Twelve Cornerstones Of The Nigerian Constitution: The Nature And Enforcement Of Fundamental Rights Under The Constitution

By Chiamaka Irene Chukwukelu

INTRODUCTION

The history of human rights in Nigeria predates the advent of colonial rule. Human rights and fundamental freedoms were recognized in the traditional Nigerian societies. The idea of rights was not however conceived in the modern notion. Such values as right to family, kin and clan membership, freedom of thought, speech, belief and association, right to enjoy private property and the right to participate in governance of the affairs of the society were jealously granted.

In areas where the Sharia legal system was firmly entrenched, especially in the Northern part of the country, human rights and fundamental freedoms were specifically protected and guaranteed in accordance with the tenets of Islam which hold justice and equity in high esteem. Colonialism largely eroded traditional values and denied Nigerian’s their political and economic rights. It was until 1922 through the Clifford Constitution that limited franchise was introduced for the first time in Nigeria by the British Colonial government. The struggle for better political participation by early Nigerian nationalists led to the enhanced political rights in the pre-independence constitutions culminating in the Lyttleton Constitution of 1954.

The entrenchment of fundamental human rights in Nigeria in the modern sense could however be traced to the 1960 Constitution and those that followed. The Independence Constitution of 1960 and the Republican Constitution of 1963 have provisions for the protection of fundamental human rights. The 1979 and 1999 Constitution in chapter IV went further by providing in details rights recognized and safeguarded as fundamental rights. The 1999 Constitution provided the fundamental objectives and directive principles of state policy in chapter II thereby recognizing economic, social and cultural rights. The entrenchment of the human rights provisions in our constitutions was aimed at creating a society which protects political freedoms as well as the social and economic well-being of Nigerians.

NATURE OF FUNDAMENTAL RIGHTS

Human rights are moral principles or norms that describe certain standards of human behavior in every society. The right is based on the belief that everyone is equal and should be treated as such in every democratic society. These rights are basic for every one irrespective of their position, nationality, place of birth, citizenship, religion, culture and some other status.

To violate the most basic human rights is to deny individuals their freedom of existence. NELSON MANDELA once said that; “To deny people of their human rights is to challenge their very humanity”.

Fundamental rights as a matter of both fact and law are basic moral guarantees peculiar to people in all countries and cultures. They are those rights that are recognized and protected by the Laws of every country, and as such the necessary panacea for a society’s existence.

It is noteworthy that while human rights have a general application and recognition in every democratic nation, fundamental human rights applies specifically in accordance to the laws of a country.

Hence, the human rights that are enforceable in Nigeria are those that are recognized by law as fundamental rights. It is the codification of these rights that paved way for the Legality and enforceability of Fundamental rights under the Nigerian Constitution. Fundamental rights are codified in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). These are described as the twelve cornerstones of the Nigerian Constitution. Some of these rights are not absolute as we shall see anon.

Fundamental rights recognized by the Constitution of Nigeria includes the following:

1. RIGHT TO LIFE

Under Section 33 of the constitution, every person has a right to life and no one shall be deprived intentionally of his life. However, the Constitution provides exceptions for the violation of this right:

1. Where the taking of his life is in execution of a sentence of court in respect of a criminal offence in which the person has been found guilty in Nigeria.
2. Where the loss of life is as a result of the use of force that is reasonably necessary and in such circumstances as permitted by law; or
3. For the defence of any person from unlawful violence or for the defence of property.
4. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
5. For the purpose of suppressing a riot, insurrection or mutiny.
6. RIGHT TO DIGNITY OF THE HUMAN PERSON

Every person is entitled to respect of his/her own dignity and accordingly; no person shall be subjected to: torture or inhuman treatment, slavery or servitude, or be required to perform forced or compulsory labour. This is provided in Section 34 of the 1999 Constitution.

However, under the Constitution, forced or compulsory labour does not include-

1. Any labour required in consequence of the sentence or order of a court;
2. Any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;
3. In the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required of such service;
4. Any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life of well-being of the community; or
5. Any labour or service that forms part of the normal communal or civic obligations for the well-being of the community.
6. Any labour or service that forms part of compulsory national service in the armed forces of the Federation or education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.
7. RIGHT TO PERSONAL LIBERTY

Under Section 35 of the Constitution, every person shall be entitled to his personal liberty and no person shall be deprived of this right except in special circumstances permitted by law. It is a right not to be arrested, imprisoned without legal justification. An example of violations of this right can be found in cases of false imprisonment of a person by a private person, unlawful arrest, detention and imprisonment by the Nigerian law enforcement agencies.

However, this right is not without exceptions. Thus a person may be denied of the right to personal liberty in the following instances:

1. In execution of the sentence of court in respect of a criminal offence committed by such person;
2. Failure to comply with the order of a court;
3. For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence;
4. For the education or welfare of a person who has not attained the age of eighteen years;
5. For the care or treatment of a person suffering from infections or contagious disease, persons of unsound mind, persons addicted to drugs or vagrants or for the protection of the community.
6. For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceeding relating thereto.

Notwithstanding the above exceptions, it is a constitutional requirement that any person arrested or detained in lawful custody, shall not continue to be kept in such detention for a longer period longer than the maximum period of imprisonment prescribed for the offence.

4. RIGHT TO FAIR HEARING

Every person shall be entitled to fair hearing within a reasonable time by the court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. This is provided in Section 34 of the 1999 Constitution.

It is noteworthy that the Constitution and some other laws put in place some protective measures to ensure that an accused person standing trial for an offence is given a fair trial-that is, a trial that is not only fair but seen to be fair. This is largely to guard against persecution instead of prosecution of criminal cases. Thus, the legal safeguards put in place for the protection of a person’s civic rights and obligations includes:

• Right to fair hearing in public (publicity of trial)
• Right to fair hearing within a reasonable time
• Right to counsel
• Right to interpreter
• Right to adequate time and facility to prepare for defence
• Right to examine witnesses
• Right not to be tried on retroactive legislation
• Right to have all defences raised considered
• Rights to have all reasonable doubts resolved in his/her favour

In criminal cases, the Constitution upholds the following additional rights:

• Right to be informed of the offence committed
• Right to be tried only once for one offence
• Right to be tried for an offence known to law
• Right to be present at the trial
• Right to silence
• Right to mandatory legal representation in capital offences
• Right not to be tried for an offence for which the accused has received pardon

Furthermore, the denial of this right by a competent court of law or tribunal will render the entire proceedings against the suspect a nullity.

5. RIGHT TO PRIVATE AND FAMILY LIFE

Section 37 of the Constitution guarantees the right to the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. This provision encompasses the privacy of the person (i.e. from unwarranted incursions into physical, emotional and personal attributes); the sanctity of homes and property (i.e. from unauthorized searches or trespasses); and the protection of correspondence and conversations from being intercepted or diverted.

The right to privacy under the 1999 Constitution is not an absolute right because section 45 of the same Constitution provides for circumstances that permit derogations from that right. Section 45 provides: “Nothing in section 37… shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons”.

The implications of this section are such that where existing or new legislation relating to health, environment, criminal justice administration, town planning, etc. infringes an individual’s right to privacy, the courts are faced with determining the constitutionality of the law in light of the provisions of section 45.

With regards to unauthorized search and seizure, the following cases of Mallam Abdullahi Hassan & Ors. V. EFCC & Ors. (2013) LPELR. 22595 (CA); Federal Republic of Nigeria V. Joseph Daniel (2011) LCN/4238 (CA) reveal that the courts are not willing to go beyond the ambit of section 45 in this regard. They are strict in insisting that any such law that authorizes search and seizure must be ‘reasonably justifiable’ and in the interest of either public order, safety, morality or health.

The 2015 Cybercrime (Prohibition, Prevention etc.) Act criminalizes unlawful interception of non-public data. The penalty is a maximum of 2 years imprisonment and a 5 million naira fine. The Act does not mention the word ‘privacy’, but it provides for the retention and protection of data in computer based system by financial institutions and criminalizes the interception of electronic communications in financial institutions.

It appears that the inclusion of this provision was a direct acknowledgement of the current possibilities of electronic interceptions by hackers or outside forces in electronic communications and transactions.

6. RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

Under section 38 of the Constitution, every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

To reinforce and ensure that the entitlement to this right is meaningful, section 42 of the Constitution provides that no person shall be discriminated against on the basis of his or her religion. While on one hand this ensures that people freely embrace any religion of their choice, it further underscores the equality of all religion. The right to freedom of religion is also to be enjoyed in the context in which no religion is to be preferred. Thus, section 10 of the Constitution provides that ‘the government of the federation or the state shall not adopt any religion as state religion’.

The right to freedom of religion contained in section 38 is not absolute. Section 45(1) of the Constitution provides for derogations for individual and group considerations.

The framework for understanding the scope of the right to freedom of thought, conscience and religion was set out by the Nigerian Supreme Court in Medical and Dental Practitioners Disciplinary Tribunal V. Okonkwo. Ayoola JSC, who read the unanimous judgment of the Court, stated:

The right to freedom of thought, conscience or religion implies a right not to be prevented without lawful justification from choosing the course of one’s life, fashioned on what one believes, and the right not to be coerced into acting contrary to one’s belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where the put the welfare of the society or public health in jeopardy… Law’s role is to ensure the fullness of liberty when there is no danger to public interest. Ensuring liberty of conscience and freedom of liberty is an important component. The courts are the institutions society has agreed to invest with the responsibility of balancing competing interests in a way to ensure the fullness of liberty without destroying the existence and stability of the society.

7. RIGHT TO FREEDOM OF EXPRESSION AND THE PRESS

Every person is entitled to freedom of expression including freedom to hold opinions and to receive and impact ideas and information without interference. This is provided in Section 39 of the 1999 Constitution.

The right provided under this section is not an absolute right because section 45 of the same Constitution provides for circumstances that permit derogations from that right.

An instance of such derogation of the right to freedom of expression and the press can be found in the preamble to Freedom of Information Act, 2011. The Act makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes.

It is noteworthy that while this right is guaranteed by the constitution, it does not give any person the right to make an untrue statement against another as this will be defamatory.

8. RIGHT TO PEACEFUL ASSEMBLY AND ASSOCIATION

Every person is entitled to assemble freely and associate with other persons; he may form or belong to any political party, trade union or any other association for the protection of his interest. This right is exercised through the formation of religious organizations, pressure groups, peaceful demonstrations by citizens in the form of protests, social gatherings for entertainment or sports, membership  of an association such as trade unions, NBA, NMA, friendly societies, etc.

A violation of this right without legal justification amounts to a breach of the right to peaceful assembly and association.

However, the right to peaceful assembly and association is not absolute. Section 45 provides derogations from this right in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons.

An example of such derogation can arise where a peaceful demonstration graduates into a riot, or where the objectives of an association is for the promotion of an illegal purpose.

9. RIGHT TO FREEDOM OF MOVEMENT

Every citizen is entitled to move freely throughout Nigeria and to reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry or exit. This is provided in Section 39 of the 1999 Constitution.

Notwithstanding the above, the Constitution provides exceptions to this right. They include:

1. Where restrictions are imposed on the movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
2. Where a person is removed to another country to be tried outside Nigeria for any criminal offence; or
3. He/she is removed to another country outside Nigeria to undergo imprisonment, in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty of; provided that there is a reciprocal agreement between Nigeria and the other country.

Apart from the above exceptions, any restriction on the movement of a person, such as false imprisonment or kidnapping is a flagrant violation of that person’s right.

10. RIGHT TO FREEDOM FROM DISCRIMINATION

The Constitution frowns against discrimination of any citizen of Nigeria on the basis of ethnic group, place of origin, sex, religion or political opinion. In other words, each citizen of Nigeria is entitled to every privilege or advantage that is accorded to other citizens of Nigeria irrespective of his/her community, ethnic group, and places of origin, sex, religious or political opinions.

Additionally, no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

11. RIGHT TO ACQUIRE AND OWN IMMOVABLE PROPERTY ANYWHERE IN NIGERIA

Every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria. This right affords every Nigerian the equal opportunity of acquiring immoveable properties from every part of the country, irrespective of whether the person belongs to or is a member of the particular ethnic group or community where such property is located.

12. COMPULSORY ACQUISITION OF PROPERTY

Under the Constitution, no moveable property or any interest in any immovable property shall be taken possession of compulsorily, and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner provided by law.

In the case of immoveable property such as land, the Land Use Act of 1978 empowers the Governor to revoke a right of occupancy for purposes of overriding public interest. In so doing, both the Constitution and the Land Use Act places on the Federal and State government the obligations to make prompt payment of compensation to the holder of such right.

Notwithstanding the above, this right shall not prevent-

1. The imposition or enforcement of any tax, rate or duty;
2. The imposition of penalties and forfeitures for the breach of any law, whether under civil process or after conviction for an offence;
3. Relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contract;
4. Relating to vesting and administration of the property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound up;
5. Relating to the execution of judgment or orders of court;
6. Providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants and others etc. (Note that the list goes on and on)

Fundamental Rights are very important in every civilized society. They are inalienable rights which can only be derogated according to law. In the words of OGUNWUMIJU J.C.A in OKAFOR & ORS V. NTOKA & ORS. (2017) LPELR-42794 (CA), he stated:

“The importance of Fundamental Rights cannot be overemphasized. They are the rights that are not only basic to humans, they form the bedrock for a free society devoid of forces of unbridled aggression, oppression, repression, authoritarianism. They have been entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) due to their sacrosanct nature and importance. When applicants approach the Courts for the enforcements of these rights, the Court must within reasonable limits do all that is necessary to ensure that these rights are protected”.

Also, the Supreme Court while deciding on the inalienable and immutable nature of fundamental rights in the earlier case of CHIEF (MRS). OLUFAMILAYO RANSOME KUTI & ORS V. ATTORNEY-GENERAL OF THE FEDERATION (1985) 2 NWLR (PT. 6) 211 AT 229-230 stated as follows:

“This is no doubt a right guaranteed to everyone including the appellants of the constitution. But what is the nature of a fundamental Right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution, since independence………is to have these rights enshrined in the constitution so that the rights could be “immutable” to the extent of the “non- immutability “of the constitution itself”.

Suffice it to say that fundamental rights are fundamental because they are guaranteed and protected by the constitution. It is a right that stands far above ordinary rights, the primary condition of a civilized society which the Nigerian Constitution recognizes and protects. Chapter IV of the constitution is generally known and devoted to such rights. They are therefore given a special place and treatment in any civilized society that observes democratic values”. See BILLIE V. MULTI-LINKS TELECOM LTD (2017) LPELR-41862 CA).

Owing to the recent outcry and peaceful demonstrations by Nigerian youths on allegations of violations of their fundamental rights by officers of the Special Anti-Robbery Squad (SARS) brings to light once again the sacrosanct nature of these fundamental rights.

It is important to state that Chapter IV of the Constitution is in line with the fundamental objectives and directive principles of Nigeria state policy which provides:

1. That every citizen shall have equality of rights, obligations and opportunities before the law and;
2. That the sanctity of the human person shall be maintained and enhanced and that governmental actions shall be humane (emphasis is on mine). See Section 17 of the Constitution.

Additional, Article 55 of the Universal Declaration of Human Rights places an obligation on states to promote universal respect for, and observance of, human rights and fundamental freedoms.

ENFORCEMENT OF FUNDAMENTAL RIGHTS

The true essence for the enforcement of the fundamental human right is to protect every person’s right from abuse and violation by authorities and persons. In the event of breach of any of these rights, the next question that comes to mind is to determine the steps an aggrieved party can take to enforce his rights.

Bear in mind that Section 46(1) of the Constitution confers jurisdiction to the High Court to entertain suits from any person who alleges that any of the provisions of Chapter IV of the constitution “has been, is being or likely to be contravened in any state in relation to him”.

In the words of per EJIWUNMI, JSC in AG ADAMAWA STATE & ORS V. AG FEDERATION & ORS. (2005) 12 S.C. (Pt. II) 133:

“It is my manifest view that where a party considered that his constitutional rights have been breached, that party can quite properly seek the invocation of the Court’s powers to protect the invasion of such rights. If the Constitution is to be upheld and undoubtedly it must be, then a breach of it or the likelihood of its being breached must be capable not only of being vindicated but also of being prevented”.

It is settled principle of law that any breach of the provisions of the fundamental right provisions renders the act subsequent to that breach a nullity. Thus, in DIAMOND BANK V. OPARA & ORS. (2018) LPELR-43907, the Supreme Court stated:

“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or likely to be infringed, may apply to the Court in the State where the infringement occur, for redress”.

For an action to succeed in cases of violation of fundamental rights, it is not enough for the aggrieved party to merely state that an act is illegal and unconstitutional, or that there has been a violation of his fundamental rights. In other to succeed, he must go ahead to proof by evidence facts that necessitated the breach. This is in line with Evidence Act “that he who asserts must prove.

It is noteworthy that the manner in which the court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the right so guaranteed by the Constitution. See SAUDE V. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387.

This seems to underline the concerns in regard to redressing a contravention of a fundamental right by liberalizing the type of originating process without the person affected being inhibited by the form he adopts. It is enough if his complaint is understood and deserves to be entertained. Per UWAIFO, JSC in FRN V. IFEGWU (2003) LPELR-3173 (SC).

Thus, an application for the enforcement of fundamental rights may be made by any originating process which is accepted by the court. The application shall, subject to the rules, lie without leave of court. See Order II Rule 2 Fundamental Rights (Enforcement Procedure) Rules, 2009.

This means that it is possible to commence the application by writ of summons, an originating summons, a petition or an originating motion. However, an originating summons is best suited for determination of questions and interpretation of documents. It is not recommended if the facts are contentious because an originating summons is generally not suitable for hostile or contentious proceedings.

It is necessary that the action is brought under the Fundamental Rights (Enforcement Procedure) Rules.

Furthermore, it should be noted that applications for the enforcement of fundamental rights are granted once the rights of the applicants are shown to have been threatened or breached. To determine a breach of such rights, the courts will always rely on facts as contained in the affidavits for and against the application. See OANDO PLC V. FARMATIC BIOGAS WEST AFRICA LTD & ANOR (2018) LPELR-45564 (CA); ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR (1981) 5 SC 69.

In EMMANUEL UKPAI V, MRS FLORENCE OMOREGIE & ORS (2019) LPELR-47206 (CA). The facts that led to the appeal are as follows:

The Appellant/Cross Respondent, a car dealer, alleged that he was arrested by the 2^nd to 4^th Respondents/Cross-Appellants because of the instigation made to them by the 1^st Respondent that he stole her RAV-4 car.  The allegation that led to the arrest of the Appellant/Cross-Respondent was premised on the allegation that the 1^st Respondent saw her stolen car in the custody of the Appellant/Cross-Respondent. The Appellant/Cross-Respondent was thereafter arrested and taken to the State Criminal Investigation Department where it was revealed in a subsequent investigation carried out by the 0.C anti-vehicle theft that a difference existed in the Chassis and Engine Number of the Rav-4 car found in the custody of the Appellant/Cross-Respondent who is a car dealer and that of the car of the 1^st Respondent which was alleged to have been stolen by the Appellant/Cross-Respondent. Consequently, the Police discharged the Appellant/Cross-Respondent and dismissed the allegation against him.

Thereafter, the Appellant/Cross-Respondent alleged that he suffered injury to his reputation which affected his business fortunes and exalted positions he held in the society. The Appellant/Cross-Respondent then filed an application for the enforcement of his fundamental rights claiming a violation of his rights under sections 34, 35, 36, 37, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). In delivering its lead judgment, the court per

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A stated as follows:

“I must add by way of emphasis that it behooves the Courts as the veritable agency for the protection and preservation of rule of law to ensure that persons and institutions operate within the defined ambit of constitutional and statutory limitations. Where agencies of government are allowed to operate at large and at their whims and caprices in the guise of performing their statutory duties, the end result will be anarchy, licentiousness, authoritarianism and brigandage leading to the loss of the much cherished and constitutionally guaranteed freedom and liberty.

In the instant case the invasion of the place of business of the Appellant/Cross-Respondent and his arrest and detention based on the complaint by the 1^st Respondent that her missing vehicle is similar to the one in the Appellant/Cross-Respondent sales depot without any preliminary investigation or inquiry smacks of reckless abuse of power that should not be allowed to persist in this country if we are to make progress socially, politically and economically.

The courts should indeed rise up to protect the helpless and hapless citizenry from wanton abuse of powers by agencies of government and one of such modes of deterrence is the award of punitive or exemplary damages in the event of any such breach of the fundamental right of any aggrieved person”. See OKAFOR V. ASOH (1999) 3 NWLR (Pt. 593) at pp.53-57; OGBUEHI V. GOVERNOR OF IMO STATE (1995) 9 NWLR (Pt. 417) 53 at pp. 52-90.

CONCLUSION

In conclusion, where there is a breach or threatened breach of a person’s fundamental rights, the proper action to take is to resort to Court for redress. The aggrieved party can choose to represent himself in court, although it is advisable to seek the services of a legal practitioner for proper guidance and representation.

Written By Chiamaka Irene Chukwukelu, 07033274961, Cichukwukelu@Gmail.Com

REFERENCES

1. M. Stanley-Idun & J.A. Agaba: Civil Litigation in Nigeria (Nigeria: Renaissance Law Publishers Limited, 2^nd Edn).
2. Adedeji Adekunle, Right to Privacy and Law Enforcement, Lecture presented at the Ogun State Judges’ Conference (OJSC), 27^th September 2016.
3. ohchr.org/Documents/Issues/NHRA/Nigeria09-13.doc (last visited on 19th October, 2020 by 7:45pm).