HUMAN RIGHTS AND NATIONAL SECURITY:  A CRITICAL APPRAISAL OF THE NIGERIAN PERSPECTIVE

ABSTRACT

It is widely and almost universally acceptable that the significance of Human Rights in any democratic society has been given wide recognition. While some societies find consolation in entrenching fundamental human rights in their constitutions, as a means of guaranteeing the enforcement of these rights other societies prefer to adopt other means all aimed at guaranteeing the rights. Whatever method of guarantee adopted it must be observed that the enforcement of these rights deepens more on the government in power than on the critical entrenchment of these rights in constitutional documents. This is so because any government determined   to abandon the democratic course will find ways of violating the rights. It is therefore my intention in choosing this topic to highlight and critically appraise those instances, where the government has found ways of violating human rights by justifying their actions on grounds of National security, National interest, Public interest, Public policy and so on. National Security itself, as an instrument limiting Human Rights, has a legal validity and is desirable if properly and genuinely exercised because it helps to check the excesses of Human Rights and ensure that the society as a whole is in peace and  order. But the annoying situation is where the governments of (National Security, National interest) to perpetrate injustice. An example of such situation was buttressed in the case of AGBAJE V C. O. P. (1969) NMLR 176, where the court held that Agbaje was unlawfully detained by the police complying wife an order made by the Inspector General of police acting under powers conferred on him by the Armed Forces and police (special powers) Act 1967.        Finally; the topic in discourse is based on incisive jurisprudential evaluation of the extent to which the government enforce human rights visa-viz the nations security. And it contains in improving our study and knowledge in that aspect of our law.

TABLE OF STATUTES

The African Charter on Human and People’s Rights Cap 10 LEN1990.

The Constitution of the Federal Republic of Nigeria 1999.

The Land Use Act 1978, Cap 202 Laws the Federation of Nigeria. 1990.

The Magna Carta of 1215.

The United Nations Declaration on Human Rights 1948.

SELECTED BIBLIOGRAPHY

1. AGUDA, T. A (1983) Judiciary in the Governance of Nigeria: Newhorn press.

2. CHUKWURAH, A. O (1989) Administration of Justice in Africa problems and prospects at Conference for integration of Africa continent through Law.

3. CHUKS OKPALUBA (1992) The Right to a fair Hearing in Nigeria: shelters International Ltd. 130 Broad Street.

4. AGUOBADU & A. O ADAKUNLE (2004) Ethnicity and National Integration in Nigeria: Nigeria Institute of Advanced Legal Studies.

5. GASIOKWU, M.O.U (2006) Human Right History, Ideology and Law: Fab Education books, Jos-Nigeria.

6. IYHO, L U Humanitarian Law, the experience of the Nigerian Civil war: Afahaide & Bros printing/publishing co. (2000).

7. NWEZW, C.C (2003) Current themes in the Domestication of Human Rights Norms. Enugu, Forth Dimension publishers.

8. OKPARA OKPARA (2005) Human Right Law and practice in Nigeria: Chenglo Ltd Uwami-Enugu

9. OPUTA, C.A (1991) The Law and Twin pillars of Justice: Imo Govt. press.

10. UMOZURIKE, U. O (1997) The Law and people’s Right: Hague Martinus NIS hoft.

11. SAWUEL, I. ADPAN (2004) Administrative and Human Law : Sebje International ventures Akwa-Ibom State

JOURNALS.

1. AHIBOLA, BOLA: Address Delivered at the Opening of the 9^th Session of the “African Commission of Human an peoples’ Right” at the Senate Chambers of the National Assembly Complex, Lagos. March 1991.

2. BRAINFIELD LAW JOURNAL: “The Judiciary as the Last Hope of Nigeria, “Chief Wole Olaripekun, SAN, A.G and commissioner for Justice, Ondo State.

3. L. O. (1998) Violation of Human Right in Nigeria Civil Liberations Organization Annual Report.

4. Journal on Human Rights Law and practice: vel 4. Numbers 1, 2, 3, 4 (1994) December.

5. “National Security in a Democratic Society”. Lecture delivered by the Executive Governor of Akwa Ibom state, His Excellency, Arch. (obong) Victor Attah at the 2^nd National Annual Security Watch Lecture held at Abuja on 3oth may, 2006.

6. “The Role of the Judiciary in a Democratic Dispensation”. Address presented by Uwemedimo Nweko at the opening of new legal year by the Law Student ‘association of the faculty of Law, University of Uyo on the 16^th July, 2004.

                                      INTERNET

1. Alienation and Militancy in the Niger Delta: A Response to CSIS on petroleum, politics and Democracy in Nigeria. By Oronto Douglas. 1 July, 2003. www. fpif. Org.
2. Does Nigeria have a National Security policy by Priye .S. www. United, jawstates. Com.
3. Control: The Economic and political Dimensions by senator David Dafivonone. Odafirnone. com.
4. Sabella .O. Abidde: Redefining “Nigerians’ National Security“ (2005) www. nigeriavillagesquare . com.
5. The role of the Judiciary in the Sustenance of Democracy. www. Vanguardngr . com/article/2002.
6. “The Yoruba Nation and Self-Determination” by Ganiyu Adams, president Oodua peoples congress . www . nigerdeltacongress . com.

CHAPTER ONE

• INTRODUCTION

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 peoples 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 have 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 it’s citizens and 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 than 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 enjoy the benefits of collective goods but pay little or nothing for them.⁴

National security is also used in it’s 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 it’s 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.

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 prowess⁵. 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) ⁶ 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 (DID), the Custom Service (CS) etc.

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 ⁷. 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 certainly 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.

Thus, following the definition of Human Right in discourse, it is be noted that there is no unanimity in the definition of human rights by both legal and political writers. According to THESIGER l. J,⁸ “definitions are proverbially dangerous”. This contention agrees with the Latin maxim “Omnis definitio in large 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,⁹ “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 which should never be invaded, something which are suppressively sacred.

DOWRICK, defines human rights as’, “Those claims made by men, for themselves, or onbehalf 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.¹⁰

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 future¹¹.

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”.

A learned author ¹² 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 preamble 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 on 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 tankers 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 chaletel. 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 African 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 His 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 historically 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 milestone in mankind’s effort that actually impacted development of human rights amongst the people. It prescribed and defined the responsibilities and obligations of slates to citizens rights or charter, describing it as the rights of the individual vis a’ 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 arison 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 5 of the Independence Constitution of 1960 as fundamental rights. The above rights were subsequently entrenched in the 1963, 1978, 1989 and 1989 and 199 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 injusticable 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.

1979. 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.
1980. The formation of Human right organisatins and commissions.
1981. The transition of Government from Military to Civil rule was engineered by Human Rights promotion and protection.
1982. Human right has influenced the bench of the judiciary by evincing in some judges radicial 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 on individual by a state is seen as a matter of international concern did 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…”¹³

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 left, 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.

The above mentioned rights are the justicable rights on 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 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 properly, 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-justicable except the right to property¹⁴ which found way into the category of fundamental rights in 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. IGD ACCRA¹⁵ 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.¹⁶

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 male 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.¹⁷

Moreso, there is a false sense of safety in Nigeria when it comes to international  terrorism. There are no official policies to thwart terrorism. 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 “grant 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