Human rights, rule of law and governance
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Transcript of Human rights, rule of law and governance
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: [email protected]. Tel: +234(0) 8033486531, +234(0)7082729455
Abstract
The contemporary emphasis on democracy and dethronement of authoritarianism in Africa brings to the fore, once again, the enduring problem of and need for human rights as a yardstick for good governance and development. Every society exists to ensure the protection of some fundamental values without which the society would cease to exist. The issue of rights, freedom and justice is, therefore, indispensable in the maintenance of the cohesion of any society. This paper examines a part of this problem by analyzing the constitutional and extra-constitutional governance in Nigeria. It notes the intractability and significance of, and the challenges posed by, human rights and observe the constitutional basis for their preservation and sustenance. Yet, good governance is hedged in by a constitution that provides, on the one hand, uncomplimentary interchange between traditional and modern socio-political orientations, and on the other hand, a dysfunctional relationship among the three arms of government, in which the autonomy of the judiciary is eroded. The uncomplimentarity and the dysfunctionality are made worse by the tragic regimes of praetorianism. Consequently, Nigeria has persistently witnessed uncompromised spates of abuse of the rule of law, and has lacked fundamental basis for preservation of rights of man.
Introduction
Human rights are universal rights or enabling qualities attached to human
beings. The Magna Carta or “Great Nelson” was the world’s first document
that contains commitments by a sovereign to his people to respect certain
legal rights. The issue of human rights descended from the philosophical idea
of natural rights that are provided by God. Some recognize virtually no
difference between the two and regard both as label for the same thing while
others choose to keep the terms separate to eliminate association with same
features traditionally with natural rights (Thompson, 2010).
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The protection of human rights is the compass of good governance. Its
violation brings governance to ruin. It is ruinous because, as political crime, it
negates the principles necessary for public good. The desirability and
preservation of rights of man has, therefore, become a crucial part of the
essence of not only good governance, but also development in the modern
world. Because human rights define the ends of government and foster
development, it is indispensable, but they are not static in form, content and
function. They have to be dynamic in order for them to express changing
human aspirations and seek to remedy the social ills of a given time and
place. Designed for humanity, they have universal connotations. This is
clearly stated in the United Nations ‘Universal Declaration on Human Rights
(1948), the various conventions thereto, and the African charter on Human
and Peoples’ Rights’. Many States wanted to go beyond the declaration of
rights and creation of legal covenants which would put greater pressure on
State to follow human rights.
However, from 14th to 25th June, 1993 in Vienna-Austria, there was a
United Nations Conference on human rights as a follow up to the declaration
of 1948, to see other ways to containing new challenges and to find out the
relationships between development, democracy and rights. All these are
veritable efforts in bolstering and monitoring human rights. The credentials of
most countries in Africa have remained discouraging. There are general
outcries of dehumanization as a result of poor governance. Where democracy
is in place, antithetically, basic rights are derived. There is no difference
between authoritarianism and democracy. The Nigerian case quickly comes
to mind, despite the fact that she is signatory to the world declarations on
human rights. This is not a uniform case in Africa. It varies from one country to
another, both in form and content. How then can we perceive human rights
practice in Nigeria? To what extent has the Nigeria’s constitutional division of
powers ensured the preservation of human rights? What then are the practical
constraints? Is there any way forward?
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In giving answers to the above questions, we contend that in their
modern outfit, human rights are “legal-relation” values that are super imposed
on traditional authorities in Nigeria. The relationship between the two has not
being convenient, at best, it is a resistant compromise. We argue, also that
though the constitution vests protective role on the judiciary, the provision and
practice of separation of power is dysfunctional such that the legislative and
the executive arms continually impede on and erode the autonomy and
capability of the judiciary in upholding the rule of law. This breach of a
fundamental doctrine of good governance is further derogated by the tragedy
of 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 or
nature 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 human
beings are born free and equal in dignity and rights (United Nations, 1995).
Jefferson (1822) states “Nothing is unchangeable by the inherent and
inalienable rights of man”. The rights are peculiar to man because of his
humanity. They are substantiated by reason.
Human rights have concern for freedom and toleration, and draw
strength 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 omnipotent
and infinitely wise maker and are in the world to do his business” (Locke, Two
Treatises of Government). It is reasoned that since the business of God is
peace and order, man would be doing God’s work when he ensures an
orderly social environment. This would only be possible if men, born free and
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equal, could retain their respective rights. Therefore, each person has a duty
to preserve himself and in doing so preserve the rest of mankind. This
specifies two duties: not to overtly harm another human and to protect his own
and other men’s lives when the two are not in conflict. Whenever they are in
conflict, it is the duty of the government to arbitrate over and protect such
rights through constitutional stipulations. This follows that arbitrary
government can be removed and replaced with another by the people. The
people are sovereign. The idea became fruitful in the Declaration of Rights of
June 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. The
content also depends on definition of humanity. Since human beings are
corporeal, they should have a right to life, freedom from pain and torture,
being rational and thoughtful, he should have the right to freedom of
association, speech, thought, conscience etc. These attributes not only define
humanity, but also add meaning and significance to it. Life devoid of them is
not social and so it is inhuman. To keep these attributes is to preserve
humanity. This made Plamenatz to define rights as “…a power in exercise of
which all rational beings ought to protect a creature, either because its
exercise 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 land
and are antecedent to the political society. It is a pre-condition to civilized
existence (Eso, 1985). Antecedence, thus, means that rights are attributable
to every human being prior to any undertaking into which individuals may
have entered. An individual should enjoy natural rights prior to and exclusive
of any other contract he may decide to have. Or, as Hart puts it, “general
rights’ are attributable to all men capable of choice….in the absence of those
special conditions which give rise to special rights”. It is in this sense that
John Rawls’ natural duties and human rights’ are those that contracting
parties in an ‘original position’ or under the ‘veil of ignorance’ would have
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reason to acknowledge because they are antecedents (Rawls, 1971).
Contracts or relationships that counter these rights suffer from legal infraction
and are voidable.
However, the desire for protection of rights derives from the fact that
sovereignty lies with the people since all powers, including the ends of
government, are vested in, and consequently derive from, the people.
Government acts as an agent of the people and is subject to them in the
protection of their rights. It stands that test of time only to the extent that the
rights are respected (Nwosu, 1999).
Given the dynamic character of human rights, it has suffered from
challenges and contentions. The trend is such that right to life, seen by
Backstone as ‘a person’s legal and uninterrupted enjoyment of his life, his
limbs, his body, his health and his reputations, by extension, now includes
protection against “psychological suffering and apprehension of injury,
offensive noises and odours, and invasion of privacy” (Kleinig in Kamenka
and Tay, 1978). This contemporary focus of rights, therefore, is on the quality
of 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 challenged
by utilitarianism which posits that what is just and right is a function of its utility
to promote the happiness of the greatest number. Yet rights have not been
free from being questioned on the grounds of empirical verification, as being
outside 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 social
scope. This limits the rights of women and the under priviledged (Ogbaji,
2010). This feminism (feminist theory) challenges the narrow interpretation
and the practical effects of human rights. Feminist contend that rights should
be gender neutral, there should be the same rights and economic
opportunities for women as for men, because “men and women, through
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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 ‘this
Constitution is supreme and its provisions shall have binding force on all
authorities and persons throughout the Federal Republic of Nigeria’. And so
as to foreclose the existing traditional authorities, the constitution also
excludes the powers of other institutions by extolling the provisions of the
Constitution with a view to ensuring the supremacy of the Constitution. Thus:
“The Federal Republic of Nigeria shall not be governed, nor shall any person
or group of persons take control of the government of Nigeria or any part
thereof, except in accordance with the provisions of this Constitution. If any
other law is inconsistent with the provisions of this Constitution, this
Constitution shall prevail, and that other law shall to the extent of the
inconsistency be void (FGN, 1979; Ch. 1, Pt 2).
The Constitutional provision of human rights in Nigeria is an articulation
of modern “legal-rational” arts with the traditional power relations. The
relationship is not easily complementary. While the former is meant to
conform with and foster a modern economic system that is competitive and
individualistic, the latter relates with and co-ordinates, essentially, a
communalist orientation. Human rights practice in the latter orientation takes a
particular form that is different from the modern.
Under the context of the first paragraph above, the communal frame of
rights in African traditional parlance is foreclosed while the political, social and
economic objectives of the modern state are set out and the rights of
Nigerians are, ideally, defined in order “to secure the maximum welfare,
freedom and happiness of every citizen on the basis of social justice and
equality of status and opportunity”.
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However, while section 17 of the Constitution provides the social
objectives of the state for the citizens, sections 30-40 provide eleven specific
Fundamental Rights of Nigerians. The power to protect those rights is
manifestly vested on the judiciary in section 6 and 42 (1-3), by which the
judiciary has the original jurisdiction to “make such orders, issue such writs
and give such directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement ……..of any rights to which the person
who makes the application may be entitled….” Section 6 stipulates further that
the judicial power shall extend to all matters between persons, between
government 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 proceedings
relating 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 or
person to make any such law. This means that the courts cannot arrogate to
themselves power which the Constitution has excluded from them. This, in
essence, limits the supremacy of the Constitution as certain laws or Decrees
are excluded from judicial interpretation. The Constitution should have power
of “rectificatory justice” by which military administration should be checked
even when such administration has left office. The purpose should be to
protect the people irrespective of regime.
Rectification would act as a measure of civilian control of the military
and would also act as a deterrent to prospective administration. The fact that
the Constitution is so weakened has condoned public officers to abuse State
offices. Nwabueze (1992) laments thus: “while the guarantee of fundamental
rights is among the provisions of the Constitution preserved and continued in
force by the Federal Military Government, it in no way limits the absolute
powers of that government in its legislative capacity. Rather, the Constitution
is, ipso facto, over-ridden by any Decree with which it is in conflict. Where a
conflict is apprehended, the constitutional guarantee of rights is usually
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excluded by express stipulation in individual Decrees to the effect that nothing
in the guarantee “shall apply to in relation to any matter arising out of this
decree”, and that the question whether a guaranteed right has been or is
being or will be contravened by anything done or purported to be done under
the decree shall not be enquired into any court of law” (Nwabueze, 1992).
Irrespective of the tragedy of the military on the constitution, the original
jurisdiction of the judiciary ought to remain vital, mandatory and over-riding for
the common good irrespective of contingent regime.
Moreso, it is not surprising that Judges are a final seat of authority and
the final hope of the citizen except in Nigeria, despite the assurance to the
contrary of section 33 of the Constitution: “In the determination of his civil
rights and obligations, including any question or determination by or against
any government or authority, a person shall be entitled to a fair hearing within
a reasonable time by a court or other tribunal established by law and
constituted 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 social
justice in the society. It precludes arbitrary action on the part of institutional
members of a society; the government and the governed, and could be
asserted as the fundamental principle of a constitution with the attendant
factor 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 be
bound by law; all governments must respect individual rights and provide
effective 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 legal
rules. This conception of the rule demands that all actions of government
officials be justified in law and that no government officials, however exalted in
rank, is entitled to disregard the law in the name of “reasons of state”
8
(Elegide, 1994). According to Dicey, (1979), “every man, whatever is his rank
or condition is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals”.
The second conception of the rule of law demands that the law
minimizes arbitrariness on the part of the government and make it possible for
the citizens to effectively take the law into account in planning what to do
(Elegide, 1994). The third variant provides that “the function of the
legislature…under the rule of law is to create and maintain the conditions
which will uphold the dignity of man as an individual. This dignity requires not
only the recognition of his civil and political rights but also the establishment of
the social, economic, educational and cultural conditions which are essential
to the full development of his personality (The International Commission of
Jurists, 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; and
iii. 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 of
governance in relation to the requirements of the rule of law.
The State Security Decree, 1984 (Detention of persons) commonly
called (Decree 2) took the shape of a monster before which the ordinary
Nigerian trembled. It shook the land, and even the courts and the Constitution
quacked at its instance. Everybody except the Chief of General Staff, the
Inspector General of Police and the President of the Federal Republic of
Nigeria who signed the decree, is a potential victim of the decree
(Newswatch, July, 31, 1989). According to Tunji Abayomi cited in Nwosu
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(1999), “Decree 2 appears to be a law that protects the government at the
expense of the nation because except the government, everyone…..is
endangered”. For instance, section 4 of the Decree stipulates that “no suit or
other legal proceedings shall lie against any person for anything done or
intended to be done in pursuance of this decree”.
However, with this decree, the government at once foreclosed the
jurisdiction of the courts and rendered irrelevant the handiest legal instrument
for compelling the state to produce a detained person i.e., the Writ of Habeas
Corpus. The decree also made incursions into the Constitution of Nigeria by
suspending chapter IV of the Constitution which provides the Fundamental
Human Rights. In this regard, the decree stated” “any question whether any
provision thereof (i.e. of chapter IV) has been or is being or would be
contravened by anything done or proposed to be done in the pursuance of
this decree shall not be inquired into by any court of law and accordingly
sections 219 and 259 of that Constitution shall not apply in relations to any
such question”.
However, the decree did not define what an infringement of the state
security is; the power to determine who has committed such a breach rests
with the three people mentioned above. So is the power to determine what
constitutes a breach.
Moreover, although there is constitutional extolment of the courts in
order to ensure the rule of law in Nigeria, but the courts have, in fact, been
incapacitated to be able to do so. This has been done in so many ways which
include the proliferation of “ousting” of court jurisdiction. In thirty years, dating
from 1961 to 1991, there were 164 laws and 216 sanctions in Nigeria with
ousters (Fawehinmi, 1991). This according to him has eroded the
Independence of the Judiciary. Below is the analysis:
10
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 2
From G. Fawelinmi, “Denial of Justice through ouster of courts jurisdiction in Nigeria” Journal
of Human Rights’ Law and practice, Vol. I, No. 2, November, 1991.
The level of ousters and their spread since independence shows that
both the civilian and the military governments are “friends-in-crime”. The
following 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 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
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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 of
judicial powers and abuse of individual’s rights has also been through ‘Ad
Hominen’ legislation which is directed against a named individual. Whatever
the 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 and
this, together with ‘Ad Hominem’ legislation has the potentiality for oppressive
use. The threat of their consequences is enough warning. The people no
longer have control over Policy Initiation, Policy Formulation and Policy
Implementation. Opposition is subdued and so the will of the people.
According to Fawehinmi, policies are translated into laws; the laws transgress
the people’s rights. The people feel injured and aggrieved. They run to the
judges and in desperate exasperation, the judges throw up their arms in a
fateful 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).
Summary and Conclusion
This work has looked into the problem of human rights and
constitutional and extra-constitutional governance. The intractable nature and
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contentions of human rights are noted. We also registered the fact that the
problem of protecting human rights must be seen within the enduring
uncomplimentary interaction between the traditional and the modern socio-
political orientations. It shows that the functional relationship among the three
basic 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 of
human rights. The military control of politics is a tragedy going by their poor
human rights records. It signifies that civilized values no longer apply and
sociability is made impossible. In the whole analysis, the three basic
requirements for sustenance of the rule of law have been abused by both the
civilian and the military governments.
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