By Olumide Babalola

In my PhD thesis, a chapter interrogates the origins of the right to privacy in Nigeria. Despite the dearth of academic resources on the historical trajectory of fundamental rights in Nigeria, the few accounts are at variance on how the bills of rights entered into our constitution. This article is my way of crying for help perhaps our learned ancestors who are still alive can offer some guidance on the first Nigerian Constitution that introduced fundamental rights either in the schedule or as a full chapter.

The inconsistent academic accounts
In an article published in 1960, Prof Alan Gledhill (Professor Emeritus of Oriental Laws at the University of London) traces the history of fundamental rights in the Nigerian Constitution to 1954 when he notes that: “Fundamental human rights have now been written into the Nigerian constitution, and the first two decisions involving fundamental rights in Nigeria, both from the Northern Court, have recently come to hand.” In the article, the learned professor references two cases filed in 1959 invoking the right to freedom of assembly, conscience and privacy guaranteed in the 6th schedule to Nigeria (Constitution) Order in Council, 1954. (see Alan Gledhill, ‘Fundamental Rights in Northern Nigeria’ (1960) 4(2) Journal of African Law, 115-
117).

Conversely, in another article published five years later, a former Solicitor General of the Federation, Godfrey Amachree writes that not until the 1957 Constitutional conference in London, fundamental rights weren’t known to the Nigerian constitution. He notes that: “At the Constitutional Conference held in London in May and June 1957, it was agreed that provisions should be made in the Independence Constitution for fundamental rights…The Commission divided the fundamental rights into five groups which they recommended should be included in the Constitution… The recommendations were adopted and incorporated in the Constitution as Chapter 3” (see Godfrey K. J. Amachree, “Fundamental Rights in Nigeria” (1965) 11(2) Howard LJ 463).

As far as my research has led me, I am yet to find any other published author who has written on the constitutional debut of fundamental rights in Nigeria, hence these contradictory academic accounts remain unresolved.

Unreconciled judicial accounts

In 1959, the late learned sage – FRA Williams, SAN – filed a suit on behalf of J.S. Olawoyin seeking the following relief: “A declaration that Part VIII of the Children and Young Persons Law 1958 has been rendered void and unenforceable by the provisions of sections 7, 8 and 9 of the Sixth Schedule to Nigeria (Constitution) Order in Council 1954”

While delivering the judgment on appeal, Unsworth FJ acknowledged the inclusion of fundamental rights in the 1954 Constitution thus: “The Constitution in force at the time of the hearing in the lower Court was the Nigeria (Constitution) Order in Council, 1954 (hereinafter referred to as the 1954 Constitution) and the sections of the Sixth Schedule to that Constitution referred to in the claim contained provisions protecting fundamental rights relating to private and family life …” (See J.S. Olawoyin v. Attorney General of Northern Nigeria (1962) 1 ANLR 324).

In 1982, the Court of Appeal was invited to rule on whether Shugaba Darman’s deportation violated his fundamental rights where Karibi-Whyte, JCA (as he then was) recounted this historical trajectory of fundamental rights in Nigeria thus: “The earliest attempt to incorporate fundamental rights in the Constitution was at the 1957 Constitutional Conference… It however went on to recommend the entrenchment in the Constitution of fundamental rights as a safeguard for minorities, as a check against the abuse of majority power…Relying on the nature and the confidence reposed on the efficacy of these provisions as a guarantee of the rights and liberties of the individual, they were introduced in time before the elections campaign at the end of 1959.” (see Federal Minister of Internal Affairs v. Shugaba Abdulrahman Darman (1982) 2 NCLR 915)

Conclusion
The documented accounts point to two different dates and incidents as the origin of fundamental rights in the Nigerian Constitution. Perhaps, this confusion would have been resolved if the publicly accessible 1954 Constitution had a sixth schedule at all. So much has been written about constitutional development in Nigeria but this historical vagueness remains unclarified.