Legal Implications of #EndSARS Protests and Taking the Struggle Forward

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Femi Aborisade

By Femi Aborisade

THE marvellous nationwide #EndSARS Protest by young people effectively for twenty hours for each of about three weeks have some fundamental legal implications that should not be ignored.

The #EndSARS Protest is a reflection of the collapse of public confidence in the three arms of government to protect the fundamental rights in Chapter four of the Constitution, particularly, right to life, right to dignity of the human person, right to personal liberty in sections 33 to 35 of the Constitution, respectively.

The culture of disdain for courts’ orders by the executive arm of government and the tendency for the institution of frivolous criminal prosecution of peaceful protesters exercising the right of freedom of peaceful assembly and action guaranteed under section 40 of the Constitution, as well as the tendency of the courts to entertain same, have strengthened the lack of confidence in the entire system to guarantee rights.

The anger of the youths has also been fuelled by the criminal neglect of the welfare of ordinary people (national minimum living wage for the employed, right to job or unemployment allowance, free education at all levels, free medical health, social housing, etc.) guaranteed under Chapter Two of the Constitution. The unprecedented scene of young men protesting completely nude is a reflection of youths saying their life is hopeless, meaningless and deprived of dignity.

The outbreak of the #EndSARS protests is the product of a total failure of governance; governance in breach of the constitutional provisions which the rulers swore to uphold. The minimum condition for the continued stay in power of any regime must be the welfare and freedom of ordinary people. Once a regime is unable to fulfil this obligation, it has broken the social pact and deserves civil disobedience.

That the federal government signed a communiqué purporting to have accepted the demands of the protesters is a credit to section 40 of the Constitution that if people organise and resist peacefully, they can win.

However, an analysis of the communiqué would show the insincerity of the federal government. For example, Falz (Folarin Falana) who was leading protests in Lagos was falsely claimed to be part of the meeting leading to the communiqué. The communiqué itself does not appear to have a proper understanding of the required changes, for the following reasons.

First, rather than appreciating the need for a thorough overhauling of the security situation to ensure involvement of youth and community organisations, including acceptance of the need for the establishment of state and local government police formations under democratic control and management, the federal government merely declared an ill thought-out replacement of a more dreadful police unit, SWAT (Special Weapons And Tactics Team) than the SARS. What the #EndSARS protests signify is a more inclusive participation in the governance process rather than an exclusive process.

Second, the complaints against SARS are applicable to the whole of the police formation. This is perhaps because of the terms and conditions within which an average police officer works. The conditions of work of the rank and file of the police tend to produce senseless criminals in the main. Therefore, merely changing SARS to SWAT betrays a lack of adequate understanding of the underlying root causes of the behaviour of an average police officer. Tackling the conditions of service of the rank and file police officers cannot be attained without allowing them to enjoy the freedom to form unions under section 40 of the Constitution.

Third, the choice of SWAT also reflects a fixation with a police-state regime as solution to unprecedented insecurity in the land. However, there is a relationship between physical insecurity and economic insecurity.

It would be more beneficial to develop policies (and enact laws) to tackle social insecurity, economic insecurity, educational insecurity, etc., which tend to be at the root of physical insecurity.

Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, establishes that there are two key aspects of the “primary purpose of government”. These are “security and welfare”.

I argue that where the welfare provisions of the Constitution are implemented, the question of physical security would be light. But where all attention is concentrated on only physical security, to the neglect of welfare security, the challenge of physical security would appear insurmountable. In this regard, putting pressure on governments to implement Sections 16, 17 and 18 of the Constitution is of particular importance.

Section 16 of the Constitution is devoted to preventing economic insecurity by making provisions to ensure “that the material resources of the nation are harnessed and distributed as best as possible to serve the common good” [S. 16(2)(b)]

The Constitution in section 16(2)(c) is less abstract than S. 16(2)(b) by providing that “the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group”. In this regard, the recommendation by the El-Rufai Committee on the power situation in the country, to the effect that privatisation of the power sector should be reversed, is a recommendation in the right direction. But it should not be limited to the power sector. All other privatisations done fraudulently should be reversed, in accordance with constitutional mandate, and put under democratic management and control.

Indeed, section 16(2)(d) of the Constitution is more specific in terms of preventing economic insecurity, which could fuel physical insecurity. It places primary responsibility on the government for the satisfaction of Abraham Maslow’s physiological needs, such as “suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits, and welfare of the disabled…for all citizens”.

As far as fulfilling the provisions of section 16(2)(d) of the Constitution is concerned, even the thirty thousand naira national minimum wage (which is yet to be implemented in many states) must be considered inadequate as a living wage. The governors and deputy governors pension laws would have to be repealed and the Constitution amended by deleting section 124(5) which permits the making of a law by the State Houses of Assembly for pensions and gratuity for persons who serve for a brief period as governors and deputy governors where ordinary workers are sentenced to a contributory pension system before they can earn pensions.

Section 17 of the Constitution is devoted to fulfilling “social objectives”, which include mandatory provision that “governmental actions shall be humane” [S. 17(2)(c)]; just and humane conditions of work [S. 17(3)(b)] and “adequate medical and health facilities” not just for the Nigerian citizen, but indeed, for “all persons”, in the space called Nigeria. Fulfilling section 17(3)(b) of the Constitution would frown and punish medical tourism by the rulers where the masses are sentenced to a collapsed or non-existent medical care system.

Section 18(3)(a)-(d) of the Constitution guarantees free education, from cradle to grave. If section 18(3) of the Constitution had been fulfilled, about 15 million Nigerian children of school age would not be out of school, constituting the Almajeris, fuelling the army of the unemployed and unemployable youths who are now the cannon fodders for banditry, kidnapping, armed robbery and foot soldiers for Boko Haram.

Fulfilling section 18(3) of the Constitution should also mean that the phenomenon in which children of the ruling class receive education abroad at the expense of the public should be criminalised. Public officers should not be allowed to give the best of education to their own children while the children of the poor are condemned to classrooms hardly better than pigsties.

There is thus a linkage between preventing social exclusion or social insecurity and preventing physical insecurity. A society that is incapable of preventing social exclusion cannot prevent physical insecurity. There is also a relationship between guaranteeing physical security and curbing corruption. A society that is unable to curb corruption cannot generate material resources to guarantee basic social needs and welfare of the people.

In the final analysis, income and social inequalities are connected with physical insecurity. Policies which exacerbate inequality, economic insecurity, social inequality, educational inequality, unemployment, social frustration, poverty, etc., would continue to cause a huge physical insecurity and put the future of Nigeria in jeopardy and under grave uncertainties.

However, I am convinced that the constitutionally backed solutions, some of which are herein enumerated would not be implemented willingly by the ruling class. The popular masses, through their organisations, have a role to play. This is the relevance and significance of the #EndSARS protests.

From #EndSARS to #EndGovernors Hypocrisy
The #endsars movement should now transform to #endgovernors hypocrisy and #bringkillers of peaceful protesters to justice.

We are now witnessing the unacceptable hypocrisy of state governors who hoarded Covid-19 palliatives meant to be distributed to the needy in the society and are going about arresting hungry people who openly went to liberate the hoarded palliative items.

Ordinarily, the affected governors ought to be arrested and prosecuted for hoarding the Covid-19 palliative items. But section 308 of the Constitution shields them from prosecution while in office. Pending the time the governors leave office, all other public officers who played any role in the hoarding of Covid-19 palliatives should be arrested and prosecuted for hoarding Covid-19 palliative items. The affected governors in whose states public goods were hoarded ought to tender public apology and resign from office rather than shamelessly harassing members of the public who were provoked to publicly liberate the hoarded goods meant for distribution to those suffering from sheer starvation.

By the discovery of the Covid-19 palliatives hoarded by governors, it is now clear that an average governor in Nigeria may be described as ‘hoodlum governor’. From the standpoint of the public, a hoodlum is a pernicious, criminally-minded person who is prepared to do anything for selfish purposes, including dispossessing society of what belongs to all. The behaviour of the governors in whose states hoarded COVID-19 palliatives were discovered shows that there is no difference between a thug in the street (who is actually the product of criminal neglect) and the ‘hoodlum or foodlum governors’.

Conclusion
The outbreak of the #EndSARS protests is the product of a total failure of governance; governance in breach of the constitutional provisions which the rulers swore to uphold. The minimum condition for the continued stay in power of any regime must be the welfare and freedom of ordinary people. Once a regime is unable to fulfil this obligation, it has broken the social pact and deserves civil disobedience.

Section 40 of the Constitution is the Revolt section of the Constitution. It guarantees freedom to resist unconscionable public policies that impact negatively on the society. The #EndSARS protesters have shown an example for the NLC, TUC, ASUU and other education sector unions to follow. The welfare provisions in the Constitution would not be implemented without exercising the right in Section 40 of the Constitution. Full exercise of the right guaranteed under section 40 of the Constitution is the precondition for having a sensitive and responsive government.

However, it should be appreciated that without the intervention of organised labour in active struggle to improve the lot of their members and protect the wellbeing of the other marginalised strata, and ultimately seize political power, the structure of capitalism cannot be uprooted to be replaced with a new system that prioritises the wellbeing of ordinary people. Involvement of organised labour is not limited to the bureaucracy. It includes, in the main, the self-activity of the rank and file, within and outside the official trade union structures. It is only a bonus where the official trade union leadership shares the perspective of struggle. Thus, we must learn to walk on the two legs, cultivating the leadership at any level where possible, but focusing mainly on the rank and file members.

The #EndSARS protest movement represents commendable self-activity of ordinary people from below. It should be re-enacted again and again, until final victory for the oppressed. The re-enactment of the #EndSARS movement may include advocacy for #endgovernors hypocrisy and #bringkillers of peaceful protesters to justice. The venues of the Panels of inquiry should now be the avenues for peaceful mass action as we seek justice. The burial ceremonies of heroes and heroines of the #EndSARS activists should now constitute avenues for peaceful mass action as we grieve and act.

Aborisade, a socialist, is a human rights lawyer. He lives in Lagos.

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