1. ABSTRACT
This paper is focused on the extent of the application of ratified international laws in African countries whilst focusing on Nigeria as a case study. International Treaties to which Nigeria is a signatory are not automatically transformed into domestic laws neither do they take effect immediately unless they are specifically domesticated. This is achieved through enacting them into laws by the National Assembly. A focus would be on the very important and inalienable fundamental human rights which seem to pose a problem in enforcement in Nigeria, especially in the areas of arrest, detainment, remand and the awaiting trial Inmates.
- THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
The Universal Declaration of Human Rights is a generally accepted foundation of international human rights law[1]. Adopted on 10thof December 1948, the UDHR represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights[2]. Whatever nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, made a commitment to upholding dignity and justice for all of us.[3]
The major principles of human rights as contained in the UDHR include universality, interdependence and indivisibility, equality and non-discrimination. These human rights, which simultaneously entail both rights and obligations from duty bearers and rights owners, have been reiterated in numerous international human rights conventions, declarations and resolutions. Today, all United Nations member States have ratified at least one of the nine core international human rights treaties, and 80 percent have ratified four or more, giving concrete expression to the universality of the UDHR and international human rights.[4]
Nigeria is a sovereign member of the international community with full competence to enter into legally binding multilateral and bilateral obligations, having been admitted as the 99th member of the United Nations on the 7th of October, 1960.[5]Some of the treaties entered into by Nigeria include multilateral treaties, African/Regional multilateral treaties; including those entered with fellow West African countries and bilateral treaties entered into with single national or international/regional entities. Some national legislations of Nigeria also affect Nigeria’s treaty making powers or the recognition or enforcement of specific or select treaties or international custom or conventions in Nigeria. Some of those legislations include the Treaties (Making Procedure, Etc.) Act.[6]
There are other legislations which guide Nigeria in its treaties making powers. Nigeria’s international human rights obligations are contained in international human rights instruments ratified by the country and in some cases, arising from peremptory norms. Categories covered by human rights treaties or conventions/protocols include:
- Anti-Discrimination (On the Basis of Religion, Race, Gender, Etc.)
- Rights of the Child
- Women’s Rights
- Anti-Slavery Practices
- Protection from Torture & Disappearance
- Freedom of Association
- Employment &Labour
- Education
- Refugees & Asylum
- Aliens, Statelessness & Citizenship
- War, War Crimes, Crimes Against Humanity & Genocide (War & War Crimes)
- Terrorism
- Privileges & Immunities of Internationally Protected Employees[7]
- AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS(ALSO KNOWN AS THE BANJUL CHARTER)
The African Charter on Human and Peoples’ Rights(ACHPR)was ratified by Nigeria in the African Charter on Human and Peoples ‘Rights (Ratification and Enforcement) Act[8]. The Act’s creation is to give life to the application of the ACHPR in the Federal Republic of Nigeria or rather, that effect be given in the Federal Republic of Nigeria to the African Charter on Human and Peoples’ Rights made in Banjul on the 19th day of January, 1981 and for purposes connected therewith[9].The African Charter on Human and Peoples’ Rights is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.[10] It emerged under the auspices of the Organisation of African Unity(OAU) (since replaced by the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe (European Convention on Human Rights) and the Americas (American Convention on Human Rights). This committee was duly set up, and it produced a draft that was unanimously approved at the OAU’s 18th Assembly held in June 1981, in Nairobi, Kenya.[11]As provided and pursuant to its Article 63, the ACHPR was to “come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority” of the OAU’s member states.[12]
Other African countries that have ratified the ACHPR include Libya, Kenya, Ghana, Liberia, Egypt. The government of Burundi ratified this Organization of African Unity Charter on human rights on August 30, 1989; the government of Cameroon ratified it on September 18, 1989; and the government of Ghana ratified it on March 1, 1989.[13]
- FOCUSING ON NIGERIA
A prevalent abuse of the international laws in Nigeria can be gleaned from the aspect of poor enforcement of fundamental human rights. The fundamental human rights which have been enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended) as ratified by international treaties are listed out in Chapter Four as follows:
- The right to life
- The right to dignity of human person
- Right to personal liberty
- The right to fair hearing
- The right to private and family life
- The right to freedom of thought, conscience and religion
- The right to freedom of expression and the press
- The right to peaceful assembly and association
- The right to freedom of movement
- The right to freedom from discrimination
- The right to acquire and own immovable property.[14]
- HOW DOES INTERNATIONAL LAW PROTECT HUMAN RIGHTS?
“International human rights law lays down obligations which States are bound to respect”. This is obtainable through states becoming parties to international treaties. The signatory state by ratification or signing, as the case maybe, then assumes the obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.[15]
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.[16]
- CHALLENGES IN THE APPLICATION OF INTERNATIONAL LAWS
In June 1999,UNESCO Director-General, Federico Mayor, expressed his deep concern over the ever increasing number of African countries afflicted by war and associated human rights abuses. Fighting has raged in Sierra Leone, Guinea Bissau, Angola, Congo, the Democratic Republic of Congo, Somalia, Rwanda and Burundi, Ethiopia and Eritrea[17] Amnesty International also reported that twenty-four African countries had serious and widespread human rights violations in 1998 and that armed conflicts, social and political unrest continued unabated, leading to appalling human rights abuse throughout the continent.[18] Human Rights Watch (HRW) reported that Africa’s refugee population had increased to 6.3 million.[19] “Of the ten top refugee producers in the world, five were African: Burundi, Eritrea, Sierra Leone, Somalia, and Sudan”. In general, HRW concluded that “much of Africa made little headway in adjusting to the imperatives of democratic rule and respect for human rights”[20]
- THE GENERAL CAUSES OF HUMAN RIGHTS ABUSES
Nigeria as an independent State has signed on to several multilateral agreements at the global and regional levels. Nigeria has also over the years entered into several bilateral agreements or reciprocal covenants with individual nations, as well as international or regional bodies.
In my humble opinion, the following factors are the major contributors as to why human rights violations and abuse are widespread in Nigeria as well as other African countries:
- Struggling and under developed economies, with limited resources which inadvertently affect the population of a state or the performance of a government thereby resulting in wide-spread poverty;
- Corruption and mismanagement of natural resources;
- War and internal displacements of persons;
- ethnic diversity leading to tribalism;
- regional extremism;
- lack of regime legitimacy, as those large segments of the population not culturally and/or politically affiliated with the ruling elite and not sharing in the spoils refuse to recognize the regime as legitimate;[21]
- resort to military/police force to maintain power by suppressing political opponents and disgruntled civilians;[22]
- Violation of economic, civil, and political rights by the regime on the pretext of “national security.”[23]
- CHALLENGES OF ENFORCING FUNDAMENTAL HUMANRIGHTS AS RATIFIED IN NIGERIA
Paul J. Magnarrella[24] has expressed his concerns on the abuse of fundamental human rights in African countries. Fifty-one years after the United Nations adopted the 1948 Universal Declaration of Human Rights and almost nineteen years after the Organization of African Unity (OAU) adopted its own African Charter on Human and Peoples’ Rights, the human rights situation on the African continent is decidedly bleak. Indeed, achieving genuine respect for human rights may constitute the greatest challenge facing Africans States.[25] I agree with Magnarrella’s concerns which have been proven to be true by the constant abuse of the esteemed fundamental human rights in African countries.
- IGNORANCE, CORRUPTION AND POVERTY
In Nigeria, various prison visits and interview of remanded inmates overtime and also drawing conclusion from the large number of awaiting trial inmates have revealed that more than half of these inmates do not know or are not aware of the rights and options available to them. This is a drastic abuse of a person’s human rights as the first requirement at the point of arrest is that a person be reminded of his rights.[26]In fact most of these inmates have even recounted a similar story being that they are forcefully removed from the place where they were arrested and dumped in the cells or prisons and in some instances they recount stories of being tortured and beaten, which is in contravention with their rights even where a crime is alleged.[27]It is my humble opinion that the trial within trial conducted in criminal proceedings in fulfillment of provisions of the Evidence Act which was created to determine the voluntariness of a confessional statement given by an accused person after his arrest and being taken to the police station provided by the Act has not played much of the role it was created to play. Most times such statements are found as voluntarily made by the accused person and admitted into evidence.[28]Despite several ratifications of international treaties, majority are ignorant of the provisions of the law on human rights. In Nigeria, we see instances where agencies of the government, especially the Police force, are used to perpetrate the desires of highest bidders. In a state such as this, it is expected that the real nature and aim of fundamental human rights would be defeated as the citizens no longer seem to be equal before the law. It becomes a matter of who can afford to enforce his rights. This hugely contributes in making persons lose confidence in the law and its instrumentalities. This loss of confidence would defeat the main idea of international human rights which promotes its very nature of equality[29]and access to opportunities for redress where such rights are violated.
These cases range from the little complaints to allegations of crime. The court has held in Ogbonna V Ogbonna[30] that the police is not to be used in the recovery of debt. However, a more desirable order to have been emphasized would have been that the accused person’s fundamental human rights was breached and a reparation or compensation should be awarded even without the victims asking for it, because as the case is, they are not aware and may not be interested even where there is knowledge of same due to the reasons discussed above. Corruption is a vice which seems to be proving itself every day to be deeply rooted in every sector of the Nigerian system. Corruption which is in various forms would eventually lead to mismanagement of funds. This inadvertently plunges a country’s economy to poverty. Funds meant for certain accomplishments such as the enforcement of fundamental human rights would be diverted for other means and before long, only lip service would be paid to enforcement of fundamental human rights.
A recent report created by a German-funded Vienna-based NGO, World Data Lab, in 2017 shows that at the end of May, 2018, Nigeria, the 7th most populous nation on earth, had emerged as the country with the highest number of people sliding into extreme poverty, overtaking the 2nd most populous nation, India.[31] Lack of funds has proven to be a major restraint for affording legal representation by affected persons, although there are non-profit organizations such as the Legal Aid Council of Nigeria making efforts to represent indigent persons who require legal representation. However, such institutions also suffer limitations which they have attributed to funds and resources. This is obviously a raging factor for many of the challenges suffered by African states, although there are independent and private institutions/ law firms who take it upon themselves to represent indigent persons. But gleaning from the large percentage of such persons in the various prisons across the country, it would be safe to say that these organizations suffer financial restraints as well. If the economy of a country suffers then all other areas of such a state would be in a state of mismanagement as well. This is the reason corruption should be addressed and tackled on all fronts in order to ensure that the sacrosanct human rights are not left to the whims and caprices of a few with financial power.
10. LACK OF DILIGENCE IN THE PROSECUTION OF MATTERS
This is not only attributed to the Prosecutors as one may think, but also to legal practitioners representing defendants who ought to see that their clients’ matters get expeditious hearing. Unfortunately, such legal practitioners at times employ delay tactics in order to frustrate the just adjudication of the matters. Practically, in Nigeria, prosecution of a matter takes one year at best. At the worst scenario, it can run into years, taking into consideration the possibility of appeals to both the Court of Appeal and the Supreme Court.
Another contributory factor is the outrageous work load on the judiciary. Currently in Nigerian Courts there are matters which have been in Courts for up to ten years. However, matters of this nature are not matters filed under the enforcement of fundamental rights since the enactment of the Fundamental Rights Enforcement Procedure Rules[32]which provides for expeditious hearing of fundamental rights cases. For ease also, jurisdiction has been given to both the State High Courts and the Federal High courts with regards to the enforcement of fundamental rights cases. However, lack of diligent prosecution means that a person’s fundamental right may continue to get breached without respite from the court. This defeats the essence of the creation of the fundamental rights particularly if wrongful arrest and detention are involved, it may mean unabated languishing in prison for no just cause.
- COLONIALISM AND THE AFRICAN STATE
This has proven to be a major challenge in the enforcement of fundamental human rights in Nigeria and many African Countries who at one point was under colonization. For instance, state creation differed so markedly from the European experience. The Western liberal conception of individual-state relationships does not easily apply to Africa. European imperialists imposed the state structure on collections of ethno-political communities that historically lacked inter-communal coherence. The imperialists forced communities that lived independently of each other to live together in the newly-created colonial state. Most of these new citizens lacked any nationalistic bond to the colonial state. Today, only a few African states bear any territorial resemblance to the political communities that existed prior to European colonialism. The resulting disconnection between Africans and the modern African state has created a crisis of cultural, social, and political identity.[33] And Indeed this may be an underlying cause as to why new African states have failed to inspire loyalty in the citizenry; to produce a political class with integrity and national interest; to inculcate in the military, the police, and the security forces their proper roles in society; to build a nation from different linguistic and cultural groups; and to fashion economically viable policies”[34]. This historic, psychological process has adversely affected many African political leaders, who, lacking a genuine national commitment and sense of obligation, exploit state budgets and power to strengthen their ethnic power bases, enhance personal privileges and thus retain power. Such a strategy ignores the human rights entitlements of common citizens without discrimination. They rely on ethnic support in order to achieve and maintain positions of power. In return, these leaders have often favored their supporters with privileged access to the limited available resources. Such politics, by favoring the few over the many, has not and cannot generate the generality of legitimacy necessary for regime stability and internal security.[35]
- RECOMMENDATIONS
An approach which would seem to solve all the challenges as listed above would be to focus on eradicating the problems listed one after the other, so that the application of international human rights would rise and be applied fully and freely with little or no limitations. However, as tempting and ideal this may appear to be, it would amount to an utopian approach as these problems are prevalent not just in Nigeria, but in other African societies as well, and if focus is placed on the challenges alone, the fundamental rights may be ignored along the line as it seems that there would always be challenges in a state as long as it exists. In the face of these challenges, whilst thriving to eradicate them one after the other, Nigeria may opt to amend the Treaties (Making Procedure) Act, 2004or perhaps an alternative would be an amendment of section 12 of the 1999 Constitution[36] so that every treaty to which Nigeria is a party shall be automatically justiciable in Nigeria without need for any legislative intervention.
Although a commendation would be made to the judiciary for making efforts to see that fundamental human rights cases are heard swiftly and there is a concurrent jurisdiction of the state high court and the federal high court on this matter, it is however recommended that special courts be specifically created for the enforcement of fundamental human rights and to hear cases arising there from. It is also recommended that special and specific and equally heavy compensation is awarded against perpetrators of such act. Likewise, the contravening of another’s fundamental human rights be specifically criminalized in all aspects so as to be taken more seriously in countries where abuse of such rights is prevalent.
It is also recommended in this paper that courts suomotu make orders for reparation and compensation, or orders which will facilitate the enforcement of fundamental human rights from cases before them depending on the facts of each case.
It is also recommended that more courts should be created so as to lessen the burden on the judiciary.
- CONCLUSION
When States ratify laws or are signatories to international laws, it should not stop at the intentions to see them enforced; States and Governments are encouraged to create more efficient modes through which these laws are enforceable. The application and implementation of international human rights law is very essential to our continued existence and growth, therefore more seriousness should be accorded to them by States.
REFERENCES
[1][1]The United Nations on International Human Rights available at http://www.un.org/en/sections/universal-declaration/human-rights-law/index.html.
[2] Article 1 of the Universal Declaration of Human Rights 1948.
[3] Article 2 of the Universal Declaration of Human Rights 1948.
[4]30 Articles on the 30 Articles of the Universal Declaration of Human Rights at 70: Still working to ensure freedom, equality and freedom for all available at https://www.standup4humanrights.org/layout/files/30on30/UDHR70-30on30-overview-eng.pdf.
[5]Centre forTreaties of the Federal Republic of Nigeriaavailable at http://lawnigeria.com/FEDERATION-TREATIES.html.
[6] Treaties (Making Procedure, Etc.) Act, Cap. T20, LFN, 2004, Section. 3 Sub section3.
[7] Center for Laws of Nigeria: Treaties available at http://lawnigeria.com/Treaties/Human-Rights-Treaties.php.
[8]African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Chapter A9 (Chapter 10 LFN 1990) (No 2 of 1983) Laws of the Federation of Nigeria 1990.
[9]Op Cit N0. 3.
[10]African Charter on Human and Peoples’ Rights available at https://wikivisually.com/wiki/African_Charter_on_Human_and_Peoples%27_Right.
[11]African Charter on Human and People’s rights [PDF]. Retrieved on the 15th day of February 2019.
[12]African Charter on Human and Peoples’ Rights available at https://wikivisually.com/wiki/African_Charter_on_Human_and_Peoples%27_Rights ; the African Charter on Human and People’s rights [PDF]. Retrieved on the 15th day of February 2019.
[13]Organisation of African Unity, on the African Charter on Human and People’s Rights available at https://www.ncbi.nlm.nih.gov/pubmed/12344224.
[14]Sections 33 to 43[chapter 4] of the 1999 Constitution of the Federal Republic of Nigeria as amended 2011.
[15]The United Nations on the Foundation of International Human Rights available at http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html.
[16]The United Nations,Op Cit. No.10.
[17]“Amnesty International 1999 Regional Highlights, Africa.” Available at www.AI.org.;Paul J. Magnarrellain Achieving Human Rights in Africa: The Challenge for the New Millennium |PDF.]Retrieved on the 15th of February 2019.
[18]“Amnesty International 1999 Regional Highlights, Africa.” Available at www.AI.org.; Paul J. Magnarrellain Achieving Human Rights in Africa: The Challenge for the New Millennium |PDF.]Retrieved on the 15th of February 2019.
[19]Paul J. Magnarrellain Achieving Human Rights in Africa: The Challenge for the New Millennium |PDF.]Retrieved on the 15th of February 2019.
[20]Op Cit. No. 19.
[21]Paul J. Magnarrellain Achieving Human Rights in Africa: The Challenge for the New Millennium[PDF].Retrieved on the 15th of February 2019.
[22]MagnarrellaOp cit No.17.
[23]MagnarrellaOp cit No.17.
[24]MagnarrellaOp cit No.17.
[25]MagnarrellaOp cit No.1.
[26] Section 34 sub section 1 of the 1999 Constitution of the Federal Republic of Nigeria as Amended 2011.
[27] The Anti-Torture Act 2017; Section 34 sub section 1 of the 1999 Constitution of the Federal Republic of Nigeria as Amended 2011.
[28] Section 29 of the Evidence Act 2011.
[29]Article 1 Op. Cit No.2.
[30](2014]) LPELR-2308 23 WRN 48.
[31]World Poverty Clock (WPC) report by World Data Lab in 2017.
[32] Fundamental Rights Enforcement Procedure Rules 2009.
[33]Paul J. Magnarrella in Achieving Human Rights in Africa: The Challenge for the New Millennium (PDF). Retrieved on the 15th of February 2019.
[34]Op Cit. No. 31.
[35]Op Cit. No. 31.
[36] The 1999 Constitution of the Federal Republic of Nigeria 1999, as Amended 2011.
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