Guardian

FOR every general rule, there is an exception. The enjoyment of Fundamental Human Rights is not left out of the application of this law of nature. Hence, the fundamental human rights listed under chapter 4 of the 1999 Constitution as amended and those listed under the African charter on Human and People’s Rights are subject to a number of limitations, restrictions or as it is commonly referred to, derogation.

The reason for the derogation is not far-fetched. The protection of human rights is first and foremost in the interest of the individual and general members of the society especially as a form of safeguard from the members of the society who are in possession of force and might and may tend to abuse same by deploying it at their whims and caprices. As one of the 19th Century English Judges, Lord Atkinson put it, “power tends to corrupt and absolute power corrupts absolutely”. It should be noted that as absolute power corrupts absolutely, so also absolute freedom can be intoxicating absolutely. Thus guaranteeing fundamental human rights in absolute terms is a recipe for chaos and anarchy and that will be counter-productive.

Accordingly, section 45 of the 1999 constitution makes an omnibus provision dealing with derogation on the rights guaranteed under the Constitution. The section provides thus, “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.

Section 45(2) equally provides as follows:

“An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during period of emergency, of measures that derogate from provisions of sections 33 or 35 of this Constitution, but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justified for the purpose of dealing with the situation that exists during that period of emergency”.

Some of the provisions of the Constitution that guarantee fundamental human rights contain immediate derogation from the very rights they guarantee.

The import of this provision is that there can be no derogation from the very right guaranteed under the Constitution unless there is a law passed to that effect. Secondly, the derogation has to be in the interest of public safety, order, health, security etc.

An interesting issue that may arise from the provision of the law above is whenever there is an Act of the National Assembly or a law of a State that derogates from any of the fundamental human rights, who or what determines whether that law is reasonably justifiable or it is made in the interest of the public.

Prof Ben Nwabueze expressed the opinion that in view of the opening phrase of the section, there is presumption of validity in favour of such a law, thereby placing the burden of proof on whoever asserts the contrary.  See Nwabueze, B. O. A Constitutional History of Nigeria, (London: C. Hurst and Co Ltd. 1982). P. 18.

The preferred alternative however is that the protection of the rights stipulated under the Constitution is the general rule while derogation of whatever nature is the exception. Therefore, the onus of proving that a law is reasonably justifiable and that it is made in the public interest lies on the authority that made the law. See Osita Ogbu, Human Rights Law and Practice in Nigeria, 19999, Enugu, Nigeria, p 223.

An example of the provision of the law that derogates from fundamental human rights guaranteed under the Constitution is section 51 of the Criminal Code Act, cap 57 LFN, 2004, which prohibits the altering, printing, publishing, selling, distributing or reproducing of any seditious words or materials. It should be noted that the above section is a derogation of the provision of section 39 of the 1999 Constitution on the Freedom of expression to disseminate information, ideas and opinions. The pertinent question is, is this provision reasonably justifiable in a democratic society? The answer to this question depends on what interpretation is given to the word, ‘seditious’. According to the Oxford Advanced Learner’s Dictionary, 7th Edition, ‘sedition’ which is the noun derived from the adjective ‘seditious’ means, ‘the use of words the words or actions that are intended to encourage people to oppose a government’.

What constitutes seditious publication came up for determination in DPP v Chike Obi (1961) All NLR, 186. In that case, the defendant was charged for the distribution of a seditious publication in form of a pamphlet entitled, The People, Facts You Must Know, with the following content, Down with the enemies of the people, the exploiters of the weak, the oppressors of the poor! The days of those who enrich themselves at the expense of the people are numbered. The common man in Nigeria can no longer be fooled by sweet talk at election time only to be exploited and treated like dirt after the booty of office has been shared by the politicians. The Supreme Court found the defendant guilty of sedition by the publication of those words.

Conversely, in State v Ivory Trumpet Publishing Co Ltd (1984) 5 NCLR, 736, the charge against the defendant was the publication of an article titled, Before the Battle, with an intention to bring hatred or contempt or to excite disaffection against the person of the then Governor of Anambra State, Chief Jim Nwobodo. The publication in question reads as follows: he has been keeping and spending party money without giving account and has in the past three months paid staff salaries direct through the Secretary and has refused to pay the Chairman. We have called him to give account of election expenses, more particularly the foundation membership certificate signed by D. G. Mbanugo. He does same in the women’s wing through his financial emissary. Nearly 2 Million Naira has been paid to him from sales of Premier beer. He has not paid the money into party account nor rendered a statement to the executive. In holding that the above publication is not seditious, Araka J, held,

“ I feel no doubt that any construction of the law on sedition in this country should be against the background of a profound national commitment to the principle that debates on public issues should be uninhibited, robust and wide-open and that it may well include vehement, caustic and unpleasantly sharp attacks on government and public officials”.

In our view, it does not serve the public interest to narrow down the meaning of sedition to a publication that criticizes the government or a government official or makes allegation against the government or any of its officials or a publication that has a great adverse effect on the government. A publication that is critical of the government and is so incisive as to create a general negative impression of the government should not be considered seditious so long as it does not contain incitement to violence against the government.

It is soothing that with the above decision, the Nigerian courts have departed from the unfortunate decision in DPP v Chike Obi in favour of the later decision above. See also Arthur Nwankwo v The State (1985) 6 NCLR, 228.

It is therefore submitted that the section of the Criminal Code is reasonably justifiable in a democratic state and it is in the interest of the public, provided the word, ‘seditious’ is given a narrow interpretation restricting its meaning to a publication that incites to violence either against the government or by one section of the society against another.