An Examination Of The Limitations To The Enforcement Of The Fundamental Human Rights Under The Nigerian Constitution

By Adeniyi Israel Adekunle

INTRODUCTION

All over the world, the concept of human rights has been deemed
sacrosanct. Especially in democratically civilized countries in the
world, human rights have been given serious legislative recognition
and enforceability. Nigeria, as the giant of Africa, is not left
behind in these global developments. Withal, the 1999 Constitution
of the Federal Republic of Nigeria (hereinafter referred to as the
Constitution), by virtue of its Chapter IV, has given life to the
application of human rights in Nigeria. However, not only does
Chapter IV of the Constitution provide for fundamental human
rights, but also does it undermine same with certain limitations
and derogations. In the face of the rising security challenges in
our democracy, it has now become germane to consider the
constitutional limitations of these fundamental rights.[1] The kernel of this paper examines the
constitutional restrictions, derogations and limitations to the
enforcement of the fundamental human rights in Nigeria.

FUNDAMENTAL HUMAN RIGHTS

Generally, Chapter IV of the Constitution has been regarded by
constitutional law experts as one of the most important parts of
the Constitution. This is because it contains some sacred
provisions which guarantee the freedom, liberty and enjoyment of
many basic privileges accruable to our status as humans. Eleven
human rights are guaranteed by virtue of Chapter IV of the
Constitution, particularly from sections 33-43. These rights are:
right to life[2], right to dignity of human
person[3], right to personal liberty[4], right to fair hearing[5],
right to private and family life[6], right to
freedom of thought, conscience and religion[7],
right to freedom of expression and the press[8],
right to peaceful assembly and association[9],
right to freedom of movement[10], right to
freedom from discrimination[11] and the right
to acquire and own immovable property anywhere in Nigeria[12]. As beautiful and revivifying these rights
are, some of these rights are however blighted with constitutional
limitations and derogations, which affect their absolute safeguard.
In other words, some of these rights are absolute, while some are
limited by certain circumstances, as provided for in the
constitution.

LIMITATIONS TO THE ENFORCEMENT OF THE FUNDAMENTAL HUMAN
RIGHTS

Fortunately, and unfortunately, the fundamental human rights
that are enshrined and constitutionally protected under Chapter IV
of the Constitution are not absolute, as they are made subject to
certain limitations and derogations. These limitations include:

• JUSTIFIABLE LAWS

Section 45(1) of the Constitution provides that:
“Nothing in sections 37, 38, 39, 40 and 41 of
the constitution shall invalidate any law that is reasonably
justifiable in a democratic society- in the interest of defense,
public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedoms of other
persons”. From this constitutional provision, it is apt that
the legislature can make laws, limiting certain rights in as much
as those laws are reasonably justifiable for the purpose of the
protecting the interests, stated in the above section 45. This
position has been espoused in the case of Dokubo Asari v.
Federal Republic of Nigeria[13].
 However, the foregoing provision does not imply that
such law made by the legislature to limit those rights cannot be
challenged in a court of law.[14] In other words,
such law made by the legislature can be questioned by the court on
the ground of its justifiability.[15]

• LOCUS STANDI

Locus Standi is a Latin phrase, which means “place of standing”.
In law, locus standi is the right or capacity of a person to
institute an action in the court if his right has been infringed
upon. Locus standi is a limitation to the enforcement of the
fundamental human rights. Section 46(1) of the Constitution
provides that: “Any person who alleges that any of the
provisions of this Chapter has been, is being or likely to be
contravened in any State in relation to him may apply to a High
Court in that State for redress”. By the literal implication
of this section, it is only a person whose right has been breached
can seek enforcement or redress. However, the problem now arises in
a case whereby a person has been murdered (that is, he has been
deprived of his right to life under section 33 of the
Constitution). The question will now be: who will sue for the
redress of the violation of the deceased’s right to life since
section 46(1) of the Constitution has exempted every other person
except the person whose right has been infringed to enforce same?
Thus, in such case, locus standi ordinarily limits the enforcement
of the fundamental human rights.

• PECULIAR CIRCUMSTANCES

This class of limitation has an avalanche of constitutional
spines. For instance, section 33(1) of the Constitution, which
provides for the right to life, has its peculiar limitations, as
provided under section 33(2) of the same Constitution. That is, if
a person dies by the act of another person during the following
circumstances: defence against unlawful violence; defence of
property; effecting a lawful arrest; prevention of escape from
lawful custody; and suppressing a riot, insurrection or mutiny,
such person will not be deemed to have been deprived of his right
to life. This is because those circumstances are the limitations to
the right to life, as provided for in section 33(2)(a)-(b) of the
Constitution. Another instance is seen in section 35 of the
Constitution, which provides for the right to personal liberty.
Similarly, this right has been suffixed with exceptions. Thus, a
person will not be said to have been deprived of his right to
personal liberty in these circumstances: imprisonment in execution
of court sentence; detainment upon failure to comply with court
orders; lawful arrest upon reasonable suspicion; detainment in
order to prevent commission of an offence; curtailment of the
personal liberty of a child or young person for the purpose of his
education; detention of person for the purpose of treatment of
contagious disease; and prevention of a person from unlawfully
entering into Nigeria.[16] These
circumstances are lucid limitations to the right to personal
liberty of person. Other peculiar circumstances can be seen in
sections 34(2), 38(4), 39(3), 40, 41(2) and 44(2) of the
Constitution.

CONCLUSION

Without a scintilla of ambiguity, the Constitution has lucidly
slapped the sacred provisions of the Chapter IV – fundamental human
rights – with certain limitations and derogations, which ostensibly
affect the plain enforceability of these fundamental rights. This
article has examined the enforceability status of the fundamental
human rights, which have been enshrined in the 1999 Constitution.
In the same vein, it can be deduced from the foregoing examination
that indeed, some rights are absolute, while some are limited. For
instance, by a community reading of the Chapter IV of the
Constitution, one will discern that the absolute rights are: right
to fair hearing, right to freedom from discrimination and the right
to acquire and own immovable property anywhere in Nigeria. On the
other hand, the limited rights are: right to life, right to dignity
of human person, right to personal liberty, right to private and
family life, right to freedom of thought, conscience and religion,
right to freedom of expression and the press, right to peaceful
assembly and association and the right to freedom of movement. In
the same breadth, it is now imperative on the Nigerian legislature
to review and amend some of these limitations, especially the one
that justifies the violation of a person’s right to life during the
process of effecting a lawful arrest or prevention of escape from
lawful custody. This recommendation is owed to no other reason than
the disquieting statistics of extra-judicial killings and human
rights abuse by the Nigerian law enforcement agencies in the guise
of the victim evading lawful arrest or escaping lawful custody.
These constitutional limitations are assiduously milked by these
law enforcement agencies to perpetuate in unlawful acts and abuse
of power.

1 Professor Fabian Ajogwu, ‘Constitutional Provisions on
Restriction and Derogation from Fundamental Rights (S.45 CFRN) and
the Need for Balance’. A paper delivered at the Maiden Edition of
the Annual Colloquium of the Law Office of Adegboyega Awomolo &
Associates, held in honour of Chief A.S. Awomolow, SAN, FCIArb,
FNIALS at the Abuja International Conference Centre, Abuja, on
September 23, 2014.

2 Section 33 of the Constitution.

3 Section 34 of the Constitution.

4 Section 35 of the Constitution.

5 Section 36 of the Constitution.

6 Section 37 of the Constitution.

7 Section 38 of the Constitution.

8 Section 39 of the Constitution.

9 Section 40 of the Constitution.

10 Section 41 of the Constitution.

11 Section 42 of the Constitution.

12 Section 43 of the Constitution.

[13] [2007] NGSC 106. See also section
4(8) of the Constitution.

[14] See the case of Uwaifo v AG Bendel
State (1982) 7 SC 124.

[15] See DPP v Chike Obi (1961) 1 ANLR
186.

[16] See section 35(1) (a)-(f) of the 1999
Constitution.

[Adeniyi Israel Adekunle is an
undergraduate student of the Faculty of Law, University of Ilorin.
He is also the Director of Litigation of the Equity Chambers,
Faculty of Law, University of Ilorin. He can be reached via
israeladeniyi178@gmail.com^[1]  for
commentaries and feedbacks on the article.]

By Adeniyi Israel Adekunle

INTRODUCTION

All over the world, the concept of human rights has been deemed
sacrosanct. Especially in democratically civilized countries in the
world, human rights have been given serious legislative recognition
and enforceability. Nigeria, as the giant of Africa, is not left
behind in these global developments. Withal, the 1999 Constitution
of the Federal Republic of Nigeria (hereinafter referred to as the
Constitution), by virtue of its Chapter IV, has given life to the
application of human rights in Nigeria. However, not only does
Chapter IV of the Constitution provide for fundamental human
rights, but also does it undermine same with certain limitations
and derogations. In the face of the rising security challenges in
our democracy, it has now become germane to consider the
constitutional limitations of these fundamental rights.[1] The kernel of this paper examines the
constitutional restrictions, derogations and limitations to the
enforcement of the fundamental human rights in Nigeria.

FUNDAMENTAL HUMAN RIGHTS

Generally, Chapter IV of the Constitution has been regarded by
constitutional law experts as one of the most important parts of
the Constitution. This is because it contains some sacred
provisions which guarantee the freedom, liberty and enjoyment of
many basic privileges accruable to our status as humans. Eleven
human rights are guaranteed by virtue of Chapter IV of the
Constitution, particularly from sections 33-43. These rights are:
right to life[2], right to dignity of human
person[3], right to personal liberty[4], right to fair hearing[5],
right to private and family life[6], right to
freedom of thought, conscience and religion[7],
right to freedom of expression and the press[8],
right to peaceful assembly and association[9],
right to freedom of movement[10], right to
freedom from discrimination[11] and the right
to acquire and own immovable property anywhere in Nigeria[12]. As beautiful and revivifying these rights are,
some of these rights are however blighted with constitutional
limitations and derogations, which affect their absolute safeguard.
In other words, some of these rights are absolute, while some are
limited by certain circumstances, as provided for in the
constitution.

LIMITATIONS TO THE ENFORCEMENT OF THE FUNDAMENTAL HUMAN
RIGHTS

Fortunately, and unfortunately, the fundamental human rights
that are enshrined and constitutionally protected under Chapter IV
of the Constitution are not absolute, as they are made subject to
certain limitations and derogations. These limitations include:

• JUSTIFIABLE LAWS

Section 45(1) of the Constitution provides that:
“Nothing in sections 37, 38, 39, 40 and 41 of
the constitution shall invalidate any law that is reasonably
justifiable in a democratic society- in the interest of defense,
public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedoms of other
persons”. From this constitutional provision, it is apt that
the legislature can make laws, limiting certain rights in as much
as those laws are reasonably justifiable for the purpose of the
protecting the interests, stated in the above section 45. This
position has been espoused in the case of Dokubo Asari v.
Federal Republic of Nigeria[13].
 However, the foregoing provision does not imply that
such law made by the legislature to limit those rights cannot be
challenged in a court of law.[14] In other words,
such law made by the legislature can be questioned by the court on
the ground of its justifiability.[15]

• LOCUS STANDI

Locus Standi is a Latin phrase, which means “place of standing”.
In law, locus standi is the right or capacity of a person to
institute an action in the court if his right has been infringed
upon. Locus standi is a limitation to the enforcement of the
fundamental human rights. Section 46(1) of the Constitution
provides that: “Any person who alleges that any of the
provisions of this Chapter has been, is being or likely to be
contravened in any State in relation to him may apply to a High
Court in that State for redress”. By the literal implication
of this section, it is only a person whose right has been breached
can seek enforcement or redress. However, the problem now arises in
a case whereby a person has been murdered (that is, he has been
deprived of his right to life under section 33 of the
Constitution). The question will now be: who will sue for the
redress of the violation of the deceased’s right to life since
section 46(1) of the Constitution has exempted every other person
except the person whose right has been infringed to enforce same?
Thus, in such case, locus standi ordinarily limits the enforcement
of the fundamental human rights.

• PECULIAR CIRCUMSTANCES

This class of limitation has an avalanche of constitutional
spines. For instance, section 33(1) of the Constitution, which
provides for the right to life, has its peculiar limitations, as
provided under section 33(2) of the same Constitution. That is, if
a person dies by the act of another person during the following
circumstances: defence against unlawful violence; defence of
property; effecting a lawful arrest; prevention of escape from
lawful custody; and suppressing a riot, insurrection or mutiny,
such person will not be deemed to have been deprived of his right
to life. This is because those circumstances are the limitations to
the right to life, as provided for in section 33(2)(a)-(b) of the
Constitution. Another instance is seen in section 35 of the
Constitution, which provides for the right to personal liberty.
Similarly, this right has been suffixed with exceptions. Thus, a
person will not be said to have been deprived of his right to
personal liberty in these circumstances: imprisonment in execution
of court sentence; detainment upon failure to comply with court
orders; lawful arrest upon reasonable suspicion; detainment in
order to prevent commission of an offence; curtailment of the
personal liberty of a child or young person for the purpose of his
education; detention of person for the purpose of treatment of
contagious disease; and prevention of a person from unlawfully
entering into Nigeria.[16] These
circumstances are lucid limitations to the right to personal
liberty of person. Other peculiar circumstances can be seen in
sections 34(2), 38(4), 39(3), 40, 41(2) and 44(2) of the
Constitution.

CONCLUSION

Without a scintilla of ambiguity, the Constitution has lucidly
slapped the sacred provisions of the Chapter IV – fundamental human
rights – with certain limitations and derogations, which ostensibly
affect the plain enforceability of these fundamental rights. This
article has examined the enforceability status of the fundamental
human rights, which have been enshrined in the 1999 Constitution.
In the same vein, it can be deduced from the foregoing examination
that indeed, some rights are absolute, while some are limited. For
instance, by a community reading of the Chapter IV of the
Constitution, one will discern that the absolute rights are: right
to fair hearing, right to freedom from discrimination and the right
to acquire and own immovable property anywhere in Nigeria. On the
other hand, the limited rights are: right to life, right to dignity
of human person, right to personal liberty, right to private and
family life, right to freedom of thought, conscience and religion,
right to freedom of expression and the press, right to peaceful
assembly and association and the right to freedom of movement. In
the same breadth, it is now imperative on the Nigerian legislature
to review and amend some of these limitations, especially the one
that justifies the violation of a person’s right to life during the
process of effecting a lawful arrest or prevention of escape from
lawful custody. This recommendation is owed to no other reason than
the disquieting statistics of extra-judicial killings and human
rights abuse by the Nigerian law enforcement agencies in the guise
of the victim evading lawful arrest or escaping lawful custody.
These constitutional limitations are assiduously milked by these
law enforcement agencies to perpetuate in unlawful acts and abuse
of power.

1 Professor Fabian Ajogwu, ‘Constitutional Provisions on
Restriction and Derogation from Fundamental Rights (S.45 CFRN) and
the Need for Balance’. A paper delivered at the Maiden Edition of
the Annual Colloquium of the Law Office of Adegboyega Awomolo &
Associates, held in honour of Chief A.S. Awomolow, SAN, FCIArb,
FNIALS at the Abuja International Conference Centre, Abuja, on
September 23, 2014.

2 Section 33 of the Constitution.

3 Section 34 of the Constitution.

4 Section 35 of the Constitution.

5 Section 36 of the Constitution.

6 Section 37 of the Constitution.

7 Section 38 of the Constitution.

8 Section 39 of the Constitution.

9 Section 40 of the Constitution.

10 Section 41 of the Constitution.

11 Section 42 of the Constitution.

12 Section 43 of the Constitution.

[13] [2007] NGSC 106. See also section 4(8) of
the Constitution.

[14] See the case of Uwaifo v AG Bendel State
(1982) 7 SC 124.

[15] See DPP v Chike Obi (1961) 1 ANLR 186.

[16] See section 35(1) (a)-(f) of the 1999
Constitution.

[Adeniyi Israel Adekunle is an
undergraduate student of the Faculty of Law, University of Ilorin.
He is also the Director of Litigation of the Equity Chambers,
Faculty of Law, University of Ilorin. He can be reached via
israeladeniyi178@gmail.com^[1]  for
commentaries and feedbacks on the article.]