The Public Order Act has precipitated a bevy of controversies. It has been argued in several quarters as giving the Police the power to harass, intimidate, arrest, brutalize, and prosecute innocent citizens who are lawfully engaging in peaceful protest against unpopular policies of the government.
The law, which is ensconced like the rock of Gibraltar, is that every citizen shall have a right to peaceful assembly, however, this right may be curtailed in certain circumstances. This article seeks to examine, briefly, the powers of the Nigeria Police Force: the scope and its functions, what constitutes an unlawful protest/unlawful assembly thereby warranting a clamp down on protests or rallies by the Police Force, and the powers of the Police vis-à-vis the Public Order Act to curtail protests by citizen.
Trajectory of Facts
Before delving into the legal consideration, it is quite helpful to give a trajectory of facts that may have birthed this legal conundrum. In early October, last year, a video spread on social media showing what looked like a SARS officer attacking a man in Delta state. The video was shared massively in the country of 200 million people and thousands started sharing their own stories of police abuse online. However, the recent video “resonated with thousands across the country and led to youth pouring out en masse onto the streets.” Nigeria Police Force disrupted the protests in some cities, throwing teargas, using water cannons and shooting at unarmed peaceful protesters as seen in Abuja and Osun. This led to the death of Jimoh Isiaq in Ogbomoso, Oyo State. A bystander watching the protest was also shot dead by members of the Nigeria Police Force in Surulere while leaving 4 injured and they also arrested and detained peaceful Protesters. By Wednesday, 14 October, 2020, the End SARS protests were still ongoing with young people in different parts of Nigeria intensifying their calls for reforms and accountability in police operations. Furthermore, on October 20, it was reported that armed men of the Nigerian Army arrived at the scene of the protest and opened fire on peaceful and unarmed protesters, thereby resulting in a disputed number of deaths. Recently, June 12, 2021 to be precise, another protest took place in certain parts of the Country. It was, however, reported that tear gas was fired at protesters in Abuja to disperse them.
- The Theoretical Concept of ‘Protest’, ‘Right to Public Assembly’ and ‘Unlawful Assembly’
For a better understanding of the issue, it is pertinent to define what a ‘protest’ is, the ‘right to public assembly’ and the meaning of an ‘unlawful assembly’ is. As defined by the Black’s Law Dictionary, ‘protest’ is “[A] formal statement or action expressing dissent or disapproval.” Also, ‘right to public assembly’ can be defined as “an intentional and temporary gathering in a private or public space for a specific purpose, including demonstrations, inside meetings, strikes, processions, rallies or even sits-in.” On the other hand, the Black’s Law Dictionary, defines ‘unlawful assembly’ as “[A] meeting of three or more persons who intend either to commit a violent crime or to carry out some act, lawful or unlawful, that will constitute a breach of the peace.”
- The Role of the Nigeria Police Force
The Nigeria Police Force is mandated to: Protect peoples’ lives and property; Prevent, detect and investigate crime; Maintain law and order in the community or society.
- Brief History
The establishment of the NPF predates the Nigerian Constitution. Prior to the arrival of the British to Nigeria in 1800, law and order was maintained by the local chiefs and their messengers by means of traditional institutions and the age grade system. After the arrival of the British in Nigeria, The police system and administration gradually passed from the local chiefs to the British. Following the annexation of Lagos, William McCoskry, and the first acting Governor of Lagos established the Hausa constabulary/Lagos Police Force in 1861. Thus, establishing the Nigeria Police.
- The Establishment of the Nigeria Police Force
Several rationales are given for the establishment of the Nigeria Police Force in general. However, the most relevant seems to be the maintenance of law and order.
Section 214(1) of the Constitution establishes the NPF. It reads thus:
“There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provision of this section no other Police Force shall be established for the Federation or any part thereof.” Furthermore, Section 214 (2) provides that “Subject to the provisions of this Constitution – (a) the Nigeria Police Force shall be organised and administered in accordance with such provisions as may be prescribed by an act of the National Assembly; (b) the members of the Nigeria Police shall have such powers and duties as may be conferred upon them by law”
Apropos the foregoing, the establishment of the Nigeria Police Force is limpid. Furthermore, the Police are given such powers and duties as may be conferred upon them by law. By extension, the Police Act was enacted by the Legislature to provide for duties, powers, and functions of the Nigeria Police Force.
- Scope, Powers and Functions of the Nigeria Police Force
The Nigerian Police Force is principally responsible for maintaining law and order. Virtually all other duties mentioned in section 4 of the Police Act is centered on this particular duty which involves maintaining law and order. This duty demands that the police compel the citizens to obey laid down laws as outlined in the Nigerian Constitution. However, the Police are required to balance the freedom of the individual with the need to prevent and detect crime and, the preservation of law and order. A community reading of Sections 4 and 10 of the Police Act may stir up certain questions: Is the police command’s admonition valid? How can the Police balance the freedom of the citizens with the need to maintain law and order?
Right of Assembly
One of the primal characteristic of democracy is the right of citizens to conduct peaceful processions, rallies or demonstrations without seeking or obtaining permission from anybody. One of the legislative measures taken to protect peaceful protest is the enactment of the fundamental Human Right Enforcement procedure rule 2009. Its legal framework is provided for in different laws, the fons et origo, that is, the Constitution, being the first port of call.
The Nigerian Constitution
The right to peaceful assembly is guaranteed by the 1999 Constitution, and any law that attempts to curtail that right is null and void, otiose, and of no consequence whatsoever. Section 45 permits these rights to be restricted in the interests of defence, public safety, public order, public morality or public health, or to protect the rights or freedoms of others.
The International Human Rights Framework on the Right of Peaceful Assembly
Nigeria is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”
At regional level, Nigeria is a State Party to the 1981 African Charter on Human and Peoples’ Rights.
Article 11 provides as follows:
“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”
Demonstrations or civil protests personify the popular right to freedom of expression as well as the right to freedom of peaceful assembly and association, all guaranteed under the Universal Declaration of Human Rights, regional instruments on human rights as well as the constitutions of many states.
The right to express dissent with policies and decisions of government or its agencies is one of the cardinal principles of democracy. This fact has also been given judicial approval by the Courts in Inspector General of Police v All Nigeria Peoples Party & Others (2007) 18 NWLR 469 500 paras G-H thus:
“Democracy admits of dissent, protests, marches, rallies and demonstrations. True democracy ensures that these are done responsibly 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 violent demonstrations of the past.”
- What Constitutes An Unlawful Protest/Unlawful Assembly
The duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. However, where an assembly becomes unlawful, or is unlawful, the Police has the duty to clamp down on such demonstration.
In assessing the violations of the right to assembly in Middle Eastern and North African (MENA) countries, the MENA rights group in a report submitted to the UN Human Rights Committee said:
“In light of cases of violations (by the government) of article 21 (the right to peaceful assembly) documented in countries in the MENA region, we highlight that the intention to commit violence should also be materialised by the actus reus of (the assemblers) committing violence…such an approach would entail that the likelihood that an assembly might lead to violence should not enter into consideration in the assessment of its peacefulness. The likelihood that an assembly might turn violent should not be considered as an element to strip peaceful organisers and protesters of the protection of their right…Adopting a human rights approach under the spirit of a lex favorabilis would, in fact, entail that the assessment of the likelihood of violence should be considered as a positive step to be taken by the authorities in order to ensure, through the implementation of preventive measures, that persons participating in the assembly can carry on peacefully their demonstration, and that the latter as well as bystanders are protected from acts of violence and intimidation regardless of their perpetrator’s identity (state agents, participants, counter demonstrators etc.). Moreover, adopting a most favourable approach to right-holders should equally entail that an assessment of the likelihood of violence should not constitute a sufficient legal basis to ban the protest but should rather be considered as a means to facilitate the realisation of the right to peaceful assembly.”
What constitutes ‘unlawful assembly’ is not far-fetched. According to Henry John Stephen, Commentaries on the Laws of England 135–136, cited in Bryan Garner, Black’s Law Dictionary, Eighth Edition where it was stated thus:
“In order that the assembly may be ‘unlawful,’ it is not necessary that the object of the meeting should itself be illegal. The test is, not the illegality of the purpose for which the persons are met, but the danger to the peace which their meeting involves. The mere fact, therefore, that the purpose is unlawful is not enough; it must be shown that it involves reasonable apprehension of a breach of the peace.”
Apropos the foregoing, when persons come together, having a common purpose, and they conduct themselves in a manner that members of the community reasonably apprehend a breach of the peace, they would have committed the offence of unlawful assembly. This further means that the offence is materialised by a common purpose and a conduct that involves reasonable apprehension of a breach of the peace.
Where an assembly becomes unlawful, the Police must maintain law and order.
- The Legal Framework on the Use of Force During Unlawful Assemblies
There are certain laws that allow the police to employ the use of force during unlawful assemblies.
International Legal Rules
According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
“In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.”
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Section 102 of the 1960 Criminal Procedure Code (applicable in the northern states) permits the use of force by police officers to disperse unlawful assemblies or riots. The extent of the force allowed to achieve this is, however, not defined.
Section 73 of the 1916 Criminal Code (as amended; generally applicable in the southern states) allows “all such force as is reasonably necessary” to overcome resistance to dispersal.
From the foregoing, it is limpid that ‘unlawfulness’ is the basis for the Police use of force.
- Powers of the Police To Curtail Protests vis-à-vis the Public Order Act
As initially stated, the right to public assembly, like all other rights guaranteed by law, is not without its limitations. The Nigeria’s Public Order Act is currently an Act of the National Assembly, deriving its powers from section 45(1) of the 1999 Constitution. The Public Order Act is the primary legislation regulating assemblies in Nigeria. The Public Order Act (which prescribes conditions to be fulfilled before a procession, demonstration or protest could be carried out lawfully) therefore effects the derogation anticipated by section 45(1) of the 1999 Constitution.
The Act, amongst other things, provides that any person who is desirous of convening any assembly or meeting or of forming any procession in any public road or place of public resort shall apply to the Governor for a License not less than 48 hours before the time for such assembly or meeting. Where the 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 to the time for such assembly, specifying the name of the licensee (person(s) granted the license) and defining the conditions under which the assembly, meeting or procession is permitted to take place. And if he is not so satisfied, he can refuse to grant a license. The power to grant licenses can be delegated by the Governor of a State to the Commissioner of Police of the State or any superior police officer.
The provisions of the Public Order Act clearly evince the obtaining of a licence before convening any assembly or meeting or forming any procession in any public road or place of public resort. However, it is doubtful if a failure to obtain this licence grants the Police the power to harass, arrest, intimidate, brutalise citizens who are carrying out a lawful or peaceful protest.
It must be noted that a peaceful protest cannot be curtailed by the Police as it is enshrined in the Constitution, a failure to do so would amount to a breach of such revered fundamental right. On the other hand, an unlawful assembly, or unlawful protest precipitates the enforcement of law and order by the Police.
More so, according to Freedom House’s 2019 report on Nigeria:
“The right to peaceful assembly is constitutionally guaranteed. However, federal and state governments frequently ban public events perceived as threats to national security, including those that could incite political, ethnic, or religious tension. Rights groups have criticized federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups like the IMN [Islamic Movement of Nigeria] and the separatist group Indigenous People of Biafra (IPOB). In October 2018, soldiers responded to rock-throwing protesters from the IMN in Abuja, who were protesting the continued detention and charges against Ibrahim el-Zakzaky, by opening fire and killing as many as 45 people. In response to criticism of the shootings, the army’s official Twitter account posted a video of US president Donald Trump arguing — in the context of US border security — that stones thrown at the military should be considered firearms. President Buhari declined to condemn the shootings and the military continued to defend the actions of its security forces through the end of the year.”
Apropos the foregoing, the right to peaceful assembly is constitutionally guaranteed. However, where the government sees that an assembly has become violent, or threatens the breach of the peace of the society, it may, through the Police Force, enforce law and order, and restore peace to the society.
The Public Order Act mandates that a licence be obtained before convening any assembly or meeting or of forming any procession in any public road or place of public resort. However, it clearly does not grant the Police the power to harass, or brutalize citizens. The right to peaceful assembly, as the name implies, is the right to assemble peacefully. Such a right is sacrosanct, and can only be curtailed by a law that is reasonably justifiable in a democratic society. The duty of the Police to clamp down on demonstrations by citizens can only inure when the assembly has metamorphosed to an unlawful assembly, or the government perceives threats to national security.
Damilola Obanijesu Oyawole is an undergraduate law student of the University of Ilorin. He has a penchant for Legal Research, Litigation, Intellectual Property, Cyber Security, Property Law, and Arbitration. He can be reached via email@example.com
 See Article 40 of the 1999 Constitution of the Federal Republic of Nigeria. See further 1946 United Nations Declaration on Human Rights and Article 20 on the right to assembly says: “Everyone has the right to freedom of peaceful assembly and association.”
 See Vanguard, October 16, 2020, “What to know about Nigeria’s #EndSARS protests”, available at https://www.vanguardngr.com/2020/10/what-to-know-about-nigerias-endsars-protests/ and accessed on June 16, 2021 at 12:16am; see further Jake Okechukwu Effoduh, “Why Nigeria’s #EndSARS movement is more than a call to end police brutality”, available at https://www.weforum.org/agenda/2020/12/nigeria-endsars-police-brutality-protest/ and accessed on June 16, 2021 at 12:16am.
 See Aljazeera, October 22, 2020, “Timeline: #EndSARS protests in Nigeria”, available at https://www.google.com/amp/s/www.aljazeera.com/amp/news/2020/10/22/timeline-on-nigeria-unrest and accessed on June 16, 2021 at 12:16am.
 See Accountable Nigeria Initiative, October 9, 2020, “Nigerian Youths Troop Out On #EndSARS Protest, Demand Disbandment Of “Rogue Section”, available at https://accountablenigeria.org/?q=blog/nigerian-youths-troop-out-endsars-protest-demand-disbandment-%E2%80%9Crogue-section%E2%80%9D and accessed on June 16, 2021 at 12:17am.
 See BBC News, October 12, 2020, “SARS ban: Two dead in Nigeria police brutality protests”, available at https://www.bbc.com/news/world-africa-54506567 and accessed on June 16, 2021 at 12:49am; See further This Day, October 10, 2020, “EndSARS Protests Turn Violent in Osun, Abuja, Commotion in Lagos”, available at https://www.thisdaylive.com/index.php/2020/10/10/endsars-protests-turn-violent-in-osun-abuja-commotion-in-lagos/ and accessed on June 16, 2021 at 12:49am; see also BBC News, October 9, 2020, “Nigerian police fire tear gas at #EndSars protests against brutality”, available at https://www.bbc.com/news/world-africa-54478254 and accessed on June 16, 2021 at 12:50am.
 See Channels, October 10, 2020, “#EndSars: Young Nigerian Jimoh Isiaq Killed In Ogbomosho, Seven Others Injured” available at https://www.channelstv.com/2020/10/10/endsars-protester-jimoh-isiaq-killed-in-ogbomosho-seven-others-injured/ and accessed on June 16, 2021 at 1:11am.
 See Premium Times, October 12, 2020, “Another #EndSARS protester shot dead”, available at https://www.premiumtimesng.com/news/headlines/420205-just-in-another-endsars-protester-shot-dead.html and accessed on June 16, 2021 at 1:11am.
 See also Amnesty International, 21 October, 2020, “Nigeria: Killing of #EndSARS protesters by the military must be investigated”, available at https://www.amnesty.org/en/latest/news/2020/10/killing-of-endsars-protesters-by-the-military-must-be-investigated/ and accessed on June 16, 2021 at 1:11am.
 See Vanguard, June 12, 2020, “June 12: Police fire tear gas at protesters in Abuja”, available at https://www.vanguardngr.com/2021/06/june-12-police-fire-tear-gas-at-protesters-in-abuja/?amp=1 and accessed on June 16, 2021 at 1:15am.
 Bryan Garner, Black’s Law Dictionary, Eighth Edition.
 Onyinye Ukegbu, “The Nigerian’s right to public assembly: where does it begin, where does it end?”, available at https://legal.businessday.ng/2020/11/12/the-nigerians-right-to-public-assembly-where-does-it-begin-where-does-it-end/ and accessed on June 16, 2021 at 1:05pm; See also Article 40 of the 1999 Constitution of the Federal Republic of Nigeria. See further 1946 United Nations Declaration on Human Rights and Article 20 on the right to assembly says: “Everyone has the right to freedom of peaceful assembly and association.”
 Bryan Garner, Black’s Law Dictionary, Eighth Edition. See also Henry John Stephen, Commentaries on the Laws of England 135–136, cited in Bryan Garner, Black’s Law Dictionary, Eighth Edition. R v Eyo (1962) ALL NLR 515.
 See O. Oluwaniyi, Evolution of State and Society in Pre-colonial Nigeria 1500-1800 (unpublished manuscript), https://run.edu.ng/directory/oermedia/3696103805403.pdf
 V.A. Mpamugo, The Role of the Nigerian Police in Human Rights Protection and Enforcement, ABIA STATE L.J. 29 (1996).
 Oluwaniyi, supra note 13.
 See Agbo Madaki, “The Nigerian Police Force and the Promotion and Protection of Human Rights in Nigeria”, 3(1) COM. & INDUS. L.J. 304 (2012); See further Tamuno, T.N. (1970), The Police in Modern Nigeria (1861-1965): Origins, Development and the Role, Ibadan: University Press.
 The Police Act (2010) Cap. (P19) Laws of the Federation of Nigeria 2004.
 Section 4 of the Police Acts and Regulations lists the duties of the police force to include: (a) The prevention and detection of crime, (b) the apprehension of offenders, (c) the preservation of law and order, (d) the protection of life and property, (e) the due enforcement of laws and regulations with which they are directly charged. (f) the performance of such military duties within and outside Nigeria as may be required of them by or under the authority of the police act or any other act; See also Section 10 (1) & (2) of the Police Act which state thus: “The President may give to the Inspector-General such directions with respect to the maintaining and securing of public safety and public order as he may consider necessary, and the Inspector-General shall comply with those directions or cause them to be complied with. Subject to the provisions of subsection (1) of this section, the Commissioner of a State shall comply with the directions of the Governor of the State.
 Madaki, supra note 16, at 304.
 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; see also 1946 United Nations Declaration on Human Rights and Article 20 on the right to assembly says: “Everyone has the right to freedom of peaceful assembly and association.”
 All Africa Stories, 13 November, 2014, “Public Order Act Unconstitutional, Says Law Reform Commission”, available at https://allafrica.com/stories/201411140986.htmlNigeria and accessed on June 16, 2021 at 1:26pm.
 Here, the respondents, a registered political party in Nigeria, sought a police permit from the appellant (the Nigeria Police) for its members to protest the alleged rigging of the 2003 general election; a request the appellant refused. Notwithstanding the refusal by the appellant, the respondents went ahead with the rally in Kano on 22 September 2003, which the appellants violently disrupted. The respondents instituted an action before the Federal High Court, raising the following issues for determination: (a) whether a police permit or any authority is required for holding a rally or procession in any part of the Federal Republic of Nigeria; (b) whether the provisions of the POA which prohibits 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 Peoples’ Rights (Ratification and Enforcement) Act Cap 10. Therefore, the respondents sought a declaration that the requirements of a police permit or other authority for holding rallies or processions in Nigeria; as well as the provisions of the POA which require such permits, were all illegal and unconstitutional, as they contravened the provisions of section 40 of the Nigerian Constitution 1999 and article 7 of the African Charter
 See Amnesty International, 2018, “Human Rights In Middle East And North Africa – Review in 2020”, available at https://www.amnesty.org/en/latest/research/2019/02/human-rights-in-the-middle-east-and-north-africa-2018/ and accessed on June 16, 2021 at 1:28pm.
 Section 45 of the 1999 Constitution provides that: Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons. See similar derogations under Article 29 of the Universal Declaration and Article 11 of the African Charter.
 The Public Order Act, s 1(2) & (3).