CONSTITUTIONAL LAW

INSIGHTS ON FUNDAMENTAL HUMAN RIGHTS

PREPARED BY

PRAISE EBUBECHUKWU

ADUAKA(PEA)

Founder, PEAconsult

#THEEXPOSEDBAR
 Fundamental human rights are seen as those rights of an individual, which belongs to him because

he is a human being. It can also be viewed as a right enjoyed by an individual by virtue of the fact

that he is a member of a particular society. Thus, in the light of this, the fundamental human rights

are entrenched in chapter IV of the 1999 Constitution. This fundamental human rights are;

• Right to life

• Right to human dignity

• Right to personal liberty

• Right to fair hearing

• Right to private & family life

• Right to freedom of thought, conscience and religion

• Right to freedom of expression and the press.

• Right to peaceful assembly and association

• Right to freedom of movement

• Right to freedom from discrimination

• Right to acquire and own immoveable property anywhere

• Right to payment of compensation for private property compulsorily acquired for public purpose.

#THEEXPOSEDBAR

.
1) RIGHT TO LIFE:

Every living human is entitled to the right to life and no one is deprived of this right intentionally. This right is
 available to one against the state and or other private individuals. However it is also important to note that this

right is not absolute, in other words it could be derogated upon in certain circumstances according to the

constitution. This right is guaranteed under section 33 of the 1999 Constitution of the Federal Republic of Nigeria.

Case name: Onuoha v. State

Brief summary of case: This is an appeal before the Supreme Court, where in a unanimous decision rejected the

contention that the death penalty prescribed under section 319(1) of the Lagos State Criminal Code is inconsistent

with the Federal Republic of Nigeria. Justice Iguh, in delivering the lead judgment explained that the death

penalty prescribed in section 319(1) of the Lagos State Criminal code cannot be said to be inconsistent with the

constitution. In other words, what he means is that the death sentence in Nigeria is not subjected to any form of

arbitrary, discriminatory or selective exercise on the part of any court or quarters. This simply means that the

death penalty in Nigeria is not seen as invalid or unconstitutional.

Key to remember: The death penalty case that is argued to be inconsistent with the constitution.

#THEEXPOSEDBAR

2) RIGHT TO DIGNITY OF HUMAN PERSON: This right is provided for in section 34 of the 1999

Constitution. This provides that no one shall be subjected to torture or to inhuman or degrading treatment.

Case Name: Mogaji v. Board of Custom and Excise.

Brief summary of case: In this case, the market women claimed and proved maltreatment by custom officials

who made use of guns, tear gas and horsewhips on them and was aided by police officers and soldiers raided
 their shops and seized goods suspected to be prohibited. The court held that the action of the custom officials

who were aided by police officers and soldiers violated the fundamental human right of the market pursuant to

section 34 of the 1999 constitution.

Key to remember: Market women maltreatment by custom officials.

Case name: Nemi v. AG Lagos State.

Brief summary of case: Here, the applicant contended before the court of appeal that he has been subjected to

torture or to inhuman or degrading treatment as a result of prolonged confinement on death row. The court

of appeal allowing the appeal had to rely on a similar case named; Pratt v. AG Jamaica, where it was held

that a condemned prisoner is entitled to enjoy and enforce his fundamental right of the dignity of human person

until such time he is executed as provided for in section 34 of the 1999 Constitution.

Key to remember: Inhuman treatment in prison as a condemned awaiting execution case.

#THEEXPOSEDBAR

3) RIGHT TO PERSONAL LIBERTY: This is provided for in section 35 of the 1999 constitution and

depictsthe freedom of every law abiding citizen to think what he will, to say what he will on his lawful occasions

without hindrance from any other person. It also concerns one not being subjected to imprisonment, arrest and

any otherphysical coercion in any manner that does not admit of legal justification.

Case Name: Olusola Oyegbemi v. AG Federation.

Brief summary of case: Here, it was held that it is the fundamental right of every citizen who is arrested or
 detained to remain silent or avoid answering any questions until after consultation with a legal practitioner or

any other person of his own choice. He can still choose to remain silent after such consultation and refuse to

answer any question put to him by the police or any other person authorized by law to investigate the offence for

which the accused was arrested or detained.

Key to remember: Right to remain silent upon questioning by an investigative officer.

However, in Gira v. State, there is what is called admission by conduct, this happens where a clear and direct

accusation is made against a person, in his presence and he is expected to deny and he doesn’t deny, refute or

protest against the making of the accusation, evidence of such could be given against him as evidence of

admission by conduct.

Subsection 4 of section 35 of the 1999 Constitution: This provides that where one is arrested or detained he

must be tried within a reasonable time of such arrest or detention or released on bail to ensure that he appears for

trial on a future date.

Case name: Obekpa v. Commissioner of police

Brief Summary of Facts: Here, the accused who applied for bail was denied in the Magistrate court on the

ground that the prosecution alleged that his release on bail will prejudice the investigation into the alleged offence

against him and other suspects at large. Idoko J. in granting the bail stated that the provisions of section 35 of

the 1999 Constitution aims to keep an accused out of inincarceration

#THEEXPOSEDBAR

until found guilty through the process of court trial. He said that it is viewed as a conditional privilege which he

is entitled to under the Constitution. It is also of much advantage to say that unless the right to bail or to

freedom before conviction is preserved, protected and allowed the presumption of innocence constitutionally

guaranteed to every individual accused of criminal offence would lose its meaning and force. Therefore it is the

duty of the court to uphold the spirit of this constitutional guarantee and to give it flesh and blood in practical

terms.

Key to remember: The importance of granting bail.

 Also, do note that in a situation where the offence is grievous he might be refused bail especially once trial has

commenced. This is seen in the case of; The Commissioner of Police v Amalu: Here the accused was charged

for having an unlawful carnal knowledge of a girl aged 10years. He was refused bail at the Magistrate Court

because his offence was very serious and that if released on bail he might fail to appear for trial. Upon appeal to

the High Court by his Counsel the high court held that the accused offense was grievous and that an accused on

trial is not a person qualified to assert the right of bail under section 35 of the 1999 constitution. The Judge added

that, ‘even if the trial become protracted, the effect on the liberty of the accused person is part of the hazards to

be faced by those who occupy themselves with crime’.

Key to remember: The carnal knowledge case of a 10 year old girl.

#THEEXPOSEDBAR
4) RIGHT TO FAIR HEARING: This right also serves as an inalienable right as provided in section 36(1) of

1999 Constitution which posits that in the determination of civil rights and obligations including any question

for determination by or against any government or authority, a person shall be entitled to fair hearing within a

reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its

independence or impartiality.

Case Name: Ogundoyin v. Adeyemi

Brief Summary of case: In this case, the applicant and his counsel was absent from court when the appeal came

up and this was as a result of not being aware of the exact day the appeal was to come up. The court of appeal

dismissed the appeal for want of prosecution and the applicant appealed to the Supreme Court, where the appeal

was allowed and Ayoola JSC observed thus; the material fact in this appeal is the fact that the appellants was

not heard before their appeal was dismissed. He stated that a party should be given an opportunity of being heard

before a decision is made against him, because it serves as a basic principle of justice as provided by the

Constitution.

Principle of Natural Justice:

a) Audi alteram partem: This denotes that a judge must hear both parties to the dispute and must hear both parties

to the dispute and must not hear one party in absence of the other.

Case name: Ridge v. Baldwin

Brief summary of case: where the plaintiff a chief constable was prosecuted on a charge of conspiracy, but was

acquitted. Despite his acquittal his employer still dismissed him, it was on record that the plaintiff was not given

fair hearing before his dismissal. The House of Lords granted a declaration that the dismissal was a nullity as the

audi alteram partem, has been neglected. Thus, the three features of natural justice are;

• The right to be heard by an unbiased tribunal

• The right to have notice of the charge of misconduct, and

#THEEXPOSEDBAR
 • The right to be heard in answer to those charges

Key to remember: Refusal by employer to grant employee right to fair hearing.

b) Nemo judex in causa sua principle: This depicts that there should be no evidence of bias or interest, thus no one

should be the accuser, the prosecutor and the judge at the same time. This is because it is a basic principle that

justice should not only be done but should manifestly and undoubtedly be seen to be done.

Case name: Akinwale v. Nigerian Army

Brief summary of case: The Supreme Court held that the procedure adopted by the commander, the convening

officer, by being the initiator of investigation into the wrong doings by the confirming authority of the sentence,

is contrary to equity and natural justice. Indeed it offends the maxim of Nemo Judex in Causa Sua.

Key to Remember: The Commander’s case.

Do note, that a vital need for observing fair hearing in any trial, as observed in the Supreme Court case of

Adigun v Attorney General of Oyo State. Here, the court held that the right to fair hearing being a

fundamental constitutional right guaranteed by the Constitution, the breach of it in a trial or investigation or

inquiry nullifies the trial.

Fair hearing in Criminal trials: As provided for in subsection (4) of Section 36, which provides that charged

with a criminal offence unless the charge is withdrawn is entitled to fair hearing in public within a reasonable

time by a court or tribunal. The following serves as factors to help determine what constitute a reasonable time:

• The length of the delay.

#THEEXPOSEDBAR

• The reasons given by the prosecution for the delay

• The responsibility of the accused for asserting his rights

• The prejudice to which the accused may be exposed.

Case name: Guri v. Hadejia Native Authority

Brief summary of case: In this case, the appellants were charged for highway robbery case, after being convicted

by the Native Court and this was confirmed by the High Court. It was held according to Maliki Law, that the

appellants were not given any opportunity of fair hearing as they committed High way robbery. This strict Maliki

Law was relaxed and gave the appellants the opportunity to be heard. Though, the Supreme Court reversed this

decision held that the relaxation was not of a nature that it could be said that the appellants were given an

opportunity to defend themselves. Do note, that one cannot plead that he was denied his right to fair hearing if

he was given an opportunity during the trial to defend himself.

Presumption of Innocence: This is provided in subsection 36(5) of the 1999 Constitution provides that everyone

charged with a criminal offence shall be presumed innocent until proved guilty. The burden always lies on the

prosecution to prove the guilt of the accused beyond all reasonable doubt. Generally there is no duty on the

accused to prove his innocence.

Case Name: R v. Nash

Brief summary of case: Here, N was charged with the murder of her child whose body was found in a well. She

had been near the well with the child for whom she could not find a home and told lies concerning the Childs

where about. She was convicted of the murder of the child.

Key to remember: The child missing case.

However, where the state makes a law imposing the burden of proof on the accused, that the law will be valid.

This was established in Ibeziako v. Commisioner of Police.

Rule against double – jeopardy: This is also known as autrefois convict and autrefois acquit. As provided for

in section 36(9) of the 1999 Constitution which provides the rule against double – jeopardy and thus prevents the

accused from being charged again for the same offence, but one who is accused can be retried where he asked

for a retrial and when this is done credit is given to any sentence already served. There exist some conditions that

must exist to invoke the protection of this subsection and they are;
 a. There must have been a prosecution or trial

b. The trial must be before a court of competent Jurisdiction

c. The accused must have been convicted or acquitted of the first offence. A dismissal of

complaint or the discharge of an accused is not an acquittal for this purpose.

d. The second trial must be in respect of the same offence as the first, or both offence must have

the same ingredients.

Case name: Edu v. Commissioner of Police

Brief summary of case: It was held in this case, that a person acquitted for stealing a postal package may be

subsequently charged with negligently losing it.

Key to remember: The stealing postal case.

Also, do note that subsection (10) extends to the rule against double jeopardy to where the accused has not been

acquitted or convicted but pardoned.

#THEEXPOSEDBAR

5) RIGHT TO PRIVATE AND FAMILY LIFE: This is provided in section 37 of the 1999 Constitution, which

states that the privacy of citizens, their homes correspondence, telephone conversations and telegraphic

communications is guaranteed and protected. Although this right can be derogated upon in the interest of defense

and public interest.

Case Name: Re –Yetter.

Brief Summary of case: Here, the court said the constitutional right of privacy includes the right of a competent,
 mature adult to refuse treatment that may prolong one’s life even though that refusal may look unwise and

ridiculous to others.

Key to remember: The freewill to reject treatment case.

Case Name: Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo

Brief Summary of case: Here, a Jehovah Witness who after delivery developed a severe ailment as a result of

which blood transfusion was recommended. The patient and the husband refused to give their consent to the

blood transfusion. This led to the death of the patient. The doctor was charged for professional negligence and

infamous conduct by the Medical and Dental Practitioners Disciplinary Tribunal and was found guilty and

suspended for six months. This decision was set aside at the Court of Appeal and the appellant moved ahead to

the Supreme Court. The Supreme held that a patient’s constitutional right to object to medical treatment or, to

blood transfusion on the grounds of religion is entrenched in the fundamental rights as protected by the 1979

Constitution as follows;

a. The right to privacy- Section 34

b. The right to freedom of thought, conscience and religion. Section 35. These rights are also protected

in Section 37 and 38 of the 1999 Constitution.

#THEEXPOSEDBAR

6) RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: This is provided for in section

38 of the 1999 Constitution, which states that everyone is entitled to freedom of thought, conscience and religion.

This includes the freedom to change his belief, religion and freedom to either alone or in his community with

others in public or private to propagate his religion or belief in worship, teaching and observance.

Case name: Agbai v. Okagbue

Brief case summary: In this case, the plaintiff instituted action against the defendants who refused to return his

sewing machine which was seized from his shop on the 22nd of April 1978. This action was as a result of

tthe defendant’s position that since the plaintiff was a native of Amankalu Alayi and was by custom to pay all
development levies imposed on members by the age grade. The plaintiff sewing machine was seized because he

failed to pay the development levy for the purpose of building a health center which the plaintiff contended that

he was not a member of the age grade association because his religion forbids him to join such association. After

several stages of appeal the Supreme Court unanimously held in favor of the plaintiff that the plaintiff is entitled

to hold to the tenet of his religion, thought and conscience which prohibits him from joining the age grade. Any

custom that holds otherwise is deemed contrary to the Constitution and therefore null and void to the extent.

Key to remember: The seized sewing machine case.

Similarly, in the case of Davis v. Beason, the United States Supreme Court held that freedom of religious belief

and to act in the exercise of such cannot override the interests of peace, order or morals of the society and to that

extent the freedom of religion in subject to the control of the state.

However, do note that under subsection 2 of this section it provides that the parents or guardian of a student in

any educational institution in Nigeria are entitled to determine the kind of religious instructions the child receives.

This means that the institution cannot compel the student to attend to religious instructions not approved by his

parents or guardian. Albeit, this doesn’t mean that the

parents of a student the right to encourage their child to disobey the school rules and regulation.

Subsection 3 provides that an institution wholly maintained by a community or religious denomination has the

right to insist on propagating in such institution only a particular religious instruction.

Subsection 4 also provides for the prohibition of a secret society.

#THEEXPOSEDBAR
7) RIGHT TO FREEDOM OF EXPRESSION AND THE PRESS: This is provided in section 39 of the 1999

Constitution. It is accorded this status because they are ultimate values of all democratic societies, which enables

individuals form or express intelligent opinions about the affairs of government.

Press Freedom: This is defined as a right of every person to own a printing press to publish what information or

idea he pleases, to decide the editorial policy of the publication and to enforce it upon his staff.

Section 39(1) of the 1999 Constitution provides that every person shall be entitled to freedom of expression

including freedom to hold opinions and to receive and impart ideas without interference.

Section 39(2) of this section still provides that an individual is also free to own, establish and operate any medium,

not being a television or wireless broadcasting station.

Case name: Lagos State Broadcasting Corporation v. Federal Ministry of Communication

Brief summary of case: Here, the license given to the Lagos State Government by the Federal Ministry of

Communications under the Wireless Telegraphs Act 1961 was revoked. What was queried here, was whether

the phrase “any medium for the dissemination of information, ideas and opinions”. Would depict the

establishment of private schools and higher institutions? The answer to this question was provided in the case of

Ukaegbu v. AG Imo State. It was held that the phrase should be given a broad interpretation and thus is bound

to include a school and ought not to be limited to the newspapers of mass media.

Subsection (3) of this section allows a law to derogate from the right of freedom of expression and the press if

such a law is reasonably justifiable in a democratic society. This was buttressed in the case of Archbishop

Okogie v. AG Lagos State. it was held that it is difficult to conceive of a reasonable restriction that would be

justifiable in a democratic society in refusing to allow private schools to operate in Lagos State. In this situation

such a restriction is an infringement in the freedom of expression of the proprietors of private schools in Lagos

State.

#THEEXPOSEDBAR
 Sedition and Freedom of Expression: As provided in section 51(1) (c) any person that prints, publishes, sells,

offers for sale, distributes or reproduces any seditious publication shall be guilty of an offence and liable on

conviction of a first offence to imprisonment for two years or a fine of four hundred naira or both (that’s

imprisonment and fine).

Case name: Chief Arthur Nwankwo v. State

Brief summary of case: In this case, the appellant was tried for the offence of publishing and distributing

seditious publications in the name of a book “HOW JIM NWOBODO RULES ANAMBRA STATE” contrary

to section 50, 51 and 52 of the Criminal Code Law. The appellant was convicted and sentenced to twelve months

imprisonment with hard labor and fifty naira fine. According to the trial judge, he said that the publication by the

appellant that the Government of Anambra State was engaged in importation or encouraged importation of arms

into the country was to invite the Federal Government to intervene in Anambra State. The appellant appealed

against the conviction, the sentence and the propriety of the trial. The appellant appealed on two grounds; the

trial judge erred in law in not upholding the defenses available to the appellant under section 50(2) (iii) of the

Criminal code law.

Secondly, the appellant contended that sections 50, 51 and 52 were inconsistent with the provisions of section

36 of the 1979 Constitution. The Court of Appeal allowing the appeal discharged and acquitted the appellant

thereby setting aside the convictions and sentences passed by the trial judge.

Key to remember: The Jim Nwobodo sedition case.

However, do note that the law of sedition does not punish one who makes publication that merely embarrass the

government or the Governor tendency to create disorder or disturbance.

#THEEXPOSEDBAR

8)RIG HT TO PEACEFUL ASSEMBLY AND ASSOCIATION: This is provided in section 40 of the

 1999Constitution. The scope of this freedom extends only to peaceful assembly thus, it does not give

somebody the right to incite riots or disturb public peace.

Case name: Feiner v. New York

Brief summary of case: In this case, the United States Supreme Court upheld the conviction of the unlawful

assembly of a “side walk” speaker who continued to talk after being ordered to stop by the two policemen present

because in view of the response of the audience, the police were fearful that a riot the police could not contain

might ensue.

Also, note that this section provides that every person is entitled to form or belong to any political party of his

choice, trade union or any other association. For the protection of his interest.

Key to remember: The unlawful side walk case.

#THEEXPOSEDBAR

8) RIGHT TO FREEDOM OF MOVEMENT: This is provided in section 41 of the Constitution, which gives
 every citizen in Nigeria the right to move freely throughout Nigeria and to reside in any part of the society. In

other words, no citizen of the country shall be expelled from Nigeria or refused entry into or exit from the country.

Do note, that under this section is also attached the right to own an international passport which enables one to

fully exercise his right to exit. Therefore, if at any point a citizen’s international passport is seized, this will

amount to a violation of his right to freedom of movement.

Case Name: Shugaba v. Minister of Internal affairs

Brief summary of case: Here, the plaintiff had been deported to Chad by the Federal Government on the ground

that he was not a Nigerian citizen. The high court held that he was a Nigerian citizen and the deportation

amounted to a violation of his freedom of movement. His passport was seized during the course of the trial, his

passport had been seized and on application for its release, the court held that the seizure of his passport would

affect his freedom of exit from the country and therefore constitutes a violation of the right to free movement.

Key to remember: The passport seizing case.

Do note, that this right to freedom of movement is available only to Nigerian citizens. The importance of this

right cannot be over emphasized, because the enjoyment of other rights is dependent on the availability of this

right. This right is available to citizens even during period of emergency. Although the law is not absolute and

will not invalidate any law that is reasonably justifiable in a democratic society.

#THEEXPOSEDBAR

9) RIGHT TO FREEDOM FROM DISCRIMINATION: This is provided for in section 42 of the 1999

Constitution, which states that no Nigerian citizen shall be discriminated against. This right is not enjoyed by

aliens. The prohibition on discrimination is on 6 specified grounds;

• Community
 • Ethnicity

• Place of origin

• Religion

• Sex

• Political opinion

Note that subsection 2 of this section prohibits discrimination based on the “circumstances of one’s birth”. The

subsection attempt to remove any disability attached to illegitimacy and has been argued to be repugnant to

morality and also contrary to Islamic law.

Case name: Uzoukwu v. Ezeonu

Brief summary of case: In this case, the court held that the phrase “circumstances of his birth” under section 42

of the 1999 Constitution is not limited only to issue of birth out of lawful wedlock, but covers the issue of descent

arising from slavery. In other words to be protected under section 42(2) of the 1999 Constitution, a plaintiff is

expected to prove circumstances of his birth and the existence of the disability or deprivation which he is made

to suffer. It is finally established that section 42(2) of the 1999 Constitution can only be invoked against the

actions of the state or its agencies and not against actions of private persons.

Key to remember: The circumstances of birth case.

However, it is important to state that for the mere fact that section 42 of the 1999 Constitution guarantees against

discrimination does not mean that the government cannot implement special programs and measures, with the

aim of assisting or improving the conditions of the people from the disadvantaged areas. Nigeria, as a country

with multi – ethnic sects in her bid to see that the minorities are involved or well represented in the development

of the country. It is always necessary to confer special privileges to the less privileged groups to ensure adequate

participation in order to achieve social harmony in the country which is the end point of these non- discriminatory

provisions.
#THEEXPOSEDBAR

10) RIGHT TO ACQUIRE PROPERTY: This is provided for in section 43 of the 1999 Constitution, the right

to acquire and own immoveable property, anywhere in Nigeria is an innovation to the 1999 Constitution.

Thispermits any Nigeria citizen to acquire and own immoveable property anywhere in Nigeria.

11) COMPULSORY ACQUISITION OF PROPERTY: Section 44 of the 1999 Constitution provides that
 immovable property or interest in immovable property could be compulsory acquired after the payment of

compensation. Although, the provision does not specifically stipulate that the property must be acquired for

public purpose, neither does it stipulate that the compensation to be paid must be adequate.

Critically, analyzing section 44 it reveals the following salient points;

• The section speaks only of moveable and immoveable property. Intangible and incorporeal rights was not

mentioned. Although this forms the real essence of property in the world of commerce and industry today. It also

means that the government can take away these kind of property without compensation.

• This section did not stipulate that the land must be acquired for public purpose, this is a departure from the

Constitution. A literal interpretation denotes the point that the land acquisition is dependent on the enabling law

that permits such, whether it is for public purpose or not. The purpose could be to enable the property transferred

to another private person.

• The 1963 Constitution stipulate that the compensation to be paid by government must be adequate. The 1999

Constitution enables the legislature to prescribe any compensation that it likes, irrespective of the fact if it

represents a fair market value or a just monetary equivalent of the property compulsorily acquired.

• The 1999 Constitution incorporates an existing law i.e. Mineral oils Act which vests in the Federal Government

the entire property in an control of all minerals, mineral oils and natural gas in, under or

upon any land in Nigeria,including its territorial waters and exclusive economic zone. It empowers the

National Assembly to prescribe bylaw how these assets are to be managed (section 44(3)).

Case name: Lagos State Development and Property Corporation v. Banire

Brief summary of case: In this case, the Lagos Executive Development compulsorily acquired the plaintiff’s

property and let it out to textile traders collecting rents from them. The trial court ruled in their favor (plaintiff)

that their property was not acquired for public purposes. The defendants appealed and the Court upon dismissing

the appeal held that where an acquiring authority compulsorily acquires a private property it is vital that the

particulars of the “public purpose” for which such property is acquired to be stated. It was also held by the court

that commercial letting of private property by acquiring authority is not public purpose.

Key to remember: The Lagos Executive development case on compulsory acquisition of property.
#THEEXPOSEDBAR