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
[21]