CRIMINAL LAW 2.12 PUBLIC ORDER OFFENCES
TOPIC THIRTEEN: SOME OFFENCES ON PUBLIC ORDER.
Certain offences that tend to threaten or disturb public order and peace have been criminalized. They include:
The law seeks to strike a balance between the freedom of association and assembly as against the preservation of public order and public peace.
Section 69 of the Criminal Code provides that; (the elements are in bold letters) where THREE OR MORE with the intent to carry out a common purpose assemble in such a manner or being assembled in such a manner as to cause reasonable fear that they would tumultuously disturb the peace of the neighbourhood, they are an unlawful assembly.
Section 100 of the Penal Code has a similar provision as above but the requisite number is “five” (5) or more people. It also appears that from S 12 of the Public Order Act that 5 is the number there.
:: It is immaterial that the original assembly was lawful if they conduct themselves in such a manner as to cause reasonable fear that they would tumultuously disturb the peace of the neighbourhood where they are so gathered. Except the accused persons assembled to prevent someone (or persons) from breaking into a house to commit a felony therein.
:: An unlawful assembly graduates into a RIOT where such assembly actually begins to disturb the peace of the neighbourhood.
:: Unlawful assembly- 1 year. Riot-3 years punishment.
:: The test is whether a reasonable man based on the facts and circumstances of the case would fear or apprehend fear. As the court held in R V Vincent that it would not apply to a timid or foolish person.
In R V Eyo, a crowd of about 500 persons were proceeding, bearing and brandishing lethal weapons and singing songs and obstructing the highway it was held that they constituted an unlawful assembly and were rioters.
There must have been a gathering for a common purpose and not that a fight suddenly ensued. In Ogenyi V IGP, family heads gathered to settle a chieftaincy dispute. A disagreement arose and two factions were formed. One faction fought the other and some got injured. The court held that they were not gathered for a common purpose. The purpose was formed suddenly after the gathering. This is not an unlawful assembly but a sudden affray. But I believe that if they had (instead of fighting each other’s fraction) started moving with weapons or sticks, they can be said to be rioters. Common purpose is also important.
The Constitutionality of the Public Order Act and the “Permit” requirement.
The Section 12 of the Public Order Act defines an assembly to be any meeting of five or more persons. It requires that a permit must be obtained from the governor (who can delegate such granting to the commissioner of police) before meeting or procession on a public place or road. Where a meeting takes place without the requisite licence, the partakers are gathered unlawfully. Non-compliance can ground conviction to the tune of N1,000 and (or) imprisonment for 6months.
In Chukwuma V COP, the Supreme Court affirmed the lawfulness of the public order act. This provision has been challenged in various cases as amounting to a violation of the right to peaceful assembly and association guaranteed in Section 40 of the 1999 constitution, therefore void to the extent of its inconsistency. In ANPP V IGP, the court declared the requirement of police permit as unconstitutional. Also, in the Ghanaian case of NPP V IGP Accra, the public order Decree which has a similar provision with our own Public Order Act was nullified on similar grounds.
Just note that when all these kind of issues are thrown up in the exam, you discuss the principles, support with case laws and statutes and then give your argument which can be predicated on a criticism supported by certain constitutional provisions.
Section 88(1) provides that where three or more are gathered under any of the following circumstances:
- Bearing or wearing any firearm, or offensive weapon (see Section 403 B of the Criminal Code, Section 11 of the Robbery and Firearms Act for the definition of a firearm or offensive weapon).OR
- Publicly exhibiting any banner, emblem, symbol, calculated to promote animosity between persons of different faiths or factions. OR
- Being accompanied by music, beating of drums or other noise calculated to promote animosity.
…and join in a procession for the purpose of celebrating any religious or segregating ceremony… are guilty of an offence and punishable for one month. Six months for an offender wearing a firearm or an offensive weapon. A similar provision can be found in Section 111 of the Penal Code.
Note that if a peace officer has commanded them to disperse, anyone who disregards such order after 15 minutes of proclamation can be liable to 3 years imprisonment. Note R V Eyo earlier noted.
Section 2 of the Seditious Meetings Act, 1961 applying only to the Federal Capital Territory (Abuja) provides that it is unlawful for more than 50 people to convene within a radius of one mile of (to) the National assembly during any sitting day. Except such gathering is:
- For the business of the parliament.
- For religious, charitable or scientific purpose,
- Other purpose with the consent of the president.
A participant of such seditious meeting could be convicted for not less than N100 or liable to 6 months imprisonment.
Section 69 provides that as soon as unlawful assembly begins to act in a tumultuous manner, it becomes a riot. This is similar to the definition of riot by Section 70 of the Penal Code. In essence, you can say a riot constitutes an actual tumultuous disturbance which was suspected when the accused persons began to gather.
Under the English Law, riot is an indictable offence punishable with 10 years or an unlimited fine or both. However in Nigeria, Section 71 of the Criminal Code generally levies a punishment of three (3) years.
In R V Eyo, a crowd of about 500 persons were proceeding, “bearing and brandishing lethal weapons” and singing songs and obstructing the highway. The court held that they constituted an unlawful assembly and were rioters.
In Adebiyi V IGP, the court sustained that the offence of riot was committed where the accused group of persons beat up the victim and striped him naked in broad daylight.
Section 74 provides that where the crowd has been commanded (by a peace officer) to disperse and 12 or more continue to behave riotously; they get 5-years. If a person prevents the officer form making the proclamation; he gets 10 years. If the peace officer has been prevented and a person knew of this but nevertheless continued to riot, that one gets 5 years imprisonment.
The Riot Damages Act provides for compensation of those whose property are damaged due to the riot.
Section 83 provides that it is a misdemeanour to participate in a fight in public.
Unlike riot and duel, affray is usually unpremeditated as there is usually no common intention/purpose but two or more are disagreeing and in actual fight.
Just note the following:
:: It takes two (or more) to tango as a person cannot fight himself.
:: Words alone cannot constitute affray no matter how frightening-Robinson V R.
:: the fight must be in a Public Place. i.e. a place accessible to members of the public- Areh V COP. For example a public park, train station, mall, and so on. Although under English Law, the offence may be committed where the fight did not occur in a public place (as was held in Button V DPP).
:: Certain defences could avail the accused. For example, self-defence See Section 33(2)(a) of the 1999 Constitution; Section 287 of the Criminal Code. There must be reasonable apprehension of death or grievous bodily harm, reasonable and commensurate force must also be used in warding off attack.
You can see R V Dixon.
Don’t get confused here I understand that these offences may appear similar (i.e. disturbing public peace). Lemme attempt an amateur explanation here. Looking at the Eyo case earlier noted, the 500 people might have agreed to meet at a place. When they all met together holding weapons, etc. they are said to be unlawfully assembled. When they actually begin to move/proceed (procession) then they can be said to be in unlawful procession… then if they actually begin to disturb the peace or cause pandemonium or fear (like overturn vehicles, vandalize properties, etc.), they are said to be rioters. If the unlawful assembly (or possibly procession and riot) occurs within a radius of one mile of/to the National Assembly (i.e. in Abuja) during any sitting day they may generally be held to be in seditious meeting (unless they fall within the exceptions noted earlier under sc 2 Seditious Meeting Act). If perhaps the 500 people constitute two fractions of the same club and a member of one fraction mistakenly hit a member of another faction during the riot and the other faction retaliates then both fractions forget that they came to riot but rather begin to fight themselves (i.e. one another… although they are too many) then (for the sake of you understanding…) they can be said to commit affray.