t is one thing to have fundamental human rights enshrined in a Constitution and it is another for the people to feel the effects. This is more so in developing countries than in developed countries. In Western democracies, there is a responsibility approach on the part of the citizens and the institutions of government to give effect to fundamental
rights. In many developing countries, it remains a perception both on the part of the citizens and institutions. The idea of fundamental rights is not new; it may not be as old as time but it is old enough for people and nations not to take it for granted. In the interplay of the dynamics of society, the people and the leaders comprising the government have to engage in the interaction that manifests the use of fundamental rights. So apt is the statement by Jean-Jacques Rousseau in the social contract that “man’s first law is to watch over his own preservation” it is the reciprocal respect and regard for these fundamental rights by the governed and the government that promotes peace within the polity. The tension that arises due to its disregard is inestimable. According to Thomas Paine in the Rights of Man , “For a nation to love liberty, it is sufficient that she knows it, and to be free, it is sufficient that she wills it.” As far back as 1215, the Great Charter of Freedoms known to history as the Magna Carta establishing certain fundamental rights had already been issued. The Magna Carta required King John of England to proclaim certain rights pertaining to freemen, to respect certain legal procedures, to accept that the will of the King must be bound by law. The Charter explicitly protected certain rights of the King’s subjects whether free or fettered and implicitly supported what became known as the writ of habeas corpus, allowing appeal against unlawful imprisonment. The Charter was arguably the most significant early influence on the rule of constitutional law in the English Speaking World. The Charter in its original form has been amended over time. The 1297 version remains on the statute books of England and Wales.
History shows that man must fight for his rights, left to our own devices, the basic instinct of survival of the fittest takes over. Gareth Peirce, the UK Human Rights Lawyer and activist opines that “inalienable rights exist to be enforced, not avoided or destroyed. ” Hobbes’ state of nature becomes pre-eminent. Life is nasty, short and brutish. In many respects and in many parts of the world, it is fair to say that progress has been made by people fighting for their fundamental rights and making sure that the rights do not just exist in the Constitutions or statute books but life is given to it. Suffice to say however that there is still a long way to go. It is fair to say that in many developing, post colonial nations, these rights retain cosmetic value. One of the most profound and powerful statements of fundamental rights is embedded in the United States declaration of independence where it is stated rather boldly that “we hold these truths to be self evident, that man is entitled to the pursuit of freedom and happiness.” These words are not only powerful, they represent the fundamentals of our being as a people and to the fact that when man realizes the essence of these words, he is lifted above the state of nature and in many ways, society achieves the equilibrium of human co-existence. Inspite of the fact that these statements were made in 1776, history shows that it took several years for man to begin to achieve the essence and value. Two issues that have plagued man and society for generations are fine examples. The subject of sex and racial discrimination.
The subject of sex discrimination is as old as time. There has never been any logic to it. The female gender in society has had to endure centuries of discrimination. Many Constitutions and Statutes today provide for equal rights and it is fair to say that much progress has been made but there is still work to be done. As far back as 400 B.C. the philosopher Socrates had hinted at the essence of the equality of the sexes. In a dialogue with Glaucon in Plato’s republic, when Glaucon praised Socrates saying “like a sculptor, Socrates, you have finished off the leading men in a style of faultless beauty” Socrates retorted “say leading women too Glaucon, for do not suppose that my remarks were intended to apply to all more to men than to women so long as we can find women whose talents are equal to the situation.” Glaucon then said “we expect them to share whatever is to be done only we treat the females as the weaker and males the stronger, is it possible to use animals for the same work if you do not give them the same training and education, if we are to employ the women in the same duties as the men we must give them the same instruction.” Well Glaucon was right in fact but clearly wrong on the substance. It is important to note that women were not for an incredibly long period in history allowed to be educated. The men simply did not allow them to be educated. It was so bad that few that educated themselves had to hide the fact. It is no secret that some of the greatest minds and works of English Literature were by women like Jane Eyre and the Bronte sisters who had to write with Pseudonyms.
Still on the gender issue, Socrates opines finally “you are perfectly right that in almost every employment the one sex is vastly superior to the other. There are many women, no doubt, who are better in many things than many men, but speaking generally, it is as you say, I conclude then, my friend, that none of the occupations which comprehend the ordering of a state belong to woman as woman, nor yet to man as man, but natural gifts are to be found here and there, in both sexes alike and so far as her nature is concerned, the woman is admissible to all pursuits as well as the man, though in all of them the woman is weaker than the man.” The last few words of this passage appear to be a paradox and a contradiction of the essence of Socrates’ polemic. My view however is that by the “woman being weaker than the man”, it can only be referable to the times in which Socrates wrote and perhaps to the physical attributes which is the only logical difference between a man and a woman. Inspite of the powerful lessons of history, it is clear that women must stand up and claim their rights. It is over four hundred years since Queen Elizabeth 1 ruled England. Her reign was for forty years and instrumental in promoting and expanding the power of Britain, and yet women still have to prove themselves several centuries after. Recent history tells us that if given the opportunity, women are equally capable. Inspite of the initial reluctance by the British Conservative party in 1979 to elect Mrs. Thatcher as their leader, who would argue today that Mrs. Thatcher did not leave her stamp of authority as leader of the party and Prime Minister of Great Britain. The importance of action is expressed by an article by Lord Hewart of Bury in the Sunday Times of May 17, 1928. The 1918 Representation of the People’s Act and The Parliament (Qualification of Women) Act 1918 made it legal for women to vote and be voted for and elected to the House of Commons, they were however still excluded from the House of Lords.
A woman, Viscountess Rhondda, a peeress of the United Kingdom in her own right presented a petition to order a writ of summons to parliament to be issued to her . Lord Hewart as Attorney-General was of the opinion that in accordance with the Sex Disqualification (Removal Act) 1919, he would not oppose such an application. According to him “When one looks at the plain words of the Act, at the date of the Act, and at the legislation which had gone before, the conclusion would appear to be irresistible.” The committee for privileges reported in favour of the claim however the matter was again referred to the committee for reconsideration. The House of Lords in the 1922 decided by a majority and advised against the prayer of Viscountess Rhondda’s claim . It is right to state that things have since changed, such is the change that only recently under the labour governments of Tony Blair and Gordon Brown, a woman, Baroness Amos was the leader to the House of Lords. Not only was it a fact that the leader of the House of Lords was a woman but she was black as well. The fact that these rights had long ago been taken seriously by women like Viscountess Rhondda was certainly vital to the position of women in the Lords today.
The Nigeria Federal High Court sitting in Port Harcourt, Rivers State recently gave a landmark judgment affecting the rights of women. An action was brought by one Dr. Priye Iyalla-Amadi who had lost her international passport and had as a result applied to the Nigeria Immigration Service for a replacement. One of the conditions she was given in order to get a new passport was that she should obtain the consent of her husband in writing; she sued the Nigeria Immigration Services. Justice Olotu ruled that the position of the Immigration Service was a violation of Section 42 of the 1999 Constitution and Section 18(3) of the West African Charter on Human Rights of which Nigeria is a signatory. Section 42(1) (a)-(b), the 1999 Constitution provides that: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject: or be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.” The Judge read Section 42 with Section 17 of the 1999 Constitution and held that the argument of the Immigration Service was spurious and amounted to sociological dissertation. These are strong words. The actions of the Immigration Service were plainly discriminatory and unlawful. Section 17(1) & (2)(a)-(b) of the 1999 Constitution provides: “ The State social order is founded on ideals of Freedom, Equality and Justice. In furtherance of the social order – every citizen shall have equality of rights, obligations and opportunities before the law; the sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced.” This decision is a sound and progressive one. Dr. Priye Iyalla-Amadi deserves praise for standing up for her rights and the rights of women and Justice Olotu must be commended for a forthright and progressive approach to the interpretation of the Constitution. Her Ladyship said the policy of the Immigration Service is obnoxious, repugnant and unconstitutional. It was a policy calculated to subjugate women as if they were still in medieval times. She said “this kind of policy has no place in the 21st Century Nigeria.” I could not agree more but to add that the policy should have no place anywhere in the civilized world.
Just like sex discrimination, racial discrimination is a stain on the collective human conscience. The practice over the past five hundred years shows a disregard for philosophical thought on humanity and our collective co-existence. The state policy of the Western nations of Europe and America in the direct and indirect pursuit of race discrimination over such a long period of time makes nonsense of all the deep thought of Socrates, Aristotle, and all the enlightenment philosophies on humanity and human rights. The fine statements contained in the Great Charter of freedoms, the Universal Declaration of Independence (US), the United States Constitution, etc, it appears did not apply to the black people or non-whites. It is a part of history that is unedifying. In the United States, there has been an aggressive drive to give life to fundamental rights. The United States Courts are continuously active in the interpretation of the US Constitution and even though differing interpretative views have been taken by the courts, the goal towards achieving its essence as it affects the people are constantly being pursued. The people themselves have been active in pursing their rights seeking to attain the intention of the Framers of the Constitution. The United States Supreme Court in the landmark decision of Brown v Board of Education of Topeka , overruled their earlier rulings going back to Plessy v Ferguson by declaring that state laws that established separate public schools for black and white students denied black children equal educational opportunities. It was a unanimous decision, an unequivocal statement that racism cannot be part of state policy in any manner and that such a policy violated the equal protection clause of the fourteenth amendment of the United States Constitution. This decision was a fundamental one paving the way for integration and strengthening the force of the civil rights movement.
What must be understood is that, the actualization of this victory by the civil rights movement came after a long struggle over a hundred years of dissent and constructive engagement of the judicial process by the people and organisations. In a memo written by William Rehnquist titled “A Random Thought on the Segregation Cases” he argued “I realize that it is unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues but I think Plessy v Ferguson was right and should be reaffirmed … To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what constitutional rights of the minorities are.” William Rehnquist at the time he wrote this memo was a Law Clerk to Justice Robert H. Jackson in 1952. He was later to serve as a Justice of the Supreme Court and infact Chief Justice of the Supreme Court. In 1986, during his hearings for the position of Chief Justice, he said with regard to the 1952 memo “The bald statement that Plessy was right and should be reaffirmed, was not an accurate reflection of my own views at the time.” The Late Chief Justice William Rehnquist was no doubt a very brilliant man with a fine judicial mind. I have to say with profound respect to him posthumously that when one reads the 1952 memo, it is obvious that Justice Rehnquist’s conclusions are inconsistent with the premise. He stated clearly that he realized that his position was unhumanitarian. If this is the case, it must be against Natural Law. In any event, that is now history, the decision of the United States Supreme Court in Brown’s case provided a solid foundation for race relations in the United States. The courts in the United Kingdom have since the domestication of the European Human Rights Convention vide the Human Rights Act of 1998 been incredibly active in the interpretation of the rights contained therein. In the last twenty years, a body of Human Rights Jurisprudence has grown exponentially.
In A v. Home Secretary . The question before the British House of Lords was whether evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign State whether the complicity of British authorities was admissible in British Courts. Their Lordships answered this question in the negative. Lord Bingham in his speech referred to the authority of Higgs v Minister of National Security where Lord Cooke of Thorndon had described the right not to be subjected to inhuman treatment as a “right inherent in the concept of civilization.” His Lordship said “but the English Common Law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.” Lord Nicholls said emphatically “My Lords, torture is not acceptable.”
The Nigerian Courts have been in recent times instrumental in making sure that fundamental rights are taken seriously. In INEC v Musa Nigerian Supreme Court was faced with interpreting section 40 of the 1999 Constitution. Before 1999, the political space regarding political party participation was limited. Only five political parties were recognized by the Independent National Electoral Commission, in fact, only two parties had any real force in the process of electioneering. The question put before the Supreme Court in this case was whether the Independent National Electoral Commission (INEC) had the Constitutional powers to limit the number of parties participating in the electioneering process? In answering this question, it was imperative for the court to look at sections 40, 221 and 229 of the Constitution and item 14(1) (a – b), 14(2) (a – c), item 15(a – i) of part 1 to the third schedule of the 1999 Constitution. The Court held per Ayoola JSC held that “Political parties are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, politics and programmes. Plurality of parties widens the channel of political discussion and discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and programmes and generally provides the citizen with a choice of forum for participation in governance, whether as a member of a party in government or a party in opposition. Thereby ensuring the reality of government by discussion which democracy is all about in the final analysis. Unduly to restrict the formation of political parties or stifle their growth, ultimately, weakens the democratic culture. However, to leave political parties completely unregulated and unmonitored may eventually make the democratic system so unmanageable as to become a hindrance to progress, national unity, good government and the growth of a healthy democratic culture. Between the two apparent extremes of over-regulation and complete absence of regulation is the need for balanced regulation. In interpreting the provision of the Constitution and enactment relating to the formation, regulation and monitoring of political parties the recognition of the need for balanced regulation is essential.”
In effect, the Court made clear that the right provided in Section 40 of the Constitution that “every person shall be entitled to assembly freely and associate with other persons, and in particular any political party, trade union or any other association for protection of his interest is fundamental to the democratic process. People must be allowed to take part in the representative process. The restriction by INEC was an indirect way of restricting this right. The victory of the appellants opened the political space for other political parties and forty political parties contested the 2003 general elections.
The Nigerian Newspapers specifically the Sunday Punch of October 11, 2009 reported that the Federal Government had stopped its missions abroad from issuing new passports to Messrs Ribadu and El-Rufai, two former government functionaries. The report was that “The Federal Government has stopped its missions abroad from assisting the former Minister of the Federal Capital Territory, Mallam Nasiru El-Rufai and the former Chairman of the Economic and Financial Crimes Commission, Mallam Nuhu Ribadu. They also asked the missions not to assist them to procure new passports anytime they exhaust the leaflets in their current passports. … Meanwhile, a decision has been taken at the highest level not to grant any consular assistance to the duo by all our missions abroad as doing so will further facilitate their tendency to continue to undermine Nigeria’s image abroad.” On the 16th of October 2009, the Nation Newspaper reported that President Yar’Adua had ordered issuance of passports to Messrs El-Rufai and Ribadu. The contents of the report was that “President Umaru Yar’Adua yesterday ordered all Nigerian Missions abroad to issue new passports to a Former Minister of the Federal Capital Territory Administration, Mallam Nasir El-Rufai and a former Chairman of the Economic and Financial Crimes Commission (EFCC) Mallam Nuhu Ribadu. Yar’Adua upheld the sack of the former DG (Director-General) of the NIA and felt bad that El-Rufai and Ribadu were denied new passports on a letter from the ex NIA boss.” It was also reported that one of the affected persons Mr. El-Rufai had sought to petition the United Nations Human Rights Commission .
Irrespective of the person or personalities involved in what may best be referred to as the passport saga, it is startling that such a decision would be taken or be purported to have been taken by any government regarding its citizens. It is a clear abuse of governance. One cannot but agree with the distinguished Professor Chidi Anselm Odinkalu when he states in his article on The Right to a Passport that “This entire episode beggars belief it is impossible to understand how anyone can credibly claim that all or any of this occurred on the President’s blindside. To believe the official like in this sorry saga would require us to accept that the institutional channels of government have collapsed.” The Learned Professor also refers to the book, The Origins of Totalitarianism by Hannah Arendt where she describes citizenship as a “right to have rights and a right to belong to some kind of organized community.” His reference to the TROP v Dulles is in the circumstances very apt. in that case the United States Supreme Court held that “civicide or the creation of statelessness is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in development.” Section 41(1) of the 1999 Nigeria Constitution provides that “Every citizen of Nigeria is entitled to more freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exist therefrom.” The right to freedom of movement of any Nigerian citizen within and outside the country is guaranteed by the Constitution. It goes without saying that a denial of the instrument (passport) that makes it possible for any individual to move internationally is an obvious breach of the person’s fundamental right. Unless of course the provision to Section 41(1) which is contained in Section 41(2) (a), (b) (i-ii) is engaged. No such statement was made regarding the purported denial of the person that right to the issuance of their passports. In any event, the presidential directive would appear to suggest that some civil servants may have been acting on their own. The Nigerian Supreme Court in Director, SSS v Agbakoba , re-emphasised that freedom of movement is guaranteed under Section 38(1) of the 1979 Constitution which is in parimateria with Section 41(1) of the 1999 Constitution and that Nigerian Citizens are entitled to passports as of right.
The Court held per Ogundare JSC that “A citizen of Nigeria has a legal right to a passport”. The Honourable Chief Justice has set out the facts and the arguments of learned counsel for the parties on the issues placed before the court. Suffice it to say that the main thrust on the submissions of the learned Solicitor-General of the Federation, for the appellants, is that as the Constitution does not provide for the right to hold a passport, the holding of one is not a right but a privilege which can be withdrawn at any time by Government whose property it is. I think the learned Solicitor-General is on a very weak wicket. It is not in dispute that the Constitution gives to the Nigerian citizen the right to move freely throughout Nigeria and to reside in any part thereof. It also guarantees to the citizen the right not to be expelled from Nigeria nor be refused entry thereto or exit therefrom. Section 38(1) of the Constitution provides: ‘38(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.’ It is a matter of common knowledge that for a Nigerian to travel out of Nigeria to another country he must first hold or possess a valid passport issued by the Government of Nigeria. See Section 4(1) of the Immigration Act, and the definition of the word ‘passport’ in Section 51 thereof. Without this document, he cannot leave Nigeria or be admitted to another country. It follows, therefore, that without a passport a citizen of Nigeria cannot exercise the right guaranteed him by the Constitution, of egress from Nigeria. Can it, then be said that the right to hold a passport is not one guaranteed by the Constitution. That is a question that calls for determination in this appeal. If the view is correct and I subscribe to it that possession of a passport makes exit out of Nigeria possible, it follows that without it a citizen of Nigeria cannot enjoy the right of egress from Nigeria given to him by section 38(1) of the Constitution. In my respectful view, therefore, to hold or possess a passport is ancillary to the right of egress from Nigeria given in Section 38(1). It is, as rightly held by the court below, per Ayoola, JCA (as he then was), concomitant to the right of egress from Nigeria. It is a concomitant right without which the right of egress from Nigeria becomes hollow or empty.” Their Lordships argued that there are instances provided in Law whereby a citizen’s passport can validly be withdrawn but that none of those circumstances existed in this particular case. Justice Iguh said “In the first place, there is no iota or evidence from the record of proceedings that there existed any of the circumstances laid down in Section 5(1) of Cap 343.”
Apart from documenting and entrenching Fundamental Rights in our various Laws and Constitutions. The evidence of history shows that there is always a pressing need for the actualization of these rights to be advocated. There is a collective obligation on both the governed and the government to follow the dictates of the fundamental rights provisions of the Constitution and to respect these rights. In all societies, the work of pressure groups in this regard is enormous. Many human rights related matters are often instituted by civil liberties organisations such as Liberty and Amnesty International in the United Kingdom or they in fact join in matters already instituted by persons seeking to question fundamental rights infractions before the courts of law. In A v. Home Secretary , the main appeal of ten individuals dealing with human rights infractions were joined by The Commonwealth Lawyers Association, Amnesty International and thirteen other organisations. In a country like Nigeria, there is a pressing need for more civil liberties organisations to be formed, a need for the individuals and these organisations to aggressively get the courts to apply the Fundamental Human Rights Provisions of the Constitution in the adjudicatory process. The issue of Locus Standi may pose problems because of the unclear and unnecessarily narrow approach to the issue by the Courts in Nigeria However, it is clear that in public Law, what is required is sufficient interest in a matter in order to be part of the action. The line of legal reasoning and interpretation of the principles relating to public interest litigation as it affects locus standi must be broad in order to develop a practical and progressive line of jurisprudence in this area of Law. It would have been disingenuous for any counsel in the A v. Home Secretary case to suggest that since no person in the organizations Liberty or Amnesty International was tortured; they could not as civil liberties organisation be allowed to take part in an action dealing with infractions of fundamental rights regarding the use of torture. The Nigerian Supreme Court in Sofekun v Chief Akinyemi & Others held that “a person alleging an infringement of any of this Fundamental Rights as entrenched in the Constitution, may validly canvass the issue of such alleged infringement at any stage of the proceedings where the alleged infringement is intrinsic to the proceedings.” The advantage of this procedural ruling is that it helps to expedite the process of raising the issues of Fundamental Rights and it shows how serious the courts are in wanting to expeditiously deal with such issues.
What is clear is that in the approach to the general and particular advocacy of Fundamental Human Rights, the governed, the government, the professionals especially the lawyers must take an active and aggressive role in the pursuit of the actualization of the essence of those enshrined rights. There must be an understanding on the part of the lawyers especially that many actions bother on the infractions of fundamental rights and those actions that do not frontally have a fundamental rights connection may indirectly necessitate an appraisal on whether or not there is a need to engage those rights. The jurisprudence coming out of the decisions of the United Kingdom Courts in the last twenty years is a fine example of how the Courts have engaged the Fundamental Human Rights provisions in decision making.
In the final analysis, the Fundamental Human Rights provisions of any Constitution will remain cosmetic unless the individuals, the Non- Governmental organizations take an extremely aggressive role in the questioning of the infractions of those rights. In a developing country like Nigeria, there is a pressing need for organizations in the mold of Liberty, Human Rights Watch and Amnesty International to be replicated. Such organizations must actively be involved in public interest litigation concerning the infractions of Fundamental Rights.
There is no doubt that such articulate and aggressive advocacy of our fundamental rights will greatly benefit the society and make our Constitutional Jurisprudence richer.