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.