Tuesday, February 7, 2012

‘Right to protest is inalienable’


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Nigeria has just witnessed a nationwide civil disobedience in the form of strikes called by civil society groups, in collaboration with the organised Labour, to protest the removal of subsidy on petrol by President Goodluck Jonathan. The protests, which totally shut down the economy and the country, have continued to generate diverse comments and reactions from both local and foreign analysts. In addition to these comments, analysts are of the view that the incident has raised a number of legal matters that must be addressed to forestall future occurrence. Mr. Tayo Oyetibo (SAN), a civil rights campaigner who specialises in Labour law, examines some of these legal matters that arose in the course of the nationwide protests in this interview with ABIODUN FANORO Excerpts:
CAN you explain some legal issues that were brought to the fore in the recent protests against the removal of subsidy on petrol?
There is something that we have to get right. There is a difference between a strike embarked on by the organised Labour and the protest by ordinary citizens in the country. Only a recognised union can call its members out on a strike. Strike is recognised and regulated by laws, as a weapon used by workers to express their opinion on a point of dispute between them and their employers.
However, the right to protest unjust government policies is reserved for every citizen of the country, to express his or her opinion. Every citizen of Nigeria has the right to freedom of speech, freedom of expression. Protest is a form of freedom of expression. So, the right of the people of Nigeria to protest unjust government policies is separate and distinct from the right of the organised Labour to go on strike.  For instance, market women found all over the country, are not members of the organised Labour. Also, lawyers do not belong to any trade union. The Nigerian Bar Association (NBA) is not a member of any trade union. Taxi and bus drivers who thronged to Gani Fawehinmi Freedom Park in Ojota, Lagos, tomato and onion sellers in Kano, who trooped to the city’s square, were not on strike, they were protesting. So members of the organised Labour and the ordinary citizens are two different groups of people, but they are working for a common purpose.
The focal point is that workers have two rights. The right to go on strike and the right to protest. Workers have their right as members of a recognised trade union, to protests. They also have their rights as citizens of Nigeria to protest, so you could ask which right was being exercised when they all stormed the various rallies across the country. Majority of those who went to Ojota were exercising their general right of protest. The government has right to recognise that fact. Calling civil servants to return to work was not a solution, threatening the organised Labour also not a solution.
What is the significance of this?
The spontaneous reaction by Nigerians and their eagerness to join the protest, in mind is the beginning of a new and positive thing in Nigeria. It is a healthy development for the country, that Nigerians who had been labeled docile, on their own without being promoted, suddenly realised that they have the inalienable right to protest unjust government’s policies. It is even more remarkable that while government was saying it could not and must not go on strike, the workers recognised their seemed rights as citizens to go on a protest.  Certainly, this is the beginning of a new thing.
Could you again identify some other legal matters during this protest that deserved attention?
It must be boldly noted that when the Federal Government went to court and the court restrained the Nigeria Labour Congress (NLC) and Trade Union Congress (TUC), the suit at the National Industrial Court (NIC) was against the two organisations. So, where do you situate the people of Nigeria? It is settled in law that only parties to an action can be bound by an order made in the action. The court, as I understand, did not restrain and could not have restrained the people of Nigeria, from going on protest. I do not see how any court would make an order against the people of Nigeria restraining them from protesting an unjust government policy.
So, can you say that the right of the people of Nigeria to protest cannot be outlawed?
Exactly, that is what I am saying. If anyone wants to do that, then who is the defendant in such an action? Of course, in public interest litigation, the Attorney-General of the Federation could take an action on behalf of the public. But in this suit, it was the Attorney-General that was in the swing, and he cannot sue himself. The Attorney-General cannot go to court as plaintiff and also sue himself on behalf of the Nigerian people as the defendant.
Should the judiciary have brought itself into this matter, knowing full well that it is difficult to outlaw protest by the people of Nigeria?
No! You cannot say the judiciary cannot intervene in any matter. Courts exist to adjudicate on disputes. If a party believes that there is a genuine dispute between him and another person, or a group of persons, it is legitimate for such a person to approach the court. It is also legitimate for the court to make relevant order that justice demands.  But again, the suit you are referring to, has nothing to do with the right of Nigerians to protest.
What the court sought to achieve by its order was defeated when the protest and the strike broke out. In these, where is the integrity of the court?
The integrity of the court cannot be called into question. The court retains its integrity at all times. What is important is for the case that is before the court to fall within the jurisdiction of the court.
What I am saying is this: it would appear the court gave a ruling that could not be executed?
No, that is not true. Remember that there had been an occasion in the past when the government approached the court and got injunction to stop an industrial strike action. It has happened in the past. I think that was what the government intended to do in this case. Who says the court cannot intervene? The court can intervene in appropriate cases.
But in this case, why did the intention of the court fail?
Well, let’s leave that to the court to determine. I don’t want to comment on the merit or otherwise of the case for now. One other thing that I found very interesting is government’s argument that one of the reasons that necessitated the removal of subsidy was because all other countries around Nigeria sell petrol at higher prices. Therefore if Nigeria sells at a lower price, it would heighten smuggling of the product across our borders. Certainly, this is an untenable argument. Venezuela, an OPEC member-country, sells its oil locally at a price much more lower than N65 per litre while its neighbours who have no petrol, sell at much higher prices. Yet, this does not prompt Venezuela to remove subsidy on petrol. Venezuela has not adopted the Nigerian argument. What this means is the failure of law and order, as well as failure of governmental structures and institutions.  The question is, who are the people smuggling? Fuel is transported in trucks and these trucks pass through the highways. Are there no security agents manning these highways? How do these trucks cross the Nigerian borders? Has the government now surrender completely security on the highways? That is an argument the government must not promote, because it is an admission of failure of institutions. If it is established that some officials were posted to ensure security at the borders and while on duty fuel was smuggled across the border, why are such officials not made to face the law?
One other issue of law that the government has refused to explain why it breached is the 2011 Appropriation Act, which provides for fuel subsidy and whose life the National Assembly has extended to March 2012?
There is no doubt that the 2011 Appropriation Act is still in force, since it has been extended till the end of March 2012. It is also a fact that there is provision for fuel subsidy in that Act. Since it is still running, subsidy must also be fully implemented until the Appropriation Act runs its full course. When I listen to government officials who have come to promote its position on subsidy, they said from January 2012, government did not release fund for subsidy. What this means is that it is either money had been appropriated but is not being disbursed. That certainly violates the Appropriation Act. Or the money that was appropriated for subsidy has been exhausted. Again, that means there has been disbursement outside the purview of the provisions of the Act, because no money ought to be spent without being duly appropriated. If the government is supposed to spend say one billion naira in June and it went ahead to spend say two billion naira, who authorised the excess one billion naira?     This is a question the government needs to address and answer. The second thing we need to hoot into is government’s argument is not getting to the generality of Nigerians because a cabal has been benefiting and profiting from subsidy by submitting invoices that are not backed by fuel importation. What actually infuriates me is for a government to admit that there exists a cabal that is profiting on Nigerians and the economy of Nigeria. That shows that cabal or whoever they may be have been identified because the money goes to a particular purse and it is released by a particular person and goes to a particular person. The question now is, is the government afraid to deal with these individuals using the relevant laws? Until the government is able to answer these questions that are begging for answers and until the government is ready to expose all those involved in these shady deals and prosecute them, it would be difficult for it to convince Nigerians that there is justification for the removal of subsidy, if there is any.
Is it possible to make payments to people supplying goods to the government, which the so-called cabals were doing, without approval and authorisation by elements in the Presidency?
It may be difficult to answer that question until the government tells Nigerians how the cabal operates, could it be that members of the cabal simply submit invoices for fuel purportedly supplied without any such supply. But logically speaking, that is not how payment would be authorised, approval made without the knowledge and involvement of relevant government’s officers in the Presidency. Certainly, a can of worm is about to be opened and it would be strange how the Presidency could be exonerated.
Where the Executive breached the Appropriation Act as it is with the 2011 fuel subsidy fund, what should members of the National Assembly do?
You see, there is the doctrine of separation of powers under our Constitution.  Once the National Assembly has passed the Appropriation Bill into law, disbursement is the statutory duty of the Executive.  However, the National Assembly can under its oversight function, which is permitted by the Constitution, look into how the money approved under existing Appropriation Act was spent before approving another Appropriation Act. This is where the investigative function of the National Assembly comes in. It could seek to investigate how the money approved for subsidy under the 2011 Appropriation Act was spent before passing the 2012 budget.
How would you place the Sunday emergency session held by the House of Representatives on the subsidy crisis?
The session was perfectly in order, regardless of the intolerant reaction of the Presidency, which described the House’s resolution as inciting the people of Nigeria against the Presidency. The House has the constitutional responsibility to legislate for peace and order in the country. So if in its wisdom, the House felt removing subsidy will not promote peace and order, it has the constitutional responsibility to advise and urge the Executive to reconsider its decision.
No doubt, it is the duty of the Police to maintain peace and order. But looking at the over 20 posters of people reportedly killed by the Police, how justifiable are the killings?
None of the killings by the Police is justifiable in anyway. If a man is embarking on a peaceful protest, there is no justification under Nigerian law for the Police to use life bullet to shoot such a person. It is most unjustified even in the face of a riot, there is a way the Police could quell a riot without killing any of the rioters. And in any event, what took place in Nigeria in response to the insensitive removal of alleged fuel subsidy was not a riot. There is a difference between a riot and a protest, protest is legitimate, while a riot is criminal. What took place in Lagos in particular, and in other parts of Nigeria, was a protest, it was not a riot. I repeat, there was no riot in Lagos. It was a civil protest.
In the light of these senseless killings, have men of the Police been educated to know the difference between a riot and a protest?
I don’t know the extent of the training that men of the Nigeria Police have been exposed to. But the way and manner they handled the protest, which in my view stemmed from the earlier threat by the Inspector General of Police not to allow any protest and his further threat to crush any protest, it was obvious that the police has not been educated on the difference between a riot and a protest.
The Police is said to be relying on a law called Police Order 237 in committing these extra-judicial killings…
I have just said that there is a difference between a riot and a protest. If Order 237 empowers the Police to shoot at rioters, that would not apply to protesters. If a group of citizens gathered together, carried play-card to condemn unjust government’s policies, that is not a riot, that is a civil protest. You could say it was a large crowd. Yet, it was a large crowd of protesters, which we have not witnessed in this country since June 12, 1993, crisis when the presidential election won by late Chief M.K.O. Abiola was annulled by Gen. Ibrahim Babangida.
Amnesty International and some other rights group have called for immediate abrogation of the Act. What is your view on this?
Even in the criminal code, there is a way the Police should deal with rioters. The Police are not allowed to just shoot at rioters. Even the Constitution does not empower the Police to kill rioters; it only allows them to arrest rioters. The highest level the law allows the police are to shoot a rioter on the leg and that is if he is about to endanger the lives of many other people. In an attempt to prevent this, the Police can shoot at the leg of rioter to demobilise him. The Police has no power to kill a rioter, how much more a protester. Under the Nigerian Constitution, when a person is arrested, be he a rioter or even an armed robber, he is entitled to be heard and be given fair trial. He is not to be summarily executed as it is with the killing of a rioter. So, if the Police have no constitutional power to kill a rioter, then how is it going to nationalise or justify the killing of a lawful protester? If a man is alleged to have caused riot, how would the Police prove that if he has been summarily executed? How would he be able to defend himself if he has been killed? That is why the Constitution opposes the killing of a rioter or any suspect whatsoever. By now, Nigeria should have gone beyond the use of life bullets to deal with rioters, not to talk of protesters. It is not only primitive, it is callous, it shows again that in this part of the world, we are crude and that we have no simple regard for life, human sanctity and dignity. It also goes to show that the government in this part of the world does not see the citizens as fellow human beings, but as foes who have no right to complain or express their views, they are best seen as foes to be hunted down.