The International Human Rights Framework on the Right of Peaceful Assembly
Nigeria is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Nigeria is not a party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Nigeria is a State Party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Nigeria is a party to the 1998 Protocol on the African Court on Human and Peoples' Rights, but has not allowed the right of petition to the Court by individuals and non-governmental organisations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is entitled to assemble freely and associate with other persons.
Section 45 permits these rights to be restricted in the interests of defence, public safety, public order, public morality or public health, or to protect the rights or freedoms of others.
The 1979 Public Order Act is the primary legislation regulating assemblies in Nigeria.
In 2007, the Court of Appeal quashed several sections of the Public Order Act; the Court’s decision, however, has not yet been reflected in legislative changes. Notification is no longer required, unless the organisers wish to receive police protection. In its 2007 judgment in All Nigeria Peoples Party v. Inspector-General of Police, Justice Adekeye held that:
The Public Order Act should be promulgated to complement 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 trend 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 (italics added for emphasis).
The surviving provisions in Section 1 of the Public Order Act empower a State Governor to prescribe the route by which and the times at which any procession may pass. In addition, while the use of uniforms is explicitly permitted by Section 7 of the Act, the Commissioner of Police in the relevant state may nonetheless prohibit it if he or she is of the opinion that wearing it is offensive or is likely to provoke a breach of the peace.
Views of Civil Society
As CIVICUS has reported, since 8 October 2020, Nigerian youth have been protesting against police brutality across the country, in particular by the Special Anti-Robbery Squad (SARS) unit of the Nigerian police. The protests erupted after a video of SARS officers dragging people, and apparantly shooting one, went viral, and the protests, emboldened by the use of social media, came to embrace wider grievances of bad governance and a lack of accountability in the country.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Section 102 of the 1960 Criminal Procedure Code (applicable in the northern states) permits the use of force by police officers to disperse unlawful assemblies or riots. The extent of the force allowed to achieve this is, however, not defined.
Section 73 of the 1916 Criminal Code (as amended; generally applicable in the southern states) allows "all such force as is reasonably necessary" to overcome resistance to dispersal.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Section 73 of the 1916 Criminal Code holds that a police officer dispersing an unlawful assembly or riot "shall not be liable in any criminal or civil proceeding for having, by the use of such [reasonably necessary] force, caused harm or death to any person".
Police Force Order 237, titled Rules of Guidance in the Use of Firearms by the Police, stipulates as follows:
A police officer may use firearms when "necessary to disperse rioters or to prevent them from committing serious offences against life and property". Further, 12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation before the use of firearms can be justified.
Paragraph 6 of the Order provides:
Fire should be directed at the knees of the rioters. Any ringleaders at the forefront of the mob should be singled out and fired on. Only the absolute minimum number of rounds necessary to suppress the riot should be used. NEVER UNDER ANY CIRCUMSTANCES WILL WARNING SHOTS BE FIRED OVER THE HEAD OF RIOTERS.
There provisions do not comply with international law.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2019 Concluding Observations on Nigeria, the Human Rights Committee expressed its concern
that the Constitution allows for a broad use of lethal force, including for the defence of property and that the provisions of the Code of Criminal Procedure, the Administration of Justice Act, and Police Order 237 authorize the use of force without adequately restricting the nature of the force and setting out the principles of necessity or proportionality.
The Committee was further concerned
about allegations of the excessive use of force against demonstrators, including the alleged killing of more than 150 members and supporters of the indigenous people of Biafra during Operation Python Dance, on the occasion of non-violent gatherings between August 2015 and November 2016; and the alleged killing of 350 supporters of the Islamic Movement in Nigeria in response to their barricading of roads blocking the passage of a military convoy in December 2015.
While noting that some investigations had been initiated, the Committee regretted the lack of information about the outcome of those investigations and recommendations, including the punishment of the perpetrators and the reparations granted to the victims.
In its 2015 Concluding Observations on Nigeria, the African Commission on Human and Peoples' Rights welcomed "the pronouncement of the Court of Appeal, which enables citizens to freely assemble without seeking prior police permit, as was previously required under the Public Order Act".
Views of Civil Society
On 21 October 2020, Amnesty International said that at least 12 people had been killed the previous day at Alausa and Lekki Toll Gate in Lagos and hundreds of others were severely injured when police and soldiers opened fire with live ammunition at unarmed protesters. Amnesty said that CCTV cameras had been dismantled to prevent the collection of evidence.
According to Freedom House's 2019 report on Nigeria:
The right to peaceful assembly is constitutionally guaranteed. However, federal and state governments frequently ban public events perceived as threats to national security, including those that could incite political, ethnic, or religious tension. Rights groups have criticized federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups like the IMN [Islamic Movement of Nigeria] and the separatist group Indigenous People of Biafra (IPOB). In October 2018, soldiers responded to rock-throwing protesters from the IMN in Abuja, who were protesting the continued detention and charges against Ibrahim el-Zakzaky, by opening fire and killing as many as 45 people. In response to criticism of the shootings, the army’s official Twitter account posted a video of US president Donald Trump arguing — in the context of US border security — that stones thrown at the military should be considered firearms. President Buhari declined to condemn the shootings and the military continued to defend the actions of its security forces through the end of the year.