CHAPTER 3 CONSTITUTIONALISM AND THE PROTECTION OF HUMAN RIGHTS
The chapter mainly focuses on an examination of the protection of human rights which is a key feature of constitutionalism. The chapter seeks to explore and examine the constitutional provisions dealing with the protection and promotion of human rights in Nigeria. Besides, the chapter attempts to determine whether in practice the constitutional provisions on human rights succeed in promoting constitutionalism.
Since the 1999 Constitution constitutes the fulcrum of the study, developments that led to it, its main features, legitimacy, strength and weaknesses are to be examined in detail. The chapter will also highlight major international and regional human rights instruments which the country signed and ratified as part of its efforts towards the protection of human rights.
The country’s tortuous transition from authoritarianism to constitutionalism is also considered. Militarism constitutes the greatest drawback in the entrenchment of constitutionalism in the country and the chapter briefly focuses on the effect of military rule on constitutionalism. In order to have a better appreciation of the subject of human rights protection, the discourse on human rights is categorized into two sections: civil and political rights; and social, economic and cultural rights.
The research also explores how the provisions on Directive Principles could be used to develop a whole gamut of rights protection. This will complement the provisions on socio-economic rights in the African Charter. As part of the study of social and economic rights, the status, justiciability and enforcement of the Fundamental Objectives and Directive Principles of State Policy will be examined. The chapter further considers the 1999 Constitution of Nigeria, military rule and constitutionalism. It examines the constitutional protection of civil and political rights; and social, economic and cultural rights.
The 1999 Constitution, military rule and constitutionalism
The 1999 Constitution
Following the death of General Abacha, General Abdulsalami Abubakar became the Nigerian Head of State. On 11 November 1998, the Head of State inaugurated the constitutional debate co-ordinating committee which was charged with the responsibility to, among others, pilot the debate on the new constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new constitution for Nigeria. The committee claimed that it benefited from the receipt of large volumes of memoranda from Nigerians at home and abroad and that it also received oral presentations at the public hearing at the “debates centres throughout the country”.414 In its report, the committee said that the consensus of opinion of Nigerians was the desire to retain the provisions of the 1979 constitution with some amendments.
On receipt of the committee’s report, the Provisional Ruling Council (PRC) approved the report subject to some amendments made by it. The amendments “were deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria”.415 The 1999 Constitution was then enacted into law as a schedule to decree No. 24 of 1999 with its commencement date as 29 May 1999.416 In its preamble, is the misleading claim that “we the people” of Nigeria resolved to “make enact and give ourselves the following constitution”.
All members of the constitutional debate co-ordinating committee were appointed by the head of the military junta. The people of Nigeria neither elected the then government nor did it derive its authority from the people. Neither the people of Nigeria nor their duly elected representatives put the said committee in place. The said committee can, therefore, absolutely lay no claim to representing the people of Nigeria.
It is an irony that in all the country’s constitutions since 1979, which incidentally are all military contraptions, the military expressly inserted in each constitution a provision that claimed that the “people of Federal Republic of Nigeria” resolved to “make, enact and give to ourselves” a constitution.417 That was a recognition that the source of authority was the people.
But in practice, the military failed to allow the Nigerian people to make, enact and give themselves a constitution. And whenever a partly elected, partly appointed and partly nominated body or an all-appointed body framed a constitution, it cynically and misleadingly claimed that it was done by the people of the Federal Republic of Nigeria. The constitutional debate co-ordinating committee made up entirely by persons hand-picked by a military junta and the Provisional Ruling Council (PRC) made up of 26 military officers,418 all males, could never be representative of the Nigerian people.
For the preamble of the 1999 Constitution to reflect a true and accurate position, it ought to have stated that: “We the members of the Provisional Ruling Council, having firmly and solemnly resolved: do hereby make, enact and give to the Nigerian people the following Constitution:” A statement such as the foregoing could have saved Nigerians the misrepresentation inherent in the preamble to the 1999 Constitution.
It is not in doubt that the 1999 Constitution is a legal document, but it is of dubious and doubtful legitimacy in that it is not an enactment emanating from the will of the people. The source of authority of a constitution lies with the people. Indeed, constitution making belongs to the people and not to the government. It was, as Thomas Paine said “a thing antecedent to government; and a government is only the creature of a constitution”419 Consequently James Wilson, one of the principal framers of the US constitution had argued that a constitution could never be an act of a legislature or of a government. He stated that it had to be the act of the people themselves and in their hands it is like “… clay in the hands of a potter; they have the right to mould, to preserve, to improve, to refine, and to furnish it as they please.”
Where the people are not involved in a constitution-making process, such a constitution could not be described as legitimate. If the contrary is the case, a dictator or despot may purport to craft a constitution and give it the toga of legitimacy. Similarly, a clique or a group that forcibly overthrew a government under a legitimate constitution may produce a contraption without reference to the people and claim that it is a legitimate constitution. Osipitan and Amusa have forcefully argued that: “Popular participation in the constitution–making process is an important requirement for legitimacy, which the constitutions of most nations can hardly meet. For instance, since independence, Nigeria has not produced a constitution, which truly complies with the requirement of the autochthony school.” 421
It must be pointed out that autochthony and legitimacy are two different things. A constitution may be autochthonous without being legitimate and vice versa. Justice Tobi contends that “… an autochthonous constitution must be home-grown in the sense that it is home-made and not a product of imperialism or colonialism.”422 It means that a constitution is the product entirely of indigenous efforts.
The 1999 Constitution can rightly be described as an autochthonous constitution; but definitely not a legitimate constitution because the people were not involved in the process of making the constitution. It has been argued that: “Nigerians are constantly challenging the legitimacy of the 1999 Constitution because, as they point out, the final draft was crafted and imposed by military officers.”423 While the legitimacy of the 1999 Constitution is open to question, the legality of same constitution can hardly be contested because it is the product of a legal process, that is, a decree; but not necessarily a product of rule of law. More importantly and as shall be demonstrated later, it has some features of constitutionalism like rights protection, the separation of powers, rule of law and judicial review.
Military rule and constitutionalism
Between 1 October 1960 when the country became independent and on 29 May 1999 when it returned to civilian rule for a period of 39 years, the country was under military rule or dictatorship for a combined period of 29 years. This makes Nigeria one of the leading countries in Africa with long history of military rule, coups and dictatorships. Since military rule is incompatible with constitutionalism, militarism had the painful effect of inhibiting the practice of constitutionalism in Nigeria for several years.
Prior to the present democracy in the country, the human rights situation in the country was bad. It was characterized by excessive use of force by security forces and extra-judicial killings at roadblocks, during patrols, at police stations, in the course of putting down protests, disturbances and pro-democracy rallies, when combating crimes and when dealing with detained persons. There were officially sanctioned murders, assassinations and disappearances of persons without trace. Further, people were detained without trial for indefinite periods of time, there was the ousting of the jurisdiction of the courts in respect of challenges to arbitrary detention and frequent extension of detention orders beyond the prescribed three months. Other instances fof human rights violations include the refusal of government to comply with orders of court for the release of detainees or to produce detainees upon the grant of habeas corpus applications; continued and unabashed detention of trade union leaders, human rights activists, lawyers and journalists as well as detention of family members and other relatives of Nigerians living in exile or who had gone “underground” or into hiding.424
Special tribunals which were neither impartial nor independent were established to conduct trials in contravention of international human rights standards. There were the seizure of passports without reason(s) but with the apparent purpose of preventing the holders from attending international conferences or seminars touching on human rights; detention of persons upon their return from abroad and extremely harsh and life-threatening prison conditions. The detention of political detainees in remote locations; proscription of newspapers and magazines and the criminalization of criticism against the government or its activities were rampant.425 There were continued discriminatory practices and policies against women based on cultural beliefs and attitudes; denial of the right of women to own property in Igbo society; trafficking in women and children; domestic violence especially wife beating and widespread practice of female genital mutilation. 426 The foregoing encapsulated the human rights situation during the various military dictatorships that the country had, particularly from 1984 until the return to democracy in May 1999. It is true as contended by Cervenka that :
One of the most alarming consequences of militarization in Africa has been the change in attitudes toward traditional values. Whereas respect for human life formerly occupied a central place, today life has become very cheap and in some countries the summary execution of political opponents has become a common practice.
Cervenka argued further:
Military rule, besides destroying the basic rights of individual, has also destroyed the concept of government legality. The soldiers assume the role of judges who pass judgment on the government’s performance. There are also executioners who mercilessly punish the members of the government they overthrow. Charges of corruption, mismanagement, incompetence, and tribalism are the usual reasons by which the military justify the coup.428
The militarization of Africa and in particular Nigeria, led to the wholesale destruction of democratic institutions, human rights and the mechanisms for rights protection. According to Ojo:
Military Administration is necessarily a regime of force. Its manner of coming to power is invariably by a forcible subjugation and replacement of a pre-existing order in a way not contemplated by such old order. From whichever angle it is viewed, it is a violation of constitutionalism. Although it is possible to argue that the military have invariably been compelled to assume power as a result of the breakdown of constitutionalism this does not affect the fact of their initial unconstitutional act.429
In Nigeria, there was never a time when there was a “breakdown of constitutionalism”, compelling enough for the military to overthrow a constitutional government. The only thing that could be conceded is that prior to the country’s various military coups, the civilian governments had failed to develop a culture of constitutionalism and good governance. This was so notwithstanding that the formal and institutional structures for the promotion of constitutionalism were all in place. It has been rightly contended by Suberu that one of the basic threats to constitutionalism in Nigeria is the politicization of the military establishment.430 He concluded that “Nigeria broadly typifies the dismal record of constitutionalism in the African continent.”431 Abubarkar who examined constitutional rights and democracy in Nigeria, inter alia rendered his verdict as follows:
Nigeria’s political history has thus been fundamentally characterized by the existence of essentially autocratic rulers whether at local, state or national levels. The intervention of the military in the political process in the mid 1960s, opened the polity to authoritarian rulers. Military rule, particularly during the Babangida-Abacha epochs was characterized by massive abuse of human rights. The violent crises in Ogoni land in 1994-95 that culminated in the execution of Ken Saro Wiwa remains an important landmark in the abuse of basic constitutional/ human rights in Nigeria. The annulment of the June 12th Presidential election and the violent crises it generated in the polity further deepened the crises of Nigeria’s transition.
Abubakar was not alone on this issue of state repression and poor governance of the civilian government in Nigeria under the then President Obasanjo. A study which inter alia covered the first eighteen months of Obasanjo’s administration reported thus:
Eighteen months into the country’s democratic experiment, Nigeria continues to face economic, political and social uncertainties. Flash points of ethnic, communal, religious and resource conflicts persist. The economic environment is still unstable. The Niger Delta crisis has yet to be resolved, and environmental degradation in oil-producing regions remains a problem. Exacerbating this is the public perception that the Government has been insensitive and slow in addressing fundamental issues affecting Nigerians, such as poverty alleviation, resource distribution, infrastructure development, and security. An air of anxiety and uncertainty continues to pervade Nigerian society.433
Some eight years of the Obasanjo administration, the state of human rights and indeed, democracy degenerated to an alarming proportion. This raised a lot of questions. Is Nigeria a constitutional democracy? Is the practice of constitutionalism in the country progressing or retrogressing? Justice Onnoghen of the Supreme Court was emphatic that much as “we may continue to say that our democracy is at its infancy, we cannot lose sight of the fact that ours is a constitutional democracy based on the rule of law.”434This could well be so if we consider only the formal and institutional structures on constitutional democracy provided in the constitution.
Although constitutionalism and constitutional democracy are related, they are distinct. Expounding on their relationship, Mangu notes that: “Modern constitutionalism is democratic constitutionalism and modern democracy is a constitutional one.”435 He further argued that: “Constitutionalism and democracy are so related that ‘constitutional democracy’ may appear to be a tautology.”436 He is right because there is hardly any constitutionalism that could be described as “undemocratic constitutionalism”. The practice of modern democracy is a fundamental constituent of constitutionalism. The two are inseparable. Constitutional democracy has been described as more than merely a concept, which may be realized by provisions in a constitution.437 Constitutional democracy is said to be:
… a way of life based on tradition, habit, national attitude and a democratic culture―a culture that regards the constitution as something inviolable and above political struggle for power. Such a democratic culture values fair play, mutual tolerance and rules, which promote acceptance and respect for the wishes of the people as the ultimate authority for government
As militarism dismantled and destroyed the structures of constitutionalism, it did the same to constitutional democracy. And just as military rule is incompatible with constitutionalism; it also negates everything that constitutional democracy represents. Granted that Nigeria has transited from military rule to civilian government, this transition did not automatically translate into constitutionalism and constitutional democracy. Demilitarization involves not only a structural but a mental process. It was argued that: “The process of demilitarization of Africa will be a long and complex one, for it does not just mean a simple transfer of power from a military to a civilian government. It means, above all, a demilitarization of minds.”439
The psyche and attitude of the leaders and the ruled must change. Dialogues, discussions, debates, bargaining and persuasions must be elevated over the use of force or might. The practice of constitutionalism and constitutional democracy is more difficult than merely changing a government from military to civil rule. It has been advocated that “the new struggle for process-led constitutionalism represents Africa’s second liberation, second in significance only to the anti-colonial struggle”.
Constitutional protection of civil and political rights
Consequent upon the relationship between constitutionalism and constitutional democracy, they have some common constituents and one of them is the constitutional guarantee of fundamental rights. Nigeria is also a party to several international covenants, treaties and conventions on human rights. It ratified or acceded to some of the instruments441 and some it merely signed.442 There are few instruments or protocols in respect of which the country took no action whatsoever.443 In examining the protection of human rights, a broad categorization of civil and political rights; and economic, social and cultural rights is adopted. The choice of this categorization had earlier been explained in this text. This segment deals with the constitutional protection of civil and political rights.
Under civil and political rights, the text considers the right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to privacy and family life, right to freedom of thought, conscience and religion, freedom of movement, freedom of expression, right to freedom from discrimination, freedom of association and right to vote.
When Nigeria became independent on 1 October 1960, fundamental rights were entrenched in chapter III of the Independence Constitution. The provisions were retained in the 1963, 1979, 1989, 1995 Constitutions and now the 1999 Constitution. The fundamental rights so guaranteed are part of human rights. It had earlier been argued that the guarantee of rights is a notable constituent of constitutionalism.
Right to life
Perhaps to underscore the importance of the right to life, it is the first in the list of fundamental rights guaranteed by the 1999 Constitution. While other fundamental rights are equally as important as the right to life, it is also true that the enjoyment of other rights is conditional upon the right holder being alive. Right to life is guaranteed by section 33 of the 1999 Constitution and is subject to some conditions like death sentence imposed by a court.
Deprivation of life in the execution of a sentence of death will arise where, for example, a person is convicted of murder by a court. Under the Criminal and Penal Codes, the offence of murder is punishable by death.445 The offences of armed robbery446, treason 447 and instigation of invasion of Nigeria 448 are all punishable upon conviction by death. Indeed, under the penal law, it is unlawful to kill any person unless such killing is authorized or excused by law.449 Section 33(2)(a) of the 1999 Constitution excuses death that resulted in the cause of self defence against unlawful violence or the defence of property in “such circumstances as are permitted by law”. The law will excuse killing that results from self defence against unprovoked assault450 and against provoked assault.451 A person who is aiding in self-defence of another is also entitled to same protection.452 A person who is defending his/her dwelling-house, is entitled to defend it to the extent of killing the aggressor, if such act becomes necessary to repel the attacker.453
A killing will be justified or excusable under section 33(2)(b) of the 1999 Constitution when it is done in order to lawfully arrest a person or prevent someone in lawful custody from escaping.454 The right to life is, therefore, subject to a lot of limitations in Nigeria. Nigeria not only signed and ratified the African Charter on Human and Peoples’ Rights, it went on to domesticate it as part of its municipal law.
Though the country ratified the ICCPR, it is yet to ratify the Second Optional Protocol to the ICCPR which provides for the total abolition of the death penalty; but allows States parties to retain death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. This work did not find any official reason why Nigeria did not ratify the protocol in spite of its ratification of the African Charter. That failure may bother on tardiness. Amnesty International argues that death penalty in Nigeria constitutes a violation of fundamental human rights that is, the right to life and the right not to be subjected to cruel, inhuman and degrading treatment.456 Much as it is legal to execute a person under sentence of death, the Supreme Court has held that it is clearly a breach of the right to life to execute a convict before his appeal is determined.457The South African Bill of Rights, which is part of the 1996 Constitution,458and which Bill is an undisputed model in Africa, provides in section 11 that “Everyone has the right to life”.
The provision is short, apt and clear. Under section 37 of the South African Constitution there may be derogation from the Bill of Rights during a state of emergency. But the Table of Non-Derogable Rights, makes it clear that even in such situation, the right to life and human dignity are entirely non-derogable. New Zealand’s Bill of Rights Act 1990459 in section 8 states that:“No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”. Similarly, the Canadian Charter of Rights and Freedom 1982 provides in article 17 that: “Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”460 The phrase “principles of fundamental justice” is lacking in specificity and is imprecise. It is speculative. According to Amnesty International,461 an organization that had been very active since October 2003 in campaigning for the abolition of the death penalty in West Africa, “the death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life. It is irrevocable and can be inflicted on the innocent”. If death penalty is imposed by a constitution under certain circumstances as derogation from the right to life, it will not be correct to say as Amnesty has done, that it violates the right to life.
The fact that death penalty had been inflicted on the innocent is sadly true. Like in all cases of punishment for crime, the risk of executing the innocent pursuant to death penalty cannot be entirely eliminated. According to Amnesty,462 since 1973, eight hundred and eighteen prisoners have been released from the death row in USA when evidence later emerged establishing their innocence of the crimes for which they were sentenced to death. In 2004, there were five of such cases. Some of them were almost executed after spending many years under death sentence. Common features in their cases include prosecutorial or police misconduct, the use of unreliable witnesses, confessions and sloppy defence representation.
Nigeria falls into the category of countries that Amnesty classified as “retentionists” in respect of death penalty. This means countries and territories which retain the death penalty for ordinary crimes. In this group are many of the countries in Africa.463 The story is not entirely depressing in Africa. Under the ‘‘abolitionist for all crimes’’, that is a country whose laws makes no provision for the death penalty for any crime; there are 12 African countries in this category including South Africa, Senegal, Cape Verde, Cote d’Ivoire and Djibouti.464 There is yet another category called ‘‘abolitionist in practice’’. This refers to a country which retained the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice, the reason being that it had not executed anyone during the past ten years and is believed to have a policy or established practice of not carrying out executions.465 There are 13 African countries in that category.
In spite of the fact that death penalty for people younger than 18 years is outlawed under international human rights law,466 some countries still execute child offenders. Amnesty reported467 that between 1990 and 2003, it documented 39 executions of child offenders in 8 countries: China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, the USA and Yemen.
TABLE OF CONTENT
ABSTRACT AND KEY TERMS
CHAPTER 1 INTRODUCTION
1.1. Background to the study
1.2 Research problem
1.3 Objectives or aims of the study
1.4 Rationale of the study
1.5 Assumptions underlying the study
1.6 Scope and limitations of the study
1.7 Research methodology
1.8 Literature review
1.9 Expected findings
1.10 Division of the study
CHAPTER 2 CONSTITUTIONALISM, HUMAN RIGHTS AND DEMOCRACY
2.2 Constitutionalism, human rights and justice: the challenges
2.4 Evolution of human rights
CHAPTER 3 CONSTITUTIONALISM AND THE PROTECTION OF HUMAN RIGHTS
3.2 The 1999 Constitution, military rule and constitutionalism
3.3 Constitutional protection of civil and political rights
3.4 Constitutional protection of social, economic and cultural rights
CHAPTER 4 DOMESTICATION OF HUMAN RIGHTS NORMS
4.1 International law and human rights
4.3 Relationship between international and national law
4.4 Customary international law
4.6 Judicial interpretation of section 12(1) of the 1999 Constitution
4.7 Judicial application of non-domesticated treaties
4.8 Judicial application of customary international law.
CHAPTER 5 JUDICIAL ENFORCEMENT OF HUMAN RIGHTS
5.2 Judiciary and constitutionalism
5.3 The judicial system in Nigeria
5.4 Judicial work environment
5.5 Locus standi
5.6 Validity of the Fundamental Rights (Enforcement Procedure) Rules (FREPR).
5.7 Procedural challenges in the enforcement of fundamental rights
5.8 Right to legal representation
5.9 Remedies for the breach of fundamental (human) rights
CHAPTER 6 CONCLUSION AND RECOMMENDATIONS
6.1 Summary of findings
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