AN EXPOSITION OF THE INHERENT CONFLICT BETWEEN HUMAN RIGHT PRACTICES AND NIGERIAN CUSTOMARY LAW



CHAPTER ONE
1.1      Background of the study
The background study of this topic will be anchored on the historical voyage of Human right into the Nigeria Constitution and the various stages of customary law evolvement and development in Nigeria. For proper appreciation of this work, by all users of it, certain legal terms would be extracted and given proper elucidation. To an average Nigerian, privileges and rights are interchangeably useable as the same. Also, the terms human rights and fundamental human rights have no significant difference. Sequel to the above affirmation, and for proper consumption of this work by the average Nigerian reader, the thin lines between these terms will be emphasized on first before delving into the escorting of the historical evolvement of human right into the Nigerian constitution and the development of Nigerian customary law.

    Rights and privileges are not one and the same word legally speaking
Etymologically, the word “right” is derived from the latin word “rectus”, which means straight or correct as opposed to something crooked or wrong. Legally, the word “right” means the freedom to act or abstain from acting, or capacity to compel others to do or refrain from doing a particular thing, with the assent and assistance of the state[1]. Privileges on the other hand, is “a right or power conferred by a special law[2].
            To a layman on the streets, the terms “Human Rights” and fundamental human rights” have significant difference, as such they are the same to him. It is on the above premise that I would distinguish between the two legal words.
            Human right like most legal concept has defied all attempts to capture it in a single definition. Notwithstanding this hardship in defining the term, one point of major agreement is that the addition of the adjective “human” to rights indicate that the rights in question belong solely to human beings, and all that is needed to have them is human nature. It is on this basis that they have been described as inalienable. The inalienability of human rights does not, in practice mean that they cannot be alienable or taken away, but that if they are, the life is not fully human life[3]. Fundamental Human Rights, in contradistinction to human right, refer only to those human rights which have become incorporated into, and guaranteed by the positive law of any given state. According to D.L. Paret[4].
            Rights are properly called fundamental when they are expressed in, or guaranteed by laws which are the basic or pre-eminent laws of the legal system in question, E.g rights which are specified in a written constitution, or in judgments of a superior court interpreting the constitution, or in enactments of a legislature designed to render the constitution more specific in certain area.
            The more entrenchment of a right in a constitution does not make it fundamental. This is borne out by chapter II of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2011, titled “Fundamental objectives and directive principles of state policy, which is non-justiciable by virtue of section 6 (6) © of the same constitution. in this regard, Smith [5] has opined that in addition to entrenchment, a right to become fundamental must not only be judicially enforceable, but must not be readily derogated from.
            Having successfully done justice for clearity purpose and better understanding to a layman the legal implications of the above legal terms which will be met from time to time in the course of going through this work, let is now devote this sub-chapter on the historical evolution, development of customary law, and how human right crept into our system.
            The contemporary concept of human has its philosophical foundations in antiquity. The two conceptual trends which impacted mostly on the development of the idea of human rights were the theories of natural law and natural rights. Though notions of equality and nature emerged from Greek philosophical thinking, it was the stoics of the Roman Empire who were the chief exponents of natural law[6].
            Natural law presupposes the existence of moral rules given by God, and knowable through the exercise of right reason. These rules of application and everlasting… we cannot be freed from its obligations by senate or people, and we need not to look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is God…”[7]
            This passage not only demonstrated the stoics idea of “a single city of mankind in which the equal worth of all individuals was recognized”, but contained also an implied disparagement of the parochial conception of equality by the classical Greek philosophers who believed that slaves were not entitled to be treated equally with free men[8]. Thus Aristotle’s definition of the stoics emerged the jus gentium  of Roman Law (that is, a body of law which in all cases applied equally to aliens and citizens).
            The next stage in the further development of the present concept of human rights was furnished by Christianity and Christian philosophers.  The Christian gospel preached the universal brotherhood of mankind, and thus in principle opposed slavery, though in practice did not denounce it. Thomas Aquinas, a medieval Christian philosopher, classified law into three, consisting, in order of supremacy, of eternal law, natural law, and human law. Unlike the conception of natural law by the stoics, for Aquinas natural law was not God given, but consisted of inferences drawn form human nature, and every human law which did not afree with natural law was a perversion of law[9]. Aquinas philosophical postulations recognized the supremacy of the church over human dignitaries, since the church was the expounder of eternal law.
            Out of the ashes of the middle age emerged two great movements: The Reformation and the Renaissance. The former arose out of prostestantism, and the later from the emergence or strong and independent nations. Prostestant states, such as England rejected the supremacy of both the Roman Emperor and the Pope[10]. Protestant renounced the authority of the church to interpret the law of God. Calvinists posited that:
Christians …had covenanted with God to do what they could to remove evil, and that they broke that covenant if they endured a tyrannical prince.[11]

            The struggle of Huguenots, in the late sixteenth century against the excess of the French government rounded off the development of a right to resistance[12].
            In the Seventeenth and eighteenth centuries, the writings of certain philosophers, otherwise known as social contratarians, derived the concept of natural rights from natural law[13]. Thomas Hobbes (1588-1679) in his social contract theory opined that the life of man in the state of nature entered into a social contract with a sovereign ruler in order to escape from the state or nature. Through the social contract, individuals undertook to surrender their natural rights to the sovereign in return for peace and security.
            John Lock (1632-1704), another English philosopher, a compatriot of Hobbes, agreed that with Hobbes that indeed there was a social contract, but he differed from him radically in his interpretation of that contract. Unlike Hobbes, Locke asserted that individuals surrendered to the sovereign only the power to preserve order and enforce natural laws. According to Locke’s contract theory, individual’s retained their natural rights to life, liberty and property.
            The ideas of the social contratarians, especially that of Locke, greatly influenced the American Declaration of Independence, 1776, and the 1789 French Declaration of Rights of Man and the citizen. The second sentence of the American Declaration state[14].
We hold these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights governments are instituted among men deriving their just power from the consent of the governed; that whenever any form of government became destructive of these ends, it is the right of the people to alter or abolish it and to institute new government.

            The French Declaration, in Article 2, declares[15]:
The end of all political associations is the preservation of the natural and imprescriptible rights of man, and these rights are liberty, property, security and resistance of oppression.

            In the nineteenth century, positivists and their doctrine of legal positivism deprecated the concepts of natural rights. Law, they asserted was not derivable from nature, but from the declared volition of the sovereign in a state. Jeremy Bentham, for example, argued that the only proper use of the word “right” was only in relation to legal rights. Disparaging Article 2 of the French Declaration of 1789, he scathingly commented thus on natural rights:
Natural rights are simple nonsense: natural and imprescriptible rights, a rhetorical nonsense- nonsense upon stilts[16].

            One of the positive aftermaths of the atrocious period of World War II was the rebirth of natural rights in a new and far more comprehensive  guise – The guise of human rights. Thus Professor Maurice Cranston’s definition of human rights as a “twentieth century name for what has been traditionally known as natural rights or in a more exhilarating phrase the rights of man[17]
            In the final analysis, contemporary conception of human rights is the consequence of efforts by states especially through the United Nations Organization, to set standards for the treatment of individuals within their jurisdictions.
            The introduction of the fundamental human right in Nigerian constitution was a result of the fear of merginalisation by the minority ethnic groups from the majority ethnic groups. The birth of representative government in Nigeria was brought about by the Macpherson Constitution of 1951. This constitution provided for a central government based in Lagos, and three regional governments in the Eastern, Western and Northern parts of Nigeria. The introduction of representative government however, necessitated the emergence of political parties. The three major political parties then in existence were the National Council of Nigeria and Cameroons (NCNC), whose supporters, in the main, were the Ibos, the major ethnic group in the Eastern Region.
            In the west was the Action Group (AG), and the Northern People’s Congress (NPC), each of these parties drew their supporters largely from the yorubas and the Hausa Fulani were several ethnic minorities.
            During the London constitutional conference in 1957, under the chairmanship of the Secretary of State for the colonies, Right Honourable Alan Lennox – Boyd, the delegates representing some of the ethnic minorities vehemently canvassed for the creation of states out of them three regions to accommodated them, and thus protect them from being oppressed by the major ethnic groups.
            As a response to the demands of the minorities, the conference agreed, inter alia, that “A commission of Enquiring be appointed by the secretary of State to ascertain the fact about the fear of the minorities in any parts of Nigeria and propose means of allaying those fears, whether well or ill-founded[18]”. The commission of enquiry otherwise known as the minorities commission, consisted of six members with Sir Henry Wilink as chairman.
            In 1958, the minorities commission held its sittings at different part of Nigeria, especially in those parts where the agitations for state creation were focalized, such as in “Benin-city the centre of the proposal mid-west state in the Western Region, in Calabar city also the centre of the proposed or  state in Port Harcourt in the proposed River State (both in Eastern Nigeria) and in Makurdi in the centre of the proposed middle Belt state …”[19] in the Northern Region.
            The commission, at the end of its sittings did not recommend the creation of state, but instead recommended the incorporation of fundamental human rights into the independent constitution of Nigeria. The consequence of that recommendation was the entrenchment of fundamental rights into chapter III of  both the Independent constitution of Nigeria 1960, and later in the 1963 Republican constitution of Nigeria. Chapter IV of the 1970 and 1999 constitution of Nigeria also made provisions for fundamental rights.

Statement of the problem
            Dating back to man’s primitive state, men has over the centuries yawned for a peaceful co-existence with the other even as the strive to uphold their own personal and group believes above those of other individuals and groups at various stages honestly believing their to be superior as such should be upheld and enforced against any odds. This ultimate desire to peacefully co-exist has lead man to lend themselves to the option of blending his belief and expectations to accommodate those of others.
            Notwithstanding the conscious effort to harmoniously co-exist with others, Nigeria in her secular and highly hetrogenous nature still experience hitches in her human right practices against her customary law following the pace of civilization and the diversity in Nigerian customs. The human right practices in today’s Nigeria is far more better than what we had todays Nigeria is far by, man crave for more freedom in all areas of his life. Nigeria like most other developing states admire and aspire to have her human right practices modeled after some of the developed first world countries. This is the focal point of the statement of problems or this research.
            The agitation by human right activists and NGOs to enforce certain human rights as are obtainable in most western and other developed states without first considering our historical and cultural heritage is a problem that has come to bear. For instance, a child in African tradition generally can not be hear to substantial claims against the parents for entering his room without his or her permission. In same vein, agitation for legalizing same sex marriage is anchored mostly on human rights but this is an arbaration to a traditional African custom.
            Fundamental Human rights are enforceable while human rights are not wholly enforceable[20]. Now it is a problem to know why and to what extent are they enforceable.
            The hetrogenous and secular status or Nigeria is a problem to determine what actually is Nigerian customary law.
            In a nutshell, the statement of problem of this research is tripodal, namely:
1.      Our historical and traditional heritage against the dictate of Western Human Right system.
2.      The extent of the enforceability of human rights in Nigeria
3.      The hetrogenous and secular status of Nigeria.

1.2      Research Questions
This research will critically answer the following questions:
1.      What is a right?
2.      What is human right?
3.      What is fundamental between the two legal concepts above if any?
4.      What is customary law?
5.      What are the purported inherent conflict between the human right practices and Nigerian customary law?
6.      What is to be done to resolve the identified conflicts?
1.3      Research Questions
This research will critically answer the following questions.
1.      What is a right?
2.      What is human right?
3.      What is fundamental human right?
4.      What are the differences between the two legal concepts above? If any.
5.      What is customary law?
6.      What are the purported inherent conflict between the human right practices and Nigeria customary law?
7.      What is to be done to resolve the identified conflicts?
1.4 Objectives of the study
This topic is a very captivating one in the face of the contemporary quest and struggle for the globalization of democracy which pose to be the best platform for the enforcement of human right. The purpose of this research is chiefly to expose the inherent conflict in attempt to enforce human right against Nigeria customary laws.
The misconception of certain legal concepts[21] by majority of their users is also aimed at setting aright.
This work  willprofer solutions to the identified conflicts between human rights practices and Nigerian customary laws.

1.5 Research Methodology
This research work is a comprehensive one. It involves a collection of data and information from several sources. Research of this type is always accomplished through a special procedure of gathering stored information and the use of same.
Relying on the foregoing, in the course of this research more of secondary method of data collection will be adopted than primary method and information for this work  are sourced from the constitution, text books, journals, newspaper, law reports, statutes, internet services.
1.6   Purpose of the study
A number of researchers have been conducted on this or similar topics separately or jointly, yet not any has covered to my test the recent areas as I feel. The purposes of this research include:
1.      to accord the required accentuation on the matters arising following the development and imprisonment of human right in Nigeria in the face of our customs and tradition.
2.      To illustrate the effect of Nigerian customs and tradition on the development and enforcement of human rights
3.      To dear the misconception and correct the misuse of certain legal terms and concepts.

1.7   The scope of the study
Human rights as a concept is a global concept. Nigerian customary law is a home based phase of law. Our scope in this research is therefore the human right practices in Nigeria against the customary laws in Nigeria. Sequel to the above, this work will focus on Nigeria mainly through references would be made to western human rights practices for a proper elucidation of points in this work.
1.8   Limitation of the study
It is normal to envisage militating factors in the course of any research. Students never escape those factors in the course of their academic work. The following  militating factors were faced by the researcher in the course of this research:
1.      Financial and fund problem
2.      Time factor
3.      ASUU strike
4.      Epileptic  power supply
5.      Scarcity of materials


[1]C. A. Oputa, Human Rights in the Political and Legal Culture of Nigeria, Second Idigbe memorial lecture [Lagos: Nigerian Law publications Ltd, 1988)p.39
[2]The Webster’s Dictionary of the English language: International Edition (New York: Lexicon International- Publishers Guild Group, 1997) p. 796
[3]R. J. Vincent op. cit. p.14
[4]T. O. Smith in the Guardian, Tuesday, August 5, 2003, p.80
[5]R. J. Vincent, Human Right and Internation Relations (Cmabridge: The Press Sydicate of the University of Cambridge, UK, 1999) p. 21
[6] See Text for human rights teaching in Nigeria, Obilade A. O. [ed] {A work of the constitutional rights projects, 1999]pp. 1-2
[7]Rej Vincent, op. cit. p.21
[8]Ibid
[9]Ibid, p.56
[10]R. J. Vincent, op. cit. p. 24
[11]ibid
[12]Gasiokwu, M. O. U. op. cit pp. 27-31
[13]See O.N. Ogbu, Human Rights law and practice in Nigeria: An Introduction [Enugu: CIDJAP Press, 1999], p.9
[14]O. N. Ogbu, op. cit. p.7
[15]J. Waldron [ed.] Nonsense upon stilts [London: Methusen, 1987] p.53
[16]M. Craston, What  are human rights? [New York. Taplings Publishers 1973]p.1
[17]UdoUdoma, History and the law of the constitution of Nigeria [Lagos: Malthose Press Ltd, 1994] p. 206
[18]Ibid. see generally D.I.O. Ewelikwa, Historical Introduction to Nigerian Constitution {Awka:Mekslink Publishers Ltd, 1993]
[19] Fundamental Human right are by virtue of S. 46 of the constitution  enforceable while Human right as proposed in chapter II are by S. 6 [6] [1] unenforceable
[20]Like Human rights ], Fundamental Right and Customary law
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