CONTINUED FROM LAST WEEK
Apart from all we have said, it is a gross violation of the principle of federalism for the central government to deal in such a high-handed manner with a regional government. It destroys the very essence of co-ordinateness which ought to exist between them.
It should, therefore, be provided in the constitution:
(i) that the federal parliament or central government should not have the power to suspend or perform the functions of a regional legislature or government in any circumstance, save when the federation is at war; and
(ii) that the regional legislature or government should not have the power to suspend or dissolve a local government council in any circumstance, during the council’s statutory term of office.
(21) Fundamental human rights should be entrenched in the constitution; and there should be provisions to the effect that nothing in the constitution or in any law should derogate from such entrenched human rights, except in times of war, emergency, epidemic, or in so far as is necessary to give effect to a judicial decision or secure respect for the rights of others. The old constitution makes provisions for the following rights:
(i) Freedom from intentional deprivation of life.
(ii) Freedom from torture, inhuman or degrading punishment or treatment.
(iii) Freedom from slavery, servitude, or forced labour.
(iv) Freedom from deprivation of personal liberty.
(v) Freedom from interference with privacy, family life, home, and correspondence.
(vi) Freedom of thought, conscience, and religion.
(vii) Freedom of expression, to hold opinions, and to receive and impart ideas and information without interference.
(viii) Freedom of assembly and association, and in particular to form or belong to trade unions and other associations for the protection of personal or corporate interests.
(ix) Freedom of movement throughout Nigeria, and of residence in any part thereof.
(x) Freedom from discrimination on the grounds of place of origin and religion, of holding a political opinion, or of belonging to a particular community or tribe.
These rights have been taken from the United Nations Universal Declaration of Human Rights. But as embodied in the constitution, they suffer from two grave defects. First, they are inadequate in that they do not include any of the fundamental social rights contained in the Universal Declaration of Human Rights. Secondly, all the rights, with the exception of items 1,3, and 4, are so limited in the sections of the Constitution providing for them as to make them nugatory for all practical purposes.
As regards the first defect, it is important to point out that the world has moved very far away from the era when it was believed that the only rights which a constitution is called upon to entrench and guarantee are the so-called natural rights of man. In many civilized countries, the citizen’s rights to various social amenities are now regarded as fundamental and inalienable as those rights with which nature endows him at birth. The right to education and the right to work are among such rights. Apart from this empirical development, we have, we believe convincingly, established, in Chapter 5, the reasons for man’s indefeasible entitlement to both natural and social rights. Furthermore, the United Nations Organisation has accorded authoritative recognition to all these rights, in that they are included in its Universal Declaration of Human Rights which was made in 1948, and has been persistently propagated and upheld by it ever since.
With regard to the second defect, four types of limitation are noticeable. The first type relates to item 2. The Constitution permits the subjection of a man to torture, inhuman or degrading punishment or treatment in Northern Nigeria, where such forms of punishment or treatment were regarded as lawful and customary on’ November 1959! It will be agreed by all right-thinking persons that such a custom as this is repugnant to human decency and good conscience, and should be abolished. The second type relates to items 5 to 10. The limitation in each case is preceded by the following expression – ‘Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society …. ‘
Then the limitation follows.
It follows that if a law is, or is about to be, enacted which detracts from any of the rights provided in the constitution, a citizen can only successfully resist such diminution or threatened diminution of his right in a court of law if he is able to establish to the satisfaction of the presiding judge or judges that the enactment or proposed legislation cannot be reasonably justifiable in a democratic society. In other words, he will have to establish, by evidence or the citation of legal authorities, the indisputable characteristic features of a democratic society, as well as what is and what is not reasonably justifiable in such a society. He is not likely to succeed in discharging this formidable onus unless the
presiding judge or judges are prepared to apply without undue qualification (which is doubted) foreign standards and precedents in similar or analogous cases.
The third type of limitation concerns items 9 and 10 where the constitution discriminates respectively against a person who is or was a chief, and against the female sex.
CONTINUES NEXT WEEK
and then