WEEKLY LAW REPORT: Your Constitutional Rights Are Not Absolute:

 Reloaded News Law Report Desk

Fundamental rights are among the most important protections guaranteed to Nigerians under the 1999 Constitution. They protect personal liberty, dignity, freedom of expression, movement, association, religion, property and other essential interests.

But the existence of a constitutional right does not mean that the right can be exercised without any legal limitation.

The Constitution itself recognises that certain rights may be restricted in defined circumstances. The important legal question, therefore, is not simply whether a person has a fundamental right, but whether the interference with that right is authorised by the Constitution and law.

What the Constitution Protects

Chapter IV of the 1999 Constitution contains the principal provisions on fundamental rights.

Section 33 protects the right to life. Section 34 protects the dignity of the human person. Section 35 protects personal liberty. Section 36 guarantees fair hearing. Section 37 protects privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. Section 38 protects freedom of thought, conscience and religion.

Section 39 protects freedom of expression and the press, while Section 40 protects peaceful assembly and association. Section 41 guarantees freedom of movement. Section 42 protects against discrimination, while Sections 43 and 44 deal respectively with the right to acquire and own immovable property and protection against compulsory acquisition of property.

These are enforceable constitutional rights. They are not privileges that government may simply withdraw at will.

However, the Constitution also sets out circumstances in which particular rights may lawfully be restricted.

Section 45: The Constitutional Limits

Section 45 is particularly important because it deals expressly with restriction on and derogation from certain fundamental rights.

It applies specifically to Sections 37, 38, 39, 40 and 41; covering privacy, freedom of thought and religion, expression, assembly and association, and movement.

Under Section 45(1), laws restricting those rights may be valid where they are reasonably justifiable in a democratic society in the interests of defence, public safety, public order, public morality, public health, or for protecting the rights and freedoms of other persons.

The language matters.

The Constitution does not give government a blanket power to disregard fundamental rights. The restriction must have a legal basis and satisfy the constitutional standard of being reasonably justifiable in a democratic society.

There are also specific limitations contained in the individual provisions themselves.

For example, Section 39 permits laws reasonably justifiable in a democratic society for purposes including protecting confidential information, maintaining the authority and independence of courts, regulating certain broadcasting and communications matters, and imposing restrictions on specified public officers and members of the armed forces, police and security agencies.

Section 41 similarly contains a specific constitutional basis for restricting the movement of a person who has committed or is reasonably suspected of having committed a criminal offence, in circumstances stated in the Constitution.

Section 38 also contains a specific provision concerning membership of secret societies.

This is why it is inaccurate to treat every fundamental right as though it has exactly the same limitation.

Personal Liberty Is Not Absolute

Section 35 provides that every person is entitled to his personal liberty and shall not be deprived of it except in circumstances and in accordance with a procedure permitted by law.

The Constitution identifies several circumstances in which detention may lawfully occur. They include execution of a court sentence or order, bringing a person before a court, dealing with reasonable suspicion of a criminal offence, preventing the commission of a criminal offence and certain other circumstances expressly recognised by the Constitution.

But even where arrest or detention is constitutionally permitted, the Constitution imposes safeguards.

A person arrested or detained must, within the prescribed period, be informed in writing of the facts and grounds for the arrest or detention in a language that he understands. The Constitution also provides for being brought before a court within a reasonable time in the circumstances covered by the provision.

Section 35(6) goes further by providing that any person unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person.

The implication is clear; the existence of police or security powers does not place an individual outside constitutional protection. The legality of the arrest or detention remains important.

Freedom of Expression Does Not Mean Freedom From All Regulation

Freedom of expression and the press under Section 39 is fundamental to a democratic society.

A person is entitled to hold opinions and to receive and impart ideas and information without interference, subject to the Constitution.

But the same constitutional provision recognises circumstances in which legislation may lawfully regulate the exercise of that freedom.

Therefore, the existence of freedom of expression does not mean that every act carried out in its name is automatically protected from legal consequences.

The proper question in a particular case is whether the restriction is authorised by law and falls within the constitutional framework governing the right.

Freedom of Movement Has Constitutional Limits Too

Section 41 provides that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part of the country.

That right, however, is not completely unrestricted.

The Constitution permits laws that are reasonably justifiable in a democratic society to restrict the movement or residence of a person who has committed or is reasonably suspected of having committed a criminal offence, where the restriction is necessary for preventing the person from leaving Nigeria.

The Supreme Court addressed the relationship between governmental powers and freedom of movement in Director of SSS & Anor v Agbakoba (1999) 3 NWLR (Pt. 595) 314, a case arising from the seizure of Olisa Agbakoba’s passport by the State Security Service. The case demonstrates the importance of a lawful basis when state authorities interfere with constitutionally protected movement.

National Security and Fundamental Rights

National security is another area in which constitutional rights can come under serious pressure.

But national security is not a magic phrase that automatically extinguishes constitutional rights.

In Dokubo-Asari v Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320, the Supreme Court considered bail in the context of serious national-security concerns. The decision illustrates that, in appropriate circumstances, the courts may give substantial weight to national-security considerations when determining whether a person’s liberty should be restricted.

The important point is that such decisions are made within the legal framework and circumstances of the particular case. It does not establish a general rule that government may disregard fundamental rights whenever it invokes national security.

The Courts Are Central to Enforcement

The Constitution does not merely declare fundamental rights. It also provides a mechanism for enforcing them.

Section 46 provides that a person who alleges that a provision of Chapter IV has been, is being, or is likely to be contravened in relation to him may apply to a High Court in the relevant State for redress.

The court has original jurisdiction to hear the application and may make orders, issue writs and give directions that it considers appropriate for enforcing the person’s constitutional rights.

Section 46(3) empowers the Chief Justice of Nigeria to make rules regulating the practice and procedure for such applications.

The resulting Fundamental Rights (Enforcement Procedure) Rules 2009 are the principal procedural rules governing fundamental-rights enforcement. The Rules were designed to make rights enforcement less technical and more accessible, and they also cover enforcement of rights under the African Charter on Human and Peoples’ Rights as domesticated in Nigerian law.

The African Charter Also Matters

Fundamental-rights litigation in Nigeria is not confined exclusively to Chapter IV of the Constitution.

In Abacha & Ors v Fawehinmi (2000) 6 NWLR (Pt. 660) 228, the Supreme Court recognised the enforceability in Nigeria of the African Charter on Human and Peoples’ Rights, which had been domesticated into Nigerian law.

The decision remains important because it demonstrates that rights protection in Nigeria can also involve an international human-rights instrument that has acquired domestic legal force through domestication.

What This Means for the Ordinary Citizen

The practical lesson is straightforward.

A citizen does not lose his fundamental rights merely because the government, police or another public authority takes an action against him.

At the same time, a citizen cannot assume that invoking a fundamental right automatically makes every restriction unlawful.

The Constitution itself establishes the framework.

Where a right is restricted, the legality of the restriction may depend on the specific constitutional provision involved, the existence of enabling legislation, the circumstances of the interference and whether the constitutional requirements for the restriction have been satisfied.

That distinction is important in a constitutional democracy.

Fundamental rights are protections against arbitrary government action, but they operate within a constitutional system that also recognises public order, security, public health, the administration of justice and the rights of other people.

The real protection offered by the Constitution is therefore not that every individual can do anything without restriction. It is that restrictions on constitutionally protected rights must themselves remain subject to law and constitutional standards.

For the citizen, that means knowing both sides of the constitutional equation: know the right, but also know the lawful limits placed on that right.