The section 42 of the amended 1999 constitution of the Federal Republic of Nigeria can be found under chapter 4 of the constitution which takes care of the fundamental human rights of the Nigerian citizens. This particular section 42 deals specifically with right to freedom from discrimination of the Nigerian citizens, that is, the right to equality of citizens which is one of the cornerstones of human rights not only in Nigeria but also everywhere in the world.
Looking at the preamble to the Universal declaration of human rights of 1948, words like ‘’equal and inalienable rights of all members of the human family’’ , ‘’inherent dignity’’ , and ‘’equal rights of men and women and of nations large and small’’ are evidently what makes it tick. In article 1 of the same charter, it further provides:
‘’all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’’
The Banjul charter also made clear Africa’s stance on discrimination as it provides, in chapter 1( Human and people’s rights), article 1;
‘’every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’’
This is much quite similar to what we have in the section 42 of the 1999 constitution as amended. According to section 42(1);
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religions or political opinions.
According to Gasiokwu M.O.U. in his book Human Rights: History, Ideology and Law, he noted, “discrimination is the most comprehensive, systematic and severe deprivation of human rights.’’ Thus a number of international and National instruments have been made which prohibits discrimination in one form or the other. These efforts have been duplicated in the provision of regional charters and conventions and national constitutions, which is very obvious in the 1999 constitution of Nigeria as amended and previous constitutions before that.
Meanwhile, the word ‘only’ used in s. 42(1) means that discrimination is prohibited only when solely based on any of the specified grounds. It would appear then that if discrimination is on any of these and other grounds it is not prohibited as evident in the case of Obeya v. Soluade(1969) NNLR 17. In that case, s. 387 of the Penal Code Law of Northern Nigeria prescribed a punishment for adultery under criminal Law which was not so all over the country. The court held that, “this was not discriminatory because it only gave effect to the personal law of particular communities, and because it was desirable ‘to protect and sustain public morality among the members of that community’.’’
Also in relation to executive or administrative action outside the provisions the of the Law, in Adewole v. Jakande(1981) 1 NCLR 25, where a circular purported to indicate that only public schools would be allowed to operate in the state, the court held, inter alia, that it was unconstitutional, since it tended to subject the citizens of that state to disabilities not available in other states. It should be noted that even where a law is non-discriminatory, if executed in a discriminatory fashion, the action will be declared unconstitutional by the courts, as either being a discriminatory practical application of the law, or merely unconstitutional executive act. Such an action on the part of the judiciary would be dealt with under the rules of natural justice and especially the rule against bias. Furthermore, the prohibition under s. 42 of the Nigerian constitution covers all government officials including prosecuting attorneys or public prosecutors, federal, state and local government officials, individuals acting with state officials & so on.
It would appear that generally, the section does not cover actions of individuals who are not government officials. In Nigeria however, the situation seems to have been resolved on a on a general basis rather than in relation to particular provisions, which would have been a more acceptable approach. In Madu v. Onuaguluchi(1985) 6 NCLR 356, the trial court held that fundamental rights were not enforceable against private individuals but only against public officials, though he noted that there were no exhaustive reasons for this. On appeal, the Court of Appeal held that such rights were enforceable against individuals.
In Chief Omu Uzo Ukwu v. Igwe Chukwudebelu Ezike Ezeonu II(1991) 6 NWLR 708, the court held that from the wordings of s. 30-40 of the 1979 constitution which provided for fundamental human rights, violations of such rights may entitle individuals to seek redress against individuals or state, having regard to the circumstances of the right violated. Also in the case of Onwo v. Oko(1996) 6 NWLR 584, the appellant, a Christian of the Assemblies of God sect, alleged that contrary to her belief, the respondents assaulted her, forcefully shaved her hair, locked her in a room and removed her belongings from her marital home, in conformity with traditions of mourning her dead husband who was not a Christian. The trial court dismissed her application on the grounds fundamental rights were not enforceable against individuals. On appeal, the Court of Appeal held unanimously thet it has become become necessary to extend the protection of against the acts of the state to that of fellow citizens. Thus, where an individual invades the rights of a person, the victim has a remedy.
It should be noted that prohibition of discrimination under s. 42 is in relation to expressly specified grounds and pertains particularly to Nigerian citizens. Thus discrimination is prohibited on the grounds that a citizen is of the following;
(a) Particular community, ethnic group or place of origin. See the UN, Treaty Series, vol. 660 at p. 195,
(b) Sex- in the locus classicus case of Augustine Nwafor Mojekwu v. Caroline Mgbafor Mojekwu(1997) 7 NWLR 288, under the Olu Ekpe custom of Anambra State, only male children can inherit their father’s property. When a man dies leaving no male child behind, his brother inherits his property and if this brother dies, his own male child inherits the property. The Court of Appeal condemned the practice as repugnant to natural justice, equity and good conscience,
(c) Religion. See the case of Ojeigbe Ubani v. Federal Electoral Commission(1961) All NLR 277.
(d) Political Opinion. This prohibition is for the prevention of any discrimination based on differences of political ideologies or affiliations. This is so except such ideology is subject to limitations on any of the grounds stated under the provisions of s. 45 of the constitution.
The s. 42(2) of the constitution further provides that; “no citizen of Nigeria shall be subjected to any disabilities or deprivation merely by reason of the circumstances of his birth.’’ It is also worthy of note that the provisions of s.2 of the African Charter on human and peoples’ rights which is part of our laws and can be used to cover such situations also provides for equal enjoyment of rights without distinction of any kind.