Subsection 45(1) Of The Nigerian Constitution: A Limitation Clause For The Siracusa Principles, Or An Unconstitutional Judicial Construct?

 

Subsection 45(1) Of The Nigerian Constitution: A Limitation Clause For The Siracusa Principles, Or An Unconstitutional Judicial Construct?

Judicial Construct Of Limitation Clause Into The Nigerian Constitution.

Fredrick Ikenna Awkadigwe*

Abstract 

Nigerian courts have consistently determined that subsection 45(1) of the Constitution of the Federal Republic of Nigeria (CFRN) is a limitation clause on the fundamental constitutional rights of persons in Nigeria. Nigerian courts consequently apply the Siracusa Principles to justify the limitation to or criminalization of guaranteed fundamental constitutional rights of persons. The objective of this paper is to determine whether subsection 45(1) of the CFRN, as held by the courts, is indeed a fundamental right limitation clause construed by the application of the Siracusa Principles; or an unconstitutional judicial construct that harms guaranteed fundamental rights. The methodology is socio-legal. The paper finds that subsection 45(1) of the CFRN has no fundamental right limitation capability, and that the subsection only makes it possible for advantaged and disadvantaged persons in Nigeria to equally partake in the enjoyment of the fundamental constitutional rights entrenched in sections 37-41 of the CFRN. The paper recommends that Nigerian courts should adopt the principle of ad hoc judicial balancing as a national constitution without limitation clause, and jettison the current Siracusa Principles which have no connection whatsoever to the actual provisions of subsection 45(1) of the CFRN.

Keywords: Nigerian Constitution, Siracusa Principles, Ad hoc judicial balancing, Guaranteed fundamental right, Limitation clause.

1. Introduction 

Fundamental constitutional rights are those rights of persons which stand above the ordinary laws of the land, and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence. According to the Court in Asemota v Yesufu & Anor, fundamental right is an undoubted inalienable right which corresponds to a jus naturale, a natural law. The fundamental rights are inserted into the Constitution of the Federal Republic of Nigeria (CFRN) in sections 33-45 of the CFRN, while section 46 of the CFRN provides for the enforcement of the rights. The fundamental constitutional rights under the CFRN include; right to life; dignity of human person; liberty, fair hearing; private and family life; freedom of thought, conscience and religion; freedom of expression and press; peaceful assembly and association; movement; freedom from discrimination; right to acquire and own immoveable property. Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. It is trite that once an infringement of fundamental right is proved or established the award of compensation in form of monetary damages, whether claimed or not, follows. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of the Fundamental Human Rights procedure. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the fundamental rights of individuals from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed.  

The protection afforded fundamental rights by inserting and preserving them in national constitutions and international conventions shows the monumental importance attached to the protection of fundamental rights in different parts of the world. Because fundamental rights are written into the national constitutions, the rights, like every other right emanating directly from the provisions of the CFRN, cannot be controlled by the legislatures unless with a constitutional approval. Any right conferred or vested by the CFRN cannot be taken away or interfered with by the executive, any other legislation or statutory provision, except by the CFRN itself. Any law purportedly made which abrogates a right conferred by the CFRN will be void to the extent of its inconsistency. The constitutional power of legislatures to make ordinary laws is not absolute. In Lawrence v. Texas, the court invalidated criminal sodomy laws in 14 states of the United States, holding that intimate consensual sexual conduct is part of the liberty protected by the substantive due process under the Fourteenth Amendment. In Griswold v. Connecticut, the US supreme court relied upon substantive due process as a principal basis for invalidating a law barring the use of contraceptives by married couples. Just like legislative powers, fundamental rights are also not absolute. For instance, the right to personal liberty guaranteed under section 35(1) of the CFRN 1999 is not absolute but, by the provision of section 35(1)(c) of the CFRN, is subject to the powers of the police to arrest a person who has committed or is suspected to have committed a criminal offence. A fundamental constitutional right is said to be guaranteed where its provision or an aspect of its provision cannot be manipulated by the legislatures.

However, although guaranteed fundamental rights are absolute because they cannot be manipulated by the legislatures, yet the enjoyment of guaranteed fundamental rights is not to be absolute because the rights are usually under graded levels of control, even when they are guaranteed. For instance, fundamental right to privacy in section 37 of the CFRN is expressed in absolute terms, constitutionally guaranteed, and cannot be legislatively manipulated under the section 37 of the CFRN. Yet, the exercise of that right is not absolute when confronted with some executive powers under other provisions of the CFRN. The control of the exercise of guaranteed fundamental rights ranges from ordinary legislative control, constitutional control, executive control and judicial control, in an ascending order of the strength of guarantee of the fundamental rights. The judicial position that once a person lives in a community, his rights stop where the rights of the other members of the community begin, has to be placed in the proper context. This position of the courts is not borne out of any constitutional provision. Instead, the CFRN envisages situations where fundamental rights of persons dig into persons, hence the promulgation of section 6 and 36 of the CFRN for the judicial, not legislative, resolution of such digs. In other words, while there are areas where the CFRN empowered the legislatures to make ordinary laws for fundamental rights, those areas not mentioned are, unless sanctioned otherwise by the CFRN itself, left for judicial balancing of the rights. For instance, section 35(1) of the CFRN is categorical about the cases that legislatures can cover with ordinary laws in limitation of personal liberty. It simply means that any case outside the listed cases cannot be used to limit personal liberty in Nigeria. Thus, the failure of a person to carry out an obligation that is not imposed by an ordinary law, even if the curtailing of the liberty right is permitted by an ordinary law, cannot be used to curtail personal liberty. The case and the procedure permitted by ordinary law must coexist before they can be used to limit personal liberty. Thus, an ordinary law cannot empower the arrest of a person without an ordinary law creating an obligation that the person needs to carry out within the different outlined cases in section 35 of the CFRN. Section 35(1)(b) empowers the legislatures to make ordinary laws limiting personal liberty by reason of a person's failure to comply with the order of a court or in order to secure the fulfilment of any obligation (criminal or civil) imposed upon him by a statute. What this means is that what a policeman needs to lawfully arrest a person that breaches a statutory obligation are an ordinary law creating the statutory obligation, and another ordinary law providing a procedure for the arrest of persons that breach that statutory obligation. In Nigeria, although there are ordinary laws creating statutory obligations, yet there is no ordinary law creating procedures for the arrest of persons that breach statutory obligations, as seen amongst statutory obligees. Interestingly, the purpose of such arrests is limited to the securing of the fulfilment of any obligation imposed upon him by a statute, and not for criminal prosecution. In Enugu state, for instance, the traffic law of the state, the licensing officers can limit personal liberties of motorists until they fulfil their obligations under the traffic law, and not as a punishment for failing in their criminalized statutory obligations. The cases outlined under section 35(1) of the CFRN are disjunctive. An ordinary law is either made under section 35(1)(b) or 35(1)(c) of the CFRN, and not under both. 

Fundamental rights are variously controlled in the national constitutions of different countries where they are preserved using different constitutional mechanisms, so as to engender harmonious enjoyment of these rights, by the different persons that are equally entitled to them. Under the CFRN, the different constitutional mechanisms used, range from the use of exemption terms or phrases within a fundamental right section to exempt some attributes of the protected fundamental right, use of subsections to create some exceptions to the preserved fundamental right, use of schedules to the CFRN to empower the legislatures to make ordinary laws in fields already covered by the fundamental rights section, use of another section of the CFRN to create a parallel or opposing right, empowering the legislatures to make restrictive ordinary laws in the field of the fundamental right, use of fundamental right limitation provision or clause to empower the legislatures to limit fundamental rights in a particular condition, or empowering the legislatures to make ordinary laws that derogate fundamental rights. The list of constitutional mechanisms for the control of the exercise of fundamental constitutional rights by persons is not closed. 

The court, while pronouncing on the provision of section 12 (4) of the Trade Unions Act of Nigeria, in National Union of Shop and Distributive Employees (NUSDE) v The Steel and Engineering Workers Union of Nigeria (SEWUN), held that: 

On the issue of voluntarism, the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act, Cap T14, LFN, 2004. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU VS ASCSN (2004) 1 NLLR (PT. 3) 429 and Osawe v Registrar of Trade Unions, (supra). Even the fundamental rights guaranteed in chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) & (b) provides for derogation from these rights. 

Erasmus Osawe & 2 Ors v. Registrar of Trade Unions, has also held that the fundamental right enshrined under section 37 of the CFRN of 1979 for freedom of association as Trade Union is subject to the derogation set out in section 40(1)(a) of the said CFRN. The court determines section 37 of the CFRN is not absolute as it cannot invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health. In Clement Aviomoh v The Commissioner of Police, the court holds that the right to freedom of expression guaranteed by section 39 of the CFRN is by section 45(1)(b) subject to any law reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons. Nigerian courts have therefore consistently determined that subsection 45(1) of the CFRN is a limitation clause on the fundamental constitutional rights of persons in Nigeria. Nigerian courts therefore apply the Siracusa Principles to justify the limitation and criminalization to guaranteed fundamental constitutional rights of persons. The objective of this paper is to determine wether section 45(1) of the CFRN is indeed a fundamental right limitation clause as held by the courts; or an unconstitutional and unnecessary judicial construct that harms guaranteed fundamental rights through the application of the Siracusa Principles and criminalization. The paper is organized in five parts, including Part One, this Introduction. Part two discusses section 45(1) of the CFRN. Part three discusses fundamental right limitation clause. Part four discusses limitation clause in other jurisdictions of Canada and USA, while chapter five concludes the paper.

2. Section 45(1) of the CFRN.

The supreme court of Nigeria (SCONA), in Aviomoh v COP, holds that section 45(1) of the CFRN is a limitation to the fundamental rights in sections 37-41 of the CFRN. In fact, the SCONA even goes further than that holding, to hold, though as an orbiter, that section 45(1) of the CFRN excludes the supremacy provision in section 1(3) of the CFRN. How the Law Lords arrived at that conclusion is most baffling in the light of the clear provisions of the CFRN, and the previous decisions of the same SCONA, particularly in Nkwocha v Governor of Anambra state. According to Helen Moronkeji Ogunwumiju, JSC in Clement Aviomoh v The Commissioner of Police: 

The right to freedom of expression guaranteed by section 39 of the Constitution is by section 45 (1)(b) subject to any lawreasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons. Although section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in sections 37, 38, 39,40 and 41, derogations must be legal, that is, made under a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others. In Cheranci v Cheranci (1962) N.R.N.L.R. 29 Bates J. identified the principles that govern whether a restriction of rights is reasonably justifiable in a democratic society, namely: The law must be necessary for the interest of public (a) morality or public order, etc. It must not be excessive or out of proportion to the (b) objective which it sought to achieve. It may be argued that punishing defamation with criminal conviction and pain of imprisonment is excessive and out of proportion to the objective of protecting the reputation damaged by defamation when the civil law provides sufficient remedy to the person aggrieved. The phrase “necessary in a democratic society” has also been interpreted by the European Court of Human Rights, which held that for an interference to be necessary, it must be justified by a 'pressing social need' relating to one or more of the legitimate aims (Observer and Guardian v. The United Kingdom, judgment of 26 November 1991, A216 paragraph 71). In determining whether such a need exists: i) Attention must be paid to the particular facts of the case and to the circumstances prevailing in the given country at the time (Lingens v. Austria, judgment of 8 July 1986, A 103 paragraph 43). ii) The state’s action must also be based upon “anacceptable assessment of the relevant facts.” (Oberschlick v. Austria, judgment of 23 May 1991, A204, paragraph 60). Although the phrase used in the European Convention on Human Rights is different from “reasonably justifiable” used in the Nigerian Constitution, there is no material difference in the meaning of the phrases; the essence being to provide parameters for justifiable State action restricting human rights ... The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights also enumerate guiding principles in assessing whether a restriction or limitation of fundamental rights is permissible or not. Specifically, that the restriction or limitation is: Provided for and carried out in accordance with the (i) law; Directed toward a legitimate objective of general (ii) interest; Strictly necessary in a democratic society to achieve (iii) the objective; The least intrusive and restrictive available to reach (iv) the objective; Based on scientific evidence and neither arbitrary nor (v) discriminatory in application; and of limited duration, respectful of human dignity, and (vi) subject to review. The application of the above principles to the criminalization of defamation will yield the following conclusions: (i) the criminal law provides for defamation; the criminalization of defamation is directed toward a legitimate objective of general interest viz protecting (ii) reputation: it appears that the third principle does not support criminalization of defamation. This is because criminalizing defamation is not strictly necessary in a democratic society to achieve the objective. The tort of defamation already provides adequate remedy for (iii) anybody aggrieved by defamation; also applying the fourth principle the criminal lawis not the least intrusive and restrictive approach to achieving the objective of providing a remedy for defamation. The civil law approach is the least intrusive and less restrictive approach yet providing (iv) adequate and sufficient remedy for defamation. Based on the application of the last two principles above it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional.

As if that is not enough, Agim, JSC on the same subject matter of the constitutionality of criminal defamation law in Nigeria, has this to say:

There is no country in the world that has not made some law placing some restriction on the exercise of the right to freedom of expression within constitutionally permitted limits for the well-being of the country. Even international conventions on human rights accept the need for some justifiable restrictions. Example Article19(3) of the ICCPR provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring respect for the rights and reputations of others. That is why section 45(1) of the 1999 Constitution prescribes that such a restriction would be allowed, if it is reasonably justified in democratic society in the sense that it protects the proper functioning of the society democratically. S.45(1) of the 1999 Constitution operates to exclude the operation of S.1(3) of the Constitution where the restriction and resulting in consistency is reasonably justified in democratic society in the sense that it is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others. Another effect of S.45(1) of the Constitution is that the rights in sections 37, 38, 39, 40, and 41 are not absolute and can be restricted by law so far as the restriction is reasonably justified in a democratic society in the public interest and for the protection of the rights of other persons. See Osawe & Ors v. Registrar of Trade Union (1985) 5 SC 343, (1985) 1 NWLR (Pt.4) 755. Only the courts have the power to determine if a restriction is reasonably justified in a democratic society. 

The nagging questions that agitate the minds of the author of this work are: is section 45(1) of the CFRN a limitation clause; has section 45(1) of the CFRN excluded the constitutional effect of section 1(3) of the CFRN on ordinary laws made within the scope provided in section 45(1) of the CFRN; are the legislative restrictions