Femi Falana (SAN) has faulted the claim of the Attorney-General of the Federation and Minister of Justice Lateef Fagbemi (SAN) that the minors involved in the #EndBadGovernance protest were properly charged before the Federal High Court in Abuja.
Falana says that the Federal High Court does not have exclusive jurisdiction to try treason and related offences and even if there was a reasonable suspicion that the minors committed treason they ought to have been arraigned instead in a Family Court pursuant to section 149 of the Child’s Rights Act.
In a statement titled, “ILLEGALITY OF CHARGING PROTESTERS WITH TERRORISM AND TREASON,” Falana reviewed the attempted criminalization of peaceful protests in Nigeria by what he called “a government that is completely intolerant of criticism in a democratic society”.
He noted that by the provision of Sections 39 and 40 of the Constitution as well as Articles 9 and 10 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 2004, the fundamental rights of Nigerian citizens to assemble and protest against unpopular policies of governments are guaranteed.
Falana said despite these provisions and the decision of the court of appeal, the Nigerian lawmakers have ignored the directives to amend the Public Order Act to facilitate the enjoyment of the fundamental right to peaceful protests by aggrieved citizens.
According to Falana, the police in breach of the right to protest also killed not less than 22 protesters by the end of the recent protest.
The senior advocate also touched on the evidence of the police and submitted that the police prosecutor ought to have known that it is not a criminal offence to waive a foreign flag in Nigeria.
He concluded that it is crystal clear that the Federal Government set out to use the case of the 130 protesters to discourage Nigerians from protesting against the harsh living conditions and since the plan boomeranged, the Federal Government should be advised to appreciate that charging protesters with terrorism, treason, treasonable felony, and allied offences will not cow Nigerians to submission.
Falana also advised the police to henceforth comply with the law by providing adequate security for protesters as this is the only means of ensuring that protests are conducted in a peaceful and civilised manner within the ambit of the law.
READ THE FULL STATEMENT BELOW:
ILLEGALITY OF CHARGING PROTESTERS WITH TERRORISM AND TREASON
By Femi Falana SAN
Introduction
Last week, President Bola Tinubu ordered the immediate termination of the treason charge against 119 protesters standing trial for treason arising from the August 1-8, 2024 protests against bad governance and hardship in the country. Consequently, the Attorney-general of the Federation, Mr. Lateef Fagbemi SAN applied for the withdrawal of the charges. Since there was no objection from the defence counsel, the case was struck out by Justice Obioma Egwatu. It is pertinent to review the attempted criminalization of peaceful protests in Nigeria by a government that is completely intolerant of criticism in a democratic society.
Right of citizens to protest
The fundamental rights of Nigerian citizens to assemble and protest against unpopular policies of governments are guaranteed by Section 39 and 40 of the Constitution as well as Articles 9 and 10 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 2004. In the case of the Inspector General of Police v All Nigeria Peoples Party (2008) 22 WRN 65, the Court of Appeal declared police permit for rallies illegal and unconstitutional and directed the National Assembly to amend the Public Order Act to facilitate the enjoyment of the fundamental right to peaceful protests by aggrieved citizens.
While the National Assembly ignored the directive of the Court of Appeal, the police and other security forces intensified the infringement of the right of Nigerians to protest against governments and other public authorities. However, the right to protest by Nigerians was statutorily protected in the 2015 Amendment of the Electoral Act 2010. Furthermore, section 83(4) of the Police Establishment Act 2020 has imposed a duty on the Nigeria Police Force to provide adequate security for protesters during rallies, meetings and protests.
Breach of the right to protest against bad governance
In a brazen violation of the right of Nigerians to assemble and freely voice out their views on bad governance and rising cost of living in the country, the Federal Government and several state governments embarked on a campaign of calumny against the organisers of the August 2024 protests. When the vicious campaign did not achieve its dubious objective, the Federal Government threatened to deal ruthlessly with the organisers of the protest. Out of sheer desperation, the Lagos and Ogun states governments as well as the federal capital territory administration surreptitiously secured ex parte orders to stop the protest.
For having the temerity to participate in the protest, the police and the armed forces shot at many unarmed protesters. At the end of the protest, not less than 22 protesters were killed. Thus, the deliberate refusal of the police to provide adequate security for the protesters and the unwarranted killing of some of the protesters led to the violence that marred the peaceful protests in some states.
However, before the protest was called off, President Bola Tinubu said that the Federal Government had heard the protesters loud and clear and would enter into dialogue with the leaders. Notwithstanding the presidential declaration, the police turned round to commence the prosecution of the over 2,000 protesters that were arrested in several states.
Criminalization of protest
Even though charges were filed against a number of protesters in some state capitals, the Nigeria Police Force decided to arraign 130 protesters including 29 minors on 10 counts, including treason, incitement to mutiny by urging the military to remove President Bola Tinubu and other related charges before the Abuja judicial division of the Federal High Court. Notwithstanding that section 2(4) of the Terrorism Prevention Act 2022 states that a protest, demonstration or stoppage of work is not a terrorist act, the police sought and obtained an ex parte order to detain the suspects for 60 days for the purpose of investigating them for alleged involvement in terrorism.
Alhough the police had secured an order to detain the suspects for 60 days, they were held for 92 days before they were arraigned in the Federal High Court. Among the suspects were 29 children who were malnourished and dehydrated during their arraignment. Owing to hunger and exhaustion in the congested court room, four minor defendants collapsed and they were rushed to a hospital.
Illegal arraignment of children in the Federal High Court
In 2001, Nigeria ratified the United Nations Child’s Rights Convention and enacted the Child’s Rights Act in 2003. We have confirmed that the 36 states of the federation have adopted and enacted the legislation. Thus, under the Child’s Rights Law applicable in each State, child offenders under the age of 18 years cannot be charged in the Federal High Court or State High Court but in the Family Court.
The Attorney-General of the Federation and Minister of Justice, Mr. Lateef Fagbemi SAN, was reported to have said that the minors were properly charged before the Federal High Court because the Constitution makes it clear that the Federal High Court has jurisdiction in matters related to treason and related offenses. With respect, the Federal High Court does not have exclusive jurisdiction to try treason and related offences.
Even if there was a reasonable suspicion that the minors committed treason they ought to have been arraigned in a Family Court pursuant to section 149 of the Child’s Rights Act. But contrary to the Child’s Rights Act applicable in the Federal Capital Territory, the minors were charged with treason at the Federal High Court after they had been detained in the midst of hardened criminal suspects in the anti robbery detention facility in Abuja. Even though they pleaded not guilty to the charge, the arraignment of the minors is illegal in every material particular.
Phoney evidence to prove treason charge
It is trite that under the Penal Code and Criminal Code, treason is committed by anyone who levies war against the state to intimidate the President or a State Governor or who conspires to levy war against the state. The charge of treason filed by the police did not allege that the suspects raised any war or conspired to levy war against the President and State Governors. The main offence allegedly committed by the suspects arrested is that they displayed the Russian flag during the protest. A tailor who was sewing the flag was arrested by the police.
The police Prosecutor ought to have known that it is not a criminal offence to waive a foreign flag in Nigeria. Hence, the flags of the United States, United Kingdom, France, Germany and other European countries are hoisted by the majority of hotels in Nigeria while churches hoist the flag of Israel based on the erroneous belief that it is a Christian country.
Seven Polish students were arrested for taking photographs during the protest. They were going to be charged with espionage to give the impression that the protests were instigated by foreign interest groups. The students have since been released when it was confirmed that they are taking part in an exchange programme at the Bayero University, Kano.
As if such embarrassment was not enough, Comrade Michael Adaramoye was charged with treason because he answers to the sobriquet “Lenin”. Comrades Elejo Opaluwa and Mosiu Abolaji were equally charged with treason for belonging to a socialist organisation that supported the protest. Povey was charged with treason because he sells socialist books in a bookshop at the Secretariat of the Nigerian Labour Congress.
In a total abuse of prosecutorial powers the police had wanted to prove the grave charge of treason evidence with two fire extinguishers, two prepaid meters, 76 Russian flags and the statements of the defendants. During the investigation the police claimed that it had evidence of
the billions of Naira with which a British national, Andrew Wynne (a.k.a. Andrew Povich) had funded the protest. Even though Mr. Whyne was declared wanted and charged for treason in absentia, the proof of evidence does not refer to the billions of Naira allegedly spent by him on the protest.
Trivialisation of treason in Nigeria
It is often forgotten that after the military conquest of Nigeria, the British colonial regime imposed the Criminal Code and Penal Code on the southern and northern protectorates respectively. The offences of treason and treasonable felony were set out in both Codes. But the imperial regime never charged any of the “natives” with treason or treasonable felony for calling for an end to colonialism. Even when the Zikists called for a revolution in the course of a 1948 lecture they were only charged with sedition, tried, convicted and sentenced to three years imprisonment.
But the first civilian regime charged J.S. Tarka and his political lieutenants with treason. They were discharged and acquited. Chief Obafemi Awolowo and his political associates were charged with treasonable felony, convicted and sentenced to various terms of imprisonment. Since then, the country has witnessed a complete trivialisation of treason in the hands of civilian and military wings of the Nigerian ruling class.
The Ibrahim Babangida military junta went to the ridiculous extent of charging five of us with treasonable felony for calling for an end to military rule. Of course, the late Chief Gani Fawehinmi SAN and I, turned the case into the trial of General Babangida and his armed colleagues who had sacked the elected Shehu Shagari administration on December 31, 1983. The junta had no choice but to abandon the frivolous charge.
Babangida’s comrade-in-arms, General Sani Abacha, made a complete mockery of the law by charging every imaginary enemy with treason. For declaring himself President on the basis of the June 12, 1993 presidential election won by him, Bashorun M.K.O Abiola was charged with treasonable felony. Shortly thereafter, General Abacha authorised that Senator Ahmed Bola Tinubu (now President and Commander-in-Chief of the armed forces) and 5 other Senators be charged with treasonable felony for demanding the validation of the results of the June 12, 1993 Presidential election. 4 journalists who exposed the 1995 phantom coup were charged with being “accessories after the fact of treason.”
Ironically, President Bola Tinubu who had fled the country to escape the death penalty under a murderous dictator has allowed the police to charge protesters including minors with treason for challenging the untold economic hardship arising from the religious implementation of neoliberal economic policies dictated by the International Monetary Fund and the World Bank. But for the abrupt termination of the treason charge because of the global condemnation of the trial of child protesters for treason, the regime would have prayed the Federal High Court to convict and sentence 130 Nigerians for exercising their fundamental rights to assemble peacefully and express themselves via the August 2024 protest.
Conclusion
From the foregoing, it is crystal clear that the Federal Government set out to use the case of the 130 protesters to discourage Nigerian people from protesting against the harsh living conditions. Since the plan has since boomeranged the Federal Government should be advised to appreciate that charging protesters with terrorism, treason, treasonable felony and allied offences will not cow Nigerians to submission.
Instead of exposing the country to avoidable shame by charging protesters with a crime punishable by death, the police should be directed to comply with the law by providing adequate security for protesters. That is the only means of ensuring that protests are conducted in a peaceful and civilised manner within the ambit of the law.