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.
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.
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.
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.
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.
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.
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.
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:
- To determine the nature and scope of
Fundamental Rights in Nigeria.
- To determine the state of
socio-economic and cultural rights in Nigeria.
- To appraise constitutional,
legislative, guarantee of Fundamental Rights.
- To appraise constitutional,
legislative and procedural guarantee of socio-economic and cultural
rights.
- To re-appraise the Fundament Rights
Enforcement Procedure in Nigeria.
- 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
- 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.
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.
- Fundamental Human Rights
According to the court in the case Asemota v. Yesufu,
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.
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.
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.
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.
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.’
This according to the court in Garba v. University of Maiduguri
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.
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.
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
- What is the state of socio-economic
and cultural rights in Nigeria?
- To what extent is sustainable
poverty reduction dependent on the protection and guarantee of fundamental
human rights?
- 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.
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
- 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.
- 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.
- The study found that there is a
correlation between gross violations of fundamental human rights, civil
liberties and mass impoverishment in Nigeria.
- 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
- 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.
- 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.
- 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.
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