By Femi Falana, SAN
In my first year at the University of Ife (now Obafemi Awolowo University) I took part in the “Ali Must Go” Protest of 1978.
It was a popular protest against the commercialisation of education by the Olusegun Obasanjo military junta.
Since then, I have participated in many protests against military and civilian dictatorial regimes in Nigeria.
But I have never witnessed the level of commitment and determination exhibited by Nigerians in the ongoing #EndSARS protests. Notwithstanding, the attacks on the protesters by sponsored lumpen elements and reckless killings by some misguided armed police personnel the youths have remained focused in the agitation to end police brutality in the country.
Instead of allowing violent counter rallies by criminal elements to disrupt the peaceful protests by the patriotic Nigerian youths the Federal Government and other authorities ought to have moved speedily to address the demands of the protesters.
In view of the violent attacks and disruption of the protests by armed troops and private militia the youths have resolved to continue their protests in designated areas in the urban areas.
While urging the youths to remain peaceful we wish to assure them that the federal government, which is under a legal duty to provide adequate securiy for protesters, will be held accountable for the violent attacks which have led to the brutal killing of protesters and the destruction of property.
We therefore set out to review the #EndSARS campaign and the refusal of the federal government and state governments to enforce the relevant laws which have made provisions for the observance of human rights as well as the protection of the rights and interests of the suspect, the defendant and victims in Nigeria.
Constitutional Rights of Citizens to Protest Against the Government
In the past two weeks, Nigeria has witnessed unprecedented public protests by concerned youths against brazen abuse of the rights of the Nigerian people. As usual, the fundamental right of the youths to protest against the government has been questioned by official anti -democratic forces.
For the umpteenth time it is submitted that the fundamental right of the Nigerian people to demonstrate against the government is part of the freedom of expression and assembly guaranteed by Sections 39 and 40 of the Constitution.
In ANPP v Inspector-General of Police (2006) CHR 263 the Federal High Court annulled police permit for public protests in defence of the right of the Nigerian people to protest for or against the government. The learned trial judge, Chikere J. granted an order of perpetual injunction restraining the Inspector General of Police, privies and agents from disrupting or cancelling rallies and meetings convened by Nigerian citizens.
Dissatisfied with the judgment the Police authorities appealed against it. But the appeal was dismissed by the Court of Appeal in the case of IGP v ANPP (2008) 12 WRN 65.
In her leading judgment, Adekeye JCA (as she then was) held that “The Public Order Act – relating to the issuance of police permit cannot be used as a camouflage to stifle the citizen’s fundamental rights in the course of maintaining law and order…. The constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result. The power given to the Governor of a State to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation of right to freedom of speech and freedom of assembly. 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 exercise without impediment as long as no wrongful act is done.”
Ban on Public Protests in the FCT
Since the right of the Nigerian people to protest has been constitutionally guaranteed and judicially protected the authorities of the Federal Capital Territory lack the power to ban the peaceful demonstrations by the #EndSARS campaigners.
In 2014, the police had banned the #Bring Back Our Girls Campaigners from further protesting against the abduction of the Chibok girls.
The ban was declared illegal and set aside by the High Court of the Federal Capital Territory in the case of Hadiza Bala Usman v Commissioner of Police, FCT & Ors FCT/HC/CV/1693/2014).
However, since the ban is anchored on health grounds the authorities ought to have advised the protesters to observe the COVID- 19 protocols and that the protesters might be arrested and prosecuted for contravening the regulations.
It is submitted that the fear of a possible breach of any law or regulation cannot be a basis for depriving Nigerians of their constitutional right to protest in matters of public interests.
In the case of IGP v ANPP (supra) the appellant had argued forcefully against the right to protest against policies of government considered inimical to the interests of citizens for the fear that it could lead to breach of peace and other criminal offences which might be committed during a protest.
In rejecting the argument the Court of Appeal held: “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.”
Illegality of the Military Crocodile Smile VI Exercise
A few days ago, the Chief of Army Staff, General Yusuf Buratai, threatened to deal ruthlessly with protesters. But on account of the popular rejection of the threat the Nigerian army has turned round to announce its plan to carry out operation “CROCODILE SMILE V1” would hold from 20th of October to the 31st of December 2020.
The army headquarters further said: “The Exercise is deliberately intended to be all-encompassing to include cyber warfare exercises designed to identify, track and counter negative propaganda in the social media and across cyberspace.”
The army has dismissed the insinuation in the media that the exercise has been described as a ploy to attack the #EndSARS protesters.
The spokesman for the army, Captain Sagir, has said that “For the records, Exercise CROCODILE SMILE is a yearly exercise in the NA Calendar/Forecast of Events which traditionally holds from October to December of each year.Thus, to now insinuate that it is an exercise meant to stifle the ongoing ENDSARS protest is to say the least highly misinformed. Exercise CROCODILE SMILE VI has nothing to do with the ongoing protests and the NA has never been involved in the ongoing protests in any form whatsoever. So far, the army has acted professionally since the civil protest started over two weeks ago.”
This statement should be retracted as it is contemptuous in every material particular.
The so- called Crocodile Smile VI exercise should be shelved as it cannot be justified under the Armed Forces Act.
While it is true that the military exercise is an annual event the army spokesman ought to have told Nigerians that the 2019 exercise tagged “Operation Positive Identification” was declared illegal and unconstitutional by the Federal High Court in the case of Femi Falana SAN v Chief of Army Staff (FHC/L/CS/1939/19).
The Nigerian army, under the guise of security, had wanted to conduct OPI between November 1st 2019 and December 23rd 2019 during which time citizens were required to go about and show their means of identification such as National Identification Card, Voters Registration Card, Drivers Licenses and International Passports to the security agents on demand.
After declaring the OPI military exercise unconstitutional, Justice Aikawa granted an order of perpetual injunction restraining the respondents and their agents from conducting any nationwide military operations without compliance with the extant provisions of Sections 217 (2) (A), (B), (c), 218 (1), (3) & (4) of the 1999 constitution as amended.
The Court said that “it would be outside the powers of the 3rd Respondent (the Nigerian Army) for it to parade the streets in the rest of the country and demand citizens to show their identity cards and the like. If there is any security need for that, my view is that it should be left in the hands of police which is the security agency vested with these functions as spelt out by Section 4 of the Police Act”.
Even though the Chief of Army Staff has approached the Court of Appeal to reverse the judgment the appeal has not been determined by the Court of Appeal.
To that extent the army authorities are bound to comply with the judgment of the Federal High Court which has perpetually restrained the army from usurping the powers of the police in the maintenance of law and order in the country.
The planned Crocodile Smile V1 exercise is an act of brazen impunity which should not be tolerated in any civilised society.
In fact, the protesting youths are revolting against such impunity.
However, President Buhari should not hesitate to stop the violent disruption of the protests by the Nigerian Army.
After all, the army has not been deployed to crush similar youth protests in Hong Kong, United States, France, South Africa, Belarus and even in Sudan.
Having regards to the facts and circumstances of the ongoing protests against police brutality there is no evidence of any form of insurrection in Nigeria which cannot be contained by the Nigeria Police Force.
The Nigerian Army has not been invited to act in aid of civil authorities by President Buhari while the National Assembly has not enacted any Act prescribing conditions for involving the armed forces in the management of protests.
Therefore, the threat of the Army Chief constitutes a violation of Section 217 of the Constitution.
Indeed, we are compelled to remind the military authorities that the illegal ban imposed on public protests was defied by the Nigerian people even under the most murderous military junta that misruled the country for about three decades.
No doubt, I appreciate the efforts of another group of patriotic and dedicated young people that are involved in the counter insurgency operations in the North East region.
General Buhari and other service Chiefs should intensify the war against terror.
While the nation is hugely indebted to the officers and soldiers who are defending the nation’s territorial integrity the attention of the Army Chief should be drawn to the case of Yussuf v Obasanjo, 2005, 18 NWLR (PT956), 96, where Salami JCA (as he then was) said: t “It is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious step or steps should be taken to civilianize the polity to ensure the survival and sustenance of democracy.”
Violent Attacks on Protesters
For several years, Nigerians from all walks of life had complained against incessant arrest and detention of innocent citizens, brutalisation, torture and extrajudicial killing of criminal suspects, commercialisation of bail, extortion of money from motorists.
The government turned deaf ears to the complaints .A fortnight ago, concerned youths across the country commenced the #endsars campaign in a peaceful and organised manner.
The police authorities changed the name of the notorious SARS to SWAT and asked them to await some reforms.
The federal government rehearsed the promises that had been made before about police reforms but which were not kept. Convinced that the promises would not be fulfilled the youths continued with the peaceful protests.
In a desperate bid to silence the protesters and stop the protests the police killed some unarmed protesters and injured scores of others.
Sponsored thugs were unleashed on the protesters. When the violent attacks did not stop the protests the government directed police and military personnel to take over the streets.
In the presence of the armed security personnel the thugs set fire on the cars of the protesters. The criminal elements who were arrested in Abuja last week confessed that they were hired at Jabi Park to attack the protesters.
The police did not arrest any of the armed thugs.
The Nigerian Army appears to have abandoned the war on terror in order to deal ruthlessly with protesters.
Since the government has created a conducive atmosphere for violence other thugs have unleashed themselves on innocent citizens.
The Benin Correctional Centre was invaded by the armed thugs who flung open the gates and set free all convicted and awaiting trial inmates. Our preliminary investigation has confirmed that there was no resistance from the armed warders and the police guarding the Correctional Centre.
The venue of the protests in Abuja has been taken over by armed soldiers who are under strict instructions to massacre unarmed protesters.
Some protesters were killed in Lagos by soldiers last night.
To show that the killing was premeditated the troops did not disperse the protesters with teargas, rubber bullets and water cannon.
Judicial Investigation of Police Brutality
We have confirmed that the reports of allegations of extrajudicial killings, extortion of members of the public and other atrocities perpetrated by the police and other security agencies in Nigeria have been ignored by the authorities.
In particular, the reports of the the two Panels of Enquiry instituted by the President in 2018 to probe allegations of human rights abuse by members of the Nigeria Police Force and the Nigerian Armed Forces have not been published up till now.
In the same vein, the petitions against the atrocities committed by security agencies submitted to the Police Authorities were not acted upon.
In fact, the recommendations of the National Human Rights Commission on the excesses of the operatives of the disbanded SARS were ignored.
For regularly drawing the attention of the authorities to the naked abuse of power by security personnel the Amnesty International had its office in Abuja occupied for weeks by sponsored thugs.
Based on the official cover up of the atrocities of the security agencies, the United Nations directed the Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions, Agnes Callamard, to investigate the allegations of human rights abuse in Nigeria.
In her end -of -visit statement made on September 2, 2019 the UN Special Rapporteur observed: “However, the absence today of accountability functionality is on such a scale that pretending this is anything short of a crisis is a major mistake. It is a tragedy for the people of Nigeria. Unchecked, its ripple effects will spread throughout the sub-region if not the continent, given the country’s central economic, political and cultural leadership role.”
The report of the investigation and recommendations of the Special Rapporteur have also been discountenanced by the government.
Hence, the protesting youths have no confidence in the reforms of the Police being promised by the Police Hierarchy and the government.
Curiously, gangs of sponsored thugs have been unleashed on the protesters with the apparent connivance of security agencies. Regrettably, the hired thugs have turned round to unleash mayhem on some public officers.
The unfortunate attack on Governor Oyetola of Osun State calls for the immediate disbandment of the sponsored thugs.
Instead of compounding the situation the authorities ought to speed up the implementation of the much touted reforms and prosecute police and military personnel indicted in the egregious infringements of the the human rights of the Nigerian people.
The governments should ensure that the protesters are given adequate securiy in accordance with the provision of Section 94 of the Electoral Act amended) (as which provides that “Notwithstanding any provision in the Police Act, the Public Order Act and any regulation made thereunder or any other law to the contrary, the role of the Nigeria Police Force in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection (1) of this section.”
As part of the measures designed to address the complaints of the protesters the National Economic Council has directed state governors to institute judicial commissions of inquiry to probe the sundry allegations of police brutality in all the states of the Federation.
Pursuant to the resolution some state governments have set up the judicial commissions with clearly defined terms of reference.
While calling on other state governments to expedite action on the matter, there must be commitment to implement the recommendations of the judicial panels.
On its own part the National Human Rights Commission has announced another panel to investigate human rights abuse in the country.
But the Commission cannot implement the recommendations of the body as its governing council has not been reconstituted since 2015.
The Way Forward
Having lost confidence in the government over failed promises the protesters believe that if they withdraw from the streets the reform of the police would be abandoned. While some of the reforms cannot be carried out immediately others can be accomplished without any delay.
Majority of the complaints against the disbanded SARS pertain to the brutalisation and extrajudicial killing of suspects in police custody, illegal arrest and detention of suspects, arrest of innocent citizens in lieu of criminal suspects, involvement of the police in commercial disputes and other civil matters. Such violations of the human rights of the Nigerian people have been abolished by the relevant statutes which are not being enforced by the federal government and security agencies.
For instance, the Administration of Criminal Justice Act 2015 has prohibited the arrest of innocent citizens in lieu of criminal suspects. It has also banned the arrest and investigation of civil wrongs by the police.
Five years after the enactment of the law it has remained business as usual in all police stations.
Under the law, the Chief Judge of each State shall designate Magistrates to visit all police stations in their areas of jurisdiction at least once a month while the Chief Judge of the Federal High Court shall designate Judges of the Court to visit other detention facilities in the country.
Based on our request, the Chief Judges of the States have designated the Visiting Magistrates.
However, illegal arrest and detention of poor citizens have continued due to the failure of the Magistrates to inspect the police stations on a monthly basis.
Our law firm has had to sue the Chief Judge of the Federal High Court over the refusal to designate Judges to visit the detention facilities of the anti graft agencies, armed forces and other institutions.
Thus, the five-year old law has been observed in breach.
On June 3, 2019, President Buhari promised to forward the names of the reconstituted members of the Governing Council of the National Human Rights Commission to the Senate for confirmation.
The body which was dissolved in 2015 ought to be reconstituted forthwith.
The President also announced that the Federal Government had accepted the recommendation of the Presidential Panel on the reforms of the SARS.
The Police Service Commissioner should urgently attend to the recommendation of the said Panel for the dismissal of 37 SARS operatives and prosecution of 24 others for gross human rights violations.
The Anti Torture Act which has criminalized torture requires the Attorney-General of the Federation to draw up rules and regulations for the abolition of torture by police and other security agencies in the country.
The authorities are mandated to draw the attention of the police colleges and similar institutions to the provisions of the Anti- Torture Act.
But the law has not been activated since it was enacted in 2017. The Nigeria Police Force Act, 2020 has abolished the prosecution of criminal cases in all courts by lay prosecutors. To the best of my knowledge no state government has complied with the law by replacing lay police prosecutors with lawyers. The Police Trust Fund Act was enacted in 2019. One of the organisers of the protests informed me a couple of days ago that the deduction of 0.5 percent from the Federation Account for funding the police commenced last year. But there is no evidence that the money is being spent in line with the provisions of the law.
From the totality of these laws it is indubitably clear that Nigeria has one of the best human rights law regimes in the world. Unlike other African countries which have merely ratified the African Charter on Human and People’s Rights, Nigeria has domesticated and enacted it into law.
Other international human rights instruments like the Child’s Rights Convention and the UN Convention Against Torture have also been domesticated.
But official impunity has made a mockery of local and international human rights instruments that are meant to promote the fundamental rights of the Nigerian people.
Beyond the ongoing investigation of allegations of police brutality the federal government and other stakeholders should urgently set the engine in motion for the enforcement of the laws that have been enacted to humanise the criminal justice system and provide adequate funding for the Nigeria Police.
To start with, let President Buhari reconstitute the Governing Council of the National Human Rights Commission.
Let the Attorney-General of the Federation, Inspector General of Police, Accountant-General of the Federation and Chief Judges carry out their duties under the relevant laws forthwith.
It is interesting to note that President Buhari has recognised the fundamental right of Nigerian youths to protest peacefully while Vice President Yemi Osinbajo has apologised to Nigerian youths for the failure of the government to take decisive measures before the protests.
Therefore, President Buhari should direct the police to protect the youths who wish to protest in designated areas in any part of the country.
At the same time security forces should be directed to arrest and prosecute armed thugs who are perpetrating mayhem and thereby discrediting the protesters.
However, since the revolt of the youths has challenged official impunity in Nigeria as has never been done before, the organisers of the protests ought to provide a conducive atmosphere for government to implement the long term reform of the Nigeria Police.
Having regards to the abuse of police powers by members of the ruling class it will be foolhardy to expect the government to end brutality by the police and other security agencies.
It is common knowledge that the members of the ruling class deploy the police for rigging of elections and the intimidation of political opponents.
But since the neo- colonial State has been compelled by the struggles of the oppressed to enact human rights laws it is the duty of progressive forces to organise the people to liberate themselves from institutionalised injustice and atrocities. Because the forces responsible for police brutality have also hijacked political power from the people, a few human rights activists cannot successfully defend the human rights of the entire people. We, are, therefore compelled to call on all patriotic and democratic forces to mobilise the people to set human rights groups in every community in the country for the defence and promotion of human rights of all citizens.