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: udojoel77@yahoo.ca. 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”

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(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:

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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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