Human rights, rule of law and governance


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Human rights, rule of law and governance

  1. 1. HUMAN RIGHTS, RULE OF LAW AND GOVERNANCE: THE NIGERIA PARADOX UDOCHUKWU A.O OGBAJI LECTURER, DEPARTMENT OF POLITICAL SCIENCE NWAFOR ORIZU COLLEGE OF EDUCATION, NSUGBE ANAMBRA STATE, NIGERIA. E-mail: Tel: +234(0) 8033486531, +234(0)7082729455AbstractThe contemporary emphasis on democracy and dethronement ofauthoritarianism in Africa brings to the fore, once again, the enduring problemof and need for human rights as a yardstick for good governance anddevelopment. Every society exists to ensure the protection of somefundamental values without which the society would cease to exist. The issueof rights, freedom and justice is, therefore, indispensable in the maintenanceof the cohesion of any society. This paper examines a part of this problem byanalyzing the constitutional and extra-constitutional governance in Nigeria. Itnotes the intractability and significance of, and the challenges posed by,human rights and observe the constitutional basis for their preservation andsustenance. Yet, good governance is hedged in by a constitution thatprovides, on the one hand, uncomplimentary interchange between traditionaland modern socio-political orientations, and on the other hand, adysfunctional relationship among the three arms of government, in which theautonomy of the judiciary is eroded. The uncomplimentarity and thedysfunctionality are made worse by the tragic regimes of praetorianism.Consequently, Nigeria has persistently witnessed uncompromised spates ofabuse of the rule of law, and has lacked fundamental basis for preservation ofrights of man.Introduction Human rights are universal rights or enabling qualities attached to humanbeings. The Magna Carta or “Great Nelson” was the world‟s first documentthat contains commitments by a sovereign to his people to respect certainlegal rights. The issue of human rights descended from the philosophical ideaof natural rights that are provided by God. Some recognize virtually nodifference between the two and regard both as label for the same thing whileothers choose to keep the terms separate to eliminate association with samefeatures traditionally with natural rights (Thompson, 2010). 1
  2. 2. The protection of human rights is the compass of good governance. Itsviolation brings governance to ruin. It is ruinous because, as political crime, itnegates the principles necessary for public good. The desirability andpreservation of rights of man has, therefore, become a crucial part of theessence of not only good governance, but also development in the modernworld. Because human rights define the ends of government and fosterdevelopment, it is indispensable, but they are not static in form, content andfunction. They have to be dynamic in order for them to express changinghuman aspirations and seek to remedy the social ills of a given time andplace. Designed for humanity, they have universal connotations. This isclearly stated in the United Nations „Universal Declaration on Human Rights(1948), the various conventions thereto, and the African charter on Humanand Peoples‟ Rights‟. Many States wanted to go beyond the declaration ofrights and creation of legal covenants which would put greater pressure onState to follow human rights. However, from 14th to 25th June, 1993 in Vienna-Austria, there was aUnited Nations Conference on human rights as a follow up to the declarationof 1948, to see other ways to containing new challenges and to find out therelationships between development, democracy and rights. All these areveritable efforts in bolstering and monitoring human rights. The credentials ofmost countries in Africa have remained discouraging. There are generaloutcries of dehumanization as a result of poor governance. Where democracyis in place, antithetically, basic rights are derived. There is no differencebetween authoritarianism and democracy. The Nigerian case quickly comesto mind, despite the fact that she is signatory to the world declarations onhuman rights. This is not a uniform case in Africa. It varies from one country toanother, both in form and content. How then can we perceive human rightspractice in Nigeria? To what extent has the Nigeria‟s constitutional division ofpowers ensured the preservation of human rights? What then are the practicalconstraints? Is there any way forward? 2
  3. 3. In giving answers to the above questions, we contend that in theirmodern outfit, human rights are “legal-relation” values that are super imposedon traditional authorities in Nigeria. The relationship between the two has notbeing convenient, at best, it is a resistant compromise. We argue, also thatthough the constitution vests protective role on the judiciary, the provision andpractice of separation of power is dysfunctional such that the legislative andthe executive arms continually impede on and erode the autonomy andcapability of the judiciary in upholding the rule of law. This breach of afundamental doctrine of good governance is further derogated by the tragedyof military control of politics in Nigeria and Africa in general.The Concept of Human Rights Human rights are inalienable rights, which are conferred by God ornature and discernable by human reason. These rights include the right to life,right to free speech, right to equal treatment without discrimination as to sex,religion, tribe, race, right to freedom of thought, expression, association etc.These rights are man‟s natural rights and have been re-enacted into man-made laws by various international organizations and country of the world.The Universal Declaration of Human Rights provides in article 1: “All humanbeings are born free and equal in dignity and rights (United Nations, 1995).Jefferson (1822) states “Nothing is unchangeable by the inherent andinalienable rights of man”. The rights are peculiar to man because of hishumanity. They are substantiated by reason. Human rights have concern for freedom and toleration, and drawstrength from the liberal thought rooted through the philosophy of natural law.The law teaches that “no one ought to harm another in his life, health, liberty,or possessions” because men are all “the workmanship of one omnipotentand infinitely wise maker and are in the world to do his business” (Locke, TwoTreatises of Government). It is reasoned that since the business of God ispeace and order, man would be doing God‟s work when he ensures anorderly social environment. This would only be possible if men, born free and 3
  4. 4. equal, could retain their respective rights. Therefore, each person has a dutyto preserve himself and in doing so preserve the rest of mankind. Thisspecifies two duties: not to overtly harm another human and to protect his ownand other men‟s lives when the two are not in conflict. Whenever they are inconflict, it is the duty of the government to arbitrate over and protect suchrights through constitutional stipulations. This follows that arbitrarygovernment can be removed and replaced with another by the people. Thepeople are sovereign. The idea became fruitful in the Declaration of Rights ofJune 12, 1776 in the United States of America and of 24 June 1789 in France. Human Rights assert the sanctity of human life as inviolable. Thecontent also depends on definition of humanity. Since human beings arecorporeal, they should have a right to life, freedom from pain and torture,being rational and thoughtful, he should have the right to freedom ofassociation, speech, thought, conscience etc. These attributes not only definehumanity, but also add meaning and significance to it. Life devoid of them isnot social and so it is inhuman. To keep these attributes is to preservehumanity. This made Plamenatz to define rights as “…a power in exercise ofwhich all rational beings ought to protect a creature, either because itsexercise by him is itself good or else because it is a means to what is good”(Plamenatz, 1968). Etymologically, human rights stand above the ordinary laws of the landand are antecedent to the political society. It is a pre-condition to civilizedexistence (Eso, 1985). Antecedence, thus, means that rights are attributableto every human being prior to any undertaking into which individuals mayhave entered. An individual should enjoy natural rights prior to and exclusiveof any other contract he may decide to have. Or, as Hart puts it, “generalrights‟ are attributable to all men capable of choice….in the absence of thosespecial conditions which give rise to special rights”. It is in this sense thatJohn Rawls‟ natural duties and human rights‟ are those that contractingparties in an „original position‟ or under the „veil of ignorance‟ would have 4
  5. 5. reason to acknowledge because they are antecedents (Rawls, 1971).Contracts or relationships that counter these rights suffer from legal infractionand are voidable. However, the desire for protection of rights derives from the fact thatsovereignty lies with the people since all powers, including the ends ofgovernment, are vested in, and consequently derive from, the people.Government acts as an agent of the people and is subject to them in theprotection of their rights. It stands that test of time only to the extent that therights are respected (Nwosu, 1999). Given the dynamic character of human rights, it has suffered fromchallenges and contentions. The trend is such that right to life, seen byBackstone as „a person‟s legal and uninterrupted enjoyment of his life, hislimbs, his body, his health and his reputations, by extension, now includesprotection against “psychological suffering and apprehension of injury,offensive noises and odours, and invasion of privacy” (Kleinig in Kamenkaand Tay, 1978). This contemporary focus of rights, therefore, is on the qualityof life conveyed in slogans such as work, opportunity for leisure, good shelter,clothing and health for all. It is in the above context that the nature of rights has been challengedby utilitarianism which posits that what is just and right is a function of its utilityto promote the happiness of the greatest number. Yet rights have not beenfree from being questioned on the grounds of empirical verification, as beingoutside the realm of fact or as being mere statements of preference. There is,also, a narrow interpretation of human rights on a political rather than a socialscope. This limits the rights of women and the under priviledged (Ogbaji,2010). This feminism (feminist theory) challenges the narrow interpretationand the practical effects of human rights. Feminist contend that rights shouldbe gender neutral, there should be the same rights and economicopportunities for women as for men, because “men and women, through 5
  6. 6. production, collectively create a society that, in turn shapes them” (Schmitt,1987).Provisions and Protection of Rights: Chapter I, Part I (1) of the 1979 Constitution provides that „thisConstitution is supreme and its provisions shall have binding force on allauthorities and persons throughout the Federal Republic of Nigeria‟. And soas to foreclose the existing traditional authorities, the constitution alsoexcludes the powers of other institutions by extolling the provisions of theConstitution with a view to ensuring the supremacy of the Constitution. Thus:“The Federal Republic of Nigeria shall not be governed, nor shall any personor group of persons take control of the government of Nigeria or any partthereof, except in accordance with the provisions of this Constitution. If anyother law is inconsistent with the provisions of this Constitution, thisConstitution shall prevail, and that other law shall to the extent of theinconsistency be void (FGN, 1979; Ch. 1, Pt 2). The Constitutional provision of human rights in Nigeria is an articulationof modern “legal-rational” arts with the traditional power relations. Therelationship is not easily complementary. While the former is meant toconform with and foster a modern economic system that is competitive andindividualistic, the latter relates with and co-ordinates, essentially, acommunalist orientation. Human rights practice in the latter orientation takes aparticular form that is different from the modern. Under the context of the first paragraph above, the communal frame ofrights in African traditional parlance is foreclosed while the political, social andeconomic objectives of the modern state are set out and the rights ofNigerians are, ideally, defined in order “to secure the maximum welfare,freedom and happiness of every citizen on the basis of social justice andequality of status and opportunity”. 6
  7. 7. However, while section 17 of the Constitution provides the socialobjectives of the state for the citizens, sections 30-40 provide eleven specificFundamental Rights of Nigerians. The power to protect those rights ismanifestly vested on the judiciary in section 6 and 42 (1-3), by which thejudiciary has the original jurisdiction to “make such orders, issue such writsand give such directions as it may consider appropriate for the purpose ofenforcing or securing the enforcement ……..of any rights to which the personwho makes the application may be entitled….” Section 6 stipulates further thatthe judicial power shall extend to all matters between persons, betweengovernment or authority and any person in Nigeria. It is however worthy to state that section 6 (6) (d) qualifies or, even,limits the judicial power “shall not…extend to any action or proceedingsrelating to any existing law made on or after 15th January, 1966 (military era)for determining any issue or question as to the competence of any authority orperson to make any such law. This means that the courts cannot arrogate tothemselves power which the Constitution has excluded from them. This, inessence, limits the supremacy of the Constitution as certain laws or Decreesare excluded from judicial interpretation. The Constitution should have powerof “rectificatory justice” by which military administration should be checkedeven when such administration has left office. The purpose should be toprotect the people irrespective of regime. Rectification would act as a measure of civilian control of the militaryand would also act as a deterrent to prospective administration. The fact thatthe Constitution is so weakened has condoned public officers to abuse Stateoffices. Nwabueze (1992) laments thus: “while the guarantee of fundamentalrights is among the provisions of the Constitution preserved and continued inforce by the Federal Military Government, it in no way limits the absolutepowers of that government in its legislative capacity. Rather, the Constitutionis, ipso facto, over-ridden by any Decree with which it is in conflict. Where aconflict is apprehended, the constitutional guarantee of rights is usually 7
  8. 8. excluded by express stipulation in individual Decrees to the effect that nothingin the guarantee “shall apply to in relation to any matter arising out of thisdecree”, and that the question whether a guaranteed right has been or isbeing or will be contravened by anything done or purported to be done underthe decree shall not be enquired into any court of law” (Nwabueze, 1992).Irrespective of the tragedy of the military on the constitution, the originaljurisdiction of the judiciary ought to remain vital, mandatory and over-riding forthe common good irrespective of contingent regime. Moreso, it is not surprising that Judges are a final seat of authority andthe final hope of the citizen except in Nigeria, despite the assurance to thecontrary of section 33 of the Constitution: “In the determination of his civilrights and obligations, including any question or determination by or againstany government or authority, a person shall be entitled to a fair hearing withina reasonable time by a court or other tribunal established by law andconstituted in such manner as to secure its independence and impartiality”.Rule of Law and Governance in Nigeria: The “Rule of Law” is a concept associated with the issue of socialjustice in the society. It precludes arbitrary action on the part of institutionalmembers of a society; the government and the governed, and could beasserted as the fundamental principle of a constitution with the attendantfactor of respect to the law (Kalagbor, 2010). The International Commission of Jurist in 1955, cited in Ojo (1987),declared that: the rule of law meant that, State like the governed must bebound by law; all governments must respect individual rights and provideeffective means of enforcing such. There are three versions of the rule of law.The first stipulates that the organ of government must be subject to the legalrules. This conception of the rule demands that all actions of governmentofficials be justified in law and that no government officials, however exalted inrank, is entitled to disregard the law in the name of “reasons of state” 8
  9. 9. (Elegide, 1994). According to Dicey, (1979), “every man, whatever is his rankor condition is subject to the ordinary law of the realm and amenable to thejurisdiction of the ordinary tribunals”. The second conception of the rule of law demands that the lawminimizes arbitrariness on the part of the government and make it possible forthe citizens to effectively take the law into account in planning what to do(Elegide, 1994). The third variant provides that “the function of thelegislature…under the rule of law is to create and maintain the conditionswhich will uphold the dignity of man as an individual. This dignity requires notonly the recognition of his civil and political rights but also the establishment ofthe social, economic, educational and cultural conditions which are essentialto the full development of his personality (The International Commission ofJurists, 1960). Thus, the requirements of the rule of law include”i. The officials obey the legal rules in their actions;ii. The legal rules are such that they minimize the possession of unchecked discretion by the officials; andiii. The legal rules are such that people are able to calculate in advance the legal consequences of their actions (Nwosu, 1999). At this point therefore, it is pertinent to examine the Nigerian system ofgovernance in relation to the requirements of the rule of law. The State Security Decree, 1984 (Detention of persons) commonlycalled (Decree 2) took the shape of a monster before which the ordinaryNigerian trembled. It shook the land, and even the courts and the Constitutionquacked at its instance. Everybody except the Chief of General Staff, theInspector General of Police and the President of the Federal Republic ofNigeria who signed the decree, is a potential victim of the decree(Newswatch, July, 31, 1989). According to Tunji Abayomi cited in Nwosu 9
  10. 10. (1999), “Decree 2 appears to be a law that protects the government at theexpense of the nation because except the government, everyone…..isendangered”. For instance, section 4 of the Decree stipulates that “no suit orother legal proceedings shall lie against any person for anything done orintended to be done in pursuance of this decree”. However, with this decree, the government at once foreclosed thejurisdiction of the courts and rendered irrelevant the handiest legal instrumentfor compelling the state to produce a detained person i.e., the Writ of HabeasCorpus. The decree also made incursions into the Constitution of Nigeria bysuspending chapter IV of the Constitution which provides the FundamentalHuman Rights. In this regard, the decree stated” “any question whether anyprovision thereof (i.e. of chapter IV) has been or is being or would becontravened by anything done or proposed to be done in the pursuance ofthis decree shall not be inquired into by any court of law and accordinglysections 219 and 259 of that Constitution shall not apply in relations to anysuch question”. However, the decree did not define what an infringement of the statesecurity is; the power to determine who has committed such a breach restswith the three people mentioned above. So is the power to determine whatconstitutes a breach. Moreover, although there is constitutional extolment of the courts inorder to ensure the rule of law in Nigeria, but the courts have, in fact, beenincapacitated to be able to do so. This has been done in so many ways whichinclude the proliferation of “ousting” of court jurisdiction. In thirty years, datingfrom 1961 to 1991, there were 164 laws and 216 sanctions in Nigeria withousters (Fawehinmi, 1991). This according to him has eroded theIndependence of the Judiciary. Below is the analysis: 10
  11. 11. YEAR NUMBER OF LAWS1961 31962 11963 41964 51965 21966 211967 51968 81969 51970 21974 51975 41976 81977 141978 61979 181984 151985 41986 31987 41988 41989 31990 31991 2From G. Fawelinmi, “Denial of Justice through ouster of courts jurisdiction in Nigeria” Journalof Human Rights‟ Law and practice, Vol. I, No. 2, November, 1991. The level of ousters and their spread since independence shows thatboth the civilian and the military governments are “friends-in-crime”. Thefollowing breakdown proves it:Balewa‟s Regime accounted for 15 statutes out of 164, i.e. 9.15%: Ironsi 15,i.e.; 9.15%: Gowon 49, i.e.; 29.88%: Muhammed 5, i.e.; 3.05%: Obasanjo 45,i.e.; 27.44%: Shagari Nil: Buhari, 18, i.e.; 10.98% and Babangida 24, i.e.;11.11% (Fawehinmi, 1991). The abuse has been lamented: It is bad enough to oust the jurisdiction of the court of the judicial tribunal by legislation in a muilt-party democracy. It is worse to do so in a single party democracy. It is 11
  12. 12. worse to attempt to do so in a military dictatorship without any structural access to the ventilation of opposition to policies and programmes…. Above all, it is nightmarish to stifle the authority of the courts and judicial tribunals by ouster of their jurisdiction in an absolute military…where one man constitutes himself into a ‘kabiyesi’ of a law maker and a law executioner like we have in Nigeria….. (Fawenhinmi, 1991). In conclusion therefore, there is the need to state that the usurpation ofjudicial powers and abuse of individual‟s rights has also been through „AdHominen‟ legislation which is directed against a named individual. Whateverthe good intention behind them, From 1966 to 1979, there have been some 39 decrees…directed to or against named persons or associations. The actions directed by the decrees range from arrest and detention of persons (20 decrees), forfeitures of assets (14), dissolution of political parties and certain tribal or cultural associations and the forfeiture of their assets (2), imposition of disability (1) to vacation of office or annulment of appointments (2) (Nwabueze, 1992). Retroactive legislation has also been applied by the government andthis, together with „Ad Hominem‟ legislation has the potentiality for oppressiveuse. The threat of their consequences is enough warning. The people nolonger have control over Policy Initiation, Policy Formulation and PolicyImplementation. Opposition is subdued and so the will of the people.According to Fawehinmi, policies are translated into laws; the laws transgressthe people‟s rights. The people feel injured and aggrieved. They run to thejudges and in desperate exasperation, the judges throw up their arms in afateful resignation, pointing to the legislative section ousting their jurisdiction.They fear that they can be retired or dismissed even on the radio or television,particularly if their judgments‟ went against the government (Policy, 1995). 12
  13. 13. Summary and Conclusion This work has looked into the problem of human rights andconstitutional and extra-constitutional governance. The intractable nature andcontentions of human rights are noted. We also registered the fact that theproblem of protecting human rights must be seen within the enduringuncomplimentary interaction between the traditional and the modern socio-political orientations. It shows that the functional relationship among the threebasic arms of government is not reinforcing after all. There are, in practice,glaring instances of erosion of the autonomy of the judiciary at the cost ofhuman rights. The military control of politics is a tragedy going by their poorhuman rights records. It signifies that civilized values no longer apply andsociability is made impossible. In the whole analysis, the three basicrequirements for sustenance of the rule of law have been abused by both thecivilian and the military governments.ReferencesDicey, A.V. (1979). An Introduction to the Study of the Law of the Constitution. London: Macmillan PressElegide, J.M. (1994). Jurisprudence. Spectrum Law SeriesEso, J.S.C in Ransom- Kuti V. Attorney-General of the Federation (1985) 2 NWLR (Part 6) 211 CA. Quoted In A.V. Oyalobi, “Human Rights And Social Justice In Nigeria: Issues, Dilemmas And Challenges”. Journal Of Human Rights Law And Practice, Vol.2, Nos.1,2, 3, December 1993.Fawehinmi, G. (1991). “Denial of Justice through Ouster of Courts Jurisdiction In Nigeria” Journal Of Human Rights Law And Practice, Vol. 1, No.2, November.Jefferson (1822) quoted in Kleinig, J. (1978). “Human Rights, Legal Rights and Social Change” in Kamenka and Tay(ed). Human Rights. London: Edward ArnoldKalagbor, L. D (2010). “The Application of the Doctrine Of The Rule Of Law In Educational Institutions: The Way Forward.” The International Bi-Lingual 13
  14. 14. Journal of Ant-Corruption, Law, Humanities, Social Sciences and Development Studies, Vol.1, No1. January-JuneKleinig, J. (1978). “Human Rights, Legal Rights and Social Change” in Kamenka and Tay(ed). The Anatomy of Idea. London: Edward ArnoldNewswatch, July, 31, 1989.Nwabueze, B.O (1992). Military Rule and Constitutionalism. Spectrum Law Series.Nwosu, O.S. (1999). “Constitutionalism, Governance and the Rights of Man In Nigerian” In Journal of Nigeria Affairs Published By The Social Science Study Group of The University of Port Harcourt, Vol. 4. No.1, AprilOgbaji, U. (2010). “International Conventions and Women’s Rights in Nigeria”. A Paper Submitted To The Third International Conference On Research And Development. November.Ojo, E. (1987). “Tilting Scales of Justice” The Guardian, October 3.Plamenatz, J. (1968). Consent, Freedom and Political Obligation. 2nd edition. London: Oxford University Press.Policy, November 27, 1995.Rawls, J. (1971). Theory of Justice. Cambridge: Harvard University PressThompson, I.G. (2010). “Human Rights And Women Participation In Politics In Nigeria: An Indispensable Tool For Advancing Development And Reducing Poverty”. The International Bi-Lingual Journal of Ant-Corruption, Law, Humanities, Social Sciences and Development Studies. Vol.1, No.1. January-JuneUnited Nations „Universal Declaration on Human Rights‟ (1948),United Nations, 1995. 14