AUTHOR: AGBAKOSI ADEDOLAPO
Student (LL.B), Faculty of Law, University of Lagos
The right to freedom from discrimination is internationally recognised as a human right and enshrines the principle of egalitarianism. The right to freedom from discrimination is recognised in the Universal Declaration of Human Rights and enshrined in international human rights law through its inclusion in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In Nigeria, the right to freedom from discrimination is recognised under Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) as amended.
This particular section deals specifically with right to freedom from discrimination of the Nigerian citizens, that is, the right to equality of citizens which is one of the cornerstones of human rights not only in Nigeria but also everywhere in the world. Looking at the preamble to the Universal Declaration of Human Rights (UDHR) of 1948, words like “equal and inalienable rights of all members of the human family” “inherent dignity” and “equal rights of men and women and of nations large and small” are evidently what makes it tick. In article 1 of the same Charter, it further provides:
“all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
The word ‘only’ used in section 42(1) of the CFRN means that discrimination is prohibited only when solely based on any of the specified grounds. It would appear then that if discrimination is on any of these and other grounds it is not prohibited as evident in the case of Obeya v. Soluade, (1969) NNLR 17. In that case, section 387 of the Penal Code Law of Northern Nigeria prescribed a punishment for adultery under criminal Law which was not so all over the country. The court held that, “this was not discriminatory because it only gave effect to the personal law of particular communities, and because it was desirable ‘to protect and sustain public morality among the members of that community’.
In furtherance of understanding the incapacities of convicted felons in Nigeria, it is pertinent that we know those who are called convicted felons. The term felony, in some common law countries, means a serious crime; a convicted felon is therefore any individual who has been convicted by a court of law for having committed a felonious crime. Loss of rights due to criminal conviction refers to the practice in some countries of reducing the rights of individuals who have been convicted of a criminal offence. The restrictions are in addition to other penalties such as incarceration or fines. In addition to restrictions imposed directly upon conviction, there can also be collateral civil consequences resulting from a criminal conviction, but which are not imposed directly by the courts as a result of the conviction.
In many jurisdictions, a convicted felon:
- loses the right to become an elector and cannot vote, hold public office, or run for office, although he can have these rights restored;
- is disqualified from jury service for seven years, or while he is a defendant in a pending felony case;
- loses the ability to have firearms; and
- could lose a professional license or permit, although licensing agencies are restricted in their ability to revoke licenses because a person cannot be disqualified from engaging in any occupation, profession, or business for which a state license or permit is required solely because of a prior conviction of a crime except under certain conditions.
In Nigeria, the most common form of discrimination of convicted felons is in the deprivation of their right to vote and be voted for. It is the Electoral Act that introduces the non-registration of a person under any legal incapacity to vote under any law, Rule of regulation in force in Nigeria. This is despite the provisions of sections 77(2), 117(2), 132(5), and 138 (5) CFRN applicable by virtue of section 78 thereof making the registration of voters and the conduct of elections subject to the discretion and supervision of INEC, (An Almanac of Contemporary and Comparative Judicial Restatements (ACCJR) by Oshisanya, ‘lai Oshitokunbo ) In some countries, prisoner-disenfranchisement is a hangover of history rather than and initiative of legislative sanction.
Disenfranchisement of prisoners based on defiance to social contract by perpetration of acts that strike at the heart of social contract is perceived as therefore, incurring forfeiture of rights thereunder. This appears subject to the question: to what extent is the disqualification? Of course, there has been no breach of social contract that has warranted or could warrant limitless deprivation of rights. The disenfranchisement of convicted felons threatens the concept of corrective penology (Penology is a section of criminology that deals with the philosophy and practice of various societies in their attempts to repress criminal activities, and satisfy public opinion via an appropriate treatment regime for persons convicted of criminal offences.) Hence, the reasoning that since convicted felons do not play by the rules of the society, then they cannot have a hand in making the rules – by electing lawmakers, tends to the prisoners’ defiant view that as outcasts normal social rules do not apply to them, thereby they become more distanced from societies’ protocols.
Essentially, we have seen the intersection between the consequences of being a Nigerian convicted felon and the legitimate deprivation of rights therefrom; however, one issue that arises is: whether they make such disfranchisement permanent, or restore suffrage after a person has served a sentence, or completed parole or probation in various jurisdictions.
In the United States, proponents of felony disenfranchisement believe people convicted of crimes have broken their contract with society and, therefore, should not be allowed to have the same level of access that law abiding citizens do. Now, some in Congress are trying to do something about it. On March 18, 2015 Senator Ben Cardin (D-Md.), along with nine cosponsors including Cory Booker (D-N.J.) and Minority Leader Harry Reid (D-Nev.), introduced the Democracy Restoration Act of 2015. The bill allows for automatic restoration of Federal voting rights to all persons after they are released from prison. Convicted felons would immediately be able to vote for all federal offices even if they are still on parole.
Therefore, a good recommendation for the Nigerian government would be that a similar bill be passed and the rights of citizens to vote be retained after the have duly served their time. A 2011 study showed that restoring civil rights is not only good for democracy, but is also beneficial for the communities that these individuals return to post-sentence. Being able to vote allows them to feel part of society and makes reintegration easier as well as decreasing the spirit of defiance as well as feeling like an “outcast” among one’s own people.
Adedolapo Agbakosi is a 300 Level Student of the Faculty of Law, University of Lagos. I enjoy meeting and engaging people in intellectually engaging conversations conversations. I also enjoy the the law, though not so much the process of learning it. I have a passion for the development of women and children and hope to one day impart lives significantly through this passion.