Testing Seasonality 181/40 and 38/38

Though definitions are generally restrictive, central to the discussions on the rights of the girl-child proffered so far however is the fact that issues of human rights concern human beings; their existence and co-existence in society. Human rights are generally those rights a person is entitled to for no reason other than that he is a human being. They are based on the principle of respect for the individual and the assumption that each person is a moral and rational being who deserves to be treated with dignity.¹ Human rights are now enshrined and guaranteed in different legal forms such as treaties, protocols, conventions and various other forms of international law.

According to Umuozurike², human rights have to do with:

Claims which are invariably supported by ethics and which should be supported by law, made on society, especially on its managers by individuals or groups on the basis of their humanity. They apply regardless of race, colour, sex or other distinction and may not be withdrawn or denied by governments, people or individuals… they are those rights which every individual claims or aspires to enjoy…

From Umuozurike‟s definition, human rights concern issues that are morally right, naturally endowed on human beings and so should be protected by the laws of the State so that no individual or group of persons nor even the State can derogate from them. Human rights are part

1 United For Human Rights available at www.humanrights.com/what-are- human- rights.html accessed 13/02/15.

2 U O Umuozurike; The African Charter on Human and Peoples’ Rights (Martinus Nijhoff Publishers, 1997) p.5.

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and parcel of man. They are universal and inherent in the nature of man;³ and so cannot be dissociated from man. Human rights by their very nature “are beyond the powers of a legal or political authority to make void because it is impossible to annul or remove from existence something that is an inherent aspect of human nature.”⁴ Igwe⁵ captures the essence of human rights when he noted that:

Human rights represent the legal expression of life. It therefore impresses that without human life there can be no human rights.

More so since life means free and dignified existence in the framework of a legal order that ensures the harmonious co-existence of rights and duties, the purpose of recognizing and safeguarding human rights is to ensure the possibility of living fully and completely in dignified freedom.

Derivable from the above position is the fact that these rights are not to be arbitrarily applied nor can they be excluded from applying to some persons. In Unilorin v Oluwadare,⁶ the Court of appeal on the issue of whether parties can by arrangement remove constitutionally guaranteed rights, clearly stated that “a complaint against an infringement of fundamental right to fair hearing is a constitutionally guaranteed right which cannot be taken away by any domestic arrangement between the parties”.

How did human rights evolve and develop as universal rights applicable to all human beings irrespective of location, sex or race? Human rights have been traced to the law of nature

3 O Okpara, „The Nature of Human Rights‟ in O Okpara,‟ Human Rights Law and Practice in Nigeria (Enugu:

Chenglo Limited, 2005) p.42.

4 F N Ndubuisi & O C Nathaniel, Issues in Jurisprudence and Principles of Human Rights (Lagos: Dmodus Publishers, 2002) p. 181.

5 O W Igwe, Preliminary Studies in Human Rights Law (Lagos: Rings and Favolit Ltd, 2002) p.1.

6 [2003]3 NWLR, (pt 808)557.

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based on reason which sets out certain rules or methods of doing things recognizable as correct;

imposes obligations and prohibitions and confers natural rights (human rights).⁷These principles in the course of time and amidst agitations of proponents became enshrined in various Bills of Rights of nations. And became the basis for which revolution against the existing order in countries in Europe took place, became the basis for world peace after the First World War and eventually became concretized in the Universal Declaration of Human Rights.

The earliest known natural law proponents were the Greeks who saw natural law as rules of reason and preached equality of all persons. Notable among the philosophers were Plato, Socrates and Aristotle who identified natural law as the foundation of all laws, innate in man and universal as it applies everywhere and every time.⁸ To Aristotle “moral virtue is a disposition by which one chooses what is good and rejects what is evil, and this choice must be a rational choice.”⁹Also notable among the early natural law thinkers was Cicero, a Stoic, and Roman politician¹⁰who stated that:

There is in fact a true law- namely right reason which is in accordance with nature, applies to all men and is unchangeable and eternal…to invalidate this law by human legislation is never morally right nor is it permissible ever to restrict its operation and to annul it wholly is impossible. Neither the Senate nor the people can absolve us from our obligations to obey this law…it will not lay down one rule in Rome and another at Athens, nor will it be

7 O Okpara, „Human Rights Law & Practice in Nigeria‟ op.cit. p.10.

8 J Omoregbe, An Introduction to Philosophical Jurisprudence (Lagos: Joja Educational Research and Publishers Limited, 1997) v.

9 R M Rist, Stoic Philosophy (Cambridge: Cambridge University Press, 1977) p. 2.

10 Stoics were followers of a Greek philosophy based on pantheism founded by Zeno in 308 BC that is; that the world is a manifestation of a divine mind and that everything in the universe is controlled by rationality.

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one rule today and another tomorrow. But there will be one law, eternal and unchangeable binding at all times upon all peoples…¹¹

Following the Greek‟s exposition on the principles of natural law were the Romans who by the 6^th century recognized three categories of law namely the jus civile (civil law); jus gentium (law of nations); jus naturale (natural law).¹² Some early Roman jurists like St Augustine espoused the fact that “the law of nature is the reason and will of God which commands the preservation of the natural order and prohibits its disturbance… and that the law of nature is a law of reason; it is also a law of justice which is superior to all positive laws.”¹³ It was however Saint Thomas Acquinas,¹⁴who expounded four categories of law in Rome, that is, eternal law(lex aeterna) which recognizes the superiority of God the creator who controls the universe by his divine nature and law; divine law(lex divina) which is the law of God revealed to man through the holy books; natural law(lex naturalis) which emanated from eternal law and revealed to man through his reason and finally positive law(lex humana) which is man-made law and exists to solve societal problems.

From the 16^th and 17^th centuries, Thomas Hobbes, an English philosopher emerged and wrote the leviathan a classical work in which he discussed men as having a quality which he called „sense‟ and stated that “it is inherent in the nature of human beings to be selfish and aggressive as absolute power was a sine qua non of means and mutual respect among them.”¹⁵ Equally traced to Thomas Hobbes and John Locke is the social contract theory¹⁶based on:

11 O O Nnamani, Human Rights Law and Practice in Nigeria, An Introduction (Enugu: CIDJAP Press, 1999) p. 5.

12 J Omoregbe, op.cit. p. 10.

13 O Okpara, „History and Concept of Natural Law‟ in O Okpara; op.cit. pp. 9-10; positive law in this sense is used to describe all man-made laws.

14 Ibid, p. 11.

15 T Hobbes, Leviathan (C B Macpherson, Penguin Books, 1968) p. 85.

16 Per Adaramola Funso cited in O Okpara; op.cit. p.15; that the social contract theory concerns man in a state of nature who resorts to every means of self preservation including the killing of other men…but it dawned on him

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The relationship between the State and its subjects… and neither parties can change the contract without the consent of the other…and is seen in terms of the individuals in the society submitting their rights and freedom to the State which in turn protects the individuals and their rights.¹⁷

Whilst Hobbes explained natural law from a secular perspective and in support of absolute sovereign power to maintain peace in society, John Locke was anti absolutism and preached constitutionalism and limited political power.¹⁸

The French Jean Jacques Rousseau in the 18^th century was very “vocal about natural rights especially the right to freedom which he sees as innate and natural,”¹⁹and that “since all men were born free and equal, no man reserves the natural right to dominate another as freedom is inherent in every person.²⁰ These theories of rights led to the French and American revolutions of the 18^th century as natural law proponents directed their attention more to the rights of individuals. These rights were first published in the British Bill of Rights in 1688 and formed the basis of the American Declaration of Independence to wit that “we hold these truths to be self evident that all men are created equal, they are endowed by their creator with certain inalienable rights…”²¹

Although the natural law philosophy over the years have been criticized by the likes of David Hume, Karl Marx, Frederick Engels etc who preached empiricism and not just reason, the through the exercise of reason (natural law) that peace was desirable and that the sensible thing for man to do was to enter into society thereby limiting his own liberty of action provided that other men did the same.

17 T Ige & O Lewis; Human Rights Made Easy (3^rd edition, Legal Research and Resource Development Centre, 1999) p. 2.

18 O Okpara; Human Rights; op.cit. pp. 15-16.

19 J Omoregbe; op.cit. p. 42.

20 O Okpara; op.cit. p.19.

21 T Ige & O Lewis; op.cit. p. 2.

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revolution of the proletariat, that is the poor against the rich (bourgeoisie) due to the continuous struggle for supremacy between the two shall result in the successful overthrow of government representing the rich class which will lead to its eventual extinction. Also the established principles of natural law which metamorphosed into the human rights agitations today, took “a firm footing in the resolve of the allies after the second world war that assuming the respect for human rights was their war aim.”²²These various globally recognized human rights are contained in international instruments²³ which encapsulate the concept of human rights in the 21^st century as concerning the relationships within organized State that is, the States‟ governments and the citizens. These relationships which concern their “political participation, the freedoms that the individual should enjoy and their claims on the State with regard to the provision of basic needs of life, education, health etc and shall be discussed subsequently.

From our previous discussions, it is clear that human rights have always been deemed to enure from time immemorial and in the Constitutions of States whether in the written or unwritten form. However, the United Nations Declaration of Human Rights marked the first formal internationalization and universalization of the application of these rights which came into force in 1948 as a corpus legis for observance by all independent Nation States who subscribed to the Articles of the United Nations organization and system. Subscription of membership of the United Nations by Nation States ipso facto meant admittance and applicability of these universally agreed rights within the context of the municipal laws of these States. So no Member State could elect to exclude itself from the principles and contents of the Articles of the United Nations Declaration.

22 T Ige & O Lewis, ibid. p.3.

23 Such as the Charter of the United Nations in 1945, the Universal Declaration of Human Rights in 1948, the International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966, Convention on the Elimination of All Forms of Discrimination against Women 1979, United Nations Convention on the Rights of the Child 1989 etc.

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States that are signatories to these instruments are thereby enjoined to enforce the agreements willingly entered into in their various States by using the instruments of government to ensure that the identified rights of persons were not trampled upon. Governments are thus required by the various international enactments on human rights to act in a certain manner or refrain from so acting to ensure that their citizens‟ fundamental rights were protected. The emphasis on human rights protection in States stem from its universal and inalienable character which recognizes that fundamentally the human race is one and across the globe the rights which enure to persons located in point A should be the same rights equally available to the persons in point B. Donelly agrees with this position as he has stated that to him “the Universal Declaration of Human Rights is the basis of establishing the contemporary consensus on intentionally recognized human rights.”²⁴ Arinze- Umobi concurs with the universality and inalienability of human rights. To her, “human rights are universal because each and every one of us wherever we are placed has human rights which are grounded in a moral order.”²⁵ Describing the universality of human rights, Malemi declares that every human being anywhere in the world is born with human rights; that human right is what enables a person to continue his humanity, and without human rights, life is meaningless, worthless and a mere shadow; and these norms are respected and protected everywhere.²⁶

What does universality of human rights mean? And to what extent can we truly say that human rights are universal? Human rights are universal rights because they apply to all men without discriminations,²⁷ and they are recognized as rights inherent in man by virtue of his being human; as such rights exist in all men regardless of colour, geographical location, political

24 J Donelly, Universal Human Rights in Theory and Practice: (New York: Cornell Press, 2003) p.22.

25 C Arinze-Umobi, Domestic Violence Against Women in Nigeria: A Legal Anatomy: (Folmech Printing & Pub. Co.

Ltd, 2008) p.23.

26 E Malemi, Constitutional Law in Nigeria (Princeton Publications, 2010) p.113.

27 T Ige & O Lewis, op cit; 8.

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or economic advancement or creed. The process of a co-ordinated recognition of human rights has actually been traced to the early Greek City States and the natural law school.²⁸ It was Cicero who was credited with the capturing of the universality of human rights born out natural law principles of justice when he stated that the rights inherent in every human being are:

For universal application, unchangeable and everlasting…it is a sin to try to alter this law nor is it allowable to try to repeal any part of it and it is impossible to abolish it entirely. We cannot be free from its obligations by senate or people…and there will not be different laws at Rome or at Athens or different laws now and in the future but one eternal and unchangeable law will be valid for all nations and for all times.²⁹

Human rights are “universal in that they are inalienable, self evident and applicable to all human beings.”³⁰ This principle of universalism and inalienability of the rights of human beings was first articulated in the Universal Declaration of Human Rights (UDHR) in 1948 and further reiterated in subsequent international human rights conventions and resolutions.³¹ These rights are recognized by the States as inalienable and so not to be taken away except in certain approved circumstances to ensure societal stability and development, and in accordance with approved procedures. Human rights are equal and non discriminatory,³² and States that have

28 P Ricoeaur cited in C Arinze-Umobi, op cit.

29 B H Weston, „Human Rights Questions for Reflection and Discussion‟ in Human Rights in World community, Issues and Actions(edited by R P Claude, Pennsylvania Press, 1989) p.13.

30 J Donelly, op cit.

31 For example, The Vienna World Conference of 1993 on Human Rights noted that it is the duty of States to promote and protect all human rights and fundamental freedoms regardless of the political, economic and cultural systems.

32 Art. 1 of the Universal Declaration of Human Rights (UDHR) 1948 provides that “all human beings are born free and equal in dignity and rights.”

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ratified the relevant international instruments which incorporates these rights also “assume obligations and duties under international law to respect, to protect and to fulfill human rights.”³³

The universality of human rights today is however debatable not so much as to its availability but to its applicability in the various States of the world. Waltz,³⁴ in her work based on the activities of Amnesty International asks the question; where did the idea of universal human rights come from? Whose values are being imposed? How can anyone claim that human rights are universal? The question is; are these rights given equal recognition by municipal and cultural laws which order the lives of people on a daily basis? It is arguable if the issues of human rights can truly be universal as “rights and values are defined and limited by cultural perceptions.”³⁵

According to Shashi Tharoor, who acknowledges criticisms of the western consensus that human rights are universal especially against the background of our “pluri-cultural, multipolar world,” it is “an essentially western concept ignoring the very different cultural, economic and political realities of other parts of the world; and concludes that if there is no universal culture, there can be no universal human rights.³⁶These rights by their nature ought to be universal but are they? Can a man or woman in Nigeria, state with all certainty that he or she enjoys the same rights as his or her mate in the United States of America, Canada, England or Japan? Or are we talking about a nebulous idea which ought to be but is actually not, given the realities of discriminations in various countries as discussed already in previous chapters of this work?

Culture which is the totality of the way of life of a group of people is not uniform or universal and indeed cannot be. Inherent in custom and culture are the issues of rights. Can these rights

33 Op.cit.

34 S Waltz, „The Universality of Human Rights;‟ (1999) Vol 6, Issue 3, Journal of International Institute, available at http://hdl.handle.net/2027/spo4750978.0006.302. accessed 24/07/15.

35 S Tharoor; „Are Human Rights universal?‟ Vol XVI, NO 4 World Policy Journal 1999/2000.

36 Ibid.

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actually be uniform and universal? It is doubtful. Are agitators of the universality of human rights actually using a particular custom as standard?

The question is; are these rights truly universal against the background of differences in culture, history, political and economic stages of development of nations? Does universality actually mean uniformity of rights for all human societies? Is the question of universality of human rights referring to the availability and recognition of these rights across nations of the world or is it referring to the applicability of these acknowledged rights? Can we actually have universal human rights when communities which make up the States have peculiar customs and traditions which still regulate their lives irrespective of globally acceptable standards of behaviour? Human rights and its universality it is conceded, must relate to the fact that these are rights every human being should enjoy simply because he is human; and the fact that these rights do not vary from country to country but are the same for all men everywhere and in all societies.

Also, that these rights are recognizable by all; and that there is a global need to protect these rights. The protection of rights is the responsibility of all persons and especially the responsibility of governments to ensure that domestic laws and strategies are put in place to guard against violations. If the universality of human rights is to the effect that world over men now enjoy these rights in the same measure it will throw up questions on the further need for the existence of the International Criminal Court (ICC), and newer and further protocols that have emerged on human rights issues.

It is equally important to note that nations may gloss over some human rights issues because such issues have over a long time been culturally permissible for instance the child marriages permissible under Islamic law in the northern States of Nigeria, the disinheritance of the girl-child in various communities of the Niger Delta already discussed. They do not see such