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Fundamental human rights and democratic freedoms (1)

The Kalu Leadership Series

Fundamental human
rights and democratic
freedoms (1)
— 21st May 2016

By Dr. Orji Uzor Kalu

THIS week I have chosen to dwell on a subject I have always found germane and central to the survival of any democratic system. The subject covers fundamental human rights and democratic freedoms. Both matters are interchangeable and can always interface in a robust manner. In Nigeria the constitution makes special pro­ visions for the defence of fundamental human rights of every citizen of the country. In the same breath, demo­cratic freedoms encapsulate those rights bestowed on the citizens as a result of the practice of democracy. Since democracy is government of the people, for the people and by the people, it then translates to the fact that citizens must enjoy some well-defined rights under the principles that guide the practice of such democ­
racy. Some of the democratic rights include the right to contest election, to vote and be voted for.

Indeed it is where each citizen’s rights begin that an­
other’s end. This is why the same constitution has made
provisions for the protection of these rights, which are
totally inalienable and have a direct bearing on the sur­
vival of any democratic society. They also underpin a
benchmark theory of human relations and interactions
acceptable within the confines of the Nigerian legal sys­
tem, particularly the grundnorm – which in this case the
1999 Constitution of the Federal Republic of Nigeria.
The theory under review is derived from a Latin Maxim
ubi jus ubi remedium, meaning where there is a wrong,
there is a remedy.

The clamour to know ‘My Rights’ is nothing but the
desire to ensure that your rights are protected at all
times, and not trampled upon by anybody. And that
whosoever tramples upon your rights does not go scot-
free. It also requires that we know the corresponding
duty attached to every right we have.

Lack of knowledge has been responsible for the in­ability of some persons to have their rights protected or seek redress in a court of competent jurisdiction for the redemption of these rights when breached. Indeed the general acceptable expectation is that when a person’s rights are breached in whatever guise, such a person should seek redress in court for either compensation, restitution or for punishment. These are called the Fun­damental Human Rights, which are different from our Natural Rights or Rights bestowed on us as human be­ings by nature.

What is the difference between Fundamental Human
Rights and Natural Rights in line with the maxim: where
there is a wrong, there is a remedy? Am sure before
now, some people had thought they were same in all
fours. The answer is ‘No’. While all Fundamental Rights
are found in the realm of Natural Rights, all Natural
Rights are not Fundamental Rights. Again, Fundamental
Rights are those Rights prescribed by Law, while Natural
Rights are those given to us by nature. In other words,
just that we are human beings with intellect entitles us
to natural rights.

For instance, Chapter 4 of the 1999 Constitution made
copious provisions of such Rights. These Rights as
provided are known as Fundamental Rights and they
are the class of Rights which is actionable in court upon
any breach.

Unlike the Fundamental Rights, a breach of Natural
Rights does not give any cause of action, which could be
redressed in court. For instance, if I belch and you feel
nauseated or distracted, I cannot be sued for doing an
act which is involuntary and natural. What I did was the
exercise of my Natural Right.

Conversely, if I slapped somebody, I have given you a
cause or reason to approach the court for liabilities or
to ask for damages against me for infringing your
Fundamental Right against torture or any degrading
treatment which is contained in S. 34 of the 1999 Con­
stitution as amended.

Therefore, where there is a law and there is a wrong
which is a breach of the law, then there is a remedy.
The necessary implication of this foundation is that
where there is a legal Right – be it called Fundamental
Right or a right provided for in the Constitution – there
is a remedy once it is breached. This is what is called in
Latin maxim, Injuria sine damno – meaning legal injury
without damage. Here, a Right recognised by law is
breached and it is immaterial whether you suffered any
physical injury or not. As long as this legal Right is
breached, you are entitled to a remedy by the court.
Fundamental Human Right provisions have their origin
in Nigeria through the Statutes of general application,
which received the following English laws: the Magna
Carta of 1215, the Petition of Rights of 1628 and the Bill
of Rights of 1689, as a former Colony of the Great
Britain.

Upon the attainment of Independence in 1960, Nigeria
was admitted into the comity of Nations under the
umbrella of the United Nations, and subsequently ac­
ceded to the United Nations Charter on Human Rights
as well as the African Charter on Human and Peoples
Right of 1981. Apart from being signatories to these
charters of Right, Nigeria has gone ahead to domesti­
cate the charter as part of the laws of the Country. This
therefore makes them binding.

The agitation or outcry for the recognition of the rights
of the minority groups in Nigeria caused the setting-up
of a commission headed by Sir Henry Willink. The
report of the Willink Commission of 1958 led to the
entrenchment of the Bill of Right in the 1960
Independence Constitution, so as to allay the fears of
the minority groups of domination by the three major
ethnic groups. The Rights as included are same as those
found today in the 1999 Constitution (as amended).
Before the dawn of positivism, there was the era of the
Natural Law theorists, whose views were in tandem
with the early Church teachings, to the effect that there
must be a relationship between the validity of a law and
its moral content, which positivism is opposed to. The
progenitors of this school of thought believed that if a
man-made law conflicted with the law of God as pro­
pounded by the Church, then such a law was not a valid
law and therefore should not be obeyed.

According to St. Augustine, “If a law be unjust, it is no
law at all” and for such an unjust law it is invalid and
therefore should be disobeyed for running counter to
the natural course of nature. Then St. Thomas Aquinas
in his Summa Theologica said, “God is the creator and
the world, the universe, the cosmos is His creation.
Everything physical and intellectual stems from Him.
When God created man He enabled him to know truth.”
According to Thomas Aquinas, truths are of three kinds:
Truth as revealed in the Holy Scriptures, truth
discovered by the exercise of speculative reason, and
truth discovered by exercise of practical reason. There­
fore, “natural law consists of participation by man in
the eternal law found in the truth.”

From all indications, natural law seems to have thrived
more in the realm of the Church. However, its influence
on the development of law and the conduct of the
affairs of the State could not be underestimated. Yet,
this notwithstanding, it stands to reason why this school
of thought was toppled by the positive school.
Austin John was one of the theorists of the positive
school. He defined law as a command given by a
sovereign and enforced by a sanction. This position, it
could be recalled, did not go down well with Professor
H.L.A. Hart. In his concept of a Legal System, he
postulated that for a legal system to exist the secondary
rules must be accepted by the officials and the primary
rules must be obeyed by the majority of the citizens. He
believed that a law is valid if it is in accordance with the
system’s rules of recognition. And the argument contin­ues without end.
The conflict between natural law and positive law notwithstanding, the issue of human right remains the focus for all the parties as indicated in the preamble to the Universal Declaration of Human Rights adopted on
December 10, 1948. And it says, “Recognition of the
inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation
of freedom, justice and peace in the world.”

If we are aware of the dignity of man created in the
image and likeness of God, then we should know that it
calls for respect for all, irrespective of colour, sex, reli­
gion, language or nationality. Article 1 of the Civil and
Political Rights states “all humans are born free and
equal in dignity and rights, are endowed with reason
and conscience, and should act towards each other in a
spirit of brotherhood”

Therefore, for there to be peace and justice, the rights
and corresponding duties must be observed by all and
sundry. A Chinese proverb puts it this way: “The best
way to keep the city clean is for everyone to sweep be­
fore his own door.”

In the current world order, Human Right crusade has
become multifaceted: national, regional and inter­
national concern, particularly after the era of the Cold
Wars, the World Wars 1 and 11, the Hiroshima expe­
rience, the emergence of some African countries from
colonialism and neo-imperialism, and the genocides in
Rwanda and former Yugoslavia. These events that
shook the world became catalysts to the formation and
formulation of universally-acceptable Human Rights
Principles aimed at enhancing freedom and justice in
the world. To this end, there have been many treaties
and conventions geared towards the development and
protection of Human Rights.

There is the daddy of all Conventions by the United
Nations that came up with the most important human
right document: The Universal Declaration of Human
Rights (UDHR). The document designed in 1948, though
not binding and enforceable, contained aspirations and
declarations which many people today believe has
acquired the status of Customary International Law.
The Universal Declaration of Human Rights opened the
floodgate of Human Right Conventions and Treaties,
particularly the International Covenant on Civil and
Political Rights (ICCPR) and its sister Convention, the
International Covenant on Economic, Social and
Cultural Rights (ICESCR) – all of 1966.These two
Covenants came into force in 1976, becoming, together
with the UDHR, the International Bill of Human Rights.
The ICCPR AND THE ICESCR are regarded as first-
generation Rights. Most Regional Conventions took
place after the 1966 Covenants in the arrangement of
the provision of Rights and Freedom. However, Nigeria
though a signatory to these Conventions did not follow
strictly the pattern of the ICCPR and ICESCR by making
both of them justiciable as they deserved. Rather only
ICCPR is made justiciable in Nigeria. The majority of
ICESCR are found in Chapter 2 of the 1999 Constitution
as Fundamental Objectives and Derivative Principles of
State Policy.

Characteristically, Fundamental Human Rights are
universal, inalienable, interconnected, interrelated, in­
divisible, and include responsibilities.

To be continued

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