On Revolution, Treason, Treasonable Felonies And The Fundamental Right To Protest; By Osigwe Ahmed Momoh – TheNigerialawyer

I will like to commence this article by stating that ‘the right
to protest’ must be religiously protected by every responsible
government and this right should not be obfuscated with any laws or
policy that would make a protester think twice before enjoying such
rights.

In deed one of the greatest benefits of democracy is the freedom
of expression that every member of the society is bequeathed with.
I unblinkingly support every and any Nigerian who has the courage
and goodwill to speak the minds of the people, no matter whose ox
is gored. Furthermore, it’s extremely crucial to point out that we
arrived our current political climate owing to great and selfless
minds who were wiling to be tagged ‘Enemies of the State’, in a bid
to wrestle power from oppressive military regimes.

The recent trend that seems as though several public
commentators and well -meaning Nigerians are being silenced by what
appear to be brute force is extremely worrisome. That being said,
since I have zero stomach for politics, I will unbiasedly espouse
and expose what I believe are the current laws as it relates to
Revolution, Treason, Treasonable
felonies, and The
Fundamental Right to Protest. I hope this will make
for an interesting and educative read.

The ninth Edition of Black’s Law Dictionary
defines Revolution to mean ’an overthrown of a government,
usually resulting in fundamental political change; a successful
rebellion”. Revolution or political uprising is a fundamental
shakeup of the government of the day to bring about a drastic new
change. Revolution can be seen as the last or perhaps the only
option for a people to reclaim power from a despotic leader or
regime. However when confronted with a legitimate democratically
elected government, the term quickly becomes synonymous with
treason. The simple reason being that in a democracy, a very
expensive and elaborate path is clearly set-out for a change in
government. Furthermore, the facts that leadership is limited to
terms, gives the populace solace in the knowledge that evil no
matter how bad, would not inure in perpetuity.

Whereas revolution was simply defined in the preceding paragraph
as an overthrow of government, the term violent or peaceful was not
contemplated in the definition for the singular fact that the mode
of overthrow is immaterial so long as it runs counter to the
constitutionally laid down rules/ procedures for change of
government.

Treason and treasonable felonies are serious offences; and in
Nigeria crimes are basically defined in the Penal Code
Act, which is applicable to all Northern states and the
FCT and the Criminal Code Act, which is applicable
in the southern states as well as the Federal High Courts. Since
crimes of this nature are more often than not, instituted in the
Federal High Court, we shall rely on the Criminal Code Act for the
definition even though; the penal code provision is in pari materia
with the Criminal Code. What is very instructive is that the
Criminal Code Act, quite surgically distinguishes between treason
per se and treasonable felonies, the later being punishable by
death. The fundamental differences in treason is encapsulated in
Sections 37 to 40 of the Criminal Code Act; whilst Section 41 of
the Act, exclusively carters for treasonable felonies. The
underlining deference is more than just the use of force, but also
who and what that force is targeted at.

Section 37(1) (a) of
the CCA states to wit;

‘Any person who levies war against the state, in order to
intimidate or overawe the president or the governor of a state is
guilty of treason and is liable to the punishment of death’.
                 
                 
       

In the offence of treason the operative words is ‘LEVY
WAR’, against the country. To levy war, would mean, to take
arms, and make plans and preparation in furtherance of a war, hence
the gravest punishment of the land is prescribed for offenders.

Kindly permit me to reproduce the entire provisions of Section
41 of the CCA, to buttress this salient point that the need of
force is not sine qua non to establishing the crime of Treasonable
Felonies as contemplated in the CCA.

Any person who forms an intention to effect any of the
following purposes that is to say

(a).To remove during his term of office otherwise
than by constitutional means the President as Head of State of the
Federation and Commander in Chief of the Armed Forces thereof;
or

(b).To likewise remove during his terms of office
the Governor of a state or

(c).To levy war against Nigeria in order to put any
force or compel the President to change his measures or counsels,
or in order to put any force or constraint upon, or in order to
intimidate or overawe any House of the National Assembly or any
other legislative or legislation authority or

(d).To instigate any foreigner to make any armed
invasion of Nigeria or any of the territories thereof and manifests
such intention by an over act is guilty of a felony and is liable
to imprisonment for life

The use of force will be reduced from Treason to Treasonable
Felonies if and when the use of force or better put the levying of
war is targeted at doing any deed in 41 (c) of the CCA, above. In
other words whist the use of force is basically linked with
treason, it would not fit into the ingredients of treason, if the
use of force is to force the Government to act in any way, or
influence a policy, or take a step, or refrain from taking any
step. It shall not also be treason if the use of force is targeted
at the law making arm of either the federal or state
government.

The focus in Treasonable Felonies is ‘anybody who forms any
‘intention to effect the following purposes’;
intention to effect a change of government is a solid element of
the offence. It is of no essence whether or not, the person formed
the intention by arms or by charms. A crime of treasonable felonies
would occur if the President is blackmailed or compelled to resign
from office.

It is noteworthy that the crime of treasonable felonies, has to
be framed by overt acts, it’s not enough to cook up the desire to
oust the president or governor. One must take manifest overt steps,
i.e., a step in this purpose can be to cripple the economy, or
blackmail the president, it can be to overawe the government of the
day with a sheer size of protest that the president is compelled to
step down or making the country ungovernable. Also please note that
nowhere in the code, does it matter that the perpetuator would gain
from the action, its immaterial that the perpetuator of the crime
has nothing specifically to gain neither would he be a direct
beneficiary from the ouster.

For comparison sake, we cannot do justice to this piece until
and unless we recall sections 37 and 41 of the Criminal Code
Act.

37(1) (a) of the CCA stipulates;

Any person who levies war against the state, in order to
intimidate or overawe the president or the governor of a state is
guilty of treason and is liable to the punishment of
death.

(b).Any person conspiring with any person, either within or
without Nigeria, to levy war against the state with the intent to
cause such levying of war as would be treason if committed by a
citizen of Nigeria is guilty of treason and is liable to punishment
of death.

Now since I have reproduced the entirety of Section 41 of the
Criminal Code Act, I will confine myself to Sub (c) and (d) of the
section;

 (c). To levy war against Nigeria in
order to put any force or compel the President to change his
measures or counsels, or in order to put any force or constraint
upon, or in order to intimidate or overawe any House of the
National Assembly or any other legislative or legislation authority
or

(d).To instigate any foreigner to make any armed
invasion of Nigeria or any of the territories thereof and manifests
such intention by an overt act is guilty of a felony and is liable
to imprisonment for life

Interestingly, one could easily find himself, in a web of
confusion, especially as it relates to Section 41 (c) and (d), and
the sections 37 and 38 of the CCA in general. This writer suggests
that the motive is what is paramount. In Section 41 one would need
to levy a war not to change the government but to change a
government’s policy or measures, or somewhere influence the
government’s position or decision.

Since we have fairly over-dwelt in the vexed issue of treason
and treasonable felony; let us now delve into the ambit of the
fundamental right to protest and demand for a change in governance.
In other words, how can our constitutionally guaranteed rights to
assembly, association, freedom of expression and speech, be
protected, in light of treason and treasonable felonies? Our
ultimate question therefore is; how then do we draw the line? If at
all there is a line to draw.

Whereas the Court of Appeal’s decision in IGP V ANPP
& Ors (2007) 18NWLR (PT 1066) has ultimately given a
judicial burial to the obnoxious provisions of the Public 
Order Act, Cap 383 LFN 1990, wherein protesters would need police
permit before they can go on any protest, the court has basically
pronounced that that position is primitive and it runs counter to
the spirit and letter of the constitution by this judgment , the
right to freedom of association and assembly has been judicially
protected and the courts have ruled in this line time and time
again.

In Ejoigu & Ors V Onwuruaka & Ors (2019) LPELR
47 333 C.A the courts recently pronounced that the right
and freedom to free association provided under section 40 of the
1999 constitution as amended cannot be taken away under any guise.
In deed the court acknowledged in that Judgment, that the right to
freedom of assembly can be impeded with certain ploys and schemes,
one of which of course is the hanging threat of treason and
treasonable felonies.

For safety, let’s dig a little deeper into this foray and
examine the relevant provisions of the Criminal Code Act again as
it relates with treason and treasonable felonies. For ease and
convenient let us itemize all we can glean so far from sections 37,
38, 39 and 41 of the Criminal Code, and examine whether there is
any weather to the position that a call for revolution can
ultimately qualify as a crime of either treason or treasonable
felonies.

1. In the crime of treason, the perpetuator(s) would need to levy
   war against the president or the governor.
2. It is also treason to instigate (or maybe persuade) a foreign
   nation to invade Nigeria.
3. It is also a crime of treasonable felonies if any one levies
   war against the state, in other to influence the president’s action
   or policy;
4. Or Levy war to intimidate and overwhelm either a state
   legislature or national assembly (notice how fundamentally
   identically this provision is with section 37, only difference
   being that one force is targeted towards the executive, whist the
   later is towards the legislative arms.
5. It is a crime of treasonable felony, if anyone instigates any
   foreigner to use armed force against the state, (also notice how
   remarkably close this section is with section 38, and the only
   difference is that whist the former targets a foreign army, the
   later targets a foreigner, an individual maybe a mercenary or a
   terrorist.
6. It is a crime of treasonable felonies if any person intends to
   take any step with the intention that that step would lead to the
   removal of the president or a serving governor of a state. ( such
   step is often not violent and cannot be construed as levying war by
   any stretch)
7. Lastly and more importantly; it cannot be a crime of either
   treason or treasonable felonies, if anyone takes any steps, or
   engage in any action that would either force or compel, or
   intimidate the state to take any step for or against a certain
   position if that action or steps taken by such person does not
   qualify as levying a war. It is only when one use arms to force a
   government policy that we can say that person has crossed the
   elaborate line into the realm treasonable felonies.

Kindly pardon the repetitions above, I had to go through this
long process of itemizing this already established issues for
clarity and emphasis, since we can now emphatically conclude that
we have a full grasp and mastery of the crimes of treason and
treasonable excuses, we can now go to the next step and marry
likely scenarios in the already established legal framework.

Since we can safely conclude that the right to protest is
married and submerged into the express combined provisions of
section 39 and 40 of the 1999 Constitution (as amended) and this
provisions have been given judicial backing in plethora of cases,
including the much celebrated case of IGP V ANPP (supra). What we
cannot ignore or run from is the surrounding situation and
circumstances peculiar to each case.

It is a trite position of the law that the intention of man can
only be unmasked by his overt actions and steps. This ancient legal
sentiment was re-echoed by His Lordship Justice Mohammed Tanko, in
a very technically sound judgment delivered in the pacesetting case
of Asari-Dokubo V FRN (2007)12 NWLR (pt 1048), his
lordship noted that  ‘even the devil cannot know or draw
inference in what that unpredictable and oft oscillating organ in
human body called the heart/mind conceals’. Simply put, no one
can read your mind, it is only your words and actions that can help
color the picture in our minds.

Even though the right to protest is pristine and paramount, the
right of the state to prevent anarchy is also sacrosanct, and would
always supersede individual rights if need be. In the same case of
The Sup Asari-Dokubo V. FRN (supra) per his
Lordship Mohammad Tanko (CJN) made this position clear when the
supreme court held that ‘where the national security of the
state is threatened or there is the real likelihood of it being
threatened, human rights or the individual’s rights of those
responsible takes second place, human right or individual right
must be suspended until the national security can be protected or
well taken care of’

The point being raised is that it is a clear affront on the
state to take steps to persuade a sitting president to resign or
step-down; the constitutional way of changing the government is by
election, impeachment or voluntary resignation. Any attempt to
either frustrate the president or a governor to resign, either by
breeding disaffection, or crippling the economy of the state, or
overwhelming the instruments of the state, like was done in the
Arab spring nations constitute the grievous crime of treasonable
felony.

Furthermore relying on the Black’s Law Dictionary, a call for
revolution is also a crime, since it is calling basically for a
change of government by a means not contemplated in the
constitution, blackmailing the president would also constitute this
crime. The reality is that we run a democracy in Nigeria, so we
have options; we have the solace that as horrible as a government
may be it would last only four year, and we have the options of
electing other individuals.

Yes Nigeria has been and still is in dire need for a revolution,
a complete and concrete overhaul of our entirety political
architecture, but this revolution has to come through the ballot
boxes. Sadly only a fraction of our eligible population engage in
elections, the non voters are actually the voters of the status
quo, this has to change. Selfless political players must emerge and
take active steps in birthing the new Nigeria of our dreams. Those
who would rescue the nation must be men and women who would have no
stomach for political offices, appointments or largesse.

The path of a violent or unconstitutional change is risky,
already we are dancing on the fringes of anarchy, there is so much
lawlessness and disorderliness going on, kidnappers and robbers,
seem to have overwhelmed the Nigerian Police Force, lets also be
minded that terrorist, and violent political agitators have been on
the rise, it makes no sense therefore to add further strain to our
delicate polity. Yes Nigeria is far from our dream, but slowly and
surely, with hard work and commitment, Nigeria will work.

If the citizens are dissatisfied with the government policies,
they can reach out their elected representative that’s the proper
way to get our voices out. Four years from now, the real revolution
begins; house to house campaigns, street invasions and massive
public engagement has to be the way out, I expect the coalition of
the willing to jump into the stream and start making behind the
scenes moves, instead of waiting for the twilight to all jump into
the fray like a pack of hungry jackals.

Kindly accept my apology for delving into the politics of the
day, I made genuine efforts not to stray out of law, but somewhere
passion for father’s land found the better of me, I urge the
presidency to treat this matter with the sensitivity that it
requires, and appreciate the enormous anger, anguish and pain being
suffered as a result of the near breakdown of law and order in vast
parts of this country. The president cannot add insult to injury by
physically manhandling the protesters and employing a Gestapo like
approach to well meaning and patriotic Nigerians who may have
strayed out of the protections of the law.

In conclusion, the issue of right to protest vis a vis
treasonable felony or even treason is one spiced with law and
facts, the facts have to be overwhelmingly convincing to rely on
the law, mere nomenclature or semantics won’t suffice to prove this
allegations, The state has an uphill task to show that the
impending protest was one that is solely calculated to oust the
sitting president.

Remember, a protest no matter how tenacious or persistently
geared at influencing the government’s policy will not constitute
treasonable felonies, and the onus of proven lies with the state,
for ‘he that assert must prove’.  Yet ignorance would not
suffice as a defence. The fact that someone plans a protest in a
bid to oust a legitimate government could very easily be seen as
treasonable felonies even though the person has no means of
purchasing weapons and has not the stomach to swallow violence. In
this narrow road of uncertainty is where I beg to rest my case.