted.
Before the High Court, the Parties sought and obtained judgment on June 24 2005, declaring the requirement of prior permit for assembly under the Public Order Act unconstitutional and restraining the Police from disrupting their protests subsequently. Upholding the decision of the High Court and throwing out the appeal of the Inspector-General of Police, the Court of Appeal (per Adekeye J.C.A.) affirmed the rights to protest and demonstrate as "rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done." The Court made it clear that it recognized the role of the Police in managing demonstrations, observing that "our Criminal Code has made adequate provisions for sanctions against break down of law and order." In particular, the Court admonished, '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 civilised countries - it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally.'
Colonial government and post-colonial authoritarianism survived as long as they did and beyond by decentralizing despotism through broad discretionary powers such as those found in the Public Order Act. The control of free expression and assembly was the focus of the institutional and legislative infrastructure established for this purpose. All former British colonies had laws similar to Nigeria's Public Order Act. Many decided cases from different countries tell the story how such laws have come to grief elsewhere.
In NEW PATRIOTIC PARTY v IGP [1996] 1 CHRLD 5, Ghana's IGP withdrew licenses granted to the then leading opposition (now ruling) party to demonstrate, refused to grant others licenses, and violently disrupted an opposition rally. Upholding the challenge to the powers of the Interior Minister and the IGP to license public gatherings, Ghana's Supreme Court held in its judgment of November 30, 1993: 'Police permit has outlived its usefulness. Statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain-child of the colonial era and ought not to remain in our statute books.'
On January 13, 1994, the Supreme Court of Zimbabwe, in RE MUNHUMESO [1996] 1 CHRLD 8, declared unconstitutional the exercise of licensing powers to frustrate a demonstration by Zimbabwe's Trade Union Congress. Nine months later, on October 27, 1994, Tanzania's High Court invalidated a proposed constitutional amendment requiring permits for public gatherings. In his judgment in MTIKILA v ATTORNEY-GENERAL, [1996] CHRLD 11, Lukakingira J. held this amendment to be both arbitrary in its effect and disproportionate in its design. In particular, he held that 'a law which sought to make the exercise of a right subject to the permission of another person could not be consistent with the express provisions of the Constitution as it would make their exercise illusory.'
On December 20, 1994, Aganyanya J., of the High Court of Kenya, in the case of IMANYARA v ATTORNEY-GENERAL AND ANOR, [1996] 1 CHRLD 1, similarly invalidated the decision of a district Chief denying an opposition politician the right to hold a meeting in a church. On January 10, 1996, in MULUNDIKA & ORS. v THE PEOPLE [1996] 1 CHRLD 15, Zambia's Supreme Court held that the requirement of prior permit for protest was an obvious and unconstitutional hindrance to both free assembly and expression. Sri Lanka's Supreme Court reached a similar decision in the case of SARANAPALA v S.A.D.B.R. SOLANGA ARACHCHI, SENIOR SUPERINTENDENT OF POLICE AND ORS. (Case No., SC Application No 470/96 (FR), unreported decision of July 17, 1997) where it nullified the exercise of powers to deny a permit for a May Day rally to an opposition party.
On March 16, 1998, in the case of OUSAINOU DARBOE v IGP, [1998] 2 CHRLD 166, Gambia's High Court also invalidated the denial of permit for a rally to the applicant, a leading opposition politician, on grounds of arbitrariness. When Malawi's President sought to introduce the requirement of prior licensing of rallies in order to restrain opposition to his bid for a constitutionally impermissible tenure extension, Malawi's High Court on 22 October 2002 struck down his attempt as unconstitutional in STATE v THE PRESIDENT OF MALAWI & ORS, EX PARTE MALAWI LAW SOCIETY, [2003] 4 CHRLD 3.
Notwithstanding this long and consistent line of jurisprudence, there nevertheless remain worrying provisions in both the law and institutional instincts of the Nigeria Police Force that could subvert the effect of the decision of the Court of Appeal in IGP v ANPP & 11 OTHERS. Ss. 215(3) and (4) of the 199 Constitution, for instance, give the President operational control over the Police, and empower him to issue operational directives to both the IGP and State Police Commissioners. This power could easily be and has previously been abused. The powers of the Police to control unlawful assemblies and breaches of the peace under Chapter 10 and, most especially, S. 69 of the Criminal Code could also be similarly abused.
This decision could, however, inspire the Police to re-tool its methods and doctrine for managing public protests and demonstrations. The Police could establish a liaison unit for managing public assemblies, consult widely with all political parties, leading civic, trade union, civic, and human rights organizations to formulate and popularize guidelines for managing demonstrations, and equip its personnel with adequate communication and crowd control skills, among other things.
Nigeria's IGP has announced his intention to appeal against the decision of the Court of Appeal in IGP v ANPP & 11 ORS. As a nominal party to the proceedings, he may well be entitled to do so. As the executor of a public trust, however, it is difficult to fathom what interest he will serve by so doing. Adekeye JCA was on sure territory in her lead judgment when she enjoined Nigeria's leaders, including the leadership of the Police, to "borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience." Gambia, Ghana, Kenya, Malawi, Sri Lanka, Tanzania, Zambia, Zimbabwe, have long ago trod this path. This is not a particularly ambitious peer group for Nigeria to join. In choosing to appeal, this Inspector-General may wish to ask himself how he wishes to be remembered.
- Professor Odinkalu is of the Council of the Section on Public Interest and Development Law (SPIDEL) of the Nigerian Bar Association
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