ABSTRACT
Human rights protection is a matter of domestic and international Jurisdictions. Due to its nature, local courts are often vested with adjudicatory powers over international human rights obligations of countries. The world witnessed a major development in human rights jurisprudence on 10 December, 1948, when the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.
One issue which this research seeks to resolve is the problems and prospects of the enforcement of fundamental human rights in Nigeria. Another goal of this thesis is to examine the meaning of rights and how they can be enforced when there is a breach. The doctrinal method was adopted in carrying out this research wherein primary and secondary sources of information were founded upon. The primary sources of information include conventions, protocols and treaties, both local and international. National Law and the Constitutions of the Federal Republic of Nigeria were also relied upon, while the secondary sources of information relied upon were books, journals, newspaper publications and the internet services. This study also drew on law reform and policy papers and articles in relevant fields of law.
The main findings of this work are firstly, that ignorance and poverty are bane to the enforcement of fundamental human rights in Nigeria. Secondly, enforcement of fundamental human rights thrives under an atmosphere where there is rule of law. Thirdly, the refusal by the government and its agencies especially the security agents in Nigeria to obey court orders militates against the enforcement of fundamental human rights in Nigeria. This work consequently recommended that the provision of chapter 12 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) should be amended to give automatic application to all relevant treaties including human rights instruments ratified by the government of Nigeria. It is also recommended that Chapter II of the 1999 Constitution should be made justiciable so that the citizens of Nigeria can approach the courts for redress whenever their rights under this chapter are breached.
CHAPTER ONE
INTRODUCTION1.0 Background to the Study
The issues of human rights have now taken central place in the world order. It is now almost universally recognized and accepted that individual, by virtue of their humanity are endowed with certain rights which are inalienable, indivisible and inviolable. The American founding fathers, in isolating the basis for human rights stated in their declaration of independence in 1776 that; “It is a self evident principle that the creator has endowed man with certain rights which includes life, liberty and a pursuit of happiness.[1]” According to Kayode Eso, JSC;
A fundamental right is a right which stands above the ordinary laws of the land and which is antecedent to the political society; it is pre-condition to a civilized existence.[2]
It is in recognition of these inherent rights of men that the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR has been described as the great Charter of liberties and a common standard of achievement of all people, representing a common statement of all goals and aspirations a vision of the world as international community would want it to become[3]. Many member states including Nigeria, have adopted the tenets of the declaration and nearly all their constitutions contain bills of rights[4]. It has inspired more than sixty instruments which together constitute an international standard for human rights.[5]
The presence of these basic human rights in Nigerian constitution is due to the history of our constitutional development. The reason for placing the rights in our constitution was explained by Kayode Eso, JSC as being so that “the rights could be immutable” to the extent of the no-immutability of the constitution itself.[6]
During Nigeria’s fight for independence, one of the problems that confronted the British was the minorities question: how to protect the minorities in each of the Nigeria’s three regions. Lord Hailey, sent by the British Government to study the political situation in Nigeria among its other political dependencies in Africa observed on this issue as follows; “the main difficulty in envisaging the three regions (of Nigeria) as functional units lies however in the possibility that they may come into conflict with smaller units which are real”.[7] He further posited that there is nothing natural about the three units as for instance; “in the West, the Yoruba States has something approaching natural core, but Warri Province is fundamentally different”[8].
He further identified as different from the emirates in the North the Yoruba and about four million pagans who lies outside the grouping.
The minorities questions led to the setting up by the Colonial Government of the Minorities Commission headed by Sir Henry Willink that was charged with amongst other terms of reference:
- To ascertain the fact about the fear of minorities in any part of Nigeria and to propose means of allaying those fears whether well or ill founded.
- To advise what safeguards should be included for this purpose in the constitution of Nigeria.
The Willink Commission in its reports affirmed that the fears of the minorities are real and called for safeguard for them by incorporation of the fundamental rights in the Nigerian constitution. This proposal was adopted at the constitutional conference and the fundamental rights provisions then made their first and since then consistent appearance in our constitution. Nigeria, as signatory to the African Charter on Human and Peoples Rights has also enacted the said Charter into law in Nigeria.[9] Since their introduction in Nigeria, it would appear that the focus has been shifted from the use of fundamental rights to protect the rights of minorities to its use to protect the rights of the individual citizen.
The question is who are entitled to apply to enforce the fundamental rights? In other words, who do the rights protect? Are they enforceable only by human beings, or also by corporations and other artificial persons? In order to answer the above questions, this work set the following clear goals;
a) To examine the evolution of human rights and the historical and political thought that have encapsulated the concept.
b) To examine the international human rights instruments concerning human rights generally to which Nigeria is a signatory with a view to determine the extent of Nigeria’s legal obligations arising therefrom, if any. More importantly, the work tends to further discuss other international instruments and mechanisms for the actualization of the enforcement of fundamental human rights. These include: Universal Declaration of Human Rights (UDHR), the ECOWAS Court, the African Commission on Human and Peoples Rights (ACHPR), African Court on Human and Peoples Rights established under the protocol to the African Charter on Human and Peoples Rights on the Rights of Women, the Convention on the Elimination of all forms of Discrimination against Women.
c) To examine the extent of enforcement, protection and implementation of fundamental human rights in the light of Nigeria’s international obligations and the Constitution of the Federal Republic of Nigeria
d) To analyse the mechanism for the enforcement of fundamental human rights in the country.
e) Discuss the prospect of fundamental human rights enforcement in the country.
Enforcement of fundamental human rights is the bedrock of any civilized society and Nigeria is not an exception. The ability or inability of any nation or its citizens to enforce their fundamental rights goes to the very heart of peaceful co-existence. Enforcement of fundamental human rights in Nigeria is endangered by some challenges, which could take the steam out of fundamental human rights in the country. Some of these challenges are ignorance and poverty on the part of the majority of the citizens of Nigeria, jurisdiction of the courts, attitudes of government functionaries, the refusal of government and its agencies, especially the security agents to obey courts order and judgement, non-justiciability of chapter II of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are all challenges to the effective enforcement of fundamental human rights in Nigeria.
The overall aim of this study is to examine the problems and prospects of enforcement of fundamental human rights. The specific objectives of this work are to:
1. Discuss the nature and importance of fundamental human rights,
2. Examine the state of fundamental human rights enforcement in Nigeria.
3. Analyse the mechanism for enforcement of fundamental human right in the country.
4. Examine the problems of enforcement of fundamental human rights in the country;
5. Discuss the prospects of fundamental human rights enforcement in the country.
6. Examine the efficacy of human right protection and enforcement mechanism.
It is generally difficult to ascertain the law with some degree of precision. This is particularly so with the law of the enforcement of fundamental human rights. As a result of these difficulties, doctrinal approach has been adopted in this study. This approach encompasses literature review on enforcement of fundamental human rights and fundamental rights. This review covers definition of terms and concept with a view to a developing and articulating specific research questions. The literature review will cover books, journals, law review, statues, cases, law reform and policy papers, conventions, protocols, and treaties.
This study relied on two sources of information, namely, primary and secondary sources;
a) Primary Sources: This work relied on primary sources of information, such as conventions, protocols and treaties. The study had recourse to major conventions both local and international. This work also relied on relevant national laws. The constitution of the Federal Republic of Nigeria was also relied upon.
b) Secondary sources: This work had recourse to secondary sources of information such as books, journals, newspaper publications and the internet services. This study also drew on law reform and policy papers and article in relevant field of law.
The following were the findings;
1. That ignorance and poverty are bane to the enforcement of fundamental human rights in Nigeria.
2. The enforcement of fundamental human rights thrived under an atmosphere where there is rule of law.
3. That there is a marked difference between the new enforcement procedure rule and the other enforcement procedure Rules.
4. That the refusal by the government and its agencies especially the security agents in Nigeria to obey court orders militates against the enforcement of fundamental human rights in Nigeria.
The scope of this research work is on the enforcement of fundamental human rights in Nigeria: problems and prospects. This research work is not comparative in nature but limited to Nigeria.
However, reference would be made to other jurisdiction when the need arise in the course of the research work. The research work examined most of the relevant conventions, protocols and treaties, both local and international. National law and the constitution of the Federal Republic of Nigeria, 1999 (as amended) is also examined. The research work also drew on law reform and policy papers and articles relevant to enforcement of fundamental human rights.
The research work has shown that fundamental human rights has been the concern of the civilized world from time immemorial. It is as old as creation.
The research updates the existing materials in the area of enforcement of fundamental human rights in Nigeria: problems and prospects. Although, a lot of research work has been done on human rights, many did not deal on enforcement and only very few deal on problems and prospects of enforcement of fundamental human rights in Nigeria.
The research work also highlights the relevance of Nigerian indigenous form of enforcement of human rights in contemporary relationship, communal living as opposed to western individualistic tendency.
The research work also reveals that apart from the function of the judiciary, for the rule of law, and human rights to be enforced, it is necessary to have a Bar that maintains its independence from the authorities in its defence of the rule of law. The Bar must also support the administration of justice by independent judges and most importantly encourage the entrenchment of a democratic government where these principles will be more easily operated.
The research work also reveals that the enforcement of fundamental human rights is based on the provision of impartial and adequate judicial services and legal representation by the Bar.
The research work examined section 46(1) of the 1999 Constitution (as amended) requirement that an action for fundamental human rights enforcement can only be instituted in the state where the cause of action arose is a further unnecessary restriction on enjoyment of fundamental human rights.
Fundamental human rights are not a new phenomenon in Nigeria. There are a lot of textbooks on this subject but not many have treated the aspect of challenges and prospect in detailed. One of the major works on enforcement of human rights in Nigeria is done by Mohammed Baba Idris and Yemi Oke[10].this work which titled “Law and Procedure for the Enforcement of Human Rights in Nigeria” was published in 2013. This book is mainly on the procedure for the enforcement of human rights in Nigeria. The relevant instruments both foreign and local for the enforcement of human rights are discussed in this work, however, the issue of problems and prospects of fundamental human rights are not discussed in the book. This is a gap that this research work tend to fill.
Another book titled “Fundamental Rights Enforcement in Nigeria” by Femi Falana[11] is quite elaborate in the treatment of fundamental rights in Nigeria but no mention was made with regard to problems and prospects of enforcement which is the main defect in the book that this research work will address. Also, there is a book by Eseni Azu Udu[12] titled “Human Rights in Africa”. This work is generally on human right in Nigeria and other African countries such as Senegal, South Africa, Togo, Cameroon and others. The work also carried out comparative analysis of human rights enforcement with these other African countries. It also has an appendices that contained the Constitutions of ten African countries including that of Nigeria, making a total of eleven countries. It also has the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, the Universal Declaration of Human Rights and the Convention on the Elimination of all Forms of Discrimination Against Women. This work did not however discussed the problems and prospects of enforcement of human rights in Nigeria and the other jurisdictions dealt with in the work.
The book by Oputa, C.A.[13] titled “Human Rights in the Political and Legal Culture of Nigeria” dwell on political and legal culture of Nigeria with regard to human rights. The work did not also discussed problems and prospects of enforcement of human rights. While the work of Osita, N.O.[14] discussed Human Rights Law and Practice in Nigeria, that of Oyajobi[15] focuses on human rights and social justice in Nigeria without reference to problems and prospects of enforcement. Lauren, P. G.[16] wrote on philosophical visions: human nature law and natural law. His work is more of philosophy and natural rights and not in the realm of enforcement of human rights.
Obiagwu’s [17] work titled “Legal Protection of Human Rights in Africa: Problems and Challenges” is rather too broad as it covers the entire Africa. The problems and prospects of enforcement of fundamental human rights in Nigeria are not well captured in the work. Another work by Ogbu, O.N[18]. entitled “Human Rights Law and Practice in Nigeria: an introduction”, discussed human rights and practice generally but failed to discuss the aspect of problems and prospects.
The work of Onah, O.[19] deals on reproductive rights as human rights is rather too restrictive as it only focused on one aspect of rights. There are other works by foreign authors such as the work of Pothis, A., Schwab, P[20]., titled “Human Rights: A Western Construct of Limited Applicability”. This work is mainly on human right issues and did not treat any aspect of problems and prospects. Other works by Robertson, A.H.[21], Steiner, H and Alston, P.,[22] Klein E.,[23] all discussed one aspect of human rights or the other. None of this works actually touched on the problems and prospects of enforcement of human rights in their jurisdiction.
Apart from basic textbooks that deals on human rights and its enforcement, there are relevant articles in learned journals that deals on human rights and its enforcement. The work of Adekanle and Agbator[24] titled “Towards the Enforcement of Women’s Rights to Inheritance and Abolition of Cultural Discrimination Against Women in Nigeria” is solely about the emancipation of women from the shackles of cultural practices that discriminates against women as it relates to inheritance as practiced by some tribes in Nigeria. The work did not discuss the problems and prospects of enforcement. The work of Edoba, B.O.[25] is titled “Enforcement of Fundamental Rights in Nigeria: Proposal for Reform”. The work is detailed as it touched on many aspect of enforcement of human right and highlighted some of the problems of enforcement but fails to mention the prospects of enforcement.
The work of Baimu, F.[26] is on Protection of Human Right in Africa. The work is a broad scope as it covers Africa and as such attention is not paid to the enforcement of fundamental human rights in Nigeria. The work of Berat, L.,[27] deals on the protection of human rights in South Africa. The work is not comparative in nature; therefore, no reference was made to Nigeria. The work of Barnet, L.G.[28] is on international human rights norms and their domestic application. The work deals on how international human rights norms can be applied domestically. The issue of problems and prospects was not dealt with. The work of Gye-Wado[29] discuss the effectiveness of the safeguard machinery for the enforcement of human rights in Africa, that of Fred[30] disused treaty and non-treaty of human rights agreement. None of these works discuss any issue relating to problems and prospects of the enforcement of fundamental human rights.
The work of Udombana[31] is titled “Human Rights Protection and Good Governance in Nigeria”. The work is centered on good governance as a means of human rights protection. The work did not discuss the problems and prospects of enforcing human rights in Nigeria. Another work by Umuzurike[32], is titled “The Present State of Human Rights in Africa” discuss generally about the situation of human rights in Africa as a whole. There was no in-depth analysis of enforcement and its problems and prospects. Though, this work is on human rights, its focus is on Africa and not Nigeria. “The Legal Framework of Human Rights in Nigeria” by Fagbohunlu[33] is another work that is devoted to the legal framework to the exclusion of enforcement mechanism and problems and prospects. Though, it covers substantially the legal framework of human rights in Nigeria, it is devoid of the mechanism of enforcement and the problems of enforcement. This is a major defect in the work.
The work of Schuler and Flower[34] is devoted to women’s rights and not the rights of every citizen. It discuss the rights that are peculiar to only women and now they can be enforced if there is a breach. The work of Nwebo titled “Protection of Human Rights in a World Order” is on Global Human Rights Protection. Its focus is global and not on Nigeria, Nnaemeka-Agu’s[35] work is titled “The Role of Lawyers in the Protection and Advancement of Human Rights” is devoted to the duties of lawyers in the protection and advancement of human rights. The work also discuss the responsibilities of lawyers to their clients, the courts and the society in general. The work did not cover the problems and prospects. The work did not also cover the enforcement procedure of fundamental human rights which is a major defect in the work that this research will tackled.
The work of Levit[36] is titled “The Constitutional Liberation of Human rights in Argentina: Problems or Promise”. The work is completely devoted to human rights issues in Argentina. The work is not comparative in nature so human rights issue in Nigeria did not form any part of discussion throughout the work. The work of Nwazuoke[37] is titled “ The Impact of the African Charter on the Enforcement of Human Rights in Nigeria. The work almost cover the entire garnut on the enforcement of human rights in Nigeria by virtue of the African Charter on Human and Peoples’ Rights. The only major flaw in the work is the failure of the author to discuss the problems and prospects of enforcement of fundamental human rights. This defect and others would be taken care of this research work. The work of Olabisi and Durojaiye[38] is titled “Enforcement of Human Rights in Criminal Justice Under the African Charter on Human and Peoples’ Rights”. The major concern of the work is criminal justice and the African Charter on Human and Peoples’ Rights. Nothing was discussed about civil and political rights which form the bulk of human rights in any international, regional and national human rights instruments on enforcement of fundamental human rights.
Several factors, including lack of adequate understanding of the concept and elements of enforcement of fundamental human rights, jurisdiction of the courts, localization of international human rights, and provisions of some national laws militate against the enforcement of fundamental human rights, yet not much attention has been paid to the challenges and prospects of enforcement of fundamental human rights, particularly as it relates to Nigeria. This research work is an attempt to bridge this academic gap.
The research work contributed to knowledge in the following ways;
a) It analyse the mechanism for the enforcement of fundamental human rights in Nigeria.
b) The work also provide possible suggestions to the problems of enforcement of fundamental human rights in the country
c) This work also suggests ways by which the government and its agencies can obey court orders.
d) This work also suggests ways by which the ignorant and the poor can be assisted when their rights are breached.
[1] Hood Phillips; Constitutional Law (2nd ed.)p. 493; cited by Olabisi Ayankogbe & Ebenezer Durojaiye in “Enforcement of Human Rights Criminal Justice Under the African Charter on Human and People Rights in Kogi State University” Bi-Annual Journal of Public Law; Vol. 3, No.2, 2010, p.113.
[2] Ransome Kuti .v. A.G. Federation (1985) 8 NWLR (Pt.6). p. 271.
[3] Osita, Nnamen; Ogbu, Human Rights Law and Practice In Nigeria: An Introduction; (Enugu, CIDJAP Press, 1999),p.11
[4] See Chapter iv of the 1979 and 1999 Constitution
[5] Supra noted 3, p.41
[6] Ransome Kuti .v. A.G. Federation (2001) FWLR (Pt.80), p. 1637 at 1677
[7] Lord Halley; “Confidential Report on Nigeria” 1940-41, cited by Okafor, S.O., Indirect Rule: the Development of Central Legislature in Nigeria, (Thomas Welson, 1981), p. 142
[8] Ibid
[9] African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
[10] Mohammed Baba Idris and Yemi Oke, Law and Procedure for the Enforcement of Human Rights in Nigeria (Abuja: LawLords Publication, 2013).
[11] Femi Falana; Fundamental Rights Enforcement in Nigeria (Lagos: Legal Text Pub. Co. Ltd., 2000)
[12] Eseni, A.U., Human Rights in Africa, (Nigeria: Mbeyi & Associate, Nig. Ltd., 2011)
[13] Oputa, C.A. Human Rights in the Political and Legal Culture of Nigeria, (Lagos: Nigeria Legal Pub. Ltd., 1988)
[14] Osita, N.O., Human Rights Law and Practice in Nigeria: An Introduction, (Enugu: IDJAP Press, 1999).
[15] Oyajobi, A.V. “Human Rights and Social Justice in Nigeria: Issues, Dilemma and Challenges” in Civil Liberties Organisation (ed.) Human Rights Law and Practices (Civil Liberties Organisation, 1993)
[16] Lauren, P.G., Philosophical Visions: Human Nature Law and Natural Rights, (Philadelphia: University of Pennsylvania Press, 2003)
[17] Obiagwu, Legal Protection of Human Rights in Africa: Problems and Challenges, (Lagos: CEDAP, 1999)
[18] Ogbu, O.N. Human Rights Law and Practice in Nigeria: An Introduction, (Enugu: CIDTAP Press, 1999).
[19] Onah, O., HIV/AIDS, Reproductive Rights are Human Rights, (Enugu: Fourth Dimension Publishing Co., Ltd., 2004)
[20] Pothis, A., Schwab, P., Human Rights: A Western Construct of Limited Applicability, (New York: Oxford Universally Press, 2000).
[21] Robertson, A.H., Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights, 2nd ed., (Manchester: Manchester University Press, 1977).
[22] Steiner, H., Alston, P., International Human Rights in Context: Law, Politics, Moral – Text and Materials, 2nd ed., (New York: Oxford University Press, 2001).
[23] Klein, E., The Universal Protection of Human Rights – Reality or Utopia? in Institute for Scientific Cooperation (Tubingen: Drucker ei Deile, 1999)
[24] Adekanle, A., Agbator, A., Towards the Enforcement of Women’s Rights to Inheritance and Abolition of Cultural Discrimination Against Women in Nigeria in EJOB, Vol. 2, 2010
[25] Edobo, O., “Enforcement of Fundamental Rights in Nigeria: Proposal for Reform” in University of Benin Law Journal, (2005), 8(1) UBJ.
[26] Baimu, F., Protection of Human Rights in Africa” in African Human Rights Law Journal, 2000.
[27] Berat, L. “The South African Judiciary and the Protection of Human Rights: A Strategy for a New South Africa in Stemp Int’l and Comp. Law Journal, 1999
[28] Barnet, L.G., “International Human Rights Norms and their Domestic Application: Judicial Methods and Mechanisms” in Revista HDH, Vol. 29, 1999.
[29] Gye-Wado, O., “The Effectiveness of the Safeguard Machinery for the Enforcement of Human Rights in Africa, in Journal of Human Rights Law and Practice, 1992.
[30] Fred, W.R., Treaty and Non-Treaty Human Rights Agreements: A Case Study of Freedom of Movement in East Germany” in Column J. Trans. Nat. LL21, 1986
[31] Udombana, N.J., “Human Rights Protection and Good Governance in Nigeria” in the Justice Journal, 2nd ed., 2011.
[32] Umozurike, U.O., “The Present State of Human Rights in Africa” in the Calabar Law Journal, 1999
[33] Fagbohunlu, T., “The Legal Framework of Human Rights in Nigeria, in the C.L.O. Annual Report on Human Rights in Nigeria, Lagos: 1991
[34] Schuler, M., Flower, N., “Women’s Human Rights: Step by Step Facilitators Guide, (Women Law and Development International, Units 1-3).
[35] Nnaemeka-Agu, P., “The Role of Lawyers in the Protection and Advancement of Human Rights” in JHRLP, Vol. 2, No. 1 and 2, 1992.
[36] Levit, J.K., “The Constitutional Liberation of Human Rights in Argentina: Problems or Promise” in 37 Column J. Trans. LL. 293-309, 1999
[37] Nwazuoke, A.N., “The Impact of the African Charter on the Enforcement of Human Rights in Nigeria” in Nigerian Bar Journal, 2008
[38] Olabisi, A., and Durojaiye, E., “Enforcement of Human Rights in Criminal Justice Under the African Charter on Human and Peoples’ Rights” in Kogi State University Bi-Annual Journal of Public Law, Vol. 3 No. 2, 2010.
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