CITIZENSHIP AND RIGHTS – A PAPER PRESENTED BY HON. JUSTICE ITA G. MBABA, JUSTICE COURT OF APPEAL, NIGERIA, AT THE ANNUAL CONFERENCE OF NIGERIA CHRISTIAN GRADUATE FELLOWSHIP (NCGF), HELD IN PORT-HARCOURT, RIVERS STATE, NIGERIA ON 23RD – 26TH AUGUST, 2017.
Protocol:
1 INTRODUCTION:
I must express my appreciation to the Leadership of NIGERIA CHRISTIAN GRADUATE FELLOWSHIP (NCGF) and the Local Organising Committee (LOC) of the Conference, for giving me the challenge to write and address this topic: CITIZENSHIP AND RIGHTS – of which its knowledge, I consider very crucial for every citizen and christian in Nigeria, for his effectiveness, fulfillment and relevance, in the scheme of things in the Society, and in things of the Kingdom. Knowledge, as it is always said, is Power, and a wise application of knowledge, which translates to Wisdom, is the key to successful, bold and gainful living. The Scripture says:
“My people are destroyed for lack of knowledge. Because, you have rejected knowledge, I also will reject you being priest for me…” (Hosea 4:6 – NKJV)
The difference between an illiterate and educated person is the confidence and boldness of the latter. Knowledge is like light and one who knows something is armed like a man who carries a powerful touch light and a gun in darkness. See John 8:32; 2Tim. 2:15.
Of course, as graduates, and professionals, in various disciplines, we can appreciate the place of education and knowledge, as a determinant factor of the quality of life and personality of any individual. But quite sadly, the chains of educational qualifications one has may not, necessarily, translate to attainment of the requisite knowledge that guarantees the boldness and grace, needed, to confront the challenges of living, and effective service. Until one knows the value of knowing, and deliberately seeks/studies to know his environment, where he belongs, his rights and heritage therein and what he is called/created to do, he remains poor. A son or an heir, as long as he is a child (ignorant of his rights, position and powers), is not better-off than a slave, even though he owns everything (Gal. 4:1).
2
TREATMENT OF THE TOPIC:
In treating this topic, I shall also, briefly, touch on the obligations/responsibilities of the citizen, so that when he comes to know his rights, as a citizen, he will also appreciate his duties inherent in the rights, so that he will not be carried away by the knowledge of his assumed rights and act like the prodigal son. (Luke 15:11-14). I shall therefore consider our citizenship (of Nigeria and of the Kingdom); our rights, flowing from the citizenship and our responsibilities, inherent in the rights. There are some legal jargons, which shall, as much as possible, be explained, to give easy understanding.
3 CITIZENSHIP OF NIGERIA:
The Merriam – Webster Dictionary, defines Citizenship as:
“the fact or status of being a citizen of a particular place: the qualities that a person is expected to have as a responsible member of a community.”; “the status of being a citizen; membership of a community.”
Citizenship is not therefore confined to nationality e.g. Nigerian, American etc. It starts from a family, to community, (Village, School, etc) to State and Country. Of course, citizenship, basically, is by divine selection, and nobody chooses his parents, where to be born or belong. Parents may play some roles, by electing to be married or copulate to bring about a child; they may also elect where to deliver the baby (as many, funnily, travel to foreign countries (USA, Britain etc) to deliver their babies), but you take citizenship of the village/town/state/country of your parents (father in particular). In Nigeria, citizenship is acquired:
(1)
Automatically, by birth (see section 25 of the 1999 Constitution, as amended)
(a)
“every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria.
provided that a person shall not become a citizen of Nigeria by virtue of this section, if neither of his parents nor any of his grandparents was born in Nigeria;
(b)
every person born in Nigeria after the date of independence (October 1, 1960) either of whose parents or any of whose grandparents is a citizen of Nigeria; and
(c)
every person born outside Nigeria either of whose parents is a citizen of Nigeria.”
(ii) Section 26 of the Constitution provides for citizenship by registration, if the President of Nigeria is satisfied that the person applying to register:
“(a) … is a person of good character.
(b)… has shown a clear intention of his desire to be domiciled in Nigeria and
(c) … has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution.
(2) The Provision of this Section shall apply to
(a) any woman who is or has been married to a citizen of Nigeria, or
(b) every person of full age and capacity born outside &, any of whose grandparents is a citizen of Nigeria.
(iii) Section 27 of the Constitution, provides for citizenship by naturalization, that any person who is qualified can apply to the President for the grant of certificate of naturalization and no person shall be qualified to apply, unless he satisfies the President that:
(a)
he is a person of full age and capacity;
(b)
he is a person of good character;
(c)
he has shown a clear intention of his desire to be domiciled in Nigeria;
(d)
he is, in the opinion of the Governor of the State where he is or he proposes to be resident, acceptable to the local community in which he is to live, permanently, and has been assimilated into the way of life of Nigerians in that part of the Federation;
(e)
he a person who has made or is capable of making useful contribution to the advancement; progress and well-being of Nigeria;
(f)
he has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution; and
(g)
he has immediately preceding the date of his application, either – (i) resided in Nigeria continuously for a period of fifteen years, or (ii) resided in Nigeria for a continuous period of twelve months and during the period of twenty years immediately preceding that period of twelve months, has resided in Nigeria for periods amounting in aggregate to not less than fifteen years.”
Most of us, (if not all), fall within the class of citizens by birth, as we filled no forms to be Nigerians. It is, therefore, a divine act, careful designed and for a purpose, that you are a Nigerian. See Acts 17: 26-27 (NIV):
‘From one man he made every nation of men, that they should inhabit the whole earth; and he determined the times set for them and the exact places where they should live. God did this so that men would seek him and perhaps find him, though he is not far from each one of us.’
And so, it is a great privilege to be citizens of this great country of great riches in human and mineral resources; the strength of Africa, and largest single concentration of intelligent/progressive black race in the world! A clear knowledge of the worth and place of Nigeria in global affairs, as well as its internal wealth and value and your rights, therein, will blow (spur) your mind to rise up to appreciate your greatness and capacity for usefulness! Such knowledge will also make you to appreciate yourself, and to place value on your Citizenship; that it is as good as what an American or British feels about himself and his country. When you know that some people (from other Countries) have been applying and queuing (and some turned down) to be registered or naturalized as Nigerians, and are only accepted on conditions, including of good character – then you will place more value on your Citizenship, and be proud to be a Nigerian, which the Almighty God ordained you to be, and work her glory and honour!
I think, Nigeria is the most blessed Nation of the World, with good climate and clement weather, arable lands, beautiful vegetattion belts, abundant agricultural and mineral resources (including oil and gas in massive, almost inexhaustible quantities); able bodied, intelligent and resourceful human capital, well watered lands and shore-lines, full of crops, fruits, birds, wild life and sea foods. And she is well located, away from the reach of natural disasters, like earthquakes, landslides, dangerous waves and destructive winds. Her problems and challenges are, basically, self inflicted, man-made, and poverty induced, for want of leadership, and poor harnessing of her riches and potentials. Her people are highly resilient, patient, friendly, self oriented, intelligent, hardworking and peaceful; highly religious, tolerant, with rich cultural values, and strength, waiting to be properly motivated and harnessed for greater integration, productivity and development. Nigeria is a gold mine, (discovered by outsiders) waiting to be explored and tapped. One should therefore feel greatly honoured and proud to belong and flaunt his Citizenship of such a Nation! Nigeria is the other Garden of Eden!
Sadly, some elite citizens now fly abroad to deliver their babies, to foist citizenship of other land’s – America, Britain, Canada, Dubai etc on their children! Ashamed of being Nigerians! And, often, you hear a Nigerian talk so cruelly and derogatorily about his land of birth, as if it were accursed; feeling insecure, depressed, confused and ashamed of being a Nigerian! I think that is an evil spirit or error, which destroys self worth and patriotism, and is at the root of all the preference for foreign goods, lifestyle, capital light and all the tendency to look outside for satisfaction and fulfillment!
4 CITIZENSHIP OF THE KINGDOM:
Of course, as Christians, we must always be conscious of our other citizenship – of the Kingdom of God – which is more important. A Christian is one who enjoys adoption as a child of God, having been born again and transformed from the kingdom of Darkness (Satan) into that of light (Col. 1:3), and made a partaker of the Divine nature, by the Holy Spirit of God, that works the character of God and of righteousness in him.
See – John 1:12; 3:6 – As many as received him (Jesus) he gives power to become sons of God; “That which is born of the flesh is flesh and that which is born of the Spirit is Spirit”;
- Rom. 8:1-17. The law of the Spirit of life in Christ Jesus has liberated him from the sin and death and he enjoys the Spirit of adoption;
- 2Cor. 5:14-21 – he is constrained by the love of God to live for him, as new creature, recreated in Christ and now serving God as “ambassador” of Heaven in his Nation, to persuade men/women to receive His Salvation;
- Eph 2:1-10 – he is laundered and endowed with grace and turned into God’s show piece/show room of God glory and praise.
It takes the Spirit of the Kingdom in us to work proper commitment to the Nation we belong, and to demonstrate unparallel patriotism, love and service to the Nation.
Note Isa. 61:1-4, that the Spirit of God makes us to be liberators and messiahs, and burdens us to give God no rest in seeking His help for our land, until He makes righteousness and glory to reign in the land (Isa. 62:1-2)
5 RIGHTS OF A CITIZEN OF A CITIZEN:
Knowledge of one’s rights in the family, or society, certainly, gives him some sense of belonging, power and confidence, and places him in a position of strength and usefulness. That, I think, is what makes an average Lawyer to be bold and assertive, holding himself out with pride. It is because he knows his rights and how to appropriate it. Your knowledge makes you strong. But the people that do know their God shall be strong, and do exploit (Dan. 11:32). Whether in the realm of the physical or Spirit, knowledge of one’s rights is crucial, to his lifestyle, conduct and personality.
The basic rights of a Citizen of Nigeria can be classified into two: (a) justiciable rights and (b) non-justiciable rights.
i)
NON-JUSTICIABLE RIGHTS
Non-justiciable rights are not personal rights, and so cannot be enforced in a court of law, that is, one cannot sue to enforce the application of such right by him, though he enjoys a sensual feeling of same as his right. An example of this is the understanding that the government exists for his security and protection and he has right to part take in the government.
a)
Section 14(1) (b) of the 1999 Constitution states:
“The security and welfare of the people shall be the primary purpose of government.”
That is part of the Chapter II of the Constitution of Federation Republic of Nigeria, 1999, as amended, titled: FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY, which merely reveals the policy thrust of government, but a citizen has no way of enforcing them (causing the government to translate the policies into action). See Section 6(6)(c) of the Constitution, which says:
“The judicial powers vested in accordance with the foregoing provisions of this Section – shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person, or as to whether any law or any judicial decision is in conformity with the fundamental objective and directive principle of state policy, set out in Chapter II of this Constitution.”
Thus, where the government fails to take steps to ensure your security and welfare, as a citizen (its primary duty), you cannot succeed to go to court to obtain redress. The same applies in respect of all the other Provisions of the Chapter II, namely:
b)
right to adequate facilities and residency right anywhere in the Country (Section 15);
c)
rights, relating to economic objectives, maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality, right to operate and participate in every area of economy (Section 17);
d)
right to equal and adequate educational opportunities at all levels, particularly provision of free, compulsory and universal primary, secondary education, and free university/adult literacy program (where practicable) – Section 18;
e)
right to vibrant foreign policies and protection of national interests (including protection of our nationals anywhere in the world) Section 19;
e} right to protection and safe environment, improved and safe water, air, land, forest, wild life – Section 20;
f) Promotion of national ethics – disciple, integrity, dignity of labour, social justice, religious tolerance, self-reliance and patriotism (which promote healthy living, relationship, peace, progress and wellbeing) – Section 23.
ii) The fact that the above rights are non-justiciable, means that their implementation and application lies in the persons in power at a given time (as President, Governor etc), and the governed can only hold them accountable by asserting social pressure on them, not legal pressure, to act.
In the case of A.G. Kano State Vs A.G. of the Federation (2007) LPELR SC. 26/2006 the Supreme Court held that a dispute taken to Court:
“must involve a question whether of law or fact, on which the existence or extent of a legal right depends. It must be clearly established that the dispute, within the purview of the section (of law), must be a justiciable dispute. In other words, the dispute contemplated under the section must be a dispute that is appropriate for judicial interpretation. See A.G. of Bendel State Vs A.G. of the Federation & 22 Ors (1981) 10 SC 1; (1981) 3 NCLR 1.
In the case of Emenike Vs PDP & Ors. (2012) LPELR – 7802 (SC), the Supreme Court held, as follows, over an issue adjudged to be a political question (power of party to choose its candidate):
“It is a political question… a member who is aggrieved has no cause of action as it has not raised any question as to the rights and obligations of the member determinable by a Court of law… In the case of Abraham Adesanya Vs The President Federal Republic of Nigeria (1981) 5 SC 112 at 187 – (9 brought before them in which there is dispute, controversy and above all, in which the parties have sufficient interest.” Per Chukwuma – Eneh JSC.
It should, however, be noted that any of the provisions of Chapter 11 of the Constitution of Federal Republic of Nigeria, 1999, as ammended can be given force of law by a legislation of the National Assembly and thus be made justiciable. See Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 6 SC (Pt. 1) 1.
9
6 JUSTICIABLE RIGHTS – FUNDAMENTAL RIGHTS:
These are rights that flow to one, personally, as a citizen and/or for being a human being Chapter 4 of the Constitution (Section 33 to 44) carry what is called FUNDAMENTAL RIGHTS, which also remain available for every person living legitimately in Nigeria, whether he is a citizen or alien. It conforms with, the Universal Declaration of Human Rights by the United Nations 1948 and the African Charter on People’s Rights, which are all domesticated by Nigeria. (See the case of Kim Vs State (1992) NWLR (Pt.233) 17; African Charter and Peoples Rights (Ratification and Enforcement Act), Laws of the Federation).
By Section 46 of the 1999 Constitution:
“Any person who alleges that any of the provisions of this Chapter of the Constitution 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.”
Scores of judicial decisions/authorities abound to show how that Section of the law can be and has been translated and enforced, especially against authorities of government and its agencies, like the Police, Military, the Economics Financial crimes Commission (EFCC) and Attorney Generals, to resist the wrong use of their powers against citizens.
In the case of SKY Bank Plc Vs Njoku & Ors (2016) LPELR – 40447 (CA), it was held:
“In the Fundamental Rights action, damages automatically accrue once the Respondent is adjudged to have violated the Applicants fundamental rights. See Ozide & Ors Vs Ewuzie & Ors (2015) LPELR – 24482 (CA); Ejrofor Vs Okeke (2000) 7 NWLR (Pt.665).
In Onogwie & Ors Vs Odom & Ors (2016) LPELR – 40214 (CA), it was held:
“A party that employs the Police or any enforcement agency to violate the fundamental rights of a citizen should be ready to face the consequences, either alone or with the misguided agency.” Ogbonna Vs Ogbonna (2014) 23 WRN 48
See also Iwununne Vs Egbuchulem & Ors (2016) LPELR – 40515 (CA); Nigerian Army Vs Brig. Gen. Maude Aminum – Kano (2010) 5 NWLR (Pt.1188) 429; WAEC Vs Akinkunmi (2008) 9 NWLR (Pt.1091) 151 SC; Ogudu Vs State (1994) 9 NWLR (Pt.366) 1; Adetona &Ors Vs EFCC & Ors (2017) LPELR – 42369 CA.
The specific Fundamental Rights, which breach attracts instant remedy (if challenged) are:
(I)
RIGHT TO LIFE (SECTION 33 OF THE CONSTITUTION):
“Every person has a right to life, and no one shall be deprived of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.”
Of course, a person is not regarded as having been deprived of his life, if he dies as a result of the use to such extent and in the circumstances as are permitted by law of such force as is reasonably necessary –
(a)
For the defence of any person from unlawful violence or for defence of property;
(b)
In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c)
For the purpose of suppressing a riot, insurrection or mutiny.
Human life is sacred and no person is permitted to take the life of another, and this applies to even unborn child and to a criminal, except one being sentenced to death by a competent Court. Thus, every extra-judicial killing constitutes murder by the person(s) doing so, even as a law enforcement agent. The Courts too are warned against wrong use/exercise of their powers, as an abuse of such power can lead to a judicial murder. See Ajakaiye Vs The State (2015) 5 WRN 64 at 101 – 102; Garba Vs State (2011) 14 NWLR (Pt.1266) 98 at 124.
Thus, a threat to your life is a crime, as well as a civil wrong for which you are entitled to ward off, and to claim compensation, in damages. Ezeadukwa Vs Maduka (1997) LPELR – 8062 (CA); (1997) 8 NWLR (Pt.518) 635; Omonyahuy & Ors Vs IGP (2015) LPELR 25581 (CA).
(II)
RIGHT TO DIGNITY OF HUMAN PERSON (SECTION 34):
“Every individual is entitled to respect for the dignity of his person, and accordingly:-
(a)
No person shall be subjected to torture or to inhuman or degrading treatment
(b)
No person shall be held in slavery or servitude; and
(c)
No person shall be required to perform forced or compulsory labour.”
Of course, for the purpose of subsection (1)(c) above “forced or compulsory labour”, does not include:
(a)
Labour required in consequence of sentence of a Court;
(b)
Any labour required of members of armed forces of the Federation or the Nigeria Police Force, pursuant to their duties, as such;
(c)
In the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;
(d)
Any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or
(e)
Any labour or service that forms part of
(i) normal community or other civic obligations for the well-being of the community,
(ii) such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly, or
(iii) such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.”
The right to dignity of human person frowns at every act of torture, demeaning of the human person and enslavement. All the acts of human trafficking, kidnapping and violent assaults, rape are both crimes and violation of this right.
(III)
RIGHT TO PERSONAL LIBERTY (SECTION 35):
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law,
The exceptions that permit such interference, include:
(a)
Execution of sentence or order of Court in respect of Criminal offence of which one has been found guilty
(b)
If one fails to comply with an order of Court, or where there is need to fulfill an order/obligation imposed by Court on him.
(c)
For the purpose of bringing one before the Court upon suspicion of having committed criminal offence, or as may be reasonably necessary to prevent the commission of criminal offence.
(d)
In the case of one who has not attained the age of eighteen year, for the purpose of his education or welfare
(e)
In the case of persons suffering from infectious or contagious disease, persons of unsound mind, person addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f)
For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person, or the taking of proceedings relating thereto.
Where one is arrested and detained, he has to be charged to court within reasonable time, or released on bail, and he must be informed of the offence committed. By Section 35(2):
“Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.”
And he “shall be informed in writing, within 24 hours (and in the language that he understands) of the facts and grounds for his arrest or detention.”
Where he is arrested or detained for the purpose of bringing him to Court or upon suspicion of having committed criminal offence or to prevent his committing criminal offence, “he shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a)
Two months from the date of his arrest or detention, in the case of a person who is in custody or is not entitled to bail; or
(b)
Three months from the date of his arrest or detention, in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released, either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.” Section 35(4)
Of course, Reasonable time is defined in Subsection 5 to mean – where there is Court within a radius of 40 Kilometers of where he is detained, one day, and two days or such longer period adjudged by Court, where there is no Court within such radius.
By Section 35(6), any person unlawfully arrested or detained is entitled to compensation and public apology by appropriate authority (responsible for his detention).
A large proportion of fundamental rights cases are on this section, that is, fighting wrongful arrest, detention and torture by the Police and other violators. See Oceanic Securities Int’l Ltd Vs Balogun & Ors (2012) LPELR – 9218 (CA): where it was shown that most of such arrests and detention relate to civil causes, like contracts.
“…Resort to the Police by parties for recovery of debts outstanding under contractual relationship, has been repeatedly deprecated by the Court. The Police have also been condemned and rebuked, several times, for using its coercive powers to breach citizen’s right, and/or promote illegalities and oppression… The unholy alliance between aggrieved contractors/creditors with the Police remains at the root of many fundamental rights breaches in our Courts.”
In the case of Iwununne Vs Egbuchulem & Ors (2016) LPELR – 40515 CA, it was held that unlawful detention, no matter how short, can lie a breach of fundamental right. Okonkwo Vs Ogbogu (1996) 5 NWLR (Pt.499) 420.
Thus, even where one is suspected of committing a crime, he is still entitled to be treated with respect, and provided with requisite atmosphere to ensure his quick trial and protection. The law does not even permit a citizen to be put through the rigours of trial, unless a prima facie case is not estabished against him. See the case of APUGO VS FRN (2017) LPELR 41643 (CA)
The rules relating to establishment of prima facie case, to warrant subjecting a citizen to go through the rigours of criminal trial, appears to aim at advancing and promoting the fundamental rights of every citizen against oppression, harassment, abridgment of his freedom and/or subjecting him to all the trauma that criminal trial entails, where such trial is not necessary. In the case of Ikomi Vs State (1986) 3 NWLR (pt.28) 340; (1986) LPELR – 1482 (SC), the Supreme Court held:
“No citizen should be put to the rigours of trial in a criminal proceeding, unless available evidence points prima facie to his complicity in the commission of crime.”
In the case of Stanley Nwadike Vs The State (2015) LPELR – 24550 (CA), this Court, relying on the case of Abacha Vs State (2002) 7 SC (pt.1) 1 said:
“The power of the court to prevent abuse of the process of court includes the power to safeguard an accused from oppression and prejudice… The process of Court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view to harassing him.”
See also Edet Vs State (2008) 14 NWLR (pt.1106) 52 at 58, where this Court held:
“The Court has jurisdiction to safeguard an accused person from oppression or prejudice. The Court will fail in its duty, if, in the face of a defective or bad charge, it refuses to entertain an application to quash the information and hastily proceeds to set the criminal case for trial. The Court has the power and duty to stop a prosecution, which on the facts, create abuse and injustice. In the instant case the objection of the Appellant at the trial Court was on the legality or validity of the information brought against him. At the material time when the objection was raised, no prima facie case had been established, justifying the criminal trial against the Appellant…”
To determine whether a prima facie case is established in a criminal matter before a Court, the trial Court is expected to scrutinize the charge or information, together with the accompanying statement of witnesses and other documents (if any) attached to the charge or information, i.e. the proof of evidence and consider the same to determine whether a prima facie case has been disclosed. See Abacha Vs State (supra); Grange Vs FRN (2011) 6 NCC 384.
(IV)
RIGHT TO FAIR HEARING (SECTION 36):
“In the determination of his Civil rights and obligations, including any question or 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 and impartiality.”
Subsection 2 of that section provides some exceptions that:
“a Law shall not be invalidated by reason, only that it confers on any government or authority power to determine questions arising in the administration of law that affects or may affect the civil rights and obligations of any person, if such law –
(a)
Provides for an opportunity for the person … to make representations to the administering authority before the authority makes the decision affecting that person;
(b)
Contains no provision making the determination of the administering authority final and conclusive.
It makes it mandatory for the proceedings of Courts and tribunals to be held in-public and for any person charged with commission of offence to be tried within reasonable time, in public, and accorded fair hearing, however, with power of the Court to exclude persons not directly affected by the case, if necessary.
But in special circumstances, where the Court or tribunal is satisfied that “it would not be in the public interest for any matter to be publicly disclosed, the Court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient, to prevent the disclosure of the matter.” (See Section 36(4)(a)(b) of the Constitution)
(Recently, the government applied for the hearing of Nnamdi Kanu treasonable charge, and the Dasuki (Former National Security Chief) case in private, for security reasons, and there have been heated debate on that in the public space).
By Section 36(5) of the Constitution, every person charged with a criminal offence is presumed to be innocent, until he is proved guilty. That means, the accused person is not expected to struggle to show that he did not commit the offence, as the burden lies with his accusers, to establish his guilt. See Adeniyi 7 Ors Vs FRN (2007) LPELR – 8805 (CA):
“There are myriads of authorities to the effect that accused person cannot be called upon to prove his innocence, as the Constitutional presumption remains inviolate, that he is innocent, until his guilt is proved by the persecution. See Section 36(5) of the 1999 Constitution. See also the case of Okoro Vs The State (1988) 12 SCNJ 191.”
It is sad, that the gullible public is often made to jump to conclusions, once somebody is alleged to have committed offence, and is subjected to media trial.
By Subsection 6 of the Section 36 of the Constitution, every person charged with criminal offence is entitled to:
(a)
Be informed promptly, in the language he understands and in detail, the nature of the offence
(b)
Be given adequate time and facilities for the preparation of his defence;
(c)
Defend himself in person or by legal practitioners of his choice;
(d)
Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e)
Have, without payment, the assistance of an interpreter, if he cannot understand the language used at the trial of the offence.”
The Court is enjoined to keep the records of proceedings at the trial and the accused is entitled to obtain copies of the proceedings/judgment (within 7 days of the judgment).
Nobody can be held guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty can be imposed for any criminal offence, heavier than what is stated in the law or in force at the time the offence was committed. That means, no person shall be tried for a criminal offence, unless the offence is defined and the penalty, therefor, prescribed in a written law – being Act of the National Assembly or law of the State, or subsidiary legislation or instrument under the provisions of a law. See Section 36(7)(8)(12).
And by Subsections 9, 10 and 11, no person shall be tried more than once on a given charge/offence having the same ingredients, except by an order of a superior Court (in event or order for retrial); and no person who shows that he has been pardoned for a criminal offence shall, again, be tried for that offence. (Part of the Mystery of Pre-rogative of Mercy). It is also instructive that a person tried for a criminal offence shall not be compelled to give evidence at the trial. See the case of Okoro Vs The State (2012) LPELR – 7846 SC, which listed the above requirements as the necessary procedures to comply with in a criminal trial,
The authorities are replete that fair hearing remains the pilar of any trial/adjudication, and failure to comply with it makes the entire trial a nullity. Champion Breweries Plc Vs Specialty Link Ltd & Anor (2014) LPELR – 23621 (CA); Oyekanmi Vs NEPA (2000) LPELR – 2873 (SC); General Electric Co. Vs Akande (2012) ALLFWLR (Pt.637) 1474; Amadi Vs INEC (2012) ALLFWLR (Pt.627) 1415; Erekanure Vs State (1995) 5 NWLR (Pt.294) 385 (SC); Anyanwu Vs State (2007) 13 NWLR (Pt.783) 107; Musa Vs State (2017) NWLR (Pt.1555) 187.
(V)
RIGHT TO PRIVATE AND FAMILY LIFE (SECTION 37):
“The privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communication, is hereby guaranteed and protected.”
Any violation of the above can be criminal invasion (like break in and entry by thieves or assailants), or civil wrong (like trespass to land/property). It can also be challenged by way of fundamental rights action, e.g. where the Police, EFCC or DSS, etc, break into your house, unlawfully (in a purported attempt to find object of crime), or where they tap into your telephone conversation.
There is, however, a huge challenge, when it comes to fighting crime, as telephone conversations, bank confidentialities and other private correspondence appear no longer safe, and are being invaded by Security Agents for Security reasons! The invasion of the homes of Judges in the dead of night in November, 2016 and seizure of their phones, computers etc, in search of lead to possible corrupt acts, is a case in point.
(VI)
RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (SECTION 38):
“Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”
This one is, indeed, crucial and fundamental, but at the same time delicate/sensitive, and prone to abuse, being inherent with mutual conflicts.
While our nation is founded on the premise of belief in God Almighty, that:
“We the people of Nigeria, have “firmly and solemnly resolved: To Live in Unity and Harmony as one indivisible and in dissolvable sovereign Nation, under God…”;
Sections 10 and 38 of the Constitution, acknowledge the fact, that there are different religions, and forms of worship of this same God, and bar the Government of the Federation, or of a State, from adopting any religion as State religion.
Issues of religion and faith, normally, carry much sentiment/emotion, and adherents hold very strong views, with tints of extremism, rivalry and suspicion. In Nigeria, Christianity and Islam are the 2 major religions and both worship the same Almighty God, but, differently, as per their different Founders/Holy Books (Bible and Koran) of worship; and the two faiths appear to enjoy equal strengths, in population, and they have a lot in common, being, historically, founded on the revelations/messages obtained (and practices) by Father Abraham and his descendants, namely Ishmael (Islam) and Isaac/Jacob (Israelites, from which stalk Jesus Christ came to establish the Christian faith). (Note: Genesis 16, 17 (on the parting of ways between Ishmael and his father – particularly 17:17-25; 8-21; 16:1-13).
The challenge of separating the personal life of an office holder (like President or Governor) from his official life, as the driver of National/State life, when it comes to his religious life, should be appreciated, as it may be difficult to distinguish between the two (and the President’s/ Governor’s personal right to worship God (as per the section 38 of the Constitution), cannot be impaired).
The Section 38 of the Constitution therefore requires deep understanding and requires love, tolerance and mutual respect from every citizen. Thus, if one elects to worship stone, or whatever, as per the dictates of his belief and conscience, the law allows him that freedom, and respect, and expects no person to impose his belief/faith on that person; as each person has right and freedom to manifest, propagate and/or change his religion or belief in worship, teaching, practice or observance, without hindrance, persecution, or deprivation. And in exercising ones religion/belief, nobody is allowed to hold his neighbor (another person with opposing views) in contempt or to ransom. That, however, does not stop evangelism and propagation of one’s faith, provided it is done, peacefully and with respect to others and their views/beliefs. Of course, it is always said: “Your rights stop at where mine begin” in a community of people of varied interests, customs, faiths and beliefs.
However, by Subsection 2 of that Section:
“No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance, if such instruction, ceremony or observance relates to a religion other than his own or a religion not approved by his parents or guardian.”
By Subsection 3:
“No religious Community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.”
(1)
Nothing in this Section shall entitle any person to form, take part in the activity or be a member of a secret society.”
The delicate balance in the above observation of the right has to be sorted out, as a group of cultists could emerge, being a secret society, by the guise of religion to foist their dangerous cultic spell/violence on the populace.
Section 318 provides the meaning of Secret Society, as group or body of persons (whether registered or not):
(a)
That uses secret signs, oaths, rites or symbols and which is formed to promote a cause, the purpose or part of the purpose of which is to foster the interest of its members and to aid one another under any circumstances, without due regard to merit, fair play or justice, to the detriment of the legitimate interest of those who are not members;
(b)
Membership of which is incompatible with the function or dignity of any public office under this Constitution and whose members are sworn to observe oaths of secrecy; or
(c)
The activities of which are not known to the public at large, the names of whose members are kept secret and whose meeting and other activities are held in secret.” See INEC and Ors Vs Orji & Ors (2009) LPELR – 4320 (CA); P.P.A. Vs P.D.P & Ors (2009) LPELR – 4865.
See the case of Nursing and Midwifery Council of Nigeria Vs Adesina (2016) LPELR – 40612 CA, where right to the provisions of Section 38(1) of the Constitution was affirmed and the Court said, thus:
“Fundamental Rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself Fundamental rights have been described as the minimum living standard for civilized humanity… The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable… Ransome Kutti Vs A.G. Federation (1985) 7 NWLR (Pt.6) 211; so (is) the right of the Respondent, to change her religion with the attendant consequences inherent to her, and is inalienable and immutable…”
(VII) RIGHT TO FREEDOM OF EXPRESSION AND THE PRESS (Section 39):
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information, without interference.”
Thus, anybody can establish, own and operate any medium for dissemination of information, ideas and opinion, subject to the fulfillment of necessary conditions stipulated by law. We now have private radio and television stations and multiple newspaper houses. In this era of Information Communication Technology (ICT) and cellphone revolution, so much news is generated, daily, by individuals and offloaded into the internet; Facebook, Instagram, you-tube, and other soft media fly news/information in the information super highways/waves, reducing the world into a little machine in your hand, to access any information by the touch of your fingers! It is even becoming more and more difficult to regulate the use of this right, as many have resorted to abuse this freedom, to peddle lies, blackmail, hate speeches and threats, which undermine the peace and unity of the Nation!
Subsection 3 however provides some restrictions on the use of this right, in the areas of preventing disclosures of information received in confidence, maintaining authority and independence of Courts, or regulating telephone, wireless broadcasting television etc, and the protection of government and security secrets.
The main way of checking abuse of this right is by way of resort to Court, to challenge false and malicious publications, by way of action for defamation. I have personally used this, a few times, to educate assailants and claim damages, for libel. See Uko Vs Mbaba (2001) 4 NWLR (Pt.704) 460 Government, sometimes resort to criminal charge against those peddling false information; or to treasonable felony, for sedition, to curb the excesses of those who abuse their rights of freedom of expression or opinion, and the impartation of the same.
It should, however, be noted that the right of freedom of expression and the press is not an absolute right. Section 45 (1) (a) of the Constitution of the Federal Republic of Nigeria provides that;
“Nothing in Sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society;
(a)
In the interest of defence, public safety, public order, public morality or public health”.
This provision is particularly useful and relevant in these times in which radical extremists and misquided religious elements use conventional media and the internet to radicalize and recruit the ignorant into acts of terrorism. The conventional media and the internet are also used to spread hate speeches calculated to set or capable of setting the nation, nay, even the world ablaze. After the London terror “After last weekend’s terrorist attack in London Theresa May, Britan’s prime mininister, declared that enough is enough”… She specifically criticized the big internet firms. “We cannot allow this ideology, the space it needs to breed, she said”, adding that Britain and its allies needed to ‘regulate cyberspace to prevent terrorist and extremist planning”.
The constitution of Nigeria in Section 45 (1) (a) earlier quoted, above, permits laws and regulations aimed at denying public space to extremist ideologies and hate speech mongers as they constituted a threat to public safety, defence and public order. The efforts of the National Assembly to enact legislation in this regard is salutary but there is need for public and elightened debate to ensure that such a legislation does not go beyond its objective into the realm of suppression of responsible free speech.
(VIII) RIGHT TO PEACEFUL ASSEMBLY AND ASSOCIATION (SECTION 40):
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest;
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission, with respect to political parties to which that Commission does not accord recognition.”
Our meeting now as a Fellowship (NCGF) and this Conference explain the application and enjoyment of some of our fundamental rights under the Constitution, as individuals and as a group. We are associating and meeting freely as a people of common interest (Section 40), to worship God and propagate our faith (Section 38); share and express our freedom of thought, opinion and expression (Section 39), as to what our Nation should be/do. We did not have to fill forms or obtain Police permit, or approval of Rivers State Government to do so. We even invited the Government, the Police and other persons to share the time with us, because we are not a secret society! Such rights can only be enjoyed under democracy, in an atmosphere of peace. We must do everything to refuse war and conflicts, insurgency and hate, that can jeopardize the enjoyment of these rights.
All the organizations, bodies corporate, companies and religious bodies, political parties, trade and market unions, etc, derive their Constitutional rights of association and function from this section, but are subject, to regulations by the laws (establishing and moderating them), for the purpose of identification and control/taxation (where necessary).
You can, therefore, aspire, dream, form opinion and cause people to associate with you to pursue any dream goal/interest; you are free to become president/founder of a Church, organization, political association, professional body or business/commercial venture, and to provide leadership. You have a right to aspire to be anything and hold any Political Office in Nigeria – including that of Governor, Senator, and President of Nigeria. You can be the Senate President, Chief Justice of Nigeria or anything, provided you meet the qualifications.
(IX) RIGHT TO FREEDOM OF MOVEMENT (SECTION 41):
“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from.”
You can remember the uproar and condemnation that greeted the proclamation by some persons in the Northern parts of Nigeria, who claimed to be AREWA Youths, when they issued Quit Notice to the Igbos, to leave the 19 Northern States of Nigeria by October 1, 2017. That so called proclamation was a flagrant breach of this Section of the Constitution and, therefore, treasonable. Those who peddled it tried to justify it on the threats by Nnamdi Kanu (and his group of Indigenous People of Biafra (IPOB)) seeking to break away from Nigeria; that they (Arewa Youths) were helping the said Igbos (IPOB) to realize their dream by enforcing their withdrawal from Nigeria, to return to their home land!
Nigeria is home land to every and all her citizen(s), who are entitled to move about to anywhere, and to reside anywhere, subject, of course, to compliance with the tenancy rules/regulations of each State or place of abode. Even the herdsmen, who now appear to provoke controversies, have a right to move about, with their cattle, but subject to compliance with national/local rules, relating to the protection of the rights of others (including farmers) and maintaining the peace. A citizen of Nigeria does not need residency permit to reside anywhere in Nigeria, but that does not invalidate tenancy laws and regulations, or the Land Use Act/regulations, relating to acquisition of occupancy rights, which apply at the discretion of the State Governors or local authorities.
(X) RIGHT TO FREEDOM FROM DISCRIMINATION (SECTION 42):
(1) “A Citizen of Nigeria of a particular community ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –
(a)
Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizen of Nigeria of other Communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or
(b)
Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.
(2)
No citizen of Nigeria shall be subjected to any disability or deprivation by reason of the circumstances of his birth.
I think all that this Section says, in simple English, is, Nigerians enjoy equal citizenship, and no citizen can be discriminated against (or preferred) on the ground of the circumstances of his birth, community, places of origin, ethnic group, sex, religion or political opinion. No citizen is more a citizen than others and none is less a citizen than others. That means, no citizen is born with/or into stigma of unacceptance, disability or illegitimacy and all the social, cultural, religious or customary views/concepts that stigmatize, look down upon, or treat certain persons as illegitimate, or with disabilities are unlawful, unconstitutional and nullified. Even if you were born out of wedlock, you are, as legitimate and good a citizen, as the child of Mr. President of Nigeria! Your local/religious customs, that says that, as a female, you cannot aspire to what your brother is entitled to in the family or society, stand nullified. And all the religious deprivations against you, for being a Christian or Muslim or Pagan, or for changing your faith, are constitutionally, nullified, as the same is discriminatory, in the context of your citizenship rights in Nigeria. See, again, the case of NMCN Vs Adesina (2016) LPELR – 40612 (CA), where it was held:
“The Appellant never challenged the deposition that her change of name was consequent upon becoming a Christian. Section 38(1) of 1999 Constitution guarantees the right to freedom of thought, conscience and religion… Since it is pursuant to her constitutional right of freedom to change her religious belief that the Respondent became a Christian with the consequent change of name, I agree with the submission of the Respondent’s Counsel… that “Names are meant not only to identify. In Nigeria names are borne for a variety of reasons some for ethnic, religious reasons as well as circumstances of birth. In the instant case where the reasons advanced for the change of the names are religious and marital, the names are interwoven with the fundamental rights to practice religion her choice and not to be discriminated against on that account. Section 420 42(1)(a) and (2)… I agree with the trial Court that attempt to deny the Respondent right to the Mgbala, given to his mother by her grandmother, simply because he was born out of wedlock (albeit on the same status as the Plaintiff as male, grandchild of the family of Igbozuruike) would be discriminatory and derivative, as the alleged custom sought to rely on (if in existence) would be unconstitutional, null and void and would offend the provision of section 18(3) of the Evidence Act, which Appellant even sought refuge in. That section says:
“In any Judicial proceedings, where any custom is relied upon, it shall not be enforced as law, if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.”
See also Ukeje & Anor. Vs Ukeji (2014) LPELR – 2272 SC, where the Supreme Court said:
“…Agreeing with the High Court, the Court of Appeal correctly found that the Igbo native law and custom which disentitles a female from inheriting, in her late father’s estate, is void as it conflicts with sections 39(1)(a)(2) of the 1979 Constitution (as amended). This finding was affirmed by the Court of Appeal. There is no appeal against it. The finding remains inviolate. Section 39(1)(a)(2) of 1979 Constitution is now contained in the 1999 Constitution as section 42(1)(a)(2)… No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in the sharing of her deceased father’s estate is in breach of section 42(1)(2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with Section 42(1)(2) of the Constitution” Per Rhodes Vivour JSC
Exception to the Section 42(1) of the Constitution, however, exists, where it has to do with restriction imposed by law in the appointments of any person to any office under the State or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or an office of a body corporate established directly by any law in force in Nigeria.
(XI) SECTION 43 ALLOWS RIGHT TO IMMOVABLE PROPERTY, THUS:
“Subjection to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property, anywhere in Nigeria.”
That, basically, talks about land, and landed properties – homes and real estate, which one can develop anywhere in the Country, subject, however, to the Land Use Act and Other Developmental Laws of the States.
(XII) SECTION 44 PROTECTS SUCH INTERESTS DEVELOPED, ACQUIRED AND OWNED BY CITIZENS, saying that:
“(1) No moveable property or any interest in an immoveable property shall be taken possession of compulsorily and no right over or interest in any property shall be acquired compulsorily in any part of Nigeria, except in the manner and for the purposes prescribed by a law…”
Even where that compulsory acquisition happens, prompt compensation must be paid for the acquired property, and the person claiming such compensation must be given a right to assess the property for the determination of his interest in the property, that is, proper evaluation of the property is to be done to determine the compensation payable.
Subsection 2 of that section provides for situation permitting the application of general laws regulating the enjoyment of properties, including the law on taxation and charges on the property, penalties or forfeitures for breaches.
(XIII) CURIOUS EXCEPTION AND SOURCE OF CONFLICTS:
Subsection 3 of Section 44 of the Constitution says:
“The entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as they may be prescribed by the National Assembly.”
The above subsection simply means that, though you own and may exercise proprietary right over your immoveable property (land), you have no right to/over the mineral content of that land as “the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and Exclusive Economic Zone of Nigeria, shall vest in the Government of the Federation.” Not even the State, has right over the said property located in its territory over which the Land Use Act vests the Governor with power to hold the lands in trust for the people!
The above provision appears to be at the roots of all the struggles over the control of the government of Nigeria, as it is, indeed, fun and highly lucrative to take charge of the management of all the riches of the Nation allowed by that subsection. The current calls for restructuring of Nigeria and the struggles/strident agitations by component units/zones, ethnic/tribal groups, calling for review of the Constitution, to allow for a more equitable sharing of the National cake, or for break up, appear to stem from that subsection. Many call for Resource Control, by States or review of that subsection, to reduce the powers of the Federal Government and make the Centre less attractive.
7 CONCLUSION - OUR DUTIES AS CITIZENS TO THE NATION:
My mandate did not include analysis of our duties as citizens, but in my conclusion of this paper, I have to say, by way of summary, that every right goes with obligation. Even the Scripture says “… To whom much is given, from him much will be required; and to whom much has been committed, of him they will ask for more (Luke 12:48).
Thus, being so much endowed, naturally and nationally, for being citizens of Nigeria, we, individually, owe the nation so much – love, gratitude, loyalty, service and patriotism. Nigeria yearns for children/citizens that care for her and work to make her great and fulfilling; citizens who appreciate her (Nation); her immense riches, and potentials and excellent geographical location, at the firing (nob) trigger of the continent of Africa, as if to explode the continent and showcase the huge wealth that Africa is/holds for the entire world.
Nigeria is a great Country that is yet to be discovered and appreciated by her citizens, especially, her leaders. Her leaders, over the years, have been wayward and reckless, in my opinion. Many that have had opportunity and privilege to manage her wealth and affairs have been more interested in what they could get out of the Nation, than in what they could give to her. A former Secretary to the Federal Government (SFG) Olu Falae, once said Nigeria is like a beautiful lady that men struggle over, rape her, and abandon her. Surprisingly, she (Nation) has survived all the serial rapings!
Nigeria’s greatest need, is care from her children, to nurse, nurture and love her, preparing her to serve her role in the comity of Nations. Her greatest wealth is her teaming population, who need to be motivated, and energized for service and productivity. As Christians, privileged to have good education, by the grace of God, and our generous Nation, we must rise up to serve that role for/in the Nation. Let us rise up to show love to our Nation and play that role, as Isaiah:
“For Zion’s (Nigeria’s) sake I will not hold my peace, and for Jerusalem’s (my State) sake, I will not rest, until the righteousness thereof go forth as brightness and the salvation thereof, as a lamp that burneth.” (Isa 62:1)
May God raise/stir up love in our leaders, and in all of us for this Country, to save her from the rapists, and nurture her to feed her children and regain her honour and glory!
