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19 Jan 2018

Fundamental Human Rights (II)




The fundamental rights of Nigerians are enshrined in the Nigerian Constitution and various international treaties to which Nigeria is a signatory. The Second World War was a good omen with regards to the restatement of human rights as the shocking and heinous crimes of the Nazi regime during the war, led to the Declaration of Universal Human Rights. Since 1948 when the Universal Declaration on Human Rights was passed at the United Nations, various governments all over  the world have incorporated its ideals in their Constitutions. The Nigerian nation is no exception. As Neil Macdermott noted.

“Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religions or other differences. These rights, common to all mankind, have a long history many of them finding their origin in religions teachings. But now in our life-time, they have been formulated more fully than ever before and agreed to by all people from all parts of the world.

 In Nigeria the rights recognized by the Constitution are:

        1.                  Right to Life - Section 30
        2.                  Right to dignity of human person – Section 31
        3.                  Right to personal liberty – Section 32
        4.                  Right to fair hearing – Section 33
        5.                  Right to private and family life – Section 34
        6.                  Right to freedom of thought, conscience and religion – Section 35
        7.                  Right to freedom of expression and the press – Section 36
        8.                  Right to peaceful assembly and association – Section 37
        9.                 Right to freedom of movement – Section 38
        10.              Right to freedom from discrimination – Section 39
        11.              Protection from compulsory acquisition of private property – Section 40(1).

The rights referred to above are not unlimited in nature as the Constitution provides that most of the rights shall not 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.

Whenever we have a military regime in Nigeria, one of their first acts in office is to legislate in a manner that derogates from the essence of the fundamental human rights. Examples are,the Federal Military Government (Supremacy and          Enforcement of Powers)     Decree, Constitution (Suspension and Modification) Decree and the Federal Military Government (Supremacy and Enforcement of Powers) Decree State Security (Detention of Person) Decree. The impression one gets is that every military rule is an emergency and its activities are outside the realm of  the  law.  But this is  not necessarily so. (The judiciary has emphasize) the view that:

“Once military regime comes in whether by their being handed over power by democratically elected government or through act of a coup de’etat and the effective governance is being exercised by such regime whether defacto or de jure effect must be given to the ouster. No military regime claims to respect laws inimical to its policy. Perhaps I shall make  the point clearer by asserting (that) even though courts are not happy with ouster clauses in decrees and edicts, it should be borne in mind that a military regime will be an anomaly if it decides to govern by the entrenched rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria of 1979; in fact the military came and suspended and modified those Constitutions. At the time material to the orders now in question Decree 10 of 1976 and Decree No. 37 of 1968 clearly ousted the jurisdiction of the court in respect of any act done in the forfeiture of assets. It made irrelevant all the protective provisions of other laws and the constitution and indeed this includes the Constitution itself. (Per Belgore JSC: AG (Federation) V. Sode.)

If this statement represents the approach of the courts to the military  then the sustenance of human rights is bereft of all hopes. What happens where the military orders that all judges of the supreme Court  be clamped into detention under Decree 2 of 1984? Would the courts dimply fold their arms and look helpless in the face of such tyranny and assault on the bench? The dictum quoted above gives the military the notion that they could trample on all rights and expect protection from the courts.

The positivist’s notion that laws are the command of the uncommanded commander to which the dictum being breeds tyranny and anarchy and could bring the judiciary to ridicule. However, one takes solace in the fact that the ingenuity of Nigerian judges has not been stifled by ouster clauses or such ominous provisions. There are a number of cases where the justices of the Supreme Court have faced great responsibility of ensuring compliance with the rule of law. For example, in Garba v Federal Civil Service Commission the, Court held the government is bound to comply with the provisions of a decree before it can rely on the ouster jurisdiction contained therein. The Supreme Court held that the  act of the Respondents in dismissing the Applicant from office during  the pendency of the action was contemptuous of the judiciary and could not stand. One of the sages of our time, Kayode Eso J.S.C. went on to say that:

“The military in coming to power is usually faced with the question as to whether to establish a rule of law or a rule of force. While the latter could be justifiably a rule of terror, once the path of law is chosen, the mighty arm of government, the  militia, which is an embodiment of legislature and executive, must in humility, bow to the rule of law thus permitted to exist. The rule of law knows no fear, it is never cowered down; it can only be silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence.


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