Court orders restricting protests generate knocks, kudos from legal experts

Court orders restricting #EndBadGovernance protests ignite legal debate on citizens’ rights and government power, writes ONOZURE DANIA

the ongoing nationwide #EndBadGovernance and hunger protests, which began on August 1, 2024, have continued to spark legal and societal debate in Nigeria.

The court orders before the commencement of demonstrations, which restricted protests to specific locations in Lagos, Abuja, Ogun, and Kwara states have been igniting mixed reactions among legal experts.

Justice Emmanuel Ogundare of the Lagos State High Court, Igbosere,  in his ruling of July 30, 2024, had restricted protesters to Gani Fawehinmi Freedom Park in Ojota and Peace Park in Ketu.

The decision followed an ex parte application filed by the Lagos State Attorney General and Commissioner for Justice, Mr Lawal Pedro (SAN). Similar restrictions were imposed in the Federal Capital Territory, Abuja, Ogun, and Kwara states.

But on Tuesday, August 6, 2024, Justice Sherifat Sonaike of the Lagos State High Court in Igbosere extended an earlier order restricting protesters in Lagos to the Freedom and Peace Parks in the Ojota and Ketu areas of the state.

Sonaike made the order following an application by Pedro for an extension order having complied with the pre-action protocols for preemptive remedies ordered last week by Justice Ogundare

In her ruling, Justice Sonaike expressed her satisfaction with the AG’s compliance with the orders of Justice Ogundare and ordered that the restriction of the protests to Freedom and Peace Parks in the Ojota and Ketu areas of the state be extended until full compliance with the pre-action orders.

“Pre-emptive relief, earlier granted, is hereby extended.

“The lifespan of the intended order is hereby extended until there is full compliance with the protocol. Return date shall be August 29, 2024”, Justice Sonaike said.

However, the court decisions have drawn varied responses from legal practitioners. A Senior Advocate of Nigeria, Prof. Sam Erugo, criticised the orders, questioning their legal foundation. “The facts are not available for an informed opinion, but thinking aloud along the general principles of law, those orders appear to have been made in vacuo, and consequently of doubtful efficacy,” he stated.

Erugo emphasised that court orders could not generally restrain the public without clear, specific defendants, noting, “There is no evidence that any order was served on any protester or group; the media reports are insufficient to put any party on notice.

It is arguable whether you can restrain a citizen’s movement that way; the protester simply has an obligation not to obstruct other road users but has the guaranteed right to freedom of movement.”

But Prof. Damilola Olawuyi (SAN) acknowledged the right to protest under international human rights law but equally recognised the need for restrictions in certain cases.

He stated that given the need to preserve other fundamental human rights, such as the freedom of movement, liberty, property, public safety and other essential rights of other members of society, especially the rights of those not involved in a protest, the government, as well as courts, may on an exceptional basis, impose some restrictions.

Olawuyi, nevertheless, warned against using such restrictions to undermine lawful protests.

“Protesters have the right to approach the court with evidence that protests can be conducted peacefully and legitimately in other locations.

“The courts have a constitutional duty to treat such judicial review requests fairly, promptly, and impartial manner.

“If protesters are able to satisfy the court on steps taken that make such restrictions unnecessary, then the courts as impartial arbiters should promptly remove such restrictions in accordance with the constitution and Nigeria’s international law obligations,” he said.

Human rights activist, Femi Falana(SAN), stated that campaigning for a coup is a treasonous offence, notwithstanding the fundamental human right of every Nigerian to protest against the government.

He said, “Accordingly, the right to protest is required to be exercised peacefully within the ambit of the law.

“Hence, section 83(4) of the Police Establishment Act 2020 has imposed a duty on the Nigeria Police Force to provide adequate security for citizens who may wish to participate in public meetings, rallies and protests. In many parts of the country, the police provided adequate security for the #EndBadGovernance protesters and in some cases, professionalism was glaringly on display.

“Having won the legal battle for the Nigerian people to exercise their constitutional right to protest against unpopular policies of the government, I have supported the constitutional right of people from all walks of life to exercise the right to protest.

“While we have supported the right of the #EndBadGovernance protesters, we have a patriotic duty to call on them to distance themselves from the undemocratic forces who have taken advantage of the peaceful protests to engage in violence or campaign for another military coup in the country.

“It has become necessary to point out that calling for a military coup or waving the flag of Russia, a country that is noted for supporting unconstitutional change of government in Africa, constitutes a gross abuse of the constitutional right to protest against the government of Nigeria.”

Falana continued by saying that “the legitimate protests against hardship in the land should not be turned into a campaign for an unconstitutional change of government.

“Therefore, those who are involved in the illegal campaign for another military rule are advised to stop it forthwith. Otherwise, they may be accused of engaging in the offence of treasonable felony in contravention of section 41 of the Criminal Code Act.”

Another lawyer, Joseph Otteh, described the orders as “obnoxious” and contrary to established legal principles.

Otteh, who argued that courts should safeguard constitutional rights rather than restrict them without proper justification, stated, “Orders which these courts have made are, with respect to the courts, obnoxious, and are at clear odds with both established principles of law, and the duty of courts to safeguard constitutional rights and civil freedom.”

According to him, “the use of ex-parte powers in cases like this, has, in a plethora of cases, been ruled to be abuses of adjudication authority.

“Second, the courts restrict the manner fundamental rights can be exercised without legal justification. Sec. 45(1) of the 1999 Constitution provides that the exercise of certain rights, including those of expression and association, may be restricted by a “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 or other persons.

“As far as we know, there was no law made on the basis of which the court could curtail the exercise of these constitutional rights. Had such a law (even) been made, the court would be further required to assess whether the law is ‘reasonably justifiable in a democratic society.’”

But Dr Yemi Omodele praised the court orders, stating that the states and the Federal Capital Territory ventilated their grievances in court.

“The orders were made and partially complied with. However, the protest has come and gone,” he noted, stating, “The fact that one has the right to move around does not mean you should use such right to disturb others who are not willing to move anywhere. It does not mean you should go and steal somebody’s property under the pretext of freedom of movement.

“In any event, fundamental rights are not for the purpose of causing crisis in society. Everybody has it but could be denied when one does what is contrary to the law of the land.”

On his part, Babatunde Awe found the court orders alarming and unrealistic, saying such orders are not in consonance with the realisation of the fundamental rights of citizens to expression and movement.

“If I live in Okokomaiko and my right to protest is limited to a place in Ibeju Lekki, how does such an order align with my right?”, he queried.

Awe warned that such orders exacerbate the circumstances and encourage further angst rather than the achievement of any real positives.

“It is an indication of the continued overbearing influence of the executive over the judiciary, too,” he stated.

But Imran Abdulganeey defended the court decisions, stating that, ”The court took judicial notice of the fact that the right to participate in the protest in the first instance is a matter of choice.

“The protesters shall not, in exercising their fundamental rights, infringe on the rights of other society members who are not interested in the protest.”

Citing part of the constitution, Abdulganeey said, “A cursory look at the provisions of Section 45(1) of the 1999 constitution provides that nothing in sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society.

“It is these provisions that those various courts applied and adopted to arrive at that decision.”

However, Elvis Asia, who found the orders very strange and dangerous in a democratic society, said, “These orders are an affront to the right to freedom of expression and assembly that guarantees the right to protest. There are more compelling precedents to the effect that such orders are null and void.”