The term ‘right’ is drawn from the Latin word ‘rectus’ which refers to a valid and justifiable claim over something, or the power or privilege to do or not to do a certain thing. Having a right imposes a duty on another person or the society in general, to respect and protect that right, acting in such a way that the right may be fully exercised.
A right may be guaranteed to an individual by the law of the land such as where the constitution of a country guarantees the right to vote or may be guaranteed by a promise such as where a person promises to give another a certain sum of money. In these scenarios, the entitlement to such rights is reliant on the decisions or choices of institutions and individuals.
There are however some rights possessed by individuals that do not depend on the decision of an individual to grant that right but possessed by the very fact that one is a human being. These are referred to as Human rights.
Human rights, a term brought into widespread use by Eleanor Roosevelt, refer to those rights which are possessed by every individual by virtue of the fact that they are human beings. It is referred to as the ‘birth right of mankind’ in the sense that as far as you are a human being, you possess these rights and these rights can never be stripped away. To attempt to take away these rights from an individual would mean stripping away one’s humanity and as it is impossible to cease to be a human, it is impossible to cease to possess these rights.
The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as, “Rights derived from the inherent dignity of the human person.” It is important to note that human rights are ultimately moral entitlements. Having the right to life essentially means that it would be morally wrong for another to deprive you of your life.
Unlike other moral claims, human rights agreeably do not need some form of legal backing as there are certain aspects of our life which form the core of our existence without which we lose our essence (value of life) and human dignity. However, in order to ensure that these human rights are enforceable, laws are made to recognize and protect those social, cultural, political, civil and economic rights which are considered inviolable to a significant human existence.
Falana opines that fundamental rights are generally regarded as those aspects of human rights which have been recognized and entrenched in the Constitution of a country. This theory is supported by the case of Ransome-Kuti v Attorney General of the Federation where the Supreme Court recognized a fundamental right as a right which is inherent in human beings, supersedes ordinary laws of society and has been in existence before political society. Nike Tobi, JCA argues that human rights refer to an International concept while a Fundamental right is a domestic concept.
Nature of Human Rights
There are various disputes between scholars as to the exact nature or characteristics of human rights or as to what rights can be classified as human rights. For example, Buchanan argued that ‘universal moral rights’ did not constitute human rights.
However, the advent of the Universal Declaration of Human Rights in 1948 has provided some compelling principles on the nature of rights. These principles are said to be compelling and practically unquestionable today as though the UDHR is not legally binding, copious international binding instruments or treaties (such as the International Covenant on Civil and Political Rights (ICCPR) 1966) as well as domestic legal instruments (such as the 1999 Constitution of Nigeria) have incorporated its principles. These principles include:
- Human rights are universal
- It does not discriminate and are equal
- They are indivisible
- Human rights are interrelated and interdependent
- They are inalienable
- They are not absolute
- It create both rights and obligations
Evolution of Human Rights in Nigeria
Just as the concept, nature and substance of human rights have developed on a global scale, human rights in Nigeria have also undergone massive growth through various historic events. It is pertinent to note that the present day position and guarantee of human rights in Nigeria is mainly as a result of colonialism, however, we must also note that human rights existed in the country before the advent of the British colony, though on a smaller and less defined scale.
During the pre-colonial era, there existed a variety of tribes which governed themselves separately without any form of a central union. As such, the rights recognized and granted to individuals in Nigerian societies were based off the cultural beliefs and norms of each tribe. Many of the rights protected during this period included the right to family and kinship, the right to own and protect property, right to freedom of expression and association.
Read also: Governor’s Consent in Land Matters
Nonetheless, there were still many human right abuses present during this period. There was the Osu caste system which discriminated against and secluded members of a certain part of Igbo land, human sacrifices, superstitious killings of twins in Yoruba land and many more.
The coming of the British Empire imposed British values and norms as well as subjected the societies to social, economic and political domination. Its imposition of its own values served to strip away the cultural beliefs and values of the natives of the land. It is argued that the very nature of colonialism was discriminatory and repressive and thus a derogation of fundamental human rights.
In the words of Read “colonial rule was essentially authoritarian and even the introduction of English law as the basis for local legal systems did not result in the colonial subjects enjoying the full rights of liberty, due process, free speech and the rest which the common law is said to guarantee to the Englishman himself.”
Several human rights were disregarded by the colonial masters. For example, miners were denied the right of trade unions to strike; the powers of traditional rulers were undermined and destroyed creating instead a single authority in the Chiefs who had no checks or limitations on their powers.
Nonetheless, it was not till 1960 when Nigeria gained independence and established its very first constitution that the modern concept of human rights was established in the country. The subsequent Constitution of 1963 which established Nigeria as a Republic and the 1979 Constitution also recognized and safeguarded the human rights of its citizens. These Constitutions were laudable as they safeguarded many of the civil and political rights guaranteed by other countries and international bodies at the time.
Despite the commendable effort of these constitutions in safeguarding the fundamental rights of Nigerians, the country still faced several setbacks in the preservation of these rights most especially during the military takeovers.
During such military regimes, the constitutions were suspended and the fundamental rights and freedoms of citizens along with it. This led to several and large-scale violations of human rights which reached its peak between 1994 and 1998.
Derogation of Human Rights: Emergency Situations
There are certain periods in time where a country by reason of unexpected, unavoidable and extraordinary events may be faced with a state of chaos which threatens to endanger the lives of all its citizens or the entire security of the country. This is referred to as emergency situations.
These situations usually call for swift responses which normally involve limitations or restrictions on the fundamental rights and liberties of its citizens to the extent and period of time that is necessary to curtail and control the security of the country. For example, in April 2021, there were several clashes between two tribes in the Red Sea State in Sudan which resulted in deaths and serious injuries. As a response, Sudan declared a state of emergency in some parts of the State and imposed a night curfew in order to ensure the safety of its people.
It became apparent to the international community the necessity for the restriction of certain human rights by governments in these times of emergency. As such, it established several conventions and covenants which seek to define those situations which would justify as the temporary derogation of human rights and govern exactly how and what to extent those rights may be restricted.
Read also: Canada Travel Health Insurance
For example, the European Convention of Human Rights (ECHR) grants governments the ability to derogate from human rights provisions in exceptional circumstances such as “war time or other public emergencies which threaten the life of the country.”
Although it failed to define what would constitute wartime, the European Court of Human Rights has in Lawless v Ireland, provided that “other public emergencies include a danger or crisis which is imminent or present, exceptional, affects the entire population as against a select few and forms a threat to the organized life of the community”.
Furthermore, the ICCPR permits the derogation of certain human rights provisions in times of public emergencies which threaten the life of the nation. A similar provision is contained in the American Convention on Human Rights which permit such derogations in war time or other public emergencies which threaten the country’s independence or security. It is important to note that the African Charter does not have provisions which permit the derogation of human rights.
It is pertinent to state that despite these derogation powers, there are certain human rights which no matter the circumstance affecting the nation cannot be restricted or suspended. These human rights are considered so basic and crucial, forming the very essence of humanity that to restrict or suspend them would be a mockery to the rule of law and dignity of person.
It is also argued that the suspension of such rights could not possibly aid the government in controlling whatever events which led to the declaration of the state of emergency and as such will be unnecessary.
According to the ICCPR, fundamental rights which may never be restricted or derogated even in the gravest of emergencies include, “the right to life, prohibition of torture, prohibition of slavery, prohibition of retroactive laws, prohibition of imprisonment for non-fulfilment of contractual obligations, the right to be recognized as a person in front of the law and freedom of thought, conscience and religion”
The ACHR has also included the “Rights of the family, child, Right to a nationality, Right to participation in government” as human rights that cannot be derogated.