Human Rights are those rights which the international community recognizes as belonging to all individuals by the very fact of his humanity1. Judicially, Human Right was defined by Kayode ES0 (JSC) in Beko Ransome Kuti V AG Nigeria2 as a right which stands above the ordinary laws of the Land and which in fact, is antecedent to the political society itself.
The rule of law in a nutshell means that everything in government must be done according to the law. The concept of the rule of law was made popular and given clarity by professor A.V. Dicey when he espoused the three major levels upon which a rule of law principle and practice should be based. These he reeled out to be: Equality before the law (of all subjects); Supremacy of the constitution (of all land); Fundamental human Rights (a guarantee of all subjects).
The concept of democracy would be better imagined than defined for according to Kaunda3, “democracy is a concept that defies a precise definition. Although a precise definition of democracy may be a source of confusion to scholars of all persuasions, its connotation and implication are not in doubt. In Democracy, power belongs to the people, the common man. In other words power belongs to the electorate in the main which power when given to elected representatives should be used for the good of all. Amongst the many hallmarks of democracy include such attributes as independent judiciary; enjoyment of fundamental human right; free and fair elections etc.
Emerging democracies is therefore a term used to refer to countries which recently began embracing the tenets of democracy. Nigeria is a perfect example of an emerging democracy. In its 45 years after independence, she has experienced 16 years of democratic rule albeit intermittently.
From the above definition it is clear that there is a nexus between the three concepts defined supra.
The current wave of human rights campaign is not a recent phenomenon in the Nigerian legal history. Constitutional guarantee of human nights was adopted in 19594. It has been agreed by commentators that this was largely due to the recommendation of the Willinks Commission on the minorities. The first thing to note therefore is that the introduction of the doctrine of human rights into Nigeria constitution can be traced to her colonial history.
Since the emergence of Nigeria as a nation in 1914, she has had several constitution introduced into the legal system. Some of the constitutions were foisted on her by the colonial overlord, while others were fashioned by the Nigerian people. The easiest attempt at constitutional government for Nigeria was the Clifford constitution of 1922. It must be remembered that the constitution which operated in Nigeria prior to independence were designed by the colonial administrator to achieve specific political objectives of the colonialists without any formal attempt by the colonial overlord to safeguard human right in its totality. For instance, the Nigerian (Constitution) Order in Council of 1951 was aimed at introducing representative democracy into the country5. No doubt, all these efforts of the colonial government could be said to be acceptance of a major aspect of human right, which is the democratic ideal of a right to self determination.
The inclusion of the doctrine of human rights into our constitution can thus be reflected in the heterogeneous nature of the country and also upon fear of the minorities for their development in a country that was gradually moving towards self determination. Consequently, they began to demand for the creation of more states based on ethnic groups. By 1957, this problem had reached some dimensions that it could not be ignored by the constitutional conference of 1957-1958. Instead of creating more state as demanded by the minorities, the British government entrenched some fundamental human right in the constitution in accordance with the recommendation of Sir Henry Willinks commission. These Rights were immediately incorporated and entrenched in the Independence Constitution6.
The Nigerian state reflects the distinction between human rights and fundamental human right. The later can only be prefixed to a right when such right is enshrined in the constitution. Nigeria, because of her colonial heritage adopted human rights provisions which are “civil” and “political” in nature rather than “socio-economic”
The 1979 constitution is said to be the strongest affirmation of Nigeria’s commitment to a comprehensive body of human rights. In comparison with its predecessor, the 1963 constitution, the 1979 constitution provisions were trenchant. There were many innovations in the 1979 constitution relating to human rights7.
The issue of socio economic rights has remained a reoccurring decimal in Nigeria constitutionalism. The 1979 constitution had in chapter two incorporated these rights under the heading “fundamental objectives and Directive Principle of State Policy”. The extant constitution8 also has similar provisions in its chapter two. However, what has generated much controversy about the fundamental objectives is that they cannot be enforced in the law courts. See S. 6(6) (c) of the 1999 constitution. This provision is rather unfortunate. Indeed, all the sections of human rights are interdependent, indivisible and equally important. For instance, the right to life in S 33(1) of the constitution can be better enjoyed when and where the economic, social, educational and environmental objectives in chapter 2 are realized. Here, the provision of good roads, clean and safe drinking water, adequate shelter, suitable and adequate food etc (some contents of the directive principle) will play a significant role. Moreover, the need for social and economic right is felt more in the developing nations nay emerging democracies, where a large percentage of the population live under subsistence condition. The position of the council of Europe on this mater is reflected in its Declaration on Human Rights, Democracy and Development:
The community and its member states draw particular attention to the universality and indivisibility of human rights and the obligation of all states to respect them. They stress the important role of development assistance in promoting both economic, social and cultural rights as well as civil and political liberties by means of representative democratic government based on respect of human rights”9
It is not in doubt that the United Nations has performed creditably in the area of standard setting in the protection and promotion of human rights globally. Between 1948, when the Universal Declarations of human rights, the first concise and comprehensive human right instrument was adopted and now, the world has indeed witnessed a plethora of Covenants, Conventions, Declarations Principles and Standard not only proclaiming, but also protecting and promoting human right both at the world wide level and the African Continent.
Sadly, the world body has not been hundred percent successful in the area of implementing and creating the desired awareness for these human rights instrument. Nigeria has signed and ratified a lot of these instruments, but they are hardly enforced locally in our courts. Of course, the legal status of the International Instruments in our local courts varies. Declarations and principles for instance have no binding effect, and it has been argued that they undoubtedly have moral and political force and provide practical guidance to the states in their conduct.
The election of a democratic government in Nigeria Six years ago was a beginning of a new era - the building of a Nigeria founded or democratic value, social justice, fundamental human rights and the rule of law. The government was fast to realize that Nigeria having been a beneficiary of the international community’s insistence on a regime based on human right and democratic principles, It was imperative to ensure that all her people are able to enjoy all the human right provided for in the constitution and in the international and regional human right instrument that she have signed or ratified. The reason for the new commitment was not for fetched. Nigeria had just emerged from a 16 year period of military rule, and it is agreed that human right under military regime is an aberration 10.
The government therefore set up a NATIONAL ACTION PLAN for the promotion and protection of human fight (NAP) which was its response to the recommendation of the Vienna Declaration and Programme of Action.
For an International Instrument to be binding in Nigeria, It must have been by virtue of S.12 (1)11 enacted into law by the National Assembly. Nigeria has only domesticated the African Charter on Human and People Right.12. The implication of this according to the Supreme Court or the case of Ogudu v the State13 is that Nigeria has adopted the African Charter as part of her municipal Law and the provisions of the Charter covering economic, social and cultural rights are enforceable in Nigeria as chapter four of the constitution. Aside this, what will be the position of other International Covenant e.g. Int’l Convention on Economic, Social and Cultural Right (ICESCR). The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) etc? These conventions although ratified by Nigeria are as yet to be domesticated. The effect will be that they are only morally binding and cannot be enforced in our courts.
In the case of Gani Fawehinmi v Abacha14, the court was of the view that no decree precludes Nigerian courts from adjudicating cases complaining about violations against the African Charter which is protected by Int’l law. Similarly, in Oshevire V British Caledonain Airways 15, the court of appeal held that “it is useful to appreciate that an International agreement embodied in a covenant or treaty is autonomous of the municipal laws of contracting states as the contracting parties have submitted themselves to be bound by its provisions which are therefore above domestic legislation. Thus any domestic legislation which is in conflict with the convention is void.
Democracy is a bed fellow of civilian rule. The hallmarks of a civilian rule is the consent of the people which is epitomized in the constitution as agreed by them and under which everybody irrespective of rank must be subjected. In Nigeria, as in other democratic states worldwide, the constitution is the supreme law of the Land. 16.
An insufferable relationship exists between human rights and democracy and in order to protect, preserve and guarantee these rights, they are entrenched in the constitution17, which is the supreme law within the polity.
These rights so far guaranteed have helped to check the excesses on the exercise of political power and has also focused the attention of government on the individual rights and fundamental freedoms as the basis for democratic governance and attainment of social order 18.
There can be no genuine democracy without human empowerment, accountability and popular participation. For democracy to thrive and survive in Nigeria and Africa, human rights must be protected enforced, and guaranteed.
Indeed, the beauty of democracy especially in a presidential system of government is the deliberate determination to ensure good governance in the polity. Good governance on its part implies the safeguard of equity and fair play in the protection of the liberty of the citizenry, individually and corporately. This is a function of the co existence, co-exerting and co-functioning of the tripartite statutory organs of government. These organs of government are the executive the legislature and the Judiciary. The judiciary is generally referred to as the arm of government statutorily saddled with the role of interpreting the law of the state. The need for the judiciary is founded upon the doctrine of separation of powers, the rule of law and protection of the fundamental human rights of citizens in a representative government like ours today; hence the judiciary is described as the last hope of the common man. S.6 of the extant constitution vests the judicial power in the court both at federal and state levels.
The primary duty of the court especially or the administration of justice is to receive, hear and determine each case that is brought before it in accordance with the provisions of the applicable laws, irrespective of the personality involved. Since 1999, the Judiciary has been alive to its duty, particularly at the Supreme Court. However, Nigerians were shocked, when an Abuja magistrate court ordered the arrest of Nigeria Labour Congress (NLC) leaders for alleged, picketing exercise by labour to ensure the implementation of the agreement reached between the labour and state governors on the price of petroleum products in the country. Similarly, in 2004 Justice Olokoro of an Ikorodu High Court sitting in Lagos summoned top government officials and human right activists to appear before him. The court made the order following an application by the NBA Ikorodu branch to invite them as amicus curie to address the court in the enforcement of the fundamental rights of 350 applicants, who were arrested and detained from between four to eleven years without trial at Kirikiri prison, Lagos for various offences.
To ensure that the judiciary live up to its billings of enforcing human rights, the constitution must ensure its total independence; sound persons should be appointed to the judiciary; improved condition of service and improved equipment and facilities should be provided; constant training of judicial officers should be carried out. Etc. Also, to facilitate efficient and prompt enforcement of human rights, judicial interpretation should be value oriented 19.
The Human Rights Commission, although established20 during the military era is a major milestone in the annals of the development of human rights in Nigeria. Its core aim is to create an enabling environment for extra judicial recognition, promotion and enforcement of human right thereby facilitating the government’s implementation of its human right treaty obligation and providing a framework for public enlightenment and dialogue on human rights, thereby reducing the incidence of controversy and confrontation. The commission is empowered to deal with all matter relating to the protection of human rights as provided by the constitution of the Federal Republic of Nigeria, and other international treaties to which Nigeria is signatory to. The commission no doubt has recorded giant strides in the more prominent task of instituting a national culture of protection, promotion and respect for human rights.
The role of Non Governmental Organizations (NGO) in enlightening the public on their rights, its attendant breaches by government agencies (chiefly amongst which is the police) and the means of seeking redress cannot be overemphasized. NGO’s are organization whose funds are totally independent of government sources. By their nature NGO’s are independent of government funds, and this has encouraged neutrality in carrying out of their duties without fear or favour.
Further, Human Rights Organization plays a significant role in the development of the rule of law. Such organization like the Civil Liberties Organization (CLO) established in 1978, Constitutional Right Project (CRP); National Association of Democratic Lawyers (NADL); Committee for the Defence of Human Rights (CDHR) etc, have helped in areas like exposure of human rights violations, humanitarian assistance to victims of human rights violations, information, education and conscientization of the people.
Democracy demands complete protection of human rights of the citizens. Limitation for the enjoyment and enforcement should only be imposed by the judiciary by restrictive measures and machinery which exists through redress in courts in the event of breach. The rule of law will prevent arbitrariness and anarchy.
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