Fundamental Human Right Violation.
fundamental human right violation in recent times, the world seems to have come to terms with the fact that every human is entitled to certain rights and privileges which are not to be deprived arbitrarily. We are past the era of holding public campaigns to convince the government and its officials that every human is entitled to certain right, in fact the trend is that the government informs its citizen. But the existence and recognition of a right alone without its enforcement is an exercise in futility.
Borrowing a thought from the social contract theorist1 who postulated that humans due to the hardship and injustice as well as lawlessness prevalent in the state of nature, agreed to come together to surrender their rights to a sovereign who will in turn guarantee the protection and preservation of these rights by shielding the populace that have surrendered their rights from the infringement of their rights by other persons against whom they may not be able to protect themselves. This can be seen as the origin of government where by people delegate their powers to be exercised by a select group of persons or body on behalf of them. With the advent of separation of power as propounded by the French jurist Montesquieu2, the powers available in a government are divided into three organs namely the Executive, the Legislature and the Judiciary. This is done in order to forestall the inevitable abuse of the power that may be occasioned by the concentration of all powers in one single organ. While the Legislature is charged with law making, the Judiciary is responsible for interpreting the law. The Executive however are saddled with the responsibility of implementing the laws and policies as made by the legislative organ of government. With the advent of modern government, the role and functions of the Executive arm of government cannot be optimally performed by a single person or association of person thus culminating into the division of the powers of the executive into different executive bodies. These bodies are charged with the implementation of Laws and Policies with the chief executive being in the helm of affairs of the executive organ. One of these Executive bodies is the police.
It is a settled matter in the extant literature on democracy, democratization and democratic consolidation generally, that maintenance of law and order is a sine qua non for the stability of any polity in all regions and climes. All societies require a body of men and women whose sole occupation is that of protecting them from the dangers of external invasion, internal subversion in order for the society to continue to exist3. Thus, for the protective role of the Police at least internally, is so overwhelming that it has become an indispensable institution of the state by enhancing the attainment of states’ goals. The maintenance of order is an essential aspect of governmental authority because of its bearing on government’s monopoly of extreme coercion. The inability of a government to maintain law and order is a sign of weakness and hence, capability to successfully pursue any of the goals set for the community. Consequently, the Police, the Prison services and courts are fundamental aspects of democracy as well as dictatorship4.
Now narrowing it down to our domestic situation, Nigeria is a federation comprising 36 states and a Federal Capital Territory. The current constitution, adopted in 1999, establishes the Nigerian Police Force (NPF) by virtue of Section 214.
The above section prohibits the existence or establishment of state or local police.5 The NPF is a Federal entity under control of the president. To aid understanding of the NPF, a look at its history and structure, and the context in which it operates is apposite.
In 1860, British colonial authorities created a 30-member Consular Guard in Lagos as the first organized policing unit for the territory which eventually became Nigeria. Over the next 70 years, colonial authorities established constabularies and police formations in different parts of Nigeria.6 In 1914, the British colonial authorities amalgamated the Protectorates of Northern and Southern Nigeria with the Colony of Lagos and created the territory currently known as Nigeria. This was followed by the creation of a unified NPF under the leadership of an inspector-general of police in 19307.
Nigeria inherited the institutions and culture of the colonial police when it gained independence from Great Britain in 1960. Colonial authorities used the police principally to control local communities and tramp down any challenges to colonialism.8 Colonial police earned a reputation for the “brutal subjugation of communities and suppression of resistance to colonial rule.”9 The foundations of the NPF’s brutality were laid during the colonial era.
Nigeria’s history of governmental and constitutional instability helps to explain the professional incapacities, institutional weaknesses, and criminal culture of the NPF. Since Nigeria gained independence in October 1960, the country has had 13 presidents or heads of government, eight of whom presided over a total of 29 years of military rule. During this same period, the country saw six constitutions (including one that never entered into force),10 four constitution drafting processes, four programs of transition from military to civilian government,11 five successful and at least three unsuccessful coup attempts,12 three civilian regimes, two constituent assemblies, and one civil war.13 Nigeria returned to civilian government after 15 years of military rule under a constitution that entered into force on May 29, 1999.
This history of post-independence instability and authoritarianism created a tradition of unaccountable governments lacking popular legitimacy and cemented the culture of police brutality. Nigeria’s leaders alternately used the police to enforce their power and deliberately weakened the NPF to prevent its involvement in coups. Successive military regimes co-opted and enthusiastically used the police to sustain their dictatorships largely because the police alone had a nationwide security presence and license to use violence.14 Nigeria’s military rulers routinely appointed inspectors-general of the police to the highest decision-making bodies of military government—the Supreme Military Council or the Armed Forces Ruling Council. The military also appointed several senior police officers as military governors, administrators of different states and territories, or federal-level ministers.
To prevent coups, successive military regimes dismantled the communications infrastructure of the police, “failed to fund the Police adequately,”15 and, with the revision of the Police Act in 1967, centralized operational control of the police in the hands of the head of state. Together, these measures politicized the force, degraded its operational effectiveness, and diminished the NPF’s reputation as a professional institution. This situation which is not peculiar to Nigeria alone has been observed in other jurisdictions. For instance, it was observed in Awake16 that:
Despotic governments in fear of revolutions have nearly always used secret police to spy on their cities. Such police extract information by torture and eliminate supposed subversive elements by assassination or by arrest without trial. The Nazis had their Gestapo, the Soviet Union before her disintegration its KGB, and East Germany the Stasi. Amazingly, the Stasi employed 100,000 officers and possibly half a million informers to control a population of some 16 million. Officers listened to telephone conversations round the clock and kept files on a third of the entire population
In 2008, the most recent Presidential Committee on Police Reform explained the full effect of military intervention and constitutional instability on the NPF as follows:
Successive military regimes erroneously regarded the Nigeria Police as a rival power base (to the armed forces) and as such did everything they could to undermine its capabilities and effectiveness, so as to sustain their political hegemony. As a result, standards of training, discipline, kitting, etc. fell drastically as a result of deliberate under-funding and neglect. Worse still, through several interventions and subterfuge, the military deliberately created rival law and order institutions, and usurped police duties by setting up anti-crime taskforces and other outfits and effecting so many changes in the institutional organization, appointment and deployment of the Nigeria Police, which further eroded public confidence in the Force. This trend went on throughout military rule, from 1966 to 1979, and from 1983 to 1999. The advent of democratic administration from 1999 did not change matters, because the former President came with the same military mindset. As such, the position of the Nigeria Police even deteriorated. The cumulative impact of all these has been a Nigeria Police Force that has been weakened, deficient, incapacitated, lacking in confidence and orientation.17
Civilian regimes have also used the police for partisan purposes, including electoral fraud and political violence. The NPF, under a succession of unaccountable regimes, crystallized a tradition of “over-centralizing Police control in the hands of the President, who could use the Police for political purposes, including silencing all opposition voices. … Often times, the Police have colluded with groups and taken sides depending on what benefits their political patrons.”18 In December 2008, the Presidential Committee on Electoral Reform, chaired by former Chief Justice of Nigeria Mohammed Lawal Uwais, complained about the “functional ineffectiveness of the police during elections” and certified a litany of complaints of criminal conduct by the police during elections including “unprofessional conduct like brutality, intimidation, facilitating the snatching and destruction of ballot boxes, under-age voting, mass thumb-printing of ballot papers, forgery of results in exchange for bribes, etc.”19
Through the authoritarianism of successive colonial and post-colonial military and civilian regimes, the NPF evolved into an instrument for regime protection firmly rooted in “a culture of violence.”20
All these negative uses as identified above of the police force by different dispensations of government have culminated in the abuse of human right by the police in carrying out the bidding of those in the helm of affair to whom they are answerable.
Human rights are those privileges enjoyed by the citizens of any given country guaranteed and protected by the State constitution. Human rights have been variously described as the rights of man or fundamental freedom. Human rights are rights that are legally recognized and protected to secure for each individual the fullest and freest development of personality, spiritual and moral independence. Human rights are inalienable rights that belong to man by virtue of his humanity and therefore should be granted and guaranteed to everyone.
The issue of human rights law and its abuses by the police has been a complicated and contentious problem. Different countries have different understanding of human rights and how they could be administered. The Nigeria Police have long history of engaging in professional, corrupt, and criminal conduct, using excessive and often brutal forms of torture, rape and sexual violence, extrajudicial execution, harassment and intimidation of victims and the destruction of evidence, including the bodies of victims of extrajudicial executions. These abuses are either perpetuated on the specific orders of superior police officers or with other knowledge or acquiescence creating the impression of criminalized policing in Nigeria.
The police should be used to undertaking the coercive ‘goal attainment’ role of imposing upon groups of the population various objectives perceived by those who wield political power as those aggregating to the desired condition of “order and regularity21.
In the words of Ben Nwabueze22, the duty of the police is defined by law to be “the prevention and detection of crime, the apprehension of offenders, the preservation of law and order the protection of property and the due enforcement of all laws and regulations with which they are directly charged. For the effective discharge of these duties, members of the police force are given wide powers, including power to conduct criminal prosecutions, to arrest persons in certain circumstances without warrant; to serve court summonses, to release on bail persons arrested without warrant; and to detail and search suspected persons. Be that as it may, it must be emphasized that a corrupt police force can never perform all the aforementioned functions creditably. Indeed, such a force will be antithetical to democratic ethos and values. It is against this background therefore, that this research work will examine the fundamental human right violation using the Nigerian Police as a case study.
1.2 Statement of the Problem
Human right is a necessary consequence of one’s citizenship, which is based on the reciprocity between rights and duties. Rights are not rights that have been donated to the Nigerian people through an act of benevolence by its leaders. They are not the ideological fancies of a particular or group of persons, but are rights that encapsulate the collective vision, dreams, aspirations and fundamental beliefs of the Nigerian people. The rights bind the Nigerian people to the rest of humanity in a collective endeavour of civilized conduct and cherished values of human existence23.
Flowing from the above background, one will but would agree with the learned author Folashade B.Okeshola when he stated that:
Nigeria is one of the worst victims of human rights violation in Africa. Consequently, many Nigerians today live in fear and terror, torture, unlawful detention, unfair trial and possible death. Even though Nigeria has a National Human Right Commission, a constitution modeled after United State of America, and a signatory to the United Nations Universal Declaration of Human Rights, various governments (both military and civilians) have always treated the issue of human rights with contempt and levity. In fact, the uneasiness about the flagrant violations of human rights in Nigeria and the outrages that have occurred are the major threats to peace and stability in the country.
According to the Human Rights Situation Report24, the police in Nigeria have a history of abusing the human rights of the citizenry ranging from detention due to refusal to give bribe, sexual and physical assault of those in police custody, use of torture to extract confession, extra judicial killings engaged in by police personnel and many other acts which have turned the police to a blood sucking monster in the eyes of the citizenry. In view of this, many citizens see police personnel as an everlasting enemy and relate to them as such.
The pervasiveness of the abuse calls into question the legitimacy of the entire force. Moreover, the abuse is known to and officially acknowledged by the highest levels of both police and political leadership in Nigeria.
In similar description, in 2008, a presidential commission on the NPF headed by former Inspector- General of the Police Mohammed Dikko Yusuf concluded that policing in Nigeria was characterized by a pattern of “unlawful arrest and detention, extortion, torture, rape, extrajudicial killings and other forms of brutality. The negative image of the police in the eyes and minds of the public arose from the high level of crimes in the force and its failure to carry out genuine police functions successfully.”25The commission lamented that “instead of becoming a public asset therefore, the police have become a public burden.”26
A former inspector-general of police, Ibrahim Coomasie, accuses the NPF of “barbaric treatment of Nigerians.”27 These are not mere allegations against the police but realities that have been experience by a large number of the populace citing several instances where their rights have been utterly infringed by members of the Nigerian police force.
To start with, the Nigeria police force has been accused of participating in several mass killings, burying suspects in shallow graves, while their personnel fail to keep adequate records of people in custody, knowing well that their failure to do so facilitates abuse against detainees and suspects. There is also failure on the part of the government to institute or exercise due intelligence in investigating or ensuring accountability for police abuses.
In its Universal Period Review (UPR) report submitted to the United Nations Human Rights Council in January 2009, Nigeria’s federal government acknowledged “allegations of extrajudicial killings against members of the Nigerian security agencies, especially the police,” but claimed that it “neither sanctions, nor will it allow extrajudicial killings to be carried out with impunity in Nigeria.”28
NPF personnel enjoy a stunning degree of impunity. The government routinely fails to exercise due diligence in investigating or ensuring accountability for police abuses. The police do not have effective or transparent mechanisms of internal control and discipline. External oversight is almost nonexistent. Senior government officials occasionally boast of how many “robbers” are killed by police. In Enugu State, the head of the Special Anti-Robbery Squad (SARS) of the State Police Command boasted in December 2008 to a researcher from the Network on Police Reform in Nigeria (NOPRIN) that he ordered the extrajudicial executions of only those persons whom he knew to be guilty. He took offense at being asked to explain how—without investigation or trial—he could determine the guilt or innocence of such persons before putting them to death. In November 2007, Acting Inspector-General of Police Mike Okiro reported that the police had killed 785 “armed robbers” and arrested another 1,628 in his first 100 days as acting inspector-general.29 One week later, President Umaru Yar’Adua removed the “acting” tag and confirmed Okiro as tenured IGP.
A perusal through the constitution of the Federal republic of Nigeria as well as other laws, it is evident that the police were empowered to make arrests without warrants if they believed that there was a reason to suspect that a person had committed an offence. They often abuse this power. Under the fundamental rights Enforcement Procedures Rules of the 1999 Constitution, police may arrest and detain persons for 24 hours before charging them with an offence where there is a court with 40 kilometer radius or 48 hours in other circumstance where there is no such court.
Again, the law requires an arresting officer to inform the accused of the charges or the reasons for his arrest at the time of arrests and to take the accused persons to a station for processing within a reasonable amount of time. However, the police generally do not adhere to these legally mandated procedures. They even meet demands for the reason for arrest with animosity and violence. Its common place to hear a police man ask: are you teaching me my job?
Although the constitution expressly guarantee to its citizen the right to remain silent30until after consultation with a legal practitioner or any other person of his choice, this right is utterly abused as the police most times prevent detainees from having access to their relative and even legal practitioners.
The Nigerian police frequently use torture while interrogating suspects despite Section 34 of the Nigeria Constitution. In a study conducted in 2000 by the Nigerian Human Rights Commission and the Centre for Law Enforcement (CLEEN) stated that almost 80% of inmates in Nigerian prisons claim to have been beating by police and threatened with weapons.
Supporting this description, many ex-detainees interviewed for this report spoke of being tied up and suspended mid-air in painful positions while being beaten with machetes, gun butts, boots, fists, electrical wires, animal hides, and other instruments. Others described being shot in the leg or assaulted by police officers while in custody and suffering multiple fractures. Some female ex-detainees reported being sexually abused by police personnel, including being raped and having pepper spray used on their genitals. A police officer in Ikeja, Lagos State, described the apparently common practice of raping sex workers, claiming that “this is one of the fringe benefits attached to night patrol.”31 Male ex-detainees interviewed for this report routinely described having sharp objects inserted into their genitals.
This is in gross violation of Section 34 of the constitution that guarantee the right to dignity of the human person. In similar light, Article 4 of the African Charter on Human and Peoples’ Rights, states that “Human rights are inviolable. Every human being shall be entitled to respect for his/her person. No one may be arbitrarily deprived of his /her right.” This declaration is one amongst many such as the UN Declaration of Human Rights32
The Nigerian media has great influence on what the public perceives as police corruption or human rights abuse. It is a common occurrence for most Nigerian newspapers and magazines to have their headlines on the activities of the Nigeria police in relation to human rights violations while attempting to carry out their constitutional duties of maintaining law and order.
Human rights abuse by the police is a phenomenon that is disturbing and worrisome to Nigerians, This has left many citizens to be injured physically, mentally or psychologically as they go through these experiences in the hands of those whose responsibility is to protect them. There exist frightening experiences in which the citizens hardly have any complements for the police, detest interaction with police personnel as they see it as a prelude to arrest. This has been traced to the committal human rights abuses by the police against members of the citizenry 33
In Nigeria, public perception of police brutality and violence, which influence their uncooperative and unsupportive attitude towards police, is broad, encompassing both physical and verbal assault, harassment and restraints from exercise of their constitutional rights. Police roles in individual disputes resulting in workers strike, student demonstration, public procession and demonstration against unpopular government policies, frequently involve violence, harassment and intimidation, arrest and detention34.
Several scholars have reported widespread brutality by police during crime control operations, crowd control, and management of protests and demonstration, investigation and at checkpoint. Police brutality also occurs in the form of extra-judicial killings or summary execution of suspects and revenge killings. There have been allegations of police involvement in armed robbery and recruitment of hired assassins. During criminal investigation, there is always absence of respect for human rights as the police resort to torture to extract confession. The methods or instrument of torture used by the police include beating with sticks, iron bars, wires and cables, sticking pins or sharp objects into the private parts of suspects , shooting of suspect on the limbs, use of cigarette lights to inflict burns on suspects. These and other practices such as arresting a relation as substitute for wanted suspect, apart from being a human right violation, create indelible negative impression of police among the victims of these practices.35
These human rights abuses have led to the maiming, physical and psychological trauma of many citizens. Many citizens have died and continue to die in police detention centers and even on the highways as the police commit acts that for the most part go unpunished. Another dimension to this is that these human rights abuse are mostly committed against some sections of the society as the poor, uneducated citizens who are defenseless and unable to enforce their rights because they are neither seen nor heard36.
Apart from their proclivity to abuse human rights, the Nigerian police are always versed in pervasive acts of corruption, such as diverting police resources for personal protection or enrichment in a variety of police-for-hire arrangements; harassment and intimidation of victims; and the destruction of evidence, including the bodies of victims of extrajudicial executions. Officers routinely practice extortion on members of the public at roadblocks and on public highways.
The murder, torture, and other crimes described in this report are not the actions of a few rogue police officers, but rather examples of a culture of violence and lawlessness that pervades the whole force. The NPF often fails to keep adequate records of people in custody, fully knowing that this failure facilitates abuses against detainees and suspects. These abuses are often perpetrated either on the specific orders of superior police officers or with their knowledge or acquiescence, creating the impression of criminalized policing in Nigeria.
In Nigeria, the Police Service Commission (PSC) has oversight of the police and is responsible for preventing and investigating police abuses. But the PSC is hobbled by inadequate resources, resistance from the police and political leadership, and an unwillingness to challenge the status quo. Judicial oversight of the NPF is no more effective, because judges must rely on investigations conducted by the same NPF whose personnel are accused of committing abuse in the first place. Not surprisingly, these investigations rarely result in a conviction. With such weak oversight, few cases of police abuse are reported and fewer still are successfully prosecuted. Victims know that this oversight system is unlikely to provide effective redress and rightfully fear reprisals if they report police abuse. This systematic failure to stop police abuse or exercise appropriate oversight corrodes police-community relations, reinforces impunity, and makes the NPF, as an institution, even more likely to prey on the people it should be protecting.
The foregoing notwithstanding, the re orientation of members of the police force as well as adequate human right training to aspirant members; improvement in the standard of living of members of the police force and other things recommended in this research work will be apt to change the current trend of human right violation by the Nigerian Police Force.
1.3 Research Questions
In an attempt to resolve the issues identified in the statement of the problem, the researcher has formulated the following questions:
- To what extent are fundamental human rights recognized, respected and observed by the Executive?
- What are the causes of Executive lawlessness?
- What are the forms of human right abuse by the Nigerian Police?
- What are the pre-requisites for human right protection?
- What role does the judiciary play in enforcement of fundamental human right?
- What are the possible ways of improving the respect for and enforcement fundamental human right by the Nigerian Police?
1.4 Objective of the Study
The main aim of this research is to consider the nature and to what extent fundamental human rights are respected, observed, enforced or abused by the Executive particularly by the police. In addition however, the research is aimed at achieving the following objectives:
- Examine to what extent Fundamental Human Rights are recognized, respected and observed by the Executive.
- Highlight the causes of Executive Lawlessness.
- X-ray the forms Human Right abuse by the Nigerian Police.
- Identify the pre-requisites for Human Right protection.
- Examine the role of the judiciary in the enforcement of Fundamental Human Right.
- Proffer a lee way towards improving the respect for and enforcement Fundamental Human Right by the Nigerian Police.
Encourage the reinforcement of law enforcement officials’ respect for, and faith in, human dignity and fundamental human rights
To encourage and reinforce an ethos of legality and of compliance with international human rights standards within law enforcement agencies;
1.5 Scope of the Study
This research work covers the extent to which Fundamental Human Rights are recognized, respected and observed in Nigeria by the Executive arm of Government. The forms and nature of abuse of Fundamental Rights by the Nigerian Police as well as the role of the judiciary in improving the respect for and enforcement of Fundamental Human Right was considered. Reference was however made to other jurisdictions to discover what is applicable.
1.6 Significance of the Study
The relevance of this research work cannot be over emphasized given the rate of human right infringement in Nigeria, particularly when such infringement is coming from those that are saddled with the task of promoting and protecting these rights. The intended principal beneficiaries are:
- Police Trainers: This work will equip the police educators and trainers to provide human rights education and training for law enforcement officials both the prospective police men as well as person already admitted into the police force. It will serve as a training manual to which reference may be made the course of the training exercise.
- The Police Officers: This work will serve as a source of reference to police officers in educating them on the fundamental rights of citizens and how to carry out those duties in such a manner as not to infringe on the rights of citizens. It will sensitize police officials to their special role in protecting and promoting human rights and to their potential for affecting human rights in their daily work;
- Law Lecturers: In the classroom, this work will assist lecturers especially those handling human right law in passing knowledge across to the students. It will serve a reference material to lecturers.
- The Citizens: This work will educate the citizens on their fundamental human rights. It will also enlighten them on proper approach that the police should employ in carrying out their objective as well as how, where and when to report a defective procedure which infringe their fundamental rights.
- Policy Makers: This work will inform policy makers to come up with policies that are apt in encouraging the reinforcement of law enforcement officials’ respect for, and faith in, human dignity and fundamental human rights as well as encourage and reinforce an ethos of legality and of compliance with international human rights standards within law enforcement agencies;
1.7 Limitation of the Study
The successful conduct and completion of this research work was militated by several factors:
1. Time factor: the researcher had limited time to conduct and complete this research work so as to meet the deadline given for the completion and submission of this work
2. Combining the conduct of this research with the academic responsibilities of the researcher took a large part of the time of the researcher.
3. Extra -curricular activities in which the researcher was involved in during the conduct of this research work and which has to be combined with this research was another militating factors to the timely completion f this work.
The above factors notwithstanding, the researcher is hopeful that with determination and hard work, the work will thrive.
1.8 Research Methodology
In the conduct of this research work, the researcher employed basically the doctrinal methodology of research. Relevant materials were sourced from books, statute books, law reports, treatise, articles and journals. The researcher also had recourse to secondary sources. Materials were also accessed from the internet.
2.1 Theoretical Framework
2.1.1 Theories of Human Right
188.8.131.52 Universality Theory
The proponents of this theory propose that the concept of human right is universal to all people in all places and it knows no cultural bounds. In their own opinion, Human Rights are what make a person a human being, without them a human being is completely debased. Human Rights are what enables a person to continue his humanity without human rights life is meaningless, worthless and a mere shadow. Human Rights are common to all mankind. They are the basic requirements for meaningful life, every civilized state is expected to ensure for its citizens. Human Rights are universal. Describing natural rights or human rights, M. Cranston said that human rights are;
“Not the particular privileges of citizens of certain states, but something to which every human being everywhere, is entitled”.
They believe that Human Rights are not the creations or entitlement of some special societies as against others. However, all over the world, some societies or countries have been more forthcoming, eager has willing to articulate or give expression to them, recognize and give them force of law by enactment into law, observe, enforce and protect human rights than other countries. Thus while some are willing to recognize, enforce and protect human rights, other countries have been slow, and are not eager to observe and protect human rights.
In the words of the former Secretary General of the United Nations, Kofi A. Annan, “Human rights are foreign to no culture and native to all nations; they are universal.37”
Finding more justification for their theory, proponents of this theory argue that Human rights are universal because they are based on every human being’s dignity, irrespective of race, colour, sex, ethnic or social origin, religion, language, nationality, age, sexual orientation, disability or any other distinguishing characteristic. Since they are accepted by all States and peoples, they apply equally and indiscriminately to every person and are the same for everyone everywhere.
They assert that all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms38.
184.108.40.206 Cultural Relativism
According to proponents of this theory, human rights that exist in any given State are a reflection of the socio cultural background of that society. Thus human right cannot be universally applicable to all individual in all society due to the fact that each societies have its own cultural evolution that inform what is recognized and enforceable as human rights and what is not. Human rights that exist in a given society are therefore tailored in such a way and manner as to conform to the acceptable social standard of ach society. The reflection of this theory was seen in the great schism between the capitalist bloc and the socialist cum communist bloc in the dawn of United Nations Charter.
The capitalist countries – the United States of America and her allies – were of the opinion that it is only civil and political rights that should be contained in the UN charter and it is those rights that should be made justiciable. They were thus, opposed to the uplifting of the status of economic social and cultural rights, to a position of equality with the civil and political rights. The communist countries – the former Soviet Union and her allies – on the other hand, held contrary position, and were supported by the newly independent states from the third world. They believe that economic social and cultural rights were as much human right as civil and political rights and such be included in the Charter as well as made justiciable. The above division portrays the postulations of this theory of human rights which believe that what constitute human right is informed by the socio-cultural as well as political ideology of a particular society.
2.2 Conceptual Framework
2.2.1 Concept of Rights
The term right has been variously employed by different persons at different time to mean different things. There is considerable disagreement about what is meant precisely by the term rights. It has been used by different groups and thinkers for different purposes, with different and sometimes opposing definitions, and the precise definition of this principle, beyond having something to do with normative rules of some sort or another, is controversial.
Right can be defined as the entitlements of a set of persons which is sanctioned by law and enforceable against every one.
Rights can also be seen as legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.39
The word ‘right’ is derived from the Latin word rectus which means that to which a person has a just and valid claim, whether it be land, a thing or the privilege of doing something or saying something.
Etymologically, the Modern English word right derives from Old English riht or reht, in turn from Proto-Germanic riχtaz meaning “right” or “direct”, and ultimately from Proto-Indo-European reg-to- meaning “having moved in a straight line”, in turn from (o)reg'(a)- meaning “to straighten or direct”. In several different Indo-European languages, a single word derived from the same root means both “right” and “law”, such as French droit, Spanish derecho, German Recht. and Italian diritto.
Rights are rules of interaction between people. They place constraints and obligations upon the actions of the state and individuals or groups. Rights are defined as claims of an individual that are essential for the development of his or her own self and that are recognized by society or State. These are legal, social, or ethical principles of freedom or entitlement and are the fundamental normative rules about what is allowed to people or owed to people, according to some legal system, social convention, or ethical theory. Rights are often considered fundamental to civilization, being regarded as established pillars of society and culture.
Forms of Rights
Rights can appear in different form. It can be
- Natural Rights: which are rights which are “natural” in the sense of “not artificial, not man-made”, as in rights deriving from deontic logic, from human nature, or from the edicts of a god. They are universal; that is, they apply to all people, and do not derive from the laws of any specific society. They exist necessarily, inhere in every individual, and can’t be taken away. For example, it has been argued that humans have a natural right to life. These are sometimes called moral rights or inalienable rights.
- Legal Rights: Rights can also be Legal rights, which in contrast to natural rights, are based on a society’s customs, laws, statutes or actions by legislatures. An example of a legal right is the right to vote of citizens. Citizenship, itself, is often considered as the basis for having legal rights, and has been defined as the “right to have rights”. Legal rights are sometimes called civil rights or statutory rights and are culturally and politically relative since they depend on a specific societal context to have meaning.
- Claim Right: Furthermore, rights can consist of claim right and liberty right. A claim right is a right which entails that another person does not have a right. Somebody else must do or refrain from doing something to or for the claim holder, such as perform a service or supply a product for him or her; that is, he or she has a claim to that service or product (another term is thing in action). In logic, this idea can be expressed as: “Person A has a claim that person B do something if and only if B does not have a right to do that something.” Every claim-right entails that some other person does not have a right for the claim to be satisfied. For example, many jurisdictions recognize broad claim rights to things like “life, liberty, and property”; these rights imply that others should not assault or restrain a person, or use their property, without the claim-holder’s permission. Likewise, in jurisdictions where social welfare services are provided, citizens have legal claim rights to be provided with those services.
- Liberty Right: These are also called privilege, in contrast, is simply a freedom or permission for the right-holder to do something, and other parties have rights.40 This can be expressed in logic as: “Person A has a privilege to do something if and only if A has a right.” For example, if a person has a legal liberty right to free speech, that merely means that it is not legally forbidden for them to speak freely: it does not mean that anyone has to help enable their speech, or to listen to their speech; or even, per se, refrain from stopping them from speaking, though other rights, such as the claim right to be free from assault, may severely limit what others can do to stop them. Liberty rights and claim rights are the inverse of one another: a person has a liberty right permitting him to do something only if there is no other person who has a claim right forbidding him from doing so. Likewise, if a person has a claim right against someone else, then that other person doesn’t have a right.
- Positive Rights: They are permissions to do things, or entitlements to be done unto. One example of a positive right is the purported “right to welfare.”41
- Negative Rights: They are permissions not to do things, or entitlements to be left alone. Often the distinction is invoked by libertarians who think of a negative right as an entitlement to non-interference such as a right against being assaulted.42 Though similarly named, positive and negative rights should not be confused with active rights (which encompass “privileges” and “powers”) and passive rights (which encompass “claims” and “immunities”).
- Individual Rights: These are rights held by individual people regardless of their group membership or lack thereof.
- Group Rights: These have been argued to exist when a group is seen as more than a mere composite or assembly of separate individuals but an entity in its own right. In other words, it’s possible to see a group as a distinct being in and of itself; it’s akin to an enlarged individual, a corporate body, which has a distinct will and power of action and can be thought of as having rights.
2.2.2 Meaning and Nature of Human Right.
The sons of Adam are like the limbs of the same body.
For they share the same essence in creation.
When one limb is put to pain
The other limbs cannot remain at rest
O thou who do not feel the sufferings of mankind
Thou deservest not to be called a human being.43
The notion of ‘human rights’ which originally is referred to as ‘the rights of man’, each individual within the society possesses certain claims and rights that cannot be taken away and the major reason for individuals coming together to form a government, is for the protection and fostering of these rights and to allow for the continuity of humanity.
These rights are inherent in any human being simply because of humanity – the birth right of all mankind. The expression “human rights” in its entirety embraces those civil, political, economic social, cultural, groups, solidarity and developmental rights which are considered indispensable to a meaningful human existence.
On the other hand, legal human rights are those human rights that are enshrined in the constitution and guaranteed by positive law (lex lata), while moral human rights are claims which fall within the positive law (lex feranda).
These rights are inalienable to human. They are part of the very nature of a human being; he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies.
These rights are not creation of the Constitutions and other codes do not create human rights but declare and preserve existing rights. That is why the first generation human rights are couched in negative terms. For example, to say that no person shall be deprived of his personal liberty presupposes that personal liberty is an existing right. Without the observance of human rights, there can be no justice and the state is nothing but a prison camp. Any country where the Fundamental rights of the people are denied and repressed, the people cannot achieve true development and greatness without human rights there can be justice, constitution only declares and preserves existing rights.
The concept of human rights has been viewed from different political, sociological and philosophical perspectives. Socio-politically, human rights is a concept which regards human beings as having universal rights, or status, regardless of legal jurisdiction, and other localizing factors, such as ethnicity and nationality. Philosophically, as observed by Hill44, human rights are based on social contract theories and their conception of natural rights. According to Forsythe45, human rights refer to the supposed basic rights and freedoms to which all humans are entitled. Murray46, form anarcho-capitalist orientation, explained human rights as a condition in which person’s ownership rights to his body and legitimate property rights are neither invaded nor aggressed against by person, group of persons, or government.
In a domestic sense, the concept of human right refers to safeguards for the individual against arbitrary use of power by the government in relation to the following:
1. The well being of individuals;
2. The freedom and autonomy of individuals; and
3. The representation of the human interest in government.
In addition, the concept of human rights deals with small subset of values that should be available for implementation by individual, other individuals, or government. These values are clearly stated in the constitution and are based on the legal and political traditions of every country including Nigeria.
According to Wright47, these rights include the right of life, the right to an adequate standard of living, freedom from torture and other maltreatment freedom of religion and of expression, freedom of movement, the right to self-determination, the right to education, and the right to participation in cultural and political life. From these various points of view, fundamental human right can be explained as the basic universal inalienable social should be enjoyed by all human beings regardless of their religion, race, ethnicity, gender and status. In other words, fundamental human right, are rights that belong to all as human beings and citizens of a country.
Human rights are held to be inalienable and belong to all human and that is why rights are clearly written in the constitution of nations. They are necessary for freedom and rights to the maintenance of a reasonable quality of life. For instance, it can be seen in the United States Constitution (1783) and French Declaration of Rights of Man and of the Citizen (1793) and the Nigeria constitution (1999). If a right is inalienable, that means it cannot be bestowed (e.g one cannot commit suicide or sell self to slavery). Rights may also be non-derogable (not limited in times of national emergency); these often include the right of life, the right to be prosecuted according to the laws that are in existence at the time of the offence only, the right to be free from slavery, and the right to be free from torture.
Ultimately, the term human rights is often itself an appeal to a transcendent principle, without basing it on existing legal concepts. The term “humanism” refers to the developing doctrine of such universally applicable values. Some authors argue that nationalism and realism weaken human rights, while individualism and cosmopolitanism strengthen them. This is agued by Demetrius Klitou48 who also outlines the need for a “human identity” in order to empower the human rights movement.
2.2.3 Meaning of Fundamental Human Right
As we have seen, rights are claims that are essential for the existence and development of individuals. In that sense there will a long list of rights. Whereas all these are recognized by the society, some of the most important rights are recognized by the State and enshrined in the Constitution. Such rights are called fundamental rights.
These rights are fundamental because of two reasons. First, these are mentioned in the Constitution which guarantees them and the second, these are justiciable, i.e. enforceable through courts. Being justiciable means that in case of their violation, the individual can approach courts for their protection. If a government enacts a law that restricts any of these rights, it will be declared invalid by courts. Fundamental rights are rights which impose limitation on the government, especially the executive arm of government, and they are accordingly easily justiciable.
Such rights are provided in Part IV of the Nigerian Constitution. These rights contained in the constitution are specifically described by that part as fundamental rights. While these fundamental rights are universal to all citizens as well as justiciable, the Constitution provides for some exceptions and restrictions as well as circumstances where they will be derogated from.
2.2.4 Distinction between Human Right and Fundamental Human Right.Human Rights that have been guaranteed by a positive law are the enforceable human rights, while those not yet guaranteed are so bound on the ground of morality and remain as aspiration yet to be attained. It has been argued that where the human rights are entrenched in a written constitution, they are called Fundamental Rights. This position received judicial assent in Ransome Kuti and ors. V.A.G. Federation 49
In addition, Fundamental rights are those species of human rights which have been recognized and incorporated into the constitution of any nation. However, in view of this constitutional incorporation, Nigerian Jurists have drawn a line of difference between “human rights” and “Fundamental rights”. In Uzoukwu & ors v. Ezeonu II & Ors.50 The court of Appeal (per Nasir P.C.A) said
Due to the development of constitutional Law in this field distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’. It may be recalled that human rights were derived from and out of the wider concept of national rights. They are rights which every civilized society must accept as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration, it was in respect of ‘Human Rights’ as it was envisaged that certain Rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law. Fundamental Rights remain in the realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country
Niki Tobi, JCA(as he then was) as he then was has opined that human rights are more of an International concept while Fundamental rights are more of a municipal or domestic concept. According to his Lordship, the rights are either designated as human rights or Fundamental rights.
2.2.5 Evolution of Human Right
As social phenomenon, human rights have their origin in antiquity. In exchange, as legal phenomenon, human rights have been originated by the natural law doctrine, starting from the idea that humans, by their own nature, anywhere and anytime have rights that are previous and primary to the ones assigned by the society and admitted by the natural law. In other words, this is a superior right in relation to the expression of State’s will in various forms of its existence and unconditioned by the interests that the state might have in a moment of its historical evolution.
The concept of Human Rights has its history in the natural law school. Although have been commonly called different names at different times in history such as divine rights, natural rights, natural Justice, moral rights, human rights, democratic freedoms, constitutional Rights, civil liberties and so on. Thus Professor Maurice Cranston defines human rights as a “twentieth century” name for what has been traditionally known as natural rights or in more exhilarating phrase rights of man. F. E. Dowric went further to assert that natural rights are the more appropriate words for natural law. Fundamental rights, natural justice or natural rights started as a part of natural law.
Its principles were first formulated by Greek and Roman Philosophers of the stoic school, theologians and others through the ages. The Ancient Greek thinkers conceive natural law as a body of imperative rules imposed upon mankind by nature.
These philosophers and theologians were of the view that the world or universe was governed by law; divine law and positive law. They posited that positive law, that is manmade law, applied to given city or state, while divine law or natural law which includes natural rights applied to everybody everywhere in the world, that is, to the people of every country. They posited that natural law, which includes all the principles of natural justice, was apparent to the eye of reason.
Describing the universality and superiority of natural law, natural justice or human rights to positive law or manmade law Cicero said.
It is for universal application, unchangeable and everlasting… it is a sin to try to alter this law, nor is it allowable to try to repeal any part of it and it is impossible to abolish it entirely.
Natural rights continued to develop through the centuries with jurists, scholars, statesmen and others lending support to it, and with the advent of political systems, constitutions and modern government, natural rights or human rights were enshrined in constitutions in order to give them constitutional protection and constitutional force as Fundamental Rights.
Locke led the English puritan revolution of 1688 – 1689. This revolution and resulting bill of rights provided a rationale for the wave of revolutionary agitation that swept America and France. Both countries borrowed largely from English experience and thought, especially as embodies in the writings of Locke, and in the case of America, Coke’s commentary on Magna Carta and Blackstone’s commentaries (1765). After excessive taxation by the English crown without their consent, the American colonies united against the crown and seceded from the British Empire. They successfully established a Republic which was founded on the view that the authority of the government derived from the people, not the king. Thomas Jefferson, who had studied Locke and Montesquieu and who asserted that this country men were a “free people claiming their rights as derived from the laws of nature and not as the gift of their government”, gave poetic – eloquence to the theory of social contract in the Declaration of independence proclaimed by the thirteen American colonies on July 4, 1776:
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 powers from 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 to abolish it and to institute new government.
In spite of this pious declaration, the constitution of America as adopted in 1989 did not contain Fundamental Rights provisions. The bill of rights was incorporated into the constitution in 1791 in the form of the first ten amendments.
The French people followed such in 1789 when the representatives of the people assembled in the National Assembly, dispensed with the king, took control of the state and assumed – sovereignty. They considered that ignorance, neglect or contempt of human rights, are the causes of public misfortunes and corruption in Government and resolved to set forth in a solemn declaration these natural, imprescriptibly and inalienable rights.
It was the outbreak of the second world war provoked by a state imbued with the aggressive will for the domination of the world coupled with ruthless denial of human rights, that strengthened the conviction that the international recognition and protection of human rights was in accordance not only with an enlightened conception of the objects of international law but also with an essential requirement of international peace, for regimes that deny these rights often go further to seek foreign domination and pursue belligerent foreign Policy. Adolph Hitter perpetrated atrocities against hundreds of thousands of individuals and groups and subsequently exterminated more than six million Jews based on conceived inferiority of some human beings, hence their elimination by the supposedly superior race. Shocked by these acts, the International community came to realize that human rights could no longer be left to domestic jurisdiction. Furthermore, with the dropping of the atomic bomb in the cities of Hiroshima and Nagasaki came, the prospects of the end of mankind. It is then obvious that it is only when human rights are respected that democracy will be secure, and the chances of war will be remote.
The term “human rights” appeared in the public domain for the first time in the years 1942 to 1944 in the course of internal policy discussions in the United States on the subject of the principles on which the post-war organization would be based. The expression became an everyday parlance only after the Second World War and the founding of the United Nations in 1945. It replaces the phrase ‘natural rights’ which fell into disfavour in part because the concept of natural law to which it was linked had become a subject of great controversy and the later phrase, the rights of man was universally understood to include the rights of women.
The Charter of the United Nations (1945) begins by reaffirming
faith in fundamental human rights, in the dignity and worth of the human or persons, in the equal rights of men and women and of nations large and small”. It states that the purpose of the United Nations are among other things, “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples (and) to achieve international co-operation in promoting and encouraging freedoms for all without destination as to role, sex, language or religion”. And all members ‘pledge themselves to take joint and separate action in co-operation with the organization for the achievement of these and related end
Never the less attempts to include a Bill of Rights in the Charter failed. Rather it was agreed that a Bill of Rights would be subsequently considered for adoption.
Recognition of human rights received its greatest impetus on 10th December, 1948, when the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. The prayer of Thomas Paine was thus heard. In dedicating the Rights of man to George Washington, Paine had prayed…. “that the rights of man may become as universal as your benevolence may wish and that you may enjoy the happiness of seeing the New world regenerate the old… though the Universal Declaration of Human Rights did not, at the time it was adopted, impose any legal aspiration to which member states strive to attain
It took the world eighteen more years after the Universal Declarations to prepare and adopt other bills of right ideological and political differences – human rights versus national sovereignty individual liberty versus communal needs – prevented a consensus. The dispute revolved around the question: whether economic social and cultural interest should be recognized as rights at par with the civil and political rights.
The capitalist countries – the United States of America and her allies – were opposed to the uplifting of the status of economic social and cultural rights, to a position of equality with the civil and political rights. The communist countries – the former Soviet Union and her allies – held contrary position, and were supported by the newly independent states from the third world. To resolve the statement, the drafters agreed to prepare two covenants, one dealing with civil and political rights, while the other one would deal with economic, social and cultural rights, giving states the option to ratify either or both of them.
Consequently, on 16th December, 1966, the international covenant on Economic, social and cultural Rights and the International covenant on civil and political Rights were adopted. The peculiar aspect of the African, Charter on Human and peoples’ Rights is the inclusion of peoples’ rights in this document. This indicates a major departure from the traditional format adopted by most international instruments on human rights document in which the term ‘peoples’ as applied in connection with rights. As far back as 1990, the decree of the French constituent Assembly made reference to both rights of man and rights of peoples.
2.2.6 Classification of Rights
Human rights are classified into three generations based on the rights recognized in a given era. These classification are civil and political rights; social, economic and cultural rights and solidarity right. The distinction between these sets of rights follows the historical struggle for them51, the appearance of the separate international instruments that protect them, the philosophical arguments concerning their status, and the methodological issues surrounding their measurement52
220.127.116.11Civil and Political Rights:
These are also referred to as the first generation of human right. It relates to those rights that affect the citizens’ civil and political rights. These are the rights that western bloc claimed to be prioritized during the cold war53. These rights uphold the sanctity of the individual before the law and guarantee his or her ability to participate freely in civil, economic, and political society. When protected, civil rights guarantee one’s ‘personhood’ and freedom from state-sanctioned interference or violence. Political rights include such rights as the right to speech and expression; the rights to assembly and association; and the right to vote and political participation. Political rights thus guarantee individual rights to involvement in public affairs and the affairs of state. In many ways, both historically and theoretically, civil and political rights have been considered fundamental human rights for which all nation states have a duty and responsibility to uphold54. These rights are also described as negative rights which requires the government to refrain from doing an act.
These rights are contained in the Universal Declaration of Human Right of 1948. Articles 2 to 21 of the Declaration deal with those civil and political rights, which have been generally recognized throughout the world. These are as follows:
- Right to life, liberty and security of persons55
- Freedom from slavery or servitude56
- Prohibition against torture, inhuman or degrading treatment or punishment57
- Recognition as a person before the law58
- Equality before the law and equal protection of the law without any discrimination59
- Effective remedy before the national tribunals 60
- Freedom from arbitrary arrest, detention or exile61
- Right to a fair and public hearing by an independent and impartial tribunal62
- Presumption of innocence until proved guilty in a public trial with all guarantees necessary for defence in criminal cases63
- Freedom from ex-post facto laws64
- Right to privacy, family, home and correspondence65
- Right to freedom of movement and residence within the borders of a State66
- Right to leave any country, including his own and to return to his country67
- Right to seek and to enjoy in other countries asylum from persecution68
- Right to a nationality69
- Right to marry and to found a family70
- Right to own property71
- Right to freedom of thought, conscience and religion72
- Right to freedom of opinion and expression73
The Covenant on Civil and Political Rights which was adopted in 1966 came about as the solution that drafters of the UN charter resolved to adopt in view of the war between the Western Bloc and the Eastern Bloc as regards civil and political rights and social, economic and cultural rights. The Covenant consists of 53 Articles divided into six parts. Article 1 which refers to the right of peoples to self determination states that all people have the right to determine freely their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resource without prejudice to any obligations arising out of international economic co-operation, based upon the principles of mutual benefit and international law. The Article, further states that in no case may a person be deprived of his own means of subsistence, and that the ‘States Parties’ shall promote the realization of the right of self determination and shall respect that right.
Part Ill deals with the specific rights of the individuals and the obligations of the States Parties.
- The right to life (Article 6)
- Freedom from inhuman: or degrading treatment (Article 7)
- Freedom from slavery, servitude and forced labour (Article 8)
- Right to liberty and security (Article 9)
- Right of a detainee to be treated with humanity (Article 10)
- Freedom from imprisonment for inability to fulfill a contractual obligation (Article 11)
- Freedom of movement and the right to choose one’s residence (Article 12)
- Freedom of aliens from arbitrary expulsion (Article 13)
- Right to a fair trial (Article 14)
- Non-retroactive application of criminal law (Article 15)
- Right to recognition as a person before the law (Article 16)
- Right to privacy, family, home or correspondence (Article 17)
- Freedom of thought, conscience and religion (Article 18)
- Freedom of opinion and expression (Article 19)
- Prohibition of propaganda of war (Article 20)
- Right to peaceful assembly ( Article 21)
- Freedom of association (Article 22)
- Right to marry and found a family (Article 23)
- Rights of the child (Article 24)
- Right to take part in the conduct of public affair, to vote and to be elected (Article 25)
- Equality before the law (Article 26)
- Rights of minorities (Article 27)
18.104.22.168Social, Economic and Rights
These rights are also regarded as the second generation of Human Right Social and economic rights include such rights as the right to a family; the right to education; the right to health and well being; the right to work and fair remuneration; the right to form trade unions and free associations; the right to leisure time; and the right to social security. When protected, these rights help promote individual flourishing, social and economic development, and self-esteem. Cultural rights, on the other hand, include such rights as the right to the benefits of culture; the right to indigenous land, rituals, and shared cultural practices; and the right to speak one’s own language and ‘mother tongue’ education. Cultural rights are meant to maintain and promote sub-national cultural affiliations and collective identities, and protect minority communities against the incursions of national assimilationist and nation-building projects. In contrast to the first set of rights, this second set of social, economic, and cultural rights is often seen as an aspirational and programmatic set of rights that national governments ought to strive to achieve through progressive implementation. They have thus been considered less fundamental than the first set of rights and are seen as ‘positive’ rights whose realization depends heavily on the fiscal capacity of states74. These are regarded as positive rights that require the government to perform an act unlike positive rights.
Articles 22 to 27 of the Declaration guarantee the following economic and social rights:
- Right to social security75
- Right to work and free choice of employment76
- Right to rest and leisure77
- Right to a standard of living adequate for the health of himself and of his family78
- Right to education79
- Right to participate in cultural life80
- Right to good social and international order81
Similarly, The International Covenant on Economic, Social and Cultural Rights consists of 31 Articles divided into five parts. Part I deals with rights of peoples to self-determination as provided in Article I of the Covenant on Civil and Political Rights.
Other rights of the individuals are enumerated in Part Ill of the Covenant which include the following:
- Right to work (Article 6)
- Right to just and favourable conditions of work (Article 7)
- Right to form and join trade unions (Article 8)
- Right to social security (Article 9)
- Right relating to motherhood and childhood, marriage and the family
- (Article 10)
- Right to adequate food, clothing, housing and standard of living and freedom from hunger (Article 11)
- Right to physical and mental health (Article 12)
- Right to education including a plan for implementing compulsory primary education (Article 13)
- Right relating to science and culture (Article 14)
These rights are also termed third generation of human rights. The political sociology of human rights argues that historical struggles by oppressed groups have yielded a greater degree of protection for larger sets of individuals and groups whose rights have not always been guaranteed while the state itself, in attempt to construct a national identity and fortify its capacity to govern, has extended various rights protections to increasingly larger sectors of society82.
Solidarity rights, which include rights to public goods such as development and the environment, seek to guarantee that all individuals and groups have the right to share in the benefits of the earth’s natural resources, as well as those goods and products that are made through processes of economic growth, expansion, and innovation. Many of these rights are transnational in that they make claims against wealthy nations to redistribute wealth to poor nations, cancel or reduce international debt obligations, pay compensation for past imperial and colonial adventures, reduce environmental degradation, and help promote policies for sustainable development. Of the three sets of rights, this final set is the newest and most progressive and reflects a certain reaction against the worst effects of globalization, as well as the relative effectiveness of ‘green’ political ideology and social mobilization around concerns for the health of the planet. It is not expressly contained in the Universal Declaration on Human Rights or in the two progenies to the Declaration. They are products of the rise and decline of the Nation – state in the last half of the twentieth century foreshadowed in Article 28 of the Universal Declaration of Human Rights which proclaims that “everyone is entitled to a social and International order in which the rights set forth in this Declaration can be fully realized, some of these rights reflect the emergence of third world nationalism and its demand for a global redistribution of power, wealth and other important values. It is however contained in some regional instrument such as the African Charter on Human and Peoples Rights.
According to Donnelly83, significant sections of the human rights community have challenged these traditional distinctions between ‘generations’ of human rights and have sought to establish the general claim that all rights are indivisible and mutually reinforcing, a sentiment that found formal expression in the 1993 Vienna Declaration and Programme of Action84; Such a challenge suggests that it is impossible to talk about certain sets of human rights in isolation, since the protection of one right may be highly contingent on the protection of other rights. For example, full protection of the right to vote is largely meaningless in societies that do not have adequate health, education, and social welfare provision, since high rates of illiteracy and poverty may mean the de facto disenfranchisement of large sectors of the population. In another instance, Huggins85 stated that those interested in combating torture need to examine possible underlying socio-economic, cultural, and organizational reasons for the practice of torture, which themselves may rely on the variable protection of other human rights.
Another response to the traditional division between positive and negative human rights is to view them has having positive and negative dimensions, the full delineation of which is essential for human rights measurement86. By claiming that all rights are positive, we may lose sight of significant negative characteristics of human rights. While it is clearly possible above to see how civil and political rights have positive characteristics (i.e. the provision of well-funded judiciaries, training and education programmes, and well-developed infrastructure), it is equally possible to see how economic and social rights have significant negative characteristics. For example, just like torture by the state is seen as preventable if only the state refrained from torturing, discrimination in public education and healthcare is equally preventable if only the state refrained from so discriminating. In this way, it is equally possible to have a ‘violations approach’87 to studying the promotion and protection of economic, social, and cultural rights as it is to studying the promotion and protection of civil and political rights.
2.2.7 Executive Arm of Government
The separation of powers system is designed to distribute authority among several branches — an attempt to preserve individual liberty in response to tyrannical leadership throughout history. Under this theory of separation of power, the powers existing in any given State is to be shared amongst the three branches of government viz. the Executive, Legislature and the Judiciary. Their separate powers and responsibilities is usually specified in the written laws of each State so as to prevent the usurpation of the powers of one organ by the other.
The Executive Organ of government is the part of the government that has its authority and responsibility for the daily administration of the state. The executive branch executes, or enforces the law.
The executive officer is not supposed to make laws (the role of the legislature88) or interpret them (the role of the judiciary89). The role of the executive is to enforce the law as written by the legislature and interpreted by the judiciary.
In a presidential system the leader of the executive branch is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president.
The branch of federal and state government that is broadly responsible for implementing, supporting, and enforcing the laws made by the legislative branch and interpreted by the judicial branch. At the state level, the executive includes governors and their staffs. At the federal level, the executive includes the president, the vice president, staffs of appointed advisers (including the cabinet ), and a variety of departments and agencies, The executive branch also proposes a great deal of legislation to the legislature and appoints federal judges, including justices of the Supreme Court. Although the executive branch guides the nation’s domestic and foreign policies, the system of checks and balances works to limit its power. 91
2.2.8 Meaning and Origin of Police Force
It is important to distinguish between the ideas of ‘police’ and ‘policing’. ‘Police’ refer to a particular kind of social institution, while ‘policing’ implies a set of processes with specific social functions. The word police comes from the Latin word Politia, which means “civil administration”. The word ‘politia’ goes back to the Greek word polis, or “city”. Etymologically, therefore, the police can be seen as those involved in the administration of a city. Politia became the French word police. The English took it over and at first continued to use it to mean civil administration. The specific application of police to the administration of public order emerged in France in the early 18th century. The first body of public order officers to be named police in England was the marine police, a force established in 1798 to protect merchandise in the port of London. It is worthy of note that the reference to the police as a “civil authority” is very important. The police represent the civil power of government as opposed to the military power.
According to Black’s Law Dictionary, Police is a branch or department of the government which is charged with the preservation of public order and tranquillity, enforcement of laws, promotion of public health, safety and morals, prevention, detention and prosecution of offenders92.
The police is an organization of persons who are employed by the State and charged with the primary function of maintaining law and order and protecting the lives and properties of the citizens. They described in different names in different States of the World but despite the designation which they take up, their role in maintaining law and order is the common denominator in all these societies.
American policing as well as policing in other parts of the world especially countries that were at one point in time or the other under the colonial prong of the Britain have been heavily influenced by the English system throughout the course of history. In the early stages of development in both England and Colonial America, citizens were responsible for law enforcement in their communities. The English referred to this as kin police in which people were responsible for watching out for their relatives or kin. In Colonial America, a watch system consisting of citizen volunteers (usually men) was in place until the mid-19th century.93 Citizens that were part of watch groups provided social services, including lighting street lamps, running soup kitchens, recovering lost children, capturing runaway animals, and a variety of other services; their involvement in crime control activities at this time was minimal at best.4 Policing in England and Colonial America was largely ineffective, as it was based on a volunteer system and their method of patrol was both disorganized and sporadic.94
Sometime later, the responsibility of enforcing laws shifted from individual citizen volunteers to groups of men living within the community; this was referred to as the frankpledge system in England. The frankpledge system was a semi-structured system in which groups of men were responsible for enforcing the law. Men living within a community would form groups of 10 called tythings (or tithings); 10 tythings were then grouped into hundreds, and then hundreds were grouped into shires (similar to counties). A person called the shire reeve (sheriff) was then chosen to be in charge of each shire. The individual members of tythings were responsible for capturing criminals and bringing them to court, while shire reeves were responsible for providing a number of services, including the oversight of the activities conducted by the tythings in their shire.
A similar system existed in America during this time in which constables, sheriffs, and citizen-based watch groups were responsible for policing in the colonies. Sheriffs were responsible for catching criminals, working with the courts, and collecting taxes; law enforcement was not a top priority for sheriffs, as they could make more money by collecting taxes within the community.95 Night watch groups in Colonial America, as well as day watch groups that were added at a later time, were largely ineffective; instead of controlling crime in their community, some members of the watch groups would sleep and/or socialize while they were on duty. These citizen-based watch groups were not equipped to deal with the increasing social unrest and rioting that were beginning to occur in both England and Colonial America in the late 1700s through the early 1800s. It was at this point in time that publicly funded police departments began to emerge across both England and Colonial America.
In 1829, Sir Robert Peel (Home Secretary of England) introduced the Bill for Improving the Police in and Near the Metropolis (Metropolitan Police Act) to Parliament with the goal of creating a police force to manage the social conflict resulting from rapid urbanization and industrialization taking place in the city of London.13 Peel’s efforts resulted in the creation of the London Metropolitan Police on September 29, 1829.96 Historians and scholars alike identify the London Metropolitan Police as the first modern police department.97 Sir Robert Peel is often referred to as the father of modern policing, as he played an integral role in the creation of this department, as well as several basic principles that would later guide the formation of police departments in the United States and other parts of the globe. Past and current police officers working in the London Metropolitan Police Department are often referred to as bobbies or peelers as a way to honor the efforts of Sir Robert Peel.98
Peel believed that the function of the London Metropolitan Police should focus primarily on crime prevention—that is, preventing crime from occurring instead of detecting it after it had occurred. To do this, the police would have to work in a coordinated and centralized manner, provide coverage across large designated beat areas, and also be available to the public both night and day.99 It was also during this time that preventive patrol first emerged as a way to potentially deter criminal activity. The idea was that citizens would think twice about committing crimes if they noticed a strong police presence in their community. This approach to policing would be vastly different from the early watch groups that patrolled the streets in an unorganized and erratic manner. Watch groups prior to the creation of the London Metropolitan Police were not viewed as an effective or legitimate source of protection by the public.
It was important to Sir Robert Peel that the newly created London Metropolitan Police Department be viewed as a legitimate organization in the eyes of the public, unlike the earlier watch groups.100To facilitate this legitimation, Peel identified several principles that he believed would lead to credibility with citizens including that the police must be under government control, have a military-like organizational structure, and have a central headquarters that was located in an area that was easily accessible to the public.He also thought that the quality of men that were chosen to be police officers would further contribute to the organization’s legitimacy. For example, he believed that men who were even tempered and reserved and that could employ the appropriate type of discipline to citizens would make the best police officers.It was also important to Peel that his men wear appropriate uniforms, display numbers (badge numbers) so that citizens could easily identify them, not carry firearms, and receive appropriate training in order to be effective at their work.
Peel’s early police were guided by the following nine principles:
- The basic mission for which the police exist is to prevent crime and disorder.
- The ability of the police to perform their duties is dependent upon public approach of police actions.
- Police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.
- The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
- Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.
- Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.
- Police at all times should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interest of community welfare and existence.
- Police should always direct their action strictly towards their function and never appear to using the power of the judiciary.
- The test of police efficiency is the absence of crime and disorder not the visible evidence of police action in dealing with it.
Many of these ideologies were also adopted by American police agencies and those of other parts of the globe during this time period and remain in place in some contemporary police agencies across the World. It is important to note that recently, there has been some debate about whether Peel really espoused the previously mentioned ideologies or principles or if they are the result of various interpretations (or misinterpretations) of the history of English policing.
2.3 Empirical Framework
Based on a study conducted by Folashade 101 on the nature of abuse by the Nigerian Police, the following have been observed.
From the study, it was discovered that human rights violation exist and manifests in different dimensions. It was found that majority of the respondents (public) who suffer more from the violations of their human rights have a high proportion of males compared to females and most were within the age bracket of 30 and above. Most of those who have been victims of police human rights abuse are low income earners.
Nature of Human Right Abuse
The prevalence of human rights abuse among the police is high as attested to by 52% (254) of the respondents. About 46% (221) are of the view that human rights abuse is on the average, while 2% (11) stated that human rights abuse among the police is low. We can therefore conclude that roughly 98% (475) of the respondents opined to the fact that human rights abuse by the police to the public ranges from average to high.
Common pattern of police abuse was also explored. This is shown in Table 1.
Table 1: Common Patterns of Police Abuse of Human Rights in Nigeria
|Abuse of power||20||4.1|
|All of the abuse||84||17.3|
From Table 1, we can deduce that the most common pattern of abuse by the police are extortion, unlawful detention, verbal abuse, torture and police brutality. Also, respondents were asked if they ever witness police human rights abuse. It was found that 61% (296) witnessed police abuse; 22% (109) did not witness while 17% (81) of the respondents did not respond. We can say that more respondents had observed or witness police abuse of human rights abuse. .
Furthermore, of the 61% (296) who witnessed police abuse, 95% (281) of the respondents were actual victims of police human rights abuse, only 5% (15) are not victims.
In view of this, victims were asked to state the type of torture they went through while in police custody. This is shown in Table 2.
Table 2: Types of Torture Suffered by Victims of the Police Abuse
|Type of Torture||Frequency||Percentage (%)|
Findings reveal that majority of the victims were physically abuse by the police. The abuse ranges from flogging, shooting on the leg to extract information, burning with cigarette, inserting broom stick or matches stick and lit up to burn the head cap of the penis all in the bid to extract information, electric shock, the use of hot iron, indiscriminate spray of cells with tear gas where these victims are locked. These inflict different wounds on their victims. All these attitudes in a way portray some of the police as monsters in the eyes of the public, victims and relations of victims. This attitude is not new as it has become a common site in police stations.
It was found that out of the 281victims of police human rights abuse, 47% (132) were paid compensation, while 53% (149) of the victims were not paid any compensation. From this we can say that whether victim of police human rights abuse will be compensated or not is discretionary and many factors also come into play. The question that readily comes to mind is what qualifies a victim to be paid compensation?
From the in-depth interview, it was gathered from key informants (victims) that: Most suspects were restricted and denied access to their relations, friends or their legal counsel. Victims suffer unlawful arrests and detentions for more than 24 hours contrary to the law. Also, maltreatment, gagging, use of gun butts, cutlasses, cod gets, knife – cutting on the legs and stamping on the wounds with their heavy boots, chaining, hand cuffing, use of hot iron and planks are some of the weapons used against detainees to force them to cooperate, succumb and accept stories or events which they never participated or were aware of.
Furthermore, according to the victims, detainees were not only physically abused, but were verbally violated also. Some of the abusive and derogatory words used against alleged offenders were evil criminal, bloody bastard, bloody idiot, dangerous criminal, stubborn he goat, potential devil, saboteur, bad story and bad omen, ring leader etc.
Public Assessment of Police Record
As regards the police human rights record, 77% (377) of the respondents are of the view that their record is bad; while only 22% (109) stressed that police record is good. Having majority attesting to the fact that police human rights record is bad invariably affect the way public assess police force. Follow up question is the public rating of police relation in the community. It was found that 36% (175) rated the relationship to be fair/average; 12% (59) pointed out that the relationship is satisfactory/good; while the majority of respondents 52% (252) rated police relation in the community to be bad/poor. Human rights abuse by police has led to the negative perception from the public. Findings reveal that 73% (356) of the respondents agree to the fact that human rights abuse of the police has negative perception from the public. About 27% (130) did not believe that human rights abuse by police has any negative perception from the public. We can conclude that human rights abuse by the police has greatly affected the negative perception of the public. Worthy of note is the fact that there are police officers who are committed to their work, but the bad eggs among them have operated for so long that the influence of the good officers are not notice because of the constant human rights abuse suffer by Nigerians.
Factors Responsible for the Abuse
It was found that several factors are responsible for human rights abuse by the police personnel in Nigeria. This is shown in Table 3.
Table 3: Factors Associated with Police Human Rights Abuse
|Length of military rule||82||16.9|
|Historical development of police||79||16.3|
|Lack of professionalism||11||2.3|
|Lack of citizens awareness||54||11.1|
|Poor handling of cases in courts||15||3.1|
|No punitive measure for erring officer||29||5.9|
|Disregard for the rule of law||26||5.3|
From Table 3 above, findings indicate that the most common f actors mentioned by respondents are poor training, poor remuneration, historical development of the police, lack of citizens’ awareness of their rights, corruption, frustration, no punitive measure for erring officer and disregard to the rule of law. This is also supported by the in depth interviews conducted. Inadequate training, corruption, indiscipline and poor remuneration are factors responsible for flagrant human rights abuse by police personnel.
2.4 Summary of Gap in Knowledge
From the totality of the thought and postulations of different writers, one thing is evident: Human Right is the right that inheres in a person by virtue of his humanity and belonging to the class of mankind. These rights are inalienable and pre-exist written constitutions. Fundamental rights on the other hand are those rights which are specifically recognized by the written laws of a given society as those rights which a State is willing to observe and enforce. Abuse of human rights which take several forms is the infraction on these rights which are recognized by any given society and for which a means of redress is available. Various writers are also in agreement that the police is not living up to its expectation in the protection of human right which is one of the duties for which they are charged. They are also seen as not observing these human rights in the discharge of their functions. However, the extant literature has not covered the field as regards the forms of these human right abuses by the police and the remote causes of such abuse.
This research work goes further by consolidating on the works of previous authors by bringing together in one work the requisite for the protection of human right in any given society, the forms of human rights abuse by the police, the remote causes of these abuse and reasoned recommendations to promote a community based policing that promote and observe the human rights of the citizens that it is charged to protect. It is within this sphere that this research work finds utility.