SYNOPSIS: ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS UNDER THE NIGERIAN CONSTITUTION

By: Zainab O. Lawal

INTRODUCTION

‘’Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of an y kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status’’.

As a citizen, it is important to understand your fundamental rights as enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, in Hassan v. E.F.C.C (2014) 1 NWLR {Pt. 1389} page 607 at 610 Ratio1, the Court of Appeal define Fundamental Rights as;

‘’a right which stand above the ordinary laws of the land and which are in fact antecedent to the political society itself and it is a primary condition to civilized existence.’’

These Fundamental Human Rights pertain to life; dignity of human person; personal liberty; fair hearing; private and family life; freedom of thought; conscience and religion; freedom of expression and of the press; peaceful assembly and freedom of association; freedom of movement; freedom from discrimination; and freedom to acquire and own immovable property anywhere in  Nigeria.

• Right to life: Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria provides that, “every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”. However, section 33(2) provides the exception to the provision, a person shall not be have been deprived his right, if he dies by circumstances permitted by law. .

• Right to dignity of human person: By virtue of Section 34(1) of the CFRN, every individual is entitled to respect for the dignity of his person. However, a person shall not be subjected to slavery, torture or to degrading treatment.

• Right to personal liberty: By virtue of section 35(1) of the 1999 constitution, “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.”  Lord Denning observe that the right to personal liberty means: “the freedom of every law abiding citizen to think what he will, to say what he will on his lawful occasions, without let or hindrance from any other person.”

Furthermore, section 35(6) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.

• Right to fair hearing: Section 36(1) of the CFRN state that, “In determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”. Whenever reference is made to, or demand is urged for, the enforcement of fair hearing, it translates to the principle of natural justice, “Nemo judex in causa sua (no person shall be a judge in his own cause)”, and “Audi alteram partem (Hear the both side of the party)”.

• Right to private and family life: As stipulated in section 37 of the CFRN, “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”.

• Right to freedom of thought, conscience and religion: Section 38(1) of the CFRN state the “Every individual of a country is 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”. However the exception for this right is provided in section 38(4) of the CFRN restricts any person to form or take part in the activity or be a member of secret society.

• Right to freedom of expression at the press: It is pertinent to note as provide in section 39(1) of the CFRN, “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”.

• Right to peaceful assembly and association: By virtue of section 40 of the CFRN, every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests provided that he/she shall not derogate from the powers conferred by the constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition.

• Right to freedom of movement: As it is stipulated in section 41(1) of the CFRN, every citizen of Nigeria 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 thereto or exit there from. Notwithstanding section 41(2) (a) of the CFRN one who has committed or is suspected to have committed a criminal offence is restricted/prevented from leaving is country.

• Right to freedom from discrimination: Section 42(2) of the CFRN stipulate that, “no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”. Nothing that by section 42(3), the law imposes restrictions with respect to the appointment of any person to any forces of the Federation or a member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria.

• Right to acquire and own immovable property anywhere in Nigeria: Subject to the provision of Section 43 of the CFRN, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

VIOLATION OF FUNDAMENTAL RIGHTS IN NIGERIA

In Nigeria, human right violations are recorded daily and virtually in all human endeavors. Unlawful violation can be of Civil, Political and Moral Rights which can be  through intimidation, undemocratic imposition of individual for political offices, the violation of civil, political and moral rights may include;

• Abuse of Right to Life: This human right violation is mostly found in torture and extra-judicial killings by government security operatives. This victim rights are been violated and sometimes they don’t get justice.

• Abuse of Right to Freedom of Movement: This worrisome physical human right abuse is even preponderant all over Nigeria today. Infringement of a person’s freedom of movement is a way of violating his/her fundamental human rights. An individual has the right to move freely at his will as stipulated in Section 42 of the CFRN.

• Abuse of Right to Freedom of Assembly: The Nigerian government is known to oppose anti – government protest and demonstration. For instance, on 3rd January 2009, police in Okeagbe, Ondo State allegedly killed and wounded some youths who demonstrated against local police extortion. It is regrettable to note that the Nigerian government has continually failed to address this kind of human right abuses and punish the offenders.

• Abuse of Right to dignity of human person: Article 1 of the universal declaration of human rights provide that “all human beings are born equal in dignity and rights”. Section 34 of the 1999 constitution also prohibits the degrading treatment or inhuman treatment of another irrespective of their tribe, sex, colour, religion or nationality. However, the right to dignity of the human person is violated in a number of ways. Some of the violations occur in the social, cultural, religious, economic and legal spheres. In Nigeria today, violation of dignity are mostly suffered by individual who are subject to torture, unlawful arrest, rape amidst others.

• Abuse of Right to Personal Liberty: This right is one of the most central human rights as it is connected to the rudiments of an individual’s physical freedom. This rights give the freedom to live as you choose without too many restrictions or constraints from the government or its agencies. Anyone who is been unlawfully arrested and detain by the government or any of its agencies rights has been violated. Section 35(2) of the 1999 constitution states that “any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.” This right continues even beyond the period of arrest as the accused can choose to remain silent throughout the period of the trial. Inherent in this right to remain silent is the right to brief a counsel of the accused person’s choice. The police however resort to torture to obtain information and extract confessional statements from accused persons in violation of their right to remain silent.

• Abuse of Right to Fair hearing: The right to fair hearing is guarantee under the Section 36 of the 1999 constitution. The right of fair hearing was denied in the case of Chukwu v. State (2007) 13 NWLR {Pt. 1052} page 430 at 439 ratio 9, where the Court of Appeal state thus;

“Denial of fair hearing tantamounts to a denial of justice and denial of justice is bad and outrageous because the denial of justice invariably inflicts grief, suffering, pain and untold  hardship on those who place their hope and aspiration on an impartial administration of justice”.  

The fundamental nature of right to fair hearing and its inextricability from the personality of every human being must be respected in all civil societies.

• Abuse of Right to freedom from Discrimination: Discrimination have many different causes and may affect people of different race, ethnic, national and people belonging to different castes. A person with disability is prone to face discrimination in the society today. People have the right to be treated equally, regardless of their sexual orientation, age or other status, yet they suffer cruelty from those in position or privilege or power.

• Abuse of Right to Private & Family Life: The unlawful searches of homes, offices, phones without a warrant and seizures of a suspect’s property by the police in order to obtain evidence is a violation to their private life. This right is connected to dignity as it derives from the right to be left alone without interference.

APPLICATION TO THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

Human rights that are enforceable in law are those which are recognized by law as fundamental rights, as distinguished from mere aspirations or individuals’ ideas of rights. These fundamental rights are now embodied in chapter IV of the Nigerian Constitution of 1999 from section 33 to 46. In Nigeria, the process of enforcement may be classified as conventional and unconventional, or orthodox and unorthodox means. ‘’Orthodox’’ in this regard, refers to the procedures provided by law, which are regularly adopted in seeking relief against an alleged infringement of right. These include the invocation of judicial powers and the recourse to police enforcement.

In an application for the enforcement of fundamental rights, the applicant may include the following;

1. Anyone acting in his own interest;
2. Anyone acting on behalf of another person;
3. Anyone acting as a member of, or in the interest of a group or class of persons;
4. Anyone acting in the public interest; and
5. Association acting in the interest of his members or other individuals or groups.

Notwithstanding the above, the law is remarkably settled that action for the enforcement of fundamental rights, cannot be jointly maintained. They are very personal in nature. In Nwachukwu v. Nwachukwu (2018) 17 NWLR [Pt. 1648] page 357 at Ratio 1, the Supreme Court of Nigeria stated thus;

‘’before fundamental human rights can be enforced, it must be the main/substantive claim before the court and not on ancillary claim.’’

ENFORCEMENT OF FUNDAMENTAL RIGHTS BY CORPORATE ENTITIES.

Corporate Entities have the right to sue and be sued in their corporate name. This right to sue does not exclude Fundamental rights action. A company in Nigeria is a proper party in an action for Enforcement of Fundamental rights. Just like natural persons, a company may commence an action for enforcement of fundamental right by using any originating process which is accepted by that court. The application shall, subject to the Rules, lie without leave of the court. Such originating process shall be supported by a statement setting out the name and description of the applicant and the relief sought and the grounds upon which the relief is sought. An affidavit setting out the facts upon which the application is made and a written address.

CHALLENGES TO ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS IN NIGERIA.

One of the greatest challenges in the enforcement of Fundamental Human Rights, is that the citizens are not enlightened as regards their Fundamental Human Rights. However, the ignorance of these could lead to their Fundamental Human Rights infringed upon without their knowledge. It is of great important that citizen are well informed on their right and how this rights can be protected.

One of the challenges individuals seeking redress for their rights been infringed upon is that the judicial system is often slow and stringent with their procedures and also grant series of adjournment. The Court is the last hope of the common man, however an individual who hopes to seek timely redress on the infringement of his rights might not get justice due to the delay and his rights might be further infringed upon. 

Corruption in the judicial system can be seen to be one of the challenges in the enforcement of Fundamental Human Rights, as it has hindered timely judgment and cases which are meant to be fully adjudicated upon are not heard and hereby causing victim’s hardship and their rights being infringed upon. Bribery is seen to be very prevalent in the judicial system today.

The issue of principal claim or ancillary relief by litigant is another challenge in the enforcement of fundamental human rights. The courts have in some decided cases on human rights increased restriction on the scope of the applications for the enforcement of Human Rights cases. Indeed, applications alleging serious human rights violation are routinely struck out or dismissed on the ground that they were mere ancillary reliefs. In many cases of infringement of fundamental rights, people resort to self-help and more often than not, the perpetuators of fundamental right abuses go unpunished. The fact that there appears to be an increase in crime rate in Nigeria is itself another challenge to the enforcement of Fundamental Rights. The rights of freedom of movement, right to own property, right to personal liberty are all being violated. One is not sure who will be the next to be kidnapped either by ritualist or kidnappers for ransom.

CONCLUSION

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides in its preamble that the Constitution is for the purpose of, “promoting the good government and the welfare of all persons in our country on the principles of Freedom, Equality and Justice.” How do we promote the welfare of all persons including the poor in Nigeria on the principles of ‘Freedom, Equality and Justice’ when the poor cannot access the court because of the high cost of litigation coupled with delays in determination of cases occasioned by our laws.

Human rights are inalienable rights that accrue to every citizen of a country and one that deserves the maximum protection possible and unhindered protection from infringement. This is so because human beings are said to be naturally brutish and selfish and yet cannot exhibit these conducts in democratic society.       

Above all, the citizens should not only help the government to protect their rights but they should also live responsibly to protect the rights of others at all levels of human relationship ranging from the family to the global arena. Hence, citizens should be more patriotic, have respect for the law, assist the law enforcement agencies and co-operate with international organizations on human rights issues.

The Nigerian government should take more proactive campaign against corruption and strengthen the country’s anti – corruption institutions. This is because corruption serves to promote criminal and extremist activity by creating barriers to legitimate socio – political and economic endeavours. By attacking corruption, Nigeria will send a clear signal that the country is indeed committed to good governance, to the security of its citizens and to its rightful place as a significant actor on the global stage.