The National Human Rights Commission (NHRC), has inaugurated a four-man committee to examine and collate, national and state laws that conflict with human rights norms. Lawyers hail the move. Eric Ikhilae reports.
DESPITE being democracy, Nigeria is still battling to overcome its lawless past.
While state officials profess adherence to democracy and the supremacy of law, the reverse is, sometimes, the case in the exercise of state and institutional powers, with security agents major culprits.
Instances abound where such officials and security agents act in ways that betray their disrespect for the rule of law.
There have been cases in recent times where public officials and security agents/agencies disregard legal provisions or prefer to apply archaic laws or ones that offend globally- accepted human rights standards.
Court orders and judgments are still flouted with impunity and it even appears, sometimes, that some judges look the other way when state officials or members of the elite are clearly in contempt of court.
The police and other security agencies still violate citizens’ rights in the face of clear provisions in the Constitution and other instruments protecting human rights.
Also, security agencies tend to ignore judicial pronouncements voiding legal provisions that offend human rights.
Today, the police charge people with the offence of sedition for criticising public officials/institutions. This is in spite of the subsisting judgment of the Court of Appeal, delivered in 1983 in the case of Arthur Nwankwo v. the State (1985 6 NCLR 228, where the court declared illegal and unconstitutional, the use of state’s machineries to harass whistle blowers and critics of public officers and private citizens.
There are existing cases where the police become ready tool for the intimidation of ordinary people in what ought to be a simple civil matter. An example is the current case involving a journalist, charged by the police before the Federal High Court, Lagos for allegedly defaming the Managing Director of the United Bank for Africa.
Also, on June 1, 2009, in the case of Amadi Iyalla v. Director General, Nigeria Immigration Service (an unreported judgment by Justice Gladys Olotu), the Federal High Court declared unlawful the policy of the Immigration Service requiring married women to always accompany their application for passports with letters of consent from their husbands.
Earlier this year, the Federal High Court, in the case of Women Empowerment and Legal Aid v. Attorney General of the Federation (2015) 1 NHLR 39 abrogated Regulation 124 made pursuant to the Police Act, which prohibits a female police personnel from getting married for three years and where she is fit to marry, must obtain the consent of the Commissioner of Police in charge of where she serves.
Although most of these decisions are not known to have been appealed against, the affected agencies have failed to comply with terms of the judgments. They have also not taken steps to correct these inadequate legal provisions.
It is against this background that the initiative by the National Human Rights Commission (NHRC), acting under its powers as provided in Section 5(k) & (o) of the NHRC Act 1995 (as amended) to constitute a group of experts to examine existing legislations with the aim of harmonisng them with provisions of extant human rights instruments, is commendable.
Inaugurating the four-man group in Abuja last Wednesday, NHRC’ s Executive Secretary Professor Bem Angwe said the initiative, though novel, is intended to overhaul the nation’s legal architecture in the direction of human rights compliance.
He noted that his commission had, before now, been confronted with the challenges of conflict of laws (where some federal and state laws conflict with human rights standards) in the areas of promotion and protection of human rights standards as contained in the Constitution, the International Bill of Rights – the United Nations Charter, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and other specialised international and regional human rights instruments to which Nigeria is a party.
The group, Committee of human rights experts is to examine federal and state legislations to ascertain their consistency with human rights standards, has as members: Dr. Castro Ginigem (Chairman), Professor Alphonsus Alubo, Professor Ayo Atsenuwa and Abdulwahab Oyedokun (Secretary). The committee has four months, from the day of inauguration, to deliver on its mandate.
Basically, the committee is to:
- examine existing legislations –both at federal and state levels – in the light of human rights provisions contained in the country’s constitution, international and regional human rights treaties to which Nigeria is a party.
- identify and collate federal and state laws in conflict with human rights instruments to which Nigeria is a party.
- make recommendation to the commission (NHRC) for facilitation of amendment of such laws which are in conflict with human rights standards.
- undertake any other functions incidental to the attainment of the above.
Angwe argued that “one of the best means to ensure effective promotion of human rights is to align our laws with human rights standards as expressed in national and international instruments. This is important in this country with, arguably, one of the most complex plural legal systems in the world.
“As a complementary measure, the commission, both at the headquarters and through its state offices, will scale up its monitoring of bills and administrative provisions pending before the various legislative houses, with a view to ascertaining their compliance with human rights standards.”
Today, there are two generations of rights recognised globally. First are those classified as the fundamental human rights, captured in Chapter IV of the Constitution as well as the African Charter on Human and Peoples” Rights (ACHPR) and the Universal Declaration of Human Rights (UDNR).
They include the rights to life; dignity of human person; personal liberty; fair hearing; private and family life; freedom of thought, conscience and religion; freedom of expression and the press; peaceful assembly and association; freedom of movement; freedom from discrimination; freedom to acquire and own immovable property anywhere in the country.
There are the second generation rights set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Nigeria signed in 1993. Some of these rights include the right to work and enjoy favourable conditions of work; the right to social security, including social insurance; the right to enjoy the highest attainable standard of physical and mental health; the right to education; and the right to take part in cultural life.
This generation of rights is only mentioned in Chapter Two of the Constitution, with the title: “Fundamental objectives and directive principles of state policy”. But, despite the complementary provisions of Section 16 of the Constitution, particularly Section 16 (1)(b), which provides that the state shall “control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity,” Section 6(6)(c) makes such rights non- justiciable.
Section 6 (1) states: “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. Section 6(6) provides that “The judicial powers vested in accordance with the foregoing provisions of this section.”
Sub-section 6(c) states that the judicial powers granted the courts in Section 6(1) “shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.”
Aside this, the committee may well take note of a piece of legislation that has existed in the nation’s statute books for about 100 years, having been enacted on September 21, 1916. It is the Public Officers Protection (POP) Act. It is a product of the Public Authorities Protection Act of 1893, which applied to Nigeria as a statute of general application until the enactment of the POP in 1916.
The law offends the right of any Nigerian to, at any time, query public officers/institutions in the exercise of their powers.Besides, the law is too old, it protects public officers/institution against any legal action expect after three months when the cause of action arose.
Although it has two sections, the most poignant is Section 2(a).
Section 2 provides that: Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or intended execution of any Act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act, aw, duty or authority, the following shall have effect.
The “following referred to is contained in subsection 2(a), and it states: “the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
There is also the controversial Force Order 237 on the use of force by the police. It has been blamed for frequent cases of right abuses by police personnel.
Those who hide under the inadequacies inherent in the provision have argued that there is a policy vacuum in respect of how and when firearms may be deployed and the circumstances governing the use of force by men of the Nigeria Police Force.
Although Oyedokun assured that the committee will do a thorough job and ensure that its recommendations are adopted by the various legislative houses, with a view to adopting them as laws, lawyers, including Femi Falana (SAN), Sadiq Olusola and Chigozie Chuwkuma have suggested ways of ensuring a successful outing by the committee.
Oyedokun told The Nation that his committee has devised ways of avoiding past incidents where efforts deployed to law reviews are wasted because such reviewed legislations are not adopted or reenacted as amended laws by the legislative houses.
“We are fully aware of the cognisance of the provisions of Section 4(1-9) of the Constitution, which vests the legislative powers of the federation and the states on the National Assembly and states’ Houses of Assembly.
“In view of this, we are only required to make proposals and recommendations, which may come in the form of Executive or private member Bills. The approach to be adopted will be determined by the committee at the end of the day.
“Incidentally, we have a very robust relationship with the National Assembly. As we go along, we intend to extend that relationship to the states’ Houses of Assembly, while also strengthening relationship. We will also involve the media, the civil society organisations and the populace.
“Most issues relating to rights abuses in the country are those affecting the ordinary people. For example issues of torture, forced disappearance, violation of women, rape, among others are issues in respect of which, I think, no legislative house will delay when called upon to enact or amend laws.
“As we go along, we will involve all other relevant institutions of government. Although I don’t think representatives of the legislature should be part of our committee, we will carry along critical segments of law making bodies in our duties, knowing that our recommendations would end up with them,” Oyedokun said.
Falana, in his presentation during the committee’s inauguration, drew its members’ attention to the various radical provisions in the Administration of Criminal Justice Act (ACJA) 2015 in relation to the basic rights of suspects.
“It is clear that all the fundamental rights guaranteed by Chapter IV of the Constitution are civil and political in nature. To that extent, they are of no relevance to the majority of our economically disadvantaged people.
“As I have repeatedly maintained, unless the fundamental objectives enshrined in Chapter Two of the Constitution and the socio-economic rights guaranteed by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act are actualised, fundamental rights will remain the exclusive preserve of the bourgeoisie.
“The committee should therefore recommend measures that will lead to the enforcement of all the welfare laws which have been enacted by the National Assembly and various Houses of Assembly pursuant to Chapter Two of the Constitution.
“It is my fervent belief that we cannot amend laws to comply with international human rights instruments and standards without addressing the actualisation of the social, economic and cultural objectives set out in Chapter Two of the Constitution,” Falana said.
Olusola praised the HNRC for the initiative, but expressed pessimism in the committee’s ability to engender the needed change in the nation’s human rights regime.
“Must as I appreciate the effort of those behind this initiative, I am concerned about the actual realisation of their objectives. This is a lawless society, where the rich and privileged trample on the law without any negative consequence.
“Members of the elite class in this country see themselves as being above the law. Cases abound where people have been detained for months or years by the security agencies solely on the instruction of a privileged individual.
“We hope they will be able to achieve anything meaningful. But they must start by recommending that the provisions of Chapter two of the Constitution becomes justiciable,” Olusola said.
Chukwuma equally applauded the NHRC for the initiative, but argued that it will be impossible for the country to operate on the same wavelength with the international community on issues of human rights where the country still battles with institutional inadequacies.
“There is the need to re-orientate law enforcement agents and judicial officers to be sensitive to the rights of the people irrespective of their status. It is easy for courts today to grant bail to the rich, but deny bail to the poor even where the offence of the former is more severe.
“I doubt if we can make any headway in this regard because, the ideal of free human beings, enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social, cultural, civil and political rights,” Chukwuma said.
