By Hameed Ajibola Jimoh Esq.

The current development or emergence of criminalities and the abuse of the right to freedom of expression guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- in the #ENDSARS protest has called for this piece to re-echo the categorization of protests under the Nigerian human rights law, in my respectful view, hence, this topic.

It is no doubt that in Nigeria, the laws recognise and permit protest which aims at showing public’s disapproval and or reaction to government’s policies or laws made in such a manner that same does not destroy the peaceful co-existence and or established sovereign status of the nation. Some persons are therefore likely to assume that the right to protest is absolute and unrestricted and this issue has called for this short piece so that once again, the Nigerian public needs to understand that protests under the Constitution are categorized into two main categories: the lawful; and the unlawful protest. Lawful protest, in my respectful view is a protest that conforms with the laid down procedures under the Constitution while the unlawful protest is that which is practised contrary to the provisions of section 45(1) of the Constitution. This is to emphasise that the right to expression by protest is not an absolute right rather, it is restrictive and this is what the protestants ought to know and there are some lawyers among these protestants who are supposed to in my humble view, educate and sensitise these angry and emotional youths as to the limits set down by law as duties to their right to protest so that the use of this right to protest does not bring the nation down in the heat of the hot temper and uncontrolled emotional and sentimental (and likely sponsored tribal or ethnical or political) reactions, rather, some of these lawyers as acclaimed human rights activists, with due respect to them, have only vowed to render free legal representation to any arrested protestant/protester without putting the interest of the nation in mind and without understanding that they are also to ensure the preservation of the good order of the nation and that they are also Ministers in the temple of justice! Hence, Rule 1 of the RPC provides thus ‘‘A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner’. Furthermore, lawyers are officers of court. For instance, Rule 30 of the RPC provides thus ‘A lawyer is an officer of the court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely; affect the administration of justice.’.

Furthermore, I must also emphasise that the word ‘protest’ has been defined by the Merriam Webster online Dictionary among other meanings (but relevant to this topic) as ‘the act of objecting or a gesture of disapproval, especially: a usually organized public demonstration of disapproval’. From the above definition of the dictionary, it is clear that ‘protest’ is ‘public’ and it is a form of ‘demonstration’ towards ‘objection’ or ‘gesture of disapproval’.

Furthermore, on what is a lawful protest and that that is unlawful protest, (however, I must first state that there is no such right in our Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution known as right to ‘protest’ rather, the right to protest emanates from the citizen’s right to of expression guaranteed under section 39(1) of the Constitution), the lawful protest is categorized under section 39(1) of the Constitution which provides thus ‘‘Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference’. While a protest that is unlawful is provided in section 45(1) of the constitution which provides a derogation from this Constitutional right to freedom of expression (i.e. inclusive of the right to protest) thus ‘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’. (Underlining is mine for emphasis). I must frankly state here that as soon as a protest becomes or is conducted unlawfully, then, the government shall become reasonably justified in a democratic society to intervene to curb any excess in the use of such right to expression and or protest. This derogation or limitation or restriction is what our protesting but commended youths must know and which lawyers among them (or ready to offer free legal services to) must sensitise them about.

Furthermore, having regards to the emergence of criminalities in the current protest, it is my humble submission that the said protest has become (in this circumstance and having regard to the loss of lives and properties being occasioned in the protest) unlawful and therefore the government has become justified in this democratic society to explore means in the interest of 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 by curbing and or preventing any further abuse of the constitutional right to freedom of expression/protest! Some governments at the State levels have declared curfew in their territories and this step in my humble view, is democratically justifiable in this circumstance. Therefore, I must further submit respectfully that the unlawful protest has overtaken the event of the lawful protest so that no more protest should be permitted by the government in this instance!

Therefore, I further submit that any attempt by any person geared towards the destruction of the peaceful co-existence and to implant division in the heart of Nigerians is not only an abuse of the right to freedom of expression (and any other human rights) guaranteed under the Constitution but also criminal or an attempt to commit offence by which section 35 (1) (c) of the Constitution shall become relevant and applicable to curb such likelihood of deviation. The said section 35(1) (c) of the Constitution provides thus ‘35. —(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law— (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;’ (Underlining is mine for emphasis).

Furthermore, it must be noted by the protesting youths and or persons that the provisions of the Constitution is not interpreted by a Court of law in isolation rather, the entire provisions of the Constitution are construed and interpreted by the Court in deriving the appropriate meanings and or inferences from the Constitution. Therefore, the grant of a right to protest also inputs the obligation of certain duties jurisprudentially on such protesting persons and their failure to fulfill such obligations and or duties cannot be hung on defence of human right to freedom of expression or right to peaceful protest. The burden of proof therefore, lies on such persons to prove to the court of law at the appropriate time that what they carried out was ‘peaceful’, however, such protesting persons must bear in mind that they are likely to be parties in crimes and or conspirators where a crime is committed in the course of utilization of their right and then the right would have been either abused or misused. For instance, in the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC). v. ADMIRAL MURTALA NYAKO & ORS (CONSOLIDATED) (2011) LPELR-CA/A/117/2011, the Court of Appeal of Nigeria held thus ‘INTERPRETATION OF STATUTES – CONSTITUTION: Whether provisions of the Constitution should be interpreted in isolation or not. “The law is settled that the provisions of the Constitution should not be interpreted in isolation but rather along with other related and relevant provisions thereof which assist in achieving the object intended by the framers. For instance, in the case of P.D.P. v. INEC. (1999) 7 SC. (Pt. II) 30, (1999) 11 NWLR (626) 200 at 249, Uwais, CJN had pointed to what is required to be done in interpreting the provisions of a Statute or Constitution as follows:- “It is settled that in interpreting the provisions or Section of a Statute or indeed the Constitution, such provisions or Sections should not be read in isolotion of the other parts of the Statute or Constitution, In other words, the Statute or Constitution should be read as a whole in order to determine the intendment of the makers of the Statute or Constitution.” See also OJUKWU v. OBASANJO (2004) 7 SC. (Pt. II) 117 at 124.” Per GARBA, J.C.A. (P.48, Paras.C-G). The Court further held thus ‘COURT – DUTY OF COURT: The duty of the court where the provisions of a Statute or Constitution are clear. “Similarly, the law is also well known that where the provisions of a Statute or Constitution are clear and unambiguous, the duty of the court would simply be to give them their plain and ordinary meaning since the words used best say the purport of the provisions. The only caveat is that where giving plain and ordinary meaning would result in an absurdity, giving the peculiar facts and circumstances of a case. RE:OLAFISOYE (2004) 1 SC (pt. II) 27 at 60. OJUKWU v. OBASANJO (supra) at page 124. AGBAREH v. MIMRA (2008) 2 MJSC. 134, SHEHM v. GOBANG (2009) 6 MJSC (pt. II), 162. In addition, in the interpretation of constitutional provisions, all the accepted canons or rules of interpretation would be employed and would not abate in the effort to get at what the aim and intent of provisions are in the context of the facts to which they are to be applied. See: F.R.N. v. OSAHON (2006) ALL FWLR (312) 1975 at 2001, LEMBOYE v. OGUNSUJI (1990) 6 NWLR (155) 210. It is also settled law that the provisions of the Constitution are to be interpreted literally and liberally particularly where they admit of no ambiguity.” Per GARBA, J.C.A. (P.49, Paras.A-F). Finally, relevant to this discourse too, the Court held thus ‘7. COURT – DUTY OF JUDGE: Duty of Judge when interpreting the Status or Law “The duty of a judge is to expound the law and declare it to be what it is. A judge is not a propagator of public policy. See IN RE MIRANS, Ex PARTE OFFICIAL RECEIVER (1891) 60 L.J.REP. (N.S.) Q.B.399 where CAVE, J. said thus: “Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.” HON. JUSTICE ADEREMI, JSC, cautioned judges in OBI V. INEC (supra) at 643 as follows: “The power of interpretation must be lodged somewhere and the custom of the Constitution has lodged it in the Judges. If they are to fulfill their functions as Judges that power could hardly be lodged elsewhere. But, justice according to law which any good Judge must ensure he dispenses at all times, demands that even when he (the Judge) is seen to be free by the enormity of the power conferred on him, he is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness or what colouration a piece of law should take. The Judge must always draw his inspiration from consecrated principles. The next question that follows, is, what are these principles? Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meanings without any colouration. It is true that courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counseling. The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the Statute. If at the end of the interpretative exercise carried out on the provisions of Statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy. That will not be healthy for the development of the law and its administration.” Per Adumein, J.C.A. (Pp.130-132, Paras. G-B).

Therefore and finally, it is my humble view and submission that the protesting youths must continue to carry out their protest in such as a way and or manner as allowed by law and democracy as no reasonable government would permit disorderliness, criminality and or abuse of human right or deviation in any guise and the onus or the burden of proof would lie on such protestants to prove at the appropriate time that they have all the while been within the limits set by laws. Also, the Nigerian lawyers that have vowed to render free legal services to any protesting person arrested and or detained should not wait until there is an arrest and or possible detention before they act! Lawyers hold the professional and ethical duties as Ministers in the temple of justice to duly and legally give legal and professional counsel/advice (especially in such a way that would not permit arrest and or detention, as prevention is better than cure) to their clients or prospective clients and the societies in such a way that the public are not mislead and or misguided. Also, lawyers must remember that the same law that governs the society governs them too as lawyers and nothing says that lawyers when acted criminally are absolved from any criminal liability! Therefore, they must be well guided and act within the bounds of the law. See: Rule 15 of the RPC. Finally, I humbly submit that both the government and the protestants have the duties to maintain law and order that keeps Nigeria progressive. Also, united we stand but divided we fall! Nigeria and Nigerians shall continue to rise and not fall by God’s grace!

God bless the Federal Republic of Nigeria! God bless the Nigerian citizenry!

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