The Special Prosecutor of
the International Criminal Court has also investigated and indicted the leaders
of the sect for committing crimes against humanity.
The satanic Boko Haram sect
was officially banned in Nigeria by the federal government and declared a
terrorist network in June 2013.
The office of the Attorney-General of the
Federation has since successfully prosecuted many of the members of the sect
for sundry offences under the Terrorism Prevention (Amendment) Act.
Having regards to the
brutal killing, rape, abduction and bombing of innocent people in the northeast
region the Nigerian people are fully in support of the proscription of the
dreaded sect and the counter-insurgency operations being carried out by the
armed forces.
However, it is worrisome
that the Buhari administration has decided to extend the ambit of the Terrorism
Prevention (Amendment) Act to cover individuals and organisations that are
critical of official policies or perceived marginalisation within the
federation. Thus, the Indigenous People of Biafra (IPOB) was proscribed as a
terrorist body in 2017 for agitating for the excision of the Republic of Biafra
from Nigeria while the Islamic Movement of Nigeria (IMN) was proscribed last
week for organising rallies to compel the federal government to comply with a
court order by releasing the Shia leader, Sheikh Ibraheem Elzakzaky and his
wife from custody.
Yesterday, the authorities
of the Nigeria Police Force threatened to prosecute the organisers of the
peaceful rallies scheduled to hold in Nigeria on Monday, August 5, 2019, for
terrorism and treason to press for a change in the poverty induced agenda of
the federal government. If this trend of accusing every person of engaging in
terrorist activities or treasonable felony for criticising the Buhari
administration continues the Nigeria Police Force and the State Security
Service will soon turn Nigeria into a country of terrorists. To stop the
dangerous trend it is high time the federal government restrained the security
agencies from further exposing Nigeria to ridicule in the comity of civilized
nations.
Indeed, by virtue of
section 37 of the Criminal Code Act, any person who levies war against the
State, in order to intimidate or overawe the President or the Governor of a
State, is guilty of treason, and is liable to the punishment of death while
section 41 provides that any person who forms an intention to remove the
President during his term of office otherwise by constitutional means is guilty
of treasonable felony and is liable to be sentenced to life imprisonment. The
Terrorism Prevention (Amendment) Act has defined an act of terrorism to include
any act which is deliberately done with malice which may seriously damage a
country or an organization, or seriously intimidate a population, otherwise
influence government by intimidation, destroy public facility, seize an
aircraft, ship or other means of public transport likely to endanger human life
or in result in major economic loss etc.
From the above definitions
of treason, treasonable felony and terrorism it is crystal clear that the
organisers of the peaceful rallies cannot be said to have planned to engage in
acts of terrorism or formed an intention to remove President Muhammadu Buhari
from office. The intention of the organisers of the rallies to protest the
worsening security situation in the country, demand for payment of N30,000
minimum wage to workers and job creation for our army of unemployed youths etc
cannot by any stretch of imagination be said to constitute terrorism or treason
in any material particular.
No doubt, the Nigeria
Police Force has capitalized on the use of the word “revolution” to criminalise
the protests. If revolution has become a criminal offence in Nigeria why were
the leaders of the APC not charged for claiming to have carried out Nigeria's
democratic revolution which terminated the 16-year rule of the PDP in 2015? Why
was Dr Kingsley Chiedu Moghalu, the presidential candidate of the Young
Progressive Party (YPP) not threatened with treason when he asked Nigerians to
rise for revolution via the 2019 general election? Did all Nigerian senators
led by APC members not commit treason or terrorism when they spent one and a
half hours on May 14, 2019, to debate Senator Chukwuka Utazi’s timely motion on
“Bridging the gap between the haves and have-not to nip in the bud the seeds of
a looming violent revolution”?
I wish to submit, without
any fear of contradiction, that neither the Criminal Code Act nor the Terrorism
Prevention (Amendment) Act has classified the demand for a revolution in
Nigeria as a treasonable offence or terrorist activity. The statement credited
to the Police is a sad reminder of the jittery reaction of the British Colonial
invaders to series of lectures organised by the Zikists Movement in 1948 which
Comrade Edwin Madunagu has described as a major intervention at a time that
bourgeois politicians were dividing the country along ethnic lines. For
demanding revolution via public lectures the Zikists were charged with
sedition, tried, convicted and jailed. In proving the charge, Osita Agwuna was
alleged to have said that he was no longer bound by colonial laws and that he
had asked Nigerians to stop paying taxes to the British colonial regime.
Agwuna who delivered the
first lecture in Lagos, Tony Enahoro who was the chaired the lecture and Habib
Abdallah who delivered the second lecture together with Oged Macaulay was
convicted and sentenced to prison terms ranging from 6 months to 3 years. In
Director of Public Prosecutions v Dr. Chike Obi (1961) 1 NLR 186, the
respondent was charged with sedition, tried and convicted for distributing a
pamphlet in which he had said, "Down with the enemies of the people, the
exploiters of the weak and oppressors of the poor" directed at the federal
government. However, in in the case of Arthur Nwankwo v The State (1985)
N.C.L.R. 228 the provisions of the Criminal Code which provided for sedition
and seditious publications were declared illegal and unconstitutional by the
Court of Appeal on the ground that they constituted a violation of the
fundamental right of Nigerian to freedom of expression.
Since the Shehu Shagari
elected government was overthrown by a band of coup plotters led by General
Muhammadu Buhari in December 1983 the Constitution was suspended. Consequently,
Nigerians were subjected to intimidation and ruled by martial law. In May 1992,
I was one of the five civilians charged with a treasonable felony by the
Ibrahim Babangida junta for organizing protests demanding an end to military
rule in the country. The late Chief Gani Fawehinmi SAN and I who represented
ourselves and the other defendants argued that street protests were not
captured under section 41 of the Criminal Code. We also argued that it was
ironical that General Babangida and his fellow coup plotters who should be
standing trial for treason had turned round to charge us with a treasonable
felony for merely organising street protests and rallies to end a corrupt
military dictatorship in our country.
Embarrassed by our
submissions the Babangida junta abandoned the case and abandoned it. In the
circumstances, the charge was struck out for want of diligent prosecution while
we were discharged by the trial Chief Magistrate. However, some journalists and human rights
activists were not so lucky as they were convicted for being accessories after
the fact of treason by the Sani Abacha junta. But with the restoration of
democratic rule in May 1999 the Treason Offences Decree, No 29 of 1993 was
repealed.
On duty of the Police to
provide security during rallies
Under the current political
dispensation, the anti-democratic tendencies of the Peoples Democratic Party
(PDP) were regularly challenged by the Nigerian people. Incidentally, the
opposition political parties were involved in resisting the encroachment of the
fundamental rights of citizens to freedom of expression and freedom of
assembly. On September 23, 2003, the leaders of the defunct All Nigeria
Peoples’ Party (ANPP) including General Muhammadu Buhari and Dr.Chuba Okadigbo
held a rally in Kano, Kano State to protest the alleged rigging of the 2003
general election. Embarrassed by the development the Olusegun Obasanjo
administration directed the police to stop the rally. Accordingly, the Police
violently disrupted the rally and dispersed the participants with a heavy dose
of teargas. Two days later, Dr Okadigbo passed on due to breathing problems.
The ANPP blamed the federal government for Dr Okadigbos’s death which was
alleged to have arisen from the poisonous teargas used by the Police to stop
the rally.
To put an end to such crude
violation of the freedom of expression through demonstrations and rallies by
aggrieved Nigerian people the ANPP instructed our law firm to challenge the
disruption of the Kano rally. Thus, in the case of ANPP v IGP (2006) CHR 181, the plaintiff
questioned the constitutional validity of police permit as a conditionality for
rallies, marches and other public meetings in Nigeria. In her judgment
delivered on June 25, 2005, the presiding judge, Chinkere J. held that police
permit was illegal and unconstitutional as it was inconsistent with sections 39
and 40 of the Constitution and Article 11 of the African Charter on Human and
Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004.
According to the learned
trial judge, “I am therefore persuaded by the argument of Mr. Falana that by
the combined effect of sections 39 and 40 of the 1999 Constitution as well as
Article 11 of the African Charter on Human and Peoples’ Rights, the right to
assemble freely cannot be violated without violating the fundamental right to
peaceful assembly and association.” Consequently, the court granted an order of
perpetual injunction restraining the Inspector-General of Police “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 epochal decision of the
federal high court was upheld by the Court of Appeal in the case of IGP V ANPP
(2008) 12 WRN 65. The Presiding Justice, Adekeye JCA (as she then was) asked
"...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?" On the fear that a rally might
lead to a breach of the peace, her ladyship said that "our Criminal Code
has made adequate provisions for sanctions against the 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."
Happily, the Police decided
to abide by the judgment concerning the management of public protests. Hence,
in the Nigeria Police Code (issued in 2010) it is expressly stated that police
officers shall “maintain a neutral position about the merits of any labour
dispute, political protest, or other public demonstration while acting in an
official capacity.” Based on the new official policy the Police provided
security for the members of the Nigeria Labour Congress and Trade Union
Congress during the anti-fuel protests. Similarly, the Police did not disrupt
the street protests convened by the Save Nigeria Group when the late President
Umoru Yaradua was said to have been admitted in an undisclosed foreign medical
centre in 2010.
However, in 2014, in
violation of the judgment and the Police Code the Federal Capital Territory
Police Command decided to stop the daily rally held in Abuja by the Bring Back
Our Girls (BBOG) members in Abuja to remind the State of its responsibility to
free the abducted Chibok girls. But the ban was successfully challenged by the
BBOG at the Federal Capital Territory High Court through our law firm. In upholding our submissions in the
unreported case of Hadiza Bala Usman &Ors v Commissioner of Police &
Anor. (Suit No: FCT/HC/CV/1693/2014 of 30th October 2014) Aladetoyinbo J. held
that "it is wrong for the counsel to the Respondent (IGP) to insist that
the Applicants must obtain Police Permit before they can gather together for
their peaceful protests."
Given the judicial
recognition of the fundamental right of Nigerians to convene and participate in
rallies, protest marches and other public meetings for or against the
government the National Assembly was compelled to amend the Electoral Act, 2010
in March 2015. Thus, section 94 (4) of the Electoral Amendment Act, 2015 states
that“Notwithstanding any provision in the Police Act, the Public Order 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.”
In the light of the
relevant constitutional and statutory provisions and judicial authorities which
have recognised the fundamental right of the Nigerian people to convene and
participate in rallies, demonstrations and protest march the threat of the
Nigeria Police Force to stop August 5, 2019, should be withdrawn without any
further delay. Furthermore, the Inspector-General of Police, Mr Mohammed Adamu
is advised to direct the Commissioners of Police in all the states of the
federation earmarked for the protests to ensure that adequate protection is
provided for the organisers and participants as required by law.
The State Security Service
should release Mr Omoyele Sowore, one of the conveners of the protests. In the
alternative, he should be arraigned in court if there is reasonable suspicion
that he has contravened any penal statute. However, the nation’s security
agencies should stop embarrassing President Buhari who had a cause, from
2003-2014, to lead peaceful rallies to
protest election malpractice and insecurity in the country.
Finally, the attention of
security agencies is hereby drawn to that part of the judgment of the Court of
Appeal in IGP v ANPP (supra) wherein
Justice Adekeye cautioned thus:
"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 recognised 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."
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