Critical Appraisal of the Constitutional Contexts on Human Rights and Governance Perspectives in Nigeria

 

By Gideon N. Gasu Ph.D., Senior Lecturer, Faculty of Law, Ajayi Crowther University, P.M.B. 1066, Oyo, Oyo State, Nigeria. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

In contemporary political discourse, the language of Human Rights has been elevated to an everyday word. It has from time immemorial been universally recognized and accepted concept that, individuals possess certain definite political, civil, economic, cultural and social rights, which governments should enforce and protect, as a matter of duty and responsibility. The Constitution of a nation can only declare and preserve these existing rights and not create them. The paper examined the concept of constitutionalism vis-a-vis human rights and good governance in Nigeria. Equally, it appraised the general human rights situation in Nigeria and the effectiveness of the Judiciary in the enforcement of human rights and relevant constraints. The study revealed that Human Rights if not enforced by courts are as good as nothing. This paper also underscores the conceptual and the theoretical conundrum as well as the criticisms of the non-justiciability of the provisions of Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended). In conclusion the study proffered some better approaches for effective enforcement of Human Rights by Nigerian Courts.

 

Introduction

It is a well-known fact that human rights violations still occur across the globe with disturbing frequency, regularity and intensity.[1]  In Nigeria, the picture is not less disturbing, which was why Ajomo was constrained to lament that “at one time or the other in our national history, we had observed the tenets of human rights more on paper than in practice”.[2] It is also true that, many people have suffered or continued to suffer human rights infractions. There are scores of unresolved cases, especially murder and rape. These cases affect and cause pain to humanity, especially the immediate family members.  It is more chilling when such cases go unresolved and the perpetrators remain unpunished and are walking on the streets free.  Nigeria ranks highest in the world in unresolved cases of murder.[3]Regrettably, they are unable to seek redress either because they are indigent or ignorant.  The government and its agents committed numerous arbitrary and unlawful killings.[4] The Police, army and other security services committed extrajudicial killings and used lethal and excessive force to apprehend criminals and suspects as well as disperse protesters[5]. The Fulani Herdsmen has emerged as a new killer squad, killing farmers indiscriminately with the Federal Government remaining silent on the atrocities being committed in Benue State and other parts of the north. The operatives were not held accountable for such atrocities committed and for the use of excessive force. Security forces were allegedly responsible for extrajudicial killings often arbitrarily executing many at a time. Although the Constitution makes provision requiring the National Assembly to make law for rendering of financial assistance to any indigent citizen, where his right has been infringed to enable him to engage the services of a lawyer to prosecute his claim, this provision has remained dead letters.  The National, Assembly has not made any meaningful provision in this regard as the Legal Aid Programme in existence is not only weak but ineffective. Consequently, public interest litigations ought to be encouraged especially because a major deficiency in the development of human rights is one of enforcement.

The protection of human rights in any national Constitution is a recognition and part fulfilment of the international obligations of the State to false joint and separate action in cooperation with the United Nations for the achievement of universal respect for, and observance of Human Rights and fundamental freedoms.  While the need for guarantee and protection of human rights in national constitutions cannot be doubted, it is important to do a critical content analysis of these constitutional provisions with a view to seeing their real value against the concept of universality, interrelatedness and interdependence of Human Rights.[6]

The justiciability of Human Rights in Nigeria has been an issue as the criminal justice system constantly remains an aspiration to be attained. This study probes into the role of the judiciary in the enforcement of human rights in Nigeria. The Courts or judges, as the interpreters of the law and arbiters of disputes, have a unique role to play in the protection of human rights. The Court is therefore, of paramount importance to democratisation of any society and protection of Human Rights.

 

Historical Antecedents of Human Rights

The Universal Declaration of Human Rights adopted in 1948 by the United Nations General Assembly marked the beginning of the transformation of Human Rights from moral imperatives into Rights that are legally recognized, internationally and nationally. One of the prime movers behind the Declaration, Eleanor Roosevelt, described it as “a statement of principles that provided a common standard of achievement for all people and for all nations”.[7] The Declaration gave a better approach to the world on the foundation for good governance, democracy, Human Rights and the rule of law.

This declaration basically proclaimed two categories of Rights. The first consists of civil and political rights.  These include the Right to life, Right of liberty, freedom of expression and the Right to fair hearing.  These are usually referred to as the first generation of Rights. The second generation of Rights composes of economic Rights, such as the Right to education, the Right to health and the Right to work.  They are social, cultural and economic in content and orientation.  These two categories of Rights are focused on individuals.  Two separate covenants that followed the Declaration gave impetus to the Declaration.  They are the International Covenant on Civil and Political Rights[8] and the International Covenant on Economic, Social and Cultural Rights[9].

According to Mary Robinson, the former UN High Commissioner for Human Rights:

These treaties and the UN Declaration, known collectively as the international Bill of Rights, is the cornerstone of the remarkable body of international and regional instruments, well over seventy in numbers which form the basis of International Human Rights Law, and regulate the fundamental rights and freedoms of all individuals.

 

Human Rights should not by virtue of the conceptualization of their indivisibility, be graduated or ranked in the order of importance.  The Nigerian Bill of Rights is contained in Chapter IV of the 1999 Constitution and the Human Rights which are guaranteed by constitutional protection are called fundamental rights.  In the Nigerian case of Ransome-Kutiv. AG of the Federation, Eso J.S.C. had this to say of the nature of fundamental rights:

 … it is a right which stands above the law of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence.[10]

These rights are fundamental because they have been guaranteed by the fundamental law of the land, that is, the Constitution.  Human rights are of wider concept and applicable both at international and domestic levels. Human Rights include much more than the domestically guaranteed rights.  To some authors like Okpara, however, fundamental rights are limited in scope and are confined within the realm of domestic law.[11] Perrott too, argued that:

Such rights are properly called fundamental when they are experiences in, or guaranteed by laws which are basic or pre-eminent laws of the legal system in question e.g. rights specified in a written constitution, or in judgment of a superior court interpreting the constitution, or in enactment of a legislature designed to render the constitution more specific in a certain area.[12]

Fundamental rights are generally regarded as a set of legal protections in the context of a legal system where in, such system is itself said to be based upon this set of basic, fundamental, or inalienable “Right”. Such rights thus belong without presumption or cost of privilege, to all human beings under such jurisdictions. It has been argued that where human rights are entrenched in a written constitution, they are Fundamental Rights. This position received judicial assents in Ransome Kuti and Ors .v. A.G. Federation.[13], in which Justice Kayode Eso had this to say of the nature of fundamental rights: “…It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence”[14]

In addition, fundamental rights, are those species of human rights which have been recognized and incorporated into the Constitution of many nations. However, in view of this constitutional incorporation, Nigerian Jurists have drawn a line between “human rights” and “Fundamental rights”[15]. The President of the Court of Appeal in the person of Justice Nasir PCA, made a distinction between Human rights and Fundamental rights due to the development of Constitutional Law in the field”[16], to the effect that, human rights were derived from and out of the wider concept of natural rights and that, they are rights which every civilized society must accept as belonging to each person as human being.  It may be recalled that human rights were derived from and out of the wider concept of natural rights, which every civilized society must accept as belonging to each person as a human being.

Justice Kayode Eso further posits on this issue that:

Fundamental rights “are not just mere rights. They are fundamental. They belong to the citizens. The rights have always existed even before orderliness prescribed rules for the manner they are to be sought”.[17]

 

It is important to state again that not all the rights belong to citizens, some are for the benefits of “any person” or “person” or “every person”. Adio J.S.C is of the view that a fundamental right is a right guaranteed in the Nigerian Constitution and that it is a right which every person is entitled to when he is not subject to the disabilities prescribed in the Constitution, “to enjoy by virtue of being a human being.  They are so basic and fundamental that they are entrenched in a particular chapter of the Constitution.[18]

Justice Chike Idigbe stated by posing the question “what thus is a fundamental right? He then answered that:

As we all know, a legal right is that which the law protects and which can be enforced in courts of law; in other words, it is protected and enforced by the ordinary law of the land i.e the law created by the political sovereign which is parliament.  But there exist other rights which stand above the ordinary laws of the land and which are antecedent to the political society itself. These rights are indeed, primary conditions to any civilized existence.  In societies governed under a Constitution these rights are not only protected but are also guaranteed by that Constitution.  These rights are termed fundamental rights because not only, as the very term “fundamental” suggests, they are the primary conditions to civilized existence but unlike the ordinary laws of the land which can be freely altered or changed by the legislature (i.e in the ordinary process of legislation), they cannot easily be altered by the parliament (i.e the legislature).[19]

Obiaraeri on his part, argues that “these fundamental rights” are fundamental because they have been guaranteed by the fundamental law of the land, that is to say the Constitution. Human rights are of much wider concept and apply at the international level. Human rights include much more than the domestically guaranteed rights”[20]

On his part, Perrott argued that:

Such rights are properly called fundamental when they are expressed in or guaranteed by, laws which are basic or pre-eminent laws of the legal system in question, i.e. rights 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 a certain area.[21]

They are justifiable and enforceable in the manner set and guaranteed by the law.

The Human Rights activist, Femi Falana opines that in the Nigerian context, the terms “Human rights” and “Fundamental Human Rights are always used interchangeably” On the other hand, Ogbu Contends that: “Human rights remains so whether they occur on international plane or within Municipal confines and whether they are called “human rights” or “fundamental rights” or “fundamental human rights”[22]. My position in this paper is that fundamental rights are regarded as part of human rights and both terms will, in certain circumstances be used interchangeably.

Constitutionalism & Human Rights Enforcement

In order to appropriately appreciate the issues associated with constitutionalism, human rights and democracy in Nigeria, it is important to consider, the challenges facing constitutionalism, human rights and justice.  Military rulers in Nigeria, gravely affected constitutionalism, human rights and justice by destroying democratic structures and promote impunity in governance.[23] They also suspend the constitutional provisions on human rights. The dictators use decrees and edicts to oust the jurisdiction of courts over certain subjects, particularly human rights. Nigeria has been practicing democracy since 1999, which can be regarded as a positive step. Despite this fact, human rights are still being violated.  There are a number of obstacles in judicial enforcement of human rights like the issue of locus standi[24] and lack of facilities for justice administration. Notwithstanding that technology has turned the world into a global village, it is common knowledge that most courts in Nigeria lack computers and recording machines.  Court proceedings are therefore recorded manually.  Disobedience to courts orders by the executive arm of government is still a norm in the country.

The concept of constitutionalism has been a fluid concept, susceptible to several definitions with so many controversies.  Several writers have approached the definition of constitutionalism in different ways. While some schools of thought hold that the concept of constitutionalism started in ancient Athens, others observed that the philosophy of constitutionalism is traceable to the natural rights doctrines of the Greek stoics, the medieval Church and the Magna Carta.[25] In his descriptive definition of constitutionalism, Adewoye says that it denotes a set of principles in the governance of the polity.  According to him, constitutionalism entails the following attributes: effective restraints upon the powers of those who govern, guarantee of the individual fundamental rights, the existence of an independent judiciary to enforce these rights, genuine periodic elections by universal suffrage, and the enthronement of the rule of law as reflected in the absence of arbitrariness and equality of all before the law.[26]

Henkin defines constitutionalism to include the following elements: government according to the Constitution; separation of powers, sovereignty of the people and democratic government, constitutional review, independent judiciary, limited government subject to a bail of individual rights, control of the police; civilian control of the military, and no absolute state power or very limited and strictly circumscribed State power to suspend the operation of some parts of, or the entire Constitution.[27] According to Rosenfeld, “in the broadest terms, modern constitutionalism requires, improving limits on the powers of government, adherence to the rule of law and the protection of fundamental rights. Rosenfeld was quick in conceding that not all Constitutions are consistent with the demands of constitutionalism and constitutionalism does not necessarily depend on the existence of a written Constitution.[28]

De Smith conceptualized the idea of constitutionalism that it:

involves proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content – constitutionalism becomes a living reality to the extent that these rules curb arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass. There is significant room for the enjoyment of individual liberty.[29]

 

Thus, he conceives constitutionalism as a “Giving reality” rather than an abstraction.  Ihonvbere argues that “in liberal political discourse, constitutionalism revolves, around the twin issues of individual; rights and limited powers of government.  These encompass the rule of law, separation of powers, periodic elections, independence of the judiciary and the right to private property among other critical issues[30].  But more importantly he observes that his understanding of the concept of constitutionalism “as a process for developing, presenting, adopting and utilizing political communities and constituencies, but also defines the rights, duties and obligations of citizens in any society”[31]

In his contribution, Nwabueze contends that:

All laws in Nigeria inconsistent with the Constitution, including laws enacted for the purpose of implementing treaties, are void to the extent of their inconsistency with the Constitution. Their voidness in municipal law does not, as earlier explained, absolve the state from its treaty obligation in International Law, as a State cannot plead municipal law in order to escape from its international obligations, but that in no way affects the validity of the legislation in domestic law.[32]

Constitutionalism, therefore, means much more than having a written or unwritten Constitution. Repressive and authoritarian regimes, such as those of Idi Amin Dada of Uganda, Sani Abacha of Nigeria, Marcias Nguema of Equatorial Guinea, Mobutu SeseSeko of Zaire, Paul Biya of Cameroon, Haile Mengistu of Ethiopia, Jean Bendel Bobasa of Central African Republic, Robert Mugabe of Zimbabwe etc. It remarkable to say that all these countries, including Saudi Arabia, Iraq, Libya and a lot more have Constitutions.  But it is contentious to claim that constitutionalism prevailed in those regimes. Constitutionalism should be seen as a concept espousing legal, constitutional and democratic ideals only.  It must be functional in the sense that its essence, process and practice must safeguard human rights, human worth, dignity, rule of law and good governance.  Constitutionalism ensures that the exercise of governmental power and authority is limited and circumscribed to prevent arbitrariness, tyranny, parochialism, ethnicism, tribalism and inequality. It provides institutional frameworks for participatory and accountable government and conflict resolution.[33] The core features, constituents or institutional structures of constitutionalism include Constitution (written & unwritten), human rights protection, separation of powers, participatory democracy, rule of law and judicial review. Constitutionalism in its nature as a dynamic process ensures a balance between its constituents and their values.

Nigeria, by its Constitution in Chapter IV, makes provision for fundamental rights, “which it expressly makes justiciable. Chapter II makes provision for “Fundamental objective and derivative Principles of state policy”, which should ordinarily constitute the fulcrum of economic, social and cultural rights and expressly makes them non-justiciable. Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 embodies civil and political rights (which are primarily libertarian in character) and, in the generational paradigm of human rights discourse, form the bedrock of first-generation rights.  These include the right to life[34], dignity,[35] personal liberty,[36] fair hearing,[37] private and family life,[38] freedom of thought, conscience and religion,[39] freedom of expression and the press,[40] peaceful assembly and association,[41] freedom of movement,[42] freedom from discrimination,[43] and the right to acquire and own immovable property anywhere in Nigeria.[44]

In clear terms, Chapter II of the Nigerian Constitution makes provision for “Fundamental Objectives and Directive principles of State Policy”. Section 14(2)(a) proclaims that sovereignty belongs to the people of Nigeria from whom, government, through the constitution derives all its powers and authority. Sections 16 and 17 dealing with economic and social objectives oblige the state to direct its policy towards ensuring that “the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a  group.” All citizens have the opportunity for securing adequate means of livelihood, as well as adequate opportunity to secure employment; “conditions of work that are just and humane”; “suitable employment, suitable and adequate shelter, suitable and adequate food, reasonable national minimum wage, old age case and pensions, and unemployment, sick benefits and welfare of the disabled.

Regrettably, although Section 13 imposes a “duty and responsibility” on all organs of government, and…all majorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply” the provisions of Chapter IV of the Constitution, S 6(6)(C), as earlier noted, makes a caricature of this obligation, as it provides that judicial powers” shall not… extend to any issue or question as to whether any act or omission by any authority or person … is in conformity with the Fundamental Objectives and Derivative Principles of State Policy set out in Chapter II of this Constitution.

According to Chaude Ake;

…humans have to be much more than the political correlate of commodity, fetishism which is what they are in the western (liberal) tradition.  In that tradition, the rights are not only abstract, they are ascribed to abstract persons.  The rights are ascribed to the human beings from who all specific determinations have been abstracted…[45]

Accordingly, Ake argues that the first generation of freedom of speech and freedom of the press do not mean much for a largely illiterate community absorbed in eking a living out of an avid mortar of subsistence.  The rights are to be meaningful to a people struggling to stay afloat under very adverse economic and political conditions which they are being subjected.

Apart from the foregoing attributes of constitutionalism as expressed by different writers, our own proposition on the subject includes a workable and acceptable Constitution under which people are allowed to vote for dependable leaders of their choice. Such leaders are expected to have respect for human rights and fundamental freedom.

 

 

 

Human Rights Enforcement by Nigerian Courts

Human Rights, if not enforced are as good as nothing. The judiciary breathes life into human rights provisions by enforcing them in the Courts.  Thus, the judiciary remains the most important organ in the enforcement of Human Rights. This is because the constitution confers on the judiciary the power of interpretation, enforcement of laws and prescription of sanctions for the violation of laws. There are therefore legal mechanisms for the enforcement of human rights in the national courts. This work, therefore, sets out primarily to investigate the constitutional role of the judiciary in the enforcements of Human Rights in Nigerian Courts.

In Nigeria, and from the beginning, to post-independence Constitutions, due attention has always been given to issues concerning Human Rights.  In the post-independence constitutions (1960 Constitution, 1963 Republican Constitution, and the 1979 Constitution), provisions were made for Human Rights protection.  Further, in the 1999 Constitution (as amended), two chapters,[46] spanning 26 (twenty-six) sections are devoted to human rights subject.[47] The need for constitutional provisions for human rights cannot be over emphasized because, it is the state, with its various institutions that are responsible for guaranteeing the implementation and enforcement of these rights in respect of its citizens and all those coming under its jurisdiction.[48]

The Constitution is the supreme law and epicenter of citizens’ Rights. The Nigerian Constitution[49] grandiloquently and impressively gives guarantee that all persons in Nigeria would enjoy Human Rights or Constitutional Rights.[50] The Constitution expressly states that; each citizen shall enjoy the Rights on equal basis without any discrimination. The Court takes full responsibility therefore, to see the implementation of different aspects of Human Rights in Nigeria.

In order to actualize the enforcement of Human Rights in Nigeria, the Chief Justice of Nigeria, acting under section 42(3) of the 1979 Constitution enacted the Fundamental  Rights Enforcement Procedure Rules in 1979, which makes provisions for the procedural steps to be taken when an individual’s fundamental right has been, is being or likely to be infringed. The Nigerian legal system which is adversarial in nature, supports the fact that contending parties bring their own evidence and present their arguments while, the judge sits and listens attentively like the impartial umpire that he, at the end of the exercise decides the case on the basis of the evidence presented and the argument proffered by both parties.

It has been observed by Oputa JSC (Rtd) that, in search for justice and redress in Human Rights cases, the ordinary citizen of Nigeria is caught in a mesh of a rather vicious circle thus:

 

The court cannot adjudicate upon and effectuate the Rights of a citizen unless there is a suit complaining about the breach or threatened breach of those Rights filed in court. People, especially the illiterate masses of one country do not even know what their Rights are.  They may therefore not even know when those Rights have been or are being infringed. Even, if the ordinary citizen knows that their Rights are being infringed, he or she may be too afraid to sue the powers that be.  It does require considerable courage to drag the Chief Executive or functionaries of the government to court and very few of our people have the courage. Where there is an awareness of the right and knowledge or realization of its breach or threatened breach and the courage to prosecute the claim, the prospective litigant may be too poor to embark on the luxury of a costly and prolonged litigation up to the Supreme Court. When the citizen is actually in court, justice may even there elude him if the Court is biased or does not give him a fair hearing if the twin pillars of Natural Justice, impartiality, and fairness are absent and that is the dilemma facing many citizens.[51]

The problem in Nigerian citizens presenting before the court for the enforcement of their Rights is the issue of time and cost, as exemplified by the Supreme Court’s case of Garuba. V. University of Maiduguri.[52]  The success of this case was due to the benevolence of the Chief Gani Fawehinmi Chambers. In most cases many Nigerians sleep on their rights. However, the Judicial system is perhaps, the most popular mechanism for human rights protection.  The Judicial system produces victors and vanquished; and may not provide the healing effect where massive and grave Human Rights violations have polarized the society.  The system is usually expensive, protected and may, in some cases, not produce justice as a result of some facts such as, bias of the evidence and technicality of the law.[53]

Many attempts have been made in Nigeria to ensure justiciability of Human Rights.  President Olusegun Obasanjo in less than ten days, after being sworn in as a democratically elected President of Nigeria inaugurated a Judicial Commission known as the Human Rights Violation Investigation Panel on 7th June 1999, headed by a renowned retired Justice of the Supreme Court, Justice Chukwudifu Oputa. The Panel later became popularly known as the Oputa Panel.  The Commission, which was received with great enthusiasm, began hearing cases of Human Rights abuses in Nigeria from October 23, 2000. 

The commission, in furtherance of human rights obligation of Nigeria, was constitutionally empowered under the Tribunals of enquiry Act, 1966, to give effect to rights and freedom, enshrined in the charter; and this gives impetus to the enforcement of fundamental human rights in Nigeria. The Oputa Panel came after Nigeria went through nearly two decades of military dictatorship under the regimes of Ibrahim Babangida and Sani Abacha.  During their regimes, there were rampant tortures and wanton killings.[54]  On its reconciliation mandate, the Commission reconciled the warring communities of Maroko Village in Lagos State and the war torn Ife and Modakeke communities in the then Oyo State.[55]  It equally facilitated a Peace Accord among the warring factions and groups in Ogoni land.

The enforcement of human rights in Nigeria of recent, received a boost with the introduction of the Fundamental Rights (Enforcement Procedure) Rules, 2009.  The enforcement of Human Rights is guided by the Fundamental Rights (Enforcement Procedure) Rules, (FREP), 2009, made pursuant to section 46(3) of the 1999 Constitution of the Federal Republic of Nigeria.  The First Fundamental Rights Enforcement Procedure came up in 1979.  Hitherto, the principal means for enforcing Human Rights were the prerogative writs of Habeas Corpus, Certiorari, Mandamus and Prohibition.  These were often found cumbersome, somewhat technical and lacking in flexibility necessary for the proactive pursuit of Human Rights claims.  After operating the 1979 FREP Rules for twenty years, their inadequacies prompted the introduction of the 2009 Rules.  These rules are aimed at advancing democracy by deepening and prioritizing human rights enforcement.  These rules were made to energize the democratic system of government.  The recent rules simplified procedure and technicalities as much as possible and broadened a liberal approach to locus.

 

 

Democracy, Human Rights and Good Governance

The relationship between human rights and democracy has been duly acknowledged by the Vienna Declaration which provides:

Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.  Democracy is based on the freely expressed will of the people to determine their own political economic, social and cultural systems and their full participation in all aspects of their lives.  In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without condition attached.  The international community should support the strengthening and promoting of democracy, development and aspect for human rights and fundamental freedom in the entire world.[56]

It cannot be doubted that human rights are best protected and enforced in a political system that is democratic. Perhaps, it may even be contradictory to suggest that under an autocratic and despotic regime, human rights are enforced.  It is possible for the legal regime to guarantee the rights in its formal structures but denied in practice, consequently, democracy and human rights share a linkage.  They are interdependent and interconnected in the sense that they support each other.[57]

Gutto argues that, “the link, relationship and interdependence between democracy and human rights, lie first, on the pursuit of human rights, as an essential characteristic of modern democratic society. Human rights have developed into an essential indicator of democracy.[58] He comments further that:

Another relationship lies in the dependence of democracy on human rights for the purpose of enforcement.  Principles of democracy are normally expressed in more general terms than the norms and standards of human rights, for example, the principle of representative democracy.[59]

The concept, the guarantee and the enforcement of human rights are so essential to democracy that no system can genuinely be described as democratic without them. The mutual and symbiotic relationship between democracy and human rights is almost taken for granted.  Both are ingredients of Constitutionalism and they ensure the development of a culture of constitutionalism.

One of the conventions that have given a long way to strengthen democratic ties between States is the African Union Convention on Preventing and Combating Corruption (AUCPCC)[60]. It represents a regional consensus on what African States should do in the access of prevention, criminalization, International Corporation and assets recovery.[61] That Convention in this vein states in Article 3(1) that States are enjoined to abide by the principle of respect for democratic principles and institutions, public participation, the rule of law and good governance. On the 30th of January 2007, the African Union adopted in Addis Ababa the African Charter on Democracy, Election and Governance.[62] The objectives of the Charter are to promote adherence, by each state party to the universal values and principles of democracy and respect for human rights.[63] They also include nurturing, supporting and consolidating good governance premised on political pluralism and tolerance. The Convention and Charter indicate and demonstrate good governance and its link with democratic principles and human rights. Regrettably, the provisions of the Convention and Charter are yet to be implemented by members of the African Union.

The United Nations General Assembly (UNGA) at its Millennium Summit in September 2000, laid down its objective for the 21st century which include the promotion of democracy and good governance. Abdellatif opined that:

Good governance is among other things participatory, transparent and accountable, effective and equitable, and it promotes the rule of law, it ensures that political, social and economic priorities are based on broad consensus in society and that the voices of the poorest and the most vulnerable are heard in decision making over the allocation of development resources.[64]

As stated above, it is clear that good governance can only be realised in democracy and democracy is a feature of constitutionalism. Good governance has also been linked to development of an enabling environment that is conducive to the enforcement of human rights.

 

Non-Justiciability of the Provisions of Chapter II of the 1999 Constitution

The rights as found in Chapter II of the 1999 Constitution of Federal Republic of Nigeria are second and third generation rights. These rights do not find expression under the Constitution as justiciable rights, instead they form the basis of Chapter II titled ‘Fundamental Objectives and Directive Principles of State Policy’. These include political, economic, social, cultural, educational and foreign policy objectives and Directive Principles. The very first Section of that Chapter (Section 13 in the 1999 Constitution) is to the effect that:

It shall be the duty and responsibility of all organs of the Government: and of all authorities and persons exercising Legislative, Executive or Judicial Powers to conform to, observe and apply the provision of the Chapter of the Constitution.[65]

On the other hand, Section 6(6) (c) provides that the Judicial Powers vested in the Courts enumerated in the Constitution: “shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of the State policy set out in Chapter II of this Constitution.”  

The rights under Chapter II which are political, economic, social, cultural, educational, and environmental rights embrace the right to work, right to just conditions of work, right to fair remuneration, right to an adequate standard of living, right to organize, form and join trade unions, right to collective bargaining,  right to equal pay for equal work, right to security, right to property, right to education, and right to participate in cultural life and enjoy the benefit of scientific progress. Section 16 of that Chapter reveals an interesting formulation. The provision is as follows:

1. The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution:

a.  harness the resources of the Nation and promote National Prosperity and an efficient, dynamic and self-reliant economy;

b.  control the National Economy in such a manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of Social Justice and equality of status and opportunity.

2) The State shall direct its policy towards ensuring:

a.  The provisions of a planned and balanced economic development.

b.  That the material resources of the Nation are harnessed and distributed as the best as possible to serve the common good;

c.  That the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of groups; and

d.  That suitable and adequate food, reasonable National minimum living wage, old age care and pensions, and unemployment, sick benefit and welfare of the disabled are provided for all citizens.

This subject of this economic policy affects the generality of the Nigerian public. What a lofty stating of the law? If it had been enforced what value and advancement, we could have enjoyed as the citizenry? A closer look at these provisions, in comparison with practical experience, undoubtedly indicates that this policy is observed more in breach than in compliance. Government Economic Policy has continued to benefit the same group of persons who revolve from one office to another as though they enjoy monopoly of knowledge, policy is embarked upon with little or no regard for the positions of the masses. The current planned deregulation of the downstream sector of oil industry despite, massive protect, leaves an open wound regarding the issue of resources. If the policy is in the interest of the masses and if it is the same masses saying no to that policy, what is the insistence of the Government

Unemployment among the youth continues to grow at an astronomical rate. The policy talks about pension rights of citizens, but reports are rife with stories of senior citizens collapsing and dying on queues while awaiting the payment of their pensions.[66] Section 14 of the Constitution talks of Democracy and Social Justice, that sovereignty belongs to the people from whom Government through this Constitution derives its powers and authority that the Government shall take Security and Welfare of its people as a priority, and that Government should recognize the diversity of the people in the conduct of its Affairs.[67]

Section 17 talks of freedom of equality, and justice, employment, health, equal pay for equal work, and securing adequate means of livelihood. The question is how many unemployed youths are rooming on Nigeria streets today?  How many people have died because they cannot afford hospital bills, and how many people have died in Nigeria because of diseases which ordinarily were preventable were they not living in abject poverty? Section 18 of the Constitution talks of education opportunities for all, but how many of our children can afford to go to school today with increase in school fees championed by Federal Schools?[68]

The essence of relief that these provisions are thought to have provided is obliterated by the  Constitution  itself, which unequivocally provided in Section 6 (6) (C) that the Judicial Power vested in the Courts: “Shall not except as otherwise provided by this  Constitution, extend to any issue or question as to whether any act omission by any authority or person as whether any law or any judicial decision is in conformity with the Fundamental objectives and directive principles of State policy set out in Chapter II of this Constitution.”

 

 

 These provisions of Chapter II are said to be non-justiciable as they constitute mere ideals towards which the States are expected to aim. The regrettable import of these provisions can be discerned from the lucid lamentation of a renowned Nigerian judge Akinola Aguda that;

 

I feel much concerned to think that the directive principles are to be regarded as mere ideals, the arrival of which the citizens can only pray and hope for, but in respect of which he cannot ask for assistance whatsoever from the courts. If this were so then, wherein lies the expectation and the hope of a bright future for the teeming millions of our people who manage merely to survive at near starvation levels.[69]

This study observes that a Democratic Government, as an elected Government, ought to function within the confines of the Law given by the electorate, that is the Constitution. To ensure compliance therefore, the electorate should have the power and be in a position to question acts which are not in compliance with the goals set out by the Constitution. Until the Constitution is amended to make the provisions of Chapter II justiciable, the hope of getting a Nigerian Society free from Human Rights abuses will be a mirage.

 

Conclusion

As can be garnered from the entire gamut of this paper, one can safely conclude that genuine democracy, good governance and enforcement of fundamental rights are constitutional signposts which are our common heritage and proper foundation for true individual and political liberty. The enforcement of fundamental rights has become a central issue in all jurisdictions of the world. Despite the enshrinement of human rights provisions in the Nigerian Constitution and the establishment of the Commission on Human Rights in Nigeria, human rights abuses are still rampant.

There is still a high need to increase the accessibility of our Courts to extend the jurisdiction of courts on fundamental human rights cases to Magistrate Courts which appear to be nearer to the grassroots. It is a well-known fact that Magistrate Courts, though lower than the High Courts and Federal High Courts in the judicial hierarchy, exists in virtually every local government in Nigeria and are presided over by legal practitioners also appear in these courts for the prosecution of other cases. It is difficult to find justification for denying this court’s jurisdiction to hear fundamental rights cases.

Finally, until when Nigeria shall be able to enforce the non-justiciable provisions of Chapter II of the 1999 Constitution of the Federal Republic of Nigeria, we will still be around the periphery of the subject matter as a nation. Thus, the enforcement of fundamental rights as identified in this study must be removed so that there could be a Nigerian society that has at its ebb human rights abuses. The provisions of Chapter II of the Constitution must be made justiciable if human rights are meant to be attained in Nigeria.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Articles

 

Abdelatif Ani “Good Governance and its Relationship to Democracy and Economic Development”. Being a paper presented at Global Forum III Workshop on Fighting Corruption and Safeguarding Integrity Second 20th - 31st May 2003

Ajomo  M.A.,  “Fundamental Human Rights under the Nigerian Constitution”, in Perspectives on Human Rights, (1992), A.U. Kalu& Y. Osinbajo eds; Lagos : Federal Ministry of Justice Law Review Series vol. 12.

Gutto: “Current Concepts, Core Principles Dimensions, Processes and Institutions of Democracy and Interrelationship Between Democracy and Human Rights” Being a paper presented at a Seminar organized by the Office of the High Commissioner for Human Rights, Geneva, 25-26, November, 2002 , Para 5.

Henkin L, “Elements of Constitutionalism“(1994) Occasional Paper Series, Centre for Study of Human Rights.

Idigbe C. “Fundamental Rights Provisions in the Constitution” in All Nigeria Judges Conference Papers 8th-16th March 1982 (1983)

Ihonvbere J, “Politics of Constitutional  Reforms and Democratization of Africa” (2000) International Journal of Comparative Sociology.

Jean Bernard Marie, “National Systems for the Protection of Human Rights” In Human Rights International Protection Monitoring, Enforcement (2003), Jamiz Symonides ed. Aldershot Hants: Ashgate, UNESCO Publishing..

Ogboni O.N.  “Truth and Reconciliation Commission a Human Rights Protection Mechanism: The Tragic Near Demise of Nigerian’s Oputa Panel in E. Chianu (ed.) Legal Principles and Policies: Essays in Honour of Justice Idigbe, (2006), District Universal Limited, Lagos.

Perrott, A.L. “The Logic of Fundamental Rights” in Bridge J.W., Lasok D., Prerrott D.L. and  Plender R.O. Fundamental Rights (1973), London,  Sweet& Maxwell.

Pollis A and Schwab P. (eds) “Introduction in Human Rights: Cultural and Ideological Perspective” (1980), New York: Praeger

Robinson M. “Protecting Human Rights: The Role and Responsibilities of the Independent Bar” being a Keynote address delivered at the inaugural World Conference of Barristers and Advocates, Edinburgh 28 June 2002

Rosenfeld: “Constitutionalism, Identity, Difference and Legitimacy: The Theoretical Perspective”(1994), Duke University Press, Durham.

Uchenna Emelonye: “Rule of Law and Human Rights Development” (2009)The Punch Monday, November 1

 

Books

 

De Smith S.A. The New Commonwealth and its Constitutions (1964), Stevens, London.

Falana .F. Fundamental Right Enforcement , (2004), Lagos, Legal Text Publishing.

 

IhonvbereJ,(ed), The Political Economy of Crisis and Underdevelopment in Africa: Selected Works of Claude Ake (1989), Jad Publishers Ltd., Lagos Okpara  O. Human Rights Law & Practice in Nigeria Vol. 1 (2005), Enugu, Chenglo Ltd

Nwabueze B. “Constitutional Democracy in Africa”, Volume 2 (2003) Spectrum, Ibadan.

Obiaraeri N.O. Human Rights in Nigeria – Millennium Perspective, (2001) Lagos, Perfect Concepts.

Oputa C.A..Human Rights in the Political and Legal Culture of Nigeria (1985), Idigbe Memorial Lectures,  Nigerian Law publication Ltd.

 

 

Cases

 

A-G, Botswana .v. Dow (1999) 1 HRLRA 1

Okojie and Ors .v. A. G. Lagos State (1981) N C L R 218

Ransome-Kuti v. AG Federation (1985) 2 NWLR (Pt. 10) 211

Uzoukwu & Ors  v. Ezeonu II & 0rs (1991) 6 NWLR (Pt. 200) 708

Saudu v. Abdullahi (1989)4 NWLR (Pt. 116) 387 at 419

Odogu v. AG Federation (1989) 4 NWLR (Pt. 116) 419

Garuba v. University of Maiduguri (1986) 12 NWLR P. 551

 

 

Constitutions

 

Constitution of the Federal Republic of Nigeria 1999 (As Amended)

1979 Constitution of the Federal Republic of Nigeria

1963 Unitary Constitution of the Federal Republic of Nigeria.

 

 

Reports

 

Nigeria 2016 Human Rights Report: Country Report on Human Rights Practices for 2016

 

 

Statutes

 

Fundamental Rights (Enforcement Procedure) Rules 2009

Fundamental Rights (Enforcement Procedure) Rules 1979

 

 

Conventions

 

United Nations Convention on Human Rights 1948

African Union Convention on Preventing & Combating Corruption

African Charter on Democracy, Election and Governance

African Charter on Human & People’s Rights

 

 

Websites

 

Adewoye O. “Constitutionalism and Economic Integration”. (Online) <http://web.idrc.ca/en/ev-68408-201-1-do-topic.html> (Accessed 12/03/04)

Mbaku J.M “Minority Rights in Plural Societies< http://www.india-semian-com/2000/490/%20mbatuj.htm>

Roosevelt E. “Adoption of the Declaration of Human Rights” (1948).<http://www.udhr.org/history>.(Accessed 25/05/2013)

 



[1] The government and its agents committed numerous arbitrary and unlawful killings. The Police, army and other security services committed extra judicial killings and used lethal and excessive force to apprehend criminals and suspects as well as disperse protesters. In May 2016, following the killing and mutilation of six soldiers by cattle rustlers, army troops killed dozens of civilians and razed scores of houses in Wase District, Plateau State. Security forces raided the communities at night firing indiscriminately. Criminal groups abducted civilians in the Niger Delta region of Nigeria. Gunmen in speed boats abducted civilians and foreigners. See also Nigeria 2016 Human Rights Report. Nowadays, there is the fearful and disgraceful killing by the Fulani Herdsmen which a new killer squad which has been worsened by the complacency of the Federal Government.

[2]. Ajomo M.A, “Fundamental Human Rights under the Nigerian Constitution”, in Perspectives on Human Rights, (1992), A.U. Kalu & Y. Osinbajo eds; Lagos :Federal Ministry of Justice Law Review Series vol. 12. at 79.

[3] Some of the unresolved cases, include the murder of Dele Giwa, the founding Chief Editor of Newswatch, the unresolved murder of Bola Ige, a then sitting Attorney General and Minister of Justice, Alfred Rewane and Funsho Williams, both Chieftaincy of the ruling Peoples’ Democratic Party, and recently a governorship candidate of the Action Congress of Nigeria in Ogun State, Dipo Dina among scores of others.

[4] Nigeria 2016 Human Rights Report: Country Report on Human Rights Practices for 2016

[5] Security forces used excessive force including life ammunition to disperse demonstrators resulted in numerous killings during the year. For example on December 2, 2016, army troops killed an undetermined number possibly hundreds according to some credible reports of members of Shia group Islamic Movement of Nigeria in Zaria, Kaduna State following an altercation at a roadblock that disrupted the convey of the Chief of Army Staff. It’s leader Sheikh Ibrahim Zakzaky remained in government custody pending investigations

[6] In Nigeria for instance, Sections 4, 5, and 6 of the 1999 Constitution make provision for these organs of government.

[7] Entered into force 23 March 1976 G.A. Res 2200 A (xxi), UN Doc A/6316(1966) 999 UNTS 171. See Roosevelt “Adoption of the Declaration of Human Rights” (1948) available at <www.udhr.org/history> (accessed 25 March, 2013)

[8] Entered into force 23 March 1976 G.A Res 2200 A (xxi), UN Doc A/6316(1966) 9932 UNTS 3

[9] Robinson M. “Protecting Human Rights: The Role and Responsibilities of the Independent Bar” being a Keynote address delivered at the inaugural World Conference of Barristers and Advocates, Edinburgh 28 June 2002,  P.24

[10]Ransome Kuti .v. AG of the Federation (1985) 2 N.W.L.R. (pt.10) 211 at 229-230

[11]Okpara  O.Human Rights Law & Practice in Nigeria Vol. 1 (2005), Enugu, Chenglo Ltd ” p. 51

[12] Perrott, A.L. “The Logic of Fundamental Rights” in Bridge J.W., Lasok D., Prerrott D.L. and  Plender R.O. Fundamental Rights (1973), London,  Sweet & Maxwell P.107

[13] (1985) 8 NWLR (Part 6) p. 211.

[14] (1985) 2 NWLR (pt. 10) 211 at 229-230; See also  Badejo  .v. Minister of Education (1996) 9-10 SCNJ.,  fundamental rights have also  been described as “ those Human Rights which are selected from the plethora of Human Rights and entrenched, guaranteed and protected by the Constitution which is the fundamental law of the land”

[15]Uzoukwu & Ors .v. Ezeonu II  &Ors (1991) 6 NWLR (pt. 200) 708

[16] As per Nasir PCA

[17]Saudu .v. Abdullahi (1989) 4 NWLR (Pt 116) 387 at 419

[18]Odogu. v. A.G. Federation(1989) 4 NWLR (pt. 116) at 419 para C. Harmathy A. “Report on Issues of Fundamental Rights in the Practice of the Court of Justice and the Constitutional Courts (of the Slava Republic” Strasbourg 29 June. 2006 CCS 2006/05, said “Fundamental rights form as important part of the identity of the different societies rooted in history, social and political culture.  The choice of human rights is about the choice of fundamental values” it is clear that this definition sees “Fundamental rights” from the perspective of “fundamental values”.

[19] Idigbe C. “Fundamental Rights Provisions in the Constitution” in All Nigeria Judges Conference Papers 8th-16th March 1982 (1983) 41-42

[20]Obiaraeri N.O. Human Rights in Nigeria – Millennium Perspective,(2001) Lagos, Perfect Concepts , P.30

[21] Perrott, A.L. “The Logic of Fundamental Rights” in Bridge J.W., Lasok D., Prerrott D.L. and  Plender R.O. Fundamental Rights (1973), London,  Sweet & Maxwell P.107 / 8.

[22]Falana .F. Fundamental Right Enforcement , (2004), Lagos, Legal Text Publishing, P. 4.

[23]Dakas C.J. op cit p.10

[24]Supra

[25]Adewoye O. “Constitutionalism and Economic Integration”. (Online) <http://web.idrc.ca/en/ev-68408-201-1-do-topic.html> (Accessed 12/03/04)

[26]Ibid

[27]Henkin L, “Elements of Constitutionalism” (1994) Occasional Paper Series, Centre for Study of Human Rights.

[28] Rosenfeld: “Constitutionalism, Identity, Difference and Legitimacy: The Theoretical Perspective”(1994), Duke University Press, Durham ,  p. 3

[29] De Smith S.A. “The New Commonwealth and its Constitutions” (1964), Stevens, London  P. 106.

[30]Ihonvbere, “Politics of Constitutional  Reforms and Democratization of Africa” (2000) International Journal of Comparative Sociology P. 17

[31]Ibid

[32]Nwabueze B. “Constitutional Democracy in Africa”, Volume 2 (2003) Spectrum,  Ibadan , P.94

[33]Mbaku J.M “Minority Rights in Plural Societies http://www.india-semian-com/2000/490/%20mbatuj.htm (Accessed 10/01/2013).

[34] Section 33

[35] Section 34

[36] Section 35

[37] Section 36

[38] Section 36

[39] Section 38

[40] Section 39 On May 29, Daily Trust journalist Joseph Hir was beaten, allegedly by supporters of the Nassarawa State Governor for writing a “negative” about the Governor. A month later, Yomi Olomofe, executive director of Prime magazine, and McDominic Nkpemenyie, a correspondent with Tide newspaper, were severely beaten and injured by a group of people at Seme customs border post in Lagos. The group was allegedly upset by previous unfavorable reports of their activities by the journalists.

[41] Section 40

[42] Section 41

[43] Section 42

[44] Section 43

[45] Julius Ihonvbere (ed), The Political Economy of Crisis and Underdevelopment in Africa: Selected Works of Claude Ake (1989), Jad Publishers Ltd., Lagos, P. 91.

[46] Chapters 2 &  4, 1999 Constitution. Although the provisions of chapter 2 dealing with fundamental objective and directive principles of State Policy are  not justiceable, they are nonetheless not without any utilitarian value as they  serve as key aide to interpretation of  the other sections.

[47] These provisions are virtually a verbatim et literatim reproduction of the 1979 Constitution.  The 1963 Constitution however has no provisions comparable with chapter 2 of the 1979 Constitution; but made provision for human rights in sections 18 to 33.

[48] Jean Bernard Marie, “National Systems for the Protection of Human Rights” In Human Rights International Protection Monitoring, Enforcement (2003), Jamiz Symonides ed. Aldershot Hants: Ashgate, UNESCO Publishing,  p. 257.

[49] Jean Mari op. cit. 258

[50] The Charter of the United Nations, Articles 55 & 56

[51] Hon. Justice. Oputa C.A.,Human Rights in the Political and Legal Culture of Nigeria (1985), Idigbe Memorial Lectures,  Nigerian Law publication Ltd.  p. 65.

[52] (1986)1 N.W.L.R p. 551

[53]Ogboni O.N.; “Truth and Reconciliation Commission a Human Rights Protection Mechanism: The Tragic Near Demise of Nigerian’s Oputa Panel in E. Chianu (ed.) Legal Principles and Policies: Essays in Honour of Justice Idigbe, (2006), District Universal Limited, Lagos, p. 1

[54] Prominent pro-democracy activists assassinated during the reign of Abacha alone included Alhaja Kudirat Abiola, activist wife of the late Chief Moshood Abiola; Chief Alfred Rewane, a National Democratic Coalition Leader; Admiral Emmanuel Omotechinwa (rtd).  Many others nervously escaped death while others were into exile to save their lives.  The security agencies were empowered to kill and maim any one opposition member.  Deprivation of right of liberty was rampant.  The climax of it was the hanging of Ken SaroWiwa in 1995.

[55] Now Osun State

[56]Uzoukwu L.I.: Constitutionalism, Human Rights and the Judiciary in Nigeria, Submitted to the University of South Africa (UNISA) in accordance to the Requirements for Degree of Doctor of Laws, June, 2006.

[57]Ibid

[58]Gutto: “Current Concepts, Core Principles Dimensions, Processes and Institutions of  Democracy and Interrelationship Between Democracy and Human Rights” Being a paper presented at a Seminar organized by the Office of the High Commissioner for Human Rights, Geneva, 25-26, November, 2002 , Para 5.

[59] Adopted of Maputo on 11th July 2003.

[60] Nigeria Ratified the Convention on 5th August 2008.

[61] Out of the 53 African Nations, only Ethiopia, Mauritania and Sierra Leone have ratified the Charter

[62] Out of the 53 African Nations, only Ethiopia, Mauritania and Sierra Leone have ratified the Charter which requires the ratification of 15 members to enter into force

[63] Article 2(1) African Charter on Democracy, Elections & Governance.

[64]Abdelatif Ani “Good Governance and its Relationship to Democracy and Economic Development”. Being a paper  presented at Global Forum III Workshop on Fighting Corruption and Safeguarding Integrity Second 20th - 31st May 2003.  See also UNDP Governance for Sustainable Human Development, Policy Paper UNDP 1997, p 2-3

[65] Section 13 of 1999 Constitution of the Federal Republic of Nigeria

[66]  J. Nwaoke .: “Human Right  Abuses in NIgeria” (2019)The Guardian Newspaper  Monday, February 11

[67]  Section 14 of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended)

[68] Chapter II of the 1999 Constitution of the Federal Republic of Nigeria. See Okojie and Ors .v. A. G. Lagos State (1981) N C L R 218.

[69]A-G, Botswana .v. Dow (1999) 1 HRLRA 1, Aguda J.A., a Nigerian, retired as a Chief  in Nigeria but continued to sit in Botswana Appeal Court.