Public Order Act: To be or not to be?

On December 11, 2007 the Appeal Court, Abuja Division ruled that the Public Order Act, 1990 being enforced in Nigeria is unconstitutional in a democracy.

Before that judgment, civil rights organisations and pro-democracy activists had a long battle with the police and other agencies in their bid to assert their right to free, peaceful protests. In much of the ensuing clashes, batons, teargas canisters and often, live ammunition have been deployed by the police.

Whether the protests are against a government policy on university education, fuel price increases and sundry government policies, instances of forceful dispersal by security agencies abound.

The security agents, through the governor, had been empowered under Section 1 of the Public Order Act, which stipulates that, “for the purpose of the proper and peaceful conduct of public assemblies, meetings and processions and subject to Section 11 of this Act, the Governor of each State is hereby empowered to direct the conduct of all assemblies, meetings and processions on the 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.”

The defunct All Nigeria Peoples Party (ANPP) through Lagos-based human rights activist, Femi Falana (SAN), had challenged the act and obtained a verdict of the Federal High Court in its favour. But the then Inspector General of Police Sunday Ehindero challenged the verdict in an Appeal Court. The court upheld the verdict of a Federal High Court and maintained that the act is an infraction of the fundamental human rights of persons and groups in Nigeria.

Justices Muhammed, Adekeye and Aboki took cognizance of Section 40 of the 1999 Constitution which provides for fundamental freedoms of the citizens, the court held that the Public Act is unnecessary in a civilized democracy which Nigeria has joined.

Justice Adekeye JCA (as she then was) in a notable pronouncement held while consigning police permit to the dustbin of history that “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 tread recognized 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.”

In the UK, the Public Order Act does not place a blanket ban on public processions as it provides for the sort of procession that requires license and thereby expressly protecting the right of citizens to assembly freely.

But despite the invalidation of the act, the country has witnessed more infraction of the fundamental rights to peaceful procession by security agencies. Perhaps because this is Nigeria where anything is possible.

Daily Trust gathered that there are a lot of people in government these days that tend to have a lot of hatred for their opponents in the other parties and what they would do with the law is to begin to harass them with police who might be used as a political weapon for the purpose of stopping the opponents.

The January 12 shooting of a senator in Rivers State, Magnus Abe, with what police described as ‘rubber bullet’ in a political rally and the forceful dispersal of same on the grounds of lack of police permit is a case in point.

The National Publicity Secretary of All Progressives Change (APC) Alhaji Lai Mohammed, said the ban on political rallies will not augur well for the country in the 2015 general elections, at a time when the police is expected to be neutral and professional in carrying out its duties.

He said the police was wrong to have allowed the PDP to flout the ban on 1 February, when hundreds of the party’s members thronged the Bauchi airport to welcome the new PDP Chairman Adamu Mu’azu.

He said that a video footage of the reception showed PDP supporters, cultural troops, and praise singers at the airport and surrounding the plane which carried the PDP chairman, while armed policemen at the airport looked on despite the ban, which was communicated earlier in a statement by the force spokesperson, Frank Mba, on November 6, 2013.

“The police ridicules itself and wears down its own authority when it panders to the PDP, whereas the force is being maintained by the tax payers, whether or not they belong to the ruling party,” he said.

Also, a peaceful procession by the Dino Melaye-led AntiCorruption Network to protest police handling of the Rivers State political situation was dispersed by the police using teargas canisters on Jan. 28.

Chino Obiagwu of the Legal Defence and Assistance Project (LEDAP) believes police has observed the court verdict in the breach with political consideration going by what has transpired over the years.

“Police are not known to obey the law or order. It is only when the opposition is rallying that you hear police dispersing them,” he said.

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.

On whether a bill can be sponsored in the National Assembly to amend the act, he said, “there is no country in the world where such law (Public Order Act) applies. The law has been declared void by the court and it remains void. There is nothing even the National Assembly can do about it,” he explained.

But Police Public Relations Officer Frank Mba said the police has continued to obey laws either those made expressly by parliament or judiciary in its responsibility to ensure law and order in the country.

While explaining that he is not aware that the police appealed the Appeal Court judgement, he maintained that the judgments of the courts did not oust the responsibility and constitutional powers of the police. He said the court recognises the fact that both the criminal and penal codes have ample provisions on the issue of unlawful gatherings, public processions and riots, adding that the police can proceed to deal with such acts without recourse to the Public Order Act.

“We will continue to do our job in accordance with the constitution and strike a legitimate balance between the freedom of the individual and the right to protect the collective whole,” he said.

The position of the police spokesman is shared by Esther Uzoma, the coordinator of Proactive Gender Initiative. She said the duty of the police and their constitutional responsibility to maintain public order, security and public peace was not nullified by the judgement.

“There is need to guard our democracy jealously because ‘eternal vigilance is the price of liberty,” she said.