Since Osawe & 2 Ors v Registrar of Trade Unions (1985) 1 NWLR Pt 4 Pg 755, the Supreme Court of Nigeria, also known as SCONA, has consistently held that Section 45(1) of the Constitution of the Federal Republic of Nigeria, CFRN, constitutes a limitation clause on the fundamental rights enshrined in Sections 37 to 41 of the CFRN. This assertion gives rise to debates as to whether Section 45(1) of the CFRN, as affirmed by SCONA, is indeed a limitation clause on fundamental rights or whether it is an unconstitutional judicial construction that has prejudiced the guaranteed fundamental rights of persons in Nigeria.
The fundamental rights enshrined in Sections 37 to 41 of the CFRN are not limited by Section 45(1). These rights are rights of the people that prevail over the ordinary laws of the land and are prior to the political society itself. It is important to note that these fundamental rights are enshrined in the Constitution of the Federal Republic of Nigeria in Articles 33 to 45, and can only be restricted by legislators subject to constitutional approval.
Different national constitutions use various constitutional mechanisms to control fundamental rights. In the case of the CFRN, these mechanisms range from exemption terms or phrases in a fundamental right article excluding certain attributes of the protected right, to the creation of exceptions through subsections, to the use of the CFRN schedules to enable legislators to enact ordinary laws in areas already covered by the fundamental rights articles, and to the limitation clauses on fundamental rights.
It is crucial to note that the use of any mechanism outside those provided for in the CFRN is inadmissible. A fundamental right that escapes all these constitutional limitation mechanisms is not, however, absolute. The courts are there to balance competing absolute rights.
In Aviomoh v COP (2022) 4 NWLR (Pt. 1819) 69, SCONA held that section 45(1) of the CFRN excludes the supremacy provision of section 1(3) of the CFRN. This conclusion is questionable in light of the clear provisions of the CFRN and previous decisions of SCONA. To recognise the constitutional limitation clause of section 45(1) of the CFRN over sections 37 to 41 of the CFRN is to admit that legislatures can limit rights by criminalising their exercise.
In conclusion, it is essential to respect the constitutional limits established to ensure the protection of the fundamental rights of individuals. Fundamental rights are the essential basis of any democratic society and must be protected with the utmost vigourThe challenge to the CFRN’s fundamental rights limitation clause raises important questions about the protection of individual freedoms and the limits of legislative power.