Constitutionality Of The Restriction Of Fundamental Right

By Olasupo Jubril Adedimeji [1]

ABSTRACT:

This article examines the importance of fundamental human rights in society. It then looks at the circumstances where these rights can be restricted without bypassing the due process of the law and the rights that can’t be restricted in such circumstances which right to life, right to personal liberty, and right to a fair hearing. Finally, It inquires as to the way and manner it should be restricted and people that should be charged to carry out the restriction, to stop the spread of corruption, harsh treatment, infringement of the right.

THE KEYWORDS:

Human rights | Restriction | Due process of the law | Infringement of right |

INTRODUCTION:

Fundamental human rights are highly sacrosanct. The rights are not bestowed on any public or private administration, they are bestowed on humans and this can be seen when Adam and Eve are given the right to move freely in the garden of Eden and also enjoy some other rights bestowed on them by Almighty God. Thus, the fundamental right is divine and natural right bestowed on humans.

Several learned silks had given lots of definitions on fundamental human rights which also enjoys constitutional backing as seen in Section 33-46[2]

The question is then can these rights be restricted, especially the right to movement? Even if there can be restriction of movement, how can it be invoked? Is the restriction of movement ordered by the government of Nigeria Constitutional?

This paper purports to examine these questions and to chart a new course in the quest for the enhancement of the implementation of fundamental human rights. we will first examine the definition of Constitutionality then other substantive and procedural issues will follow suit.

The concluding part of this paper will deal with how the restriction of movement can be fully and constitutionality implemented without the infringement of people’s constitutional rights.

CONSTITUTIONALITY

Constitutionality describes when something such as conduct, act, bill, law, or regulation is in conformity with the Constitution. It asks the question of whether or not a particular act, conduct, law, bill or regulation is Constitutional.[3] If the conduct, act, bill, law or regulation is not consistent with the Constitution, It will be declared unconstitutional by virtue of Section 1(1) [4] but if it’s consistent with the Constitution, It will be declared constitutional.

In the case of Marbury v Madison [5] , the Chief Justice of the United States of America (U.S.A) in the person of JOHN MARSHALL rightly stated that:

“Certainly all those who have framed written constitution contemplate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be that an act repugnant to the Constitution is void.”

This means whenever an act or conduct done by a public or private administration is inconsistent with the Constitution of the land, the act or conduct will be declared unconstitutional.[6]

FUNDAMENTAL HUMAN RIGHTS

WHAT IS RIGHT?

A right can be explained in three perspectives, which are:

1)In the concrete legal sense

2)In the sense of duty; and

3)In the abstract sense.[7]

For the purpose of this paper, the Concrete legal sense will be looked into.

The concrete Legal sense:- In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law. [8]

Each legal right that an individual possesses relates to a corresponding legal duty imposed on another. For example, when a person owns a home and property, he has the right to possess and enjoy it free from the interference of others, who are under a corresponding duty not to interfere with the owner’s rights by trespassing on the property or breaking into the home. [9]

HUMAN RIGHTS:

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent, and indivisible.[10]

CATEGORIES OF RIGHT

1) Individual Right

2)Community or group Right

3) Peoples Right (According to African Charter on human rights)

FUNDAMENTAL HUMAN RIGHTS:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in a Constitution or have been found under due process of law. [11] They are referred to as civil and political rights or first-generation rights and are generally justice in every democratic system. Furthermore, they are the rights that define and differentiate a democratic state from a dictatorship one.

Therefore, in order to protect and guarantee peaceful co-existence, the fundamental right of persons in Nigeria are enshrined in (Chapter IV) (Section 33-46).[12] The rights stipulated in Section 33-46 [13] are highly sacrosanct but not absolute. They are sacrosanct in the sense that they are respected and cannot be taken away without due process of the law.

However, they are not absolute and are therefore with certain restrictions and derogations. This is because where a person’s right stops another person begins and thereby the Constitution envisages that without restriction, there will be trampling of right. See the case of Amoshina v State [14]. See also the case of Adam and Eve when Almighty God restrict them from eating the forbidden fruit which is for their own interest.

Flowing from this, a restriction of any of the fundamental human rights should be for the public interest likewise any enactment must also be for the public defense, safety, order, morality, and health. Failure to put the interest of the public at heart will result in the measurement of power in a democratic society.

DEROGATION CLAUSE IN 1999 CONSTITUTION

Derogation from fundamental rights refers to a temporary suspension of certain rights recognized in the Constitution. It is the right of states to depart from some fundamental rights entrenched in the Constitution due to emergency or reasons reasonably justifiable in a democratic society.[15]

In Nigeria, Chapter IV(Section 33-46) [16] guarantees fundamental rights, but also impose some restrictions as seen in Section 45 11[17] which provides for the restriction and derogation from fundamental rights in Section 37,38,39,40 and most especially 41[18] in the interest of:

1) Public defense, safety, order, morality, and health.

2) Protecting the rights and freedom of other persons; and

3) Dealing with the situation that exists during the period of emergency.

During this period Section, 33,35 and 36[19] must not be derogated.

OVERVIEW OF THE RESTRICTION OF MOVEMENT

It’s undoubtedly true that the Constitution of the Federal Republic of Nigeria is supreme and it’s binding on all by virtue of Section 1(1) [20] which provides that:

This Constitution is supreme and it’s provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

It’s stipulated the way and manner an action should be carried out for the smooth running of the country. Thus, every public or private administration must act in accordance with the Constitution.

In Nigeria, the restriction of movement in case of any disaster or natural calamity affecting the community or a section of the community in the federation can be done in two approaches and can’t be done by executive order or directive given by an appropriate authority because it’s not binding as seen in the case of Faith Okafor v Lagos State government,[21] and as such can’t attract criminal sanction. However, an order or directive can become binding when it’s backed up by a law enacted by the national assembly or State house of Assembly for a state. The approaches an appropriate authority(which includes the president, governor or any person appointed by any law to revise or rewrite the laws of the federation or of a state) can use in restricting some fundamental rights are:

1) By invoking the State of Emergency

2) By invoking the quarantine act

STATE OF EMERGENCY:

A state of emergency is a situation in which a government is empowered to perform actions or impose policies that it would normally not be permitted to undertake.[22] A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic, or other biosecurity risks.[23]

It can only be implemented by triggering Section 305 [24].In implementing this section, the President is authorized to unilaterally or at the request of a state governor declared a state of emergency in certain instances, including when. . .

(c) there is the actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation; [or]

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation . . . .[25]

The declaration of a state of emergency must be published in the country’s Official Gazette, and the President is required to immediately notify the Speaker of the House Representatives and the President of the Senate.[26] Once in place, a state of emergency can be terminated

if the President revokes it;

if it is not subsequently endorsed by the federal legislature within two days of its declaration when the legislature is in session or within ten days otherwise;

after six months of its declaration, but the legislature may extend it for another six-month term; or

if the legislature, having initially endorsed or extended the declaration, at any time revokes it by a vote of a simple majority in both houses.

The consequences of declaring a state of emergency may take one of two forms.  First, the country’s legislature may adopt laws that curtail certain fundamental rights guaranteed under the Constitution like the COVID-19 RESTRICTION 2020. It may also allow the executive to take certain actions that restrict such constitutional rights.  For instance, the Constitution appears to permit the executive to temporarily suspend the constitutional protection against forced or compulsory labor “in the event of any emergency or calamity threatening the life or well-being of the community.[27] It is conceivable that this authority could be used to ensure that hospitals and health centers are properly staffed during an outbreak of a deadly infectious disease like COVID-19.

During this period, certain fundamental human rights can’t be restricted which are:

1) Right to life

2) Right to personal liberty; and

3) Right to a fair hearing

QUARANTINE ACT: [28]

The word quarantine comes from quarantine, meaning “forty days”, it’s a restriction of the movement of people and goods which is intended to prevent the spread of disease or pests. It is often used in connection to disease and illness, preventing the movement of those who may have been exposed to a communicable disease, but do not have a confirmed medical diagnosis. It is distinct from medical isolation, in which those confirmed to be infected with a communicable disease are isolated from the healthy population.[29]

Merriam-Webster gives various meanings to the noun form, including “a period of 40 days”, several relating to ships, “a state of enforced isolation”, and as “a restriction on the movement of people and goods which is intended to prevent the spread of disease or pests “. The word is also used as a verb. [30]

Quarantine is distinct from medical isolation, in which those confirmed to be infected with a communicable disease are isolated from the healthy population.[31]

Quarantine may be used interchangeably with cordon sanitaire, and although the terms are related, cordon sanitaire refers to the restriction of movement of people into or out of a defined geographic area, such as a community, in order to prevent an infection from spreading. [32]

The Quarantine Act (the Act) is the primary law governing the prevention and suppression of dangerous infectious diseases.  The Act states that it is intended to regulate “the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases. [33] This includes “cholera, plague, yellow fever, smallpox and typhus.”[34]  In addition, the Act authorizes the President to declare any infectious or contagious disease as a dangerous infectious disease, an authority apparently used at least once in the past to categorize sleeping sickness as a dangerous infectious disease. [35] Similarly, the Act authorizes the President to declare any place in or outside of Nigeria to be an infected local area. [36]

The Act further authorizes the President to issue regulations for the purpose of preventing or suppressing a dangerous infectious disease in an infected local area, any other area in Nigeria, or any area outside of Nigeria, stating as follows:

The President may make regulations for all or any of the following purposes –

(a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;

(b) prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;

(c) preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;

(d) preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;

(e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations;

(f) fixing the fees and charges to be paid for any matter or thing to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;

(g) generally for carrying out the purposes and provisions of this Act. [37]

State governors are accorded the same powers as the President to categorize diseases as dangerous infectious diseases, declare a particular location an infected local area, or issue regulations for any of the above-stipulated purposes in the absence of presidential action on a particular matter. [38]

President Muhammad Buhari recently exercised his authority by invoking the quarantine act in which he first made an oral declaration which must be in writing to make it a written regulation before it will have a binding force of law. Meaning that the oral Declaration made by the president must be written and he had put that in place by enacting the COVID-19 RESTRICTION 2020 likewise for a state, see the Prevention of Disease Regulation made by Lagos State as a perfect example of state regulation. As regards the meaning of a regulation stated in the quarantine act, in AG Lagos State V. Eko Hotel Ltd & Anor, [39]

The term regulation is defined in Black’s Law Dictionary, 8th Edition, page 1311 inter alia as: “The act or process of controlling by the rule of restriction.” Per Onnoghen, JSC. (P. 39, Paras. D-E) –

RECOMMENDATION

In as much as the executive arm is vested with the power to implement the law, it’s saddening that during this COVID-19 pandemic, some officer of the Nigerian Police Force and other security agencies are using the COVID-19 RESTRICTION 2020 has an excellent method to infringe on citizens right, exploiting from them financially and so forth. I posit that officers that should be asked to implement this regulation should have considerable knowledge of the law and should be officers of unquestionable integrity, to enhance the citizen’s confidence in the government most especially the security agencies.

CONCLUSION

An attempt has been made in this paper to show the importance of human rights in the society. It has also been noted that though rights are sacrosanct, however, they can be derogated in conformity of the Constitution.

The point has further been made that some of the Constitutional ways some human rights can be restricted most especially during this COVID-19 pandemic includes: State of emergency and quarantine act.

This ways could become successful if the right minds are put into custody of implementing the law. It is only when people of unquestionably integrity are chosen to implement the law, that is when citizens rights would no longer be infringed upon, and there would be effective adherence to the regulations.

[1] Olasupo Jubril Adedimeji is a Year 2 student, Faculty of Law, Lagos State University, Ojo. Can be reached on 07012013950, Gmail: jbdlearned100@gmail.com.

[2] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[3] Wikipedia, ‘Constitutionality’, < https://en.m.wikipedia.org/wiki/Constitutionality> , accessed 22^nd May 2020.

[4] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[5] 5 U.S. 137 (1803)

[6] Ibid.

[7] Wikipedia, ‘Right’ , < https://en.m.wikipedia.org/wiki/Rights> , accessed 22^nd May 2020.

[8] Farlex, ’Right’, < https://legal-dictionary.thefreedictionary.com/by+right> , accessed 22^nd May,2020.

[9] Ibid.

[10] What are human rights, < https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> , accessed 22^nd May 2020.

[11] LII,‘Fundamental Right’, < https://www.law.cornell.edu/wex/fundamental_right> , accessed 22^nd May,2020.

[12] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[13] Ibid.

[14] SC.283 (2009)

[15] Professor Fabian Ajogwu, ‘Constitutional Provisions on Restriction and Derogation from Fundamental Rights(S.45 CFRN) and the Need for Balance’, https://kennapartners.com/wp-content/uploads/2019/08/Constitutional-Provisions-on-Restriction-and-Derogation-from-Fundamental-Rights-S.-45-CFRN-and-the-Need-for-Balance-1.pdf >, accessed 22^nd May,2020.

[16] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[17] Ibid.

[18] Ibid.

[19] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[20] Ibid.

[21]  (2017) 4 NWLR (Pt. 1556) 404

[22] Wikipedia, ‘ State of Emergency’, < https://en.m.wikipedia.org/wiki/State_of_emergency> , accessed 22^nd May 2020.

[23] Ibid.

[24] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[25] Ibid section 305.

[26] Ibid.

[27] Ibid section 34.

[28] 2004

[29] Wikipedia, Quarantine’, https://en.m.wikipedia.org/wiki/Quarantine , accessed 22^nd May 2020

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Quarantine Act of 1926, pmbl,14 Laws of the Federation of Nigeria, Cap. Q2 (rev. ed. 2004), available at http://www.placng.org/new/laws/Q2.pdf

[34] Ibid section 2.

[35] Ibid.Subsidiary Legislation, Declaration of Dangerous Infectious Disease, available at http://www.placng.org/ new/laws/Q2.pdf(scroll to “Subsidiary Legislation,” page 3).

[36] Quarantine Act of 1926 section 2.

[37] Ibid section 4.

[38] Ibid section 8.

[39]  (2006) NWLR (Pt. 1011) 378