CIRCUMSTANCES WHEREBY YOUR RIGHTS CAN BE TRAMPLED UPON.

[Olajire Deborah]

THE NIGERIAN CONSTITUTION PERMITS YOUR RIGHTS TO BE TRAMPLED UPON IN CERTAIN SITUATIONS.
– Section 45

Aside from the general exemptions which have been listed in each of the Chapters above, the Constitution itself further provides for some specific exemptions when some fundamental rights can be infringed upon.

It specifically says that, in these listed situations, some of these fundamental rights can be restricted and derogated from and yet the Constitution would not have necessarily been breached.

Remember that the 1999 Constitution is the foundation upon which every other law is built. All laws made by the Federal, State, or Local Governments, or any other body or parastatal must all conform to the provisions of the Constitution. Any law which goes contrary to what the Constitution says is invalid to the extent of its inconsistency, and that law would be set aside.

So, in that respect, every law and regulation that is made must comply with the Constitution. Particularly, if the law has anything to do with the rights and obligations of the citizens, then such a law must conform with constitutional provisions on fundamemntal rights or else the law will be set aside as inconsisitent with the provisions of the Constitution.

Having said this, I must inform you that Section 45 of the Constitution itself provides for instances of when a law can be allowed to derogate or infringe upon the fundamental rights of the citizens. To enable you clearly understand this, I shall categorize those instances into 2, as provided for by the Constitution, viz:

1) Your rights may be restricted when it is reasonably justifiable in a democratic society; and,

2) Your rights may be restricted during or because of emergencies.

Let me now elaborate on each of these instances.

a. Your Right Can Be Restricted When It Is Reasonably Justifiable In Democratic Society
The Constitution categorically makes it clear that if a law is made and if that law is reasonably justifiable in a democratic society, then it can be allowed even if it infringes upon or restricts the fundamental rights of the citizens. However, for that law to be regarded as justifiable enough to infringe on the rights of the citizens, it must be because of any of the following 2 reasons:

1) Because such a law is in the interest of defense, public safety, public order, public morality or public health; or,

2) Because such a law is for the purpose of protecting the rights and freedom of other persons.
(I want you to please take note of the definitions of when a law or restriction is reasonably justifiable in a democratic society according to my explanation in this Chapter 12, and in Section 45 of the Constitution. This is because this phrase “reasonably justifiable in a democratic society” runs through many Sections of the Constitution, and we shall be making numerous references to it in this Chapter).

Please note, however, that it is not all the fundamental rights of the citizens that any law may be allowed to infringe upon no matter how justifiable the reason for the law is. According to the Constitution, only the following rights can be allowed to be infringed upon or restricted by a law, viz:

i. Section 37 – Right To Private And Family Life;
ii. Section 38 – Right To Freedom Of Thought, Conscience And Religion;
iii. Section 39 – Right To Freedom Of Expression And The Press;
iv. Section 40 – Right To Peaceful Assembly And Association; and,
v. Section 41 – Right To Freedom Of Movement.

Those are the only 5 rights that the Constitution allows to be infringed upon or restricted by any law if it’s because of the 2 reasons I have stated earlier. Hence, any law that is in the interest of defense, public safety, public order or public morality, or if the law was made for the purpose of protecting the rights and freedom of other persons, such may not be regarded as invalid, even if it infringes on the fundamental human rights of privacy and family life, or of freedom of conscience, thought and religion, or of expression, or of association, or of movement. In essence, it means that the fundamental rights under Sections 37 to 41 of the Constitution are not absolute. They are limited and subject to those exceptions.

b. Your Rights Can Be Restricted Because Of Emergencies
The second group of restrictions which the Constitution may allow is in respect of the following 2 Sections:

1. Section 33 – Right To Life
2. Section 35 – Right To Personal Liberty

The Constitution allows that a law may be made, or some measure may be taken during periods of emergencies which may infringe upon or restrict the citizens’ rights to life and personal liberty.

For instance, in cases of serious emergencies like war, serious violence, and armed revolt, the security agencies may be called upon to quell the turbulence in which case lives may be lost in the process. Or, in the case of armed revolt, the personal liberty of citizens may be restricted in which case, some of the revolters may be arrested and detained contrary to constitutional provisions.

But, I’ll like you to note that, in these 2 Sections above, the rights that can be infringed upon is strictly limited and specified by the Constitution. As a matter of fact, the Constitution clearly stipulates the conditions under which the right to life and personal liberty may be infringed upon. These are that:

a. There must have been a period of emergency.

b. The measures taken which infringe on rights to life and personal liberty must be for the purpose of dealing with that situation of emergency.

c. The measures must be reasonably justifiable.

d. The measures taken must be by an Act (law) of the National Assembly.

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