User talk:Mubasshgusau

LEGALITY OR OTHERWISE:PHONE CALLS, RECEIVING CALL,MAKING USE OF MOBILE PHONE WHILE AT THE VICINITY OF MILITARY OR POLICE CHECKPOINT IN NIGERIA.

It's the common practice that most of  Nigerians to their  belief;  phone call making, recieving phone Call or using personal phones while at vicinity of the of the Militry, Police and other Paramilitary CHECKPOINT is categorically prohibited by a defined  Law in Nigeria. This is being the perception of the majority of Nigerians which even the educated one are not excluded.

Many people were victim of the fabricated offence that no one can directly point out the bases of this so called "offence" in any of our local codes. Thus some were brutalized, some also were victimized, whereas some were Harassed,Queried, intimidated above all the violation of citizens inherent right to dignity and privacy which are fundametal human rights as provided under Chapter 4 1999 CFRN. The outlawed parctice by Nigerian Army Officers, Police Officers, and other paramilitary officers acting as a judge, prosecutor, complainant and enforcement officer in a case that has no legal backing.

What is 'offence' according to legal parlance?

Section 36 (12) of 1999 CFRN enshrines:

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

Section 10 of the Criminal Act captures:

"FEDERAL LAW :means any Act enacted by the National Assembly having effect with respect to the federation and any Act enacted before the 1 day of October ,1960 which under the Constitution of the federal Republic of Nigeria has effect with respect to the federation;

"LAW OF A STATE: means any written Law enacted by the House of Assembly of the state or having effect as if it were enacted by the said House of Assembly".

"LAW include any order,rule of court,regulation or proclamation made under the authority of such law."

In the case of OGUNNIYI Vs  HON.MINISTER OF FCT & ANOR (2014)LPELR-CA/K/268, 2009.

Akomolafe Wilson,J.C.A, defines :

'Law' to mean any instrument having the force of the law which is made under a law"

Note that only what has been defined as Law in the a above cited provisions can be termed as law.Thus can we term MAKING CALL AT CHECKPOINT as illegal or an offence defined by law? The answer to this hypothetical poser is in negative!

JUXTAPOSITION AND JUSTIFICATION OF THE ABOVE ASSERTION

Section 11 of the Criminal code succintly puts:

"A person shall not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred."

However, based on the findings thereof there's no where to be found a recognized Law, Statutory Provision, Act, Judicial precedents and the like even nothing of its kind could be seen in the Police Act and neither  Armed Forces Act contemplates same. In fact no any other enactment found to clear up the air in the interest of defence or public safety and even the Nation's Security its indeed worrisome the harshness and unnecessary strictness attached to the  illegal prohibition to make use of phone, call or recieving call within the Checkpoint in Nigeria; as it yet leaves in vacuum in our laws and unjustified violation of people's rights of expression.

WHAT DOES BAN OF PHONE CALL & RECIEVING CALL ENTAILS IN THE LAW?

It's unequivocally that prohibition of the any act which has not been defined by law unconstitutional so also prohibition of an act of making call and receiving call while within the radios of military or police Checkpoint is baseless, unconstitutional and  breach of the Nigerian  citizens fundametal human rights guaranteed under  CHAPTER 4 OF 1999 CFRN and the Right provided under AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS.

WHAT WILL THE PUNISHING PERSON MAKING CALL & RECIEVING CALL WITHIN THE VICINITY OF CHECKPOINT CONSTITUTES UNDER OUR LAWS?

(A) BREACH OF THE RIGHT TO DIGNITY AS HUMAN PERSON:

S.34 (1) OF the1999 CFRN provides:

(1) Every individual is entitled to respect for the divinity of his person, and accordingly; (a) No person shall be subjected to torture or to inhuman or degrading treatment (b) No person shall be held in slavery or servitude; and (c) No person shall be required to perform force of compulsory labour

It's no doubt that privacy ranks very high in the indices of the respect of the dignity of individuals. EXCEPT in certain circumstances in SECTION 34 (2) OF THE 1999 CFRN.

(B) BREACH OF RIGHT TO FREEDOM OF MOVEMENT

S.41 (1) of the same 1999 CFRN encapsulates:

"Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof...."

(C) BREACH THE RIGHT TO PRIVACY

S. 37 OF the supreme 1999 CFRN reveals:

" The privacy of citizens their homes, correspondence, telephone conversations and telegraphic communication is here by guaranteed and protected."

ARTICLE 12 UNITED NATION DECLARATION OF HUMMAN RIGHT is to the effect that:

"No one Shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack his honor and reputation. Everyone has the right to the protection of the law against such interference or attack"

BLACK LAW DICTIONARY 1196 (6th ed.1990)

Defines 'right to privacy' as "the right to live or life of seclusion, the right to be free from unwanted publicity, and the right to live without unwanted interference by the public in matters with which the public is not necessarily concerned."

OXFORD DICTIONARY OF LAW SIXTH EDITION p.410

posits "privacy" as: the right to left alone.The right to private life as set out in ARTICLE 8 of the European convention on HUMMAN Right...the right includes privacy of communications (Telephone call, correspondence, etc).

However, In the Case of EZEADUKWU VS MADUKA the court held:

"By virtue of section 37 OF THE 1999 CFRN it is illegal and unconstitutional for the police or any other security official to search any person's residence without lawful warrant, they have no right to search any individuals body on the road, seize and search a person's TELEPHONE etc. To invade a person's home or correspondence, the authorities must obtain a warrant.It is unconstitutional to carry-out surveillance activities in and around a person's home or over his TELEPHONE and other correspondence except such is justifiable under section45 OF THE 1999 CONSTITUTION FEDERAL REPUBLIC OF NIGERIA."

In another foreign case UNITED STATES Vs KRAMER 77F 2d 789,793 (7th cir.1983), cert.denied, 464 U.S 962 (1983)

It is provided that: "Privacy is comprising three essential aspect; 1- An individuals interest in peace and quiet 2- An individuals interest in relaxation & freedom public scrutiny 3- An individuals interest in public esteem"

NOTE:

In section 45 1999 CFRN per se RESTRICTIONS ON & DEROGATIONS from the fundamental Human Rights are provided as follows:

(1) Nothing in Section 37,38,39,40 and 41 of this Constitution shall invalidate ANY LAW that is reasonably justifiable in a democratic society. (a) in the interest of defence, public security, public order,pubic morality, public health or (b) for the purpose of protecting the right and freedom or other persons.

Inline with the Provision above mentioned note that however only a REASONABLE & JUSTIFIABLE LAWS that enjoy the restrictions stated in the circumstances therein in the SECTION 45 OF 1999 CFRN.

Moreover, the Army, Police and other security Officers can be held liable for jeopardizing themselves in contravention with the illegally invented menace and unjustifiable deprivationss leading to the breach of the Nigerian citizens' fundametal Human Rights However it is panic the way and manner in which citizens of Nigeria are being inhumanly degraded, immorally brutalized, unlawfully detained, illegaly harassed, barbarically intimidated etc.these include many more which are obviously akin to injustice, fairness and breaches of citizens' right to movement, right to dignity of human person and right to privacy as elegantly codified under Sections 37, 34, and 41 of the 1999 CFRN.

CONCLUSION

Nigeria like any other country in the world an act or omission does not constitute a crimnal offence unless such act or omission is prescribed as an offence and with punishment attached thereof .Nontheless it's therefore unconstitutional and illegal to punish a person in Nigeria based on an " OFFENCE " which is alien to our laws.

Likewise, even if Making call, recieving Call and using of phone is defined by a written Law as an offence it's not possible an Army officer to be the Prosecutor,'The Judge, and the law enforcement officer at the same time.✊As it boldly antagonises the majestic legal maxim of "Nemo judex in causa sua"

Finally, if the security officers deem to have believed the use of phone within the vicinity of the Checkpoints in Nigeria is highly dangerous to the public  security and for the public interest they should adopt appropriate measures by appeal for presenting a "BILL" for the Prohibition of Using Mobile Phone within the Security Checkpoints in Nigeria.

Compiled By: Mubashar Umar 400Level Student Faculty of Law, Usumanu Danfodiyo University Sokoto +2348035035844 mubasshgusau@gmail.com