BY CHARLES  EZEAGU

The Police arrived at the compound and drove back to their station from where they deposited the body of the deceased in the mortuary. At the end of the trial, the trial court convicted the appellant and 1st Accused of murder and sentenced them to death by hanging.

On appeal to the Court of Appeal, the court unanimously allowed the appeal and held, inter alia, that Section 30 of the 1979 Constitution (in pari materia with section 33 of the 1999 Constitution, as amended) allows a person to use such force as is reasonably necessary for the defence of his property. The court of Appeal considered the force used in the instant case as reasonably necessary in the circumstances.

With utmost respect, this decision was made in error by the Court of Appeal. No doubt, the deceased was already over-powered and arrested before he was beaten to death. In that circumstance, the force used after he had been subdued cannot be justified under Section 30(2) of the 1979 Constitution. The law requires that the deceased ought to have been handed over to the Police alive.

A better position was taken by the Court of Appeal in the case of Ahmed V. The State (1998) 5 NWLR 493 CA, when the Court rejected a similar defence put up by the appellant that he acted in defence of property. It is proper to submit with applause, that the Court of Appeal was right in holding that if the accused had acted in defence of property, the force used and the weapon employed was out of proportion with the way such property should be defended against attackers who were not armed.

1.5    Duty of the State to Secure, Not to Endanger Life
The state has every machinery (will, personnel, equipment, diplomacy and otherwise) with which to protect, preserve and sustain the lives of the citizens. However, it is necessary at this juncture to see whether Section 33 of the 1999 Constitution (as amended in 2011) merely imposes a negative obligation on the state not to take life, or whether it imposes any positive obligation on state agencies to act to save life.

At the international level, the European Commission on Human Rights has indicated that a similar provision in the European Convention on Human Rights imposes obligations on states to take appropriate steps to safeguard life. See: Robertson, Human Rights in Europe: A study of the European Convention on Human Rights (Manchester: Manchester University Press, 1993) P. 25. This will, for instance, entail taking appropriate steps to promote security and to prevent murder and other crimes threatening life. On a highly rational note, the Commission held that states are not duty bound to provide bodyguards indefinitely to protect the lives of people who fear that they are likely to be attacked. See: X V. Ireland (6040/73) CD 44, 121 Eur Com on HR.

The doctrine of the rule of law requires that there must be effective government capable of maintaining law and order. The Civil Liberties Organization in Nigeria has made remarkable inputs on the right to life in relation to the state. The United Nations Human Rights Committee has noted that the expression “inherent right to life” cannot be properly understood in a restrictive manner and the protection of this right requires that measures be undertaken to reduce infant mortality, to increase life expectancy and to eliminate malnutrition and epidemics.

The Committee also considered that the right to life includes a duty to prevent wars, terrorism, acts of genocide and other acts of mass violence causing arbitrary loss of lives. It is therefore submitted that the right to life requires states not only to abstain from taking life but also to take positive steps to protect life.

Another important question is whether the existence of a state of affairs created by the state which will endanger the life of the people is a violation of this Section 33 of the 1999 Constitution (as amended). For instance, the hike in the price of Premium Motor Spirit (PMS) in the early 2012 in Nigeria practically imposed severe hardship on Nigerians. Is this imposition not a dereliction of duty on the part of government in power on the right to life of the citizens? The poor state of the Nigerian infrastructural economy occasioned by corruption and religious bigotry also poses another question as to whether it is not a denial of the means of livelihood of the citizens by those in control of the affairs of the state. It is hereby submitted that the state has failed in its duty to secure life. It has gone on a frolic of its own to endanger life instead of protecting it; as those hardships occasioned by it amount to a denial of the right to the lives of the citizens.

It is further submitted that the various governments in power in Nigeria, whether military or civilian have assumed absolute and dictatorial positions that always affected the lives of Nigerians adversely. For instance, all the administrations have bluntly insisted and ensured that Chapter 2 of the Constitution (ie – fundamental objectives and directive principles of state policy; Sections 13 to 24 of the 1999 Constitution, as amended) remain non-justifiable. Does this not amount to an indirect denial of the basic rights that directly affect life listed as fundamental rights in Chapter 4 of the same Constitution?

For avoidance of doubt, items provided for under the fundamental objectives and directive principles of state policy (S. 13-24) are –

(a)Fundamental obligations of the Government; (b)The Government and the people
(c)Political objectives; (d)Economic Objectives; (e)Social Objectives; (f)Educational objectives;
(g)Foreign Policy Objectives; (h)Environmental Objectives; (i)Directive on Nigerian Cultures;
(j)Obligation of the Mass Media; (k)National ethics, and
(l)Duties of the Citizen.

It is exactly 10(ten) years that, as an adhoc staff of the National Human Rights Commission NHRC Abuja, I did initiate a campaign towards the justiciability of the above sections of the Constitution in Chapter 2.  This effort of mine never saw the light of the day because the government in power did not have the political will to widen the rights of the citizens.  Was it not highly ridiculous of the state to have amended the Constitution two times in 2011 just for the purpose of election?

Who can accurately calculate the losses suffered through our common wealth to unsuccessfully amend a section of the same Constitution in order to achieve the former President’s third term agenda? Why are there no efforts to broaden the rights that affect the lives of Nigerian citizens? The answers to the foregoing questions shall wait for another day.
The foregoing discussion shows that the rights of citizens in Nigeria have remained stagnant since independence in 1960. Where then lies the freedom, the rights and the envisaged liberal progression of the human person in this part of the world? One may therefore be right to raise an alarm for steps forward to be taken regarding the right to life under our Constitution.

1.6    Liberal Approach To Right to Life
The Concept of Right to Life under the Nigerian Constitution ought to be expanded to include the right to live with human dignity and all that goes with it, namely, the bare necessity of life such as adequate food, nutrition, clothing, protection, healthcare, education and shelter over the head. It has been held in GBEMRE VS. SHELL; FHC/B/CS/53/05 (UNREPORTED) that gas flaring is illegal, unconstitutional, a breach of the fundamental human right to life and it should cease. Has gas flaring ceased in Nigeria? What is the government and other stake-holders doing about that?

Liberal approach seem to have been adopted in the Gbemre’s case by way of expansion of the Constitutional right to life through judicial activism. However, much ought to be done to embrace the global realities of our time. This will take us to the examination of the dynamic Indian Constitution and case law on the Right to Life.
Concluded.