UNDERSTANDING DISCRIMINATION UNDER NIGERIAN LAW: A CONSTITUTIONAL AND JUDICIAL PERSPECTIVE

CONSTITUTIONAL FRAMEWORK AGAINST DISCRIMINATION

SECTION 42 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

Section 42(1) provides that:

> “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…”

This provision unequivocally guarantees the RIGHT TO FREEDOM FROM DISCRIMINATION, and any law, policy, or action that contradicts this is unconstitutional.

JUDICIAL INTERPRETATION OF DISCRIMINATION IN NIGERIA

The Nigerian courts have pronounced on the concept of DISCRIMINATION in a number of landmark cases, giving flesh to the constitutional guarantee and expanding its reach.

1. MOJEKWU V. MOJEKWU (1997) 7 NWLR (Pt. 512) 283

In this case, the Court of Appeal struck down the Oli-Ekpe native law and custom of Nnewi, which disqualified women from inheriting property. Justice Niki Tobi condemned the practice as DISCRIMINATORY and incompatible with constitutional values.

> “Any form of societal discrimination against women is a violation of the anti-discrimination provisions in our Constitution. Customary laws must bow to constitutional supremacy.”

This case remains a seminal authority on GENDER-BASED DISCRIMINATION in Nigeria.

2. OKAFOR & ORS V. LAGOS STATE GOVT. & ORS (2016) LPELR-41066(CA)

The Court of Appeal held that discriminatory allocation of state resources or services on the basis of state of origin contravenes Section 42 of the Constitution. The applicants, who were not “indigenes” of Lagos, were denied access to state-run education benefits.

The court ruled that:

> “Government owes a duty to treat all citizens equally. Any policy that promotes ‘indigeneity’ to the disadvantage of other Nigerians is unconstitutional.”

This case emphasizes that STATE OF ORIGIN-BASED DISCRIMINATION has no place in a constitutional democracy.

3. ABASIEKONG V. THE STATE (1994) 9 NWLR (Pt. 366) 379

The court here addressed RELIGIOUS DISCRIMINATION in public employment and declared that no Nigerian citizen should suffer disadvantage in job opportunities due to their religion or belief system.

INTERNATIONAL INSTRUMENTS AND NIGERIA’S COMMITMENTS

Nigeria is a signatory to various international human rights instruments that prohibit DISCRIMINATION, including:

The Universal Declaration of Human Rights (UDHR)

The African Charter on Human and Peoples’ Rights (ACHPR), which has been domesticated in Nigeria via the African Charter (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria 2004

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

In ABACHA V. FAWEHINMI (2000) 6 NWLR (Pt. 660) 228, the Supreme Court affirmed that ratified international treaties with domestic legislation status are enforceable in Nigerian courts.

SECTORS WHERE DISCRIMINATION IS PREVALENT IN NIGERIA

1. EMPLOYMENT AND LABOUR RELATIONS

Cases abound where employers engage in GENDER, ETHNIC, OR RELIGIOUS DISCRIMINATION in hiring, promotion, and remuneration. Section 17(3) of the Constitution underscores the RIGHT TO EQUAL PAY FOR EQUAL WORK, yet disparity remains widespread.

2. EDUCATION

Admission policies in some state institutions favour “indigenes,” violating Section 42. The Okafor case (supra) is illustrative.

3. HOUSING AND PROPERTY OWNERSHIP

In some parts of Nigeria, non-indigenes are not allowed to own land or rent property, especially in communal societies. This TRIBAL DISCRIMINATION violates not only Section 42 but also Section 43, which guarantees every citizen the RIGHT TO OWN IMMOVABLE PROPERTY anywhere in Nigeria.

THE ROLE OF THE NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

The NHRC, established by the National Human Rights Commission Act, 1995 (as amended), is empowered to investigate complaints of human rights violations, including DISCRIMINATION. Individuals who feel aggrieved can file petitions for redress. However, the Commission lacks prosecutorial powers and often faces resource constraints.

CHALLENGES IN ENFORCING ANTI-DISCRIMINATION LAWS IN NIGERIA

1. Cultural and Religious Norms: Many customary and religious laws continue to discriminate, especially against women.

2. Weak Institutional Enforcement: Limited capacity and political interference hinder agencies like the NHRC and legal aid councils.

3. Judicial Delay and Cost: Many victims of DISCRIMINATION cannot afford prolonged litigation.

4. Lack of Awareness: Most citizens are unaware of their rights under Section 42 and other laws.

RECOMMENDATIONS FOR STRENGTHENING LEGAL PROTECTION AGAINST DISCRIMINATION

1. Legal Reform: Amend discriminatory provisions in laws and codify penalties for violators.

2. Institutional Strengthening: Provide adequate funding and autonomy to the NHRC and legal aid bodies.

3. Public Enlightenment Campaigns: Educate the public on their rights through civic engagement and school curricula.

4. Judicial Activism: Courts must continue to interpret the Constitution in a progressive, rights-centered manner.

5. Enactment of a Comprehensive Anti-Discrimination Law: Nigeria needs a single, robust legislation that codifies all forms of DISCRIMINATION, outlines penalties, and empowers victims to seek redress.

CONCLUSION

DISCRIMINATION in any form is a violation of the inherent dignity and equality of the human person. The Nigerian Constitution, particularly Section 42, provides a bulwark against it. However, constitutional guarantees must be backed by judicial courage, political will, and societal reform. Until we confront and dismantle all forms of DISCRIMINATION, Nigeria’s journey to justice, equity, and unity remains incomplete.

It is not enough to condemn DISCRIMINATION; we must proactively ERADICATE IT through law, policy, and civic engagement.

Chukwuebuka Promise Benneth, Esq., Partner at Blueprint Attorneys LP. He specializes in Corporate Law and Governance.