Fundamental Human Rights: Section 37, 38, 42 and 43 of the 1999 Constitution



Fundamental Human Rights: Section 37, 38, 42 AND 43 of the 1999 Constitution

Constitutions all over the world contain copious provisions on Human Rights. The whole of chapter IV of the 1999 Constitution of Nigeria contains a long list of rights.

In this article, we shall be dealing with the following rights

i. Right to private and family life

ii. Right to freedom of thought, conscience and religion

iii. Right to freedom from discrimination

iv. Right to acquire and own immovable property anywhere in Nigeria.

By the end of this article, you should be able to explain freedom of religion, the right to property, freedom against discrimination and family rights.


Also read: Definition, Meaning and Types of Euthanasia - Right to life

Right to Private and Family Life

Section 37 of the Constitution simply provides that “The privacy of citizens, their homes, correspondence, phone conversations and telegraphic communications is hereby guaranteed and protected”.

This right is limited by the provisions of section 45 which contains a wide power of derogation in the interest of defense, public safety, public order, public morality or health or for the purpose of protecting the rights and freedom of other persons.


Right to Freedom of Thought, Conscience and Religion

This right is provided in Section 38 of the 1999 Constitution there was no attempt at any definition of the words thought, conscience or religion anywhere in the Constitution.

However, a graphic view is given of this freedom by Abraham Henry who observed as follows: “Each individual does of course possess the basic right …… to believe what he chooses, to worship what he pleases and how he pleases, always with the right of others. 

We have those who believe in nothing, those who believe but doubt, those who believe without questioning, those who worship the Judeo-Christian God in innumerable different ways, those who adhere to Mohammed’s creed, those who worship themselves, those who worship a cow or other animals, those who worship several gods to mention just a few of the remarkable variety of expectations of belief that obtain.”

According to Prof. Bolaji Idowu, “Religion is very much and always with us. It is with us at every moment of life, in our innermost being and with regards to the great or minor events of life; it is discussed daily in the newspaper, through the radio and television and in our conversations.

It is with all of us inevitably whatever may be our individual, a vowed attitude to it.” Section 10 of the Constitution prohibits the adoption of any religion for the nation. Both sections read together give the correct impression of the guarantee of freedom of worship, practice and observance of individual religious belief. They ensure secularization for the state.

Provision for the protection of the rights to freedom of thought, conscience and religion, is a great philo-legal ideology meant to improve the lot of human beings.

However, notwithstanding such provisions, one is greatly disturbed by the selfish exploitation of worshippers and religious adherents by religious leaders on the one hand and the mischievous manipulations and deliberate distortions of sacred religious truths by governments on the other hand. A few others too, who occupy fiduciary positions in religious matters vis-à-vis adherents are equally guilty of this allegation.

Citizens and adherents are often cajoled, confused and misled. Religious leaders sometimes engage in improper proselytism; governments engage in using religion to fan the embers of discord. Once we agree that religion is the opium of the people, we need not look too far to know why this is easily possible especially in countries where the literacy level is low.

Prof. Wole Soyinka, a Nobel Laureate, is of the view that; “the use to which religion is put today (and we speak here not merely of extremists but of government complicity) often translates directly into politics and does not require much effort to envisage.

There have been too many lost moments, moments when this particular disease could have been firmly routed out, when leadership chose instead to exacerbate such divisions for its own agenda of control rather than set an example in the harmonization of faiths, we are speaking, to name concrete instance, of a nation of multiple faiths…”

Whoever is conversant with Nigerian politics will agree with Soyinka and will be bothered by such governmental action or inaction. This observation is not peculiar to any one country. For example, Osama Bin Laden and his Al Qaeda network had been quoted as saying that the September 11, 2001 attack on the United States of America “was a religious and logical obligation…the killing of Americans and their civilian and military allies is a religious duty…..”

One may recollect also the ‘Fatwa’ issued by the Iranian religious authority on Salman Rushdie over comments contained in his book: The Satanic Verses. Such a call to have someone killed for expressing an opinion is generally deemed unacceptable, whatever cultural or religious belief.

The terms “thought”, “belief” and sometimes “religion” may cover a wide range of intellectual and spiritual activity. The rights to freedom of thought, conscience and religion are largely exercised inside an individual’s heart and mind and cannot be separated easily. Only when one manifests ones religion or beliefs will the state even be aware of its existence or character.

A person has an inalienable right to think whatever he desires, to believe whatever he hears, reads or thinks about and to profess any religion that suits him, provided such thought, belief or practice of the chosen religion is not repugnant to natural; justice, equity and good conscience.

The right to freedom of thought, conscience and religion is an extension of the rights to freedom of expression, assembly and association. It gives the latitude to every person to change his belief and to manifest and propagate his religion in worships, teachings, practice and observance either alone or in concert with others.

But this excludes membership of a secret society. See section 38. of the constitution. According to Idowu Adegbite, like every other fundamental right of man, the right to freedom of conscience, thought and religion is basic to meaningful existence as a human being; it predates the Constitution and all human rights documents. 

This right is for everybody to believe in and worship the creator or whoever he considers as his God or god, or not to believe in the existence of any supreme being at all. A man is free to practice, disseminate and propagate his religious beliefs in whatever form he chooses. It must however be within the confines of the law.


Right To Freedom From Discrimination

This right is contained in Section 42 of the Constitution. By this provision, no person, being a Nigerian, shall be subjected to discrimination merely for circumstances of his birth, sex, creed, religion or political opinion. This issue came up for consideration in the case of Bosede Badejo V Ministry Of Education (1990),3 NCLR 915. 

In this case, the Appellant sued the respondent for the enforcement of her fundamental human right of freedom against discrimination. She was piqued by the policy which allowed a candidate from Kano State, for instance, with 151 marks to have a place in Unity Schools as against herself from Ogun state who scored 293

While admitting that the applicant’s right of freedom against discrimination had been breached, the court however leaned more on the issue of locus standi.


Right to Property

Section 43 of the Constitution provides that “Subject to the provisions of this constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria”.

This means that a citizen of Nigeria is free to acquire landed property anywhere in Nigeria.

Section 44 states that no movable property or any interest in an immovable property shall be taken possession of compulsorily in any part of Nigeria except in the manner prescribed by law. The Land Use Act of 1978 which has been entrenched into the 1999 Constitution through section 315 provides for compulsory acquisition of property for public interest.

The issue of public interest was first decided way back in 1944 in the case of Chief Commissioner Of Eastern Provinces V. Omonye (1944), NLR 142. In this case, the Court held that the acquisition of a private land by the crown for the purpose of granting a lease of it to a commercial company was a departure from the meaning of public purpose. Acquisition must actuate compensation.

It should be noted that the Federal Government of Nigeria has sole exclusive property rights in minerals, mineral oils and natural gas in, under or upon Nigeria territory, territorial waters and the country’s exclusive economic zone.

The case of Attorney General Bendel State V. Aideyan (1989) 4 NWLR Pt. 118 P.649, lays the precedent that any extra-legal acquisition of property constitutes a trespass and gives rise to a claim for damages.

Read on: Judicial Attitude to Individual or Fundamental Human Rights in Nigeria

Conclusion on Fundamental Human Rights: Section 37, 38, 42 and  43 of the 1999 Constitution

To conclude, the 1999 Constitution of Nigeria forbids any state religion, and protects individual freedom of thought consumer and religion Britain extremists and even governments have derogated from these rights. See the case of Bosede Badejo v. Ministry of Education. (1990 gain.

In this article we have considered four fundamental human rights provisions as enshrined in chapter IV of the 1999 Constitution of Nigeria. You should now be able to determine when these rights have been breached and seek for enforcement or redress.

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