By E. Monjok Agom
The recent protests in Nigeria, notably in Abuja, Port Harcourt, and Lagos, and the reported deployment of tear gas by police against demonstrators have ignited urgent debates on civil liberties under Nigerian law. This analysis scrutinises the constitutional and statutory frameworks governing peaceful assembly, judicial precedents, and the legality of police actions while advocating for systemic accountability.
- Constitutional Framework for Peaceful Assembly
Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as altered ) guarantees every person the right to “assemble freely and associate with other persons.” This provision is amplified by Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9, Laws of the Federation of Nigeria (LFN) 2004), which explicitly protects the right to “free assembly” under international law domesticated in Nigeria.
The Nigerian state bears a positive obligation to protect peaceful assemblies, as affirmed in All Nigeria Peoples Party v. Inspector General of Police [2008] 12 WRN 65. In this landmark ruling, the Court of Appeal declared:
“The right to demonstrate and protest on issues of public concern is a fundamental one… It is not a gift of the state; it is inherent in every citizen’s status as a free member of society.”
Courts have consistently held that restrictions on this right must be narrowly tailored and justified by imminent threats to public safety, not mere convenience or speculative risks.
Additionally, Section 39 of the Constitution, which enshrines freedom of expression, complements the right to protest, as protests inherently involve the dissemination of grievances. The Supreme Court in Director of SSS v. Agbakoba [1999] 3 NWLR (Pt. 595) 314 underscored that these rights are “interwoven” and essential to democratic governance. Justice Uwaifo famously noted:
“A protest is the audible voice of the marginalised… To silence it is to suffocate democracy itself.”
- The Public Order Act and Judicial Reforms
The Public Order Act (Cap P4, LFN 2004) historically mandated police permits for public assemblies, granting law enforcement excessive discretion. However, Nigerian jurisprudence has progressively invalidated these provisions:
- Inspector General of Police v. All Nigeria Peoples Party (ANPP) [2007] 18 NWLR (Pt. 1066) 457 (Court of Appeal):
The Court of Appeal unequivocally ruled that requiring police permits for assemblies violates Sections 39 and 40 of the Constitution. Justice Adekeye held:
“The Public Order Act, insofar as it demands permits, is a relic of colonial tyranny… The police must act as custodians, not oppressors, of civil liberties.
The court emphasised that the police’s role is to facilitate protests, not arbitrarily restrict them. - Anambra State Chapter of the Civil Liberties Organisation (CLO) v. Federal Republic of Nigeria [2013] 6 CLRN 1 (Federal High Court):
Justice Ademola declared Sections 1, 2, 3, and 4 of the Public Order Act unconstitutional, reiterating that citizens need only notify the police of a planned protest, not seek permission. This aligns with global norms under the United Nations Human Rights Committee’s General Comment No. 37 (2020), which mandates that restrictions on assemblies meet strict tests of necessity and proportionality. The Comment states:
“Peaceful assemblies… may only be restricted in exceptional circumstances, and any such restrictions must be the least intrusive means.”
These judgments render the Public Order Act’s permit system void, obligating police to protect, not obstruct, lawful protests.
- Police Use of Tear Gas: A Breach of Proportionality and Constitutional Rights
The deployment of tear gas against protesters in Abuja and Port Harcourt raises grave legal concerns. Under Nigerian law, force by law enforcement is permissible only when strictly necessary to counter imminent violence and must be proportionate to the threat.
- Violation of Constitutional Rights:
The actions contravene: - Section 34 (right to dignity, prohibiting inhuman treatment),
- Section 40 (right to assembly),
- Section 33 (right to life, as excessive force risks bodily harm).
In Nwaorgu v. Attorney-General of Imo State [2018] LPELR-44433(CA), the Court of Appeal condemned police brutality during protests, awarding damages for unlawful assault. Justice Oho lamented:
“When the state turns its weapons on its unarmed citizens, it betrays the very essence of its existence.”
- International Standards*:
The UN Basic Principles on the Use of Force and Firearms (1990) mandate that non-violent crowds should not face tear gas or batons. Principle 14 emphasises:
“Law enforcement officials shall not use firearms except in self-defence or defence of others against imminent threat of death or serious injury… and only when less extreme means are insufficient.” - Contempt of Judicial Authority:
By enforcing a permit regime already invalidated by courts, the police disregard binding precedents, undermining the rule of law. Justice Niki Tobi warned in A.G. Lagos State v. A.G. Federation [2003] 12 NWLR (Pt. 833) 1:
“A judiciary whose orders are ignored is a corpse… and a nation that tolerates such ignominy is a graveyard of justice.”
- Judicial Remedies and Pathways to Accountability
Affected individuals and civil society organisations may pursue redress through:
- Fundamental Rights Enforcement Applications:
Under Order II of the Fundamental Rights (Enforcement Procedure) Rules 2009, victims can seek injunctions, declarations, or damages for rights violations. The High Court’s expansive jurisdiction under Section 46(1) of the Constitution facilitates swift relief. In Abacha v. Fawehinmi [2000] 6 NWLR (Pt. 660) 228, the Supreme Court affirmed:
“The doors of justice must remain perpetually open to those whose rights are trampled upon by state power.” - Public Interest Litigation:
Organisations like the Socio-Economic Rights and Accountability Project (SERAP) have successfully challenged state repression. In SERAP v. Federal Government [2016] 15 NWLR (Pt. 1535) 433, the court mandated transparency in security sector expenditures, illustrating the judiciary’s role in checking executive overreach. - Criminal Prosecutions:
Officers responsible for excessive force may face charges under the Criminal Code Act (Cap C38, LFN 2004) for assault or homicide. The Police Act 2020, though progressive on paper, requires rigorous enforcement to deter impunity.
- Systemic Challenges: Bridging the Gap Between Law and Practice
Despite progressive jurisprudence, Nigerian authorities frequently disregard court rulings under the guise of “national security.” The 2020 #EndSARS protests exemplified this dissonance, where judicial orders to investigate police brutality were ignored.
- Human Rights Reports:
Amnesty International’s 2021 Report on Nigeria documents recurrent police violence against protesters, noting:
“The Nigerian police have weaponised tear gas and live ammunition to suppress dissent, often targeting young activists demanding accountability. - Legislative Reforms:
The National Assembly must repeal or amend the Public Order Act to reflect constitutional and judicial standards. A 2022 draft bill proposing a “Notification System” for protests remains pending, underscoring legislative inertia. Professor Chidi Odinkalu, former NHRC Chairman, remarked:
“A law that criminalises protest is a law that criminalises citizenship… Nigeria’s legislature must choose: democracy or dictatorship.”
Conclusion: Upholding the Rule of Law in the Face of Repression
The tear-gassing of protesters in Abuja, Port Harcourt, and Lagos constitutes is without a doubt a flagrant violation of Nigeria’s constitutional order and judicial authority. Courts have unambiguously affirmed that peaceful assembly cannot be curtailed by obsolete statutes like the Public Order Act.
To forestall further erosion of civil liberties, stakeholders must:
- Enforce Compliance: The National Human Rights Commission (NHRC) must leverage its mandate to investigate and prosecute police misconduct.
- Legislative Action: Expedite passage of the Public Order Reform Bill to codify notification-based protests.
- Judicial Activism: Courts should adopt punitive measures, including contempt charges, against agencies flouting rulings.
As articulated in ANPP v. IGP [2007] 18 NWLR (Pt. 1066) 457:
“A democracy without dissent is a dictatorship in disguise.”
Nigeria’s commitment to constitutionalism hinges on translating judicial ideals into tangible protections for its citizens.
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References
- All Nigeria Peoples Party v. Inspector General of Police [2008] 12 WRN 65
- Director of SSS v. Agbakoba [1999] 3 NWLR (Pt. 595) 314
- Inspector General of Police v. ANPP [2007] 18 NWLR (Pt. 1066) 457
- Anambra CLO v. FRN [2013] 6 CLRN 1
- Nwaorgu v. AG Imo State [2018] LPELR-44433(CA)
- SERAP v. Federal Government [2016] 15 NWLR (Pt. 1535) 433
- Abacha v. Fawehinmi [2000] 6 NWLR (Pt. 660) 228
- UN Basic Principles on the Use of Force and Firearms (1990)
- Fundamental Rights (Enforcement Procedure) Rules 2009
E. Monjok Agom
8th April, 2025
