THIS week I have chosen to dwell on a subject I have always found germane and central to the survival of any democratic system. The subject covers fundamental human rights and democratic freedoms. Both matters are interchangeable and can always interface in a robust manner. In Nigeria the constitution makes special provisions for the defence of fundamental human rights of every citizen of the country. In the same breath, democratic freedoms encapsulate those rights bestowed on the citizens as a result of the practice of democracy.
Since democracy is government of the people, for the people and by the people, it then translates to the fact that citizens must enjoy some well-defined rights under the principles that guide the practice of such democracy. Some of the democratic rights include the right to contest election, to vote and be voted for.
Indeed it is where each citizen’s rights begin that another’s end. This is why the same constitution has made provisions for the protection of these rights, which are totally inalienable and have a direct bearing on the survival of any democratic society. They also underpin a benchmark theory of human relations and interactions acceptable within the confines of the Nigerian legal system, particularly the grundnorm – which in this case the 1999 Constitution of the Federal Republic of Nigeria.
The theory under review is derived from a Latin Maxim ubi jus ubi remedium, meaning where there is a wrong, there is a remedy.
The clamour to know ‘My Rights’ is nothing but the desire to ensure that your rights are protected at all times, and not trampled upon by anybody. And that whosoever tramples upon your rights does not go scot-free. It also requires that we know the corresponding duty attached to every right we have.
Lack of knowledge has been responsible for the inability of some persons to have their rights protected or seek redress in a court of competent jurisdiction for the redemption of these rights when breached. Indeed the general acceptable expectation is that when a person’s rights are breached in whatever guise, such a person should seek redress in court for either compensation, restitution or for punishment. These are called the Fundamental Human Rights, which are different from our Natural Rights or Rights bestowed on us as human beings by nature.
What is the difference between Fundamental Human Rights and Natural Rights in line with the maxim: where there is a wrong, there is a remedy? Am sure before now, some people had thought they were same in all fours. The answer is ‘No’. While all Fundamental Rights are found in the realm of Natural Rights, all Natural Rights are not Fundamental Rights. Again, Fundamental Rights are those Rights prescribed by Law, while Natural Rights are those given to us by nature. In other words, just that we are human beings with intellect entitles us to natural rights.
For instance, Chapter 4 of the 1999 Constitution made copious provisions of such Rights. These Rights as provided are known as Fundamental Rights and they are the class of Rights which is actionable in court upon any breach.
Unlike the Fundamental Rights, a breach of Natural Rights does not give any cause of action, which could be redressed in court. For instance, if I belch and you feel nauseated or distracted, I cannot be sued for doing an act which is involuntary and natural. What I did was the exercise of my Natural Right.
Conversely, if I slapped somebody, I have given you a cause or reason to approach the court for liabilities or to ask for damages against me for infringing your Fundamental Right against torture or any degrading treatment which is contained in S. 34 of the 1999 Constitution as amended.
Therefore, where there is a law and there is a wrong which is a breach of the law, then there is a remedy. The necessary implication of this foundation is that where there is a legal Right – be it called Fundamental Right or a right provided for in the Constitution – there is a remedy once it is breached. This is what is called in Latin maxim, Injuria sine damno – meaning legal injury without damage. Here, a Right recognised by law is breached and it is immaterial whether you suffered any physical injury or not. As long as this legal Right is breached, you are entitled to a remedy by the court.
Fundamental Human Right provisions have their origin in Nigeria through the Statutes of general application, which received the following English laws: the Magna Carta of 1215, the Petition of Rights of 1628 and the Bill of Rights of 1689, as a former Colony of the Great Britain.
Upon the attainment of Independence in 1960, Nigeria was admitted into the comity of Nations under the umbrella of the United Nations, and subsequently acceded to the United Nations Charter on Human Rights as well as the African Charter on Human and Peoples Right of 1981. Apart from being signatories to these charters of Right, Nigeria has gone ahead to domesticate the charter as part of the laws of the Country. This therefore makes them binding.
The agitation or outcry for the recognition of the rights of the minority groups in Nigeria caused the setting-up of a commission headed by Sir Henry Willink. The report of the Willink Commission of 1958 led to the entrenchment of the Bill of Right in the 1960 Independence Constitution, so as to allay the fears of the minority groups of domination by the three major ethnic groups. The Rights as included are same as those found today in the 1999 Constitution (as amended).
Before the dawn of positivism, there was the era of the Natural Law theorists, whose views were in tandem with the early Church teachings, to the effect that there must be a relationship between the validity of a law and its moral content, which positivism is opposed to. The progenitors of this school of thought believed that if a man-made law conflicted with the law of God as propounded by the Church, then such a law was not a valid law and therefore should not be obeyed.
According to St. Augustine, “If a law be unjust, it is no law at all” and for such an unjust law it is invalid and therefore should be disobeyed for running counter to the natural course of nature. Then St. Thomas Aquinas in his Summa Theologica said, “God is the creator and the world, the universe, the cosmos is His creation. Everything physical and intellectual stems from Him. When God created man He enabled him to know truth.”
According to Thomas Aquinas, truths are of three kinds: Truth as revealed in the Holy Scriptures, truth discovered by the exercise of speculative reason, and truth discovered by exercise of practical reason. Therefore, “natural law consists of participation by man in the eternal law found in the truth.”
From all indications, natural law seems to have thrived more in the realm of the Church. However, its influence on the development of law and the conduct of the affairs of the State could not be underestimated. Yet, this notwithstanding, it stands to reason why this school of thought was toppled by the positive school.
Austin John was one of the theorists of the positive school. He defined law as a command given by a sovereign and enforced by a sanction. This position, it could be recalled, did not go down well with Professor H.L.A. Hart. In his concept of a Legal System, he postulated that for a legal system to exist the secondary rules must be accepted by the officials and the primary rules must be obeyed by the majority of the citizens. He believed that a law is valid if it is in accordance with the system’s rules of recognition. And the argument continues without end.
The conflict between natural law and positive law notwithstanding, the issue of human right remains the focus for all the parties as indicated in the preamble to the Universal Declaration of Human Rights adopted on December 10, 1948. And it says, “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
If we are aware of the dignity of man created in the image and likeness of God, then we should know that it calls for respect for all, irrespective of colour, sex, religion, language or nationality. Article 1 of the Civil and Political Rights states “all humans are born free and equal in dignity and rights, are endowed with reason and conscience, and should act towards each other in a spirit of brotherhood”
Therefore, for there to be peace and justice, the rights and corresponding duties must be observed by all and sundry. A Chinese proverb puts it this way: “The best way to keep the city clean is for everyone to sweep before his own door.”
In the current world order, Human Right crusade has become multifaceted: national, regional and international concern, particularly after the era of the Cold Wars, the World Wars 1 and 11, the Hiroshima experience, the emergence of some African countries from colonialism and neo-imperialism, and the genocides in Rwanda and former Yugoslavia. These events that shook the world became catalysts to the formation and formulation of universally-acceptable Human Rights Principles aimed at enhancing freedom and justice in the world. To this end, there have been many treaties and conventions geared towards the development and protection of Human Rights.
There is the daddy of all Conventions by the United Nations that came up with the most important human right document: The Universal Declaration of Human Rights (UDHR). The document designed in 1948, though not binding and enforceable, contained aspirations and declarations which many people today believe has acquired the status of Customary International Law.
The Universal Declaration of Human Rights opened the floodgate of Human Right Conventions and Treaties, particularly the International Covenant on Civil and Political Rights (ICCPR) and its sister Convention, the International Covenant on Economic, Social and Cultural Rights (ICESCR) – all of 1966.These two Covenants came into force in 1976, becoming, together with the UDHR, the International Bill of Human Rights.
The ICCPR AND THE ICESCR are regarded as first-generation Rights. Most Regional Conventions took place after the 1966 Covenants in the arrangement of the provision of Rights and Freedom. However, Nigeria though a signatory to these Conventions did not follow strictly the pattern of the ICCPR and ICESCR by making both of them justiciable as they deserved. Rather only ICCPR is made justiciable in Nigeria. The majority of ICESCR are found in Chapter 2 of the 1999 Constitution as Fundamental Objectives and Derivative Principles of State Policy.
Characteristically, Fundamental Human Rights are universal, inalienable, interconnected, interrelated, indivisible, and include responsibilities.
To be continued