The Constitutionality of the Public Order Act in a Democracy: ‘A Square Peg in a Round Hole’

By

Chinelo Chinweze

accesstojustice22@yahoo.com

 

                                                                                   

Introduction

 

A recent controversy is the constitutionality of the Public Order Act Cap P42, LFN 2004 which was thrown into contention by the event of Wednesday, 5th of April, 2006, when police authorities forcefully disrupted the anti-third term meeting of eminent Nigerians at Abuja in the guise that police permit was not sought and obtained before the meeting was convened.

 

This stand by the police brings to fore the constitutionality of the Public Order Act as it is apparent that the police based their action on the provisions of the Public Order Act. It is then pertinent to look at this Act vis-a vis the Constitution to determine its validity, it being settled law that all laws or legislations inconsistent with the provisions of the constitution are to the extent of their inconsistency void – see Section 1 of the 1999 Constitution.

 

Although Section 40 of the Constitution guarantees the right of every citizen to freely associate and interact with other citizens  for purposes that are of common interest to the said citizen, it is trite law that no right (whether constitutional or civil) is absolute. But the circumstances and grounds upon which the exercise of such rights are to be limited is the question that comes to fore. Guided by the constitution itself, section 45 stipulates in effect that any law that is reasonably justifiable in a democratic society would justify the circumscription of the free exercise of a constitutional right. The basic question that arises in the peculiarity of this discourse is,

 

Whether the Public Order Act is, to the extent that it seeks to limit the free exercise of Section 40 of the constitution, reasonably justifiable in a democratic society?

 

Section 1(2) of the Public Order Act bears direct relevance to this question as it  provides that any person desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort shall first make application for a licence to the Governor …..and if such the Governor is satisfied that the assembly, meeting or procession is not likely to cause a breach of peace, he shall direct any superior police officer to issue a licence, not less than 24 hours thereto, specifying the name of the licensee and defining the conditions on which the assembly, meeting or procession is permitted to take place: and if he is not satisfied, he shall convey his refusal in like manner to the applicant within the time herein before stipulated (underlining mine).

 

The other paragraphs of section 1 of the Act are to the effect that the Governor can delegate his powers to the Commissioner of police of the State or other police officers, and that persons aggrieved by any decision of the Commissioner of Police may appeal to the Governor and the decision of the Governor shall be final and no further appeal shall lie therefrom.

 

While Section 2 empowers any police officer of the rank of inspector or above to stop any assembly, meeting procession for which no licence has been issued or which violates any conditions of the licence issued under section 1, Section 3 makes unlawful any assembly, meeting or procession which: (a) takes place without a licence issued under section 1 of this Act; or (b) violates any condition of any licence granted under section 1 as aforementioned.

 

The effect of the enumerated provisions (particularly the underlined portions) would, if my guess is not too presumptuous, be startling to any person with an elementary instinct for democratic rights and civil liberties. The gist of the cumulative import of the portions underlined, is that the exercise of the rights conferred by section 40 of the constitution rests primarily, substantially and effectually on the whim and subjective judgment of the state Governor or his police delegate.

 

By dint of more incisive analysis, it is submitted that the Public Order Act is unconstitutional for the following reasons:

 

1)         Absence of Judicial Review Clause and Absence of Checks Against Arbitrary Exercise

what the Public Order Act does is to generally restrict the freedom of all association, meeting or assemblage of five or more persons to the absolute whim and discretion of the Governor of the State as clearly stated in section 1 of the Act particularly paragraph 2 “…..and if such the Governor is satisfied that the assembly, meeting or procession is not likely to cause a breach of peace, he shall direct any superior police officer to issue a licence…”

 

In other words the Act, places upon the Governor the absolute power of determining whether or not an assembly, meeting or procession will cause a breach of peace or public order. This scenario is clearly not envisaged by the constitution, that an individual be placed as the sole and unquestionable determinant of what is reasonably justifiable for the entire citizenry of Nigeria. The Constitution does not in anyway intend that the enjoyment of a right or freedom enshrined by it be conditioned or contingent on the opinion of an Official of the executive arm of Government, especially when such exercise of power appears not to be subject to judicial review. It is a rule of administrative law that no ministerial discretion is unquestionable by the court. Stitch v. A-G Federation 1986 12 SC P.245

 

The Public Order Act attempts under section 1, particularly paragraphs 5 and 6, to authorize an administrative authority to interrupt the exercise of guaranteed rights (under section 40) with finality and conclusiveness, and without the necessity of judicial review.  This provision of the Act is contrary to the explicit provision of section 36(2) of the 1999 Constitution which provides that no act of a functionary of the executive arm of government shall, with regards to matters implicating the exercise of fundamental right be final and conclusive.

 

The position is long settled in foreign jurisdictions such as in the US cases of Shuttlesworth v. City of Birmingham, Alabama (1969) 394 US 147 and Staub v.  City of Baxley (1958) 355 US 313 at 321-323  which was reiterated in the Nigerian Supreme Court case of Dr. Basil Ukaegbue v. A-G Imo State 1984 NCLR vol. 5 p.79 at 94

 

In Shuttleworth (supra) the defendant was convicted for participating in a civil march for which prior licence was not obtained from city authorities in accordance with an Ordinance which makes it an offence to participate in any parade or public demonstration without first obtaining a permit or licence from the city authorities. The Ordinance empowers the city commission to refuse a permit if the public welfare, peace, safety, health, decency, good order, morals or convenience requires that it should be refused.

 

 It was held that the ordinance which was in issue in that case was unconstitutional since it subjected the exercise of the First Amendment of the Constitution of the United States on freedom for movement and speech to the prior restraint of a licence or permit for such parade and movement “without narrow, objective and definite standards to guide the licensing authority..”(emphasis mine)

 

It was stated thus in Staub’s case:

 “It is long settled by a line of recent decisions of this Court that an Ordinance, which like this one, makes the peaceful enjoyment of freedoms contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official is an unconstitutional censorship or prior restraint ‘upon the enjoyment of those freedoms’” (emphasis mine). On the strength of these authorities, the Public Order Act scores creditably high in the ranks of “arbitrary” legislations, and should be declared unconstitutional

 

2)         The Failure of the Public Order Act to meet the Justifiability Test

In determining whether a law is reasonably justifiable, the test required for the restricting law is an objective one and the standards include (i) whether there is a grave risk of harm to a larger section of the community. (ii) whether the risk of harm is imminent and demanding grave urgency; and this should not depend on the subjective view or opinion of the Governor of the State.

 

The case of State v. Ivory Trumpet (1984) 5 NCLR 736 at 750- 751 is quite instructive on this question. It emphasizes that the test of reasonable justifiability depends vitally on the historical circumstances, as well as the factual mischief which necessitated the promulgation of that law. The Court, in the above case, in appreciating the word “reasonably justifiable” restated the position of the Supreme Court of India in the case of Superintendent Central Prison Fatehgrah v. Ram Manohar Lohia (1960) 2 SCR 821 thus “The limitation imposed in the interests of public order to be reasonable restriction, should be one which has a proximate connection, or nexus with the public order, but not far fetched, hypothetical or problematical or too remote in the chain of its relation with public order.”

 

I align myself with the brief highlight of the  origin of the Public Order Act in the write-ups of Femi Falana and Bamidele Aturu published in The Guardian of Tuesday May 2, 2006 p. 79 and April 18, 2006 p.68 respectively, that the Public Order Act is a product of the colonial masters to suppress Nigerians from challenging colonialism. That public order Ordinance by the colonial powers metamorphosized into the Public Order Act.

 

Guided by the above decisions, particularly the test enunciated in the Ivory Trumpet’s case, I submit that the historic scenario to which the Act was targeted was nothing but undemocratic. The Act was hammered out of a colonial setting in which every Nigerian was just ‘a person’ as against ‘a citizen’; a setting in which the rulership was an imposition as against a determinate choice of the people (under an electoral process) – a choice which, in a democratic setting, involves the exchange of ideas formulated in a culture of free interaction and association.

 

The above reference to the historic origin of the Public Order Act, becomes critical in the light of the very words of section 45 of the Constitution, which postulates that laws which attempt to hinder the free exercise of rights must have their justifiability tested within the ambience of “a democratic society”. If the touchstone of democratic values involve the freedom of interaction, freedom to exchange socio-intellectual ideas, then a law that seeks to circumscribe such liberty may be accommodated under a colonial or military society, but  would certainly run against one of the basic pillars of a democratic society, especially when the powers it purports to confer are exercisable arbitrarily by the recipient of that power.

 

3)         The Conflicting Case Law

The case law pattern on the constitutionality of the Public Order Act exemplifies the unwholesomeness of the Act in a democratic setting. The Ghanaian case of New Patriotic Party v. IGP Accra (2000) 2 HRLRA p.1 (which had similar provisions to our draconian Act) is a an encouraging case in point. In that case, the Supreme Court of Ghana held that section 7 of the Public Order Decree 1972 of Ghana which is “in pari materia” with our Public Order Act is inconsistent with Article 12(1)(d) of the 1992 Constitution of Ghana.

 

The above decision strengthened the view of Justice Chikere in the unreported Nigerian case of All Nigerian Peoples Party & 11ors v. IGP suit no FHC/ABJ/CS/54/2004 where his Lordship, in dealing with the issue of prior police permit under the Public Oder Act held, inter alia, that the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution; also, that the provisions of the Public Order Act requiring police permit, or any other authority for the holding of rallies or processions in any part of Nigeria is illegal and unconstitutional.

 

Irrespective of this applauded decision, One cannot overlook the conflicting legal decisions, which seem to have complicated the matrix of the constitutionality of the Public Order Act. The Court of Appeal’s decision in Chukwuma v COP (2005) 8NWLR Pt. 278 presents a disturbing regression on the progress made or initialed by Chikere .J in  ANPP v IGP (supra), especially as it ranks highest on the ‘stare decisis’ hierarchy. In that case, their Lordships held that police permit is a requirement for the holding of public meetings or assembly in private or public places. To the extent that this decision subtly endorses the constitutionality of the Public Order Act, there is need to examine more critically the “rationes” of Court of Appeal’s decision.

 

The facts of Chukwuma’s case are peculiar in that it involved a potential conflict between two warring factions of a social cultural association known as Igbo Community Association. While one faction of the Association wanted to host a meeting of all Igbo delegates assembly comprising of all Igbo Community associations in Northern States of Nigeria in Ilorin, Kwara State, the other faction petitioned the Commissioner of Police alerting his office that the meeting was going to constitute a security risk. This petition informed the decision of the police to disperse the meeting.

 

Notwithstanding the superior colour of the Court of Appeal’s decision, it cannot be full proof of the constitutionality of the Public Order Act as it did not affirmatively and positively address the issue of constitutionality of the Act. It sounded circuitous or obiter on the question. More so, the Court went beyond the peculiarities of the facts before it and could have but failed to make declarations on the constitutional issues implicated by the questions in the case.

 

It is trite law that where facts and issues in a preceding judgment are not on all fours with a subsequent matter, the former cannot be binding in the latter– see Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 The facts in the above case are distinguishable from the Abuja incident.

 

The Abuja incident of April 5, which triggered-of the present concern, represents a most lamentable abuse of constitutional rights in our political history. The participants were neither an agitated faction of an ethnic group, nor was there a complaint or information of possible affray or violence, or fillers of an imminent disruption of social activities. The participants were a crop of elites who were exercising a democratic right; the meeting convened was to discuss a burning issue in our democracy, that is, the amendment of our Constitution. It is therefore inferable from the circumstance that what must have informed police obstructive action is the imperatives behind the Public Order Act – which is, to find a ready tool for repression of political opposition. This event therefore exposes the grave danger associated with the absence of functional parameters upon which, and within which the police or the Governor must act under the Act. The absence of delimiting parameters, more than any other factor, renders the Public Order Act obnoxious.

 

The selective application of the powers under the Act by police authorities is also disturbing. If one may ask, what did the police do to the political parties who have of recent held meetings on issues bordering on Constitutional amendment and have sent out communiqués asking members to endorse the third term inclusion in our Constitution? Since, political parties were not excluded (under Section 12 of the Public Order Act) from those required to obtain Governor’s licence in order to convene their meetings, why is the police silent? Alternatively, is the order handed down to them directed at dispersing only anti-third term meetings?

 

Conclusion

 

The provisions of the Public Order Act are unconstitutional, void, undemocratic and should be annulled by either the Legislative arm of government or the Judiciary.

 

– by   Chinelo Chinweze

   Legal Programme Attorney

   Access to Justice,

   Lagos.