Nigeria as an independent democratic country is instituted with presidential system and governed by a set of rules or laws chaired by its 1999 Constitution. It follows that Nigeria, measuring over 923,000 square kilometers of land mass, is constitutionally organized and governed by a body of elected and appointed public office holders; numbering approximately 17,500. The country is also a heterogeneous or pluralistic society of over 380 tribes with dominant being Igbo, Hausa-Fulani and Yoruba. It is composed religiously of Christianity, Islam and others.
Other laws governing Nigeria are derived from the Laws of the Federation principally the Acts of the National Assembly and others deemed modified under Section 315 of the Constitution. Ratified regional and international treaties are also part of the Laws of Nigeria; likewise Laws of the State and Administrative others. Legislative powers of the Federation are vested in the hands of the National Assembly under which laws made by the 36 States are forbidden from rising in seniority contest or incompatibility with those of the National Assembly. See Section 4(5) of the Constitution.
The executive powers of the Federation are vested in the President and his Presidency while the judicial powers are vested in the Judicial Courts of the Federation and those of the States with the Supreme Court and its CJN as the most senior. These are contained in Sections 5 and 6 of the Constitution. The Constitution of Nigeria 1999 is somehow modeled after the US Independence Constitution, proclaimed and ratified on 4th July 1776, which took effect from 1789. The present Constitution of Nigeria also contains inherent defects and lacks authorization from the People of Nigeria via plebiscite or referendum. It was created by Decree 24 of 1999 by Nigeria’s last political meddlesome interlopers (Abubakar’s military regime).
The Nigeria’s 1999 Constitution, like its US counterpart; contains social contract; classified under Chapter Two as Fundamental Objectives & Directive Principles of State Policy; provided in Sections 13-24. Its Section 13 provides for mandatory compliance of the executive, judicial and legislative public office holders with all the provisions in the Chapter Two. The Chapter Two ends with Section 24 which contains six constitutional duties of the citizens.
Insertion of Ouster Clauses in the Constitution to Impede Human Rights Development
The major defect of the Chapter Two is its ouster clause contained in Section 6, sub 6 (c) of the Constitution. In the Chapter Four proper (Fundamental Human Rights), the military administration of General Abdulsalami Abubakar and its civilian collaborators injuriously inserted some ouster clauses to stampede the operability and enforceability of some of its important sections including right to life in Section 33.
But the good news is that the said ouster clauses in the Chapter Four have alternatively been silenced or neutralised by the domesticated African Rights Charter of 1981 (Cap A9, Laws of the Federation 2004). The African Rights Charter was domesticated in 1983. That of the Chapter Two is also being neutralized using other technical legal and non legal advocacy means; pending its total removal from the Constitution via amendment or invocation of a new brand Constitution for the People of Nigeria by the People of Nigeria via Electoral College.
Three Tier Governance Lists in the Constitution
In the 1999 Constitution also lies clear separation of governing duties or responsibilities commonly called exclusive legislative list, concurrent legislative list and the rest deemed residual list. These lists are shared among Nigeria’s three tiers of government of: Federal, States and Local Government Areas. By Section 1 (2) of the 1999 Constitution, military takeover and other forms of undemocratic governance are forbidden and by Section 1(3), the Constitution is supreme and above any other law in matters of the latter’s inconsistency with the former.
Social Contract & Human Rights Obligations as Condition for Indivisibility & Indissolubility of Nigeria
By Section 2 of the Constitution, Nigeria is one indivisible and indissoluble sovereign state to be governed by the name of the Federal Republic of Nigeria. This is strictly subject to full compliance and strict adherence by the 17,500 top elected and appointed Public Office Holders in the country to the social contract obligationsin the Chapter Two (Sections 13-23) as well as the justiciable Chapter Four or Citizens’ Fundamental Human Rights in Sections 33-46.
Role of African Rights Charter in the Development & Advancement of Human Rights in Nigeria
The African Rights Charter which is fully part and parcel of the Nigerian municipal body of laws concurs with the said Chapter Four of the Constitution and further fills the related gaps or lacunas inherent in the Constitution (i.e. rights to self determination using nonviolence; existence, ethnic identity and development). The African Rights Charter, domesticated since 1983, is presently cited as African Charter on Human and Peoples Rights (Ratification and Enforcement Act, Cap A9, Laws of the Federation of Nigeria 2004.
The Charter in its Section 20 guarantees right to democratic self determination using nonviolence. The said domesticated Law of Nigeria also provides for rights to ethnic identity or indigenous existence, religion or faith as well as individual and collective development. African Rights Charter not only coherently operates with the Constitution but also takes over from where the Constitution stops.
See also the operability and enforceability of the African Rights Charter via Nigeria’s Supreme Court decision in Gen Sani Abacha & Ors v. Chief Gani Fawehinmi (2000) 4 FWLR 533. The relationships between a Member-State of AU and its citizens are also clearly spelt out in Article 19 of the important Rights Charter; ratified and domesticated by the Federal Government of Nigeria on 17th March 1983 and now cited as African Charter on Human and Peoples Rights (Ratification and Enforcement Act, Cap A9, Laws of the Federation of Nigeria 2004.
Location of Social Contract in Nigeria’s 1999 Constitution
In the Constitution of the Federal Republic of Nigeria 1999, as amended, the Service to Humanity or Social Contract obligations (duties of public governance administrators) of Nigeria’s 17, 500 Public Office Holders are clearly provided in the Chapter Two or Fundamental Objectives & Directive Principles of State Policy. This is also called Charter of Responsibilities for Public Office Holders in Nigeria.
By its Section 17, “the State Social Order is founded on ideals of Freedom, Equality and Justice”; 17(2) “in furtherance of this social order: (a) every citizen shall have equality of rights, obligations and opportunities before the law”; 17 (2) (b) “the sanctity of human person shall be recognized and human dignity shall be maintained and enhanced”; 17 (2) (c) “government actions shall be humane”.
By its Section 17 (2) (d) “exploitation of human and natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented”; and 17 (2) (e) “the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained”.
Also by its Section 14, “the Federal Republic of Nigeria shall be a State base on Principles of Democracy and Social Justice”; 14 (2) it is hereby declared that sovereignty belongs to the People of Nigeria from whom government through this Constitution derives all its powers and authority;14 (2) (b) the security and welfare of the People (human security) shall be the primary purpose of the Government; and 14 (2) (c) “the participation by the People in their Government shall be ensured in accordance with the provisions of this Constitution”.
By its Section 14 (3), “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or any of its agencies”.
By its Section 15 (1), “the motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress”; 15 (2) accordingly, “national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited”. By Section 10 of the same Constitution, the Government of the Federation or of a State shall not adopt any religion as State Religion.
And very importantly by Section 13, it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter (Two) of this Constitution.
It therefore, follows that the oneness, indivisibility and indissolubility of the Federal Republic of Nigeria as contained in Section 2 of the Constitution can never have any effect or be validated unless they are mandatorily linked and grounded in Social Contract or Fundamental Objectives & Directive Principles of State Policy and the Fundamental Human Rights Charter separately provided or entrenched in Chapters Two and Four of the Constitution.
In the event of default in the two chapters by the public office holders manning executive, legislative and judicial powers of the government in Nigeria, numbering 17,500, which presently and recklessly is the case; the oneness, indivisibility and indissolubility of Nigeria become totally challenged
Relationship between Human Rights & Social Contract
Citizens’ freedoms and personal liberties have their origins from the creation of members of the human family by the Almighty Creator. As far back as 313AD, the right to freedom of worship and religion was proclaimedby Emperor Constantine De Great (AD306-337) during the Christian Roman Empire. There also existed the Edict of Milan of AD313 or decriminalisation of Christian worship, which started in April 311AD with the enactment of the Edith of Religious Toleration.
This explains why human rights are concisely defined as those attributes inherent in human being from creation, without which no human being can exist in his or her completeness and happily? Rightly put, it is the monumental failure of the society to respect and ensure these core or non-tradable attributes or natural gifts of members of the human family that led to formation of social contract society or a society of collectivism and egalitarianism governed by chosen men and women of nobility. A society without social contract attributes, as captured by Prof Thomas Hobbes, is short, brutish, barbaric, nasty-and a society of cannibalism where the fittest survive.
As a matter of fact, social contact has its origin traced to human rights, meaning that human rights and social contract are interwoven or inter-related. It follows that social contract are codified human rights, aggregated and packaged for collective purposes including societal application, delivery and enforcement using instruments of governance. The modern idea of human rights is that they are third party oversight arrangements or advocacy mechanisms put in place to checkmate and ensure steady compliance of the public office holders to their social contract obligations; for their society to exist harmoniously, prosper, develop and be secured.
Collectivism in human rights is today referred to as democratic society or arrangement founded on social contract and expressive freedoms.Under this arrangement, personal liberties and freedoms are preserved, advanced, promoted and protected; provided they do not impinge on legitimate collective rights and welfare of the entire society. In the event of major conflict (i.e. for the purpose of legitimate public good and good governance), the latter prevail while the former are not crushed but remedied.
Laws especially popular or peoples’ constitutions are created and put in place by the people through referenda or Electoral College to govern relationships within government; between government, citizens and institutions; and between citizens and institutions. It follows divinely and sequentially that God created people, who in turn, created government and the constitution and other laws. Government governs the people through legitimate electoral mandate, using constitution and other popularly recognized body of laws. People again abrogate their constitution and its government especially when it loses legitimacy or can longer ensure the safety of the governed as well as their rights, liberties and pursuit of happiness.
(Being first part of a publiclecture presented On 8th June 2018 at a conference on The Nigerian Dream: Prospects & The Role Of The Youths; held in Awka and organised by The Senate of the Law Students Association Of Nnamdi Azikiwe University, Awka, Anambra State, Nigeria. Emeka Umeagbalasi is Chair, International Society for Civil Liberties & the Rule of Law-INTERSOCIETY)