Right to freedom of peaceful assembly:

Transcription

1 Right to freedom of peaceful assembly: Question 1. Please a) describe positive legislative/institutional measures taken to facilitate the exercise of the right to freedom of peaceful assembly in your country; and b) provide one or more recent examples where the right to freedom of peaceful assembly in your country has been adequately enjoyed and the reasons for citing this example(s). Answer Chapter C23 Constitution of the Federal Republic of Nigeria (Promulgation) Act Laws of the Federal of Nigeria 2004 Section 40 provides Every person shall be entitled to assemble freely and associate with other person, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests; Provided that the provisions of this section shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission with respect to political -parties to which that commission does not accord recognition. Chapter 9, Article 11 African Charter on Human and Peoples Rights provides for Right to Freedom of Assembly Section 40 of the Constitution of Nigeria 2004 guarantees the right to freedom of assembly subject to the constitutional limitations of reasonably justifiable in ademocratic society such as in the interest of defence, public safety, order, morality orhealth or for the protection of the rights of other persons. Public assembly is an essential part of the activities of political parties, trade unions,religious bodies, professional associations etc. Under the Electoral Act, every registered political party shall give the ElectoralBody (INEC) 21 days notice of any convention, congress, conference or meetingconvened for the purpose of electing members of the executive committee etc.further, political parties and their candidates shall not use places of worship,police stations and other public offices for political rallies, campaigns and processions. All Nigeria Peoples Party & 11 others v. Inspector General of Police (2006) CHR : - That by the combined effect of Sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples Rights, the right toassemble freely cannot be violated without violating the fundamental right to peacefulassembly and association. - 3 rd June, 2011 peaceful assembly of staff of the Federal Airports Authority of Nigeria protesting the continued operations of a Concessionaire (Meavis Ltd.) at the Airport. The staff was led by the Airport Staff Trade Union, names Air Transport Senior Staff Association of Nigeria (ATSSAN) and National Union of Air Transport Employees (NUATE). It was a peaceful assembly protest. The police and airport security personnel were present. There was no molestation or brutality of any kind against the staff. The staff also peacefully conveyed their grievances to the Airport Authority management. Question

2 2. Please a) describe positive legislative/institutional measures taken to protect peaceful protesters, including against agents provocateurs and/or counter-demonstrators; and b) provide one or more examples where peaceful protesters were effectively protected. Answer One of the legislative measures taken to protect peaceful protest is the enactment of the fundamental Human Right enforcement procedure rule The new rule introduced municipal, regional and international bill of rights. Cap T14 of the Trade Unions Act Laws of the Federal Republic of Nigeria provides in Section 43 It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or registered federation of trade unions or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so peacefully persuading any person to work or abstain from working. (2) Accordingly, the doing of anything declared by subsection (1) of this section to be lawful shall not constitute an offence under any law in force in Nigeria or any part thereof and in particular shall not constitute an offence under section 366 of the Criminal Code or any corresponding enactment in force in any part of Nigeria. Similarly, during the January 2012 labour led strike action, the police were seen around protesters just to provide protection and to maintain law and order 3. Please describe measures taken to ensure that any restrictions on the free exercise of the right to freedom of peaceful assembly are in accordance with your obligations under international human rights law (proportionality test and due process guarantees). Please explain the legal status of spontaneous assemblies. Affected individuals / groups may seek redress at the courts on the infringements of their rights either directly or through the Human Rights Commission 4. Please a) describe positive legislative/institutional measures taken to ensure accountability for i) arbitrary restrictions to hold assemblies; ii) arbitrary or excessive use of force by law enforcement officials against peaceful demonstrators; and iii) violence by agents provocateurs and/or counterdemonstrators; and b) provide one or more examples for each of these situations where such measures have been implemented. The establishment of a Human Rights Commission 5. In this context, please describe positive legislative/institutional measures taken to build and strengthen the human rights capacity of administrative and law enforcement officials in your country. 6. Please describe one or more recent examples where the right to freedom of peaceful assembly may have not been respected and the reasons for citing this example(s). In particular, please describe challenges faced in the implementation of laws, policies or programmes for the promotion and protection of the right to freedom of peaceful assembly in your country. Please provide details of any

3 lessons learnt in that regard. Briefly evaluate, in both law and practice, the enjoyment of the right to freedom of peaceful assembly in your country, including by women, individuals facing discrimination or violence because of their sexual orientation and gender identity, as well as persons with disabilities, espousing minority or dissenting views or beliefs, and belonging to other groups at risk. Answer: A recent example is the decision of the National Industrial Court based on the ex parte application by the Federal Government of Nigeria to prevent the Nigerian Labour Congress and Trade Union Congress from embarking on a nationwide strike in January This was an attempt by government to infringe on the right to peaceful assembly. Similarly, on the 16 th of January soldiers were deployed in some Nigerian Cities and Towns in the Southwest and North-West zones to forestall the assembly of protesters. This is a fundamental breach of the right of the citizens to assembly and freely express their views

4 Right to freedom of association: 7. Please a) describe positive legislative/institutional measures taken to facilitate the exercise of the right to freedom of association by national and international organizations (e.g. are associations free to decide on their objectives, activities and board composition?); and b) provide one or more recent examples where the right to freedom of association has been adequately enjoyed in your country and the reasons for citing this example(s). Answer Chapter C23 Constitution of the Federal Republic of Nigeria (Promulgation) Act Laws of the Federal of Nigeria 2004 Section 40 provides Every person shall be entitled to assemble freely and associate with other person, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests; Provided that the provisions of this section shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition. Chapter 8, Article 10 of the African Charter on Human and Peoples Rights provides for Right to Freedom of Association. This right has also been most defined and elaborated in International labour law globally to create international obligations for the states that ratified them In Nigeria the Public Order Act has been whittled down by the Court of Appeal pronouncement. Hence citizens no longer require police permit before they can freely assemble. In the case Anigboro v. Sea Trucks Ltd (1995) 6 NWLR (pt.399) 35, the Court of Appeal held that it is not for the employer to choose a trade union for his employees. That the summary dismissal of the workers who remained adamant as to their choice of a trade union was violative of their right to freedom of association. In Egri v. Uperi (1973) 1 SC 299, the Supreme Court speculated that it may be contrary to the right to freedom of association for a court to compel a wife to return to her husband. The Constitution of Nigeria (2004) guarantees the right to freedom of association and peaceful assembly to all its citizens including children. In addition the Child s Rights Act of Nigeria contains adequate provisions to ensure the freedom of association and assembly by all children. b) A recent example is that of Nigeria Labour Congress and Trade Union Congress that called on workers to embark on a strike action. The workers responded to this call, indicating their membership of the bodies and the ability to exercise their right to freedom of association 8. Please detail the procedures to be followed to establish an association in your country, including the legal grounds upon which an application for registration can be rejected, where applicable. Please a) describe positive legislative/institutional measures taken to ensure a non-discriminatory, expeditious, easily accessible and inexpensive registration process; and b) provide one or more examples where such measures have been implemented. Are there effective remedies in case the

5 registration is denied or delayed? Please indicate, if available, how many people have pursued these remedies, and the result thereof. Please specify the legal status of unregistered or de facto associations. Answer Associations are to be registered under PART C of the Company and Allied Matters Act (CAMA). S.674 of CAMA provides for the procedure to be followed, which include; - The name of the proposed corporate body which must contain the phrase Incorporated Trustees of... - The aim and objects of the association which must be for the advancement of any religion, educational, literary, scientific, social, development, cultural... and must be lawful - The name, addresses and occupations of the secretary - There shall be attached to the application (two printed copies of the constitution of the association (b) duly signed minutes of the meeting appointing the trustees and authorising the application, showing the people present and the votes scored (c) the impression shall be signed by the person making it GROUNDS UPON WHICH APPLICATION WILL BE REJECTED - If these procedures are not complied with - If a person appointed by the trustee is not qualified - If the object is illegal Application for registration of trade Union Section 3 of the Trade Union Act Cap T14 Laws of Federation of Nigeria 2004: (1) An application for the registration of a trade union shall be made to the Registrar in the prescribed form and shall be signed (a) In the case of a Trade Union of workers, by at least fifty members of the union; and (b) In the case of a Trade Union of employers, by at least two members of the union. (2) No combination of workers or employers shall be registered as a trade union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping existing trade unions, registering a new trade union or otherwise however, but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. (5) Every application made pursuant to subsection (1) above shall state the name under which it is proposed that the trade union to which it relates shall be registered and the address of the office which if the union is registered, is to be the registered office. (6) Every such application shall be accompanied by two copies of the rules of the union, and by a list showing (a) the name, address, age and occupation of each of the person by whom the application is signed; and (b) The name, address, age and occupation of each of the official of the union. Section 5 of the trade Union Act provides that where an application for the registration of trade union is received by the Registrar, the following provisions of this section shall apply; Provided that if the application appears to the Registrar to be defective in any respect, he shall notify the applicant accordingly and shall take no further action in relation thereto until the application has been amended to his satisfaction or a fresh application is made in place thereof, (2)The Registrar shall cause a notice of the application to be published in the Federal Gazette, stating that objection to the objections to the registration of the trade union in question may be submitted to him in writing during the period of three months beginning with the date of the Gazette in which the notice is published.

6 (3) Within three months after the end of the said period of three months the Registrar shall consider any objections submitted to him during that period and if satisfied (a) That no proper objection has been raised (b) That none of the purpose of the trade union is unlawful and (c) That the requirements of this Act and of the Regulations with respect to the registration of trade unions have been complied with. Shall subject to subsection (2) of this section and to section 6 of this Act, register the trade union and its rules. (4) The Registrar shall not register shall not register the trade union if it appears to him that any existing trade union is sufficiently representative of the interest of the class of persons whose interest the union is intended to represent. (5) if the Registrar refuses to register the union- (a) he shall forthwith send to the applicants a notice in the prescribed form to that effect, stating the grounds of refusal and specifying the date from which the time for appealing against the refusal is to run, and shall publish a notice to the like effect in the Federal Gazette and (b) any official or member of the union may, within the period of thirty days beginning with the date so specified appeal to the Minister against the refusal. (6) the Registrar on registering a trade union shall issue a certificate of registration which unless it is proved that the registration of the union has been cancelled shall (except in any proceedings for the cancellation of the registration of the registration of the union on the ground that its registration was obtained by fraud or as the result of a mistake) be conclusive evidence that the requirements of this Act and Regulations with respect to the registration of trade unions have been complied with, and that the trade union is authorised to be registered and is a trade union for the purpose of this Act. (7) Notwithstanding anything to the contrary contained in this Act, the Registrar shall on the coming into effect of this section of this Act, register the trade unions specified in Part A and Part C of the Third schedule to this Act; and on such registration the said trade unions shall have all the powers and duties of a trade union registered under this Act. If the registration is denied or delayed, the person seeking to register the said Trade Union could appeal to the Minister of Labour, and if unsuccessful, appeal to a court of competent jurisdiction. The Legal grounds upon which an application for registration can be rejected includes i. where a trade union wishes to be registered under a name identical with that of any existing trade union. ii. Where a trade union seeks to be registered under a name containing any words which in the opinion of the registrar are deceptive or objectionable. iii. no trade union shall be registered to represent workers or employers in a place where there already exists a trade union Section 2 (1) of the Trade Union Act provides that a trade Union shall not perform any act in furtherance of the purposes for which it has been formed unless it has registered under the Act. Subsection 2 provides that where a trade Union registered under the Act seizes to be registered; it shall not thereafter perform any act in furtherance of its purposes. A) Corporate Affairs Commission (CAC) being the body saddled with the responsibility to register an association has taken step to computerize its system, expand branches / geographical coverage to ensure easy, accessible and cheap registration process. An aggrieved person may also seek redress in a court of law

7 9. Please explain the procedure available to suspend or dissolve an association in your country. Are there effective remedies in case an association suspended or dissolved? Please indicate, if available, how many people have pursued these remedies and the result thereof. Answer An association can be dissolved as indicated in CAMA Act Section 691 (1) (2) (3) when (a) The aims and objects for which it was established have been fully realized (b) The period specified has expired (c) The aims and objects have become illegal (d) It is just and equitable for it to be dissolved CAP T14 Trade Union Act Laws of the Federal Republic of Nigeria 2004 Section 7 (1) Subject to the provisions of this section and of section 10 (2) of this Act, the Registrar shall cancel the registration of a trade union if it is proved to his satisfaction- (a) that the registration of the union was obtained by fraud or as the result of a mistake; or (b) that any of the purpose of the union is unlawful; or (c) that after receipt of a warning in writing in writing from the Registrar the union has deliberately contravened or continued to contravene any provision of this Act or the Regulations; or (d) the principal purpose for which the union is in practice being carried on is a purpose other than (e) the union though still in existence has ceased to function; or (f) the union has ceased to exist. (2) Where the Registrar proposes to cancel the registration of a trade union under subsection (1) of this section he shall send to the trade union at its registered office a notice in the prescribed form- (a) Stating that he proposes to cancel the registration of the union, and specifying briefly the ground or grounds on which he proposes to do so (b) Specifying a date not less than two months after the date of the notice and stating that unless before that date he is satisfied that the registration ought not to be cancelled he will proceed to cancel the registration on the expiration of the period of thirty days beginning with that date unless an appeal against the proposed cancellation is brought within that period. (3) Where (a) The Registrar has sent a notice under subsection (2) of this section to a trade union; and (b) The trade union is still in existence on the date specified in the notice; and (c) The Registrar has not withdrawn the notice before that date, (d) Any official or member of the trade union may, within the period of thirty days beginning with that date appeal to the appropriate court against the proposed cancelling. (4) The Registrar shall not cancel the registration of a trade union under this section before the expiration of the period of thirty days beginning with the date specified in the notice under subsection (2) of this section; and if an appeal against the proposed cancellation is brought during that period, he shall not cancel the registration unless the appeal is abandoned or the proposed cancellation is confirmed on the final determination of the appeal. (5) A trade union whose registration is cancelled under this section shall, as from the date of the cancellation, cease to enjoy the privilege conferred by this Act on trade unions; but any liability

8 incurred by the union before that date shall not be affected by the cancellation and may be enforced against the union on or after date as if the cancellation had not taken place. (6) On cancellation the registration of a trade union under this section the Registrar shall send to the address at which immediately before the cancellation the registered office of the union was situated a notice in the prescribed form stating the date on which the registration was cancelled and the grounds for the cancellation and shall also cause a notice to the like effect to be published in the Federal Gazette and the original certificate of registration of the union shall be delivered to the Registrar not more than thirty days after the date of the cancellation. (7) If a certificate which is required by subsection (6) of this section to be delivered to the Registrar is not delivered to the Registered within the time prescribed by hat sub-section, every person who, on the date of the cancellation, was an official or member of the union shall be guilty of offence against this Act. (8) The foregoing provisions of his section shall, with the necessary modifications apply in relation to the registration of federations of trade unions and the Central Labour Organization as they apply in relation to trade unions. (9) Not withstanding anything to the contrary contained in this section, the Minister may, due to overriding public interest revoke the certificate of registration of any trade union specified PROCESS A petition will be instituted in the court of law at the hearing of the petition, all persons whose interest or rights may in the opinion of the court be affected by the dissolution shall be put on notice. In the event of a winding up or dissolution of the association there remains after the satisfaction of its debts and liabilities, and property whatsoever, the same shall not be paid to or distributed among members of the association but shall be given or transfer to institution with similar objective. CAMA S.691 (4). If this is not possible, the property shall be transferred to some charitable object. S. 691 (5) 10. Please specify positive measures taken to ensure that any restrictions on the free exercise of the right to freedom of association are in accordance with your obligations under international human rights law (proportionality test and due process guarantees). 11. Please indicate under which conditions associations can receive domestic and foreign funds or resources in your country. Are there any specific limitations (including in practice) on receiving funds or resources? 12. Please a) describe positive specific legislative/institutional measures taken to promote and ensure the participation of associations in the decision-making process in your country; and b) provide one or more recent examples where such measures have been implemented. ANSWER: Public hearings conducted in the legislative chambers. B) the most recent is the public hearing on the removal of fuel subsidy which is ongoing 13. In this context, please a) describe positive specific legislative/institutional taken to build and strengthen the human rights capacity of administrative officials in charge of implementing the law in your country; and b) provide one or more recent examples where such measures have been implemented.

9 14. Please describe one or more recent examples where the right to freedom of association may have not been respected and the reasons for citing this example(s). In particular, please describe challenges faced in the implementation of laws, policies or programmes for the promotion and protection of the right to freedom of association in your country. Please provide lessons learnt in that regard. Briefly evaluate, in both

10 law and practice, the enjoyment of the right to freedom of association in your country, including by women, individuals facing discrimination or violence because of their sexual orientation and gender identity, as well as persons with disabilities, espousing minority or dissenting views or beliefs, and belonging to other groups at risk. Cooperation with UN and regional human rights mechanisms: 15. Please indicate any cooperation your country has with the United Nations and regional human rights mechanisms aimed at maximizing the promotion and protection of the rights to freedom of peaceful assembly and of association.