POLICE PERMIT FOR RALLIES IS ILLEGAL by Femi Falana SAN A good read!! thenationonlineng.net/new/police-permit-for-rallies-illegal/ ‘Police permit for rallies illegal’ •What the law says, by Falana Lagos lawyer Femi Falana (SAN) has said that the police do not have the power to issue permit for rallies and public meetings. Besides, the police are not competent to cancel any such public meeting or rally without the authority of the governor of a state, the rights activist said yesterday in a statement issued in Lagos. He said only the governor of a state is vested with the power to issue permit for rallies or public meeting under the laws of the country. Falana’s statement is titled “Police permit not required for rallies in Nigeria”. His main point is that the right to hold rallies or public meetings is a fundamental right of every Nigerian – to freedom of association, assembly and expression as enshrined and guaranteed in the Constitution. Falana was apparently reacting to the smashing of a rally convened in Rivers State two weeks ago. The police used tear gas to disperse a university lecturers’ protest called by the Academic Staff Union of Universities(ASUU), among other infringements. He noted that in justifying the suppression of the Port Harcourt rally, the Rivers State Commissioner of Police, Mr. Mbu Joseph Mbu, claimed that the rally was unauthorised, as the conveners did not obtain police permit. Falana said since the disruption of public meetings and rallies was an infringement on the fundamental right of Nigerians to freedom of association, assembly and expression, it is pertinent to draw the attention of the authorities to the state of the law on public meetings. He said: “Under the Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004, the power to regulate public meetings, processions and rallies in any part of Nigeria was exclusively vested in governors. “Thus, by virtue of Section 1 of the Act, the Commissioner of Police or any other police officer could not issue a licence or permit for any meeting or rally without the authority of the governor. In other words, no police officer is competent to issue a permit for holding any public meeting or rally or cancel any such public meeting or rally without the authority of the governor of a stat,” he said. To buttress the requirement of the law Falana cited a case involving All Nigeria Peoples Party (ANPP) and others against the Inspector General of Police in 2006. He said the plaintiffs, being members of a registered political party, requested the defendant, the Inspector-General, by a letter dated May 21, 2004 to issue police permits to their members to hold unity rallies throughout the country to protest the rigging of the 2003 elections, but the request was refused, adding that there was a violent disruption of the rally organised in Kano on September 22, 2003 on the grounds that no police permit was obtained. He said the party filed a suit at the Federal High Court against the Inspector-General of Police, where it challenged the constitutional validity of police permit under the Public Order Act and the violent disruption of the rally. The court declared that the police was not competent to issue permits for rallies. Falana said the police (defendants), in defending their action, contended that the conveners of the rally did not obtain a permit but the trial judge dismissed the contention. “In dismissing the contention of the police, the trial judge, the Honourable Justice Gloria Chinyere, stated inter alia: “The gist of the provision in Section 1 of the Act is that the governor of each state is empowered to direct the conduct of all assemblies, meetings and processions on public roads or places of public resort in the state and prescribe the route by which and times at which the procession may pass. Persons desirous of convening or collecting any assembly or meeting or of forming a procession in any public resort must apply and obtain the licence of the governor. The governor can delegate his powers to the Commissioner of Police of the State or to other police officers. Persons aggrieved by the decision of the Commissioner of Police may appeal to the Governor and the decision of the Governor shall be final and no further appeal shall lie there from.” “On the inconsistency of police permit 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 the learned trial judge said: “In my view, the provision in Section 40 of the Constitution is clear, direct and unambiguous. It is formulated and designed to confer on every person the right to assemble freely and associate with other persons. 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. I agree with Mr. Falana that violation can only be done by the procedure permitted by law, under Section 45 of the Constitution, in which case there must be a state of emergency properly declared before these rights can be violated. “I also agree with Mr. Falana that the criminal law is there to take care if protesters resort to violence in the course of demonstration and that once the rights are exercised peacefully, they cannot be taken away. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society. It is inconsistent with the provisions of the 1999 Constitution. In particular, sections 1(2),(3),(4),(5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency, they are void. I hereby so declare.” Falana stated that the court, after declaring the provisions of the Public Order Act, which require police permit for public meetings and rallies illegal and unconstitutional, the Federal High Court proceeded to grant four other reliefs to the plaintiffs, including an order of perpetual injunction restraining the defendant (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 organising or convening peaceful assemblies, meetings and rallies against unpopular government measures and policies.” Falana said that the Inspector general of Police, dissatisfied with the judgment of the Federal High Court on the issuance of police permit, appealed to the Court of Appeal and that upon hearing the case, the Justices of the Court of Appeal unanimously affirmed the judgment of the Federal High Court. “With respect to the powers of governors to authorise the issuance of permit for holding public meetings and rallies in their state, Olufunmilayo Adekeye JCA (as she then was) had this to say: “On a proper perusal of the provisions, particularly Section 1 subsection 1-6, and sections 2-4, there is no where the name of the Inspector General is mentioned in connection with the issuance of permit for the purpose of conducting peaceful public assemblies. Such application is to be forwarded to the Governor within 48 hours of holding such. The Governor may delegate his powers under the Act to the Commissioner of Police of the State or any superior police officer of a rank not below that of a Chief Superintendent of Police as applicable to this case in hand.” “On the fundamental right of Nigerian citizens to assemble freely and protest without licence or permit, Adekeye JCA proceeded to hold as follows: “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 or 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…Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. 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 recognised and deeply entrenched in the system of governance in civilised 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 consigning police permit to the dustbin of history, Falana explained that the Court of Appeal relied on the case of New Patriotic Party v. Inspector-General of Police, Accra (1992-1995) GBR 585 where the Supreme Court of Ghana observed that: “Statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permit is the brain child of the colonial era and ought not to remain in our statute books.” He said that it was in line with the rule of law that the IGP, Mr. M. D. Abubakar, directed all police officers to comply with the verdicts of both the Federal High Court and the Court of Appeal by recognising the fundamental right of Nigerians to assemble freely and protest without harassment. “Hence, in the Nigeria Police Code of Conduct launched at Abuja on January 10, 2013, it is stated that police officers shall ‘maintain a neutral position with regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity; not make endorsement of political candidates, while on duty, or in official uniform.” Falana urged the Rivers State Commissioner of Police and other Police Commissioners to desist from cancelling or disrupting political meetings and rallies convened by Nigerians in exercise of their freedom of association and assembly – in view of the aforesaid judicial pronouncements on the fundamental right of Nigerians to protest peacefully without police permit and as recognised by the Inspector-General of Police and as espoused in the Nigeria Police Code of Conduct. “Incidentally, the Honourable Justice Olufunke Adekeye (Rtd) of the Supreme Court, who delivered the historic judgment of the Court of Appeal which confirmed the illegality of police permit is now a member of the Nigeria Police Service Commission. “We have no doubt that the respected Justice will rightly advise the Nigeria Police Force to stop the illegal and contemptuous practice of insisting on the issuance of police permit for political meetings and rallies in Nigeria,” Falana added.
Posted on: Sat, 25 Jan 2014 00:35:03 +0000
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