The term
“right’ is complex. Holmes S. says that a ‘Right’ is “one of the most deceptive
of pitfalls; it is so easy to slip from a qualified meaning in the premise to
an unqualified one in the conclusion. Most rights are qualified”: American
Bank of Trust Co. V. Federal Reserve Bank of Atlanta (1921). The complexity
is worse compounded by the general legal and political order.
Right is a correlative to duty; where there is no duty, there can be no right. But the converse is not necessarily true. There may be duties without rights.
In order
for a duty to create a right, it must be a duty to act or forbear and that act
or forbearance must be external. It is only to acts and forbearance that others
have a right. As this discourse progresses, you should, at every stage, stop
and reflect on the issue: whether or not, the right in question creates a
correlative duty in the state –to act or forbear – some kind of external acts
or forbearance.
After completing
this article, you should be able to explain the term “Right” in relation to
UDHR and ECOSOC Rights, identify Political and Civil Rights, distinguish Economic,
Social and Cultural Rights and discuss the contents of the
Constitutional Provisions for Rights to accommodation, food, education and equality
of opportunity and take a position in defense or otherwise of the policy of non-justifiability
of the rights to accommodation, food, education and equal opportunities.
Definition of Rights
Rights
and Law are sometimes used interchangeably as though they mean the same thing.
For example, Jus (Latin) and Recht (German) may mean ‘right’, ‘a
right’ or ‘law’.
A right
may be legal or moral. Holland says “Moral Right” means: ‘one man’s capacity of
influencing the acts of another by means, not of his own strength, but of the
opinion or the force of the society’. The sanction for a violation of a moral
right lies in public opinion.
Legal
Rights are;
- Legally
protected interests (Von Ihering)
-
Anything you can bring before court and base a claim upon (Earle Richards)
- When
another or others are bound or obliged by the law to do or forbear towards or
in regard to another (Austin)
Sources
of Rights
The Fundamental Human Rights may derive from the following sources;
(a)
NATURAL LAW
Certain
Rights exist as a result of higher law than positive law; such higher law constitutes
a universal and absolute set of principles governing all human beings in time
and space.
(b)
SOCIAL CONTRACT THEORY
John Locke argued that the
subject people conceded power of government only on trust and any infringement
by the rulers of individual fundamental natural rights automatically put an end
to the trust and entitled the people to resume their authority. In this view,
the fundamental human rights are inalienable.
(c)
Rousseau allied with John Locke and both impacted considerably on the leaders
of the French Revolution as well as the Constitution of the United States of
America.
(d) The
Magna Carta, the Bill of Rights, the Renaissance and the Reformation in turn
influenced the human rights development.
For
example, the Renaissance broke down the medieval order and subscribed to the
idea:
(1) That
man possessed certain fundamental rights and
(2) When
the civil society came into being through social contract, man retained those
rights in his new civil status protected in his enjoyment of them by natural
law.
(e) The
Positivists have little sympathy for rights other than the specific rights
emanating from the Constitutional Structures of the legal system.
Similarly,
the Marxists, in their belief in the existence of certain immutable historical
laws governing the development of the state, have denied the existence of
rights outside the framework of the legal order.
The
Marxists regard the state as the highest synthesis attainable and the
individual is no value by himself. Rather he is absorbed in the family and the
family in the state; the real substance of which individuals are accident.
(f) The
United Nations Declaration of Human Rights (UNDHR).
The
United Nations recognized that every human being has a minimum core of rights,
which no state authority can take away. These rights became known as Civil and
Political Rights and they covered a wide range of rights.
Among
such rights are:
- Right
to life
-
Freedom from torture and inhuman treatment
- Right
to liberty
-
Freedom from slavery and forced labour
-
Freedom of movement
- Right
to fair trial
-
Freedom of thought, conscience and Religions
- Rights
to Property
- Right to vote and be
voted for.
The
Commission on Human Rights excised Economic, Social and Cultural Rights in the
process of formulating the International Covenant on Human Rights.
The
reasons were that:
- The
civil liberties lend themselves readily to judicial processes; socio-economic
and cultural rights do not.
- Social
and economic rights entail the development of practical institutions to enforce
and implement.
- Social
and economic rights require the making of appropriations to implement the kind
of policy involved.
(g)
Economic, Social and Cultural Rights (ECOSOC Rights) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
The
human rights, which the Human Rights Commission could not accommodated in the
International Covenant on Human Rights were relegated to the category of Economic,
Social and Cultural Right (ECOSOC Rights) and were constituted, for purpose of
implementation in the International Covenant on Economic, Social and Cultural Rights.(ICESCR)
The
rights pertained to the necessaries of life, and material well-being, and egalitarian
ideals.
Examples are;
- Right
to work and to just conditions of work
- Right
to fair remuneration
- Right
to adequate standard of living
- Right
to organize, form, and join trade union.
- Right
to equal pay for equal work
- Right
to social security (food, education etc.)
- Right
to participate in one’s community’s cultural life.
(h)
African Charter
The position of the African
Charter is that all rights are equal the charter accordingly merged the Civil
and Political Rights and the Economic, Social and Cultural Rights. Specifically
the African Charter provided for:
- Right
to work under equitable satisfying conditions (Act 15)
- Right
to the best attainable state of health (Act 16)
- Right
to every individual to Education (Act 17)
- Right
to economic, social and cultural development (Act 22)
(i) The
Constitution
Prior to
the advent of colonialism in 1861, man was part of the family unit which bore
the responsibility for the essentials of life for its members.
From
1861 – 1922, there was no constitution. There were written Constitutions from
1922 – 1959; but there were no provisions for fundamental human rights.
Colonialism
is a denial of right of self-determination and itself was antithesis of human
rights and freedoms.
Human
Rights became an issue as independence. Chapter IV of the Independence
Constitution, 1960, contained the Civil and Political Rights. All subsequent
Constitutions made identical provisions.
The
Federal Republic of Nigeria Constitutions 1979 and 1999 provided for Civil and
Political rights; namely;
- Right
to life
- Right
to dignity of human person
- Right
to personal liberty
- Right
to fair hearing
- Right
to private and family life
- Right
to freedom of thought, conscience and religion
- Right
to freedom of expression and the press
- Right
to peaceful assembly and association
- Right
to movement
- Right
to freedom from discrimination
- Right
to acquire and own immovable property anywhere in Nigeria
Both
Constitutions also provided for Economic, Social and Cultural Rights in chapter
II, captioned ‘Fundamental Objectives and Directive Principles of State
Policy”.
These
Rights are modeled into;
i.
Political Objectives (Sec 15)
ii.
Economic Objectives (Sec 16)
iii.
Social Objectives (Sec 17)
iv.
Educational Objectives (Sec 18)
v.
Environmental Objectives (Sec 20)
vi. Directives on Nigerian
Cultures (Sec 21)
vii.
Obligations of the Mass Media (Sec 22).
The
Nigeria approach is to maintain a duality of treatment of;
a. Civil
and Political Rights (Chapter IV)
b.
Economic, Social and Cultural Rights (Chap II)
The
formulation of Chapters II and IV of the Constitution is suggestive that one
set of fundamental human rights is superior and worthy of enforcement over and
above another. It is probably a reflection of the confusion as to what
constitutes human rights and how they should be enforced.
Justice
Bhagwati of the Indian Supreme Court noted that the conferment of an aura of
sanctity and inviolability on such formal rights as are designated Fundamental
Rights and relegating the Directive Principles to insignificance creates a
situation where manifest public good and substance is sacrificed to private
interests and obeisance to empty form. (Minerva Mills Ltd V. Union of India
(1980)).
All the
rights are interwoven. The Civil and Political Rights themselves entail certain
minimum of social amenities – minimum basic requirement for human existence
e.g. Food, clothing, housing, education, medical and sanitary services and
employment.
To the
ordinary man, conception of government is largely in terms of its ability to
provide these basic needs.
The idea of free human being, enjoying freedom from fear and want can only be achieved if conditions are created whereby anyone may enjoy his economic, social and cultural rights as well as his civil and political. The frustration generated by poverty, ignorance and disease tend to alienate the citizenry and nullify civil and political rights.
The enforcement and protection of civil and
political rights therefore is a mirage where poverty, stagnation, marginalization
and under- development prevail.
(j) Rule
of Law
The International Congress of Jurists Delhi, 1959 and Lagos 1961 redefined and expanded the Rule of Law beyond the Civil and Political Rights for the third world and then Africa.
The
Jurists acknowledged that the rule of law is a dynamic concept and charged the
Jurists to use it to establish social, economic, educational and cultural
conditions under which man’s legitimate aspirations and dignity may be
realized.
4 Classification of Rights
The law has not classified
Rights. History, policy and writers have divided them as follows:
1. (a) Civil and Political Rights
(b)
Economic, Social and Cultural Rights.
2. (a) First
Generation Rights
(b)
Second Generation Rights
(c) Third Generation Rights
(d) Fourth Generation Rights
(e) Fifth Generation rights
3. (a) Justiciable
Rights
(b) Non Justiciable Rights
4. (a) Legal
Rights
(b) Moral Rights
The Civil and Political
Rights are the same as First Generation Rights, Justiciable rights, or legal
rights.
In the same way, the
Economic, Social and Cultural Rights as well as second, third, fourth and fifth
generations rights, non-justiciable or moral Rights mean the same thing.
Conclusion on Definition, Sources and 4 Classification
of Rights
The term ‘right’ is
complex; and hierarchical. Civil and political rights are immediately
enforceable binding commitments. Economic, Social and Cultural rights are a
beacon light for possible future patterns of behaviour and are closely allied
with ethics and morality.
Rights to accommodation,
food, clothing. Education and equal opportunities are economic and
socio-cultural rights and have been expressed in Chapter II of the
Constitution, while the civil and political rights are contained in Chap IV.
The separation has some significant implication.
This is the first part of
our discourse on human rights to accommodation, food, education and equal
opportunities. We explained what ‘Right’ means, the different sources of human
rights and classification. You will appreciate that the initial intendment of
the UN Commission on Human Rights and of African Charter is to treat all rights
as equal.
By reason of
practicability, enforcement or implementation and divergent views of the bounds
and compasses of “rights”, some jurisdictions including Nigeria have separated
ECOSOC Rights from Civil and Political Rights.
In the next article, some
specific ECOSOC Rights will be examined in greater details.
0 Comments