A Comparative Analysis of The Right

Journal of Comparitive Law SA 2024 Vol 11 V4.
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ELEVEN
1 2024
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CONTENTS
ARTICLES
A CRITICAL REVIEW OF JURISPRUDENCE ON THE ADJUDICATION OF

PRESIDENTIAL ELECTION PETITIONS IN AFRICA – Justice Mavedzenge. . . . . . . . 1
A COMPARATIVE ANALYSIS OF THE RIGHT TO PROTEST UNDER THE

NIGERIAN PUBLIC ORDER ACT AND THE SOUTH AFRICAN REGULATION
OF GATHERINGS ACT – Cyril Ekeke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TOBACCO LABELLING AND ADVERTISING RULES: LESSONS FROM OTHER

COUNTRIES FOR ZIMBABWE – Christopher Munguma. . . . . . . . . . . . . . . . . . . . . . . 56
LECTURE CRITIQUE DE LA LOI CAMEROUNAISE RELATIVE A LA RECHERCHE

MEDICALE IMPLIQUANT LA PERSONNE HUMAINE – Sylvie Ngamaleu Djuiko. . . . . 84
EDITORIAL POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
ISSN 2311-6889 This book is copyright under the Berne Convention. In terms of the Copyright Act,
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JCLA EDITORIAL STAFF AND BOARD
Editor-in-chief
Prof Ada Ordor, Centre for Comparative Law in Africa, University of Cape Town
Editorial Staff
Dr Victor Amadi (Managing Editor – University of Cape Town)
Dr Raisa Nyirongo (Co-Managing Editor – University of Cape Town)
Dr Jonathan Bashi Rudahindwa (Francophone Editor – SOAS, University of London)
Mr Chebo Tamajong Nfor (French Editorial Assistant – University of Cape Town)
Advisory Board
Prof Salvatore Mancuso – University of Palermo, Italy
Prof Charles M Fombad – University of Pretoria, South Africa
Prof Lea Mwambene – University of the Western Cape, South Africa
Prof Jacques du Plessis – Stellenbosch University, South Africa
Prof Christa Rautenbach – North-West University, South Africa
Prof Faizel Ismail – University of Cape Town, South Africa
Prof Ignazio Castellucci – University of Teramo and Trento, Italy
Prof Danie Visser – Emeritus, University of Cape Town, South Africa
Prof Tom Bennett – Emeritus, University of Cape Town, South Africa
Prof Chuma Himonga – Emeritus, University of Cape Town, South Africa
Prof Margaret Munalula – University of Zambia, Zambia
Prof Muna Ndulo – Cornell University, USA
Prof Etienne Nsie – Universite Omar Bongo, Gabon
Prof Ndiaw Diouf – Universite Cheikh Anta Diop, Dakar, Senegal
Prof Christian N Okeke – Golden Gate University, San Francisco, USA
Prof Alain Kenmagne – Simo University of Yaoundé II, Cameroon
Prof Rajendra Parsad Gunputh – University of Mauritius, Mauritius
Prof Kebreab Habtemichael – University of Asmara, Eritrea
Contact
[email protected]
JCLA_2024_vol_11_iss_1_BOOK.indb 1 2024/07/22 13:12

A COMPARATIVE ANALYSIS OF THE RIGHT
TO PROTEST UNDER THE NIGERIAN PUBLIC
ORDER ACT AND THE SOUTH AFRICAN
REGULATION OF GATHERINGS ACT
Cyril Ekeke*
Abstract
The handling of the #EndSARS protests in 2020 and 2021 by the Nigerian
authorities has once again brought to the fore the restriction of the right to protest
in Nigeria, and in Africa as a whole, and the need to compare the right to protest
under various African jurisdictions. Protest can be the catalyst for positive change in
the social, political, economic and cultural life of a country, and therefore the right
to protest is guaranteed under international, regional African and domestic human
rights legal frameworks. In Nigeria, the Public Order Act of 1990 is designed to
give effect to the provisions of the Constitution in terms of the appropriate and
peaceful conduct of protests. Likewise in South Africa, the Regulation of Gatherings
Act 205 of 1993 regulates the holding of public gatherings and demonstrations,
in alignment with the provisions of the Constitution. This paper applies doctrinal
methodology to undertake a comparative study of the right to protest under the
Nigerian Public Order Act and the South African Regulation of Gatherings Act,
specifically because South Africa has seen a groundswell of protests in the past few
years with minimal restrictions. This paper finds that despite some shortfalls in the
Regulation of Gatherings Act, it is a more potent law than the Public Order Act
in ensuring the right to protest. This paper further argues that the robustness of
the Regulation of Gatherings Act could serve as a template for strengthening the
Nigerian Public Order Act to fully guarantee the right to protest in Nigeria.
Keywords: public order; Regulation of Gatherings Act; right to protest;

Nigeria; South Africa; #EndSARS; international law
Résumé
La gestion des manifestants de #EndSARS en 2020 et 2021 par les autorités
Nigérianes a une fois de plus mis en avant la restriction du droit de manifester au
Nigéria et en Afrique dans son ensemble et la nécessité d’examiner comparativement
le droit de manifester dans certaines juridictions Africaines. Les protestations ont un
impact positif sur la vie sociale, politique, économique et culturelle de notre monde.
Le droit de manifester est garanti par les cadres juridiques internationaux, régionaux
africains et nationaux relatifs aux droits de l’homme. Au Nigeria, la loi sur l’ordre
public de 1990 est conçue pour donner effet aux dispositions de la Constitution
en ce qui concerne la conduite appropriée et pacifique des manifestations. De même,
en Afrique du Sud, la loi 205 de 1993 sur la réglementation des rassemblements
*
LLB, BL (Nigeria) LLM, LLD (Pretoria), Senior Lecturer, Federal College of Education,
Rivers State, Nigeria. Email [email protected] or [email protected].
31 https://doi.org/10.47348/JCLA/v11/i1a2

32 JOURNAL OF COMPARATIVE LAW IN AFRICA VOL 10, NO 2, 2023
régit l’organisation de rassemblements publics et de manifestations en faveur des

dispositions de la Constitution. Cet article utilise la méthodologie doctrinale
pour entreprendre une étude comparative du droit de manifester en vertu de la loi
nigériane sur l’ordre public de 1990 et de la loi sud-africaine 205 de 1993 sur
la réglementation des rassemblements, car l’Afrique du Sud a connu une vague
de protestations au cours des dernières années avec un minimum de restrictions.
Cet article constate que, malgré les lacunes de la loi sur les rassemblements, celle-
ci est plus efficace pour garantir le droit de manifester. Il suggère en outre que la
robustesse de la loi sur les rassemblements devrait être mise à profit pour renforcer la
loi sur l’ordre public afin de garantir pleinement le droit de manifester au Nigéria.
Mots-clés: ordre public; loi sur les rassemblements; droit de manifester;

Nigeria; Afrique du Sud; #endSARS; droit international
Introduction
The peaceful holding of rallies, marches, demonstrations and other means
of protest is not a new phenomenon in Africa. However, in recent years,
Africa has witnessed many noteworthy and more violent protests. These
include, for example, the 2010 Arab Spring which started in Tunisia
and spread to Egypt and Libya, the 2012 Marikana marches in South
Africa, and the 2020 and 2021 #EndSARS protests in Lagos, Nigeria.
A culture of protest has spread widely across Africa, shaping political
events in an attempt to change history. Dictators have tumbled, states
have been turned around, and the status quo has been changed in several
states, in part due to protest and demonstrations. Protests provide the
platform for individuals and groups to demonstrate their opposition to
government’s action or inaction, to draw attention to poor governance
and to demand change. Nonetheless, government authorities in Africa
often treat protests as either a problem to be controlled or a threat that
needs to be extinguished.
Protest remains the subject of much intense discussion especially in
legal circles, where the focus is on finding a balance between the right
to protest as provided in the constitutions of various countries and
protecting other rights in their Bills of rights. While the right to protest
is important for all societies, some protests carry risks and the potential to
harm others. Thus, the law may set out some necessary restrictions to the
right to protest, under limited and narrowly defined circumstances, such
as in the interests of national security, and the safety, health, values, and
rights and freedoms of others.1
The right to peaceful assembly imposes negative and positive duties on
state parties to ensure the enjoyment of this right without discrimination.
There is a negative duty that “requires States to allow such assemblies to
1
See General Comment No. 37 (2020) on the Right of Peaceful Assembly (art 21), paras 36-69.
https://doi.org/10.47348/JCLA/v11/i1a2

A COMPARATIVE ANALYSIS OF THE RIGHT TO PROTEST UNDER
THE NIGERIAN PUBLIC ORDER ACT AND THE SOUTH AFRICAN
REGULATION OF GATHERINGS ACT 33
take place without unwarranted interference and to facilitate the exercise

of the right and to protect the participants”.2 This can be achieved by
states refraining from dispersing, restricting or disrupting protests without
convincing justification.There is a positive duty on state parties to facilitate
peaceful assemblies and to promote an enabling environment for the
exercise of the right to protest, which includes providing protection for
protesters “against possible abuse by non-state actors, such as interference
or violence by other members of the public”.3
The right to peaceful assembly, “which may take many forms,
including demonstrations, protests, meetings, processions”,4 is protected
under the international human rights framework. Article 21 of the 1966
International Covenant on Civil and Political Rights (ICCPR) provides:
The right of peaceful assembly shall be recognized. No restrictions

may be placed on the exercise of this right other than those imposed
in conformity with the law, and which are necessary in a democratic
society in the interests of national security or public safety, public order,
the protection of public health or morals or the protection of the rights
and freedoms of others.
Correspondingly, at the African regional level, article 11 of the African

Charter on Human and Peoples’ Rights (African Charter) provides:
[E]very individual shall have the right to assemble freely with others.
The exercise of this right shall be subject only to necessary restrictions
provided for by law, particularly those enacted in the interest of national
security, the safety, health, ethics and rights and freedoms of others.
Similarly, the right to peaceful assembly is articulated in the domestic

laws of various countries. Nigeria and South Africa are state parties to the
ICCPR, as well as the African Charter, but they also have domestic laws
that ensure the right to protest; the Nigerian Public Order Act of 1990
(POA) and the South African Regulation of Gatherings Act 205 of 1993
(RGA), respectively. This paper undertakes a comparative analysis of the
practices and domestic laws that protect the right to peaceful assembly in
Nigeria and South Africa. Its aim is to demonstrate that despite certain
shortfalls, the RGA includes some provisions that guarantee better
protection of the right to protest than the current POA, which could
leverage these provisions to strengthen its capacity to ensure effective
protection of the right to protest.
2
Ibid at paras 8 and 23.
3
Ibid at para 24.
4
Ibid at para 6.

A tale of protest in Nigeria and South Africa before the Public

Order Act and the Regulation of Gatherings Act
Protests and demonstrations have always been part of the Nigerian and
South African systems. Most of the protests have either resulted in a positive
change to the system or further ignited a chain of protests. In this section
I will consider some of the statutes that restricted gatherings and notable
protests in Nigeria and South Africa predating the POA and the RGA.
These incidents highlight the trajectory of the states’ various attempts to
violently restrict and stifle the right to protest and their intolerance of
protests, which has been, and remains, a long-standing concern even after
the establishment of the POA and the RGA.
Post-independence, Nigeria witnessed some significant protests,
agitations and demonstrations by citizens, youths and labour unions, a
few of which will be highlighted below. Most of these protests sought
better living conditions, or a change of policies or action against an
oppressive regime, including the “Ali Must Go” protest of 1978, the SAP
protest and the #EndSARS protest, discussed in detail below. Before the
POA came into effect, there was no auxiliary legislation regulating the
holding of public gatherings and demonstrations in Nigeria. However,
the right to peaceful assembly was guaranteed under section 26(1) of the
1963 Constitution of Nigeria and section 37 of the 1979 Constitution
of the Federal Republic of Nigeria. Nevertheless, despite the protection
of the right to peaceful assembly under the Constitution, the Nigerian
authorities consistently ignored these provisions and made various
attempts to stifle and restrict protest.
The first notable post-independence protest that the Nigerian
authorities attempted to restrict was the “Ali Must Go” protest of 1978,
organised by the National Union of Nigerian Students (NUNS), which
was ignited when the Federal Government of Nigeria increased, among
other fees, student meal tickets at Nigerian universities by 50 kobo, from
N1.50 Kobo to N2.00.5 The first day of the protest, on Monday, 17 April
1978, began with a boycott of lectures by students in Nigerian universities
affiliated to NUNS. The first day was peaceful and successful without any
ugly incidents. On the second day, the students had planned a peaceful
march to Dodan Barracks, the then seat of the federal government, to
deliver a protest letter setting out their demands to General Obasanjo, the
then head of state.6 However, the protest was restricted by the police who
barricaded the University of Lagos (Unilag) main gate thereby preventing
5
Adebowale, O. ‘History of protests in Nigeria: Reactions and consequences’ (25 October
2020) The Guardian, available at https://guardian.ng/life/history-of-protests-in-nigeria-reactions-
and-consequences-2/, accessed on 5 June 2023.
6
Madunagu, E. ‘“Ali must go” and the Nigerian left’ (28 November 2017) The Guardian,
available at https://guardian.ng/opinion/ali-must-go-and-the-nigerian-left/, accessed on 5 June
2023.

the students from advancing to Dodan Barracks.7 The confrontation that

followed between the unarmed students and armed police officers resulted
in the death of Akintunde Ojo, a student of architecture at the University
of Lagos.8 In the ensuing melee, eight students of the Ahmadu Bello
University, Zaria were killed by the police.9 This provoked a nation-wide
protest by students and non-students around the universities in Nigeria
for about a week. The main slogan was “Ali Must Go!” calling for the
sacking of the serving Federal Commissioner (Minister) of Education,
Colonel (Dr) Ahmadu Ali.10
Another notable post-independence protest in Nigeria prior to the
POA was the 1989 anti-Structural Adjustment Program (SAP) protest.
SAP was an IMF-inspired austerity measure, which included a 10 per
cent devaluation of the Nigerian currency, the liberalisation of imports,
the retrenchment of many workers in the public sector, and cuts to what
were already pathetic welfare programmes.11 The few workers who were
not retrenched were directed to tighten their belts and make sacrifices
for a better future. However, the bosses (military and civilians alike) got
much fatter. There was an allegation of large-scale theft of public funds
and the stashing of these funds abroad by the then head of state, General
Babangida and his deputy, Admiral Aikhomu.12 There was mass anger,
which ignited a protest movement, led mostly by students, against the IMF
and World Bank-inspired SAP, and against real and perceived corruption
in high places.13 As usual, the government deployed the police to suppress
the anti-SAP protest, and closed down six universities for one session.14
At the time of the “Ali Must Go” and the anti-SAP protests, the
right to peaceful assembly was guaranteed under section 26(1) of the
1963 Constitution of Nigeria and section 37 of the 1979 Constitution
of the Federal Republic of Nigeria, respectively. Nevertheless, Nigerian
authorities ignored these provisions and attempted to subdue the protests,
thereby restricting citizens’ right to protest.
Like Nigeria, South Africa has witnessed an increase in the number of
protests over the last decades. Protests in the post-apartheid era are mostly
due to the immense social problems existing in South Africa, which have
7
Ibid.
8
Adebowale op cit note 5.
9
Ibid.
10
Madunagu op cit note 6.
11
Maja-Pearce, A. ‘The mark of the beast: Nigeria in the year 1989’ Index on Censorship (9/89),
available at https://journals.sagepub.com/doi/pdf/10.1080/03064228908534718, accessed on
8 June 2023.
12
Ibid.
13
Ibid.
14
Eboh, M.P. ‘The anti-SAP upheaval in Nigeria’ (1990) 16(3) Philosophy and Social Action at
31, 32.

been inherited from the apartheid state.15 The role of protest in the anti-
apartheid struggle and prior to the RGA was mostly as an instrument
for applying pressure on the apartheid government. The anti-apartheid
struggle included the use of mass protests to challenge the state and the
social and legal systems that supported it. As expected, most of the anti-
apartheid protests were violently disrupted by the apartheid government
with the aid of draconian legislation enacted to ban gatherings and public
assembly. The primary legislation used by the apartheid government to
restrict protests were the Suppression of Communism Act 44 of 1950 (the
SCA), the Riotous Assemblies Act 17 of 1956 (the RAA) and the Internal
Security Act 74 of 1982 (the ISA). At that time, the Republic of South
Africa Constitution Act, 1961, which was in force until 1984, did not
guarantee freedom of assembly. Below, I will briefly consider the role these
pieces of legislation played in the suppression of gatherings and assembly
in the apartheid era.
The growth of liberation movements, such as the African National
Congress (the ANC) and the South African Communist Party (the
SACP) in the apartheid era, led to the promulgation of the SCA by the
apartheid government under the National Party (the NP). In the preamble
of the SCA, it described its purpose as proscribing the SACP and any
other organisation, activity, event or publication that might encourage
communistic ideas.16 Although, the purpose of the SCA related particularly
to the suppression of communist-related activities, its effect was much
wider than that. In the definition of a communist under section 1 of the
SCA, the President had the power to declare anyone a communist.17 The
effect was that the provisions of the SCA were enforced against all groups
radically opposed to the practices of the apartheid government, including
the ANC and the SACP, as they were deemed communist. Furthermore,
section 9(1) of the SCA granted the Minister of Justice broad powers to
ban a gathering if he was satisfied that the objects of communism would
be advanced at such gathering.18
15
Omar, J. ‘The Regulation of Gatherings Act – a hindrance to the right to protest?’ (2017) 62
SA Crime Quarterly at 22.
16
See the Preamble of the Suppression of Communism Act 44 of 1950.
17
Section 1 of the SCA defined a communist as “a person who professes to be a communist or
a person who is deemed by the State President to be one on the ground that he has advocated or
is advocating the achievement of any of the objects of communism or any act or omission which is
calculated to further the achievement of those objects”.
18
Section 9(1) of the SCA said: “Whenever the Minister is satisfied that any person engages in
activities which are furthering or are calculated to further the achievement of any of the objects of
communism, he may by notice under his hand addressed and delivered or tendered to that person,
prohibit him from attending, except in such cases as may be specified in the notice or as the Minister
or a magistrate acting in pursuance of his general or special instructions may at any time expressly
authorize”.

However, the SCA did not deter the anti-apartheid resistance groups
which embarked on the Defiance Campaign of 1952,19 which resulted
in the enactment of the RAA.20 The RAA sought to strengthen criminal
sanctions in respect of any crimes related to political protest, and to
consolidate existing laws that restricted gatherings.21 Section 2(1) of the
RAA gave relevant district magistrates the power to bar any assembly
any time they received a complaint from a concerned or affected party.
Additionally, section 2(3) of the RAA gave the Minister of Justice the
power to bar any class of assembly or to forbid any person from attending
such assembly. The Minister of Justice had a wide discretion in exercising
this power, which included imposing blanket bans on assemblies for as
long as he wished.22 Finally, section 2(4)(b) of the RAA made it an offence
to act in violation of a banning order imposed by the Minister of Justice.
The court affirmed the power of the Minister of Justice as provided in
section 2 of the RAA in S v Turrell23 when it held that a magistrate could
only bar a specific assembly, and not a specific class of assembly.The power
to bar a specific class of assembly was only bestowed on the Minister of
Justice.24
Following the affirmation by the court, in 1977 the Minister of
Justice published a notice in the Government Gazette banning all open-
air gatherings,25 excluding those of a genuine sporting nature. When this
notice was challenged in S v Mtutuzeli,26 the court held that the mere
exclusion of a genuine sporting event from the ban did not render the
notice invalid.27 While interpreting these statutes, the judiciary did not
consider the circumstances in which the country found itself. It was a
time when the fight for freedom and political protest were at their peak.
The judges were reluctant to interpret legislation in a way that would
challenge the suppression of gatherings by the apartheid government.
Although there was no local legislative or constitutional basis for the
judges to do more, at the time the 1966 International Covenant on Civil
and Political Rights (ICCPR) and specifically its article 21 set out the
right to freedom of expression and assembly. Since South Africa only
19
A campaign of civil disobedience where a number of Africans would peacefully but
deliberately disobey the law and present themselves for arrest and flood the country’s jails. They
hoped that this would draw the attention of the public to the apartheid laws and force the
government to abolish them.
20
Woolman, S. ‘Assembly, demonstration and petition’ in I Currie & J de Waal (eds) The Bill of
Rights Handbook (2013) at 377–380.
21
Preamble of the Riotous Assemblies Act 17 of 1956.
22
Tsoaeli v S [2016] ZAFSHC 217 at para 19.
23
S v Turrell 1973 SA 248 (C).
24
Ibid at 256.
25
GG 5758 of 1977.
26
S v Mtutuzeli 1979 SA 764 (T).
27
Ibid at 166.

became a signatory to the ICCPR in 1998, it had no force in the country

until it was ratified, and so judges were under no obligation to honour it.
To further restrict political activity and freedom of assembly, the Rabie
Commission was established by the apartheid government to examine the
Act regulating protests and make recommendations as to its reform, which
it did in February 1982.28 The Rabie Commission recommendations led
to the enactment of the ISA with its main purpose being to provide
measures to maintain security, law and order in the country.29 Again,
section 46(1) of the ISA30 gave magistrates the power to ban any assembly
in any district or class of gathering in a particular district. Likewise, sec
tion 46(3) of the ISA31 gave the Minister of Law and Order the power
to ban any assembly. The court described the powers of the Minister
of Law and Order under section 46(3) as having “no bounds”.32 This
clearly shows the extreme measures the apartheid government adopted to
restrict any protest against it. Although the apartheid government had the
power to suppress virtually all protests, demonstrations and criticism of
its policies, black African groups, with the support of some sympathetic
whites, defiantly held protests, demonstrations and strikes against the
apartheid system and its laws. The application of the restrictive legislation
reflected the force with which the apartheid government responded to
protests and demonstrations during this time.
One of the earliest violently restricted protests against apartheid took
place in Sharpeville on 21 March 1960. The subsequent Sharpeville
massacre was a decisive moment in South African history and hardly
any event looms larger in the history of the apartheid era. The Pan-
Africanist Congress (the PAC), a breakaway group of the ANC, which was
created in 1959 by Robert Sobukwe, organised a nationwide protest for
28
Woolman, S. & Waal, J.D. ‘Voting with your feet’ in Van Wyk, D., Dugard, J., De Villiers, B., &
Davis, D. (eds) Rights and Constitutionalism – The New South African Legal Order (1994) at 292–294.
29
Preamble of the Internal Security Act 74 of 1982.
30
Which stated: “Whenever a magistrate has reason to apprehend that the public peace would
be seriously endangered– (a) by any gathering in his district; or (b) by a particular gathering or any
gathering of a particular nature, class or kind at a particular area or wheresoever in his district, he
may – (i) Prohibit for a period not exceeding forty-eight hours every gathering in his district or that
particular gathering or any gathering of a particular nature, class or kind at a particular place or in
a particular area or everywhere in his district, except in such cases as he may expressly authorize in
the prohibition in question or at any time thereafter …”
31
Which stated: “The Minister may, if he deems it necessary or expedient in the interest of the
security of the State or for the maintenance of the public peace or in order to prevent the causing,
encouraging or fomenting of feelings of hostility between different population groups or parts of
population groups of the Republic, prohibit in a manner determined in subsection (2)(a) – (a) any
gathering in any area; or (b) any particular gathering or any gathering of a particular nature, class or
kind at a particular place or in a particular area or wheresoever in the Republic, during any period or
on any day or during specified times or periods within any period, except in those cases determined
in the prohibition in question by the Minister or which the Minister or a magistrate acting in
pursuance of the Minister’s general or special instructions may at any time expressly authorize”.
32
PG Castel NO v Metal & Allied Workers Union 1987 SA 795 (A).

21 March 1960 with the aim of pressuring the apartheid government to

abolish South Africa’s pass laws.33 Protesters were asked to stay away from
work, surrender their pass books and give themselves up for arrest. Sobukwe
stressed that the protest should be completely non-violent.34 Early on
21st March PAC leaders first gathered in a field not far from the Sharpeville
police station, and after a substantial crowd of people of about 20 000
people had joined them, they marched to the police station “chanting
freedom songs and calling out the campaign slogans ‘Izwe lethu’ (Our
land); ‘Awaphele amapasti’ (Down with passes); ‘Sobukwe Sikhokhele’
(Lead us, Sobukwe)”.35 The gathering proceeded quite peacefully but
turned ugly when police officers with armoured vehicles were ordered
to stop the march. What happened next was completely unexpected. The
police officers started shooting at the crowd. Even as people were fleeing
in panic, the police continued to fire on them. By the end of the day, they
had killed about 69 protesters and wounded more than 180 in what turned
into a fully-fledged apartheid massacre.36 Afterwards, the government
declared a state of emergency and arrested about 2 000 people. Then, on
8 April 1960, the ANC and the PAC were banned, making it illegal to
become a member of either of these organisations.37 No one anticipated
that a protest this peaceful would be so brutally quelled by the South
African apartheid government.
During the Soweto student uprising of 1976, the apartheid government’s
security forces responded with the same restrictive, violent approach
as that of the Sharpeville massacre in 1960, and subsequently arrested
thousands of township youth. The Soweto student uprising was sparked
off when the apartheid government introduced yet another symbol of
oppression to the already reviled system of Bantu education, in the form
of the compulsory use of Afrikaans instead of English as the medium of
teaching in township schools.38 The Black Consciousness Movement (the
BCM), the most outspoken opposition to the change, condemned it and
referred to it as instilling notions of inferiority in the minds of Africans.39
The BCM accordingly rallied students in Soweto to stage a protest march
33
Du Toit, A. ‘Understanding South African political violence: A new problematic?’ (1993)
United Nations Research Institute for Social Development Discussion Paper 43, at 10, 11, available
at https://www.files.ethz.ch/isn/28972/dp43.pdf, accessed on 26 June 2023.
34
‘Sharpeville Massacre, 21 March 1960’ South African History Online, available at https://www.
sahistory.org.za/article/sharpeville-massacre-21-march-1960, accessed on 26 June 2023.
35
Ibid.
36
McRae, M. ‘The Sharpeville massacre: A violent turning point in the history of South
African apartheid’ (2019) Canadian Museum for Human Rights, available at https://humanrights.
ca/story/sharpeville-massacre, accessed on 26 June 2023.
37
Ibid.
38
Pohlandt-McCormick, H. “‘I Saw a Nightmare …” Violence and the construction of
memory (Soweto, 16 June 1976)’ (2000) 39(4) History and Theory at 25.
39
Mafeje, A. ‘Soweto and its aftermath’ (1978) 11 Review of African Political Economy 22.

in opposition to the introduction of Afrikaans in township schools.40

On the morning of 16 June 1976, students protested peacefully through
the township, singing and shouting slogans condemning Afrikaans and
Bantu education. The protest was meant to end at a gathering in Orlando
Stadium. Police officers arrived to disband the protesters and began
shooting with live ammunition into the protesting crowd, killing two
young people and provoking violent confrontations in which many more
were maimed or killed.41
The response to protests in both Nigeria and South Africa before the
implementation of the POA and the RGA was one of brutal repression.
The above accounts have shown a consistent pattern of behaviour on the
part of the Nigerian and South Africa authorities which has continued
until recent times. They protected the political and economic interests
of the politicians and viciously suppressed any expression of dissent
against the government by way of protest, demonstrations or even
political association. However, while the Nigerian authorities deliberately
disregarded the provisions of its constitution to protect the right to
peaceful assembly, the South African apartheid government went a step
further and enacted laws to suppress the right to protest and acted thereon.
In the next section, I will compare the POA and the RGA to examine the
effect of these two Acts in their respective jurisdictions.
A comparative analysis of the right to protest under the Public

Order Act and the Regulation of Gatherings Act
Public order policing is a major challenge for states around the world.
Recent events across the globe show that solving security issues goes
beyond good legislation. In the case of Nigeria and South Africa, the
POA and the RGA, although both controversial, are meant to secure
peace and order in their societies. In this section, these Acts will be
analysed by first comparing their definitions of assembly, gatherings and
demonstrations. Secondly, public and private assembly or gathering will
be compared under both Acts. Thirdly, the requirements for conducting a
lawful assembly or gathering will be compared, as well as their effect on
the rights protected under the Nigerian and South Africa constitutions.
Fourthly, the stipulated conduct for participants in terms of both Acts will
be examined and, lastly, the liability of conveners or organisers for riot
damage in terms of the Acts will be discussed.
40
Ibid.
41
Marks, S. & Trapido, S. ‘South Africa since 1976: An historical perspective’ in Johnson, S.
(ed.) South Africa: No Turning Back (1988).

Definitions of an assembly, a gathering and a demonstration under the POA

and the RGA
Section 1(1) of the POA states that its purpose is to regulate “the proper
and peaceful conduct of public assemblies, meetings and processions”.
Section 12(1) defines an “assembly” as “a meeting of five or more
persons”. The meaning of a “meeting” is included in the definition of
an “assembly”. The meaning of “processions” can be inferred from the
definition of “public procession” under section 12(1) as “a procession in a
place of public resort”. “Place of public resort” is defined as:
any highway, public park or garden and any sea-beach, and any public
bridge, road, lane, footway or pathway, square, court, alley or passage,
whether a thoroughfare or not, and includes any open space or any
building or other structure to which, for the time being, the public have
or are permitted to have access, whether on payment or otherwise.42
The RGA did not define “assembly”. Instead while defining “gathering”, the
RGA includes “assembly” as a subclass or type of gathering. In section 1
of the RGA, “gathering” is defined as:
Any assembly, concourse or procession of more than 15 persons in or

on any public road as defined in the Road Traffic Act, 1989 (Act No. 29
of 1989), or any other public place or premises wholly or partly open
to the air- (a) at which the principles, policy, actions or failure to act of
any government, political party or political organization, whether or not
that party or organization is registered in terms of any applicable law,
are discussed, attacked, criticized, promoted or propagated; or (b) held to
form pressure groups, to hand over petitions to any person, or to mobilize
or demonstrate support for or opposition to the views, principles, policy,
actions or omissions of any person or body of persons or institution,
including any government, administration or governmental institution.43
Furthermore, the RGA makes a distinction between a “gathering” and

a “demonstration” under section 1. The RGA defines “demonstration”
as any protest or march by one or more persons, but not more than 15
persons. This distinction is necessary because “demonstration” does not
attract the procedural requirements of sections 2, 3 and 4 of the RGA.
While the POA’s definition of “assembly”, i.e., “a meeting of five or more
persons”, is narrow and vague, the RGA’s definition of a “gathering” is
quite elaborate and more specific. The RGA understands a gathering to
be an assembly, march or parade of more than 15 persons taking place in
42
See section 12(1) of the Public Order Act, chapter 382 of 1990.
43
Section 1 of the Regulation of Gatherings Act 205 of 1990.

a public space that expresses any form of contestation or is critical of a

person, a company or government body.
Distinction as to public and private assembly under the POA and the RGA
The POA defines “public meeting” or “assembly” to be any assembly in a
place of public resort which is open to the public.44 However this does not
include a religious service conducted in a mosque, church or any building,
which is ordinarily used for lawful worship, social or sporting gatherings
or lawful public entertainment.45 Nevertheless, it seems the court, in
Dr Lewis Chukwuma and 2 Others v Commissioner of Police,46 expanded
the meaning of “public meeting” or “assembly” to include a meeting of
a public nature held in a private property. In Chukwuma, the plaintiffs, a
socio-cultural association of Igbo-speaking people in Northern Nigeria,
planned to hold a meeting of its members at the Yebumot Hotel in Ilorin,
Kwara State. However, while they were holding their meeting, the police
came to the venue and forcefully dismissed the plaintiffs and closed the
venue. Being aggrieved, the plaintiffs brought an action at the Federal
High Court, seeking a declaration that the action of the police was an
abuse of their right of association, freedom of movement and assembly
guaranteed under the constitution. The trial court dismissed the suit and
justified the actions of the police. The plaintiffs appealed to the Court of
Appeal, claiming that their meeting was not public in nature and was not
held in a public place in relation to the provisions of the POA, for which
a permit was obligatory. They held that the venue for their meeting, the
Yebumot Hotel, was a private place so it did not fall under section 12(1)
of the POA, which would have required a permit. The Court of Appeal,
however, reasoned that:
The meeting of the appellants was for all the Igbos in the entire northern
states of Nigeria. The contents of exhibit 1 leave no one in doubt that
though the meeting was to be held in a private place, for all intents and
purposes, same was a public meeting. The question to be asked is this: Can
the meeting of the appellants be described as an assembly? The answer to
the question is provided by section 12(1). By the definition of assembly
stated above, the meeting of the appellants to which all the Igbos in the
northern states were invited was a public assembly.47
The court declared that the meeting of the plaintiffs was a public meeting
since it was a meeting for all Igbo-speaking people in the Northern states
44
Section 12(1) of the Public Order Act, chapter 382 of 1990.
45
Ibid.
46
(2006) All FWLR 177.
47
Dr Lewis Chukwuma and 2 Others v Commissioner of Police (2006) All FWLR 177, 186
paras A-C.

of Nigeria, thereby making the fact that the venue was private property
irrelevant. Thus, they required a permit and their inability to obtain such
permit for the meeting at the Yebumot Hotel, Ilorin justified the action
of the police.48 It would appear that the Nigerian courts extended the
application of the POA to private properties where the meeting is public
in nature.This seems not to be exactly so in the case of the RGA. Section 1
of the RGA confines the application of the RGA to specific areas. These
areas are gatherings that are held “in or on any public road as defined in
the Road Traffic Act, 1989 (Act 29 of 1989), or any other public place
or premises wholly or partly open to the air”. Although there is no
known case law on the application of the RGA to private properties, I
will determine whether the definition of a gathering extends to privately
owned property by a careful examination of the wordings under section 1
of the RGA.
Section 1 of the RGA states that a gathering may occur “in or on any
public road as defined in the Road Traffic Act, 1989 (Act 29 of 1989)”.
The Road Traffic Act 29 of 1989 referred to in the RGA was repealed by
the National Road Traffic Act 93 of 1996 (NRTA). Thus, the definition
of a “public road” in section 1 of the NRTA is the definition that will be
considered to determine what constitutes a “public road” in terms of the
RGA. Section 1 of the NRTA defines a “public road” as:
Any road, street or thoroughfare or any other place (whether a thoroughfare

or not) which is commonly used by the public or any section thereof or to
which the public or any section thereof has a right of access, and includes
– (a) the verge of any such road, street or thoroughfare; (b) any bridge,
ferry or drift traversed by any such road, street or thoroughfare; and
(c) any other work or object forming part of or connected with or
belonging to such road, street or thoroughfare.49
The definition of “public road” under section 1 of the NRTA is very

straightforward and does not extend to privately owned property.
Any other gatherings that fall outside the scope of the definition under
section 1 of the NRTA will either not qualify as a gathering for the
purposes of the RGA or will fall under the definition of “any other public
place or premises wholly or partly open to the air” under section 1 of
the RGA. Next I will determine whether “public place or premises” in
terms of section 1 of the RGA extends to private properties. A careful
analysis will show that privately owned places and premises could qualify
as “public place or premises”.
48
Ibid at 189 paras A-B.
49
Section 1 of the National Road Traffic Act 93 of 1996.

Similar wording was used in the RAA, which may provide a useful
guide. Section 1 of the RAA defined a “public place” as including:
any street, road, passage, square, park or recreation ground, or any open
space, to which all members of the public habitually or by right have
access, and includes any place described in this definition notwithstanding
that it is private property and has not been dedicated to the use of the
public.
The above definition of a “public place” under section 1 of the RAA

specifically includes private property that is accessible to the public,
regardless of whether the property had been made available for public
use. If we use section 1 of the RAA as a guide to interpret the definition
of a “public place” as per the RAA, it would appear that “public place”
extends to certain types of privately owned property, such as a hotel where
the meeting is public in nature. However, it should be noted that while
the RAA was passed at a time of the suppression of mass protests, the
RGA was passed in a new constitutional era. Notwithstanding the diverse
historical contexts of the RAA and the RGA, a similar interpretation of
the areas to which the RAA applies could be extended to the areas to
which the RGA applies.
From the above discussion it is clear that “public meeting”, “gathering”
or “assembly” as per the POA includes any assembly or gathering in a place
of public resort, which is open to the public but excludes any building,
which is ordinarily used for lawful worship, social or sporting gatherings
or lawful public entertainment, and which are private buildings. However,
the Nigerian courts have extended the meaning of a public meeting or
assembly to include any assembly in those buildings excluded by the POA
if the meeting is of a public nature, thereby laying emphasis on the nature
of the meeting rather than the venue of the meeting. On the other hand,
in terms of the RGA, emphasis is placed on the accessibility of the venue
or place of the gathering rather than the ownership of the venue or the
nature of the gathering.Therefore, places that are private but are accessible
and used by the public would qualify as a “public place” as per the RGA.
The requirements for conducting a lawful assembly or gathering under the

POA and RGA
To conduct a lawful assembly in Nigeria, the organisers will have to meet
the requirement under section 1(2) of the POA, which provides that:
Any person who is desirous of convening or collecting any assembly or

meeting or of forming any procession in any public road or place of public
resort shall, unless such assembly, meeting or procession is permitted by
a general licence granted under subsection (3) of this section, first make

application for a licence to the Governor not less than 48 hours thereto,
and if such Governor is satisfied that the assembly, meeting or procession
is not likely to cause a breach of the peace, he shall direct any superior
police officer to issue a licence, not less than 24 hours thereto, specifying
the name of the licensee and defining the conditions on which the
assembly, meeting or procession is permitted to take place; and if he is
not so satisfied, he shall convey his refusal in like manner to the applicant
within the time hereinbefore stipulated.
The effect of the above requirement of the POA to conduct a lawful

assembly would dismay any individual in favour of democratic rights
and civil liberties. The bottom line is that, despite the rights protected
under section 40 of the Constitution,50 section 1 of the POA leaves it
largely and significantly up to the impulse and personal judgment of the
state governor or their police delegate. Furthermore, section 1(5) and (6)
makes the decision of the governor final and conclusive, from which
there shall be no further appeal and judicial review. This provision of
the Act is contrary to the explicit provision of section 36(2) of the 1999
Constitution.
The constitutionality of the requirement in section 1 of POA was
tested in All Nigeria Peoples Party and Others v Inspector General of Police.
In this case, the plaintiffs, who were registered political party, requested
a permit from the defendant so that they could hold rallies across the
country to protest against the rigging of the 2003 elections. The
defendant declined the request. Nevertheless, the plaintiffs ignored the
requirement under section 1 of the POA and went ahead with their
protests. Consequently, the police violently disrupted a protest in Kano
on 22 September 2003, the reason being that no police permit had
been obtained. As a result, the plaintiffs challenged the constitutional
legitimacy of a police permit under section 1 of the POA, as well as
the violent disruption of their protest. The defendant argued that the
plaintiffs had not acquired a permit to protest. While discharging the
argument, the lower court declared, inter alia:
That the requirement of police permit or other authority for the holding
of rallies or processions in Nigeria is illegal and unconstitutional as it
violates section 40 of the 1999 Constitution and Article 11 of the African
Charter on Human and Peoples’ Rights (Ratification and Enforcement)
Act (Cap 10) Laws of the Federation of Nigeria, 1990. That the provisions
of the Public Order Act (Cap 382) Laws of the Federation of Nigeria, 1990
50
Which provides: “every person shall be entitled to assemble freely and associate with other
persons, and in particular he may form or belong to any political party, trade union or any association
for the protection of his interests”.

which require police permit or any other authority for the holding of
rallies or processions in any part of Nigeria is illegal and unconstitutional
as they contravene section 40 of the 1999 Constitution and Article 7
of the African Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990. 51
The defendants were not satisfied with this judgment and therefore they
appealed to the Court of Appeal. The Court of Appeal upheld the High
Court judgment. Declaring the requirement under section 1 of the POA
to be unconstitutional, Justice Adekeye of the Court of Appeal held:
The Public Order Act should be promulgated to complement sections 39

and 40 of the Constitution in context and not to stifle or cripple it.
A rally or placard carrying demonstration has become a form of expression
of views on current issues affecting government and the governed in a
sovereign state. It is a trend recognized and deeply entrenched in the
system of governance in civilized countries – it will not only be primitive
but also retrogressive if Nigeria continues to require a pass to hold a rally.
We must borrow a leaf from those who have trekked the rugged path of
democracy and are now reaping the dividend of their experience.52
With this judgment, it is no longer necessary to obtain a permit to conduct

a protest; protesters in Nigeria only need to notify the authorities of their
intent.53 Note that the court did not declare the POA unconstitutional
– only the part requiring a permit was declared unconstitutional; other
parts of the POA remain law. This has gone a long way towards preventing
governors and the police from abusing the requirement under the POA.
Sadly, the POA itself has not been amended to reflect the decision in
Inspector General of Police v All Nigeria Peoples Party and Others.
The requirements for conducting a peaceful gathering under the RGA
are similar but more elaborate than that of the POA. The RGA provides
procedures to be followed before commencing a gathering. These
procedures apply only to a gathering and not to a demonstration and are
set out under sections 2, 3 and 4 of the RGA. The first requirement for
conducting a lawful gathering is the appointment of two key role players
who will manage the procedures to be followed under the RGA. In terms
of section 2 of the RGA, they are the convener, that is a person appointed
by the organisation concerned to be “responsible for the arrangements
for that gathering” and a deputy to the convener who will assume the
51
All Nigeria Peoples Party and Others v Inspector General of Police (2006) CHR 181.
52
Inspector General of Police v All Nigeria Peoples Party and Others (2007) 18 NWLR (pt 1066)
457 at 491-499.
53
Ekeke, A.C.‘Right to peaceful protest in Nigeria and the recurrent syndrome of brutalization:
The #EndSARS protest debacle’ (2023) 67(2) Journal of African Law at 7.

convener’s role should the convener be unavailable to do so. Finally, the

convener must appoint marshals to help keep the protest orderly and
peaceful on the day.54
The second requirement for conducting a lawful gathering is notifying
the responsible officer.55 Section 3 of the RGA requires the convener
to give notice, seven days before the gathering, by submitting a written
document detailing the convener, deputy convener, date, location(s),
time and route where the gathering or procession will take place and
end, transportation, vehicles to be used, and so on. The seven-day notice
period may have the effect of quashing instantaneous protest and create
difficulties. This is because it does not consider that gatherings or protests
are often an immediate response by a group to a particular policy, injustice
or wrongdoing.
The final requirement for conducting a lawful gathering in terms
of section 4 of the RGA relates to holding meetings, consulting and
negotiating between all relevant stakeholders on the contents of the
notice, the amendment or additions of notices by the convener, if any, and
any conditions placed on the gathering related to time periods, logistics or
conduct of members to meet the objective of the RGA. If an agreement
cannot be reached on certain conditions, the convener may challenge the
outcome in the relevant magistrates’ court within 24 hours of receiving
notice.56
However, like the POA, the constitutionality of the requirements
in the RGA have been challenged in court. In Mlungwana v The State 57
the applicants, the Social Justice Coalition (SJC), organised a peaceful
protest at the Civic Centre in Cape Town in September 2013 without
notifying the authorities. About 21 SJC members were arrested and
charged for violating section 12(1)(a) of the RGA and alternatively for
attending an illegal gathering contrary to section 12(1)(e) of the RGA.
The applicants challenged the constitutionality of section 12(1)(a) of the
RGA. Nevertheless, the magistrates’ court found the conveners of the
protest guilty of contravening section 12(1)(a) of the RGA. In the High
Court, the applicants argued that section 12(1)(a) of the RGA creates
a restriction to the right of freedom of assembly guaranteed under
section 17 of the Constitution because it deters people from organising
gatherings to express their opinions and grievances, conscious of the
consequences that may occur if sufficient notice is not given. The
constitutional argument was rejected by the respondents. According to
54
The requirement for a marshal is provided under s 3(3)(g) of the RGA.
55
A responsible officer is defined by RGA as “a person appointed in terms of section 20(4)(a)
as responsible officer or deputy responsible officer, and includes any person deemed in terms of sec-
tion 2(4) to be a responsible officer”.
56
See s 6(1) of the RGA.
57
2018 ZACC 45.

the respondents, section 12(1)(a) of the RGA does not limit the right
guaranteed under section 17 of the Constitution, and even if it did, doing
so would be in accordance with the general limitation clause in section 36.
The respondents additionally claimed that the notice requirement
serves a reasonable purpose by ensuring that adequate planning is made
to allow the exercise of the right to assemble; that the requirement to
give notice does not impose a heavy responsibility on the convener of a
gathering; and that the requirement to give notice does not violate any
laws. The High Court held that section 12(1)(a) creates a limitation on
the right protected under section 17 of the Constitution because of the
effect that criminalisation had on the exercise of the right to assembly.58
Furthermore, the High Court concluded that the limitation could not
be justified under section 36 of the Constitution.
In accordance with the constitutional requirement, the Constitutional
Court therefore had to confirm the constitutional invalidity of sec-
tion 12(1)(a) as found by the High Court.59 This formed the crux of the
applicant’s argument before the Constitutional Court. The Constitutional
Court confirmed the finding of constitutional invalidity of the High
Court, and declared that “section 12(1)(a) is unconstitutional in its
entirety, because, on the case before this Court, the criminalisation of
convening gatherings is unconstitutional—regardless of whether the
subsequent gathering is violent”.60 Although, the RGA has not yet been
amended to reflect the decision of the court in this case, section 12(1)(a)
of the RGA remains invalid.
The POA makes a single requirement of obtaining a licence from
the police to conduct a lawful assembly. Similarly, the RGA requires the
convenor to give notice to the responsible officer who may prohibit the
gathering in terms of section 5 of the RGA. Although, these requirements
have been declared unconstitutional by the courts in both jurisdictions,
the RGA provides other more elaborate requirements, which give room
for proper planning for the deployment of police to reduce the risk of
disruptive protests. In this regard the RGA requires the appointment of
three key parties: the convener, deputy convener and marshals, and details
on the date, location(s), time, transportation, vehicles and route where the
gathering or procession will take place and end, after which there will
be consultations and negotiations between all relevant stakeholders.
These requirements make it simpler for the appropriate authorities to
58
Mlungwana v The State [2018] ZACC 45 at para 36.
59
This power is conferred on the Constitutional Court by s 167(5) of the South African
Constitution which holds: “The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is constitutional and must confirm any order
of invalidity made by the Supreme Court of Appeal, High Court, or a court of similar status, before
that order has any force.”
60
Mlungwana v The State [2018] ZACC 45 at para 104.

facilitate gatherings. They enable them to control the timing, nature,

and location of gatherings in a way that satisfies both the demands of
participants for freedom of association and expression, as well as the needs
of the general public for safety and mobility. Furthermore, the RGA
deviates from the colonialist and undemocratic disposition exhibited
by the POA in that it provides for judicial review when a gathering
is prohibited by the authorities, and the convener may apply to the
magistrate for the setting aside of such prohibition.61 This is unlike the
POA that makes the decision of the governor final and conclusive and
from which there shall be no further appeal.62 These provisions in the
RGA provide insight into how the POA may be strengthened.
The conduct of protesters during protests under the POA and the RGA
The required conduct of the protesters during a protest is set out under
sections 7 and 8 of the POA. Section 7 requires participants at an assembly
or meeting or during a public procession who wish to wear a uniform
to wear a uniform that is not offensive or likely to provoke a breach of
the peace or that “resembles, or partakes of the design or character of, the
uniform of any member of Nigeria Police Force or the armed forces of
the Federation or of any other corps established by or pursuant to any
law ….”63 The display of flags during public assemblies and meetings is
restricted to approved flags of registered political parties pursuant to the
Electoral Act.64 Finally, under section 8, during any public assembly or
meeting or on the occasion of any public procession, participants must not
have with them any offensive weapon or missiles, including any offensive
weapon such as “gun, rifle, carbine, machine gun, cap gun, flintlock gun,
revolver, pistol, air gun, air pistol or other firearms bow and arrow, spear,
cutlass, matchet, knife… or any piece of wood”.65
In the RGA, the conduct of the participants at a gathering or,
where applicable, a demonstration, is mostly controlled by the marshals
mentioned in the notice in terms of sections 3 and 4 of the RGA. Like
the conduct of protesters in the POA, participants under the RGA must
not carry offensive or dangerous weapons, and the marshals shall ensure
that protesters abide by the laws guiding the carrying of such dangerous
weapons. Participants should not “wear any form of apparel that resembles
any of the uniforms worn by members of the security forces, including
the Police and the South African Defence Force”.66 However, the RGA
goes further to provide that no protester “shall by way of a banner,
61
Section 6(1)(a) of the RGA.
62
Section 1(6) of the POA.
63
64
65
66
Section 8(8) of the RGA

placard, speech or singing or in any other manner incite hatred of other

persons…”67 or perform any act or say any word likely to incite violence
against any person or group. Participants should not wear masks or items
that obscure their identification. Finally, the marshals shall ensure that no
entrance to any building, including a hospital, fire or ambulance station or
any other emergency services, is barred by the participants.
Liability for damage during an assembly or gathering

The POA does not provide for who will be responsible for damages
incurred during an assembly; however, the RGA provides that where
damage occurs as a result of a gathering, the convener or organisation
that organised that gathering shall be jointly and severally liable for that
damage.68 In the case of a demonstration, everyone who participated in
the demonstration shall be jointly and severally liable for that damage.69
However, the convener or organisation may be exonerated if they or
the organisation proves that the act which caused the damage was not
reasonably foreseeable and that they never contributed to the act which
caused the damage and that they took all reasonable steps within their
power to avert the act in question.70
The case of South African Transport and Allied Workers’ Union v Garvis
and Others71 provides clarity on the scope of section 11 of the RGA.
In this case, the South African Transport and Allied Workers’ Union
(SATAWU) organised a protest march in May 2006. This protest qualified
as a gathering under the terms of the RGA. The protest descended into
a riot where stores and cars around the city centre of Cape Town were
damaged. Eight people filed a lawsuit in the Western Cape High Court to
have SATAWU held accountable for the damages under section 11(1) of
the RGA. In denying liability, SATAWU claimed that section 11(2)(b) of
the RGA was unconstitutional because it had “stultifying” effects on the
right to demonstrate, to assemble, to picket, and to present petitions, as
guaranteed by section 17 of the Constitution.
However, the court held that even though SATAWU had taken all the
practical precautions needed to organise a meeting, the court still held
SATAWU accountable for the harm done to the eight residents of Cape
Town. The court considered SATAWU’s testimony, which demonstrated
that the events leading up to the protest had created a tense atmosphere,
marked even by the potential for loss of life. The court determined that
SATAWU should be held accountable since it continued to plan the
67
Section 8(5) of the RGA.
68
Section 11(1)(a) of the RGA.
69
Section 11(1)(b) of the RGA.
70
Section 11(2) of the RGA.
71
[2011] ZASCA 152.

march even though it was foreseeable that nothing could stop it from
turning into a riot.The ruling unequivocally demonstrates that even when
all reasonable efforts have been made to guarantee a peaceful gathering,
the convener can still be held responsible for any damage during the
gathering. This is true even if it is reasonably foreseeable that nothing will
stop the gathering from turning into a riot.
Protest in Nigeria and South Africa after the Public Order Act
and the Regulation of Gatherings Act came into effect
The POA and the RGA are intended to give effect to the provisions of
the countries’ constitutions in managing the appropriate and peaceful
conduct of protests in Nigeria and South Africa, respectively. Both Acts
are intended to instil a set of minimum standards to facilitate the right
to protest and uphold and recognise the limited scope of permissible
restrictions. Despite this, the Nigerian authorities have not reflected
these objectives in the way they manage peaceful protests, particularly
when these protests are against the government. This can be observed
in the recent #EndSARS protests against Nigeria’s notorious Special
Anti-Robbery Squad (SARS). Here, according to the findings of the
Lagos State Judicial Panel of Inquiry on Restitution for Victims of SARS
Related Abuses and Other Matters, a combination of Nigerian military
and police opened fire on protesters at the Lekki Toll Gate in Lagos on
20 October 2020, in an effort to restrict the #EndSARS protests, killing at
least ten people.72 Additionally, on 12 February 2021, the Nigerian police
once more restricted #EndSARS protests, detaining numerous protesters,
including well-known comedian, Debo Adedayo (Mr Macaroni).73
Similarly, the South African authorities have not managed protesters
in a way that shows they respect, protect and fulfil the right to protest
enshrined in the RGA. For example, on 16 August 2012, the South African
Police Service (SAPS) opened fire on a crowd of protesting mineworkers
at Marikana, in the North West Province, in a bid to restrain them, killing
34 mineworkers, and leaving 78 seriously injured.74 This event was the
culmination of about one week of intense protests where the miners
were demanding a wage increase at the Lonmin platinum mine. This is
72
See ‘Report of Lagos State Judicial Panel of Inquiry on Restitution for Victims of SARS
Related Abuses and Other Matters’ (2021) at 287–91.
73
Busari, S. & Princewill, N. ‘Nigerian police arrest protesters at Lekki shooting site’
(13 February 2021) CNN News, available at https://edition.cnn.com/2021/02/13/africa/nigeria-
endsars-lekki-protests-intl/index.html; accessed on 20 January 2023; Williams, P.I. ‘Lekki Toll Gate
Lagos Nigeria [EndSARS protest]: Police arrest Mr Macaroni, odas on February 13 “Occupy Lekki
Toll Gate protest” with heavy security for Admiralty Plaza’ (13 February 2021) BBC Pidgin, available
at https://www.bbc.com/pidgin/tori-56033351, accessed on 20 January 2023.
74
Marikana Commission of Inquiry ‘Report on matters of public, national and international
concern arising out of the tragic incidents at the Lonmin Mine in Marikana, in the North-West
Province’ at 342, 389 and 396.

considered as the most lethal use of force by the SAPS since the 1976
Soweto uprising.75 Indeed, the Marikana killing was so inhuman that it
has been likened to the 1960 Sharpeville massacre, in which apartheid
police shot unarmed protesters in their backs as they fled, killing 69 of
them.76
The courts in Nigeria and South Africa have declared in All Nigeria
Peoples Party and Others v Inspector General of Police and Mlungwana v The
State respectively that protesters do not need a permit before conducting
protests; protesters in Nigeria and South Africa need to do nothing more
than notify the authorities of their intent.
As a state party to the ICCPR as well as the African Charter, the
Nigerian and South African governments have a positive duty to facilitate
peaceful assemblies and an enabling environment for protesters to exercise
their right to protest.77 In situations where it becomes necessary to disperse
protesters, as in the case of the #EndSARS and Marikana protests, the
government must use only officials trained in the policing of assemblies to
disperse such protests.78 Furthermore, only the minimum force necessary
may be used,79 which may include less-lethal weapons, such as tear gas
and water cannons.80 Firearms can only be used on targeted persons in
situations where it has become necessary to confront an impending threat
of death or serious injury.81 At no time should law enforcement agents
fire indiscriminately at protesters to disperse them.82 By using excessive
force and live ammunition in the #EndSARS and Marikana protests, the
Nigerian and South African governments failed in their responsibility
to disperse the #EndSARS and Marikana protesters in accordance with
international law. The Nigerian and South African governments should
train their law enforcement officials in the policing of assemblies and
promote a culture of accountability during peaceful protests to prevent
future violations.
Conclusion
Protests play an important role in the political, economic, social and
cultural life of our societies. They have the power to change the system.
75
Foster, D. ‘Marikana massacre: South Africa needs to build a society that’s decent and
doesn’t humiliate people’ (2022) The Conversation, available at https://theconversation.com/
marikana-massacre-south-africa-needs-to-build-a-society-thats-decent-and-doesnt-humiliate-
people-188534, accessed on 14 August 2023.
76
Ibid.
77
See General Comment No. 37 (2020) on the Right of Peaceful Assembly (art 21) at para 24.
78
Ibid at para 80.
79
Ibid at para 86.
80
Tear gas and water cannon may be considered potentially lethal in certain circumstances; see
‘UN human rights guidance on less-lethal weapons in law enforcement’ (2020) at 29–31.
81
Ekeke op cit note 54 at 10.
82
Ibid.

The right to peaceful protest is protected under international and African

regional human rights frameworks, as well as in domestic laws. In Nigeria
and South Africa, the POA and the RGA have been designed to support
the appropriate and peaceful conduct of peaceful assemblies (protests),
meetings and processions. In this paper it is concluded that although
the RGA has some inadequacies, it provides more protection for the
right to peaceful protest compared to the POA. For example, the RGA
provides more elaborate requirements for conducting a peaceful protest,
which gives room for proper planning for the deployment of police to
reduce the risk of disruptive behaviour. These requirements include the
appointment of three important parties: the convener, deputy convener
and the marshals, and stating the date, location(s), time, transportation,
vehicles and route where the gathering or procession will take place and
end after which there will be consultations and negotiations between
all relevant stakeholders. These requirements make it easier for the
appropriate authorities to facilitate protests.
Reference list
Books
Marks, S. & Trapido, T. ‘South Africa since 1976: An historical
perspective’ in Johnson, S. (ed.) South Africa: No Turning Back (1988)
MacMillan.
Woolman, S. & De Waal, J.‘Voting with your feet,’ in Van Wyk, D.,
Dugard, J. et al (eds) Rights and Constitutionalism —The New South
African Legal Order (1994).
Woolman, S. ‘Assembly, demonstration and petition’ in Currie, I. &
De Waal, J. (eds) The Bill of Rights Handbook (2013).
Journal articles
Eboh, M.O. ‘The Anti-SAP upheaval in Nigeria’ (1990) 16(3) Philosophy
and Social Action.
Ekeke, A. ‘Right to peaceful protest in Nigeria and the recurrent
syndrome of brutalization: The #EndSARS protest debacle’ (2023)
67(2) Journal of African Law.
Mafeje, A. ‘Soweto and its aftermath’ (1978) 11 Review of African Political
Economy.
Omar, J. ‘The Regulation of Gatherings Act – a hindrance to the right
to protest?’ (2017) 62 SA Crime Quarterly.
Pohlandt-McCormick, H. ‘“I Saw a Nightmare …” Violence and the
construction of memory (Soweto, June 16, 1976)’ (2000) 39(4)
History and Theory.

Internet sources
Adebowale, O. ‘History of protests in Nigeria: Reactions and
consequences’ (25 October 2020) The Guardian, available at https://
guardian.ng/life/history-of-protests-in-nigeria-reactions-and-
consequences-2/, accessed on 5 June 2023.
Busari, S. & Princewill, N. ‘Nigerian police arrest protesters at Lekki
shooting site’ (13 February 2021)
CNN News, available at https://edition.cnn.com/2021/02/13/africa/
nigeria-endsars-lekki-protests-intl/index.html, accessed on
24 January 2023.
Du Toit, A. ‘Understanding South African political violence: A new
problematic?’ (1993) United Nations Research Institute for Social
Development Discussion Paper 43, available at https://www.files.
ethz.ch/isn/28972/dp43.pdf, accessed on 20 January 2023.
Foster, D. ‘Marikana massacre: South Africa needs to build a society
that’s decent and doesn’t humiliate people’ (2022) The Conversation,
available at https://theconversation.com/marikana-massacre-south-
africa-needs-to-build-a-society-thats-decent-and-doesnt-humiliate-
people-188534, accessed on 14 August 2023.
Madunagu, E. ‘“Ali must go”’ and the Nigerian left’ (28 November
2017) The Guardian, available at https://guardian.ng/opinion/ali-
must-go-and-the-nigerian-left/ accessed on 5 June 2023.
Maja-Pearce, A. ‘The mark of the beast: Nigeria in the year 1989’ Index
on Censorship (9/89), available at https://journals.sagepub.com/doi/
pdf/10.1080/03064228908534718, accessed on 8 June 2023.
McRae, M. ‘The Sharpeville massacre a violent turning point in the
history of South African apartheid’ (2019) Canadian Museum
for Human Rights, available at https://humanrights.ca/story/
sharpeville-massacre, accessed on 24 January 2023.
‘Sharpeville Massacre, 21 March 1960’ South African History Online
available at https://www.sahistory.org.za/article/sharpeville-
massacre-21-march-1960, accessed on 20 January 2023.
Williams, P.I. ‘Lekki Toll Gate Lagos Nigeria [EndSARS protest]: Police
arrest Mr Macaroni, odas on February 13 “‘Occupy Lekki Toll Gate
protest”’ with heavy security for Admiralty Plaza’ (13 February
2021) BBC Pidgin, available at https://www.bbc.com/pidgin/tori-
56033351 accessed on 20 January 2023.
Reports
Marikana Commission of Inquiry: Report on matters of public, national
and international concern arising out of the tragic incidents at the
Lonmin Mine in Marikana, in the North-West Province.
Report of Lagos State Judicial Panel of Inquiry on Restitution for
Victims of SARS Related Abuses and Other Matters (2021) .

Cases
All Nigeria Peoples Party and Others v Inspector General of Police (2006)
CHR at 181.
Dr Lewis Chukwuma and 2 Others v Commissioner of Police (2006) All
FWLR at 177.
Inspector General of Police v All Nigeria Peoples Party and Others (2007) 18
NWLR (pt 1066) 457.
Mlungwana v The State [2018] ZACC 45.
PG Castel NO v Metal & Allied Workers Union 1987 (4) SA 795 (A).
S v Mtutuzeli 1979 (1) SA 764 (T).
S v Turrell 1973 (1) SA 248 (C).
South African Transport and Allied Workers’ Union v Garvis and Others
[2011] ZASCA 152.
Tsoaeli v S [2016] ZAFSHC 217.
International human rights instruments and Acts

General Comment No. 37 (2020) on the Right of Peaceful Assembly
(art 21).
Internal Security Act 74 of 1982.
National Road Traffic Act 93 of 1996.
Public Order Act Chapter 382 of 1990.
Regulation of Gatherings Act 205 of 1990.
Riotous Assemblies Act 17 of 1956.
Suppression of Communism Act 44 of 1950.
UN human rights guidance on less-lethal weapons in law enforcement
(2020).

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Journal of Comparitive Law SA 2024 Vol 11 V4.

pdf 1 2024/07/25 13:32

A CRITICAL REVIEW OF JURISPRUDENCE ON THE ADJUDICATION OF

A COMPARATIVE ANALYSIS OF THE RIGHT TO PROTEST UNDER THE

TOBACCO LABELLING AND ADVERTISING RULES: LESSONS FROM OTHER

LECTURE CRITIQUE DE LA LOI CAMEROUNAISE RELATIVE A LA RECHERCHE

EDITORIAL POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

TYPESET BY WOUTER REINDERS

JCLA_2024_vol_11_iss_1_IFC.indd 1 2024/07/22 13:12

JCLA_2024_vol_11_iss_1_BOOK.indb 1 2024/07/22 13:12

Keywords: public order; Regulation of Gatherings Act; right to protest;

JCLA_2024_vol_11_iss_1_BOOK.indb 31 2024/07/22 13:12

régit l’organisation de rassemblements publics et de manifestations en faveur des

Mots-clés: ordre public; loi sur les rassemblements; droit de manifester;

JCLA_2024_vol_11_iss_1_BOOK.indb 32 2024/07/22 13:12

take place without unwarranted interference and to facilitate the exercise

The right of peaceful assembly shall be recognized. No restrictions

Correspondingly, at the African regional level, article 11 of the African

Similarly, the right to peaceful assembly is articulated in the domestic

JCLA_2024_vol_11_iss_1_BOOK.indb 33 2024/07/22 13:12

A tale of protest in Nigeria and South Africa before the Public

JCLA_2024_vol_11_iss_1_BOOK.indb 34 2024/07/22 13:12

the students from advancing to Dodan Barracks.7 The confrontation that

JCLA_2024_vol_11_iss_1_BOOK.indb 35 2024/07/22 13:12

JCLA_2024_vol_11_iss_1_BOOK.indb 36 2024/07/22 13:12

JCLA_2024_vol_11_iss_1_BOOK.indb 37 2024/07/22 13:12

became a signatory to the ICCPR in 1998, it had no force in the country

JCLA_2024_vol_11_iss_1_BOOK.indb 38 2024/07/22 13:12

21 March 1960 with the aim of pressuring the apartheid government to

JCLA_2024_vol_11_iss_1_BOOK.indb 39 2024/07/22 13:12

in opposition to the introduction of Afrikaans in township schools.40

A comparative analysis of the right to protest under the Public

JCLA_2024_vol_11_iss_1_BOOK.indb 40 2024/07/22 13:12

Definitions of an assembly, a gathering and a demonstration under the POA

Any assembly, concourse or procession of more than 15 persons in or

Furthermore, the RGA makes a distinction between a “gathering” and

JCLA_2024_vol_11_iss_1_BOOK.indb 41 2024/07/22 13:12

a public space that expresses any form of contestation or is critical of a

JCLA_2024_vol_11_iss_1_BOOK.indb 42 2024/07/22 13:12

Any road, street or thoroughfare or any other place (whether a thoroughfare

The definition of “public road” under section 1 of the NRTA is very

JCLA_2024_vol_11_iss_1_BOOK.indb 43 2024/07/22 13:12

The above definition of a “public place” under section 1 of the RAA

The requirements for conducting a lawful assembly or gathering under the

Any person who is desirous of convening or collecting any assembly or

JCLA_2024_vol_11_iss_1_BOOK.indb 44 2024/07/22 13:12

The effect of the above requirement of the POA to conduct a lawful

JCLA_2024_vol_11_iss_1_BOOK.indb 45 2024/07/22 13:12

The Public Order Act should be promulgated to complement sections 39

With this judgment, it is no longer necessary to obtain a permit to conduct

JCLA_2024_vol_11_iss_1_BOOK.indb 46 2024/07/22 13:12

convener’s role should the convener be unavailable to do so. Finally, the

JCLA_2024_vol_11_iss_1_BOOK.indb 47 2024/07/22 13:12

JCLA_2024_vol_11_iss_1_BOOK.indb 48 2024/07/22 13:12

facilitate gatherings. They enable them to control the timing, nature,

JCLA_2024_vol_11_iss_1_BOOK.indb 49 2024/07/22 13:12

placard, speech or singing or in any other manner incite hatred of other

Liability for damage during an assembly or gathering

JCLA_2024_vol_11_iss_1_BOOK.indb 50 2024/07/22 13:12