Answering of Calls at Checkpoints and The Position of the Fundamental Rights in Nigeria – Chidera Nwokeke

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On 10th December, 2019, Major-General Usman Mohammed, the Chief of Civil-Military Affairs said “The use of phone when approaching a military checkpoint is wrong because it is a security loophole. He further said that it is a security measure for when you are approaching a checkpoint, you don’t make phone calls because the tendency is that if you are making a phone call, you might be communicating with some bad guys or you may use that particular device to set up some certain devices.”

However, prior to his speech, we have experienced and seen instances where army officers brutalize and seize citizens’ phones on the ground that they are making calls at checkpoints. At times, they go to the extent of asking a bus carrying passengers to park one side for hours because someone inside the vehicle is making call at checkpoint. The act of brutalizing and seizing the phones of citizens for making calls at checkpoints, goes against all that human rights standards and norms stand for, it in a way rips off one’s inherent dignity and right to privacy.

This article examines the position of our Nigeria laws particularly Chapter IV of 1999 CFRN in relation to the baleful act of soldiers and the speech of General Usman Mohammed in respect of answering calls at checkpoints.  This article is also a call to preserve the dignity of citizens who are continually brutalized on account of answering calls at military checkpoints and the need to stop these military men from turning themselves to court of law.

The court in the case of OSONDU & ANOR V AG ENUGU STATE & ORS (2017) LPELR-CA/E/25/2016 defined Fundamental Right to mean any of the rights provided for in Chapter IV of the 1999 Constitution of Nigeria (hereinafter referred to as 1999 CFRN) and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. The court in another case of ESSIEN v INYANG & ORS (2011) LPELR-CA/C/103/2008 held that Fundamental Rights is more significant than the rights under other statutes or laws; it goes to the root of the day to day existence of the citizen and corporate living of citizens.

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Undoubtedly, by virtue of the provisions of Section 37 of 1999 CFRN, the privacy of every Nigerian citizen, the home, and correspondence, telephonic and other telegraphic communications are cherishingly guaranteed and protected. The fundamental rights which cannot be waived include the right of privacy of citizens, their homes and telephonic communications, preserved under Section 37 of the 1999 CFRN.

The right of privacy is not just a fundamental right but also a necessary human right and it was also provided for in Article 12 United Nations declaration of Human Right “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack his honour and reputation. Everyone has the right to the protection of the law against such interference or attack’’.

According to Black’s law Dictionary, Right to privacy means “Right to be let alone” the right of a person to be free from any unwarranted interference.  The fundamental right of privacy is essential to autonomy and the protection of human dignity, upon which many other rights are built. Privacy enables us to create barriers and manage boundaries to protect ourselves from unwarranted interference in our lives, homes or telephonic communications. By virtue of the right to privacy, a citizen is protected by the law to use his phone the way he wants it and wherever he wants except where there are laid down rules or law restricting the use of phone in such area or manner.

However, notwithstanding the provision of section 37 of 1999 CFRN, Section 45 has provided in unequivocal terms that:

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 (1) 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 or other persons

In view of the unequivocally far-reaching provision of Section 45(1) of 1999 CFRN as alluded above, I think it would be apt to state that, it is only a law that is reasonably justifiable that can serve as a restriction to the sections mentioned in Section 45.  The court in the case of OGUNNIYI V HON. MINISTER OF FCT & ANOR (2014) LPELR-CA/A/320/2009 Per Akomolafe-Wilson, J.C.A, defined law to mean any law enacted or having effect as if enacted by the legislative of a state and includes any instrument having the force of law which is made under a law. – Section 3 Interpretation Law Cap 52 of Laws of the Federation, 2004.

It is apposite to state that, there is no existing law enacted in the interest of defence or public safety that prohibits the use of phone or answering of calls at checkpoints. Like the FRSC Act, 2007, that makes the use of phones while driving an offence for drivers, the Army, if they want to make answering of calls at checkpoints an offence, should see that such opinion of them is passed to law. It is unconstitutional and a breach of fundamental right for army officers to brutalize citizens for answering calls at checkpoint.

It is a pitiable situation and a slap on our democracy to see Army Officers acting as a judge, prosecutor, complainant and enforcement officer in a case that has no law backing it up. Section 36 (12) of 1999 CFRN-

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

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To boot, army officers can be held liable for breach of the fundamental right of a citizen, if they seize, brutalize or subject the person to inhuman or degrading treatment for answering call at checkpoint. The only exception wherein a citizen can be liable for answering call at checkpoints is where there is a law restricting same. However, it is necessary to state that even if there is a law making answering calls at checkpoints an offence, the military still does not have the power to punish any person who violates such law; it is only the court that has such power.

In conclusion, it is apposite to restate that there is no law enacted under our Nigeria that is reasonably justifiable in the interest of defence or public safety that makes answering a call at checkpoint an offence. Therefore, it will be unconstitutional and a breach of right to privacy and dignity, if a person is punished for answering call at checkpoint because it is not an offence. If the military believes that their opinion is in the interest of defence, they should submit a bill to the National Assembly to make answering call an offence and these calamitous actions of theirs should be stopped and they should accord respect to the fundamental right to enable its preservation.

Chidera Nwokeke is a graduate of Law and a member of Amnesty International and Fellow of Young African Leaders Initiative. He has keen interest in dispute resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at Nwokekechidera@gmail.com or 08120945787.

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