CIVIL LAW AND HUMAN RIGHTS
v
October
18, 2011
v
Definition
of Law
According
to Ronald Dwarking in his book, “Lost Empire”, we live by law, and it makes us
what we are…..” According to T. O. Elias, in his book “The Nature of African
Customary Law” page 55, “the law of a given community is the body of rules
which are recognized as obligatory by its members.”
v
Human
Rights: Meaning and Characteristics
Human
rights are the rights a person has simply because he /she is a human being.
Human
rights refer to the "basic rights and
freedoms to which all humans are entitled. Examples of rights and freedoms
which have come to be commonly thought of as human rights include civil and
political rights, such as the right to life and liberty, freedom of expression,
and equality before the law; and social, cultural and economic rights,
including the right to participate in culture, the right to food, the right to work,
and the right to education.
All human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.
v
Characteristics
of Human Rights
·
Human rights are inalienable. This means
that you cannot afford to lose those rights as long as you are a human being.
This implies that such rights must be upheld. Consequently, if one fails to use
such rights, he/she is liable to punishment.
·
Human rights are indivisible. No one can
agree to be denied a right because it is less important or non-essential.
·
Human rights are interdependent as a
complementary framework – such as right to life, right to dignity of human
person. Infringement to right of freedom of thought, conscience and religion
(see section 38 of the Nigerian Constitution) can violate right to peaceful
assembly and association – cf section 40. Right to life in section 33 can also
violate right to dignity of human person – section 40. Violation to right to
personal liberty in section 34 can also infringe on the right to private and
family life – section 36
·
Human rights also refer to those basic
standards without which people cannot live in dignity. Therefore to violate
somebody’s right is to treat that person as though he/she were not a human
being. To advocate human rights is to demand that the human dignity of all
people be respected.
v Sources of Nigerian Law
1.
The
Constitution - Cited as the Constitution of the Federal Republic of Nigeria
1999 (CFRN).
According to O. Hood Phillips and Paul
Jackson in their book “Constitution and Administrative Law”, sixth edition
Sweet and Maxwell 1978 page 5, “Constitution is the system of laws, customs and
conventions which defines the composition and powers of organs of the state,
and regulates the relations of the various state organs to one another and to
the private citizens.” Constitution may also be called documents containing the
substance of the law.
v Features of the Nigerian Constitution as
sources of the law
1.
It is written – this means that both the
past and the present Nigerian Constitutions are both written. The British has
no written constitution. Their constitution which is unwritten is bound by
customs and convention adapted to over time.
2.
It is supreme – It has binding force on
all authorities and persons in Nigeria. It is the grundnorm
3.
It is enacted so that the Federal Republic
of Nigeria shall only be governed in accordance to the provisions of the
constitution
4.
No other law should be inconsistent with
the provisions of the constitution. If any other law is inconsistent, the
constitution shall prevail and the other law shall be void to the extent of the
inconsistency. The sharia law is not a general law it is a particular law, thus
it does not bind to the general public.
5.
The Constitution is superior to other laws
of the land and regulates the juridical, executive and legislative arm of the
government.
6.
The supremacy clause of the constitution
is couched thus – “This Constitution is supreme and its provisions shall have
binding force on all authorities and persons throughout the Federal Republic of
Nigeria – section 1.
In
Momoh versus Senate of the National Assembly (1981) 1 NCLR 21 section 31 of the
Legislative (Powers) and Privileges Act was declared void because it was
inconsistent with section 42 of the 1979 Constitution in that it purported to
prohibit the execution of the Court processes within the precinct/ambit of the
Legislative House while the House was in session.
7.
The Constitution contains both the
substantive and procedural provisions. Both provisions are supreme.
·
Substantive provisions are the rules which
define the rights, duties, liabilities and obligations of persons.
·
Procedural provisions are the rules of
practice and procedure relating to the ways in which these rights, duties,
liabilities and obligations are enforced in proceedings before the courts of
law.
v
25/10/2011
The substantive laws which are enumerated are:
·
Exclus Legislative List:
This is enacted only by the national assembly.
·
Concurrent Legislative
List: As the name suggests, could be enacted both by the national assembly and
the state house of assembly.
·
Laws that are not
enumerated are residual matters. Compare S 4 (7) CFRN. See S 4 generally.
·
Rights and duties as well
as rules which may be enforced under the law are contained in the Constitution.
Examples: agreements dealing with family relation; agreements that deals with
puberty; agreements in honour.
2.
The
Received English Law
Another
source of Nigerian Law is the received English law which consists of the
following:
1.
The common law
2.
The doctrine of equity
3.
The statutes general
application enforced in England from January 1, 1960
a.
Legislation on specified
matters
b.
Extended English law –
These are laws made before October 1, 1960 and extending to Nigeria.
3.
The
Nigerian Legislation
Another source of Nigerian Law is the
Nigerian legislation. Here, we have both primary and subsidiary legislation.
F
Primary
legislations
Primary legislations are the laws
emanating from the Major Legislative Arm of the government – the National
Assembly. The national assembly comprises the house of senates and the House of
Representatives.
The state House of Assembly serves the
interest of their respective states, while the National House of Assembly
serves the interest of the nation. Their military equivalent in law is Decree
while that of a state house of assembly is ‘edict’ during the military era.
F
Examples
of Nigerian Legislation
1.
The criminal code
2.
Companies and Allied
3.
Marriage Act
4.
Matrimonial Causes Act
5.
Evidence Act
6.
Criminal Procedure Law –
(Southern Nigeria)
7.
Criminal Procedure Act
(North)
8.
Arbitration Act.
F
Subsidiary
Legislation
Other
terms for subsidiary legislation are subordinate legislation, or administrative
legislation, or delegated legislation, or By-laws, etc. Examples of delegated legislations are:
a.
Regulations issued by an
administrative agent of the executive arm of government for running the affairs
of the state.
b.
Rules of procedure made
by juridical authorities in respect of the matters coming before the court
c.
Municipal by-laws enacted
by local government council to regulate matters within their sphere of control.
4.
Juridical
precedents
Another
source of Nigerian Law is the juridical precedent also known as Principle of
Stare decisis (Earlier decision must be followed)
This is the principle that earlier
decisions of superior courts or court of competent jurisdiction should be binding
authorities in subsequent cases. But before the issue must be binding, it must
be ratio decidenti and not obiter dicta
5.
Customary
Laws
Another source of Nigerian Law is the
customary laws.
Note: before customary law will be
considered as forming a source of Nigerian law, it must pass three tests,
namely:
1.
It must not be
incompatible either directly or by implication with any law for the time-being
in force of any written law.
2.
It must pass the
repugnancy test. This means that it must not be repugnant to natural justice,
equity and good conscience – human sacrifice, enslavement, killing of twince,
right to personal liberty. Example of cases – Edet versus Essien (1932) 11
NLR47. Maryana versus Sadiku Ejo (1961) NRNLR 81
3.
It must not be contrary
to public policy – see provisio S 14(3)
v
November,
15, 2011
6.
Islamic/Sharia
Law
Another
source of Nigerian law is the Islamic or Sharia Law. This is mostly applicable
in the Northern part of the country. It derives its source from the Koran.
F
Legislation
and Language.
According
to Lord Denny in his book “the discipline of law”, (London, Butterworth, 1979),
p. 9, “The draftsman…conceived certainty but brought forth obscurity; sometimes
even absurdity. Unless these absurdities are corrected by subsequent
legislations, they remain binding as law”.
1.
Literary
Meaning Approach
The
literary meaning approach is clear and without any ambiguity. Here, words as
used in status are construed and interpreted in their ordinary grammatical and
dictionary meaning.
2.
Golden
Rule
In
this case then words are capable of two or more meaning, then, the court will
give an interpretation that would not produce absurdity.
Cases:
1.
For literary rule, see
Matari versus Dangaladima (1999) 3 Nigerian MMLR page 266 at 269.
2.
For Golden Rule, see
Bronic versus Wema Bank (supra). Awolowo versus Ministry of internal affairs.
3.
The
Mischief Rule.
In
the mischief rule, when words are ambiguous, vague or too general, the status
will resort to interpret the rule to resolve the ambiguity or mischief.
4.
Unitary
Approach
There
were sever criticism against which of the three concerns to be used – Literal,
Golden, or Mischief rule when there was confusion. This lead to the adoption of
a unitary approach that all the eight of concern or interpretation should be
subsumed to put an end to misgivings as regards statutory interpretations. Let
us look at the 3 interpretations: By presumption – (this presumption is couched
in Latin terms).
i.
“Ejudem generis” rule -
this means that when particular words are followed by general words. The
general words are limited to the same kind as the particular word.
ii.
“Expression unis est
exclusio alterius” – the expression of one’s sin results in the exclusion of
the other.
iii.
“Noscitur a sociis” –
this means that a word takes its meaning from other words with which it is
associated.
7.
Rights
(Guaranteed in the Constitution).
ü
See Constitution, page 34
and following for details.
Right now in Nigeria,
there are five offences that are punishable by death penalty. If one is killed
under such circumstance, his right to life should not be considered as having
been violated. These offences include:
1.
Murder – see section 319
of the Criminal Code
2.
Treason – section 37
3.
Treachery – section 49a
4.
Directing or presiding at
an unlawful trial by oddly where death results in such a trial. An example of
this would in a situation where someone has been tried by a community as a
witch and such a person is sentenced to death by such unlawful trial. In the
face of the law, there is nothing like African metaphysic.
5.
Confliction under Robbery
and Firearms (special decree) 1970 as amended in 1974
N.B:
A person’s right to life is also considered not to have been violated if such a
person dies after a surgical operation by a qualified medical practitioner who
carried out such operation with the intention of the dead person’s own good –
see criminal code 297.
F
November
23, 2011
v Right to Life
Constitution
33 (1) says that “Every person has a right to life, and no one shall be
deprived intentionally of his life, save in execution of the sentence of a
court in respect of a criminal offence of which he has been found guilty in
Nigeria.”
The
question now is, when does life begin? The issue is by no mean a simple one as
there are diverse opinions. According the criminal code, life begins at
gestation. The criminal code section 307 says that a child becomes a person….
When compared with section 309, this legislation is clearly ambiguous. Section
328 says that threat to life is punishable by law in Nigeria - Section 324.
Section 326 encouraging a person to kill himself. Suicide section 327 – life is
so important that a person cannot take his own life. Suicide is therefore a
criminal offence. Section 329 talks about the unlawful possession of a human
head. Section 329.
(a)
(1). Section 332 to maim
of disable a person. Procuring abortion CC 228 is a threat to human life.
Section 229 – 230, section 297 – according to the criminal code, life begins at
gestation.
F
Personal
Liberty. Section 33 (35) of the constitution
F
Internalization
of Human Right
International
law is different from domestic law in the sense that it does not have a
legislative body or authority. Before an international law can be binding, it
must be adopted and domesticated by a given society. International laws are
declarations which set a standard to be aspired to by all. There are two
aspects to international laws:
1.
Laws of treaty
2.
Customary international
law
F
Machinery
for the enforcement of international laws
Domestically, we go to
the federal court, high court of the FCT.
Internationally, we go to
the National Human Right Commission. African Commission on Human Rights.
F
Making
a Protocol.
This is an amendment or
adaptation of international treaty.
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