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.

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

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

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

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

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

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

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

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

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

1. 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 9th Session of the “African Commission of Human an peoples’ Right” at the Senate Chambers of the National Assembly Complex, Lagos. March 1991.

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

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

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

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

1. “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 16th 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.