HUMAN RIGHTS AND NATIONAL SECURITY: A CRITICAL APPRAISAL OF THE NIGERIAN PERSPECTIVE
In almost every corner of the world, no issue can be as mind boggling as a discussion on human rights. While the exact scope of human rights may be in dispute, the researcher has no doubt that any discussion which has the possibility of enhancing the quality of man’s existence on earth must be related to the rights of man.
It could be correctly asserted that there has been concern for human rights since antiquity through the various stages of socio-economic formations upto the modern era. In the study of human rights, one encounters relevant legal acts, constitutions, statutes and international instruments, various terms and notions other than human rights. These include fundamental rights fundamental freedoms, civil liberties and civil rights, individual and collective human rights as well as people’s rights1. It is also relevant to mention that the activities of man’s right from birth to his death are directed by an incessant desire and search for justice and ceaseless efforts to avoid injustice.2
Thus, as would be seen hereunder, the issue of human rights and National Security has become contentious question of concern. This is not unconnected with the fact that Human right claims at times directly or indirectly affect the national security of the area where the agitation is made. The two dominant players in the arena being the state and individual (citizens) often times overlook the necessity of striking a balance between protection and enforcement of Human rights and the maintenance or promotion of National Security. This failure to strike a balance at times lead to suppression of human rights to the detriment of the citizens in one hand, and inordinate claims of rights which could become a threat to National security on the other hand.
From time immemorial, the state has been placed with the task of promoting the inalienable rights of its citizens and as well as protecting and safe guarding National security. From the state of nature, when might was right to the emergence of a civilized Society and submission of absolute power to the state, man has been the cause of human rights abuses and National Insecurities. A good instance could be seen in aspect of domination and assertion of liberation from dominance as evidenced in outbreak of civil wars.
Attempt is made in defining the relevant terms “National Security” has been defined to mean freedom from fear, risk, danger, vulnerability or susceptibility. Because self – preservation or survival is regarded as the first law in nature, security logically becomes a primary consideration of any Government. It is small wonder then that Section 14 (1) of the 1999 Constitution of the Federal Republic of Nigeria unambiguously prescribes that “the security and welfare of the people shall be a primary purpose of government”. Thus, conceptualized national security is a collective or public good that governments try to provide for all their citizens, regardless of the quantum of resources which individuals and communities contribute through taxation and regardless of the fortunes and performance of others who may be described as “free-riders” those who enjoy the benefits of collective goods but pay little or nothing for them.3
3. National Security in a Democratic society. A text of lecture delivered by His Excellency, Arc (Obong) Victor Attah, at the 2nd National Annual Security. Watch Lecture held at Abuja on May 30, 2006
National security is also used in its widest sense to include not only the measures relating to the preservation of the country’s physical entity,
but also the preservation of the country’s political stability, it’s economic and national interests, and the general protection of the safety and well – being of it’s citizen. Government’s constitutional responsibility for guaranteeing the security and welfare of its people necessarily entails discharging certain obligations under municipal law and international law.
Domestically, this obligation calls for the making of laws, rules and regulations aimed at ensuring peace, order, safely of lives and property as well as good governance of the country. Internationally, government is obligated to observe international law, which protects the lives of citizens and promotes their welfare.
5. 1999 Nigerian Constitution of the Federal Republic of Nigeria
A comprehensive conceptualization of the notion of national security distinguishes between two contending viewpoints. One is the conventional security Doctrine which perceives national security as being associated with the protection and defence of the irreducible minimum of a states vital interests or core values such as the preservation of political independence, sovereignty and territorial integrity of the state interests or values which can only be maintained by military prowess4. That is why in classical terms, military might is considered the principal instrument for guaranteeing national security. It is pertinent to indicate that Section 217 (2) 5 deals with the “Armed Forces” of the Federation, composed of the Army, the Navy and the Air Force while the “Security Forces” or the “Security Machinery” in Nigeria other than the Armed Forces include the office of the National Security Adviser; and the Prison Service.
As is well known in performing their constitutional functions, the security agencies may incorporate or coordinate the activities of other bodies such as the Fire Service, Nigerian Security and Civil Defence Corps (NSCDC), the Nigeria Police, the State Security Service (SSS), the National Intelligence Agency, (NIA), Defence Intelligence Agency (DIA), the Custom Service (CS) etc.
6. Appeal No. CA/A/245/M/2005
Consequently, it should be noted that the work also discusses in details how National Security overrides individual rights in protection of human right as was buttressed in the case of ALHAJI MUJAHID DOKUBO-ASARI V STATE 6. Where the learned counsel for the respondent contended that “where national security is threatened or there is the real likelihood of it being threatened, human rights or individual rights of those responsible takes second place. Human rights or individual rights must be suspended until the national security can be protected or well taken care of”.
At the end of this work, the researcher would be able to say with certainty whether National Security should override the individual’s human rights and also how it affects most rights known as the fundamental rights
of a Nigerian citizen as enshrined in chapter Iv of the 1999 Constitution.
1.1 DEFINITION OF HUMAN RIGHTS
As a preambular remark, Human Rights stricti sensu cannot be construed as Fundamental Human Rights. Human Rights have a vast applicability and are not limited to territorial borders of a state while Fundamental Rights are applicable within a particular country and is more particularistic than Human Rights.
7. Yewens V Noakes (1890) 6 Q. B. D. 530 at 532
Thus, following the definition of Human Right in discourse, it is to be noted that there is no unanimity in the definition of human rights by both legal and political writers. According to THESIGER l.J,7 “definitions are proverbially dangerous”. This contention agrees with the Latin maxim “Omnis definitio in Lege periculosa” – which means that all definition in law are dangerous. The idea behind such contention is premised on the fact that every definition is distilled from the perspective of learning and experience of the author.
However, many writers and jurists had fashioned out some useful definitions, which have satisfied to an extent the search for a workable definition respecting the concept.
Human rights are rights that belong to every human being they are attributes of a person as a human being.
According to CRANSTON,8 “Human rights are something of which no one may be deprived without a great affront to justice. There are certain deeds, which should never be done, certain freedoms, which should never be done, certain freedoms that should never be invaded, something that are suppressively sacred.
DOWRICK, defines human rights as’, “Those claims made by men, for themselves, or on behalf of other men, supported by some theory which concentrates on the humanity of man, on man as a human being, a member of human kind.9
8. M. Cranston: “Human Rights: Real and supposed” in Rapheal (ed) political Theory and the Rights of Man, Bloomington, 1967 p.52
9. Dowrick, F. E. (ed) Human Rights, Problem, perspective and Texts, Westmeat, U.K.: Saxon House; 1979, p.8-9
Sowrick’s thought though shrouded in ambiguity can be linked to the philosophy of natural laws, which in its time was politically motivated, in spite of its religious and ethnical colourations. The developing capitalist class of the early 19th century waged their war against feudalism on the banner of the ideas of natural law, which also centers on the humanity of man.
According to OSITA EZE,
“Human rights represents demands or claims which individuals or groups make on society, some of which are protected by law and have become part of Lex Lata while others remain aspirations to be attained in future10.
Another constitutional law jurist, Sir IVOR JENNINGS saw human rights as “rights which are commonly recognized as essential for effective social life and which, being considered to be inherent in the idea of justice, should be protected…exactly what they depend upon the state of opinion and the organization of the society”.
10. Human Rights in Africa (1981) pg. 5.
11. Dr. Muhammad Tawfiq Ladan, 1999
A learned author 11 in his book introduction to International Human Rights and Humanitarian Laws defined Human rights as “those rights, which are inherent in our nature and without which no society is viable and able to survive”.
With regards to the definition, this researcher, without trepidation, defines “Human right as standardized rights with moral and civil contents, recognized universally as appertaining to humans, necessary for an ordered civilized relations, recognized and protected by law for the betterment of the society.
Definitions of human rights may be in exhaustive, and need not be amplified in its entirety in this work. However, this takes us to paragraph one of the preambles to the Universal Declaration of Human Rights, which in defining Human Rights states, “…Recognition of the inherent dignity and of the equal and inalienable rights of members of the family is the foundation for freedom, justice and peace in the world”.
Taking a critical look at the definitions canvassed above, certain common ingredients are palpable. One is that Human rights are quintessentially universal in nature. All human beings everywhere by virtue of being human possess them. This smacks of the fact that Human Rights standard are internationally applicable regardless of cultural or religious difference. In so saying, this researcher acts ex abundanti cautela, not ignoring the concept of “cultural relativity”. The concept of cultural relativity opines that some human rights provisions are recognized and enforced in some areas because of certain cultural peculiarities inherent therein, which has bearing to the values of that society.
Another important factor is that Human Rights focuses on Rights and freedom of the individual with emphasis on the corresponding obligations of the states. These obligations can be active in nature, entailing an obligation to provide something or allocate resources, or passive as in where the obligation is to refrain from taking action.
Finally, they are based on mankind’s increasing demand for a life in which the inherent and worth of each person receives equal respect and protection through some may be limited only for legitimate purposes. Our attempts so far at ascribing meaning to Human Rights takes us to another aspect of this chapter, the impact and development of Human Right.
IMPACT AND DEVELOPMENT OF HUMAN RIGHTS
Since the adoption of the universal Declaration of Human Rights in 1948, there has been a continuing concern for the protection of certain basic rights, which a man is entitled to enjoy by the mere fact that he is a human being. The concept of human right is as old as human society and was evolved, to a large extent as an instrument of revolt against tyrannical Government. Thus, there is no doubt that the history of humankind is marked by efforts to ensure respect for the dignity of human beings. The concept of the Human Right was introduced and developed by thinkers from cultural and religious traditions. An important tradition to the promotion of this idea was made by statesmen and lawyers. Written norms establishing protection of the rights of individuals were gradually inscribed in the national laws.
In discussing this sub-head, a good start is the historical perspective of human rights development. In his book, Prof. Osita Eze opined that concern for human rights held it’s root from the time of the Greek city states through the various stages of socio-economic formations. This was seen in the political economy of the ancient states as exemplified in the struggle between the privileged and the oppressed. Thus, under the slave society, the individual was seen as a chalet. Under feudalism, the labourers or serfs were seen as inferior breed of human species and as such were subjected to a degrading and hard labour to satisfy the needs of the overlords. However some progress were made under capitalism since the idea of liberal democracy allowed to some extents, the exercise of political and civil rights. The impact of such freedom was not pronounced because the ruling class by its effective control of the means of production and by dominating the political, legal and other areas of the superstructure determined the limits of human rights evolution and protection.
As the society progressed, the European and Arabian contact with Africans and its consequential colonialism had a definite impact on humans and their rights in terms of values embodied in their laws and customs. This was a great pathway to the evolution, impact and development of human rights conception in Nigeria. The missionaries fanned the ambers of it’s protection as the churches took it upon themselves to examine the content of the divine laws, frowning at human sacrifices and killing of twins which were fragrant violations to right to life and dignity of human persons. Even though the colonial constitution has some human rights provisions, therein, and courts do administer same, colonialism was instrically a contradiction to human rights. The domination and exploitation of the natural resources of the colonized states deprived the people of the material means to ensure effective promotion and protection of human rights.
The Declaration of 1948 is one of the most important milestones in mankind’s effort that actually impacted development of human rights amongst the people. It prescribed and defined the responsibilities and obligations of states to citizens rights or charter, describing it as the rights of the individual vis-à-vis that of the state.
The charter of the United Nations expressed the determination of member States “to re affirm faith in fundamental Human Rights, in the dignity and worth of human person, in the equal rights of men and women…”
Although considered universal, the Declaration has in its fifty years of implementation faced the inevitable challenges of establishing a balance between the enjoyment of rights by citizens and the demands of national security on the other hand. Hence in every country there seem to have arisen specific dilemma or challenges peculiar to individual states in their compliance with the tenets of the Declaration.
As seen above, the evolution of the international Human Rights Convention and treaties is one of the most remarkable features of the development of human rights since 1945. Though progress had been made mainly through treaties. In Nigeria, the Willinks Commission set up in 1958 by the British Colonial Government to look into the demands of minorities recommended the adoption of some of the norms of the 1948 universal Declaration of Human Rights into the Nigerian Constitution as a panacea for fear expressed by the minorities in the country. These norms were adopted and introduced into Chapter V of the Independence Constitution of 1960 as fundamental rights. The above rights were subsequently entrenched in the 1963, 1978, 1989 and 1999 constitutions of the Federal Republic of Nigeria.
Following the discussion above, the researcher of this work comments that:
Given that human rights are seen as on universal affair, and conceding the fact that the Vienna declaration confirms expressively in paragraph 1 that “The Universal nature of these right and freedom is beyond question. Why has our constitution safeguarded only a particular class of right leaving others unprotected? Does it not amount to a breach of international obligation expressed in the Maxim pacta sunt servandi, considering that Nigeria ratified the Vienna Declaration? This dichotomy baffles the researcher as the economic and social rights, which are non justitiable is the sub stratum upon which other rights can be well founded.
SUMMARY OF THE IMPACT
Human Right has made significant impact on both national and international law. In the National level, the following impacts are evident.
The modification of court rules to specifically cover the enforcement of human rights. An example in point is the Fundamental Human Right Enforcement Procedure Rules 1979.
The formation of Human right organizations and commissions.
The transition of Government from Military to Civil rule was engineered by Human Rights promotion and protection.
Human right has influenced the bench of the judiciary by evincing in some judges radical and pragmatic drives in deciding matters between the state and citizens interse.
In the International arena, focus is not restricted on the state as the sole subject of international law as hitherto contended, but individuals are now seen as subject of international law.
Equally, claims of title to territory cannot be made without some consideration to the right of the inhabitants of that territory (self determination).
Human right influence limits the sovereignty of states, since the treatment of an individual by a state is seen as a matter of international concern and not to be left exclusively for national or domestic jurisdiction especially during military and autocratic regimes.
CLASSES OF RIGHTS
Jurisprudentially, only a right recognized and protected by the legal system can be considered as right striti sensu.
According to AYOOLA JSC
“There are various classes of rights. There are proprietary rights and non-proprietary rights. There are rights protected by private law as well as rights protected by public. A person who is elected to an office acquires a right protected by public law to assume that office. It is a right law to assume that office. It is a right which only persons elected have and which a person not elected does not have…”12
These rights are generally grouped under five sub-headings: civil, political, social, economic and cultural.
Civil and political rights are often reformed to as (1st generational rights). They are basically individual right. This 1st generation of rights require government as well as individuals to abstain from unduly interfering with the liberty of person. The civil and political rights include the right to self determination, the right to life, freedom from torture and in human treatment, freedom from slavery and forced labour, the rights to liberty and security, freedom of movement and choice of residence, right to fair trial, right to privacy, freedom of thought, conscience and religion, freedom of opinion and expression, the right of assembly, freedom of association, the right to marry and found a family, the right to participate in ones government either directly or through freely elected representatives, the right to nationality and equality before the law.
12. See P. D. P. V. INEC (1999) 7 SC (pt 11) at 148
The above-mentioned rights are the justiciable rights in Nigeria as same are guaranteed by chapter IV of the constitution.
Another important classes of rights include social, economic, and cultural rights, which are considered as 2nd generation rights. These rights were fuelled by the consciousness occasioned by the influence of capitalism. They are collective rights because they are best appreciated in the relationship of individuals in the society. They are expensive, requiring expenditure, infrastructure and forward planning. They include the right to work, the right to just conditions of work, the right to fair remuneration, the right to an adequate standard of living, the right to organize, form and join trade unions, right to collective bargaining, right to equal pay for equal work, right to social security, right to property, right to participate in cultural life and enjoy the benefits of scientific progress. These rights are found in chapter two of the constitution of Nigeria and are non-justiciable except the right to property13, which found way into the category of fundamental rights in the 1999 constitution.
13. See Section 43 of the 1999 Constitution
The 3rd generation rights pertain to group and solidarity rights. The African charter awakening, resulting in group consciousness fanned the ambers of this right. Examples of these rights are the right to self determination (no domination), minority rights, right to good development, right to free disposal of natural wealth and resources and right to good environment.
COMMENT: The quest for Ibos to return to Biafra, and the quest for better environment and right to development by the OGONIS is a good example of a third generation right.
The classification of rights as herein discussed is academic, with no much effort in practice except for enforceability. This assertion is a truism and the court had held in NEW PATRIOTIC PARTY V. I.GP ACCRA14 that “All human rights and fundamental freedoms are indivisible and interdependent”. Thus, equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights. In the last resort, they are exercisable within a societal context and impose obligations on the state and the agencies as well as on the individuals not to derogate from these rights and freedom.
THE IDEA OF NATIONAL SECURITY
The Nigerian leaders have always tended to define national security narrowly. Instead of adopting comprehensive national strategic goals that are very capable of uniting the country’s economic development of the nation, national security has always been defined in practical terms to include those who are not in government or oppose government policy.
However, the purpose of national security is to safeguard national values. And the most fundamental value of any nation is survival, self preservation and self-perpetuation. In this regard therefore, the national security goal of Nigeria has always been to expel external aggression and
contain internal up heavals. Under such paradigm, the state military power was the primary focus. But while the rest of the world has now come to recognize economic imbalances, environmental issues, terrorism and weapons proliferation, international health, international migration, natural
resources and shifting demographics as part of the national security equation, Nigeria continues to stick to tired model of national security.15
National security once meant military power. It was later expanded to include International economics; however, according to Mathews (1989), “global developments now suggest the need for another analogous, broadening definition of national security to include resource, environmental and demographics issues”. And indeed, no national state can afford to ignore environmental degradation”. In the Niger Delta region of Nigeria for example, the ongoing agitation and melee is not just as a result of political marginalization, theft and institutional corruption. It is also a consequences of environmental degradation which manifest itself in air and water borne diseases.16
More so, there is a false sense of safety in Nigeria when it comes to international terrorism. There are no official policies to thwart terrorism.
15. SABELLA O. ABIDDE: Redefining Nigeria’s National Security, Sunday, January 30, 2005
16. Chen, Lincoln and leaning Jennifer, Eds., Global Health Challenges for Human Security, Harvard University Press, 2003
There are no official policies to dislodge terrorist organizations. Infact, neither the security nor intelligence organizations have had cause to address the issue of international terrorism on Nigeria’s soil. The time has come for a change in attitude, priority and policies especially since Nigeria is already home to several Islamic and Christian fundamentalist groups that are waiting for the opportune time to wreck havoc. By virtue of her position as the “giant of Africa”, Nigeria invariably becomes the object of untold and unwarranted intension from nation-states and extra judicial organizations. That there has not been terrorist incidence does not presuppose safety and security.
Moreover, there are several ethnic groups when feel abandoned and slighted and are open to the belief that “terrorism is the weapon of the weak”. In the Niger Delta and in most of Nigeria, abject poverty is rampant. David Palmer, quoted in Martha Crenshaw’s “Terrorism in context” (1995) suggested that “isolation and poverty” breed terrorism. The recent killings, Wanton destruction of property and the taking of hostages in the riverine areas of Nigeria is the sign of things to come.
The Nigerian security and intelligence agencies are seldom discussed in political arena. Therefore, their successes and failures are shrouded in secrecy. Even so, it could be assumed that there has been more failure than successes. Why for instance, have these agencies not been able to imbed some of their members in the inner circle of these responsible for fanning religious and ethnic conflicts? The federal government must give security and intelligence services a new mandate to combat both local and international terrorism.17
The age of associating national security with just external military aggression is over. Terrorism is at the top of “modern” national security. Nigeria cannot pretend it is not home to a network of terrorist. She cannot assume she will never experience a calamity in the magnitude of what happened to the United State on September 11, 2001. Consequently, the time has come for Nigeria to redefine “national security” to include not just military projection, but also environmental security, economic well-being, international health and demographics, and good governance.
According to TORULAGHA (2004), national security must also include “…good governance…Anything short of the totality of good governance minimizes the meaning of national security…unfortunately, in Nigeria and in most states in Africa, the leaders do not seem to realize the importance of good governance and transparency”. It is unfortunate that
Nigeria, for much of its existence as a nation-state, has not been blessed with good governance and transparency, for we have plethora of instances ranging from the violation of human rights, violation of the constitution of Nigeria, violation of court orders by these in power (etc) 18
However, following the sub-heading in discourse, it follows that the discussion would be incomplete without relating it to human right. National security or state security is one of such grounds for limiting the exercise of human rights. The above could be interpreted to include such epithets as public defence, public order, or public peace, (etc). It means any act which appears to be a threat to the peaceful existence of the society, for instance, war, either civil or external wars, unlawful riots which pose a threat to the property, public or private and a threat to public order (etc).
National security as defined above falls within those sets of factors that limit human rights on the sole grounds of the interest of the generality of the society or social good. The rationale for limiting human
18. Mathew, Richard A. Contested Grounds: Security and conflict in the New Environmental Politics. State University of New York press, Albany 1999.
rights on grounds of social good or interest of other individuals was succinctly put by Lord Denning in the following words:
“The freedom of the just man is worth little to him if he could be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders. It must have power, to arrest, search and imprison those who break the law so long as those powers are properly exercised, they are themselves the safeguards of freedom”.19
The above statement of the learned jurist is important because apart from approving the need for limitations on human rights, he also suggests that such limitations would only be meaningful and serve their purpose if the powers conferred on any authority to limit human rights is properly exercised within and under the law and not arbitrarily exercised.
Meanwhile, it is common knowledge that authorities vested with such powers to limit human rights more often than not violate these rights hiding under the cloak of such legal factors as National Security, National interest, social good, (etc). It is the intention of the researcher to appraise some of such violations of human rights by the authorities for example, government for selfish reason but purporting to be acting in the interest of the security of the nation.
19. Culled from fundamental Human Rights as a means of achieving justice in society. Lecture Handout delivered by D. O. Aihe to 1989/90 Session Students of constitutional Law, University of Uyo, pg. 2
It is also important to mention at this point that the sanction given to human rights involves a conflict of interest and a balancing of such interest of the individual on the one hand and that of the state on the other hand.
The idea of National Interest or National Security as a limit on human rights is given legal validity in Nigeria by the constitution of Nigeria20, The 1979 Constitution to be precisely provides in section 34, 35, 36, 37 and 38 of the Constitution that “Nothing shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality and public health.21
It is worthy to note that the underlining principle behind the above provisions of Section 41 could be termed National Interest, National Security on social good on the one hand and that of the State on the other hand.
The idea of National interest or National Security as a limit on human right is given legal validity in Nigeria by the 1999 Constitution. The Constitution provides in Section 45(1) as follows: “Nothing in sections
20. State Security (Detention of Persons) Decree No. 2 of 1984 (hereinafter referred to as Decree No. 2 of 1984.
21 See particularly section 1 of Decree No. 2 of 1984
37,38,39,40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality and public health.
It should be noted that the underlining principle behind the above provisions could be termed National Interest National Security or social good.
More so, the Decree No.2 of 1984, makes provision for a valid limitation on human rights on grounds of State Security, for instance, the Decree provides as follows:
“If the vice president is satisfied that any person is or recently has been concerned with acts prejudicial to State Security or has contributed to the economic adversity of the nation, or in the preparation or instigation of such acts and that by reason thereof, it is necessary to exercise control over him, he may by order in writing direct that such person be detained in civil prison or police station or such other place specified by him, and it shall be the duty of the person or persons in chart of such place or places, if an order made in respect of any person is delivered to him, to keep that person in custody until the Order is revoked”.
A critical evaluation of the above provision of the Decree No. 2 would reveal that the powers conferred on the Vice president to detain citizens is rather too wide and stands the threat of being violated or abused to the detriment of the individual, for instance, provisions like:
If the vice president is satisfied” is rather too wide and unreasonable and susceptible to abuse by the vice president if he so wishes since it lies within his personal satisfaction or judgment to determine what acts are prejudicial to State Security and therefore who should be detained, once the vice president is satisfied and purports to act under the above provisions he can detain any citizen without question.