The Restricted And The Firearms Act Vis-À-Vis The Right To Life In Nigeria

By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

INTRODUCTION

Section 33(1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, provides that “every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria”.

From this provision, two core elements can be extracted: “every person has a right to life” and “no one shall be deprived intentionally of his life”.

These two elements open unto a variety of instances of actions that may properly fall within the section, if it is realised that the elements yield to both conjunctive and disjunctive interpretation and application. When read conjunctively, there is the danger of the latter element overshadowing the former, thus yielding to an understanding that the right to life is violated only when there has been an arbitrary deprivation of life. In consequence, the full realisation of the ‘right to life’ which is the subject matter of the provision, is conditioned by the understanding that the remedies of the section arise only within the incident of unlawful deprivation of life.

Deprivation of life does not only occur when an individual is issued a death sentence by a Court of Law, but will also occur when he loses the right to defend himself in threatening circumstances.

THE RESTRICTED AND THE FIREARMS ACT

The existing laws of the Federation of Nigeria do not provide for a right to gun possession. The Nigerian Constitution, which is the supreme law of the Federal Republic of Nigeria and which provides for the actionable and non-actionable rights of Nigerian citizens, is silent on the right to the possession of guns or firearms.

Irrespective of the fact that there is no inherent right to the possession of firearms in Nigeria, the laws of the Federation of Nigeria do not expressly prohibit the possession of firearms by private citizens.

Firearms and License to Firearms are regulated by the Firearms Control Act No. 32 of 1959 Cap F28 Laws of the Federation of Nigeria, 2004.

This Act has been responsible for the control of firearms in Nigeria for the last sixty-seven (67) years. The Act provides that no person shall have in his possession or under his control any firearm or ammunition, except the such person has a license from the President or the Inspector General of Police. Licenses are granted to private individuals owing to the fact that law enforcement agents may not be present at all times to protect the lives and properties of the individuals in society. However, an individual can only act within the limit of the license of his Firearm.

Furthermore, the Act states that no license or permit to carry firearms should be granted to the following people;

1. Applicants under the age of seventeen (17);
2. Persons who are of unsound mind;
3. Persons not fit to have possession of the firearm in question on account of defective eyesight; and
4. Persons of intemperate habits or anyone who has over the previous five years, been convicted of an offence involving violence or the threat of violence.

Persons of intemperate habits include those felt most at risk of harming themselves or others, such as persons with a history of domestic violence, alcoholism or substance abuse, mental illness, depression, or attempted suicide.

In the American case of Union Pacific Co v. Botsford[1], the Supreme Court held ‘‘No right is held more sacred, or more carefully guarded by the common law, than the right of every individual to the possession and control of his own body …and his own life.

Considering that these individuals are at risk to themselves and others around them, are they less entitled to protection? What should the fate of the restricted individuals if posed with a threat to life or property?

Furthermore, if a person has a condition that causes an unsound mind, this would in most cases affect the judgment, decisions and behaviour of the person. While Section 33(1) of the 1999 Constitution guarantees every citizen the right to life, Section 33 (2) (a) of the Constitution gives citizens the authority to use reasonable force to defend himself or themselves from unlawful violence or the defence of property. This leads to a valid question: Is a mentally ill person or a person of intemperate habit capable of employing reasonable force at all times? Should the lives of the other citizens likely to be affected by the excessive use of the intemperate person not be taken into consideration?

For modern theorists, the question of self-defence is one of moral authority within the nation to set limits to obedience to the state and its laws, given the pervasive dangers in a world full of weapons. Indeed, modern libertarianism characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defence from coercion (including violence) is a fundamental human right, and in all cases, with no exceptions, justifies all uses of violence stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12 Universal Declaration of Human Rights states:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”

For Ex-convicts, what should be their fate? Considering that, they had served their time in prison and made restitution for their crime. Is it fair to cut off their right to protection?

The Utilitarian Calculus[2] attempted to answer this question. It stated that on this note, it would be based on a general ethical principle that morally good acts are:

“Those acts whose consequences tend to promote the greatest good for the greatest number of individuals.”

When considering prohibitions of ex-convicts’ firearm possession, then, the relevant positive consequences are the amount of harm prevented by such laws and the number of people for whom harm has been prevented.

In addition, the biggest challenge is that the numbers are likely to be very small. The Firearms Act does not proscribe or punish harm itself, but instead attempts to avert the possibility of harm. This means that actual harm will materialize in only a fraction of the instances in which an ex-convict would be subject to punishment for unlawfully possessing a firearm.

The calculation is further complicated by the fact that all ex-convicts who are correctly convicted of unlawful possession of a firearm have demonstrated that they are not deterred by the potential for punishment. The persons who pose the greatest risk of gun violence are probably those who will go to the greatest lengths to circumvent the law and obtain a gun despite whatever legal machinery is designed to prevent them from doing so. The instances where the Firearms Act can be counted as preventing harm, are where someone was deterred from causing harm by the increased risk of simple possession or where someone who was intending to cause harm with a firearm is caught in possession before causing harm, thereby prevented or deterred from causing that harm.

CONCLUSION

From all evaluations, the Firearms Act has led to net disutility, as some individuals are severely negatively impacted. The benefits of the restriction only accrue in marginal cases, largely because possession laws are difficult to enforce before a violent event has occurred, and those intent on violence are the least likely to be deterred by one more layer of illegality. There is an alternative, though, that may shift the balance of utility back to a net positive for the Firearms Act.

A list of violent crimes caused by Ex-convicts can be created and separated from non-violent crimes. Ex-convicts who committed violent crimes may be denied licenses, but Ex-convicts who committed non-violent crimes should be granted licenses on application.

Also, it is easier to establish what should be done with the ex-convicts on the restricted list but extremely difficult to do same with people of unsound minds, children under seventeen, and people with defective eyesight.

The main proposed takeaway from this jurisprudential attempt, is to estimate a utilitarian moral determination regarding the Firearms Act, the continued need for more information and aggregation of the restricted individuals, and how they can be protected in a society where their right to self-defence is hampered.

SNIPPET

Who are “the Restricted” under the Firearms Act? Do they have a right to life and self-defence? Should the law be biased towards them?

These are the key questions this article aims to answer.

Key terms: Firearms, Jurisprudence, Citizens, Gun Regulations, Law, Self-Defence.

AUTHOR

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Corporate Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Efe Isegohime

Efe is a member of the Corporate Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Corporate Law Practice

She can be reached at efe.isegohime@omaplex.com.ng

[1] 141 US 250 (1891) at 250-251

[2] Zack Thompson, ‘Is it F Is it Fair to Criminaliz o Criminalize Possession of Fir possession of Firearms b arms by Ex-Felons?’ < https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1153&context=law_jurisprudence> accessed 21 February 2022.