Does The Nigerian Constitution Expressly Provide For A ‘Right To Private And Family Life’? Re-Interrogating The Effect Of The Marginal Note In Section 37

By Olumide Babalola

It has been repeatedly argued that the 1999 Constitution
guarantees the right to private and family life. Many lawyers have
made this submission within and outside the courtrooms and most
judgments on the right to privacy are replete with such conclusion
to the extent that, it has now been taken for granted even in the
academia. For example, till date, the most widely cited scholarly
article on right to privacy in Nigeria was written by the very
respected Prof. Enyinna S. Nwauche (Chair of Coordinating Committee
of the African Network of Constitutional Lawyers (ANCL), wherein
the learned don asserted:

“Moreover, the inclusion of the right to private and family life
in the Bill of Rights can be said to represent a conviction that,
this a right worth protecting for Nigerians … the phrase ‘private
life’ a phrase that occurs in both article 8 of the European
Convention on Human Rights and section 37 of the Nigerian
Constitution. (See ES Nwauche, ‘Right to Privacy in Nigeria’ (2007)
1(1) CALS Review of Nigerian Law and Practice, 64 and 69).

For the avoidance of doubt, the phrase ‘right to private and
family life’ is used twice in the 1999 Constitution: first, in the
table of contents and then in the marginal note to section 37 which
itself provides that: “The privacy of citizens, their homes,
correspondence, telephone conversations and telegraphic
communications is hereby guaranteed and protected.”

It must be noted that, this provision is a replica of section 34
of the 1979 Constitution but a substantial departure from the
provisions in the 1960 and 63 Constitutions which mirrored article
8 of the European Convention on Human Right (ECHR) by including
‘private and family life’ in the body of their texts. Like the
ECHR, sections 22(1) and 23(1) of both Constitutions provide that:
“Every person shall be entitled to respect for his private and
family life, his home and his correspondences.”

It however remains unclear why the draftsmen decided to expunge
the phrase from the body of the 1999 Constitution only to merely
retain same in the table of contents and marginal notes with far
reaching constitutional consequences as considered hereunder.

On the legal effect of marginal notes in
interpretation of statutes
As far back as 1982, the Supreme Court had admonished in the case
of Uwaifo v Attorney General of Bendel State (1982) LPELR-3445(SC)
that, marginal notes (explanatory or side notes) are to be ignored
as mere aids in construing provisions of statutes and they do not
control the language of such statutes. The same court was emphatic
in Akintokun v LPDC (2014) LPELR-22941(SC) that, they do not form
part of statutes and are only for convenience or reference. See
also the Yabugbe v C.O.P. (1992) LPELR 3505(SC) and Oloyo v Alegbe
(1982) SCNLR 35 at 57 where Eso, JSC (Of blessed memory) noted
that, marginal notes do not offer legitimate aid to construction of
statutes.

On the strength of the foregoing apex court decisions, it is my
respectful opinion that, since the ‘right to private and family
life’ is merely a marginal note in the 1999 Constitution, then it
is safe to say that, it does not form part of the rights guaranteed
under chapter 4 and specifically section 37 of the same
constitution. Hence, Nigerian citizens are not expressly offered
protection for right to private and family life since the body of
the extant 1999 Constitution does not recognise same.

Does section 37 cover private and family
life?
In the event that, privacy advocates or professionals, one of whom
I am, argue that, the provision of section 37 as enacted envisages
right to private and family life, it becomes imperative to briefly
consider the connotation of that concept. It must however be
preliminarily noted that the ‘private and family life’ is a
borrowed concept from Europe. It is unknown to English Bills of
Rights 1689, Common law, Equity or statutes of general application.
Article 8 of the ECHR provides that: “Everyone has the right to
respect for his private and family life …”

The European Court of Human Right (ECtHR) while defining or
describing private and family life admitted that, it is a broad
concept and incapable of precise definition as it may combine
‘multiple aspects of the person’s physical and social identity’
(See S. and Marper v. the United Kingdom, Niemietz v. Germany, 29;
Pretty v. the United Kingdom, 61; Peck v. the United Kingdom,
57)

It has been argued that, right to private and family life is
broader and wider than privacy, which most times, relates to an
individual’s personal autonomy and control of use of his personal
information as opposed to the former that is not limited to an
individual’s ‘inner circle’ but includes right that presupposes the
existence of a family relationship and protects same. This right is
not expressed on the face of section 37 except it is read or
implied into it. I am however not unmindful of the Court of
Appeal’s decision in Nwali v EBSIEC (2014) LPELR-23682(CA) where
‘privacy of citizens’ was happily given an elastic meaning to cover
a citizen’s relationships, but it is my modest opinion that such a
progressive intervention still did not expressly import ‘family
life’ into the provision considering the meaning of the phrase
since not all relationships are necessarily familial.

The ECtHR addressed ‘family life’ in Paradiso and Campanelli v
Italy (no. 25358/12 delivered 24 January 2017) thus:

“The existence or non-existence of “family life” is essentially
a question of fact depending upon the existence of close personal
ties… The notion of “family” in Article 8 concerns marriage-based
relationships, and also other de facto “family ties” where the
parties are living together outside marriage or where other factors
demonstrated that the relationship had sufficient constancy …The
provisions of Article 8 do not guarantee either the right to found
a family or the right to adopt. The right to respect for “family
life” does not safeguard the mere desire to found a family; it
presupposes the existence of a family.” See also Marckx v. Belgium,
13 June 1979, 31, Series A no. 31; Kroon and Others v. the
Netherlands, 27 October 1994, 30, Series A no. 297-C; Johnston and
Others v. Ireland, 18 December 1986, 55, Series A no. 112; Keegan
v. Ireland, 26 May 1994, 44, Series A, no. 290; and X, Y and Z v.
the United Kingdom, 22 April 1997, 36, Reports 1997 II, E.B. v.
France [GC], no. 43546/02, § 41, 22 January 2008).

There is no word in section 37 that contemplates protection or
non-interference with familial relationships but in the event that,
the word ‘home’ therein is suggested as representing ‘family’, then
reference ought to be made to the various definitions of home as
‘physical structure which offers material shelter’ (See Lorna Fox,
‘The Meaning of a Home: A Chimerical Concept or Legal Concept’
(2002) 29(4) Journal of Law and Society, 580-610). Home has also
been defined as a physical space that imparts emotional and
spiritual yearnings of an individual, (See Masran Sarunowo,
‘Shouting in Silence: Expression of Self in Private Homes’ (2012)
44 Procedia Social and Behavioural Sciences, 1). Consequently, it
is my humble opinion that, a home is not synonymous with family,
not even in the context of right to privacy.

Conclusion
Finally, notwithstanding its judicial reference in our caselaw, it
should be noted that, ‘right to private and family life’ is not
expressly guaranteed by the 1999 Constitution, rather, what we have
in the body of our grundnorm is the right to privacy which falls
short of the expansive protection offered by the former.
Nevertheless, it is hoped that this article will generate further
academic and judicial reaction on this very important issue of our
national life to provide clarity and direction before a desirable
legislative intervention.

By Olumide Babalola

It has been repeatedly argued that the 1999 Constitution
guarantees the right to private and family life. Many lawyers have
made this submission within and outside the courtrooms and most
judgments on the right to privacy are replete with such conclusion
to the extent that, it has now been taken for granted even in the
academia. For example, till date, the most widely cited scholarly
article on right to privacy in Nigeria was written by the very
respected Prof. Enyinna S. Nwauche (Chair of Coordinating Committee
of the African Network of Constitutional Lawyers (ANCL), wherein
the learned don asserted:

“Moreover, the inclusion of the right to private and family life
in the Bill of Rights can be said to represent a conviction that,
this a right worth protecting for Nigerians … the phrase ‘private
life’ a phrase that occurs in both article 8 of the European
Convention on Human Rights and section 37 of the Nigerian
Constitution. (See ES Nwauche, ‘Right to Privacy in Nigeria’ (2007)
1(1) CALS Review of Nigerian Law and Practice, 64 and 69).

For the avoidance of doubt, the phrase ‘right to private and
family life’ is used twice in the 1999 Constitution: first, in the
table of contents and then in the marginal note to section 37 which
itself provides that: “The privacy of citizens, their homes,
correspondence, telephone conversations and telegraphic
communications is hereby guaranteed and protected.”

It must be noted that, this provision is a replica of section 34
of the 1979 Constitution but a substantial departure from the
provisions in the 1960 and 63 Constitutions which mirrored article
8 of the European Convention on Human Right (ECHR) by including
‘private and family life’ in the body of their texts. Like the
ECHR, sections 22(1) and 23(1) of both Constitutions provide that:
“Every person shall be entitled to respect for his private and
family life, his home and his correspondences.”

It however remains unclear why the draftsmen decided to expunge
the phrase from the body of the 1999 Constitution only to merely
retain same in the table of contents and marginal notes with far
reaching constitutional consequences as considered hereunder.

On the legal effect of marginal notes in
interpretation of statutes
As far back as 1982, the Supreme Court had admonished in the case
of Uwaifo v Attorney General of Bendel State (1982) LPELR-3445(SC)
that, marginal notes (explanatory or side notes) are to be ignored
as mere aids in construing provisions of statutes and they do not
control the language of such statutes. The same court was emphatic
in Akintokun v LPDC (2014) LPELR-22941(SC) that, they do not form
part of statutes and are only for convenience or reference. See
also the Yabugbe v C.O.P. (1992) LPELR 3505(SC) and Oloyo v Alegbe
(1982) SCNLR 35 at 57 where Eso, JSC (Of blessed memory) noted
that, marginal notes do not offer legitimate aid to construction of
statutes.

On the strength of the foregoing apex court decisions, it is my
respectful opinion that, since the ‘right to private and family
life’ is merely a marginal note in the 1999 Constitution, then it
is safe to say that, it does not form part of the rights guaranteed
under chapter 4 and specifically section 37 of the same
constitution. Hence, Nigerian citizens are not expressly offered
protection for right to private and family life since the body of
the extant 1999 Constitution does not recognise same.

Does section 37 cover private and family
life?
In the event that, privacy advocates or professionals, one of whom
I am, argue that, the provision of section 37 as enacted envisages
right to private and family life, it becomes imperative to briefly
consider the connotation of that concept. It must however be
preliminarily noted that the ‘private and family life’ is a
borrowed concept from Europe. It is unknown to English Bills of
Rights 1689, Common law, Equity or statutes of general application.
Article 8 of the ECHR provides that: “Everyone has the right to
respect for his private and family life …”

The European Court of Human Right (ECtHR) while defining or
describing private and family life admitted that, it is a broad
concept and incapable of precise definition as it may combine
‘multiple aspects of the person’s physical and social identity’
(See S. and Marper v. the United Kingdom, Niemietz v. Germany, 29;
Pretty v. the United Kingdom, 61; Peck v. the United Kingdom,
57)

It has been argued that, right to private and family life is
broader and wider than privacy, which most times, relates to an
individual’s personal autonomy and control of use of his personal
information as opposed to the former that is not limited to an
individual’s ‘inner circle’ but includes right that presupposes the
existence of a family relationship and protects same. This right is
not expressed on the face of section 37 except it is read or
implied into it. I am however not unmindful of the Court of
Appeal’s decision in Nwali v EBSIEC (2014) LPELR-23682(CA) where
‘privacy of citizens’ was happily given an elastic meaning to cover
a citizen’s relationships, but it is my modest opinion that such a
progressive intervention still did not expressly import ‘family
life’ into the provision considering the meaning of the phrase
since not all relationships are necessarily familial.

The ECtHR addressed ‘family life’ in Paradiso and Campanelli v
Italy (no. 25358/12 delivered 24 January 2017) thus:

“The existence or non-existence of “family life” is essentially
a question of fact depending upon the existence of close personal
ties… The notion of “family” in Article 8 concerns marriage-based
relationships, and also other de facto “family ties” where the
parties are living together outside marriage or where other factors
demonstrated that the relationship had sufficient constancy …The
provisions of Article 8 do not guarantee either the right to found
a family or the right to adopt. The right to respect for “family
life” does not safeguard the mere desire to found a family; it
presupposes the existence of a family.” See also Marckx v. Belgium,
13 June 1979, 31, Series A no. 31; Kroon and Others v. the
Netherlands, 27 October 1994, 30, Series A no. 297-C; Johnston and
Others v. Ireland, 18 December 1986, 55, Series A no. 112; Keegan
v. Ireland, 26 May 1994, 44, Series A, no. 290; and X, Y and Z v.
the United Kingdom, 22 April 1997, 36, Reports 1997 II, E.B. v.
France [GC], no. 43546/02, § 41, 22 January 2008).

There is no word in section 37 that contemplates protection or
non-interference with familial relationships but in the event that,
the word ‘home’ therein is suggested as representing ‘family’, then
reference ought to be made to the various definitions of home as
‘physical structure which offers material shelter’ (See Lorna Fox,
‘The Meaning of a Home: A Chimerical Concept or Legal Concept’
(2002) 29(4) Journal of Law and Society, 580-610). Home has also
been defined as a physical space that imparts emotional and
spiritual yearnings of an individual, (See Masran Sarunowo,
‘Shouting in Silence: Expression of Self in Private Homes’ (2012)
44 Procedia Social and Behavioural Sciences, 1). Consequently, it
is my humble opinion that, a home is not synonymous with family,
not even in the context of right to privacy.

Conclusion
Finally, notwithstanding its judicial reference in our caselaw, it
should be noted that, ‘right to private and family life’ is not
expressly guaranteed by the 1999 Constitution, rather, what we have
in the body of our grundnorm is the right to privacy which falls
short of the expansive protection offered by the former.
Nevertheless, it is hoped that this article will generate further
academic and judicial reaction on this very important issue of our
national life to provide clarity and direction before a desirable
legislative intervention.