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What are the legal options in challenging the violation of my right to assemble?

The legal options open to an aggrieved party are numerous and it involves starting an action in the appropriate court of Justice. In doing this, you must ensure that you comply with the rules of the court to which you desire to bring your action.

1

What are the legal steps to be taken if my right to peaceful assembly is violated?

  • The first step is to get yourself a lawyer or make a complaint to the National Human Rights Commission or NHRC.
  • A pre-action notice should be prepared by your lawyer and served on the other party. A pre-action notice refers to a legal document in the form of a letter informing an offending person of one’s intention to sue.
  • The jurisdiction of the court must be considered to know if it can entertain your action. Jurisdiction refers to the official power that the court has to look at your case and to make legal decision.
  • The proper originating process must be used (Originating Motion). An originating process refers to a legal document used to institute an action in court.
  • All the necessary processes must be filed in accordance with the rules of court.
  • All the necessary evidence to prove your case must be made available.

 

2

What court should I approach with my claim?

The Constitution clearly stipulates the court to which a fundamental human right claim can be brought in its Section 46.

“(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.”

Although the Constitution clearly provides that the High Court of the state is the court to enforce your right, judgements from the courts have also given powers to the Federal High Court to try human rights cases. The case of Odutola v. University of Ilorin (2004) 18 NWLR (pt. 905) 416, says that the phrase” a High court in that state” as used in the Constitution is different from the “High court of a state”. While the former presupposes the inclusion of the Federal High Court, the latter would refer to the State High Court alone.

Similarly, by the provisions of Section 254C of the Constitution, the National Industrial Court also has concurrent jurisdiction to hear matters relating to human rights. It states as follows: Section 254C-

 “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.”

Also, in 2005, a new protocol was introduced giving the ECOWAS Court of Justice powers to entertain suits relating to human rights violation within the ECOWAS member states.

Thus, Individuals, corporations and associations can submit applications detailing alleged human right violations suffered by them within their home countries and local communities.

TIP: It is worthy to note that cases need not be pursued in national courts before they can be brought to ECOWAS court. In fact, a human right violation case still pending at a national court can be presented before the ECOWAS Community Court.

However, Article 10 (d) of the 2005 protocol on the court as amended states that:

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

  • Not be anonymous; nor
  • be made whilst the same matter has been instituted before another international court for adjudication”.

This means that for an application to successfully be made on the grounds of violation of human rights at the ECOWAS court of justice, such application must be signed and should not be pending before any other international court at the time of submission.

In summary, the courts to which a claim for the enforcement of fundamental human rights are:

  • State High Court

  • Federal High Court

  • National industrial Court.

  • Economic Community of West African States (ECOWAS) Court.

3

Who can take legal action?

By law, a juristic person can institute an action. A juristic person refers to a legal person with the capacity to sue and be sued, such as an individual or a registered association or company.

This means that once your right has been breached, you can take legal action against the offender personally or through another person or organization, acting on your behalf.

4

Who can legal action be taken against?

Similarly, only a juristic person can be sued. This includes but is not limited to:

  • An individual
  • A registered association
  • Non-governmental Organizations
  • Public organizations
  • Security agencies like the Nigeria Police Force.
5

What evidence do I need to prove my case?

  • Evidence that shows that the assembly was generally peaceful (pictures)
  • Proof of harm or damage done (if any) like medical reports or pictures and witnesses.
  • Proof of disruption of the assembly by the defendant.
  • Audio recordings or video recordings of the event.
7

What remedies are available to me?

  • Monetary Compensation:

This refers to material compensation given to an injured party by a liable party. It has been settled that once the court has found that the fundamental rights of an applicant has been violated by the conduct of the respondent, the aggrieved person is entitled to compensation in the circumstance.

For instance, where an aggrieved party proves to the court that he has suffered physical injury as a result of the actions of another party (government or its agencies), during the disruption of a peaceful protest, the court will declare that monies be paid to the victim as compensation.

Disruption of peaceful protest has been described as both unconstitutional and undemocratic. Thus, where an individual/group can prove that their assembly and associational rights have been violated in this way, the court is willing and ready to award monetary compensation to such victims.

It is important to state that the injury suffered must be physical such as harm from teargassing, use of physical force and use of firearm and not merely emotional,

 

  • Injunctions:

An injunction is a court order requiring a party to do or cease from doing a specific action. For instance, where the police illegally ban protests from holding, the court may grant a perpetual injunction restraining the police and its agents from preventing citizens from convening peacefully.

By implication, this order by the court will enable the aggrieved citizens go ahead with their planned peaceful protest/rally without further hinderance by state actors.

For instance, in Inspector general of Police v. All Nigeria Peoples Party & ORS (2007), the court granted a perpetual injunction to restrain the police from disrupting a rally organized by the applicant, after their earlier request for police permit to organize the rally was denied.

 

  • Declaratory reliefs:

This remedy is generally available where an individual can prove that his fundamental right has been infringed by the government, its agents, or any public authority.

A declaration usually states the rights of the individual/group without any order to do or refrain from doing an act. Thus, it is usually sought in conjunction with other reliefs such as injunction or damages.

The Supreme court in Okoye v. Santilli (1990) described a declaratory judgement as one that “merely proclaims the existence of a legal relationship and it does not contain any order which may be enforced against the defendant”, this means that declaratory reliefs are not self-enforceable or self-executory. Instead, they serve to state the existence of certain rights when these rights have been infringed by the government or other state actors.

For instance, where the police deny a group of people access to a meeting place, in order to assemble peacefully for a rally, meeting or procession without justification, it will amount to a breach of the constitutional right of assembly/association. In seeking redress, the victim(s) may apply to the court to declare that it is their constitutional right to assemble peacefully while also requesting that an injunction be granted to stop the police from similar acts in future.

 

  • Apologies:

An apology is an expression of remorse and an acceptance of responsibility for an act or omission. In certain situations, the court may order an erring party (usually the government) to make a public apology to the victim in conjunction with other remedies.

In Ogungbeje v. Federal Government of Nigeria & ORS (2019), the plaintiff and others were involved in a peaceful protest in Lagos popularly known for the Revolution Now Protest, when men of the DSS tear-gassed, physically assaulted, and arrested protesters in a bid to disrupt the protest. At trial, the judge declared the disruption of the peaceful protest by the Nigerian government through the police as “illegal, oppressive, undemocratic and unconstitutional”. Thus, the plaintiff was awarded damages to the tune of N1,000,000 and the court ordered the government to publicly apologize in three national dallies as part of the remedies granted.

From the above, it can be gleaned that the court will order that a public apology be tendered as part of the remedies for the violation of the victim’s right to freedom of assembly/association.

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