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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