By Adeniyi Israel Adekunle
INTRODUCTION
All over the world, the concept of human rights has been deemed sacrosanct. Especially in democratically civilized countries in the world, human rights have been given serious legislative recognition and enforceability. Nigeria, as the giant of Africa, is not left behind in these global developments. Withal, the 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the Constitution), by virtue of its Chapter IV, has given life to the application of human rights in Nigeria. However, not only does Chapter IV of the Constitution provide for fundamental human rights, but also does it undermine same with certain limitations and derogations. In the face of the rising security challenges in our democracy, it has now become germane to consider the constitutional limitations of these fundamental rights.[1] The kernel of this paper examines the constitutional restrictions, derogations and limitations to the enforcement of the fundamental human rights in Nigeria.
FUNDAMENTAL HUMAN RIGHTS
Generally, Chapter IV of the Constitution has been regarded by constitutional law experts as one of the most important parts of the Constitution. This is because it contains some sacred provisions which guarantee the freedom, liberty and enjoyment of many basic privileges accruable to our status as humans. Eleven human rights are guaranteed by virtue of Chapter IV of the Constitution, particularly from sections 33-43. These rights are: right to life[2], right to dignity of human person[3], right to personal liberty[4], right to fair hearing[5], right to private and family life[6], right to freedom of thought, conscience and religion[7], right to freedom of expression and the press[8], right to peaceful assembly and association[9], right to freedom of movement[10], right to freedom from discrimination[11] and the right to acquire and own immovable property anywhere in Nigeria[12]. As beautiful and revivifying these rights are, some of these rights are however blighted with constitutional limitations and derogations, which affect their absolute safeguard. In other words, some of these rights are absolute, while some are limited by certain circumstances, as provided for in the constitution.
LIMITATIONS TO THE ENFORCEMENT OF THE FUNDAMENTAL HUMAN RIGHTS
Fortunately, and unfortunately, the fundamental human rights that are enshrined and constitutionally protected under Chapter IV of the Constitution are not absolute, as they are made subject to certain limitations and derogations. These limitations include:
- JUSTIFIABLE LAWS
Section 45(1) of the Constitution provides that: “Nothing in sections 37, 38, 39, 40 and 41 of the constitution shall invalidate any law that is reasonably justifiable in a democratic society- in the interest of defense, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons”. From this constitutional provision, it is apt that the legislature can make laws, limiting certain rights in as much as those laws are reasonably justifiable for the purpose of the protecting the interests, stated in the above section 45. This position has been espoused in the case of Dokubo Asari v. Federal Republic of Nigeria[13]. However, the foregoing provision does not imply that such law made by the legislature to limit those rights cannot be challenged in a court of law.[14] In other words, such law made by the legislature can be questioned by the court on the ground of its justifiability.[15]
- LOCUS STANDI
Locus Standi is a Latin phrase, which means “place of standing”. In law, locus standi is the right or capacity of a person to institute an action in the court if his right has been infringed upon. Locus standi is a limitation to the enforcement of the fundamental human rights. Section 46(1) of the Constitution provides that: “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”. By the literal implication of this section, it is only a person whose right has been breached can seek enforcement or redress. However, the problem now arises in a case whereby a person has been murdered (that is, he has been deprived of his right to life under section 33 of the Constitution). The question will now be: who will sue for the redress of the violation of the deceased’s right to life since section 46(1) of the Constitution has exempted every other person except the person whose right has been infringed to enforce same? Thus, in such case, locus standi ordinarily limits the enforcement of the fundamental human rights.
- PECULIAR CIRCUMSTANCES
This class of limitation has an avalanche of constitutional spines. For instance, section 33(1) of the Constitution, which provides for the right to life, has its peculiar limitations, as provided under section 33(2) of the same Constitution. That is, if a person dies by the act of another person during the following circumstances: defence against unlawful violence; defence of property; effecting a lawful arrest; prevention of escape from lawful custody; and suppressing a riot, insurrection or mutiny, such person will not be deemed to have been deprived of his right to life. This is because those circumstances are the limitations to the right to life, as provided for in section 33(2)(a)-(b) of the Constitution. Another instance is seen in section 35 of the Constitution, which provides for the right to personal liberty. Similarly, this right has been suffixed with exceptions. Thus, a person will not be said to have been deprived of his right to personal liberty in these circumstances: imprisonment in execution of court sentence; detainment upon failure to comply with court orders; lawful arrest upon reasonable suspicion; detainment in order to prevent commission of an offence; curtailment of the personal liberty of a child or young person for the purpose of his education; detention of person for the purpose of treatment of contagious disease; and prevention of a person from unlawfully entering into Nigeria.[16] These circumstances are lucid limitations to the right to personal liberty of person. Other peculiar circumstances can be seen in sections 34(2), 38(4), 39(3), 40, 41(2) and 44(2) of the Constitution.
CONCLUSION
Without a scintilla of ambiguity, the Constitution has lucidly slapped the sacred provisions of the Chapter IV – fundamental human rights – with certain limitations and derogations, which ostensibly affect the plain enforceability of these fundamental rights. This article has examined the enforceability status of the fundamental human rights, which have been enshrined in the 1999 Constitution. In the same vein, it can be deduced from the foregoing examination that indeed, some rights are absolute, while some are limited. For instance, by a community reading of the Chapter IV of the Constitution, one will discern that the absolute rights are: right to fair hearing, right to freedom from discrimination and the right to acquire and own immovable property anywhere in Nigeria. On the other hand, the limited rights are: right to life, right to dignity of human person, right to personal liberty, right to private and family life, right to freedom of thought, conscience and religion, right to freedom of expression and the press, right to peaceful assembly and association and the right to freedom of movement. In the same breadth, it is now imperative on the Nigerian legislature to review and amend some of these limitations, especially the one that justifies the violation of a person’s right to life during the process of effecting a lawful arrest or prevention of escape from lawful custody. This recommendation is owed to no other reason than the disquieting statistics of extra-judicial killings and human rights abuse by the Nigerian law enforcement agencies in the guise of the victim evading lawful arrest or escaping lawful custody. These constitutional limitations are assiduously milked by these law enforcement agencies to perpetuate in unlawful acts and abuse of power.
1 Professor Fabian Ajogwu, ‘Constitutional Provisions on Restriction and Derogation from Fundamental Rights (S.45 CFRN) and the Need for Balance’. A paper delivered at the Maiden Edition of the Annual Colloquium of the Law Office of Adegboyega Awomolo & Associates, held in honour of Chief A.S. Awomolow, SAN, FCIArb, FNIALS at the Abuja International Conference Centre, Abuja, on September 23, 2014.
2 Section 33 of the Constitution.
3 Section 34 of the Constitution.
4 Section 35 of the Constitution.
5 Section 36 of the Constitution.
6 Section 37 of the Constitution.
7 Section 38 of the Constitution.
8 Section 39 of the Constitution.
9 Section 40 of the Constitution.
10 Section 41 of the Constitution.
11 Section 42 of the Constitution.
12 Section 43 of the Constitution.
[13] [2007] NGSC 106. See also section 4(8) of the Constitution.
[14] See the case of Uwaifo v AG Bendel State (1982) 7 SC 124.
[15] See DPP v Chike Obi (1961) 1 ANLR 186.
[16] See section 35(1) (a)-(f) of the 1999 Constitution.
[Adeniyi Israel Adekunle is an undergraduate student of the Faculty of Law, University of Ilorin. He is also the Director of Litigation of the Equity Chambers, Faculty of Law, University of Ilorin. He can be reached via [email protected] for commentaries and feedbacks on the article.]
