By Ebun-Olu Adegboruwa, SAN
The United Nations declared December 10 every year as International Human Rights Day, mainly to highlight the rights now recognized globally as enuring to and enjoyed by human beings by virtue of their humanity. Although there is still so much ground to cover in the areas of protection of human rights, the decision to set aside a day for this purpose has helped in no small measure to draw global attention to the issue. As one of the guest speakers of the Human Rights Committee of the Premier Bar (Lagos Branch of the Nigerian Bar Association) on December 10, 2024, let me shared my thoughts on the topic.
A. INTRODUCTION:
According to António Guterres, the United Nations (UN) Secretary-General, “human rights are under assault… This year’s [2024’s] theme reminds us that human rights are about building the future — right now… We must stand up for all rights – always.” Guterres’ bird’s-eye view on the global crises against HRs from the vintage of global leadership undoubtedly provides us with a global big picture which is a true reflection of the stark reality of the crises beleaguering HRs right from the pinnacle of the intercontinental stage, through the international, down to national/local scenes. Guterres’ observation is an echo of this year’s theme: Our Rights, Our Future, Right Now. At the intercontinental and international scenes HRs crises of epic proportions as seen, for instance, in the outrageous wars involving Russia and Ukraine; Israel and Gaza/Hezbollah and allied Middle-Eastern forces; together with other sundry abuses of HRs are blood-cuddling to say the least. Back home in Nigeria, the incidences of decimation of HRs through indiscriminate destruction of lives and property through acts of terror, political crimes, banditry, kidnapping, grievous sexual assaults, domestic violence, etc, give us all a reason to worry. However, in a manner of speaking, Human Rights (HRs), with its global crusade has come a long way. Indeed, it is no longer the infant it once was, though we are yet to see it mature into the adult we all hope it ought to be. In the meantime, let us commemorate a milestone of a HRs global movement albeit in itsadolescence. Shall we?
C. CONCEPTUAL CLARIFICATIONS ON KEY TERMS:
1. RIGHTS:
The concept of rights, as is typical with most legal concepts, is as multifaceted and poly-dimensional in meaning as there are jurisprudential schools of thought. To begin with, the Black’s Law Dictionary defines rights as something that is just, morally correct, and in accordance with ethical principles or the rules of positive law. It also defines a right as the capacity to control the actions of others with the assistance of the state. Without necessarily allowing ourselves to descend into the depths of the wells of a jurisprudence class on the concept of rights in all its academic nuances, we may further explore a few classical definitions of the most notable legal philosophers of global repute within the realms of jurisprudence.
Hugo Grotius (1583 – 1645) often considered as the father of international law defined a right as a “moral quality of a person, making it possible to have or do something lawfully.” Immanuel Kant (1724 – 1804) describes rights as the “capacity to constrain others in accordance with universal laws of freedom.” On his own part, Jeremy Bentham (1748 – 1832) dismissing the idea of natural rights, saw rights rather as creation of law, deriving existence and legitimacy from legal systems rather than from moral or natural law. From his positivist standpoint, John Austin (1790 – 1859) defined a right as a legally enforceable claim. He viewed rights as rooted in the commands of a sovereign and contingent on the existence of law. H.L.A. Hart (1907 – 1992), on his part, argued that a right is a protected interest or choice that individuals can exercise. His emphasis was on the connection between rights and duties. Wesley Hohfeld (1879 – 1918) espoused the relational and reciprocal nature of rights. According to him, rights are a system of jural relations, such as claims, duties, powers, and immunities. The above definitions cut across Natural, Positivist, Utilitarian, etc viewpoints. A more contemporary approach however would leave us with the notion that rights encompass moral principles, enforceable claims, or relational constructs or structures ensuring justice and fairness; hence the axiom ubi jus, ibi remedium.
2. HUMAN RIGHTS:
Putting it in its simplest expression, HRs may be defined as the freedoms, immunities and benefits that, according to modern values, all human beings should be able to claim as a matter of right in the society in which they live. According to the UN, HRs may be defined as:
Rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.
Certain cardinal pillars of HRs as espoused by the UN include:
Universality: All people are born with the same rights, regardless of their race, sex, nationality, ethnicity, language, religion, or any other status; Inalienability: People’s rights can never be taken away; Indivisibility: All rights are equal in importance and none can be fully enjoyed without the others; Interdependence: All rights are related and must be treated as such; Fundamentality: Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more; and Govern how people live: Human rights govern how individuals live in society and with each other, as well as their relationship with the State.
3. HUMAN RIGHTS vs. FUNDAMENTAL RIGHTS:
The distinction between Human Rights (HRs) and Fundamental Rights (FRs) is only a little short of the distinction between six and half a dozen in that both concepts refer largely to the same substance. Traditionally, the term FRs is used in a constitutional context whereas the term HRs is used in international law.
By Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009″Fundamental Right” and “Human Right” are defined in the following manner:- “Fundamental Right – means any of the rights provided for in Chapter IV of the Constitution, and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. Human Rights – includes fundamental rights.
Eso, J.S.C. in Ransome-Kuti v. A-G. Federation, (1985) LPELR-2940(SC)on the nature and meaning of FRs, has this to say:
…What is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution since independence, starting with the Independence Constitution that is: the Nigeria (Constitution) Order in Council 1960 up to the present Constitution that is the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. [Emphasis supplied].
As such, FRs are those HRs trapped and domiciled or better still, entrenchedwithin the documentary four walls of a Constitution or statute. HRs, on the other hand, extends beyond FRs, and embraces all those God-endowed rights intrinsic to the human person by virtue of his humanity. In our Nigerian context, the locus of the FRs is Chapter IV of the Constitution comprising Sections 33 to 46 thereof. FRs may also be found in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
D. A BRIEF HISTORICAL BACKGROUND ON THE UDHR:
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations (UN) General Assembly on the 10thof December, 1948. Like the UN itself, UDHR rose from the ashes of World War II. When it was adopted in 1948, much of the world was still recovering from the sore wounds of the deadliest conflict in history, which claimed more than 60 million lives. In the aftermath of such unprecedented death and destruction of lives and property, the world turned to diplomacy to make sure history would not repeat itself. Nations came together for the first time to publicly declare the fundamental freedoms that belong to all of us. The Commission on Human Rights was set up, chaired by Eleanor Roosevelt, the First Lady of the United States of America (from 1933 to 1945) and tasked with the responsibility of composing the UDHR. Roosevelt asserted the Declaration would reflect more than Western ideas; to accomplish this, the Human Rights Commission was made up of members from various cultural and legal backgrounds from all around the world, showing respect for differing cultures and their customs while also ensuring each region had a hand in creating the document. Under Roosevelt’s leadership, the diverse commission was able to craft the UDHR in a unique and culturally-competent way.
The UDHR contains a preamble and 30 articles outlining our most basic birthrights, including protection against torture, inhumane treatment, cruel punishment, slavery, and servitude. It covers both civil and political rights and economic, social and cultural rights. The document heralded a new chapter of human history.
