The striking features of fundamental rights provision in the
Constitution is that they provide a just balance between the rights of the
subject on the one hand and that of the
government or state on the other (per Idigbe J.S.C, in the” All Nigeria Judges Conference
in 1982).
Thus to the great jurist, “human rights” is more of an
earthly concept. In Saude V Abdullahi
(1989) 4 NWLR (pt 116) 32 at 418 – 419, the court said:
“I regard them as not
just mere rights. They are fundamental. They belong to the citizen. These
rights have always existed even before orderliness prescribed rules for manner
they are to be sought”.
“Indeed, human rights
have to stand above the ordinary laws of the land. They are antecedent to the
political society itself. Human Rights are and must be a primary condition to a
civilized society. Thomas Paine one of the greatest thinkers of rights of man
vilified governments without constitutions for the reason that the Laws of such
governments would be irrational and tyrannical. He said of the British system
of government -
“one of the vitest that can be
set up”
He went on: - “Government
without a Constitution for the want of a constitution in England to restrain
and regulate the wild impulse of power, many of the laws are irrational and tyrannical
and the administration of them vague and problematical.
The concept of “remedies” is
clearly related to the concept of “right”, as well expressed in the Latin maxim
Ubi ius ubi remedium or “a remedy accrues
only where there is a right Remedy “is the means employed to enforce or redress
an injury.”
Constitutional Construction
Judicial
attitude to individual rights in the 1999 Constitution is dictated by the
principles which the courts do or should follow in the interpretation and
construction of the provisions of the Constitution. Sir Udo Udoma JSC, said in Nafiu Rabiu V The State (1981) 2 NCLR 293 at
326 that:
“the function of the
Constitution is to establish a framework and principle of government, broad and
general in the terms intended to
apply to the varying conditions which the development of our several
communities must involve. Ours being a plural dynamic society, and therefore,
more technical rules of interpretation of statutes are to some extent
inadmissible in a way so as to defeat the principle of government enshrined in
the Constitution……… this court should whenever possible and in response to the
demands of justice, team to the broader interpretation. It is my view that the
approach of this court to the construction of the Constitution should be and so
it has been one of liberalism, probably a variation on the theme of the general
maxim ut, res magis valeat quam pereat. I do not conceive it to be the duty of
this court so as to construe any of the provisions of the Constitution as to
defeat the obvious ends the Constitution was designed to serve where another
construction equally in accord and consistent with the words and sense of such
provision will serve to enforce and protect such ends”.
Nnamani, JSC followed suit in Bronik Motors Ltd V Wema Bank Ltd (1983) 6SC 158 that: “….a
constitutional instrument should not necessarily be construed in a manner and
according to rules which apply to Acts of Parliament. Although the manner of
interpretation of a Constitutional instrument should give effect to the
language used, recognition should also be given to the character and origins of
the instrument. These I believe should be the approach of the
courts in construing all the provisions of the Constitution which entrenched
individual rights.
Rights
Entrenched in the 1999 Constitution
The rights entrenched in the 1999 Constitution, just
like those entrenched in the 1979
constitution, can be grouped under two broad headings, namely, those which
appertain to every person within our borders, and those claimable as of right by
citizen. All these rights come under chapter IV of the constitution sections
32, 33(1) 34, 35, and 36,37,38,39,40,41,42. All the rights stated in those
eleven sections are assured to all citizen of this country.
Section 33)1) says that every person within our borders has
the right to his life, while section 34 assures every such individual respect
for the dignity of his person etc.
Samples
of Judicial Approach
The examination of
this heading should begin by recalling the dictum of Eso JSC in Ariori & Ors V Elemor&ors (1983)
ANLR I at 19 where he said:
“Having regard to the
nascence of our Constitution, the comparative educational backwardness, the
socio-economic and cultural background of the people of this country and the
reliance that is being placed and necessarily have to be placed, as a result of
this background on the courts, and finally the general atmosphere in the
country, I think the supreme court has a duty to safeguard the fundamental
rights in this country, which from its age and problems that are bound to
associate with it, is still having an experiment democracy”.
The following cases serve as a clear testing of attitude of
the Supreme Court to the entrenched provision of the Rights to life:
In Aliu Bello V
Attoney-General of Oyo State, the Oyo State Ministry of Justice sanctioned
the execution of the appellant convicted of armed robbery but whose appeal was
pending in the court of appeal. Aniagoli UJSC gave vent to his deep annoyance
at such flagrant breach of the Constitutional Provision when he said (at pg
860).
“This is the first case
in this country of which I am aware in which a legitimate Government of this
country – past or present, Colonial or indigenous- hastily and illegally
snuffed off the life of an appellant whose appeal had vested and was in being, with no order of court upon the appeal, and with a reckless
disregard for the life and liberty of the subject and the principle of the rule
of law. The brutal incident has bespattered the face of the Oyo State
Government with the paint-brush of shame”.
These are strong words, but they indicate the abhorrence
which the Supreme Court has against the illegal taking of life of any person
within our borders outside the provisions of the Constitution and outside the
procedural rules laid down.
In
the Governor of Lagos State V. Chief - Odumegwu
Ojukwu & Anor. (1997) INWLR (pt 482) 429. The Supreme Court
castigated the executive Lawlessness
displayed by the Military Administration and authority in ejecting the
Respondent forcefully and unlawfully from his residence, it was a disrespect
for the Rule of law which they (the
military ) claimed to be cornerstone of their administration. This made
Oputa, JSC to observe as follows:
The rule of Law presupposes:
1.
That
the state including Lagos State Government is subject to the Law.
2.
That
the judiciary is a necessary agency of the rule of law.
3.
That
the government including the Lagos State Government should respect the right of
individual citizens under the rule of law.
“I can safely say that
here in Nigeria even under military Government
the Law is no respecter of persons, principalities, government or powers
and that courts stand between the citizens and government alert to see that the state or government is
bound by the Law and respect the Law”.
Whilst
Eso JSC, who wrote the erudite lead judgment in Ojukwu’s case stated about the
rule of law in these terms. “The essence of rule of law is that it should never
operate under the rule of force or fear, to use force to effect an act and
while under the marshal of that force seek the court’s equity is an attempt to
infuse timidity into court and a sabotage of the cherished rule of law. It must
never be”.
Another
case that demonstrates the court’s high regard for entrenched provision of the
Constitution on the liberty of citizens is the case of Hon. Justice Nwachukwu. Nwachukwu was a High Court judge in Imo
State. He was appointed Chairman of a commission of inquiry to look into
certain contracts awarded by the government between 1979 and 1983. In the
course of the proceedings of the commission Hon. Justice Nwa- Nwachukwu received a letter to which he took objection.
Without making an investigation whatsoever he ordered the arrest of one
Dickson Ikonne. There had been a long history of mutual animosity
between the two men, which had nothing to do with the proceedings or the
subject of the commission. Ikonne applied to a High Court to quash the warrant
of arrest, which the court did.
Subsequently, Hon Justice
Nwa-Nwachukwu obtained leave to appeal against the order of the judge Ikonne
then appealed to the Supreme Court. Aniagolu JSC in Dickson Ikonne V Commissioner Of Police And Hon Nanna Nwa_Nwachukwu (1986)
NWLR 473 at 496 said:
“it is clear from the facts of this matter on appeal that
the judge, the Hon Justice Nnanna Nwa-Nwachukwu; had no valid legal reasons for
issuing the warrant of arrest complained of in his appeal. The issue of the
warrant of arrest was, in the circumstances of this matter on appeal, an abuse
of legal process, an abuse of judicial authority, it is particularly painful
that I should come to this conclusion concerning a judge of the High Court, but
the conclusion is inevitable having regards to the facts and circumstances of
this matter on appeal.
“The conduct of the judge in issuing the warrant of arrest
upon what was obviously a fictitious reason, had the undesirable effect of
derogating the judiciary in the eye of the public and eroding the confidence of
people in judicial process and the rule of law”.
There is plethora of decided cases on the attitude of the
court to individual rights or civil rights of individual entrenched in the 1999
constitution.
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