The Domestication of International Human Rights Instruments and Constitutional Litigation in Nigeria

DOI10.1177/092405190001800304
Date01 September 2000
AuthorDele Peters
Published date01 September 2000
Subject MatterArticle
The Domestication
of
International Human Rights Instruments
and Constitutional Litigation in Nigeria
Dele Peters·
Abstract
Nigeria has had a chequered history
of
human rights. Since its attainment
of
political
independence from the British about four decades ago, the country has experienced series
of
military coup and coup d'etat, and about three decades
of
military nile. Thoseperiods
of
military interregnum marked the peak
of
human rights abuse and abridgement in the
country. Even the short periods under democratic dispensation were not entirely without
some measures
of
human rights violations.
All
these were notwithstanding the fact that
some international human rights instruments have been domesticated in the country. This
article focuses on how the Nigerian Judiciary has responded to some
of
these domesticated
international human rights instruments in matters brought before them
for
adjudication.
Introduction
The protection and preservation
of
human rights was hitherto, at least before 1945, thought
to be or regarded as essentially internal affairs
of
individual sovereign States. Not only did
independent sovereign nations jealously guide their sovereignty in this respect, the
international community would also not interfere in such domestic matters
of
member
States. However, the atrocities committed in the pre-World War II years, the revelations
of
massive and gross human rights violations during the war period as disclosed at the
Nuremberg and Tokyo trials, coupled with the excessive use
of
weapons
of
mass
destruction resulting in catastrophic loss
of
lives and property shook the consciousness
of
the international community and questioned the basis
of
the theory
of
domestic sovereignty.
These events forced the intervention
of
the international community in the protection
of
human rights.
The first step taken by the international community was manifested in the Universal
Declaration on Human Rights adopted by the General Assembly in 19481which is merely a
declaratory statement
of
basic inalienable and inviolable rights. This was followed inter
LL.B Hons., B.L, LL.M.; Barrister and Solicitor
of
the Supreme Court
of
Nigeria; British Council Fellow;
member, Nigerian Society
of
Intemational Law; Research Fellow at the Department
of
Public and Private Law,
Nigerian Institute
of
Advanced Legal Studies, University
of
Lagos; Consultant to the Legal Aid Project of
Legal Research and Resource Development Centre - a non-governmental human rights organisation based in
Lagos, Nigeria. E-mail: delepeters@usa.net
IGA Res. 217 A
(II);
GACR, 3rd. Sess. Part I Resolutions, p. 74; William Digest, Vol. 5, p. 237.
Netherlands Quarterly
of
Human Rights, Vol. i8/3, 357-378, 2000.
©Netherlands institute
of
Human Rights (81M). Printed in the Netherlands.
357
NQHR
3/2000
alia, by the International Covenant on Civil and Political Rights,
1966;2
including its
Optional Protocols; the International Covenant on Economic, Social and Cultural Rights,
19663and the Convention on the Elimination
of
All Forms
of
Discrimination Against
Women 19894and its Optional Protocol. There are also similar instruments at the regional
levels.' The principles
of
these international human rights instruments have influenced the
basis
of
constitutions
of
most countries
of
the world, including Nigeria. Indeed, these
principles are also embellished and entrenched in the past constitutions as well as the
present 1999 Constitution
of
the Federal Republic
of
Nigeria. Besides, some
of
them have
actually been domesticated and indeed have formed the basis
of
constitutional litigation in
Nigeria. This paper examines some
of
the domesticated international human rights
instruments in Nigeria and the judicial pronouncements on them, especially in the realms
of
constitutional jurisprudence. But before that, it is appropriate to make some background
comments on the state
of
human rights in Nigeria.
I Human Rights in Nigeria: A Background Note
Human rights mean the rights
of
human beings, irrespective
of
their colour, race or sex,
distinguishing man (including woman) from other animals or mammals. Human rights,
according to one writer, are those rights which all human beings enjoy by virtue
of
their
humanity, whether black, white, yellow, malay or red, the deprivation
of
which would
constitute an affront to one's natural sense of'justice." Human rights are the embodiment
of
liberty, freedom and equality, fraternity and enfranchisement. It is the absence
of
tyranny,
oppression and dictatorial regimes. They are necessary requirements which every State is
expected to ensure to its citizens, and even though Jeremy Bentham would not agree, human
rights are nothing short
of
natural rights.'
The historical evolution
of
human rights in the modern Nigerian State is traceable to the
Minorities Commission Reports
of
1958.8With the attainment
of
political independence
from the British proposed for 1960, some ethnic minorities within the Nigerian political
entity expressed fears
of
political marginalisation and oppression by the three dominant
ethnic groups, viz. the Hausas, the Igbos and the Yorubas. Thus, in order to allay their fears
261
AnL
870 (1967); UKTS 6 (1977), Cmnd. 6702.
3Adopted on 16 December 1976, entered into force on 3 January 1976; OA Res. 2200 (XXI), UNGDR, 21st
Sess; Suppl. No. 16, at 49; UN Doc. A/6316 (1966); UKTS 6 (1977), Cmnd. 6702; 6 ILM 360. This Covenant
added economic, social and cultural rights to the list itemised in the 1948 Declaration.
4GA Res. 34/180
of
18 December 1979. See generally, Dele Peters Esq, 'Beyond Ratification: Implementing the
UN Convention on Women in Nigeria', in: Nigerian Current Law Review 1997, p. 255; Isabella Okagbue,
Women's Rights Are Human Rights, NIALS Occasional Papers Series, Nigerian Institute
of
Advanced Legal
Studies, Lagos, 1996; and C. Bunch, 'Women's Rights as Human Rights: Toward a Re-Vision
of
Human
Rights' , Human Rights Quarterly, Vol. 12, 1990, p. 487.
3For instance, the European Convention
for
the Protection
of
Human Rights and Fundamental Freedoms, 1950,
UKTS 70 (1950), Cmnd. 8969; 45
AnL,
Suppl. p. 24; ETS
No.5;
the Inter-American Convention on Human
Rights (1970), 9 ILM 672, in force 1978; and the African Charter on Human and Peoples' Rights (1981)
Nigeria's Treaty in Force 1970-1990, Vol. 4, p. 1023.
6M.A Ajomo, 'The Development
of
Individual Rights in Nigeria', in: Individual Rights Under The 1989
Constitution, M.A. Ajomo and Bolaji Owasanoye (eds.) NIALS Conference Series
No.4,
Nigerian Institute of
Advanced Legal Studies, Lagos, 1993.
7To Bentham 'natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense
upon stilts'. See: H.L.A. Hart, Essays on Bentham, Oxford, p. 79.
BSee generally J.O Akande, 'Securing Individual Rights Under Federalism', Constitutions and Federalism,
Proceedings of the Conference on Constitutions and Federalism, Held at the University
of
Lagos, Nigeria 23 -
25 April 1996, Friedrich Ebert Foundation, Lagos, p. 87.
358

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