AN APPRAISAL OF THE NATURE OF JURAL ENFORCEMENT OF THE FUNDAMENTAL HUMAN RIGHTS PROVISIONS IN CHAPTER IV OF THE 1999 CONSTITUTION OF NIGERIA

I.                   Introduction

One of the fundamental issues that, at the onset of the operation of the Constitution of the Federal Republic of Nigeria 1999, bedeviled the Chapter IV provisions and brought out several adverse observations was the scope of the chapter in terms of what civic and political relationships it regulated. The issue may be put in the form of a question: does Chapter IV regulate the constitutional relationship between one individual and another? This age-old question is revisited because of the fundamental impact it had on enforcement of rights in Nigeria which was evident in the resulting reluctance of persons whose rights have been abused by their fellow citizens to proceed by the Fundamental Rights (Enforcement Procedure) Rules before the issue was settled once and for all by the Supreme Court. Before this resolution however, at least one decision of the court in this regard raised suspicion that the postulations of the scholars of the Critical Legal Studies were after all accurate in their assertion that, far more frequently than is often acknowledged, justice bends to the waves of the powerful and influential at the expense of the poor and subaltern (in this case the working class).

The issue is even more significant now because a misunderstanding of the Supreme Court’s position will invariably result in further controversy. 


II.               Inspector Henry Ale  v. Gen. Olusegun Obasanjo

The objection that a private individual cannot offend against the provisions of Chapter IV of the Constitution was probably raised for the first time in Nigeria in 1989[1] to the shock of a judicial correspondent:-[2]

Although some of the rights may be restricted or qualified in consideration of the general well-being of the nation, it was somehow not quite normal to expect that the constitution, in granting the rights, only envisaged an interaction between the state and individuals and not between one individual and another. At least, not until Police Inspector, Henry Ale, sued former Head of State General Olusegun Obasanjo for N600, 000 over an alleged breach of his fundamental rights.

The Police Inspector had alleged before an Ota High Court that Obasanjo and his unknown agents had taken him to his farm for daring to stop his car, assaulted and battered him when he dutifully stopped Obasanjo’s car for police search at a road block and that this amounted to inhuman and degrading treatment which contravened his right to the dignity of the human person and personal liberty. On July 6, 1989 Justice Adewale Oduntan rescinded the leave he had granted Ale to formally apply for the enforcement of his fundamental rights bowing to the force of legal arguments by Obasanjo’s counsel, the fulcrum of which was that Ale’s bid to enforce his fundamental rights “was not maintainable or sustainable, affecting as it was, an individual rather than the State or its agencies”.[3] He distinguished constitutional rights from common law rights in that constitutional rights are protected against infringement by the state, state action or state agencies. Though, Ale’s counsel protested vehemently that the provisions in Chapter IV  could be violated by a private individual and that “mere constitutional theories as propounded by (Obasanjo’s counsel) without the backing of constitutional provisions can never enjoy judicial acceptance…” the trial judge found justification in the dictum of  Uche Omo, J.C.A.[4] and held that in his view, “the plaintiff respondent should have instituted this action in court for assault and battery and false imprisonment rather than under the Fundamental Rights (Enforcement Procedure) Rules, having regard to the fact that the act of the defendant applicant (Obasanjo) complained of had ceased to exist”.[5] He struck out the claim.

III.            A Critical Appraisal of the Chapter IV Provisions
It is submitted that there is hardly anything in Chapter Four to suggest that it is exclusively a covenant between state and citizen. What can be said is that general rights have been disclosed in the Chapter with restrictions made where necessary at the behest of and for the proper functioning of the state. For instance, it is hard to imagine that the provision in Section 33(2)(a) that a person may not be regarded as having been deprived of his right if he dies as a result of necessary but reasonable force for the defence of any person from unlawful violence or for the defence of property, can be restricted to state action. Anyone clearly may rely on or take advantage of this restriction. It is not a restriction limited to acts perpetrated by the state. Further, an imperative question that would arise in the circumstances of the subsection, assuming the survivors of the deceased were to contemplate an action over what they perceive to be the unlawful killing of the deceased, is - against who is that action to be brought? The proper defendant can certainly not be the state which has not in any way partaken of the transaction. It would have to be the killer who may well be a private citizen. Chand, observes correctly in the view of this work, that “this right (to life) is available against all – the State or private individuals”.[6] This is essentially the position of this work – that whether the particular right is as against the state or against both the state and the individual is basically to be gathered from the wording of the particular provision. Citing several sections of the Penal Code and Criminal Code, Chand[7] lists several instances in which a killing may be justified in defence against rape or assault or of a dwelling house against thieves, robbery, house breaking by night, mischief by fire committed on a dwelling house or any building, tent or vessel etc “in such circumstances as may reasonably cause apprehension that if such right of private defence is not used, death or grievous hurt will be the consequence”.[8] (emphasis added).
Another instance is Section 33(1) which states a general right that is not necessarily restricted in scope to acts perpetrated by the state. There is nothing in the language of subsection (2)(a), (b) and (c) to suggest that the limitations there placed on the right to life are specifically for the benefit of the state. Similarly, there is nothing in the language of Section 34(1) (a) (b) and (c) to suggest that it is a covenant between state and citizen exclusively. The restrictions on the right placed under subsection (2) are however clearly largely[9] placed for the benefit of the state and from the language are placed there as restrictions on the general right.[10] It however does not derogate from the general right as a contract between private citizen and private citizen. Section 35(1) also provides for a general right and then proceeds to list a number of exceptions for the benefit of the state. In fact, it can be canvassed that the language in paragraph (d) of subsection (1) is clearly not indicative that a parent may not take benefit of the restriction there for the purpose of his child’s education or welfare. Running from subsection (2) through to (7) of Section 36, the Chapter by the application of the words “arrested or detained” and the general context, imports the implication that the rights accruing there avail against the state and its agents. This is made even clearer by Section 35(6) which provides that:-
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
That tells, not only that this “arrest and detention” covenant in the contemplation of the Constitution is one strictly between state and citizen but, more significantly, that where it is so, the Chapter says so expressly. Section 36(1) is even more illustrative. “In the determination of his civil rights and obligations”, the section says, “including” (italicised to emphasise it as the operative word) any question or determination by or against any government or authority …” It is stated unequivocally that any dispute by or against the state is merely a component of a larger body of disputes involving his civil rights and obligations. The word “includes” has been severally interpreted by the highest court of the land. The decisions ring the same to the effect that the word is used in order to enlarge the meaning of the words and phrases occurring in the body of the statute and that it encompasses the matters or things stated or enumerated and others which are similar to them.[11]  Thus, under Section 36(1) there are other angles to the determination of the citizen’s civil rights and obligation beyond questions by or against any government or authority. For instance, if in the determination of a citizen’s right, another citizen bribes the judge to skew his judgment, it may well be classified under the criminal charge of “obstructing the course of justice”. But under what head of private law is the injured citizen to proceed against the offending citizen? There are then clearly spheres outside that of the state and citizen that Chapter IV is designed to regulate. Section 36(2) further regulates the interest of the state as a “judge” in the determination of a question that may arise as between it and the citizen. Subsections (4) through to (12) leave no doubt that they relate to disputes of a criminal nature as between the state and the citizen. There is similarly no suggestion in the wordings of sections 37 and 38 to indicate that they are legislated exclusively to regulate the relationship between the state and the citizen. Nor is there any indication in the words of Section 39(1) which however restricts the right for the benefit of the state.[12] The proviso to Section 40 regulates the right to assembly and association at the behest of the state as the subsection (2) does to Section 41. Section 42(1) concerning discrimination emanating from governmental action is clearly intended to regulate the state-citizen cohabitation though there is no indication that subsection (2) can be narrowed down to that relationship. The wording of Section 43 is indicative of a right stated generally but regulated by the general law[13] under Section 44 and in one regard restricted specifically for the benefit of the state.[14] Apart from the restrictions to the advantage of the state in Section 45(1) there is nothing to suggest in Section 46 that the special jurisdiction conferred on the High Court relate exclusively to disputes between citizen and state.
Hand in hand with the foregoing arguments, Section 6(6) does not support the argument of Obasanjo’s counsel, for paragraph (b) of that section clearly grants the court jurisdiction over “all matters between persons”. It is also a strange position that the right to the relief can be blighted by the termination of the act complained of in view of Section 46(1) which clearly gives the right to approach the court when a person alleges that any of the rights contained in the Chapter “has been, is being or likely to be contravened”. Before the judgment in Ale v. Obasanjo, the general view was that this mattered only when the party complaining was asking for an injunction to restrain the other party from further perpetuating the act complained of. No wonder that Sanyaolu observed that the judge “did not quite specify in his ruling if he was adopting the largely American doctrine professed” by Obasanjo’s counsel and that he concluded in any case that the matter was far from closed for “its curious element”.[15]

IV.             Reliance on American Writings by the Decision in Ale v. Obasanjo
Though the Court counted heavily on the American writings, it is suggested that modern thinking would back Chapter Four as protecting a citizen against the wrongs of both the state and his fellow citizens. None other than an acclaimed modern positivist thinker has stated[16] this idea. He adds:
“… it is not only the state which is the potential enemy of fundamental rights, but that this terror against fundamental rights can also come from the citizens themselves (…) That is why the democratic civil society is also in need of the state …”[17] (emphasis added)
It is submitted that the ruling in Ale v. Obasanjo[18] had simply failed to note one of the salient principles of law: any ouster of the court’s jurisdiction must be established from the clear words of the statute.[19] Indeed while observing that the ordinary rules of private law may prove more effective than fundamental rights guaranteed in a written code,[20] the learned writers, Wade and Phillips, nevertheless add:
“… there must be watched jealously any encroachment upon the jurisdiction of the courts and any restriction on the subject’s right of access to them”.[21]

V.                Intervention by the Supreme Court

Quietly the years went by and in some decisions it would appear that the Supreme Court tacitly overruled Ale v. Obasanjo. For instance, though the issue did not directly arise there, its 1991 decision in Agbai & Ors.  v. Okogbue[22] was perhaps the earliest indication by the Supreme Court of its acquiescence in the view that Chapter IV was a covenant transcending the one merely between state and citizen to one between citizen and citizen.
Thankfully, in Abdulhamid v. Akar[23] the court has now held that where the violation of rights is perpetrated by non-state agencies such as individuals, the victim would have a right to proceed against the perpetrator as he would have had against the state. Said the Court:-

The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against state actions. It follows therefore that in the absence of clear positive prohibition which precludes an individual to assert a violation or invasion of his fundamental right against another individual, a victim of such invasion can also maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the state for a similar infraction”.[24]

The Court further held that a claim under the common law can properly be joined in an application under the special jurisdiction of the High Courts, where such a claim is secondary, ancillary or incidental to the complaint of a breach of fundamental rights. Thus, one has to scrutinise the claims well to see which is ancillary and which is the substantive/principal claim otherwise, as the court concluded, it would be incompetent to constitute such a claim as one for the enforcement of a fundamental right.

VI.             Concluding Remarks
It is logical to conclude, given the analysis in Section III of this article, that it is possible that most, if not all, rights claims can legitimately be made against both individuals and the State although in some instances, certain defences available to the State, in so far as it initiates restrictions on right, may not be available to an individual.[25] The safest course, however is to scrutinise each provision towards determining the appropriate party in the circumstances of each case. This would appear to be the hidden logic in the Supreme Court decision in Abdulhamid v. Akar.[26]



[1] Inspector Henry Ale v. Gen Olusegun Obasanjo (M/T/1/89).
[2] K. Sanyaolu, ‘When Fundamental Rights Cannot Be Enforced’, The Guardian (Lagos) August 9, 1989, p. 11.
[3] Sanyaolu, ibid.
[4] In Shugaba v. Minister of Internal Affairs (1982) 3 N.C.L.R. 998 that Section 42 (now Section 46) “provides a special process by which the individual can be protected against the tyranny of the government and/or its agents. By this process, the fundamental rights provided for in Chapter Four sections 30-40 of the Constitution can be safeguarded”.
[5] Sanyaolu, ibid.
[6] Chand, H.: Nigerian Constitutional Law, (Modinagar, India: Santosh Publishing House, 1981), p. 38.
[7] Ibid.
[8] Ibid. pp. 38-39.
[9] The word is used advisedly given that there is a marginal chance that the words of subsection (2)(d) and (e)(i) in alluding to “calamity threatening the life or well-being of the community” and “normal communal or other civic obligations of the well-being of the community” may place such responsibility on persons beyond the State. The facts and decision of the Supreme Court in Agbai v. Okogbue (1991) 9 – 10 S.C.N.J 49, 87 clearly indicate that this is a possibility.
[10] Subsection 2 reads, “(2) for the purposes of subsection (1) (c) of this section, "forced or compulsory labour" does not include - (a) any labour required in consequence of the sentence or order of a court; (b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of 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 communal or other civic obligations of 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  (emphasis added to denote the element of “State”).
[11] See Uhunmwangho v. Okojie & Anor. (1989) 12 S.C.N.J. 84, 96-97.
[12] The proviso to subsection (2). See also subsection (3).
[13] See subsection (2)(a) – (m).
[14] Section 44(3).
[15] Sanyaolu, op. cit.
[16] Sandkuhler, ibid. states, “At the very beginning of the age-old struggle for fundamental and human rights which ought really to be everyone’s birth rights, the issues were primarily rights of defence, the idea of guaranteeing freedom by law against state tutelage and repression. The addressee was – and still is – not the state in any abstract way, but rather its concrete institutions, inasmuch as they initiate restrictions on freedoms and violations of justice. These defence rights are intended to bolster, to guarantee the state – an obvious dilemma. Today we are confronted with quite a different situation: firstly, fundamental rights today are assuming even more the status of the individual’s rights of defence against oppression from non-state social forces. Secondly - whilst maintaining their function as defence rights – they have assumed the form of legal claims, rights in law granted mutually by the citizens within the state themselves. My thesis is that not only our human rights have undergone an alteration during this process, but also the very state itself. This transformation is in comparison to the classic power state so great that I speak of the new state or – to be more prudent - of the historic development to the new state” (emphasis added).
[17] Ibid.
[18] Supra.
[19] Shodeinde v. The Registered Trustees of the Ahmaddiya Movement (1980) 1 – 2 S.C. 225, Salami v. Chairman, L.E.D.B.& 3 Ors. (1989) 12 S.C.N.J. 130, 144, Kasikwu Farms Limited v. A – G., Bendel State (1986) 1 N.W.L.R. (Pt. 19) 695, Military Governor, Ondo State & Anor. v. Adewumi (1988) 6 S.C.N.J. 151, 160 – 161 and Barclays Bank v. Central Bank of Nigeria (1976) 6  S.C. 175, 188 read side by side with Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587, 595.
[20] Wade, E.C.S. and Phillips, G. G., Constitutional Law, 6th ed. (London, Longmans, 1960), p. 69.
[21] Wade, E.C.S. and Phillips, G. Godfrey, ibid, p. 70.
[22] Supra.
[23] (2006) 5 S.C. (Pt. 1) 44. 
[24] Supra at 59 per Akintan J.S.C., relying on Onwo v. Oko & Ors (1996) 6 N.W.L.R. (Pt. 456) 584, 603 and Ogugu v. The State (1994) 9 N.W.L.R. (Pt. 366) 1.
[25] See Sandkuhler, Op. cit (see footnote 16).
[26] Supra.
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