
Definition of Human Rights
Human rights may be defined as those privileges enjoyed by
the citizens of a given states. The privileges are usually defined and enjoyed
within the bounds of the law that is the law of the country.
In written constitutions these rights, the limits to such
rights and the protection accorded them by the government are specified.
In other words, human rights are spelt out in written a
constitution of modern democracies and protected by the government being a
charter of the United Nations.
The protection of these rights calls for two forms of action
on the part of the government. Government is forbidden to do a series of things
to the individual in order to preserve his/her rights and the government is
obliged to perform certain obligations to the individual purposely to preserve
his/her liberties against which the citizen can enforce the rights through
judicial process.
Origin of Human Rights
Historically, the origins of human rights can be traced to
the American Declaration of Independence of 1776, which proclaimed right to
life, liberty and pursuit of happiness, the French Declaration of the Rights of
man in 1789, the European Convention of Human Rights and the 1948 Universal
Declaration of Rights.
Many political scientists have written and said a lot on
fundamental human rights. Its most influential exponent perhaps was the English
political philosopher John Locke, who wrote that the obedience to the commands
of a given government is for only one reason, and that is to secure the
personal rights to life, liberty, and property that naturally belong to all men
equally, simply because they are all human beings.
In the Nigerian constitutions since 1963 Republican
Constitution, there has been a Chapter devoted exclusively to the provisions on
Fundamental Human Rights.
Chapter IV of the Constitution of the Federal Republic of
Nigeria, 1999 guarantees the citizens’ Fundamental Human Rights in the
following section of the document thus:
Fundamental Human Rights
1. Right to life
2. Right to dignity of human person
3. Right to personal liberty
4. Right to fair hearing
5. Right to private and family life
6. Right to freedom of thought, conscience and religion
7. Right to freedom of expression and the press
8. Right to peaceful assembly and association
9. Right to freedom of movement
10. Right to freedom from discrimination
11. Right to acquire and own immovable property anywhere
The First amendment to the American constitution also
lawfully secures freedom of speech and of peaceful assembly.
The Fourth secures the citizen that his house shall not be
searched except upon a warrant while the Eight legally secures citizens against
excessive bail.
In the unwritten British Constitution, however, there has
been no general proclamation of rights but each of a series of important rights
has been achieved because of a particular struggle in history, and its
maintenance today depends on the working of the law.
In short, whether a country operates a written or an unwritten constitution, there are Fundamental Human Rights guaranteed for the individual citizen and protected by law.
These Rights include:
1.
Right to life
2.
Freedom of association
3.
Freedom of speech
4.
Freedom from slavery
5.
Freedom of religion
6.
Freedom of assembly
7.
Freedom from unlawful
imprisonment.
8.
Right to private life and
property.
Right to life, for instance is the foundation on which other
rights are based. This is why murder and suicide are punishable under the law
by capital punishment, even when sanctioned by the state, for many reasons,
including the sanctity of human life remains a controversial subject. However,
when we say human rights are inalienable it does not imply that they are not
without qualifications.
This means in effect that there are some rules guiding these
various rights or liberties.
Limitations to Human Rights
Fundamental Human Rights are not without limitations since it
is obvious that absolute right is as good as no right at all.
A Citizen should know that his/her rights ends where that of
others begins. For example, you have a right to stress your hands the way you
like but you should not box or hit anybody with your hands in the process,
otherwise you may be charged to Court with assault and battery by the aggrieved
person.
Law of libel is a limitation to the freedom of speech and
writing if it defames or impugns the integrity of another person. The freedom
of assembly could be lawfully curtailed in order to prevent a breakdown or law
and order.
Freedom of movement could be withdrawn by the state during
emergency period, people may be asked to stay in door from dusk until dawn to
observe a curfew. A citizen who is mentally challenged could be ‘arrested’ and
‘detained’ in a psychiatric hospital for treatment, against his/her wish to
roam the street.
Citizens could also be conscripted into the Army and sent to
the war front to defend the state, which may serve as a limitation to his/her freedom
to life. Human rights are said to be inalienable, yet without detracting from
this view it is still a fact that the only part of the conduct of any one, for
which he is amenable to society, is that which concern others.
What is Liberty?
Liberty does not mean freedom to do one’s will. This is a
negative conception, which suggests absence of restraint, which the rich
prefer. The presence of government will make this definition of liberty
impossible.
Liberty means the maintenance of equal opportunities for all citizens.
Liberty therefore is a positive thing. It does not merely mean absence of
restraint. Regulation is required since citizens cannot live together without
common rules.
For example, a citizen’s liberty is not endangered if he is
refused permission to commit murder. So also is observing traffic regulation.
To compel obedience to them is not to make a man un-free.
Where restraint becomes an invasion of liberty is where the
given prohibition acts to destroy productive endeavors.
Liberty, therefore, is never real unless the government can
be called to account, especially when it invades rights. In his Essay on
Liberty, John Stuart Mill wrote: “That government is best which governs least.”
There are three aspects of liberty.
The first is private liberty. This means the opportunity to
exercise freedom of choice in personal life, like in religious beliefs.
The second is political liberty. This is the citizens right
to participate in the political activities of his country-right to vote and to
stand for elections and to criticize the government- A citizen must find no
barriers that are not general barriers in the way of access to position of
authority.
The educational system must not be structured such that
children of rich or well-born men are trained to imbibe habit of authority
while the children of the poor are trained to habits of deference.
The third is economic liberty. This means security and the
opportunity to find reasonable means of livelihood. As argued by Laski (1982)
where there are rich and poor, educated and uneducated, we find always masters
and servants. Therefore, liberty cannot exist without equality.
Economic
liberty also means democracy in industry or what is called equal economic
opportunities. Freedom can therefore not exist in the presence of special
privilege, since there is no liberty where the rights of some depend upon the
pleasure of others.
Equality
does not mean identity of treatment. There can be no ultimate identity of
treatment so long as men are different in want, capacity and need. It implies,
fundamentally a certain leveling process, and the provision of equal
opportunities for all, which also depends on the training we offer to citizens.
For the power that ultimately counts in society is power to utilize knowledge;
and disparities in the ability to use that power.
In
the final analysis, political equality is never real unless it is accompanied
by economic equality since political power is the handmaid of economic power.
The State and protection of liberties
Every state is measured by the amount of liberties and rights
that it obliges her citizens. The state is not simply a sovereign organization
with the power to get its will obeyed, it must safeguard rights by preventing
unlawful invasion of rights and ensuring that a citizen’s right stops where
another’s begins.
Harold Laski (1982) made this delicate balance clear: “It is
a state, for instance which can prevent the Roman Catholic Church putting a man
to death for heresy; but it cannot force the Roman Catholic Church to surrender
the dogma of Papal infallibility.” Also a state cannot demand allegiance from
its subjects, expect in terms of what that allegiance is to serve.
Indeed, the state character will be apparent from the rights that, at any given period, secure recognition. Any given state is therefore torn between rights that have been recognized and rights, which demand recognition.
Rights, in fact, are those conditions of social life without which no man can seek, in general, to fulfill himself. Since, the state exists to make possible that achievement, it is by maintaining rights that its purpose may be served.
For example, rights such as freedoms of speech, association
assembly, religion are rights either equally applicable to all citizens without
distinction or not applicable at all.
Freedom of speech is only limited by the law of libel, or
slander, as a constraint on the freedom of the press. Opinion, in the view of Harold
Laski (1982) may be penalized if it is held to involve disorder.
But in order to ensure that rights are respected by the state
authorities, it is imperative to ensure in the constitution the principle of
separation of powers, and the system of checks and balances. In the opinion of
Harold Laski (1982) the more independent a judiciary, the more adequate are the
safeguard of rights.
However, he added a caveat that since the executive
ultimately appoints the judiciary, its independence is rarely final.
Indeed, separation of powers merely acts as checks upon the
expansion of each authority’s allotted sphere into another; it does not
determine the quality and the extent of the power that are allotted Nurudeen (2009).
It is therefore not enough for a state to make verbal commitments to respect human rights; statutory and institutional frameworks are required to back or safeguard them.
In the United Kingdom, for example, there
is a special precaution against unlawful imprisonment. A citizen unlawfully
imprisoned can proceed against whoever imprisoned him through the writ of Habeas
Corpus. This is an order from a judge of a Law Court requiring whoever is
being detained to be produced before the court on a given date. The effect is
that any person unlawfully detained, can obtain his release or trial at the
earliest time possible.
In Nigeria, if a citizen is unlawfully arrested, he is
entitled to receive compensation; and if lawfully arrested, he enjoys the right
to defend himself accordingly (Ojo, 1973). In a similar manner, a citizen can
bring a writ of Mandamus from a Law Court to compel any level of
government to perform its constitutional responsibility.
A citizen can also protect his/her liberties by seeking
either interlocutory or perpetual injunctions from a Law Court, to compel a
stay of action that may violate his/her rights.
The essence of safeguards of human rights is to prevent
governments from invading citizens’ rights or the latter from engaging in acts
of lawlessness, which are capable of throwing the state into chaos.
It is also to ensure that individuals can perform their
lawful duties without fear of oppression and victimization. A government, which
deprives its citizens of these fundamental rights, would have lost its
legitimacy to remain in office.
Hence, John Locke’s remark that:
i. The great and chief end... of men uniting into
commonwealths.
ii. Putting themselves under government, is the preservation
of their property (i.e. their natural right).
iii. When a government fails to preserve these rights and
thereby cease to serve the end for which it was created, the citizens have the
right indeed, the duty, to overthrow it.
Law
is therefore an important condition of rights. But laws can either help or
destroy liberty because laws can positively provide equal opportunities or
negatively curtail freedom. A. V. Dicey once argued that the more there is one
(law) the less there is the other (rights).
The
independence of the judiciary is achieved by providing for appointment or
removal of judicial officers through a due process to ensure job security; and
payment of their salaries/allowances from the Consolidated Revenue Fund. Other
measures to protect Human Rights from encroachments are:
i)
A written constitution in which the rights and obligations of citizens are set
out in a lucid and unambiguous language. Citizens are aware of these liberties
and measure of defending them if violated.
ii)
Existence of Ombudsman - a Public Complaints Commission, through which
any aggrieved citizen, can seek a redress against the state or any of her
agencies.
iii) A free press that will report and disseminate
information, as well as educating the citizenry about government policies and
its implications on their rights and liberties. A democratic government also
helps to safeguard human rights, because democratic institutions such as the
Senate, House of Representatives and State Assemblies are composed of elected
people who are representing different constituencies in the federation. They
protect members of their constituents through public hearing, motions and bills
to protect citizens’ rights.
iv) Quick dispensation of justice is another element in
protecting rights and liberties of citizens. As the saying goes, “justice
delayed is justice denied,” the judicial process should not only be fast but
should also be accessible to the poor through a reasonable cost of litigation.
Importance of Human Rights
In principle, no human individual should be rendered
stateless: the Universal Declaration of Human Rights stipulates that the right
to have or change citizenship cannot be denied.
In practice, the legal claim of citizenship is a slippery
concept that can be manipulated to serve state interests. On a spectrum from
those who enjoy the legal and social benefits of citizenship to those who’s
right to nationality is outright refused, people with many kinds of status live
in various degrees of precariousness within states that cannot or will not
protect them.
These include documented and undocumented migrants as well
as conventional refugees and asylum seekers living in various degrees of uncertainty.
Vulnerable populations such as ethnic minorities and women and children may
find that de jure citizenship rights are undermined by de facto restrictions on
their access, mobility, or security.
The Human Right to Citizenship provides an accessible overview of citizenship regimes around the globe, focusing on empirical cases of denied or weakened legal rights. Exploring the legal and social implications of specific national contexts, contributors examine the status of labor migrants in the United States and Canada, the changing definition of citizenship in Nigeria, Germany, India, and Brazil, and the rights of ethnic groups including Palestinians, Rohingya refugees in Bangladesh, Bangladeshi migrants to India, and Roma in Europe. Other chapters consider children's rights to citizenship, multiple citizenship, and unwanted citizenship.
With a
broad geographical scope, this volume provides a wide-ranging theoretical and
legal framework to understand the particular ambiguities, paradoxes, and
evolution of citizenship regimes in the twenty-first century.
In
any given state citizens are endowed with rights because without them they may
not be able to function optimally, or perform their civic obligation to the
state.
Put
differently, rights are corollaries to duties. For example, a man has not only
the right to work; he has the right also to be paid an adequate wages for his
labor.
To live citizen without access to the means of existence is to deprive him of that which makes him perform his basic civic obligations, or function in the interest of the larger society. As Laski put it; “there must be sufficiency for all before there is superfluity for some”. The state also provides for the right to property if what a citizen owns is commensurate to his efforts, or can be shown to be related to the common welfare.
However, a citizen cannot
justifiably own directly because of the efforts of others; or if the effect of
such ownership is a power over the life of other.
Indeed,
there is an income below which no man can be allowed to fall if he is to be
himself as a decent citizen.
The
state in civilized modern state accords right to education top priority, since
the citizen who lacks it is bound to be the slave of others.
He will not only live a stunted being, but also fails to rise to the full heights of his personality. If citizenship means the contribution of one’s instructed judgment to the public good, a citizen without basic education will not be able to make informed choices. Related to this is a right to political power. Every adult citizen has the right to indicate the person he desires should be elected.
If the body of voters is limited, the welfare realized usually
excludes that of the persons excluded. But just as those who choose cannot be
drawn from any special class in a state so also, those who are chosen cannot be
members of a limited section only.
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