EXAMINATION OF THE NATURE AND STATE OF CONSTITUTIONALLY ENSHRINED RIGHTS IN NIGERIA


Content

ABSTRACT

 

Gross violation of fundamental human rights in Nigeria is unremitting; this is without prejudice to the new democratic dispensation and concomitant constitutional guarantee of fundamental human rights and civil liberties. Arbitrary detention is still rampant; failure to respect due process of law; the military had subjected many to untold injustice, trial in camera, without legal representation of their own choice, in connection with alleged coup attempt by flawed judicial process which led to several arbitrary executions; prison conditions in Nigeria are deplorable. Nigeria has discharged all her voluntarily assumed obligations under various international human rights instruments in breach.

 

The Nigerian State has also consistently failed to deliver on its social compact with the people, resulting in pervasive impoverishment. Extrajudicial killings and use of excessive force by security forces is still rampant; prolonged pre-trial detention; arbitrary arrests; judicial corruption and executive influence on the judiciary and so forth, is still rampant. The study seeks to determine the Fundamental Rights Enforcement Procedure Jurisprudence with a view to remove those rights from their present remote, notional and abstract textual locale, where they have not impacted on the people and invest it in the people as a constituent of the essence of their individual and collective humanity.

 

                                 

 

 

 

 

 

 

 

CHAPTERIZATION

CHAPTER ONE                      INTRODUCTION 

CHAPTER  TWO                     LITERATURE REVIEW

CHAPTER THREE                   DEMOCRACY AND HUMAN RIGHTS IN   DEVELOPMENT MATRIX                                        

CHAPTER FOUR                    COMPARATIVE  ANALYSIS OF THE 1979 AND 2009 FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES

CHAPTER FIVE                     JUDICIAL  ATTITUDES TO FUNDAMENTAL RIGHTS  ENFORCEMENT  IN NIGERIA

CHAPTER SIX                        CONCLUSIONS AND RECOMMENDATIONS


CHAPTER ONE

1.0  CHAPTER ONE: INTRODUCTION

1.1  THESIS

This study argues the thesis that in order to reach a prosperous development, Nigeria must conform to two general conditions. The first of the conditions is the paradoxical condition of secure and well-defined individual rights. The second one is that there is no predation of any kind.[1] The study posits that mere constitutional provisions for fundamental rights without concomitant development of State capacity to guarantee and deliver on the social compact will result in the stultification of growth and development and mass impoverishment in Nigeria inspite of Nigeria’s rich resources endowment.[2]

 

Consequently, the study adumbrates that a necessary and sufficient condition towards ensuring that those rights provided for in the Constitution of the Federation of Nigeria are not merely notional and abstract but inheres in all Nigerians irrespective of their gender, ethnicity, religious persuasion and socio-economic circumstances is to establish the constitutional platform for the full and unqualified ventilation and espousal of those rights by any citizen without regard to any procedural requirements of standing.[3]

1.2    STATEMENT OF PROBLEM

Nigeria exemplifies the harsh reality of authoritarian and unaccountable governance. Corruption, fraud, mismanagement, and the restriction of political liberties were tolerated in the past by populations numbed into complacency by political repression and the daily struggles for economic survival. The conditions of well-defined individual rights and absence of predation of any kind have not been met at any time in the chequered history of Nigeria.[4] The study submits that this is the case because the political and economic model of Nigeria makes it very hard for these conditions to be met. All property rights in Nigeria emanate and revolve around the State. The property rights of individuals are trumped by the supremacy of the government, which can appropriate or nationalize any number of resources at any time.[5] Also, because a small group without an encompassing interest in the general wellbeing of the  commonwealth can gain access to government, capture power and manipulate the apparatus of State to its benefit, the State in Nigeria is generally a predatory force on the people and the economy, hence the deplorable and unconscionable state of individual rights, particularly socio-economic and cultural rights in Nigeria.[6]

 

It is no coincidence that despite a constant seeming  effort to meet the basic needs of its citizens, many of the despots who have ruled Nigeria have ended up in the list of the wealthiest men in Africa.[7]

 

There is continuing grave violations of human rights and fundamental freedoms in Nigeria, including arbitrary detention, failure to respect due process of law, many suffered injustice under the military, tried in camera and without legal representation of their own choice, in connection with alleged coup attempt by a flawed judicial process which led to several arbitrary executions; prison conditions in Nigeria are life threatening. Nigeria has consistently discharged all its freely undertaken obligations under the International Covenant on Human Rights and other human rights instruments including the African Charter on Human and Peoples Rights in the breach.

 

There is rampant extrajudicial killings and use of excessive force by security forces; impunity for abuses by security forces; arbitrary arrests; prolonged pre-trial detention; judicial corruption and executive influence on the judiciary; rape; torture and other cruel inhuman or degrading treatment of prisoners, detainees and suspects; human trafficking for purpose of prostitution and forced labour; societal violence and vigilante killings; child labour; child abuse and child sexual exploitation; female genital mutilation; domestic violence; discrimination based on sex; ethnicity; religion and region; restrictions on freedom of assembly; movement; press; speech and religion; infringement of privacy rights; right to a safe and healthy environment and the consistent abridgement of the right of citizens to change the government; many children have been accused of witchcraft, tortured and killed.

 

The struggle for human rights in Nigeria has concentrated overwhelmingly on the protection of civil and political rights to the detriment of socio-economic and cultural rights. This bias in favour of civil and political rights is attributable to a number of factors. It is a response to the political and civil repression unleashed on Nigerians by successive military regimes since 1966. the recognition of civil and political rights as fundamental human rights in the Constitution while socio-economic and cultural rights are recognized and subsumed under the Fundamental Objectives and Directive Principles of State Policy and until recently, the general lack of awareness and recognition of socio-economic and cultural rights as fundamental human rights by individuals and civil society groups.

 

Since socio-economic and cultural rights are subsumed under the Fundamental Objectives and Directive Principles of State, they are recognized as duty of the State to its citizenry, albeit without the corresponding right of the citizens to espouse their rights when the State fails to discharge those duties. As a result it is provided in the Constitution that chapter two rights are non-justiciable and enforceable and Nigerians can not sue to protect these rights in any court in the country.

 

Equally, the absence of appropriate criteria and indicators for measuring compliance or violations of this body of rights has impaired effective intervention in the promotion and protection of socio-economic and cultural rights. Most importantly, the pursuit of remedies for violations of socio-economic and cultural rights is tortuous, complex, rigorous, expensive and prone to long time wasting process which discourages victims from seeking redress.

 

1.3    AIMS AND OBJECTIVES

 

The following are the aims and objectives of the study:

  1. To determine the nature and scope of Fundamental Rights in Nigeria.
  2. To determine the state of socio-economic and cultural rights in Nigeria.
  3. To appraise constitutional, legislative, guarantee of Fundamental Rights.
  4. To appraise constitutional, legislative and procedural guarantee of socio-economic and cultural rights.
  5. To re-appraise the Fundament Rights Enforcement Procedure in Nigeria.
  6. To provide a perspective on the Fundamental Rights Enforcement Procedure Jurisprudence which will remove those rights from their present remote, notional and abstract textual locale, where they have not impacted on the people and invest it in the people as a constituent of the essence of their individual and collective humanity.

 

1.4    OPERATIONAL DEFINITION OF TERMS

 

  1. Natural Law/Human Rights

 

The fons et origo of human rights can be traced to the concept  of natural law, that is the principles of natural right, and wrong or ‘natural justice’ in all its ramification. Natural Law was conceived by the Greeks as a body of imperative rules imposed on mankind by nature. It has at various times, been characterized as ‘divine law,’ ‘law of reason,’ ‘unwritten law,’ ‘universal or common law,’ and ‘eternal or moral law.’ Different jurists have different conceptions of it down the ages, for example, Cicero posits:

 

There is indeed a true law, right reason, agreement with nature, diffused among all men, unchanging, everlasting …it is not allowable to alter this law, or to derogate from it nor can it be repealed. We can not be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter, but the same law, everlasting, unchangeable, will bind all nations at all times; and there will be one common Lord and ruler of all, even God, the framer and proposer of this law.[8]

 

 

To many classical writers and jurists, these laws as conceived have the power to make human laws that are inconsistent with it null void and of no effect to the extent of such inconsistencies. It is from the idea of natural law that the concept of natural rights emanates. The notion of natural rights was later to serve as catalyst to the French and the American Revolutions and Constitutions.

 

  1. Fundamental Human Rights

 

According to the court in the case Asemota v. Yesufu, [9]

Fundamental right is an undoubted inalienable right  which corresponds to a ‘jus naturale.’ It is the highest right, and when it is contained in the Constitution of a nation, it enshrines a people’s expression of political and civic and or civil rights (as endowed by nature); but only to the extent that the strictness or  largeness of the modern systems of government does permit.

 

According to the Blacks Law Dictionary:

 

The word right taken as noun, in an abstract sense, means justice, ethical correctness or consonance with the rules of law or the principles of morals……as a noun taken in a concrete sense, it means a power, privilege, faculty or demand inherent in one person and incitement upon another;….and the primal rights pertaining to man are enjoyed by human beings purely as such, being grounded in personality and existing antecedently to their recognition by positive law…..a right is well defined as capacity residing in one man of controlling, with the assent and assistance of the State the action of others.[10]

 

 

Thus when a right corresponds to a duty, which is recognized and enforced by law, it is called a perfect right. Those that are not enforceable are called imperfect rights. The main focus in the study however is with those rights, which are recognized under the constitutions of nations and are often termed human rights.

 

In classifying such rights Blackstone says they are often natural, civil, political and economic. They are natural in the sense of growing out of the inherent nature which such nature calls it; civil as regards those rights which belong to every citizen of a State by virtue  of such citizenship, political as for example, the right to vote and hold public office, and sometimes economic such as the right to employment, education and shelter.[11]  

 

 

Various aspects of these rights are recognized by the constitutions of nations, and have been defined by the courts in different ways. The court in Siddle v. Majors defined fundamental rights as:

 

Those which have their origin in the express terms of the constitution or which are necessary or which are necessary to be implied from those terms.[12]

 

 

Thus such rights though sui generis, may vary with respect to their application from nation to nation. Within the Nigerian context, fundamental rights have been variously defined per Eso JSC in Ransome-Kuti v. Attorney General of the Federation thus:

 

Fundamental right is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitutions since independence is to have these rights enshrined in the Constitution so that the rights could be ‘immutable to the extent of the ‘no immutability’ of the Constitution itself.[13]

 

 

These rights can not be waived by the State or by the individual where the right is not for his sole benefit, but in the control of the State or the courts. Also a person does not loose a fundamental right on grounds of its non-exercise. The courts have advocated a liberal attitude in the interpretation of the provisions of the Constitution in relation to fundamental rights except where a narrower interpretation better serves the ‘spirit, objectives and intention of the Constitution.’[14]

 

This according to the court in Garba v. University of Maiduguri[15] is because of the ‘comparative educational backwardness, socio-economy and the reliance that is being placed and necessarily have to be placed, as a result of this backwardness on the courts.

 

 

For an adequate understanding of the term fundamental human rights, it is necessary to look into the meaning of the term rights. According to Salmond a right is an interest, respect for which is a duty, and the disregard of which is a wrong.[16] He identifies four types of rights in a wider sense as rights powers, liberties and immunities. The court in Uwaifo v. Attorney General, Bendel State, dwelt on this thus:

 

There are rights in the strict sense, when the law limits the liberty of others on my behalf; liberty when the law allows my will a sphere of unrestrained activity; power when the law actively assists me in making my will effective; immunity when the law denies to others a particular power over me…..In the narrow sense an immunity is that which other persons can not do effectively in respect of me.[17]

 

 

Consequently, within the context of this study, the terms ‘human rights’ and ‘civil liberties’ refer principally to those rights or moral claims that are regarded as fundamental to the individuals liberty; such as freedom of movement, freedom from torture, and freedom of expression or basic needs, such as shelter, food, and clothing. Although there is argument that individuals should respect each other’s rights and liberties, human rights and civil liberties refer to those basic rights that are owed by the State to its own, or other States citizens. There is, accordingly, an imperative that each State must respect these individual liberties and needs and that its legal and constitutional system should identify and protect these rights from encroachment and ensure that the individual is provided with such rights. Human rights and civil liberties thus represent the way in which States should treat individuals with respect to their basic liberty, humanity and worth.

 

The term ‘civil liberties’ often refers to those lists of civil and political rights which are contained in documents such as the European Convention on Human Rights. These liberties consist of an obligation on the part of the State not to interfere with the individual’s basic rights to life, liberty, and property, and include the right to privacy, free speech, freedom from slavery and torture, the right to due process and freedom from arbitrary arrest and, of course the right to life.

 

The term ‘human rights,’ on the other hand, often refers to the State’s obligation to provide the individual with the basic needs of human life, often referred to as socio-economic and cultural rights and including rights such as food, shelter, clothing, and employment, education and so forth.

 

The above distinctions are not, however comprehensive and exhaustive, and sometimes the term ‘human rights’ can be used in an umbrella sense to refer to both types of right or claim. Equally, documents such as the European Convention refer to ‘human rights and fundamental freedoms,’ and also makes some mention of socio-economic rights such as the right to education. Further, although civil liberties consist principally of negative rights to be left alone by the State, they often include the State’s obligation to provide the physical resources to enable the individual to enjoy that liberty; for example, by providing a court structure and officers to enable an individual to enjoy that liberty and fair trial. Despite this overlap, the terms ‘human rights’ and ‘civil liberties’ are often used by scholars to distinguish between positive and negative rights.

 

The basis of civil liberties is entrenched in the idea of the liberty of the individual and protection from the acts of arbitrary government. Each State should recognize and protect the individual citizen’s right to life, liberty and property, as contained in a variety of domestic bills of rights (the Nigerian Constitution and other human rights specific legislation inclusive) throughout the world as well as in international treaties.

 

It suffices to state that the notion of fundamental human rights has a changing content and new rights are constantly being interpreted into old ones and some formally thought to be important being elevated to greater heights. For example the right to development, health and reproductive rights.

 

 

1.5  SCOPE AND LIMITATION

 

The study focuses on the examination of the nature and state of constitutionally enshrined rights in Nigeria pursuant to determining to what extent they have inhered or have been alienated from the people.

 

The study relies overwhelmingly on secondary data.

 

1.6  RESEARCH QUESTIONS

 

  1. What is the state of socio-economic and cultural rights in Nigeria?
  2. To what extent is sustainable poverty reduction dependent on the protection and guarantee of fundamental human rights?
  3. To what extent is the guarantee of fundamental human rights dependent on the justiciability of chapter two rights (socio-economic rights) in the Nigerian Constitution.

 

1.7  THEORETICAL FRAMEWORK

 

Although the notions of natural rights were articulated by philosophers such as Plato and Aristotle, the idea of specific protection of liberty from State interference, and the guarantee of fundamental rights came to prominence in the so called, ‘Age of enlightenment,’ in order to control the acts of arbitrary and oppressive monarchies and governments. During this time, philosophers such as, John Locke devised the ‘social contract,’ theory which has since formed the basic justification for the protection of civil rights. This involves the State agreeing to respect the individual’s choice on matters such as religion, private life, and speech, and  is based on the inalienable and fundamental character of such liberty. These liberties or rights are bolstered by international treaties and thus are regarded globally as fundamental, and superior to other rights or interests. Thus, for example, the right to free speech and freedom of assembly will be regarded as more important than the right to shop in an area free from the inconvenience of demonstrations.

 

The protection of such rights can be justified on a number of grounds. First, under the ‘social contract,’ expounded by such writers as Locke, Rawls, and Rousseau, every individual is deemed to have entered into a contract with the State under which the latter agrees to protect the fundamental rights of each citizen. The citizen’s promise of allegiance to the State is conditional on the retention of fundamental claims which include the right to life, liberty, and property. Rawls for instance imagines a hypothetical social contract, whereby each individual not yet knowing his or her ultimate destination or choices, seeks to achieve a society that will best allow him or her to achieve those individual goals. This position may not fine favour with the utilitarian view expounded by the likes of Jeremy Bentham, which does not see individual liberty as a good in itself, and which condones individual liberty being sacrificed for the greater public good if necessary.

 

Secondly, human rights can be said to uphold the basic dignity of the individual as human being; that every human being is deserving of humane treatment, and should not, for example, be subject to torture or other ill-treatment, or to slavery and servitude. Consequently, States violate human dignity when committing any of the above violations, and the restriction of an individual’s right of choice, such as freedom of religion, association, and expression, will be regarded as an attack on human worth and dignity, particularly if done on ground of gender, race, ethnicity or religion and so forth. This justification also ensures that States do not violate the standards of civilized society. For example Ronald Dworkin believes that every State has a duty to treat all of its citizens with equal concern and respect, ensuring that every person, particularly those, for example, who espouse unpopular views enjoy these fundamental rights.[18]

 

Furthermore, the protection of individual liberty and rights can be supported with reference to the doctrine of the rule of law. Under this doctrine, law should be open, clear, and prospective, and government should not interfere with people’s rights in an arbitrary manner. The rule of law also insists on equality, in the equal application of the law to all classes, including government officials, and on due process, including the principles of a fair trial, the presumption of innocence, the prohibition of retrospective penalties and the guarantee of judicial impartiality and independence. The rule of law not only protects the individual from arbitrary irrational, and unreasonable interference, but also provides a public good, and society benefits from the application of due process, rights such as the right to liberty and security of the person and the right to fair trial, both of which uphold the principles of legality, the rules of natural justice, and the independence and impartiality of the judiciary.

 

1.8  METHODOLOGY

The study is library based; it carries out the textual analysis of journal articles, textbooks, legislation, international conventions on human rights, economic growth and development.

 

The study also adopts the doctrinal content analytical method by critically and analytically appraising human rights specific extant legislation, procedural rules and instruments with a view to highlighting their inanities and redressing them.

 

1.9 SUMMARY OF RESEARCH FINDINGS

 

  1. The study found that the long spell of absolutist military rule has led to erosion and undermining of fundamental human rights and civil liberties in Nigeria.
  2. It was found that due to the instability, chaos, anarchy, normlessness and pervading lack of legality characterizing the Nigerian State and body politik , there has occurred progressive and sustained erosion of the capacity of the Nigerian State to deliver on the social compact with the people.
  3. The study found that there is a correlation between gross violations of fundamental human rights, civil liberties and mass impoverishment in Nigeria.
  4. It was found that Nigeria’s crisis of development is a function of non-guarantee of fundamental human rights, civil liberties by a succession of predatory absolutist military regimes and inept political class.

 

 

1.9  CONTRIBUTIONS TO KNOWLEDGE

 

  1. By establishing congruity between erosion of fundamental human rights by the Nigerian predatory State and pervading poverty, the study proved that the guarantee of fundamental human rights is a necessary and sufficient condition towards achieving sustainable economic growth and development.
  2. The study demonstrated in contradistinction to certain position in the fundamental human rights jurisprudence that socio-economic rights are justiciable at the suit of any Nigerian citizen without regard to standing procedures and requirements.
  3. The study proved that the guarantee of fundamental human rights and civil liberties is both a necessary and sufficient condition for the attainment of sustainable growth, development and eradication of pervading poverty in Nigeria.


[1] J.A. Arewa, The State of Socio-Economic Rights in Nigeria: Exploring the Potentials of Law to Further the Development Goals of Nigeria, Lagos, NIALS, 394-450 (2010).

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] J.Fininis, Natural Law and Natural Rights, Oxford, Oxford University Press, 18 (2011).

[9] (1982) 3 NCLR, 419 H.C

[10]B. A. Garnar, et al., (eds.) Black’s  Law Dictionary, 6th ed., St. Paul, West Group, 1324 (1999)

[11] Ibid.

[12] 264 Ind. 206, 341 N.E. 2d 763, 769.

[13] (1985) 2 NWLR, 211 SCN.

[14] Osawe v. Registrar of Trade Unions (1983) 4 NCLR 556 A.C.

[15] (1986) 1 NCLR (pt 18) 550.

[16] J.W. Salmond, Jurisprudence, New York, Cornell University, 261 (2010).

[17] (1983) 54 NCLR, 1 SCN.

[18] R. Dworkin, Taking Rights Seriously, Cambridge, Ms., Harvard University Press, 150, 184, 240, 259, 266, 279, 279 (1978).

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