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HUMAN RIGHTS PROVISIONS IN 1999 CONSTITUTION (HRE303) ... Catalog Page |  |
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HUMAN RIGHTS PROVISIONS IN 1999 CONSTITUTION : |
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CHAPTER FOUR IN DETAIL : The Chapter protects every citizen and foreigner resident in Nigeria against any violation or threatened violation of their rights listed above. We shall consider the rights in details. Section 33: Right to Life Every person has right to life and no one shall be deprived intentionally of his life, except: (a) A superior court says so after trial for a serious offence. (b) For the defence of any person from unlawful violence or for defence of property. (c) To effect lawful arrest or prevent the escape of person in lawful detention. (d) To suppress riot, insurrection or mutiny. The framers of the Constitution were only concerned about life in terms of physical existence. The Courts have given wider definition to the Right to Life which means more than mere survival or animal existence but the right to live with human dignity and have all that goes with it, namely the bare necessities of life, e.g. adequate nutrition and food, clothing and shelter, facilities for reading, writing and expressing oneself in diverse forms as well as freely moving about and co-mingling with other human beings. Other things that make life worth living are: good food, adequate shelter, clean water, access to medicare, etc. These make life more dignifying. Right to life, broadly speaking, will encompass access to adequate standard of living. Government is required to refrain from life-threatening and destroying policies such as yearly increment in the price of fuel, non-implementation of capital budgets but should engage in life-promoting and nurturing policies such as stabilizing electricity power supply, payment of social security benefits to the unemployed and vulnerable groups, building of good road network, providing portable water, flooding the market with good food and giving free education to the people. Finally, it should be noted that right to life is the most important of all human rights. Preserving life is therefore necessary in order to fulfill human existence. Life is intrinsically connected and interdependent in all its forms because joy, happiness of one affects another just as suffering, poverty and death of one affects the other. So protection of the right to life would help prevent disruption of any of the various aspects of the social fabric or thread of life. |
| Right to Dignity of Human Person, Section 34 : Every person is entitled to respect for the dignity of his person. (a) No person shall be subjected to torture, inhuman or degrading treatment. (b) No person shall be held in slavery or servitude, and (c) No person shall be required to perform forced labour. Except (a) Court orders it (b) It is required of members of the military (c) As a national service in the military (d) For training as a citizen of Nigeria for the well-being of the community. has been defined in the Nigerian case of Uzoukwu v. Ezeonu II (1991) 6NWLR, Part-200 @ P. 708 (Court of Appeal) to include mental harassment, as well as physical brutalization while Inhuman Treatment characterizes any act without feeling for the suffering of the other which has the characteristics of lowering the societal status, character, value or position of a person. ARTICLE 2 of UDHR states that All human beings are born free and equal in dignity and rights It means that each person without distinction as to family, social or cultural origin, is entitled to recognition of his or her inherent worth and dignity as a representative of humanity. The dignity of each being resides in each of us, and this dignity should be recognized and respected by all. It is wrong to call somebody an outcast (Osu)or discriminate against anybody in that regard. Remember the first preamble to UDHR states: recognition of the inherent dignity and of the equal and inalienable rights of all members of human family as the foundation of freedom, justice and peace in the world. |
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Right to Personal Liberty, S. 35 : “Every person has right to personal liberty and shall not be deprived of this right except (a) when the court orders the person to be detained after being found guilty of an offence. (b) Failure to comply with Court order (c) For purposes of bringing him before a Court to face trial on suspicion of having committed a criminal offence (d) For the purpose of education or welfare of someone less than 18 years (e) Where the person has infectious disease or is a drunkard or mentally sick for purposes of his treatment. (f) To prevent the unlawful entry of a person into Nigeria or effecting expulsion or extradition from Nigeria. In these cases mentioned above, no person shall be kept more than the maximum period of imprisonment laid down for such an offence. (2) A person arrested or detained has the right to remain silent or avoid answering question until he has discussed with his or her lawyer. (3) A person arrested or detained shall be informed in a language she/he understands of the reason for the arrest and detention within 24 hours. (4) A person detained shall be released either on bail or within two months of the date of arrest or detention if not tried. (5) Such a person arrested or detained shall be brought to Court; (a) within 24 hours if there is a court within 40 km. Radius or 48 hours or any longer period approved by court where there is no court around. However, this does not apply to a person who is suspected to have committed an offence punishable by death such as murder or armed robbery. (6) A person who is unlawfully detained or arrested shall be entitled to apology and compensation. “Personal Liberty has been defined as the right not to be subjected to imprisonment, arrest and any other physical coercion in any manner that does not admit legal justification. It must be mentioned that some of the terms used in the section like reasonable suspicion of having committed a criminal offence appears to be very ambiguous, but the burden of proving the reasonableness of an arrest rest on the person who made the arrest i.e. the policeman. Furthermore, sub Section (e) can be used to confine an Aids victim on the excuse of protecting the community. Generally speaking, for simple offence, misdemeanor and non-capital offences, if the police is not ready to charge the suspect to court. When the matter is charged to Court, in cases of non capital offence, it is the basic right of the accused to be granted bail. The court has in the case of Obekpa v. Commissioner of Police 1981 2 NCLR 420 at 422 explained that release on bail is a basic right of any person accused of a non capital offence. According to Justice Alhassan Idoko this privilege guarantees easy accessibility to counsel and witnesses and ensures unhampered opportunity for the preparation of the defence. Unless the right to bail is preserved, protected, allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence, would lose its meaning and force. Release on bail may be conditional or unconditional, but in practice, surety or sureties are required and certain amount of money is usually undertaken to be paid by the surety if the accused jumps bail. Again, if the bail condition is very severe, application can be made to the court to liberalize the condition of the bail. Please note that bail is free both at the police station and at the Court. The provision for compensation under this section gives a person unlawfully arrested or detained the right to sue the authorities and claim damages. The court warned in John Folade v. A.G. of Lagos State (1981 2 NCLR, 771) that the courts are always prepared and will be quick to give relief against any improper use of power or any abuse of power by any member of the executive, the police or any other person. |
| Right to Fair Hearing S. 36 : Every person has right to fair hearing within a reasonable time by a court or Tribunal established by law. The court trying the person's case must be impartial. - Trial must be held in public, except when the accused is under the age of 18 years or to protect public interest. - A person accused of offence should be given an opportunity to make representations - A person accused of an offence is deemed innocent until proved guilty - Such accused person shall (a) Informed in detail the nature of the offence. (b) Be given adequate time and facilities for the preparation of his/her defence (c) Be entitled to defend himself in person or by a legal practitioner of his own choice. (d) Be allowed to ask question from witnesses called by his or her accuser and call his or her own witnesses (e) Be entitled to an interpreter without payment (f) Be entitled to the record of proceedings - No person shall be guilty of what was not an offence when he engaged in an act that later became an offence. - Any person previously tried or convicted or set free or pardoned cannot be tried again for the same offence. - No accused person should be forced to give evidence at his/her trial - No person can be tried for an offence not written in a law. There is no such things as customary crimes. The two pillars of fair hearing or natural justice are: (a) hearing the other side of the matter before concluding i.e. giving an opportunity and hearing the other party and (b) an accuser should not serve as a judge in a matter in which he or she is involved. The objective test for fair hearing in any case is whether the impression of a reasonable person who was present at the trial, from his observation, can conclude that justice has been done. For justice to be seen to have been done, the court should be constituted in such a way as to ensure its fairness and impartiality. Now, let us consider other provisions of S. 36 1. Presumption of Innocence: Every accused person is presumed innocent i.e. he is to be seen as an innocent person until proved guilty. In other words, it is the complainant and other witnesses that reported the accused to police or brought him/her to court that would prove that he/she is guilty. It is not the accused that would prove in the first place that he/she is not guilty. So the burden of proof is on the complainant/prosecution, thereafter the accused can open his/her defence if the prosecution has succeeded in establishing a substantial case against the accused. 2. Right to Counsel: The right to a lawyer is fundamental because even the intelligent and educated has little and sometimes no skill of the knowledge and practice of law. If charged with a crime, he is incapable of knowing whether a charge is good or bad and does not know the rules of evidence. The government is under obligation to provide a lawyer to a person who is accused of an offence punishable with death if such a person cannot afford one. It should also provide legal aid (free legal services) for the poor who are standing for trial for other offences, but cannot afford to retain the services of a lawyer. 3. Right to Bail: Once a person is charged to Court and he has pleaded to the charge and the offence is a non capital offence. The accused whether represented by counsel or not is usually released on bail, i.e. the court will grant bail once it is satisfied that the accused would appear to stand his trial, and is not likely to commit another offence while on bail and will also not interfere with investigation into the case. The law is that bail should not be withheld as a punishment to the accused. Release on bail is a constitutional right of the accused because he/she is presumed innocent until proved guilty. However, for capital offence i.e. offences punishable with death on conviction, bail can only be granted by a High Court. 5.37 Right to Private and Family Life: Every person has a right to privacy and the following are protected (a) Homes, (b) letters (c) Telephone discussion (d) Telegraphic Communication (e-mail, internet, etc.). Before your home can be searched for any reason whatsoever, a search warrant must be signed by a competent court or a very senior police officer. The person requesting for the search of your house must depose to the fact that, to the best of his knowledge, there are incriminating documents or property linking the occupant or any other person with an offence. It is the right of every person against whom a search warrant is being executed to request and receive a copy of the warrant. Such a person can later apply to court to set aside such warrant and claim damages if it was issued in bad faith. 5.38. Right to Freedom of Thought, Conscience and Religion: Every person is entitled to Freedom of Thought, Conscience and Religion. - A person can change his religion or belief - No pupil or student should be forced to take part in religious ceremony - other than his/her own parents. - Religious denomination has right to give religious instructions to - their pupils. - The law does not allow membership and/or participation in the activity - of secret society. This section guarantees liberty to manifest and propagate religion or beliefs through worship, teaching practice and observance, as well as freedom to alter Religion or beliefs. Mandatory religious instructions and participation are prohibited in educational establishments, except those maintained wholly by a particular religious community or denomination. Membership or participation in a secret society is forbidden. Secret Society is defined as a society or association not being a solely cultural or religious body that uses secret signs, oaths, rites or symbols, Whose meetings or other activities are held in secret; while members are under oath, obligation or other threat to promote the interest of its members or to aid one another under all circumstance, without due regard to legitimate expectation of those who are not members (see S.35(4) 1979 Constitution). Remember under S. 10 of this Constitution, government is not allowed to adopt any religion as a state religion and under S. 35 of the 1979 Constitution, the federal, state and local governments are forbidden from adopting an official religion. This compels them to remain impartial when deciding controversies stemming from religious disputes. S. 38 of 1999 Constitution which is equivalent of S.35 of 1979 Constitution does not bear such provision. The introduction of Islamic religion as the official in Zamfara or other State of the North appears to be violation of S. 38 of the constitution. |
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S.39 Right to Freedom of Expression and The Press: - Every person has right to speak and hold opinion. A person may also receive and impart ideas and information without interference. - Every person may own or operate newspaper or any other medium for disseminating information, ideas or opinion. - No person can own or operate a television or radio or other wireless station unless the President allows him or her. - Public officials and others may however be prevented by law from disclosing information received in confidence. Medium has been defined to include institutions including schools and universities as well as newspapers, etc. The right to speak up does not extend to making of defamatory statement against someone and impartation of ideas also does not extend to making libelous or seditious publication. However, the court has held in the case of Chief Arthur Nwankwo v. State 1985 NCLR,226 that the law against sedition (formerly S.51) of the Nigerian Criminal Code) was inconsistent with the right to freedom of expression and the press, especially where there was no threat to public order. In the past, government (especially military dictatorship) had to clamp down and suppress voices of Human Rights activists, student leaders, and journalists, etc. This is good case where this provision of Constitution can be invoked against the authorities. Again, the Court have decided (Adikwu v. Fed. House of Reps., 1982 3 NCLR 3 94) that a newspaper should not disclose its sources of information except in a grave or exceptional circumstances. |
| S.40 Right to Peaceful Assembly: Every person shall be entitled to assemble freely and associate with other persons. - A person may form or belong to any political party or trade union of his choice or any other association for the protection of his/her interest. However, INEC may refuse to recognize a party if it did not comply with the provisions of the Constitution. It should be noted that association/relationship with other persons or groups is on the basis of choice. No person can be compelled to belong to organizations or group. It is a violation of the Constitution for a cultural or town union to compel all its sons to belong to their union. However, once an individual has chosen to affiliate with a particular group, she/he should abide by the prevailing rules, provided they are not contrary to public policy or existing law. For political party to be registered by INEC for the purpose of canvassing for votes for its candidate at any election must fulfill six requirements S.222 of the 1999 Constitution. 1. Register the names and addresses of national officers with INEC. 2. The membership of such association must be open to all Nigerians without discrimination as to sex, religion, ethnic grouping or circumstances of birth. 3. Register its constitution with INEC. 4. Any amendment in its constitution should be registered with INEC within 30 days of such amendment. 5. The name, logo, symbol should not contain any ethnic or religious connotations. 6. The headquarters of the association should be situated in Abuja. S.222 of 1999 Constitution. The Court has decided that any other condition imposed by INEC outside what the constitution provided for in S.222 is unacceptable. That is why the court compelled INEC to register the 24 Parties before the 2003 general election. Again, it is unconstitutional for the police under any pretext to stop seminars, meetings, or even demonstrations because the citizens have right to demonstrate peacefully. The Public Order Act under which police rely upon to require organizers of a public rally to apply and get police permit within 24 hours to the event does not supersede the express provisions of the Constitution. |
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S.41 Right to Freedom of Movement: Every citizen of Nigeria is entitled to move freely throughout Nigeria and reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry into Nigeria or exit from Nigeria. This section only protects Nigerian citizens and not foreigners resident in Nigeria. However, a citizens movement can be restricted if he is reasonably believed to have committed a criminal offence or can be taken outside Nigeria for trial or to serve sentence if Nigeria and such other country has bilateral agreement to that effect. The court in the case of Shugaba v. Minister for Internal Affairs (1981 2 NCLR 459) decided that the seizure of the citizens international passport violated his right to freedom of movement. The constant and indiscriminate seizure of international passport of Human Rights activists or opposition parties members traveling abroad, is a violation of this right. Again, the arbitrary, unwarranted and outrageous increment of the prices of fuel and gasoline which has tremendously inflated transport fares and cost of travelling even in ones private cars have curtailed and restricted the exercise of this right and in fact constitute a violation of same. |
| S. 42 Freedom from Discrimination: No Nigerian citizen should be discriminated against on the grounds of sex, ethnicity, religion, political opinion or circumstances of birth. However, this does not apply to the appointment of officer for the armed forces or police. The concept of non-discrimination is based on the twin principles of equality and dignity. It implies the wholeness of the human being because discrimination defines a person in terms of particularity, be it of gender, race, colour, religion or other. Discrimination can reduce a human being to a function, a quality, an opinion, whereby a person is no longer perceived in his or her unique diversity and wholeness. No person is more of a human being that another and no person is less. Essentially, we are equal and equally entitled to our human rights. While adopting the Declaration on the Elimination of all forms of Racial Discrimination in 1963, the United Nations General Assembly proclaimed as follows: Discrimination between human beings on the ground of race, colour or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the charter of the United Nations, as a violation of the human rights and fundamental freedoms proclaimed in the UDHR, as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples. It should be recalled that Article of UDHR stated that All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood. Article 2 of UDHR states that everyone is entitled to rights or freedom contained in the Declaration without any discrimination whatsoever. Discrimination of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origins, property, birth or other status constitute a denial of the fundamental and universally accepted rights of all human beings being discriminated against and those affected can sue their oppressors in Court and get remedies/compensation. The world conference against racism held between 31st August to 8th September, 2001 in South Africa declared inter alia that all human beings are born free, equal in dignity and rights and have the potential to contribute constructively to the development and well-being of their societies. Any doctrine of racial superiority is scientifically false, morally condemnable, socially unjust and dangerous. It is noteworthy that discrimination and related intolerance leads to inequitable distribution of wealth, marginalization and social exclusion. It is arguable whether quota system offends the principle of non-discrimination especially when it is aimed at assisting classes of persons that are disadvantaged. The Constitution has also abolished the notion of illegitimate children as the constitution forbids discrimination based on circumstances of birth. Again to call a person an outcast or insinuate such constitute a major discrimination. The osu concept existing in the minds of the people (the Igbos) has no place in modern society since all people are born free and not slaves. The discrimination against women will be discussed in detail under Women Rights. |
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S.44 Compulsory Acquisition of Property: No moveable property or landed property can be taken by force except prompt compensation is paid to the owner. Such compensation shall be determined by Court. Any extra-legal acquisition of property constitute a trespass and gives rise to a claim for damages. Under the Land Use Act, 1978, all the land in the state is vested on the Governor of the State on trust. But before the Governor can acquire a land belonging to a person who has Certificate of Occupancy or Customary right of occupancy or any other interest on land, it must be for overriding public interest i.e. a very good reason and must pay adequate and prompt compensation to such persons. The Governor holding the land on trust means that the land should be administered for the use and common benefit of all the people. There are however exceptions such as forfeiture of a property for a person convicted of an offence, imposition of taxes, etc. In the case of movable properties, Government has no right to tamper with a person's property except in accordance with the due process of law. In the case of Baba Omojola v. Director of SSS and Anor (M/461/91). The State security Services used fake search warrant to invade Baba Omojola's office in the night and broke thereinto, confiscating the valuable properties of the applicant. Lagos High Court held that the SSS operation against the applicant was illegal and awarded the sum of N7,000,000 out of N12,000,000 claimed by the applicant as the cost of the property confiscated. Incidentally, this matter was handled by Chris I.C. Nwadigo, Esq. President, People's Rights Organization, as an Attorney to the Applicant. The Federal Government has exclusive property rights to minerals, mineral oils and natural gas in, under, or upon Nigerian territory, territorial waters and the country exclusive economic zone. |
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S.45 Restriction on Fundamental Rights: |
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