CONSTITUTIONAL RIGHT AND PRIVILEGE ; JUXTAPOSITION--17TH ONLINE PRESENTATION AND DIALOGUE OF TODAY'S LEADER FORUM

INTRODUCTION

The importance of this topic cannot be over emphasized when cognizance is taken of the wanton abuse of human rights in Africa and particularly in Nigeria where those in Authorities derive pleasure in violating fundamental rights entrenched in the Constitution with relics and reckless abandon. Our law enforcement Agencies especially the police are enmeshed in breach of these basic rights and in most occasions the Authorities concerned ignored the sacred provisions of Chapter IV of the 1999 Constitution in the cause of carrying out their duties as required.

It is unfortunate that individuals also commit infringement of the Fundamental Human Rights in their bid to show that they are influential and superior; they descend heavily on their fellow citizens and trample upon their rights in the process. And sometimes they achieve this in active collaboration with the police and even soldiers who have no rights to deal with any civil matters involving the "civilians". Experience has shown that they usually arrest and lock up people on matters that ought to be dealt with by the Police. The Constitution and the relevant Laws forbid such abuse of powers as it is ultra vires of the powers and functions of Nigerian Army.

Individual that fall victim of the abuse can approach a competent to enforce his or her fundamental rights and claim damages from individual or Authorities concerned.

As a result of the global recognition of the need to protect human rights several Declarations and charters were made and these include the Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights which has been domesticated in Nigeria as African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP 10 LFN 2004.

This country like her counterparts across the globe in demonstration of the Seriousness attached to the issue of human rights entrenched in the Constitution of the Federal Republic of Nigeria 1979 and of course in 1999 Constitution in chapter IV thereof.

I shall examine in due course the procedure for enforcement of Fundamental Human Rights which is the substratum of this discourse.

It is pertinent to examine succinctly the term Human Rights, before delving into Fundamental Human Rights this is because latter is deduced from the former which is all encompassing and broad in nature.

1. What is a Constitution?

There are several definitions of a constitution. Some see a constitution as:

(a) the mode in which a state or society is organized especially the manner in which sovereign power is distributed in the state; or
(b) the written instrument embodying the fundamental rules and constituting the organic law of the land; or
(c) the system or body of fundamental rules and principles of a nation, state or body politic that determine the powers and duties of the government and guarantees certain rights to the people; or
(d) the body of rules, laws, conventions or practices which defines the powers and functions of the state vis-a-vis other social institutions; prescribes the institutions and structures by which the power and functions of the state are exercised, and establishes relationships between and among the institutions and structures of state power.

Consequently a constitution can be said to be

(i) a body of rules, laws, customs and practices by which a country or body politic is governed; it is the instrument by which a country is transformed into a state, that is, a sovereign political community.

(ii) enacted, that is, formally promulgated either by the people for themselves or by a tutelary power for its subjects.

(iii) superior to any other law in the land. Consequently any law that is inconsistent with any of its provisions is null and void to the extent of its inconsistency.

(iv) authoritative in its import; the right to interpret it in a situation of conflict is usually vested (by the constitution itself) in an appropriate and designated court (Supreme Court).

(v) the basis of legitimation in a political systems as all authorities are derived from it; whatever it does not allow explicitly or implicitly, is precluded.

What is Right?

Also According to Black Law Dictionary defined...

Right that which is proper under the law, morality, or ethics (to know right from wrong).

Something that is due to a person by just claim, legal guarantee, or moral principle (the right of liberty).

A power, privilege or immunity secured to a person by law (the right to dispose of one's estate).

Legal right, a right created or recognized by law.

What then is Privilege?

Also According to the Black Law Dictionary, it defined Privilege as a special legal right, exemption, or immunity granted to a person or class of persons, an exception to a duty. A privilege grant someone the legal freedom to do or not to do a given act, it immunizes conduct that under ordinary circumstance would be subject the actor to liability.

Privilege can be classed into different ways, Here we can make use of Special Privilege as a privilege granted to a person or class of person to the exclusion of others and in derogation of the common right.

WHAT ARE HUMAN RIGHTS

These are right naturally accruable to every person by virtue of his/her existence as a human being. Human Rights are defined in the Black's Law Dictionary 18th Edition, page 758 as follows:

"freedom, immunities, and benefits that, according to modern values all human being should be able to claim as a matter of right in the society in which they live."

Femi Falana Esq in his book Fundamental Human Rights Enforcement in Nigeria says Natural law theorist view human rights in the abstract. According to them human rights are the specie of rights which can be said to inhere in every human being. Since they are regarded as inalienable and immutable, such rights cannot be taken away from any person without affront to justice.

In Chief Olufunmilayo Ransome Kuti & Ors VS. Attorney General of the Federation (1985) 5 NWLR (PT 10) at 211 at 229-230 was held thus:

"This is no doubt a right guaranteed to everyone including the appellants by the constitution. But what is the nature of a Fundamental Right? It is a right which stands 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 and what has been done by our Constitution..... "

FUNDAMENTAL HUMAN RIGHTS IN NIGERIA

These are generally regarded as that aspect of human rights which have been recognized and entrenched in the Constitution of the Federal Republic of Nigeria. They specifically provided for to enhance human dignity and liberty in every modern state. Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended covers a whole range of rights constitutionally guaranteed. Like most of the common wealth countries, the provision on fundamental rights have been enshrined in the Constitution in consonance with the principle proclaimed by the United Nations in the Universal Declaration of Human Rights in 1948 wherein it is stated that:

"It is essential, if a man is not be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression that human rights should be protected by the Rule of Law Article 10 of the Declaration.

Fundamental human rights are also defined as entitlement that humans have by the fact of being human, and that neither created nor can be abrogate by any government.

Hon. Justice Eso (JSC) in the case of RANSOME KUTI VS. ATTORNEY GENERAL OF THE FEDERATION (Supra) emphasized the import of fundamental rights state thus:

"Fundamental human right is a right which stands 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......"

FUNDAMENTAL HUMAN RIGHTS AS ENSHRINED IN CHAPTER IV OF THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA

It is pertinent at this juncture to reproduce the provision of Chapter IV of the constitution of the Federal Republic of Nigeria 1999 as Amended for easy understanding of the Human Right in Nigeria.

1. RIGHT TO LIFE.

Every person has a right to life, and no one shall be deprive 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 Nigeria.

This Right to life is sacrosanct because nobody has right or power to take another person's life save as prescribed in the Constitution above, the circumstances highlighted in the provision constitute an exception to the general rule that no person ought to be killed by another person or authorities.

2. RIGHT TO DIGNITY OF PERSON

Every individual is entitled to respect for the dignity of his person and accordingly.

3. RIGHT TO PERSONAL LIBERTY

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

Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer that the maximum period of imprisonment prescribed for the offence.

Any person who is arrested or detained shall be informed in writing within twenty-four hours 24hours (and in a language that he understands of the facts and grounds for his arrest or detention.)

4. RIGHT TO FAIR HEARING

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.

Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

5. RIGHT TO ONE'S PRIVACY

Every person shall be entitled to freedom of thought, conscience and religion.

Note here.. The constitution however forbid any person to form, take part in the activity or be a member of a secret society. See section 37-38 of the 1999 Constitution as amended.

There are other HUMAN RIGHT under the provision of the 1999 Constitution Chapter IV, you can check it so as not waste much of our time.

Fundamental Rights means the primary rights of the citizens which are justifiable and written in the constitution.
(a) Chapter II of the Constitution is Human Right while
(b) Chapter IV is about Fundamental Rights

Human Rights are the basic rights that all the human beings can enjoy, no matter where they live, what they do, and how they behave, etc

Fundamental Rights is Constitutionally guaranteed while Human Right is Internationally guaranteed

The Enforcement.

Fundamental Right is Enforceable by the court of law while Human Right is Enforceable by United Nation Organization

Fundamental Rights applies to the all the people equally, regardless of their caste, religion, gender, race, origin, etc. It ensure civil liberty, so that all the citizens of the country can lead their life in the way they want.

Human Rights are basic rights of the people that advocate fairness, equality, freedom and respect for all. These are extremely important for the betterment of the society, as it abolishes various practices like injustice, exploitation, discrimination and inequality.

See Sections 6(6)(b), 17(2)(e), 36(1) & 46(1) of the 1999 Constitution. See the case Dilly VS. IGP

Fundamental Right can be ENFORCED on behalf of a dead person.

A privilege is a certain entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. ... By contrast.

A right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth.

IN CONCLUSION.

Our only true rights are called natural individual rights. They are the property of each individual just for being a human. They also are called unalienable because they are independent of government and others.

Natural rights are our only true rights. Anything granted to you by the government is a privilege. Anything granted to you by someone, even if you pay for it, is a favor. Both can be regulated, withdrawn, restricted or denied at any time.
Thank you all for reading.

I appreciate the leadership of this platform once again for the privilege given to me to present tonight.
I believe i was privilege to present not my right!!!

Ask your Right from a lawyer.
Lawyers are your friend

MOMENT LIKE THIS, SITUATION LIKE THIS, IN A COUNTRY LIKE THIS.

I'm Comr. Olanrewaju Yusuf Tunde (Uselaw) once again.
CONVENER : AFRICA TALKING DRUM (08068755276)