Shooting at the Nigerian Flag; What is the Law?
Abstract
Countries across the globe pride in their national heritage, culture and flag. Above all these, the national flag of states is accorded a special respect and honour as an embodiment of the state. As such, the defacing of a country’s national flag is punishable under states' laws. The Nigerian flag which colours represent the fertility of the land and peace is no exception. This paper examines the legal framework regulating offences against the Nigerian flag and whether such offences amount to treason. The paper concludes that there is no written law which equates the act of defacing the Nigerian flag with the offence of treason. It however recommends that there is need for an amendment of the Flags and Coat of Arms Act for clarity and a stricter penalty for acts against any disrespect to the flag.
The End Sars protests which started in the early days of October have entered its second week amid fears of Army clampdown on protesters. The fears have been aggravated by the announcement by the Nigerian Army of its Operation Crocodile Smile wherein it was stated that the army will be embarking on “cybercrime warfare”. Many consider this a desperate move to end the peaceful protests by youths across the country.
With the impending fear of a possible army takeover of the streets, there have been reports on social media, urging Nigerian protesters to take a Nigerian flag along to protest grounds to prevent the Nigerian army from shooting at them. In other words it is asserted that it is a treasonable offence to shoot at the Nigerian flag. Is this really the case? What is the source of this assertion?
The prominent legislations on criminal offences in Nigeria are the Criminal Code Act applicable in States in Southern Nigeria and the Penal Code Act applicable in the North. A close examination of these laws reveals a grim silence on the subject. The closest offence to desecration, mutilation, and insult to the Nigerian flag as an object or representation of the Nigerian state cannot be implied under the offence of Treason and other related offences provided under Part 2, Chapter 6 of the Criminal Code Act. This is so because the offence of Treason can only be committed against institutions of the state such as the government represented by the President and the Governor.
The Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004, which regulates the conduct of service men (army, navy and air-force) is similarly silent. This is evident in Part XII of the Act.
On the contrary, the Flags and Coat of Arms Act Cap F30 Laws of the Federation of Nigeria, 2004 regulates the display and use of the Nigerian Flag, certain other flags and the National Coat of Arms. As such, it provides in Section 7 of the Act that:
“Any person who flies or exhibits the National Flag in a defaced or bad condition shall be guilty of an offence against this Act.”
Section 10 of the Act further provides that:
“Any person guilty of an offence against this Act shall be liable to a fine of one hundred naira (N100.00) and in the case of a continuing offence to a fine of ten naira (N10.00) for every day or part of a day during which the offence is continued after the day on which such person is first convicted.
Nowhere under the Flags and Coat of Arms Act is there a treasonable offence and/or punishment for the public mutilation, destruction, disrespect or insult to the Nigerian flag. The position in India is more stringent and elaborate. However in the United States of America the offence of burning of the US flag has been declared illegal.
The Indian, Prevention of Insults to National Honour Act as amended provides as follows:
“Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”
Conversely, the United States Supreme Court in the case of Texas v Johnson, considered the validity of a Texas statute making it a crime to “deface, damage, or otherwise physically mistreat an American flag in a way that the person knows will seriously offend one or more persons likely to observe or discover his action”. The court ruled that the First Amendment to the Constitution prevented the use of the statute to prosecute Gregory Lee Johnson, who had burned an American flag to protest President Ronald Reagan’s nomination as presidential candidate. This decision led to the enactment of the Flag Protection Act of 1989 to protect the sacredness of the American Flag.
Again in 1990, the US Supreme Court in United States v Eichman, held that prosecution of a person for burning the American flag is a violation to the First Amendment. It should be noted that the First Amendment is to the effect that the US Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It was as a result of the underlying defects in the Criminal laws of Nigeria and the Flags and Coat of Arms Act, in relation to acts/conduct defacing, mutilating, insulting, etc the Nigerian flag that in 2016, 2018 and 2019, there were attempts to pass a bill to amend the Flags and Coat of Arms Act. The first was in 2016 and was sponsored by Rep Nnena Ukeje (PDP, Abia); the second in 2018 sponsored by Sen. Gershom Bassey (PDP Cross River) and most recently in 2019 sponsored by Rep Sam Onuigbo (PDP Abia State).
The bills seek to amend Flags and Coat of Arm Act Cap F30 Laws of the Federation of Nigeria, 2004, in order to provide adequate penalties for the desecration, dishonouring or destruction of the National Flag and disparaging the colours, coat of arms or the anthem of the Federal Republic of Nigeria.
A survey of the 2016 bill reveals that:
“A person who publicly:
(a) Desecrates or otherwise dishonour the National Flag;
(b) Without lawful authority, burns, mutilates or otherwise destroys the National Flag; and
(c) Disparages the colours, coat of arms or the anthem of the Federal Republic of Nigeria, shall be guilty of an offence and be liable on conviction to a fine of N500,000.00 or five years term of imprisonment or both.
The 2016 bill as seen above have similar wordings with the Indian Prevention of Insult to National Honour Act as amended. In spite of the lofty provisions in the bill, it is yet to see the light of day.
It is thus evident that there is no written law which makes mutilation, burning, disfiguration, defiling, destroying, trampling or any show of disrespect or contempt to the Nigerian Flag treasonable. This is so because the Nigerian Flag is not a representation of the sovereign and legal entity called Nigeria and it is doubtful whether such can be implied.
There is no doubt that the Nigerian flag is a symbol of pride for so many Nigerians with regards to what it stands for: the stripes of green at both ends dignified by a splash of white in-between representing the fertility of our land, peace and unity. The above notwithstanding, it is nothing more than a national symbol of pride.
So will the Nigerian army or a uniformed officer of the law commit treason by aiming at the Nigerian flag? The “offence” of desecration, disrespect or contempt of the flag, by acts of harassment, assault, or any grievous harm to a person holding a Nigerian flag, is foreign to Nigerian law, and by law no one can be punished for an act unknown to law (See Section 36 (12) 1999 CFRN as amended; See also Aoko v Fagbemi where it was held that the act of adultery is not a crime known to law in Southern Nigeria).
The above notwithstanding, a protester can safely rely on fundamental rights provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended, which guarantees and protects the right to life, dignity of the human person, the right to personal liberty, freedom of thought conscience and religion, freedom of expression and of the press, the right to protest and freedom of movement codified under sections 33, 34, 35, 38, 39, 40 and 41 respectively, against repressive acts of the army, police or other law enforcement agencies in relation to those rights. These rights are also enshrined in international instruments.
It is hereby submitted that protesters can proudly raise the Nigerian flag at protests grounds or other public places as long as the flag is not displayed in a defaced or bad condition. There is need for the Flags and Coat of Arms Amendment Bill to be passed and assented for stricter penalties to protect the “sacredness” of our “green white green" and further provides for clarity of terms in relation to what amounts to “defacing” of the National Flag. Until the law says so, burning, mutilation, defacing or even shooting at the Nigerian flag is nothing close to treason.
