By Olumide Babalola
Re-Interrogating The Effect Of The Marginal Note In Section 37
It has been repeatedly argued that the 1999 Constitution guarantees the right to private and family life. Many lawyers have made this submission within and outside the courtrooms and most judgments on the right to privacy are replete with such conclusion to the extent that, it has now been taken for granted even in the academia. For example, till date, the most widely cited scholarly article on right to privacy in Nigeria was written by the very respected Prof. Enyinna S. Nwauche (Chair of Coordinating Committee of the African Network of Constitutional Lawyers (ANCL), wherein the learned don asserted:
“Moreover, the inclusion of the right to private and family life in the Bill of Rights can be said to represent a conviction that, this a right worth protecting for Nigerians … the phrase ‘private life’ a phrase that occurs in both article 8 of the European Convention on Human Rights and section 37 of the Nigerian Constitution. (See ES Nwauche, ‘Right to Privacy in Nigeria’ (2007) 1(1) CALS Review of Nigerian Law and Practice, 64 and 69).
For the avoidance of doubt, the phrase ‘right to private and family life’ is used twice in the 1999 Constitution: first, in the table of contents and then in the marginal note to section 37 which itself provides that: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
It must be noted that, this provision is a replica of section 34 of the 1979 Constitution but a substantial departure from the provisions in the 1960 and 63 Constitutions which mirrored article 8 of the European Convention on Human Right (ECHR) by including ‘private and family life’ in the body of their texts. Like the ECHR, sections 22(1) and 23(1) of both Constitutions provide that: “Every person shall be entitled to respect for his private and family life, his home and his correspondences.”
It however remains unclear why the draftsmen decided to expunge the phrase from the body of the 1999 Constitution only to merely retain same in the table of contents and marginal notes with far reaching constitutional consequences as considered hereunder.
On the legal effect of marginal notes in interpretation of statutes
As far back as 1982, the Supreme Court had admonished in the case of Uwaifo v Attorney General of Bendel State (1982) LPELR-3445(SC) that, marginal notes (explanatory or side notes) are to be ignored as mere aids in construing provisions of statutes and they do not control the language of such statutes. The same court was emphatic in Akintokun v LPDC (2014) LPELR-22941(SC) that, they do not form part of statutes and are only for convenience or reference. See also the Yabugbe v C.O.P. (1992) LPELR 3505(SC) and Oloyo v Alegbe (1982) SCNLR 35 at 57 where Eso, JSC (Of blessed memory) noted that, marginal notes do not offer legitimate aid to construction of statutes.
On the strength of the foregoing apex court decisions, it is my respectful opinion that, since the ‘right to private and family life’ is merely a marginal note in the 1999 Constitution, then it is safe to say that, it does not form part of the rights guaranteed under chapter 4 and specifically section 37 of the same constitution. Hence, Nigerian citizens are not expressly offered protection for right to private and family life since the body of the extant 1999 Constitution does not recognise same.
Does section 37 cover private and family life?
In the event that, privacy advocates or professionals, one of whom I am, argue that, the provision of section 37 as enacted envisages right to private and family life, it becomes imperative to briefly consider the connotation of that concept. It must however be preliminarily noted that the ‘private and family life’ is a borrowed concept from Europe. It is unknown to English Bills of Rights 1689, Common law, Equity or statutes of general application. Article 8 of the ECHR provides that: “Everyone has the right to respect for his private and family life …”
The European Court of Human Right (ECtHR) while defining or describing private and family life admitted that, it is a broad concept and incapable of precise definition as it may combine ‘multiple aspects of the person’s physical and social identity’ (See S. and Marper v. the United Kingdom, Niemietz v. Germany, 29; Pretty v. the United Kingdom, 61; Peck v. the United Kingdom, 57)
It has been argued that, right to private and family life is broader and wider than privacy, which most times, relates to an individual’s personal autonomy and control of use of his personal information as opposed to the former that is not limited to an individual’s ‘inner circle’ but includes right that presupposes the existence of a family relationship and protects same. This right is not expressed on the face of section 37 except it is read or implied into it. I am however not unmindful of the Court of Appeal’s decision in Nwali v EBSIEC (2014) LPELR-23682(CA) where ‘privacy of citizens’ was happily given an elastic meaning to cover a citizen’s relationships, but it is my modest opinion that such a progressive intervention still did not expressly import ‘family life’ into the provision considering the meaning of the phrase since not all relationships are necessarily familial.
The ECtHR addressed ‘family life’ in Paradiso and Campanelli v Italy (no. 25358/12 delivered 24 January 2017) thus:
“The existence or non-existence of “family life” is essentially a question of fact depending upon the existence of close personal ties… The notion of “family” in Article 8 concerns marriage-based relationships, and also other de facto “family ties” where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy …The provisions of Article 8 do not guarantee either the right to found a family or the right to adopt. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family.” See also Marckx v. Belgium, 13 June 1979, 31, Series A no. 31; Kroon and Others v. the Netherlands, 27 October 1994, 30, Series A no. 297-C; Johnston and Others v. Ireland, 18 December 1986, 55, Series A no. 112; Keegan v. Ireland, 26 May 1994, 44, Series A, no. 290; and X, Y and Z v. the United Kingdom, 22 April 1997, 36, Reports 1997 II, E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008).
There is no word in section 37 that contemplates protection or non-interference with familial relationships but in the event that, the word ‘home’ therein is suggested as representing ‘family’, then reference ought to be made to the various definitions of home as ‘physical structure which offers material shelter’ (See Lorna Fox, ‘The Meaning of a Home: A Chimerical Concept or Legal Concept’ (2002) 29(4) Journal of Law and Society, 580-610). Home has also been defined as a physical space that imparts emotional and spiritual yearnings of an individual, (See Masran Sarunowo, ‘Shouting in Silence: Expression of Self in Private Homes’ (2012) 44 Procedia Social and Behavioural Sciences, 1). Consequently, it is my humble opinion that, a home is not synonymous with family, not even in the context of right to privacy.
Finally, notwithstanding its judicial reference in our caselaw, it should be noted that, ‘right to private and family life’ is not expressly guaranteed by the 1999 Constitution, rather, what we have in the body of our grundnorm is the right to privacy which falls short of the expansive protection offered by the former. Nevertheless, it is hoped that this article will generate further academic and judicial reaction on this very important issue of our national life to provide clarity and direction before a desirable legislative intervention.
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