Section 45 and 46 of the 1999 Constitution: Exceptions to Rights and Court with Jurisdiction


The 1999 Constitution

Section 45 (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;

(This means that the Rights guaranteed in sections 37 (Right to private and family life), 38 (freedom of thought, conscience and religion), 39 (freedom of expression and the press), 40 (Right to peaceful assembly and association) and 41 (freedom of movement) are not unconditional. These rights are can be breached by any practical and acceptable law in a democratic society relating to; )

Section 45 (1) (a)

in the interest of defence, public safety, public order, public morality or public health; or

[Defence (for instance, the right to freedom of the expression is breached when people are arrested for saying or writing things that threaten Nigeria’s internal security)]

[Public Safety (for instance, the right to freedom of movement is breached when policemen and soldiers stop and search vehicles on the highway)]

[Public Order (for instance, the right to association is breached when the government bans some associations because they cause violence and disorder)]

[Public Morality, (for instance, the right to private life is breached when the government banned same sex marriages and unions)]

[Public Health (for instance, the right to freedom of religion was breached when some places of worship were forced to close down because of COVID-19), or; ]

Section 45 (1) (b)

for the purpose of protecting the rights and freedom of other persons.

(In order to protect other people from abuse and harm.)

Section 45 (2)

An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency;

(When there is an emergency (e.g. COVID-19, War, etc.), National Assembly has the powers to make laws (also known as Acts) that may breach the rights guaranteed in sections 33 and 35 in order to deal with that emergency. Such law created in that situation must however be reasonably justifiable for that particular situation or emergency.)

Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.

[But this provision will not affect sections 33 (Right to life) except when a person is killed during war and 36(8) (which says that nobody can be punished for something he did which was not a crime at the time when he did it AND a person cannot be given a punishment greater than the punishment for that crime at the time when it was committed)]

Section 45 (3)

In this section, a “period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.

(In this section, EMERGENCY means any period between when the President of Nigeria exercises his powers under section 305 of the Constitution to declare a State of Emergency and when he revokes it.)

Section 46 (1)

Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(If any of your rights that are listed from sections 33 to 44 has been breached or is currently being breached or is about to be breached in any State in Nigeria (including the Federal Capital; Territory, Abuja), you can go to any High Court to ask for compensation.)

Section 46 (2)

Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.

(Subject to the provisions of the Constitution, a high court has the power to be first court (original jurisdiction) to judge a case brought in connection with this section and this same high court can make orders, issue commands or give such directions which it considers necessary to enforce the rights of any person in that state who applies to the court to enforce his fundamental rights.)

Section 46 (3)

The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.

(This provision empowers the Chief Justice of Nigeria (this person is the head of the Judiciary at the National level) to make practical rules on how this section will be carried out.)

Section 46 (4) (a)

The National Assembly –

may confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section; and

(This means that the National Assembly can give more powers to a high court where necessary to help the court to function better in handling cases brought to it based on the powers already conferred on the high court in this section.)

Section 46 (4) (b) (i)

shall make provisions-

for the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and

(What this means is that the National Assembly shall specify how underprivileged people whose rights are breached but who cannot afford a lawyer can get financial assistance in order to get a lawyer to help them pursue their case)

Section 46 (4) (ii)

for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.

(This means that the National Assembly shall also specify ways to make sure that when underprivileged people complain that their right has been breached and they can’t afford to get a lawyer that their claim is strong and their need for financial help or legal aid (legal services) is real.)

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