Right to Freedom from Discrimination
This right is entrenched in the preamble of the Charter to the United Nations which states that one of the main objectives of the UN is to promote and encourage respect for human rights and for fundamental freedom for all without distinction as to race, sex, language or religion.
It is also entrenched in Article 1 of the UDHR which states that all human beings are born free and equal in dignity and rights.
Discrimination is the most comprehensive systematic and severe deprivation of human rights. The issue of Apartheid in South Africa has been used as a prominent example.
S.42(1) of the 1999 constitution states:
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.
This provision is further reinforced by S.15(2) which states:
Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.
It should be noted that the word ‘status’ used under S.15 is wide enough to include other situations not expressly provided for under S.42. also, the word ‘only’ used in S.42 means that discrimination can only be prohibited when it is solely based on any of the above stated groupings being a particular community, ethnic group or place of origin, sex, religion, political opinion, etc.
See the case of Adewole v Jakande where a government circular purported to make only public schools operative in the state and the court held the circular to be unconstitutional as it was discriminatory in nature, inter alia.
The position of the law is the same within the United States jurisdiction. In the case of Evans v Abney thus where a devisee’s will expressed that a certain property was to be used for a public park but should never be used by negroes, the court held that this will was discriminatory and the property be returned to the defendant’s heirs.
In the locus classicus case of Mojekwu v Mojekwu which revolved around discrimination based on sex, under the Olu Ekpe custom of Anambra State, only male children were allowed to inherit their father’s property. The court of appeal condemned the practice as repugnant to natural justice, equity and good conscience.
Discrimination based on religion is also disallowed by the state. Evidentially, S.10 of the constitution states that the State shall not be allowed to adopt any State religion or establish a religion as the sole religion. The purpose of this is to prevent any discrimination on the part of the government through the imposition of a particular religion as state religion. In the light of this, the fact that some Northern states have decided to uphold sharia law as State law and religion can be seen as discriminatory. See the case of Ojeigbe Ubani v Federal Electoral Commission where the applicants claimed that, by fixing and holding elections on a Saturday, the government denied their franchise as well as violated their right to be free from discrimination. The applicants all belonged to the Seventh Day Adventists Christian denomination whose ethics, according to them, did not allow them to vote on a Saturday, which is their appointed day of worship.
In its judgment, the Court came to the conclusion that, assuming all the members of the Seventh Day Adventist Church who alleged a denial of their franchise had voted in that election, the individual who was declared a winner would still have emerged victorious.
However, in our humble view, the Court made a serious error. The question before it was whether the complainants had been denied their right to vote. It was not whether or not their votes would have affected the electoral outcome. Clearly, the validity and potency of this right is not dependent on whether or not exercising it would affect the result of an election. This decision therefore detracted significantly from the right in question. It is of doubt that this was what the legislation intended.
Also see the provision of S.42(2) which states:
No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
While S.42 does not provide expressly for discrimination in relation to grounds such as incurable diseases, it can be said that the word ‘status’ under S.15 covers this. In the South African case of Hoffman v South African Airways for example, the court held that the denial of employment to an applicant on the ground that he was HIV positive, amounted to unfair discrimination contrary to the right to equality entrenched in S.9 of the South African Constitution.
There exist overall and however, a limitation to the scope of infringement of right to freedom from discrimination under S.42(3) of the 1999 constitution which states:
Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.