Name: Abdulmuthalib A.

Lawal
Critically discuss the Nigeria constitutional Provision on Human Rights, with
Particular Reference to its Applicability

Abstract

Human rights have enjoyed tremendous attention and expansion at the global level. To
concretize and energise human rights protection at national level, virtually all national
constitutions embody human rights either in their preamble or substantive provisions. In
Nigeria, human rights are embodied in two separate chapters, encapsulating both the civil
and political rights and the economic, social and cultural rights. This paper undertakes a
critical content analysis of the provisions of human rights in the 1999 Nigerian
Constitution with particular reference to its applicability. It raises pertinent issues and
problems in some provisions which negate and undermine human rights goal and
jurisprudence. today , human rights issues have not only become a global concern but
remarkable interest aimed at protecting and promoting universal respect for, and
observance of, human rights has continually been shown at the international, regional and
national levels. Indeed “the issue of human rights, in the recent past, has penetrated the
international dialogue, become an active ingredient in interstate relations and has burst
the sacred bounds of national sovereignty.” The formation of the United Nations
Organisation and the promulgation and adoption of the Universal Declaration of Human
Rights provided a firm foundation for the historical developments and globalisation of
human rights. 
Introduction

In Nigerian Constitutions, beginning from the post-independence constitution, due

attention has always been given to the issue of human rights. In the 1960 independence
Constitution, 1963 Republican Constitution and 1979 Constitution, provisions were
made for human rights protection. Further, in the 1999 Constitution (as amended) two
Chapters, spanning 26 (twenty six) sections are devoted to human rights subject. The
need for constitutional provisions for human rights cannot be over-emphasised because,
it is the state, with its various institutions which is primarily responsible for
guaranteeing the implementation and enforcement of these rights in respect of its
citizens and all those coming under its jurisdiction. Often, the primary institutions, the
legislature, the executive and the judiciary are set up in the constitution. Indeed, it has
been observed that: “any protection system presupposed recognition of human rights in
the basic texts which reflect the constitution of each state. When incorporated in the
highest ranking national legal instrument, human rights and the principles governing
them enjoy the greatest authority and security in both their definition and their
guaranteed observance.

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Concept of Human Rights

The concept of human rights has been viewed from different political, sociological and
philosophical perspectives. Socio-politically, human rights is a concept which regards
human beings as having universal rights, or status, regardless of legal jurisdiction, and
other localizing factors, such as ethnicity and nationality (Wikipedia, 2006).
Philosophically, as observed by Hill (2006), human rights are based on social contract
theories and their conception of natural rights. According to Forsythe (2000), human
rights refer to the supposed basic rights and freedoms to which all humans are entitled.
Murray (2006), form anarcho-capitalist orientation, explained human rights as a
condition in which person’s ownership rights to his body and legitimate property rights
are neither invaded nor aggressed against by person, group of persons, or government.
In a domestic sense, the concept of human right refers to safeguards for the individual
against arbitrary use of power by the government in relation to the following: a. the
wellbeing of individuals; b. the freedom and autonomy of individuals; and c. the
representation of the human interest in government. In addition, the concept of human
rights deals with small subset of values that should be available for implementation by
individual, other individuals, or government. These values are clearly stated in the
constitution and are based on the legal and political traditions of every country including
Nigeria.

Constitutional Provisions on Human Rights under the 1999 Nigerian

Constitution

It can be rightly asserted that one of the greatest objectives of the post-independence
Nigerian Constitutions is the protection and promotion of human rights.  The preamble
to the 1999 Constitution unmistakably set the tone by dedicating itself to promote “good
government and welfare of all persons on the principles of freedom, equality and
Justice”. Apart from the preamble, chapters two and four of the Constitution extensively
deal with human rights issues.  While chapter two is captioned, Fundamental Objectives
and Directive Principles of State Policy, chapter four is entitled, “fundamental rights”. 
Under the Fundamental Objective and Direct Principles of State Policy, the second
generation rights, consisting of economic, social and cultural rights are extensively set
out in sections 13 to 21.  These rights are predicated on the necessity for the material
well-being of the citizenry with the state playing a pivotal role.  These rights which are
essentially equalitarian and egalitarian in character are rooted on the belief that the

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attainment of certain level of social and economic standard is a necessary condition for
the enjoyment of the civil and political rights. 

Accordingly, these rights require affirmative governmental action for their enjoyment. It
is not considered imperative to discuss or set out the full text of the rights guaranteed
under the Chapter iv.  Accordingly, the rights will merely be spotlighted.  First however,
it is significant to note that the obligation of the state towards the effectuation and
realization of the rights is fully captured by section 13 which provides that: It shall be the
duty and responsibility of all organs of government, and of all authorities and persons
exercising legislative, executive or judicial powers, to conform to, observe and apply the
provisions of, (the fundamental objectives and Directive Principles of State Policy). 

The first fundamental objective enacted in chapter 2 is the political objective which is
that Nigeria shall be a state based on the principles of democracy and social justice. An
important section to the present exercise is section 16, which entrenches the economic
objectives of the nation. It guarantees, among others, the right to any person to
participate and engage in any economic activities, subject to necessary restrictions, and
obliges the government to protect the right of every citizen to engage in any economic
activities outside the major sectors of the economy.  The section further provides that the
state shall direct its policy towards ensuring; among others “that suitable and adequate
shelter, suitable and adequate food, reasonable national minimum living wage, old age
care and pensions, and unemployment, sick benefits and welfare of the disabled are
provided for all citizens.” 

By Section 17, the state is obliged to “direct its policy towards ensuring that all citizens,
without discrimination whatsoever have the opportunity for securing adequate means of
livelihood as well as adequate opportunity to secure suitable employment.  Further, the
state is obliged to ensure that the conditions of work are just and humane and that there
are adequate facilities for leisure and for social, religious and cultural life and that the
health, safety and welfare of all persons in employment are safeguarded and not
endangered or abused.  Government policy is also required to ensure that there are
adequate medical and health facilities for all persons and that there is equal pay for equal
work without discrimination on account of sex, or on any other ground whatsoever. By
section 18, Government is obliged to direct its policy towards ensuring that there are
equal and adequate educational opportunities at all levels and Government shall as and
when practicable provide free, compulsory and universal primary education, free
university education and free adult literacy programme. 

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Section 21 which deals with cultural rights  provides that the state shall protect, preserve
and promote the Nigerian cultures which enhance human dignity and are consistent with
the fundamental objectives provided for in the constitution.  It may be noted that by
section 6(6) (c) of the Constitution, the foregoing” rights are not justiciable”.
Consequently, no action may lie to enforce compliance. Unlike chapter ii, chapter IV of
the 1999 Constitution, guarantees a catalogue of enforceable fundamental rights. The
fundamental rights guaranteed under chapter iv are essentially, the civil and political
rights guaranteed in major international human rights instruments. The civil and
political rights form the bedrock of the first Generation Rights.  These rights are
libertarian in character as they relate to the sanctity of the individual and his rights
within the socio-political milieu in which he is located.  The rights seek to protect and
safeguard the individuals, whether alone or as a group, against the abuse of power,
especially by political authority.

The Constitution of the Federal Republic of Nigeria 1999 as amended in 2011 made
provision for fundamental rights in chapter IV (that is from Sections 33 to 46)
provisions for.

1. Right to life - Section 33 (1999 constitution) every person has a right to life, and no one
shall be deprived intentionally of his life, save in execution of a criminal offence of which
he has been found guilty in Nigeria.

2. Right to dignity of human person - Section 34 (1999 Constitution) Every individual is

entitled to respect for the dignity of person and accordingly no person shall be subject to
torture or to inhuman or degrading treatment.  

3. Right to personal liberty - Section 35 (1999 constitution) every person shall be entitled
to his personal liberty and no person shall be deprived of such liberty.  

4. Right to fair hearing - Section 36 (1999 constitution) In the determination of a

person's civil rights and obligations, every person shall be entitled to fair hearing.

5. Right to private and family life - Section 37 (1999 constitution) the privacy of citizens,
their homes, correspondences and telephone conversations is guaranteed and protected.

6. Right to freedom of thought, conscience and religion - Section 38(1999

constitution)Every person shall be entitle to freedom of thought, conscience and religion,
including freedom to change his religion or belief.

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7. Right to freedom of expression and the press- Section 39 (1999 constitution) every
person shall be entitled to freedom of expression, including freedom to hold opinions.

8. Right to peaceful assembly and association - Section 40 (1999 constitution) Every

person shall be entitled to assemble freely and associate with other persons or political
party.

9. Right to freedom of movement - Section 41 (1999 constitution) Every citizen in Nigeria

is entitled to move freely throughout Nigeria and to reside in any part thereof.

10. Right to freedom from discrimination - section 42 (1999 constitution) No Nigerian

shall be discriminated upon on the basis of his community, ethnic group, sex, place of
origin and politician opinion.

11. Right to acquire and own immovable property anywhere in Nigeria - Section 43 (1999
constitution) Every Citizen shall have right to own immovable property anywhere in
Nigeria.

12. Right against compulsory acquisition of property - section 44 (1999 constitution) The
above are fundamental human rights enshrined in the 1999 constitution and accorded to
all Nigerians.

It is pertinent to point out that rights to shelter, rights to health, rights to work rights to
food and the rights to a clean environment are all enshrined in chapter 2 of the
constitution. It therefore means that government has a duty and responsibility to ensure
that these social welfare programmes as set out under chapter 2 therein are
implemented. To an average Nigerian, the rights to food may mean that it is government
responsibility to provide food to the citizens. The rights to health means that government
provides free health care services to all. The rights to shelter means that government
provides adequate housing to all. Rights to education means that government provides
free education at all levels to the people.

Our government has failed us in the provision of basic needs such as food, security and
welfare. Expectedly, a larger percentage of Nigerians live in poverty and to such people,
the right to food is by far the most important right. This is what played out in the Ekiti
Governorship election. We see customized bags of rice being distributed in the State of
Osun as well. It is pathetic that the responsibility of our government to protect these
rights is ignored and we have resigned to stomach infrastructure as a bailout. To what
end? Our people are kept in perpetual poverty so that our recycled political class will
remain unchallenged.

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The right to freedom of expression, right to peaceful assembly and association and right
to freedom from discrimination are classified as fundamental rights but in practice, there
have been actions antithetical to these basic ‘inalienable rights’. Our political leaders
have overtly and covertly fanned the embers of religious discord and harass people to
prevent them from expressing their thoughts. While these rights are inalienable, they are
not absolute as one person’s right stops where that of another begins.

It could be said that, to some extent, corruption has hampered the full implementation of
the Economic Social and cultural rights in Nigeria. Apart from the issue of corruption,
other factors militating against the actualization of Economic Social and cultural rights
include the devastating historical antecedents of African countries including Nigeria
which factors like colonialism, party systems and political mandates had negative effects
on the actualization of the Economic Social and cultural rights. For instance colonial rule
destroyed the traditional institution and relationship that protected people; imposed
authoritarian government and reduced the rights exercised by individuals, conditioning
Africans to these repressive ways; left behind, disastrously ill-structured economies and
societies riddled with ethnic, social, economic and political divisions; and imposed
boundaries that were arbitrary and incompatible with traditional social structures.

Reference to Applicability of human right in Nigeria

The right as enumerated above are rights in the first generation rights context. In
Nigeria, the process of protection and application of this rights may be classified as
conventional and unconventional, and orthodox and unorthodox ways. The orthodox
ways are the procedures provided by the Law. They are regularly adopted in seeking
relief against an alleged infringement of right. These include invocation of judicial
powers and the recourse to Police Enforcement. Mediation can be classified as an
unorthodox procedure.

The 1999 Constitution of the Federal Republic of Nigeria provides for the cause of action
in matters of Enforcement of Fundamental Human Rights in Section 46(1). Section 46(1)
provides any persons who alleges that any of the provisions of this chapter has been, is
being or likely to be contravened in any State in relation to him may apply to a High
Court in that state for redress.

Human Rights activists, advocates or groups as well as any non- government

organization who may institute Human Rights application on behalf of any potential
applicant.

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By the new rules the era of inhibition on issue of locus standi is gone considering that the
applicant no longer needs the leave of the court to apply for a redress for the violation of
his Fundamental Rights, the cases of Anzaku V. Gov. Nassarawa State, Chukuma V. C. O.
P., and Igwe V. Ezeanochie, Onah v Okenwa are good examples of a group or class of
persons, Associations and individual’s enforcement of Fundamental Rights as envisaged
in paragraph 3 (e) (i), (ii), (iv) and (v) of the Preamble to the enforcement rules 2009.

In Anzaku V. Gov. Nasarawa State. The Executive Governor of Nasarawa State

purportedly in June 1999 issued policy statement directing all unified Local Government
Staff of the State serving in Local Government Council other than their Council of origin
to relocate to their Local Government Councils on their existing rank and status. Staff of
various Councils who were not of Nasarawa State of origin were directed to remain
where they were.

In giving effect to the policy, Lafia Local Government Council deployed the 34 appellants
herein, who claimed it as their Council of origin, from Lafia to Nasarawa Eggon Local
Government Council, said to be their Local Government Council of origin. This was after
a long drawn and detailed screening of the Staff of Lafia Council by a Committee set up
by it for the purpose. The Committee, identified the appellants and some others as being
of Nasarawa Eggon Council refused to accept the appellants as being from their Council
when Lafia Council sent the appellants there.

The appellant regarded the policy and action of the Governor and his Government as a
breach of their Fundamental Rights entrenched in the 1999 Constitution and they
applied to the High Court of the State for the enforcement of their said right. The trial
Court heard the Appellants’ application on the Affidavit evidence of the parties and
dismissed the application.

The Appellants were dissatisfied with the ruling and they appealed to the Court of
Appeal. The Court of Appeal considered Section 42 of the Constitution of the Federal
Republic of Nigeria, 1999 and allowed the appeal.

Chukwuma V.C.O., the Appellant who were the Plaintiffs belonged to a Social Cultural
Association known as lgbo Community Association, which was meant to promote the
welfare of its Members resident in kwara State.

The Association was to host a meeting of lgbo Delegates Assembly which comprised of all
the lgbo Community Associations in the Northern States of Nigeria in Ilorin at a private
hotel, called Yebumot Hotel.

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On the scheduled day of the meeting, the officers, men and agents of the Respondent in
this case came to the venue of the meeting and forcefully dispersed the Appellants and
the Members from the venue of the meeting and sealed off the venue.

The Appellants aggrieved by the action of the Respondent instituted an action at the
Federal High Court, Ilorin seeking a declaration that the action of the Respondent was a
violation of their Constitutional Right of Association Freedom of Movement and
Assembly; a claim for damages and an injunctions restraining the Respondents from
stopping, intimidation or harassing the Appellants from holding their meeting in Kwara
State.

The Appellant lost both at trial Court and Court of Appeal, when the court considered
section 45 of the 1999 Constitution of Federal Republic of Nigeria, and held that the
Police was right to have sealed up the premises for the failure of the Appellant to seek for
Police permit and that the Hotel was a public place subject to Public Order Act.

In the case of lgwe V Ezeonochie the Appellants were members of the Federal Trans-
Nkissi Residents Association which was formed in 1998. However in 2001 some
members of the Association together with the Respondents formed a new and rival
association in the area where members of the Federal Trans-Nkissi Residents
Association Onisha lived. The rival

Association was called the Federal Low-cost Estate Housing Resident Association. The
Respondents then approached some of the Appellants to be members of the new
association, but they refused and choose to continue their membership of the Federal
Trans- Nkissi residents association, as a result of the refusal of the Appellants to be
members of the new association, the Respondent resorted to the use of Police, Vigilante
Men and hired Armed Men to harass, threaten, intimidate and terrorize the Appellants
and to compel them into membership of the Federal Low-cost Housing Estate Residents
Association.

The Appellants were further warned against their continuing declaration of the Federal
Trans-Nkissi Residents Association as opposed to the new association of Onitsha and
were forced to pay their Security Levy to the new association.

The Appellants approached Anambra State High Court for the enforcement of their
Fundamental Rights to freedom of association, freedom of movement, freedom of
expression and right to dignity of their persons. They lost on the ground that it was
improperly commenced under the Fundamental Rights (Enforcement Procedure) Rules.

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They appealed to Court of Appeal which allowed their appeal. All the above named cases
are examples of the Individual and Institutional application of Fundamental Human
Rights

Conclusion

Human Rights are rights which all persons (Mankind) everywhere and at all times have
by virtue of being mortal and rational creatures. They are inherent in every human by
virtue of his humanity. There rights embrace a Wide Spectrum of Civil, Political,
Economic, Social, Cultural, Group Solitarily and Developmental Claims which are
considered indispensable to a meaningful human existence. They are demands or claims
that individuals or groups make on society some are protected by law and part of ex-lata
while others remain aspirations to be attained in future.

Human Rights that are Fundamental which are classed as first generation rights are the
ones enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria
and are entitled “Fundamental Human Rights” from Sections 33 - 46 of the Constitution,
these are rights that are enforceable in our Law Courts. Enforceable also in our Law
Courts is the African Charter on human and peoples’ rights which was ratified and re-
enacted as a Municipal Law by the National Assembly

Today, it can be seen that human rights are more than ever intimately inter-dependent
and this inter-dependence becomes especially evident in the face of systematic, large
scale, flagrant violation of “human rights” and freedom. The applicability of the
fundamental human rights is not a problem as they are justiciable. The problem is that of
the Fundamental objectives and Directive Principles contained in chapter 2 of the 1999
constitution (as amended).

These questions begging for answers are not exhaustive. It will definitely appear
pessimistic at this stage to conclude that we have no right. One would make bold to say
that there is hope especially when these rights are enshrined in the constitution which is
our ground norm (the mother of all laws) in Nigeria.

Reference

Aguda, O. (2000). Understanding the Nigerian Constitution of 1999. Lagos: MIJ

Professional Publishers Limited.

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Ahmed, M. (2007). International Human Rights In a Nutshell. (2nd Ed.). Ibadan: Spectrum
Books.

Cohen, I.T. (2008). Human Rights and International Law. Atlanta, Georgia: Emory
University. Constitution of the Federal Republic of Nigeria, 1999.

Donnelly, Jack (2003). Universal Human Rights in Theory & Practice. 2nd ed. Ithaca
& London: Comell University Press.

Forsythe, David P. (2000). Human Rights in International Relations, Cambridge:

Cambridge University press

Shute, Stephen & Hurley. Susan (eds.). (1993). On Human Rights: The Oxford.
Amnesty Lectures. New York: Basic Books.

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