DSS: Hounding Voices of Dissent?

The recent rearrest of the President of Nigeria Labour Congress (NLC), Comrade Joe Ajaero and the raid on the offices of one of Nigeria’s foremost human rights Civil Society Organisations, Socio-Economic Rights and Accountability Project (SERAP), has raised serious concerns about the human rights posture of the Tinubu administration. Many Nigerians, and the international community have continued to condemn in very strong terms, what most perceive as trampling on the rights and freedoms of citizens and organised dissent of government policies. Femi Falana, SAN; Emmanuel Onwubiko and Olarenwaju Suraju assess the human rights records of the Tinubu administration in the face of the these arrests, hounding and raids 

Illegal Criminalisation of Protests in Nigeria 

Femi Falana, SAN

Intimidation of Protesters by Colonial Regime 

During the colonial period, the British imperial regime banned public protests under the Public Order Ordinance. As the law did not stop aggrieved citizens from protesting against the the illegal exploitation and egregious human rights abuse committed by the British government, many citizens were charged for unlawful assembly, incitement, sedition and allied offences. But, no colonial subject was charged with treason or treasonable felony, for calling for an end of foreign domination in Nigeria.

Treason Trial of Political Opponents by Post- Colonial Regimes 

But, under the first post-colonial regime, opposition political leaders like Chief J.S. Tarka and Chief Obafemi Awolowo, SAN were charged with their associates, with treason and treasonable felony respectively. While Chief Tarka was acquitted, Chief Awolowo and a number of his political lieutenants were convicted and sentenced to various prison terms.

In the Second Republic, Mr Zanni Bukar Mandara, a  military food contractor, was charged for treason at the Federal High Court. He was alleged to have complained to some soldiers that the economy was no longer what it used to be, and that the country was drifting to a point where a change was needed. Even though he was tried, convicted and sentenced to 15 years imprisonment, the Supreme Court freed him on the ground that the Federal High Court lacked the jurisdiction to have tried him at the material time. 

Criminalisation of Protests by Military Dictators 

Apart from the trivialisation of the offence of treason, the Ibrahim Babangida military junta engaged in the criminalisation of public protests in Nigeria. For instance, the late Chima Ubani and eight other student leaders at the University of Nigeria were arrested in May 1986, and charged under the Miscellaneous Offences Decree before a Special Military Tribunal. We defended them, and ensured that the charge was dismissed in their favour. 

Following the criminal annulment of the June 12, 1993 Presidential election, the late Chief Gani Fawehinmi, SAN, late Dr Beko Ransome-Kuti and I were charged with unlawful assembly. The case was struck out.

 In June 1992, five of us, including late Chief Gani Fawehinmi, SAN and the late Dr Beko Ransome-Kuti were charged with treasonable felony in a Gwagwalada Chief Magistrate Court, for daring to organise protests against the sabotage of the political transition programme by General Ibrahim Babangida, who had wanted to metamorphose into a civilian President. Chief Fawehinmi and I who defended ourselves and our comrades, turned the case into the trial of the military officers who had toppled civilian and military governments in Nigeria.

A year later, late Chief Gani Fawehinmi, SAN, late Dr Beko Ransome-Kuti and I were charged with unlawful assembly at a Magistrate Court in Abuja, for organising a protest against the criminal annulment of the results of the June 12, 1993 Presidential election. The Magistrate Court refused our application for bail, and ordered our remand in Kuje prison. But, while we were in custody, General Ibrahim Babangida was forced to abdicate power, as many more protests took place in many parts of the country.

On November 17, 1993, late General Sani Abacha seized power and embarked on the elimination of political opponents like his predecessor and co-coupist, General Ibrahim Babangida. The first charge filed against Senator Bola Tinubu (now President of Nigeria and Commander-in-Chief of the armed forces) read thus: 

“That you Ameh Ebute; (2) Chief Polycap Nwite; (3) Rev. Mac. Onyemechi Nwulu; (4) Onyeka Amadi Okoroafor; (5) Abu Ibrahim and (6) Bola Ahmed Tinubu and others at large on the 30th day of May, 1994 at Lagos in the Lagos Judicial Division of the Federal High Court formed an intention to remove during his term of office other than by Constitutional means the Head of State of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces, General Sani Abacha as Head of State and manifested such intention by issuing a Press Statement declaring the Federal Government illegal and thereby committed an offence contrary to Section 41(a) of the Criminal Code Act 77, Laws of the Federation, 1990 and punishable under the same section.” 

Through trumped-up charges, the Abacha junta charged many serving and retired military officers with treason. Activists and journalists who exposed the fake coups were tried and convicted by military tribunals, for being accessories after the fact of treason. Ken Saro-Wiwa and eight other leaders of the Movement for the Survival of Ogoni People, were arrested for protesting against the pollution and degradation of Ogoniland by Shell producing Nigeria Limited. The environmental activists were tried, convicted and sentenced to death by a Special Military Tribunal. The junta proceeded to execute them, without awaiting the record of the proceedings of the Special Military Tribunal. 

Illegality

Former  President Olusegun Obasanjo and his Vice, Atiku Abubakar, were declared the winners of the 2003 Presidential election by  the Independent National Electoral Commission (INEC). A major opposition political party, the defunct All Nigeria Peoples Party (ANPP) decided to hold a series of rallies, to protest the rigging of the 2003 general election by the ruling party in connivance with INEC.

On the instruction of the Presidency, the Police violently disrupted the first rally that was held in Kano on September 22, 2003. The attendees of the rally, including the Presidential candidate of the ANPP,  General Muhammadu Buhari, and his Vice, Dr. Chuba Okadigbo, who had attended the rally, were dispersed with a heavy dose of teargas. In justifying the violent breakup of the rally, the Police stated that the ANPP did not obtain a Police permit. 

The ANPP and 10 other opposition political parties, challenged the constitutional validity of Police permits for rallies in Nigeria. In dismissing the defence of the Police, the trial Judge, Chinyere J. held that Police permit was inconsistent 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.

According to the learned trial Judge:“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 also 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”.

Consequently, the court proceeded to grant 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.”

The appeal against the judgement was dismissed by the Court of Appeal. Adekeye JCA (as she then was) asked “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?” 

On the fear usually expressed by the Police that a rally might be hijacked by hoodlums leading to a breach of the peace, the Court was of the view that “If, as speculated by law enforcement agents, that breach of the peace would occur, our Criminal Code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”

In his contribution to the leading judgement of the Court, Muhammad JCA confirmed that Police permit is alien to a democratic society when he reiterated that: “In present day Nigeria, clearly Police permit has outlived its usefulness. Certainly, in a democracy, it is the right of citizens to conduct peaceful processions, rallies, or demonstrations without seeking and obtaining permission from anybody. It is a right guaranteed by the 1999 Constitution, and any law that attempts to curtail such right is null and void and of no consequence”. 

Trial of Protesters for Terrorism 

In 2013, the Federal Government dispatched armed thugs to attack and disperse the BBOG members in Abuja for reminding the State of its responsibility to free the abducted Chibok girls. As if the barbaric attack was not enough, the Nigeria Police Force banned public protests in the Federal Capital Territory. The illegal ban was successfully challenged at the Federal Capital Territory High Court in the unreported case of Hadiza Bala Usman &Ors v Commissioner of Police & Anor. 

However, the Federal Government turned round to criminalise protests by charging protesters with terrorism, treason, and treasonable felony. Specifically, on June 8, 2014, the Police disrupted a peaceful rally held by the members of the All Progressives Congress at Ado, Ekiti State. Mr Niyi Afuye, the then Ekiti State Commissioner for Information and Government Affairs and 10 other protesters, were arrested and taken to Abuja.

After their brief detention, the protesters were  charged with terrorism by the Attorney-General of the Federation, Mr Mohammed Bello Adoke, SAN. As Counsel to the Defendants, we filed a preliminary objection to challenge the charge under Section 1(3) of the Terrorism Prevention Act, which exempted protest or strike. As the Federal Government had no reply to our preliminary objection, the charge of terrorism was withdrawn, while the Federal High Court dismissed it.

Trial of Protesters for Treason

On August 8, 2019, the State Security Service obtained an order of the Federal High Court to investigate Mr Omoyele Sowore, for terrorism for planning to convene a protest against the Muhammadu Buhari administration. At the end of the investigation, Mr Omoyele Sowore and Mandate were charged with treasonable felony, money laundering, and cyberstalking. 

Based on our preliminary objection against the frivolous charges, the Federal High Court struck out the counts of money laundering and cyberstalking. Even though the State Security Service had listed eight witnesses, the only one called gave evidence against the Defendants. But, under cross-examination, the witness admitted that President Muhammadu Buhari, who led the bunch of coup plotters who overthrew the civilian regime on December 31, 1983, had not been tried for treason. The witness also admitted that General Buhari had called for a revolution akin to the 2011 revolution in Egypt, which sacked the elected Mossi administration.

To prevent the defence from further taking advantage of the cross-examination of the remaining prosecution witnesses, the then Attorney-General of the Federation, Mr Abubakar Malami SAN, took over the case from the State Security Service. As the prosecution could not call any of the remaining witnesses, the case was subjected to several adjournments. The defence was compelled to apply for the striking out of the case, for want of diligent prosecution.

Having inherited the case, the current Attorney-General of the Federation, Prince  Lateef Fagbemi, SAN reviewed it and decided to file a nolle prosequi motion to terminate the trial in exercise of his powers under section 174 of the Constitution of Nigeria, 1999, as amended. Consequently, the ill-advised treasonable felony charge, was struck out by the Federal High Court.

It is therefore, curious that the Bola Tinubu administration has turned round to clamp down on radical citizens, and thereby exposed the country to unprecedented ridicule.  In order to control the protests, the governments of the Federal Capital Territory, Lagos and Ogun States filed ex parte applications before the High Courts on the eve of protests. Without paying due attention to the judgement of the Court of Appeal in the case of IGP v ANPP. In granting orders restricting the protesters to some designated centres, the Judges pretended not to know that under Section 83(4) of the Police Establishment Act 2020, it is the duty of the police to provide adequate security for protesters during rallies, public meetings or processions.

The basis for charging 10 protesters for treason and terrorism for participating in the August 2024 protests. For instance, Comrade Michael Adaramoye has been held in detained for over three weeks in the anti-robbery department of the Nigeria Police Force in Abuja, because he answers to the Police sobriquet “Lenin”. Comrades Elejo Opaluwa and Mosiu Abolaji are also detained in the same Police station for belonging to a socialist organisation that supported the protest.” In view of the possibility that the case may be turned against the Bola Tinubu administration, the Attorney-General should withdraw it without any further delay.

Conclusion 

After all, it  is public knowledge that under the current political dispensation, top military officers have repeatedly disclosed that they were under pressure from certain politicians to sack the civilian regime, and replace the same with military rule. Neither the Nigeria Police Force nor the State Security Service has ever arrested the anti democratic individuals, with a view to prosecuting them for treason, treasonable felony or terrorism.

Femi Falana, SAN