How Section 33 to 46 of the Constitution Protect Citizens

HOW SECTION 33 TO 46 OF THE CONSTITUTION PROTECT CITIZENS: A COMPREHENSIVE OVERVIEW OF FUNDAMENTAL HUMAN RIGHTS IN NIGERIA

The Constitution of the Federal Republic of Nigeria, 1999 (as amended), stands as the supreme law of the land, serving as the bedrock of democracy, good governance, and the protection of individual liberties. Chapter IV of this vital document, specifically Sections 33 to 46, is dedicated to fundamental human rights, outlining an extensive array of entitlements and freedoms that are considered inalienable and essential for the dignity and well-being of every Nigerian citizen. These sections are not merely aspirational statements; they are legally enforceable provisions designed to safeguard individuals from arbitrary actions by the state, its agents, and even other individuals.

This blog post will embark on a detailed exploration of each of these crucial sections, dissecting their provisions, examining their scope, and highlighting their practical implications for the protection of citizens’ rights in Nigeria. We will delve into judicial interpretations where relevant, consider the limitations placed on these rights, and ultimately, underscore the indispensable role they play in fostering a just and equitable society.

Understanding the Essence of Fundamental Rights

Before diving into the specifics, it’s vital to grasp the overarching philosophy behind fundamental rights. These rights are inherent, meaning they are not granted by the state but are possessed by individuals by virtue of their humanity. They are also inalienable, meaning they cannot be taken away, though their exercise can be reasonably limited in specific circumstances as prescribed by law. The Nigerian Constitution, by enshrining these rights, seeks to create a framework where individuals can live with dignity, express themselves freely, participate in society, and seek redress when their rights are violated.

Section 33: The Right to Life

Section 33 of the Nigerian Constitution declares that “Every person has a right to life, and no one shall be deprived intentionally 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 Niger¹ia.” This foundational right is the most paramount of all, as its absence renders all other rights meaningless.

The protection afforded by Section 33 is multifaceted:

• Prohibition of Arbitrary Deprivation of Life: The primary thrust is against unlawful killings. This provision seeks to prevent extrajudicial killings, arbitrary executions, and the use of excessive force by state agents. It emphasizes that life can only be taken through a lawful court order following due process for a criminal offense.
• Self-Defense and Defense of Property: Subsection 2 of Section 33 provides crucial exceptions, stating that a person shall not be regarded as having been deprived of their life if they die as a result of the use of such force as is reasonably necessary for:
  • The defense of any person from unlawful violence.
  • The defense of property.
  • Effecting a lawful arrest or preventing the escape of a person lawfully detained.
  • Suppressing a riot, insurrection, or mutiny.It is important to note that the force used must be “reasonably necessary” and proportionate to the threat. This prevents the arbitrary use of lethal force and requires a careful assessment of the circumstances.
• Beyond Direct Killing: While often interpreted in the context of direct deprivation of life, judicial pronouncements and scholarly opinions suggest a broader interpretation. The right to life can encompass the right to a healthy environment, access to basic necessities that sustain life (like food and healthcare), and protection from acts that indirectly threaten life, such as widespread insecurity or environmental degradation. This expansive view, though not always explicitly litigated, underpins the state’s responsibility to create conditions conducive to life.

Section 34: The Right to Dignity of Human Person

This section is a powerful bulwark against all forms of inhumanity and degradation. Section 34(1) states: “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 labour².”

Key aspects of this right include:

• Prohibition of Torture, Inhuman, and Degrading Treatment: This is a direct prohibition against all forms of physical and psychological abuse by state agents, particularly in detention facilities. It extends to preventing cruel, inhuman, or degrading punishment, and it demands humane conditions of detention. This provision is frequently invoked in cases of police brutality, mistreatment of suspects, and deplorable prison conditions.
• Prohibition of Slavery and Servitude: This part unequivocally outlaws all forms of forced labor and human trafficking. It reinforces the fundamental principle that no human being can be treated as property or subjected to forced labor.
• Prohibition of Forced and Compulsory Labour: While prohibiting forced labor, the section provides specific exceptions for:
  • Labour required in consequence of a court sentence.
  • Labour required of members of the armed forces or police in pursuance of their duties.
  • Labour required instead of military service for conscientious objectors.
  • Labour reasonably necessary in an emergency or calamity.
  • Normal communal or civic obligations.These exceptions are narrowly construed to ensure they do not undermine the core principle of freedom from forced labor.

Section 35: The Right to Personal Liberty

Section 35 guarantees personal liberty, declaring that “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…” This section is crucial for preventing arbitrary arrests and detentions.

The specific instances where personal liberty can be curtailed are meticulously outlined and include:

• Lawful Arrest and Detention: This refers to arrest or detention in execution of a court order, for reasonable suspicion of having committed a criminal offense, or to prevent the commission of a crime.
• Due Process Requirements: Crucially, the section mandates that any person arrested or detained must:
  • Be informed in writing, within 24 hours (and in a language they understand), of the facts and grounds for their arrest or detention.
  • Have the right to remain silent or avoid answering questions until after consulting with a legal practitioner or any other person of their choice.
  • Be brought before a court of law within a “reasonable time” (generally 24 hours if a court is within 40km, or 2 days in other cases).
  • If not tried within two months (for those in custody or not entitled to bail) or three months (for those on bail), they must be released, with or without conditions, unless further proceedings are brought against them.
• Compensation for Unlawful Detention: A significant aspect of Section 35 is the provision for compensation and public apology for any person unlawfully arrested or detained. This offers a vital remedy for victims of arbitrary state action.

Section 36: The Right to Fair Hearing

This is a cornerstone of justice and due process, ensuring that every individual has a fair opportunity to present their case before an impartial tribunal. Section 36(1) states: “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 a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Key components of the right to fair hearing include:

• Access to Courts and Tribunals: It guarantees access to a judicial or quasi-judicial body for the resolution of disputes concerning civil rights and obligations.
• Independence and Impartiality: The court or tribunal must be free from external influence and must not be biased towards any party.
• Public Hearing: Generally, court proceedings should be open to the public, fostering transparency. Exceptions exist, for instance, in cases involving minors or national security.
• Presumption of Innocence: Every person charged with a criminal offense is presumed innocent until proven guilty. This places the burden of proof on the prosecution.
• Right to Legal Representation: A person has the right to defend themselves in person or through a legal practitioner of their choice.
• Adequate Time and Facilities for Defense: Accused persons must be given sufficient time and resources to prepare their defense.
• Right to Confront Witnesses: The accused has the right to examine witnesses called by the prosecution and to call their own witnesses.
• Right to an Interpreter: If an accused person does not understand the language of the court, they are entitled to a free interpreter.
• Prohibition of Retrospective Legislation: A person cannot be convicted of an offense that was not a crime at the time it was committed.

Section 37: The Right to Private and Family Life

Section 37 guarantees the right to privacy, stating: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.” This right recognizes the importance of personal space and autonomy in a democratic society.

This right encompasses:

• Protection of Home and Property: Safeguards against arbitrary entry and searches of homes.
• Confidentiality of Communications: Protects correspondence, telephone conversations, and other forms of communication from unauthorized interception or disclosure.
• Respect for Family Life: Implies protection for the sanctity of family relationships and the right to establish and nurture a family.
• Limitations: This right, like others, is not absolute and can be limited in certain circumstances, such as for the prevention of crime, public safety, or public health, provided such limitations are prescribed by law and are demonstrably necessary in a democratic society.

Section 38: The Right to Freedom of Thought, Conscience, and Religion

This section is fundamental to intellectual and spiritual liberty. Section 38(1) states: “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 observance³.”

This right encompasses:

• Freedom of Belief and Change of Belief: Guarantees the liberty to hold any belief or no belief, and to change one’s religion or belief without coercion.
• Freedom to Manifest and Propagate Religion: Allows individuals to express their religious beliefs through worship, teaching, practice, and observance, both individually and collectively, in public or private.
• Religious Instruction in Education: Provides that no person attending a place of education shall be required to receive religious instruction or participate in religious ceremonies against their will or the will of their parent/guardian if the religion is not their own. It also protects the right of religious communities to provide religious instruction for their pupils in their own institutions.
• Prohibition of Secret Societies: Notably, Section 38(4) explicitly states that nothing in the section shall entitle any person to form, take part in the activity of, or be a member of a secret society. This reflects a societal concern about the negative impact of such organizations.

Section 39: The Right to Freedom of Expression and the Press

This is a cornerstone of democracy, enabling the free flow of information and ideas. Section 39(1) states: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

This right includes:

• Freedom to Hold Opinions: The right to form and hold personal views without external interference.
• Freedom to Receive and Impart Information: The right to seek, receive, and disseminate information and ideas through various media, including the press, broadcasting, and other means, without censorship.
• Freedom of the Press: Specifically protects the independence of the press and other media outlets.
• Limitations: This right is not absolute and is subject to limitations prescribed by law for purposes such as:
  • Protecting the rights and reputations of others (e.g., laws against defamation).
  • Maintaining public order, morality, and health.
  • Preventing the disclosure of confidential information.
  • Regulating broadcasting, telecommunications, and exhibitions.These limitations must be genuinely necessary in a democratic society and proportionate to the aim pursued.

Section 40: The Right to Peaceful Assembly and Association

This section is vital for civic participation and the formation of groups and organizations. Section 40 states: “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 interests.”

This right encompasses:

• Freedom of Peaceful Assembly: The right to gather publicly and demonstrate peacefully. This is crucial for expressing grievances, advocating for causes, and participating in public discourse.
• Freedom of Association: The right to form or join groups, clubs, trade unions, political parties, and other associations without undue interference. This allows individuals to collectively pursue shared interests and engage in collective action.
• Limitations: Like other rights, this can be subject to limitations in the interest of public order, defense, public safety, public morality, or public health, or for the purpose of protecting the rights and freedoms of others. Such limitations must be demonstrably necessary in a democratic society.

Section 41: The Right to Freedom of Movement

This section ensures the liberty to move freely within Nigeria and to leave and return to the country. Section 41(1) states: “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 therefrom.”

Key aspects include:

• Internal Movement and Residence: The right to travel freely within any part of Nigeria and to choose one’s place of residence.
• Freedom to Leave and Return: The right to depart from Nigeria and to re-enter the country.
• Limitations: This right can be restricted by laws reasonably justifiable in a democratic society for purposes such as:
  • Preventing the commission of a criminal offense.
  • Protecting public health or public order.
  • Implementing a court order.
  • Regulating the residence of non-Nigerians.

Section 42: The Right to Freedom from Discrimination

This section is a crucial anti-discrimination provision aimed at promoting equality and non-discrimination. Section 42(1) states: “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 citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions 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 citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.”

This provision targets discrimination based on:

• Community/Ethnic Group: Prevents discrimination based on tribal or ethnic affiliations.
• Place of Origin: Safeguards against discrimination based on where someone comes from within Nigeria.
• Sex: Prohibits gender-based discrimination.
• Religion: Ensures religious equality and prevents discrimination based on religious belief or non-belief.
• Political Opinion: Protects individuals from discrimination based on their political views.
• Affirmative Action: While promoting equality, the section does not necessarily preclude laws that are designed to redress imbalances or disadvantage for certain groups, provided such measures are genuinely aimed at achieving equality and are not discriminatory in themselves.

Section 43: The Right to Acquire and Own Immovable Property

This section protects property rights, stating: “Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.”

This right is fundamental to economic security and personal autonomy, allowing individuals to own land and buildings. However, it is qualified by “subject to the provisions of this Constitution,” which leads us to Section 44.

Section 44: Compulsory Acquisition of Property

While Section 43 guarantees property rights, Section 44 outlines the conditions under which the government can compulsorily acquire private property. It states that no movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things:

• Provides for the payment of prompt compensation: This is a crucial safeguard, ensuring that property owners are adequately compensated for their loss.
• Gives to any person claiming such compensation a right of access to the court: This allows individuals to challenge the adequacy of the compensation offered by the government in a court of law.The purposes for which property can be compulsorily acquired are typically for public use, public purpose, or in the public interest.

Section 45: Restriction on and Derogation from Fundamental Rights

This section acknowledges that fundamental rights are not absolute and can be limited under certain circumstances. Section 45(1) states: “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; or (b) for the purpose of protecting the rights and freedom of other persons.”

Key points regarding restrictions and derogations:

• Legality: Any restriction must be prescribed by law.
• Legitimacy: The restriction must serve a legitimate aim (defence, public safety, public order, public morality, public health, or protection of others’ rights).
• Necessity in a Democratic Society: The most stringent test is that the restriction must be “reasonably justifiable in a democratic society.” This implies that the restriction must be proportionate to the aim, necessary in a free and open society, and not arbitrary or excessive.
• Derogation during Emergency: Section 45(2) allows for derogation from certain rights during a period of emergency or war, provided such measures are strictly required by the exigencies of the situation and do not involve discrimination. However, even in emergencies, the rights to life, dignity of the human person, and fair hearing are generally considered non-derogable.

Section 46: Special Jurisdiction of High Court and Legal Aid

This section is of immense practical importance as it provides the mechanism for the enforcement of fundamental rights. Section 46(1) states: “Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, may apply to a High Court in that State for redress.”

This section offers crucial avenues for redress:

• Direct Access to High Court: It grants individuals direct access to the High Court for the enforcement of their fundamental rights, bypassing lower courts if necessary. This is a powerful provision as High Courts have inherent jurisdiction and can grant a wide range of remedies.
• Wide Range of Remedies: The High Court has the power to “make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions to which the person who makes the application may be entitled.” This includes declarations, injunctions, orders of mandamus, certiorari, prohibition, and monetary compensation.
• Legal Aid: Section 46(2) allows for the National Assembly to make provisions for legal aid for those who cannot afford legal representation in fundamental rights cases. This is crucial for ensuring access to justice for all, regardless of their economic status.

Challenges and the Path Forward

While Sections 33 to 46 provide a robust framework for the protection of citizens’ rights, the practical realization of these rights in Nigeria often faces significant challenges:

• Awareness and Literacy: A significant portion of the population remains unaware of their constitutional rights, making them vulnerable to violations.
• Enforcement Deficits: Despite the clear provisions, enforcement can be hampered by institutional weaknesses, corruption, and a lack of accountability among some state agents.
• Judicial Backlogs: The sheer volume of cases can lead to delays in justice, undermining the principle of “fair hearing within a reasonable time.”
• Executive Non-Compliance: Instances of executive disobedience to court orders can erode public trust in the judiciary and the rule of law.
• Socio-Economic Factors: Poverty, inequality, and a lack of access to basic necessities can indirectly impact the effective enjoyment of fundamental rights.

Conclusion

Sections 33 to 46 of the 1999 Nigerian Constitution are not mere legal pronouncements; they are the fundamental covenants between the state and its citizens, guaranteeing a spectrum of essential rights from the right to life and dignity to the freedoms of expression, assembly, and movement. They represent Nigeria’s commitment to upholding human rights as enshrined in international instruments.

The effectiveness of these provisions, however, hinges on continuous vigilance, robust judicial activism, increased public awareness, and a collective commitment from all arms of government and civil society to uphold the rule of law. By understanding and asserting these fundamental rights, Nigerian citizens become active participants in their protection, paving the way for a society where justice, dignity, and liberty are not just constitutional ideals, but lived realities for all. The ongoing struggle for full realization of these rights underscores their enduring importance and the continuous need for advocacy, reform, and accountability.