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SPECIAL EDITORIAL: On Revolution, Treason, Treasonable Offences And The Fundamental Right To Protest

By Osigwe Ahmed Momoh


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) a very technically sound judgment 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 malhanding 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.

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