| THE RIGHTS OF THE NIGERIAN CITIZEN AS IS GUARANTEED UNDER THE PROVISIONS OF THE 1999 CONSTITUTION OF THE
FEDERAL REPUBLIC OF NIGERIA BY BARRISTER COSMAS IK. ENWELUZO I can think of better commencement for this paper than the often-quoted Lord Denning�s Opening sentence in his lecture titled �personal freedom� wherein he said: I hope you have not come expecting scholarly discourse replete with copies references. If You have, I fear you will be disappointed for I have come as the Henlyn Trust bids me, to Speak as it were, to the common people of England and to further amongst them the Knowledge of t heir law so that they may realise their privileges and likewise their Responsibilities so if I refer to matters which you know full well, I hope you will forgive me In the same manner of reason like Lord Dinning, forgive me where ever I err in the course of This lecture. My gratitude goes to the organisers of this lecture and in fact, the entire members of the Excellence Friends Social Club of Nigeria. You have indeed lend your foot prints on the Sand of time. The best gift you can give to man is to educate him. In organising this lecture, you in no means way educated most of us here present today. I thank you in a special way for the honour you have done to me to be part of this Lecture. I wish to assure you that whenever you call me, I will answer you and Whatever confidence you repose on me, same will be ably justified. Thank you and god bless. To the Ancient Greet City States, Democracy means government of the people, by the People and for the people. In the modern democratic setting, it means the rule by the Majority. Whatever the definition is, one thing is clear and that is: a system of government Where the people determines who rule and at the same time have a say in the day affairs Of the entity. Of the 43 years of the Nigerian Independence, a greater percentage has been under the Military rule. And for the avoidance of any doubt, Nigeria had her independence in 1960. In 1963, Nigeria became a republic with everything under the auspices of the Nigeria people The first military coups detat took place on the 15th day of January 1966. This was followed By another coup in July 1966. After nine years of military rule, another coup took place in 1976 with a failed coup in 1976. Nigeria went bank to a democratic government in 1979 Only for the military to strike bank in 1983. After another era of military spanning, a long Period of years, democracy was again ushered in July 1999. From this period of historical record, one would see that democracy has never gained any Root in Nigeria. Military government has a high level of dictatorship. It executes the wishes Of a particular few with litter or no concern for the interest of the people. Little wander a Learned author once wrote that the worst democratic government is better than the best Military rule. While this may be true of a truly democratic government, I wander whether Same is true in the Nigeria setting where the Nigeria government has no iota of sympathy For the people. I wish however to stop at this point as the topic of this lecture is not to Discuss the Nigeria government but to into the rights of every Nigeria citizen in the Democratic Nigeria setting. The coming into effect of successive Nigeria Constitution and in particular, the 1979 Constitution increased the incidence of Human Rights Litigation. This is so because Prior to 1979 constitution, there was not in existence of any body of rules pursuant to Which any action for the enforcement of any of the fundamental rights embodied in the 1963 Constitution could be brought. It is this development which has the interest of Human rights that other successive Nigeria Constitutions followed, both 1989 Constitution That was aborted alongside the transition to Civile Rule Programme of General lbrahim Babangida and the present 1999 Constitution. The Right of Nigeria Citizens is provided Under the Chapter IV of the 1999 Constitution, which runs from sections 33 to 42 of the Said Constitution. At this point it is important to discuss in detail the various Human Rights as provided in the 1999 Constitution. (1) RIGHT TO LIFE, Section 33: This is provided under section 33 of the 1999 Constitution. This section affirms the Individuals right to life by stipulating that no one shall be deprived �internationally� Of his life except in four specific circumstances. These circumstances are stated as follows. (a) Where it is done in execution of the sentence of a Court in respect of a criminal offence Of which he is found guilty in competent Court in Nigeria; (b) For the defense of any person from unlawful violence or for the defense of property; (c) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (d) For the purpose of suppressing a riot, insurrection or mutiny. It important to note that under Section 45 of the 1999 Constitution, death resulting from acts of war not considered to be violations of Section 33. It therefore holds that right to life is qualified and not unqualified and this is why the Court of Appeal, Lagos Division in Adeniji Vs. State (2000) 2 NWLR (Pt645) page 355 Ratio 2 held: �The right to life prescribed under section 30(1) of the 1979 Constitution is clearly a qualified right. It is not unqualified. The imposition or execution of death sentence in Nigeria is not subjected to any form of arbitrary, discriminatory or selective exercise of discretion on the part of any Court or any other quarters whatever� it has been discussed that some elements of the language of section 33 create unwarranted gaps or presupposed unnecessary restriction to the individual�s right to life. The use of the word �intentional� deprivation of life in the constitutional provision undermines neglects and the possibility of Government negligence in the form of accidental shooting, extra- judicial Killings, etc. Again, the use of the word �reasonably necessary� in Section 33 (2) of the Constitution creates room for unnecessary arbitrariness in the use of force. The said Section 33(2) provides: A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary. �Reasonably necessary� as used in the about subsection of the Constitution is a subjective thing that can easily be abused and this calls for a better rigid standard. 2. RIGHT TO DIGNITY OF HUMAN PERSON (Section 34) This is the section, which recognises or touches on dignity of human person in the form that no individual is to be subjected to torture or to inhuman or degrading treatment, slavery or any form of �forced or compulsory labour� This section in its subsection excepts as forced labour the following: (a) Any labuor required in consequence of the sentence or order of Court; (b) labour required in fulfillment of military service, equivalent civilian service with respect to conscientious objections or by virtue of membership in the Nigeria Police Force; (c) Any labour that is �reasonably necessary� to respond to an emergency or calamity that Threatens the life or well being of the community; (d) Other communal or civic obligations to benefit the community; and (e) Any compulsory national service that may be prescribed by a future act of the National assembly. In interpreting and defining the terms, Court OF Appeal, Enugu Division, in Uzoukwu Vs. Ezeonu 11 (1991) 6NWLR (pt 200) Page 708 defines �Tuture� to include any act without feeling for the suffering of the other. 3.RIGHT TO PERSONAL LIBERTY (SECTION 35) This right according to J.O. Akande is the right not to be subjected to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification. In Saidu Vs. State (1982) INCR. 49 AT ^&, Obaseki J.S.C. Says: �It does not give the Court any joy to see offenders escape the penalty they richly deserve, but until they are proved guilty under the appropriate law in our Court, they are entitled to work about our street and tread the Nigerian Soil and breath the Nigerian air as free as innocent men and women. Meanwhile, this is not to say that it is a right without limitation. The 1999 Constitution provides exceptions as follows: (a) In execution of a Court sentence or order pursuant to a finding of quilt in a criminal proceeding; (b) To enforce compliance with a Court order or any legal obligation; (c) To ensure appearance in Court where there is �reasonable suspicion� of criminal guilt or to the extent �reasonable necessary� to prevent an individual from committing a crime; (d) To promote the education or general well being of a minor� (e) To provide care or treatment for victims of infections or contagious diseases, protect the general public from such individual; and (f) To prevent unlawful entry into Nigeria or to effect lawfully removal there from, or in furtherance of any proceedings in either regard. It is important to understand the use of such phrase �reasonable suspicion� and �reasonable necessary� in the derogation provisions which seems to leave the test to the subjectivity of the enforcers of this provision. This provision brings to fore instances of police abuse and arbitrary discretion in the mode of effecting an arrest and conduct of search in execution of search warrants. Section 3 of the CPA has in its provision that �an arrest is effected by the person making the arrest by actually touching or confining the body of the person to be arrested, unless there is submission to the custody by word of mouth or action�. This follows that unless the person to be arrested, voluntarily submit to the person effecting the arrest when he is informed in a clear term that he is under arrest, an arrest cannot be effected by mere words of mouth. In other words, the person effecting to be arrest must actually touch or confine the body of the person to be arrested. It is however pertinent to note that unless the person to be arrested is in the actual cause of committing the crime or is pursued immediately after the commission of the crime or escapes from lawful custody, the person effecting the arrest must inform the person arrested why he is arrested. The Constitution having created excepted or derogation from the fundamental liberty goes on to immediately set a time frame for detention and bail. It however, states inSection34 (4) that �any person who is arrested or detained in accordance with subsection 1(c) thereof shall be brought before a Court of law within a reasonable time. (a) ��� and if he is not tried within a period of 2 months from the date of his arrest or detention in the case of a person who is in custody or is not entitle to bail; or (b) Three months from the date of his arrest or detention in the case of a person who has been released on bail; He shall without prejudice to any further proceeding against him be released either conditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. (a) The period of detention shall not exceed the maximum period of imprisonment prescribed for the offence. (b) A person arrested detained may remain silent or refuse to respond a to any interrogation until after consultation with a lawyer or any other person. (c) An individual must be notified within 24 hours of arrest or detention in language that he understands of the charges against him. That is to say that the suspect must be abreast with the facts that reasonably connect him with the crime in question. (d) Except in an offence punishable with death or capital offence, a person who is arrested or detained must be taken to Court within a reasonable time. Where there is a Court of competent jurisdiction within 40 kilometers of the site of arrest or detention �a reasonable time� is defined as precisely one day. Also where the nearest Court is farther away, a period of two days or such longer period as in the circumstances may be considered reasonable by the Court. As to the conduct of searches of persons, premises and things. The powers to conduct a search are conferred by statute to police and even other law enforcement agents. With respect search of a person by a police officer, this is provided under Section 29 of the police Act thus: �A police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner, anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.� In conducting a search of a person, it is statutorily provided that a woman can only be searched by another must be done with regard being had to decency. Meanwhile, there is no statutory provision as to who among genders that will search a man but it is suggested that a man should search a man. The statutory provision that a woman can only search a fellow woman is only restricted to the woman, such as the woman�s handbag or luggage. For the search of premises, it is a general provision that a search warrant must be obtained by the police. However, there is exception to that where a person to be arrested under a warrant of arrest is suspected of being within a premises, the premises may be searched for the person to be arrested without a search warrant. ` IN conducting a search to premises, the police officer conducting a search shall show the search warrant to the occupier of the premises to be searched. In the North where CPC is applicable, two respectable inhabitants of the neighborhood is to be summoned by the person executing the search warrant. Again, a person conducting a search in a premises has to be searched first by the occupier of the premises to forestall the person searching planting anything that will incriminate the latter. With respect to search of things, the police under the inherent powers provided under section4 of the police Act CAP 359 Laws of the Federation 1990 for police to conduct general duty, which includes power to prevent and detect the commission of crime. The police without warrant may search such things as a vehicle, a ship, etc. Thee stack truth about these constitutionals and statutory guidelines are that the administrative authorities saddled with the function to administer it usually abuse it. It is common these days for police officers to arrest people randomly on the pretext of reasonably suspecting the commission of a crime. Most of the times, the suspect is not told why he is arrested and even when told, is all about facts not connecting him to the trumped up offence. This is attributable to widespread corruption, which have permeated the entire formation of police force, thus militating against the enforcement of discipline in the force. 4. RIGHT TO FAIR HEARING (SECTION 36) In our adjudicator system, it is fundamental that every individual is entitled to a fair hearing within a reasonable time by a Court or other tribunal. The issue of fair hearing is a cardinal canon of justice, which is most omnibus. The Supreme Court in the case of Mohammed Vs. Kano Native Authority (1986) INWLR (pt 424) at page 426, proposed an objective test to determine whether the criteria for a fair hearing had been satisfied and this is based on the impression of a reasonable person who was present at the trial whether from his, observation, justice has been done in the case. Again this background, the basic consideration is what has been popularly referred to as �the twin pillars of justices� which is very fundamental in both civil and criminal proceedings�. These cardinal principles of justice are that a person facing trial must be given opportunity to be heard and that accuser should not adjudicate in a matter he is involved. The right to be heard had been extended in a recent case law of Sadiq Vs. Burdi (1991) 8NWLR (pt 210) 443, that it mush carry with it right that accused sould know the case made against him and also know the evidence that has been given and what statements have been made affecting him and has to be given a fair opportunity to correct or contradict them. Supreme Court also recently in the case of Okonkwo (1998) 10nwlr (pt 571) Page 551 Ratio 7 held that: �The rule of audi alterem parterm, the obligation to hear the other side of a dispute or the right of a party in a dispute to be heard, is so basic and fundamental a principle of our adjusdicatory system in the determination of disputes that it cannot be compromised�. Another side of the right tofair hearing is the fact that adjudictory bodies must be constituted in the form to ensure its independence and impartiality and must be constituted in the public.there are also other vital supplementary aspect of fair hearing constitutionally guaranteed in a criminal trial and to save time, could be summarized as thus: that any person charged with criminal offence is entitled: (a) To be presumed innocent until proved beyond reasonably doubt by a Court of competent jurisdiction; (b) to remain silent at the trial; (c) not to be give punishment greater than prescribed by the law in force; (d) not to be convicted of a criminal offence unless such offence is defined in a written law, together with the prescribed penalty; (e) to be informed promptly (in a language he understands) of the change against him; (f) to be afforded adequate time and facilities to enable him prepare for his defense either by himself or legal practitioner of his choice provided the legal practitioner is not under any disability. (g) To examine witnesses called by the prosecution and call his ownwitnesses as well. (h) To the services of a free interpreter where necessary and the accused must bring to the attention of the Court. (i) To have access to copies of judgement in the within 7 days of its conclusion. Meanwhile, this is not say there is no limitation to the right to fair hearing. In kotoye Vs. Central Bank Nigeria (1989) 1NWLR (Pt98) Page419 Justice Nnaemeka Agu gave approbation to exparte order of injunction under a special circumstance and under extrem urgency. Again, acourt or tribunal may at its desecretion, exclde persons other than the parties to the proceediung or their practitioner. This is constitutional predicated � in interest of defence, public safety, public morality, the welfare of persons who have not attained the age of eighteen (18) years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrarr to the interssst of justice This limitation Is contained in section 36(4) of the 1999 constitution. By the above provisions of the constitution, long detention without trail, dismissal from public corporation or agency, expulsion of students not pursuant to review panel�s finding are all justiceable and recoverable. Also a breach of any of the above-discussed due process of law constitutionally guaranteed canbe redressed. 5. RIGHT TO PRIVATE AND LIFE These provisions guard against interference with the privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communication. In this provisions, certain categories of action can be found. Unlawful entry by police into private premises for the purpose of arrest or investigation, government confiscation of mail or identity documents and even tapping of telephone lines by police. Also confiscation or seizure of handset of a suspect by police in the cause of investigation when the handset is not an exhibit fails into this category 6. RIGHT TO FREEDOM OF THOUGHT CONSCIENCE AND RELIGION This provision specifically guarantees the freedom of religion which gives right to persons to manifest and propagate religion or belief trough worship, teaching, practice and observance and also right to alter religion or beliefs. However, compulsory teaching and observance of a particular religion in educational institutions are prohibited. More so, secret society is forbidden in community where particular religion or denomination, is maintained wholly. However, Section10 of the 1999 constitution prohibits the adoption of any religion as a state religion��. �The government of the federation of a state shall not adopt any religion as a state religion��. Thus any semblance of any governmental favoritism or proclivity to same could constitute ground for an action. In summary under a liberal reading, This section could be interpreted to protect citizens against any form or indoctrination since it touches on freedom of thought, conscience and religion 7. THE RIGHT TO FREEDOM OF EXPRESSION AND THE PRESS (Section 39) Freedom of expression and the press has been defined in this contest, as right to hold opinions and to receive and impart ideas and information without interference. Subsection 2 of the above section provides that every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions. To this end, electronic media is not monopoly of state and opinions. To this end, electronic media is not monopoly of state and federal government. This was further enunciated by the supreme Court in the case of Ukaegbu Vs. Attorney General Imo State (1983) INWLR 212 AT PAGE 229 that the use of the word �medium� encompasses institutions, including school and universities, as well as the orthodox mass communication media. The derogation to this section is found in subsection 3 as it concerns infringement or prevents disclosure of confidential information maintenance of the authority and independence of the judiciary, to regulate telephones, radio, television or the exhibition of cinematograhic films. Other areas not permitted are civil defamation and contempt of Court. However, attempts by government to suppress the voices of human right activities, student leaders and journalists are among the many instances where citizens can invoke this provision. The unreasonable closure of media houses by government can be challenged under this provision. (8) RIGHT TO PEACEFUL ASSEMBLY AND ASSOCIATION (Section 40) This section provides protection for the right of individuals to assemble freely and associate with other persons for protection of his interest. This is to say that no citizen can be drafted or his notion of acceptance. These days, it has become prevalent for people to be levied and compelled to do certain act, which is mandated by the association, they are not members. This is purely unconstitutional. And in that regard, this provision can be invoked. It is important also to note that gathering of unlawful societies, coming together of group of people to commit an offence is precluded. But lawful conferences, seminars and even students� peaceful demonstration are constitutional. However, this right is subjected to the right of independent National electoral commission not to recognize or otherwise of any political party. (9) RIGHT TO FREEDOM MOVEMENT (Section 41) This section provides that: �Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refuse entry thereto or exit there refrom�. In this very provision the emphasis is on �Nigerian Citizen� as against �Any Person� It gives Nigeria citizens the right to move freely throughout and reside in any part of the country. Additionally, no Nigeria citizen shall be expelled the country or refused entry or exuitright. To this end, unreasonable seizure of citizen�s passport violates his right to freedom of movement. Meanwhile, this constitutional right may be relaxed in imposing retraction on the residence or 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 for the purpose of imprisonment in execution of a court sentence for criminal offence. (10) RIGHT TO FREEDOM FROM DISCRIMINATION This is a provision that unequivocally provides for the equality of all Nigerian citizens in any law, executive or administrative enactment that has a desperate impact, either favorable or unfavorable, upon any citizen of Nigeria. Additionally, that no Nigeria citizen should be advantaged or disadvantaged by reason of the circumstances of his birth. To this end, this provision abolished the status of illegitimate children and gender disparity. This constitutional provision is the most far-reaching of the fundamental rights provisions. That is why it is said that the provision regarding non discrimination based on sex and birth would open flood gate of litigation in the realm of women, children and other people purportedly attached with one form of stigma or the other by reason of the above mentioned circumstances. However, there is a constitutional provision as regards a law imposing restriction with respect to the appointment of any person to public office, the federal armed forces, the Nigeria police forces, or any office under the auspices of a legally established body corporate. 11 RIGHT TO ACQUIRE AND OWN IMMOVABLE PROPERTY ANY WHERE IN NIGERIA (SECTION) COMPULSORY ACQUISITION OF PROPERTY (SECTION44) I will venture to take the two above-mentioned rights together, since there are intertwined. Section 43 of the 1999 constitution provides and safe-guides the right of every citizen of Nigeria to acquire and own immovable property anywhere in Nigeria. However, section 44 of the constitution provides that such property or interest in the property should not be taken possession of compulsorily save adequate compensation is paid. However, the whole tenor regulation compulsory acquisition of citizen�s property stems from land use act of 1978 entrenched in S. 315 of the 199 constitution. By the above provision, all land is vested in the governor of the state in which it is found to be held in trust and administrated for the use and common benefit of all Nigerians. Individuals only have the right of occupancy and not ownership. Individual is also only entitled to compensation with specific guidelines if this right is revoke. This brings to fore the danger of this provision with regard to its management. It is also important to note that the compulsory acquisition by appropriate authority should be in conformity with strict guidelines for it to command legitimacy. For instance, the compulsory acquisition should be for public benefit as against individual benefit. Thus where the governor pursuant to this provision expropriate individual�s and gives same to an individual, the whole transaction devoid of public interested coloration. This provision can be invoked. Following the land use act, the interest derivation from it is simply Right of occupancy with a 99years term which technically is expected to expire after 99years and what happens after the 99 years is a question left from litigation to answer. It is important it note that most of those right afore-disscussed are provide for under the African charter or on human and peoples right in which Nigeria signatory and which has expressly been incorporate into our local legislation under African charter on human and peoples� Right (Ratification and Enforcement) act Cap 10 Laws of the federation of Nigeria 1990. In conclusion, it must be state that most of those abuses of human Right are occasioned by the government of the day more rampant during the military regime. This is not to say that such abuse of fundamental human right is not prevalent today. It suffices to say that when such occurs, it has to do challenged and by so doing we will be Reducing incidence of human right abuses in our society as well as developing our law. Thanks. REFERENCES 1 1999 Constitution of the Federal Republic of Nigeria. 2 Guide to Human Right Litigation in Nigeria by Clemency Nwankwo; constitutional Right Project GRP. 3 Criminal procedure act cap 80 LFN 1990 4 J. O. Akande, introduction to the Nigeria Constitution London: sweet & Maxwell limited (1982) P 32. 5 The ball process and human right in Nigeria, by akin ibidapo � obe & clement Nwankwo; constitutional rights project GRP. PREVIOUS NEXT PAGE |
