FUNDAMENTAL HUMAN RIGHTS

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Right to Life
• Right to Dignity of Human Person
• Right to Personal Liberty
• Explanation
• Right to Freedom from Discrimination
• Compulsory Acquisition of Property
• Restriction on and Derogation from Fundamental Rights

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

Fundamental human rights have been entrenched into the Constitution  of Nigeria, and it is an offshoot of the European Convention of Human Rights (the Convention for the protection of Human Rights and Fundamental Freedoms of 1950) with the addition of some provisions borrowed from Malaya and Pakistan.

What is interesting to note in the catalogue of the rights enumerated is that they are merely declaratory of either the provisions of the common or the statute law and they have been able to establish as follows:

Any citizen in Nigeria is entitled to his private and family life. He is entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief. He is entitled to the enjoyment of his property rights subject to the law of compulsory acquisition of his property (for public purposes) which must be paid for by adequate compensation.

A citizen in Nigeria is entitled to a peaceful assembly and association 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 interest. Above all, he is entitled to freedom of  expression,  including freedom to hold opinions and to receive and impart ideas and information without interference but subject to the laws of defamation, and security of the state. Finally, he has a right to vote and to be voted for if he is otherwise qualified by electoral regulations and law. 

In England, Sir Ivory Jennings in his book titled, Cabinet Government  at page 4 and quoted by Messrs Wade and Philip expatiated on the importance of these rights, as follows:

“Without free elections, the people cannot make a choice of policies, without freedom of speech, the appeal to reason which is the basis of democracy cannot be met, without freedom of  association, electors and elected representatives cannot bind themselves into parties for the formulation of common policies and the attainment of common ends.”²

A citizen can take an action against his wrongful arrest and an application for a writ of habeas corpus can be made in favour of any person who is confined without legal justification in order to secure his release from confinement.

It is therefore salutary and helpful to write on few sections of the Constitution dealing with these rights, so as to enable the readers come into the proper grips of their provisions.

OBJECTIVES

By the end of this unit, you should be able to:

explain freedom of religion, the right to property, freedom against discrimination and right to life.

MAIN CONTENT

Right to Life

By section 30 of the 1979 like section 33 of the 1999 constitution, 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. Subsection (2) then goes on to state that 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:

• for the defence of any person from unlawful violence or for the defence of property;
• in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
• for the purpose of suppressing a riot, insurrection or mutiny 

Right to Dignity of Human Person

The constitution states as follows:

• Every individual is entitled to respect for the dignity of his person, and accordingly:
• no person shall be subjected to torture or to inhuman or degrading treatment;
• no person shall be held in slavery or servitude, and
• no person shall be required to perform forced or compulsory labour.
• For the purposes of subsection (1) (a) of this section, “forced or compulsory labour” does not include:
• any labour required in consequence of the sentence or order of a court;
• any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such or, in the case of persons who have conscientious objectives to service in the armed forces of the Federation, any labour required instead of such service;
• any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or
• any labour or service that forms part of normal communal or other civic obligations for the well-being of the community;
• such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly, or
• such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly

See sections 31 and 34 of the 1979 and 1999 Constitutions respectively.

Right to Personal Liberty

The same constitutions – section 32 (1979) and 35 (1999) provide as follows:

• 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 –
• in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
• by reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law;
• 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, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
• in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare;
• in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
• 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 proceedings relating thereto.

Provided that a person who is charged with an offence and who has  been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

• 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 person of his own choice.
• Any person who is arrested or detained shall be informed in writing within 24 hours (and in a language that he understands) of the facts and grounds for his arrest or
• Any person who is arrested or detained in accordance with subsection(1)(c) of this section shall be brought before a court of law within a reasonable time, 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 entitled to bail; or
• 3 months from the date of his arrest or detention in the case of a person who has been released or he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

 In subsection (4) of this section the expression “a reasonable time” means:

• in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of 40 kilometres, a period of one day; and
• in any other case, a period of 2 day or such longer period as in the circumstance may be considered by the court to be reasonable.
• Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.

 Nothing in this section shall be construed :

• in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion  of having committed a capital office; and
• as invalidating any law by reason only that it authorises the detention for a period not exceeding 3 months of a member of the armed forces of the Federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.

Explanation

Arrest means a restraint on a person’s personal liberty in order to make the person amenable to justice. An arrest to compel a person against his will in order to help in a police enquiry when there is no reasonable suspicion that he has committed a criminal offence is unlawful – see Queen v. Lemsatef (1977) 2 AER. 835.²

Note the manner of making arrest as contained in sections 3 – 6 of the Criminal Procedure Act which state as follows:

Arrest, how made

 In making an arrest the police officer or other person making the shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

No unnecessary restrain

 A person arrested shall not be handcuffed, otherwise bound or be subjected to unnecessary restraint except by order of the court, a magistrate or justice of the peace or unless there is reasonable apprehension of violence or of an attempt to escape or unless the restraint is considered necessary for the safety of the person arrested.

Notification of cause of arrest

 Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest.

Search of arrested persons

1. 6(1). Whenever a person is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person makes over the persons arrested may search such person, using such force as may be reasonably necessary for such purpose, and place in safe custody all articles other than necessary wearing apparel found upon him.

Provided that whenever the person arrested is admitted to bail and bail  is furnished, such person shall not, subject to the provisions of subsection (6), be searched unless there are reasonable grounds for believing that he has about his person, any –

• stolen articles, or
• instruments of violence or poisonous substance, or
• tools connected with the kind of offence which he is alleged to have committed, or
• other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.
• Whenever it is necessary to cause a woman to be searched, the search shall be made by another
• Notwithstanding the other provisions of this section, any police officer or other person making an arrest may in any case take from the person arrested any offensive weapons which he has about his person.
• Where any property has been taken under this section from a person charged before a court of competent jurisdiction with any offence, a report shall be made by the police to such court of the fact of such property having been taken from the person charged of the particulars of such property, and the court shall, if of opinion that the property or any portion thereof can be returned consistently with the interests of justice and with the safe custody of the person charged, direct such property or any portion thereof to be returned to the person or to such other person as he may direct.
• Where any property has been taken from a person under this section, and the person is not charged before any court but is released on the ground that there is no sufficient reason to believe that he has committed any offence, any property so taken from him shall be restored to him.
• When a person is in lawful custody upon a charge of committing in such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence it shall be lawful for a qualified medical practitioner, acting at the request of a police officer, or if no such practitioner is procurable, then for such police officer, and for any person acting in good faith in aid and under the direction of such practitioner or police officer, as the case may be, to make such an examination of the person so in custody as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

Right to Freedom from Discrimination

A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:

• be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions, or political opinions are not made subject; or
• be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinion
• No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth
• Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or to an officer in the service of a body corporate established directly by any law in force in Nigeria. See section 39 (1979) and 42 (1999)

Compulsory Acquisition of Property

The Constitution, in section 40 (1979) and 43 (1999) provides as follows:

No movable property or any interest in an 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 and for the purposes prescribed by a law that, among other things:

• requires the prompt payment of compensation there for; and
• gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria

 Nothing in subsection (1) of this section shall be construed as affecting any general law:

• for the imposition or enforcement of any tax, rate or duty;
• for the imposition of penalties or forfeitures for the breach of any law, whether under civil process or after conviction for an offence;
• relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts;
• relating to the 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;
• relating to the execution of judgements or orders of courts;
• providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;
• relating to enemy property;
• relating to trusts and trustees;
• relating to limitation of actions;
• relating to property vested in bodies corporate directly established by any law in force in Nigeria;
• relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;
• providing for the carrying out of work on land for the purposes of soil conservation; or
• subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey, or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.
• Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone in Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

Restriction on and Derogation from Fundamental Rights

Nothing in sections 34 – 38 (1979) or 37 – 41 (1999) this Constitution 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 freedom of other persons.
• An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 30 or 32 (1979) or 33 or 35 (1999) Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency;

Provided that nothing in this section shall authorise any derogation from the provisions of section 30 or 33 of 1979 and 1999 Constitutions respectively, except in respect of death resulting from acts of war or authorise any derogation from the provisions of the section 33(8) 1979 or 36(8) (1999) Constitution.

• In this section, a “period of emergency” means any period during which there is, in force a Proclamation of a sate of emergency declared by the President in exercise of the powers conferred on him under section 265 and 305 of 1979 and 1999 Constitutions respectively.

CONCLUSION

The Constitution of Nigeria forbids any religion and protects individual right to life, education, freedom of thought and convenience. See the case of Bosede Badejo v. Ministry of Education.

SUMMARY

In this unit, we have considered four fundamental human rights provisions as enshrined in chapter IV of the 1979 – 1999 Constitutions of Nigeria.  You should now be able to determine when these rights  have been breached and seek for enforcement or redress.

TUTOR-MARKED ASSIGNMENT

1. Right to property, how absolute is it?
2. Right to fair hearing, how absolute is it?

REFERENCES/FURTHER READINGS

Oyewo & Yakubu (1998). Constitutional Law in Nigeria.