[MODULE 1: MEANING, SCOPE AND SOURCES OF HUMAN RIGHTS

Learning outcomes: Students should be able to:

1. define the term “human rights”.

2. distinguish between the term “human rights” and “fundamental human rights”.

3. explain the scope of human rights and identify sources of human rights.

The aim of this module is to teach the students the definition of human rights, its ambit and

sources.

1.0 Introduction

Various definitions of human rights abound because different scholars have tried to define the

term “human rights” in their way. Some of these definitions are narrow and inadequate, while

others are open ended and imprecise for easy comprehension. Human rights are sometimes

referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights.

1.1 Definition of Human Rights

The term “human rights’ comprises of two words- “Human” and “rights”. “Human” refers to

everyone on earth irrespective of their age, ethnicity, nationality, orientation, sex or creed,

while “rights” refers to privileges that one compulsorily deserves irrespective of his or her

age, ethnicity, nationality, ideology, orientation etc. Human rights can then be defined as the

privileges and opportunities which a person is entitled to by the simple virtue of the fact that

he is a human being. In general terms, human rights may be defined as those basic rights that

primarily and inherently belong to every individual as a human being regardless of his colour,

class, creed or any other considerations.

1
 The Black’s Law Dictionary, 9th edition has defined human rights as “the freedom,

immunities and benefits that, according to modern values (especially at an international level)

all human beings should be able to claim as a matter of rights in the society”.

G. Ezejiofor, in his book ‘Protection of Human Rights under the Law’ defines the concept

of human rights thus:

Human or fundamental rights is the modern name for what have been traditionally

known as natural rights, and these may be defined as moral rights which every human

being, everywhere, at all times, ought to have simply because of the fact that, in

contradistinction with other beings, he is rational and moral.

According to Professor Osita Eze, “Human Rights represent demand or claim which

individuals or groups make on the society, some of which are protected by law while

others are merely aspirations to be attained in the future”.

The Nigerian Supreme Court by way of definition declared thus:

Human right is a right which stands above the ordinary laws of the land and

which is in fact antecedent of the political society itself. It is a primary

condition to a civilized existence, and what has been done by our constitution

since independence is to have these rights enshrined in the constitution so that

the rights could be ‘immutable’ to the extent of the non-immutability of the

constitution itself.

1.2 Characteristics of Human Rights

1. Human rights are inherent in man- they apply to a man by virtue of the fact that he is a

human being.

2
 2. Human rights are inalienable- they are conferred on an individual due to the nature of

his existence. They are inherent in all individuals irrespective of their nationality, sex,

religion, caste, creed etc. they cannot be changed, taken away or transferred to another.

3. Human rights are essential and necessary- they are essential to mankind as they provide

suitable conditions for material and moral upliftment of the people. They are the very

essence of mankind.

4. Human rights are sacred, revered and sacrosanct. They cannot be given up.

5. Human rights are universal- they are applicable to everyone irrespective of sex, age,

tribe, origin, religion, color etc. they are universal in nature, without consideration and

without exception.

6. Human rights are in connection with dignity- every individual is to be accorded respect

and treated with dignity.

7. Human rights are interdependent- they need and depend on each other, violation of one

may likely lead to that of others.

8. Human rights can be protected by law and are therefore not absolute, in the sense that

they can be curtailed by the appropriate authorities if there are grounds for doing so.

1.3 Distinction between Fundamental Rights and Human Rights

Although these two terms are often used interchangeably, there are key differences

between the two terms. The main difference is territorial. Fundamental rights are rights

granted by a government. They are enshrined in the constitution. They are the species of

human rights which have been recognized and incorporated into the constitution e.g. right to

freedom of association, peaceful assembly etc They are rights protected by the law. While

human rights are the rights that all human beings should have irrespective of sex, nationality,

3
residence, religion, language, status etc. They are the most basic rights that protect a human

from other humans. They are the moral visions of rights that everyone agrees a human should

have. Examples are: right to life, freedom from torture, right to fair trial, freedom of thought,

conscience and religion etc.

The position that where human rights are entrenched in a written constitution, they are

called fundamental rights has received a judicial assent in Ransome Kuti &Ors v. A.G

Federation(1985) 8NWLR(Pt 6)211. It is noteworthy that Nigerian jurists have drawn a thin

line of difference between “human rights” and “fundamental rights”. See Uzoukwu &Ors v

Ezeonu II & Ors (1991) 6NWLR (pt200) 708 at 761 where the Court of Appeal held that

there is a difference between “human rights” and “fundamental rights”

Another distinct difference is that human rights are of a wider concept. They have a

worldwide acceptance. They are universal rights belonging to all humans irrespective of

citizenship, religion, race etc. They are universally recognized moral principles guaranteed at

an international level and enforced by the United Nations and other international agencies (i.e

International Court of Justice, International Criminal Court etc.) They are enshrined in

different international instrument thus they form part of international law. While fundamental

rights remain the realm of the domestic law. They are fundamental because they are

guaranteed by the fundamental law. They are specific to a particular country and they vary

from country to country. It is a right that the constitution creates.

Niki Tobi J.C.A(as he then was) opined that human rights is more of an international

concept while fundamental rights is more of a municipal/ domestic concept. It must however

be noted that the term “Fundamental Human Right” is used in some international bills of

rights. . It is worthy to note that, not all human rights have been recognized as fundamental

rights.

4
1.4 Scope of Human Rights

Human rights encompass a broad range of categories of rights such as: civil, political,

economic, social and solidarity rights. Human rights can also be viewed from different

perspectives and thus categorized into positive and negative rights.

1.5 Sources of International Human Rights Law

Human rights law forms one of the regimes of international law. International human

rights law derives from variety of sources which are as follows:

1. International Treaties: A treaty is a legally binding agreement between states

(countries). Treaties impose obligations on states about the manner in which they

treat all individuals within their jurisdiction. They bear various titles including

‘covenant’, ‘convention’ and ‘protocol’. Treaties are the most important sources

of international human rights law. They are adopted at the universal level i.e.

within the frame work of the United Nations and its specialized agencies as well

as under the auspices of regional organizations.

Presently, a number of multilateral treaties relating to human rights are in

force and legally binding on those states which are parties to them. Examples of

UN treaties include; International Covenant on Economic, Social and Cultural

Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR),

Convention on the Rights of the Child (CRC) etc.

5
 Regional treaties on human rights include: African Charter on Human and Peoples

Rights, American Convention on Human and Peoples’ Rights, European

Convention for the Protection of Human Rights and Fundamental Freedoms etc.

2. International Customs: Certain International human rights have acquired the status

of customary international law by their widespread practice by states and they

therefore are binding on all states without regard to whether they have expressly

consented. The statute of international court of justice refers to it as evidence of a

general practice accepted as law.

3. Other International Instruments: The United Nations have adopted quite a number

of international declarations, resolutions and recommendations relating to human

rights. Although these are not legally binding in the states like conventions,

covenants etc.; but they help in establishing broadly recognized standards in

connection with human rights issues.

4. Judicial Decisions

Decisions of the various judicial bodies are relevant in the determination of the

rules on human rights issues. Apart from decisions of courts, opinions of arbitral

bodies that mediate on complaints of human rights violations under the treaties

also assist in the determination of the rules relevant to international human rights.

It is worthy to note that the sources of international human rights law are not

limited to the important ones mentioned above

1.6 Classification of Human Rights

The division of human rights into three generations was introduced in 1979 by the

Czech Jurist, Karel Vasak. These three categories align with the three tenets of French

Revolution. The first he called “liberte” (liberty) i.e. Civil and Political rights, the

6
second he termed “egalite” (equality) which relates to Economic, Social and Cultural

rights; and the third he termed “fratenite” (solidarity) which refers to the Group or

Peoples rights. These three generations of human rights can also be described by a

colour scheme of “blue”, “red” and “green” signifying three different philosophies.

1. The First Generation Rights: These refer to the rights prevalent and derived

primarily from the 17th- 18th century reformist theories. They are civil and political

in nature. They are the civil and political rights which deal with liberty and

participation in political life. They are strongly individualistic and negatively

constructed to protect the individuals from the state. These rights are called

negative rights (“freedom from”) as opposed to positive rights (“right to”) because

they entail negative obligations on government not to interfere with the exercise of

the individual rights. These rights limit the power of a government and protect

people’s rights against its power. They imply that no government or society

should act against individuals in certain ways that would deprive them of their

inherent political or personal rights. In essence, these rights involve the freedom

from interference by other people or the government. They are sometimes referred

to as the “blue rights”.

Examples of these rights include: right to property, life, liberty and security of

person, freedom of speech, press, assembly and religion etc. These rights are

classified as fundamental human rights which are usually made enforceable in

virtually all jurisdictions. The Universal Declaration of Human Rights (UDHR)

1948 provides for Civil and Political rights under Article 3-21. These rights are

also contained in International Covenant on Civil and Political Rights 1966 and

Chapter IV of the Constitution of the Federal Republic of Nigeria 1999.

7
2. The Second Generation Rights: these are socio-economic rights that guarantee

equal conditions and treatment, they guarantee minimum necessities of life to

human beings. They are economic, social and cultural in nature. They derive

primarily from the socialist traditions of Karl Marx in the 19th century. They are

sometimes referred to as the “red rights” They are positive rights in that they

enhance the power of government to do something to the person to enable him or

her in some ways. They are not rights directly possessed by individuals but are

positive duties for the government to respect, promote and fulfil. This is however

dependent on the availability of resources. The duty is imposed on state because it

controls its own resources. This category of rights entails positive obligations on

government to provide the living conditions without which the negative rights

cannot be enjoyed. Without these rights, the existence of human beings is likely to

be endangered. Socio economic rights began to be recognized by government after

World War II.

These rights are contained in Articles 22-27 of UDHR and Chapter II of

CFRN 1999, which is classified as the Fundamental Objectives and Directive

Principles of State Policy which are rendered non justiciable in Nigeria. These

rights are also enumerated in the International Covenant on Economic, Social and

Cultural Right, 1966. The African Charter of Human and people’s Rights also

guarantees some of these second-generational rights. Some states have enacted

some of these economic rights in their constitutional law. For example, the state of

New York has enshrined the right to free education, the right to organize and

bargain collectively and workers compensation in their constitutional law. This

set of rights comprises the right to good shelter, good standard of living, good

8
 condition of work, good health, education etc. These rights require the affirmation

action of government for their implementation.

3. The Third Generation Rights: Unlike the first two generation rights which focus

largely on individuals, the third-generation rights include the rights of people and

groups. They are enjoyed by a group of individuals alone. The “collective-

developmental” rights of people and groups held against their respective states align

with the final tenet of “fraternity” They are sometimes referred to as the “green

rights”. The third generation of solidarity rights is a response to the progressive

unfolding phenomenon of global interdependence. These rights require international

cooperation for their realization since individual states cannot resolve problem in

isolation from the International Community. They constitute a broad class of rights

that have gained acknowledgement on an international level though they are more

contested than the preceding types. These rights are often found in agreements that

are classified as “soft law”, which means they are not legally binding. Some of these

agreements include:

1992 Rio Declaration on Environment and Development

1994 Draft Declaration of Indigenous Right

1972 Stockholm Declaration of the United Nations Conference on the Human

Environment etc.

Examples of these rights include right to self-determination, right to economic

and social development, right to a healthy environment, right to natural resources,

right to participation in cultural heritage, right to International peace and security etc.

The African Charter on Human and Peoples’ Rights guarantees many of these rights

including right to self-determination, right to development, right to natural resources

and right to satisfactory environment. Some countries have constitutional mechanisms

9
to safeguard these rights, while a few jurisdictions have enacted provisions for

environmental protection.

Comments: Although there may be tensions or incompatibilities between the third

generation and the other two generations rights, progressive scholars have agreed that

the three generations are in fact interdependent and no single generation can be

emphasized to the exclusion of the others without jeopardizing the interests

represented in the three types or generations of rights. The first generation proponents

do not include the second and the third generations’ rights in their definition of human

rights. To them, human rights are inherently independent of civil society and are

individualistic. To them, liberty is conceived negatively as absence of restraint. The

proponents of the first generation rights contend that man is first and foremost a

human being and only secondarily a social being.

On the other hand, defenders of the second and third generations’ rights

contend that the first generation human rights are indifferent to the material needs of

man. That the basic necessities of life: food, shelter, clothing, education fall within the

second generation of rights. However, such rights are treated as long-term goals that

will come to pass with fundamental economic and social transformation of societies.

1.7 Self -assessment Exercise:

1. Explain the concept of Human Rights

2. Human Rights are of three categories. Discuss

1.8 References/ Further Reading:

Ajomo, M.A: The Development of Individual Rights in Nigeria Constitutional History

Udu, E.A: Human Rights in Africa

10
Module 2: THE PHILOSOPHY OF HUMAN RIGHTS

Lesson Outcome: At the end of this module, students should be able to:

1. examine the underlying basis of the concept of human rights

2. explain the theoretical approaches that have been advanced for the evolution of the concept
of human rights.

2.0 Introduction:

The concept of human rights is open to myriad of views depending on the standpoint the
individual assumes or even more the social and cultural factors the viewer is disposed to. This
module deals with the understanding of the concept of human rights according to the
perspectives of different jurists or philosophers. The philosophical perspectives, approaches,
or schools of thought of the concept of human rights include: natural law, positivism etc.

2.1 Natural Law: Natural law is a philosophical theory that states that humans have
certain rights, moral values and responsibilities that are inherent in human nature. It is based
on the idea that natural laws are universal concepts and are not based on culture or customs. It
incorporates the idea that humans should be able to distinguish between “right” and “wrong”
inherently’. The idea of human rights derives from theories of natural rights. Adherents of

11
this natural law principles or the natural law thinkers, for example Aristotle, Plato, Hugo
Grotius, John Locke, and many others have said that certain rights exist as a higher law than
the legal system or any positive law. This school of thought is of a strong view that human
rights exist by nature.

The natural law theory was known to the ancient Greeks and was later elaborated by
different philosophers. The Medieval Christian philosophers (such as Thomas Paine etc)
believed natural law conferred certain immutable rights upon individuals as part of the law of
God. After feudalism waned, modern secular theories of natural law arose, natural law
became detached from religion and the groundwork for the secular rationalistic version of
modern natural law was established. According to Grotius, a natural characteristic of human
being is the social impulse to live peaceably and live in harmony with everyone, whatever is
opposed to them was wrong and unjust. He defined natural law as a “dictate of right reason”.
He believed that people have a right reason for doing things.

The concept of natural rights arises from the belief that there is an instinctive human
ability to distinguish right from wrong. The natural law thinkers see rights as universal,
absolute and inalienable irrespective of space and time. It is believed that right to life, dignity
of human person, liberty, good health are natural to man and attached to him by virtue of his
humanity. The natural law theorists believe that such rights are commonly attributed to
scriptural or religious teachings, teachings of philosophy or “common sense”. According to
natural law theory, all people have inherent rights conferred not by act of legislation but by
“God, nature or reason.” The theory maintains that the rules of right and wrong are inherent
in people and not created by the society. This theory recognises law and morality with deep
connection. The theorists believe we define human laws by morality and not by an authority
figure. Morality relates to what is right or wrong, good or bad, acceptable or unacceptable.
We can explain this universally through human reason. We are not taught natural law we
discover it by consistently making choices for good instead of evil. Therefore, it is
discoverable through the exercise of reason.

Aquinas stated that the fundamental principle of natural law is that good is to be done
and evil avoided. Furthermore, the proponents of the natural law theory say it is the law
which is “written upon the hearts of men”. Thus human rights are inherent, imprescriptible,
sacrosanct and are therefore enjoyed as great antiquity as nature itself. No state or authority
can derogate from human rights under any guise. It will be an obvious case of

12
authoritarianism for any state to deprive someone of his or her rights except on the strength of
justification. For example, in a case of murder, the person that perpetrated the act would be
said to have constructively abandoned his or her inalienable right to life.

John Locke, the chief exponent of the natural law theory imagined the existence of
human beings in the state of nature. To him, the state of nature signifies a state of freedom
where men and women could determine their actions. He also sees it as a state of equality
where no one was subjected to the will or authority of another. In other to end the hazards
and inconveniences of the state of nature, men and women decided to enter into a “social
contract” by setting up a political authority however, they still retained the natural rights of
life, liberty and property and government was obliged to protect the natural rights of its
subjects. Jean Jacques Rousseau in his work on political theory, The Social Contract agreed
with Locke that the individual should never be forced to give up his or her natural rights to a
king. His opening line states that “Man is born free, and everywhere he is in chains.”

The major problem associated with the natural law theory is that the rights considered
to be natural may vary from theorist to theorist depending upon their conception of nature.
Because of the difficulties associated with the theory, natural rights theory became unpopular
with legal scholars and philosophers. After World War II, the natural rights theory revived.
Tanaka, J in the South West African Case, Second phase, gave a clear definition of human
rights as follows:

A state or states are not capable of creating human rights by law or by convention,

they can only confirm their existence and give them protection. The role of state is no

more than declaratory. Human rights have always existed with human beings. They exist

independently of, and before, the state. Aliens and even stateless persons must not be

deprived of them. If a law exists independently of the will of the state and accordingly,

cannot be abolished or modified even by its constitution because it is deeply rooted in the

conscience of mankind and of any reasonable man, it may be called ‘natural law’ in
contrast

to ‘positive law.’

13
 Also in Ransome Kuti v Attorney General of Federation (1985)8NWLR (pt.
6)211 or (1985) S.C p.246. Kayode Eso commented about human rights thus “it is a right
which stands above the ordinary laws of the land and is antecedent to the political society
itself. It is a primary condition for civilised existence”.

Natural rights theories imply that all human beings are equal and should be treated
equally. The demand for equality before the law is therefore synonymous with the
development of international human rights law. It is worthy to note that several philosophers
such as Karl Marx, Jeremy Bentham etc. have criticized and condemned natural rights
theories. Jeremy Bentham regarded natural rights as “simple nonsense: natural and
imprescriptible rights, rhetorical nonsense,-nonsense upon stilts,”

2.2 Positivism: - this school of thought holds that human rights are only a prescription of the
positive law. Under the positivist theory, the source of human rights is found only in the
enactments of a system of law with sanctions attached to it. Human rights are basically
comprised in enacted laws such as statutes, code, regulations, constitutions that are applied
and enforced in courts. To this school, there is no such thing as human right except that
which is established by human authority. The most serious attack on natural law was from the
doctrine called legal positivism. This philosophy dominated legal theory most of the
nineteenth century and commands allegiance also in the twentieth.

Legal positivism advocates believe that the only legitimate sources of law are those
written rules, regulations and principles that have been expressly enacted, adopted or
recognised by a governmental entity or political institution. To the positivist philosophers, all
authority stems from what the state and officials have prescribed. Under the positivist theory,
the source of human rights is found only in the enactments of a system of law with sanctions
attached to it. Furthermore, the leading figures in this school of thought such as Jeremy
Bentham and his disciple; John Austin maintained that law (human right law inclusive) is that
which is defined as an assemblage of declarations or rules handed down by the sovereign in a
state to be obeyed by persons or class of persons. To the exponents of this theory, there was
the need to distinguish law as it is from law as it ought to be. Positivism negates the moral
philosophic basis of human rights. Legal positivism does not base law on divine
commandments, reason or human rights. The basic question to be asked when talking about
this theory is “What is law?” Is it written? Where does it come from? Legal positivism is a
theory which answers these questions. Thus, from a positivist perspective, it can be said that

14
“legal rules or laws are valid not because they are rooted in moral or natural law, but because
they are enacted by legitimate authority and are accepted by the society as such”.

According to John Austin, “the existence of the law is one thing, its merit or demerit
is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is another enquiry.” In the legal positivists point of view, the body of rules
should exist without conscious regard for the norms of morality, although the latter’s
influence are not completely denied. There are legal rules that do not measure up to moral
law but do not cease to be legal rules. According to positivism, law is a matter of what has
been posited. According to Hart, a contemporary legal positivist, separation thesis is the
essence of legal positivism. The main point of this separation thesis is that, the law and
morality are conceptually distinct. According to H.L.A. Hart, decisions can be deduced
logically from predetermined rules without recourse to social aims policy or morality. Moral
judgment cannot be established or defended by rational argument, evidence or proof. The law
as it is actually laid down must be distinct from the law as it ought to be. John Austin also
advocated the separation of law from moral law and natural law. He emphasized that law is
not directly related or has no “immediate concern” to natural or moral law.

Positive law encourages the belief that the laws must be obeyed, no matter how
immoral it may be. Critics of positivism maintain that unjust laws do not deserve the name of
law because they lack internal morality. It is worthy to note at this juncture that the rights
guaranteed as human rights in one society may not be within the legal cognizance of another
society.

In some legal systems such as Nigeria, human rights are drawn into two compartments:

i. Civil and political rights

ii. Social, economic and cultural rights

i. Civil and political rights: are a clears of rights that protect individuals’ freedom from
infringement by governments, organization and private individuals. These rights also
ensure full participation of individuals in the civil and political life of a society without
discrimination. They are clarified as fundamental human rights which are usually
enforceable in virtually all jurisdictions. Examples of these rights are: right to life, dignity
of human person, liberty, freedom of expression etc.

15
 ii. Social, economic and cultural rights: - These are freedoms, privileges and entitlements
that individual and communities require to live a life of dignity. Examples include: right to
food, housing, health, education etc. These rights are determined by the availability of
resources in a country to meet these needs. They are classified as the fundamental objectives
and directive principles of state policy enshrined in chapter II of the Constitution of the
Federal Republic of Nigeria, 1999 which are rendered non- justiciable.

To the legal positivists, there are conflicting precepts of natural law; making it difficult to
establish what is wrong or right and to them it is better the concept of law is free from
metaphysical speculation. The most influential criticisms of legal positivism is from the
suspicion that it fails to give morality its due. The critics emphasized that for law to be able to
perform its functions in creating harmony and peace in our lives, advance the common good
and secure human rights in the society then it must have relevance with our morals.

In conclusion, any claim of human right, the enforcement of which is outside the
enclave or domain of any coded law is illusive.

It is noteworthy that apart from the two main theories/ approaches /schools of thought
earlier discussed, there are other theoretical approaches or schools of thought on human
rights, which precepts are of not much practical importance in their significations.

2.3 Marxist approach/ Socialist school of thought: Karl Marx’s view of men and women is
not of autonomous individual with divine/ inherent rights but of men and women as “specie
beings”. He posits that citizens cannot lay claim on human right against the state since the
state represents their interest. An individual is essentially a product of society and ideally
should not be seen in an antagonistic relationship where rights are needed. To this school of
thought, law and human rights cannot be conceived outside the framework of a given society.
According to Marx, the only rights are those granted by the state and their exercise in
dependent on the fulfilment of obligations to the society and the state. The citizens’ rights are
uniformly secured as state rights since the state runs the nation’s economy.

Marxist understanding of human rights is that structure prevails and that the promise of
human rights can never be realized under a global capitalism, where private individuals
control the resources or the means of production. Marx’s teaching influenced the
economic and social rights. He posits that in capitalist societies, human rights do not exist
but exist in a classless society (communist society) where there is public ownership of

16
 means of production or resources and profits are shared equally. In communism, there is
no difference between the rich and the poor unlike the capitalism. For communism, the
state is above the individuals unlike capitalism where individual freedom is above the
state or society. Marx’s approach may lead to absolute sovereignty of the state and refusal
to submit to international control.

Karl Marx has a different approach to the study of rights. His socialist theory rejects the
natural law origin of citizens’ rights and hesitates to deduce them from the nature of man or
from the human mind. To Marx, natural rights do not reflect the relationship between man
and society.

2.4 Idealist school: To this school, human rights can only manifest as collective interest of the
society and not an expression of the individual’s interest. This school does not grant any right
to the individual but commands obedience to the state.

It is worthy to note that apart from the rights which belong to the society and are
enjoyable by individuals, there are some basic rights that attach exclusively to
individuals. Such as right to life, liberty, dignity of persons etc.

After careful consideration of the different schools of thought on human rights, the
principle of universality of human rights comes to fore. This brings us to the next
discourse on Universalism and Cultural Relativism.

2.6 Universalism and Cultural Relativism: To the naturalists, human rights are universal
having being ingrained in human nature. The principle of universality of human rights is the
cornerstone of International human rights law. The advocates of the universal character of
International human rights claim that such rights including right to life, freedom from religion
etc. are the same in all jurisdictions. Furthermore, these rights have been strengthened by
major human rights documents – UDHR, ICCPR, ICESCR etc.

The American Declaration of the Rights and Duties of Man 1948 establishes that “the
essential rights of man are not derived from the fact that he is a national of a certain state,
but are based upon attributes of human personality.”

A contrary view however states that human values, far from being universal, vary a great deal
according to different cultural perspectives. Regardless of the importance of traditional
cultural norms, modern human rights provide protection to all members of all cultures equally
and thus not limited by its own historical cultural influences.

17
 The contention between the naturalist and positivist schools of thought should not be
on the existence and universality of human rights since this is beyond the contemplation and
determination of an. The contention should rather be on the extent of recognition and
protection of these extant human rights norms in diverse jurisdictions. The recognition and
protection of human right remains a subject of relativity depending on the extraneous
conditions spanning from political, socio-economic, through cultural circumstances
prevailing in a given jurisdiction. However, because human rights derive from the unique
nature of human beings, they should be subjected to effective legal protection at the national
and international levels.

18
Module 3: HISTORICAL DEVELOPMENT OF HUMAN RIGHTS

Lesson Outcomes: Students should be able to:

 give a historical account of the evolution of human rights from pre-modern age to
 trace the historical development of human rights in Nigeria.

3.0 Introduction

The term “Human right” is comparatively of recent origin. Professor Maurice Cranston
defines rights as the “twentieth century” name for what had been traditionally known as
natural rights or rights of man. The concept of human rights is as old as the history of
civilization. It is a concept that has been evaluating throughout history.

3.1 Human Rights: Historical perspectives

The global concept of human rights transcends any known period in history. From Biblical
history it is noticed that the people of Israel made efforts at one time in Egypt, at another time
in Babylon, to free themselves of slavery and bondage. The concept is an evolution of revolt
against the ways, rights which are innate to all human beings have been supressed. It is a
settled fact among writers on human rights that human beings without any regard to time and
space is entitled to the exercise of some freedoms, which are not granted by any authority but
exercised by every human being as of right by virtue of humanity.

The origin of human rights is ideally pinpointed to the year 539B.C by the United
Nations when the armies of Cyrus the great the first king of ancient Persia conquered the city
of Babylon. Cyrus freed the slaves, declared that all people had the right to choose their own
religion and established racial equality. These and other decrees were recorded in a baked
clay cylinder known today as “Cyrus Cylinder” recognized today as World’s first charter of
human rights i.e. the first human rights declaration in history. The rules of the concept of
human rights lie in earlier traditions of documents of many cultures. Well before the 18th
century, most societies have had traditions similar to the “golden rule” of “Do unto others as
you would want them to do unto you”. The five oldest written sources that address questions
of peoples’ duties, rights and responsibilities are the Hindu Vedas, (religious texts originating
in India) the Babylonian code of Hammurabi, the Bible, the Quran and the Analects of
Confucius.

19
From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome
where it was closely tied to the doctrines of the stoics, who held that human conduct must be
brought in harmony with the law of nature.

Some of the historic document asserting individual rights have become written
precursors to many of today’s human rights documents including the Magna Carta (1215),
the Petition of Right (1628), the US constitution (1787), the French Declaration of the Rights
of Man and of the Citizen (1789) and the US Bill of Rights. Another cornerstone in human
rights history is represented by the promulgation of the Magna Carta in 1215. Magna Carta
also known as the Great Charter can be described as one of the most important legal
documents in the development of modern democracy, which has helped in establishing
freedom. It introduced the concept of “Rule of Law” and the basic idea of defined rights and
liberties to all persons, which offers protection from arbitrary prosecution and incarceration.
In 1215, after king John of England violated a number of ancient laws and customs governing
England; he was mandated to sign Magna Carta, which enumerates what later came to be
thought of as human rights. Examples of rights in the Great Charter include: right of the
church to be free from governmental interference, right of all citizens to own and inherit
property and to be protected from excessive taxes etc. Magna Carta set forth the principle
that the power of the king is not absolute.

The next recorded milestone in the development of human rights was the Petition of
Rights produced in 1628 by English Parliament and sent to Charles1(king of England and
Scotland) as a statement of civil liberties. The Petition sought the recognition of four basic
principles including: no taxation without the consent of the parliament, no imprisonment
without cause, no quartering of soldiers on subjects and no martial law in peacetime. This
document became the building block of nearly all civil rights legislation and is now
considered as one of the most important civil rights documents. We later had other human
rights documents as mentioned earlier in this text. In fact since the beginning of the 19th
century, most states have these provisions in their constitutions.

Prior to the two world wars, the development of human rights can be categorized into
the following periods:-

a) Prior to Greek Period: - One of the first examples of codification of laws that contain
references to individual rights is the tablet of Hammurabi. The Hammurabi code of

20
 282 laws created a precedent for a legal system which protects the people from
arbitrary prosecution and punishment.
b) Greek Period: - Geeks were the first propounders of natural law principles. During
this period, human rights because synonymous with natural rights i.e. rights that
evolved from natural law. According to the Greek tradition of Socrates and Plato,
natural law is the law that reflects the natural order of the universe especially the will
of the gods that control nature.

c) Roman Period: - During this period, the idea of natural rights continued in Rome,
where the Roman Jurist, Ulpian believed that natural rights belonged to every person
irrespective of being a Roman citizen or not. The origin of the concept of human rights is
usually agreed to be formed in the Greco-Roman natural law doctrines of “Stoicism” which
held that a universal force pervades all creation and that human conduct should therefore be
judged according to the law of nature. After the Roman period was the Christian period.

d) The Christian Period: - The idea of natural law also continued during this period,
although natural law was considered as will of God revealed to men via Holy Scriptures. All
human laws contrary to the law of God were to be discarded and ignored. Church as the
advocate of divine law could override the state.

e) Medieval Age: In the middle ages, the concept of human rights was further promoted in
the form of natural law. St Thomas Aquinas made an attempt to harmonize the teachings of
the church with those of natural law. He distinguished between four kinds of law in his
“Summa Theologica (‘Summary of Theology’). He observed that the law of nature is the
discovering of eternal law through reason and reason is the manifestation of religion. The
fundamental principle of the natural law tradition is that good is to be done and evil is to be
avoided.

f) Social contractualist Era: During this era, human rights was viewed from the idea of
positive law. A social contract happens between the ruler and the ruled (government and its
people). The people agree to give us some freedoms if the government agrees to protect every
one’s rights i.e. individuals consent to surrender some of their freedoms and submit to the
authority (of the ruler or the decision of the majority) in exchange for protection of their
remaining rights or maintenance of social order. Thomas Hobbes (1588 – 1679) saw natural
law as being vague and hollow and too open to vast differences of interpretation. John Locke
claimed that every man had a right to life, liberty and property. These ideas were based on the

21
idea of rational, equality and the natural rights provided by God. He believed all individuals
are equal in the sense that they were born with certain “inalienable” natural rights. The
principles of John Locke (Lockean Principles) fuelled the revolutions of the century to come.
These ideas are embedded in the America Declaration of Independence, the Bill of Rights
(set of amendments to the US constitution etc.) Governments that continuously violated these
rights are referred to as tyrannies.

In the middle ages and the renaissance due to decline in power of the church led society,
there was more emphasis on the individual. This move caused the shift away from feudal and
monarchist societies and allowed individual expressions flourish. After the decline of the
concept of natural law in human rights, positive law evolved and legislation became the main
source of human rights. The prominent writers in this field are Austin and Bentham. Under
the positive law, instead of human rights being absolute, they can be given, taken away and
modified by a society to suit its needs. For instance, in Nigeria, fundamental rights enshrined
in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 can be derogated
from under certain circumstances such as public safety, public order, in the interest of
defence or for the purpose of protecting the rights and freedom of other persons.

Jeremy Bentham sums up the essence of the positivist views as “rights is the child of
law; from real law come real rights; but from imaginary law, from “law of nature”, come
imaginary rights…. Natural rights is simple nonsense…”

The abstract ideas regarding human rights and their relation to the law of nature were
later transformed into positive law. We have various legal documents asserting individual
human rights including Magna Carta (1215). The idea of human rights gained more
recognition after World War II, when over six million Jews, Sinti and Roman (gypsies),
homosexuals and persons with disabilities were exterminated. The atrocities perpetrated by
Nazi Germany horrified the world and brought about the revival of the concept of human
rights. Governments then committed themselves to establishing the United Nations, with the
primary aim of strengthening international peace and preventing conflict. Calls came across
the globe for human rights standards to protect citizens from abuses by their governments.
The United Nation Charter, a founding document of the United Nations was later drafted in
1945. The United Nations established the Commission on Human Rights in 1946 and in
1947, the commission under the chairmanship of Eleanor Roosevelt was saddled with the task

22
of drafting a document spelling out the fundamental rights and freedom proclaimed in the
charter.

On 10 December 1948, the General Assembly adopted the Universal Declaration of

Human Rights. Although, UDHR is not a legally binding document, it has achieved the status
of Customary International Law because people see it as a common standard of achievement
for all people and nations. UDHR is commonly referred to as International Magna Carta.
There was a broad agreement that the rights which were enshrined in UDHR be transformed
into legally binding obligations through the negotiations of one or two treaties. Eventually, in
1966, two separate treaties covering almost entirely all the rights enshrined in the UDHR
were adopted: one for civil and political rights, the International Covenant on Civil and
Political Rights (ICCPR) and one for economic, social and cultural rights, the International
Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR focuses on issues
such as right to life, right to personal liberty right to fair trial etc. While the ICESCR focuses
on issues such as food, shelter, education, health etc. Together, the Universal Declaration of
Human Rights, the ICCPR and the ICESCR, are sometimes referred to as the International
Bill of Human rights. Apart from the two covenants making up the international Bill of
rights, the United Nations has adopted many more treaties further elaborating human rights.

3.2 DEVELOPMENT OF HUMAN RIGHTS LAWS IN NIGERIA

Human rights laws in Nigeria have their origin in England. The evolution of human rights in
Nigeria can be traced from the pre-colonial to post-colonial eras/ periods. Nigeria upon
independence inherited the Received English Law as one of her sources of Law. These laws
were originally enacted from England but incorporated into the Nigerian legal system after
gaining independence from the British Colonial rule. The common law countries have a
common political and legal inheritance, and they are therefore co-heirs of the Magna Carta of
1215, the Petition of Rights of 1628 and the Bill of Rights of 1689. These are Statutes of
General Application (SOGA) i.e. (Statutes that were in force in England on 1st January 1900),
given automatic application in the Federal Republic of Nigeria. Nigeria acceded to the
Universal Declaration of Human Rights upon attainment of her independence in 1960, and
was admitted as a member state of the United Nations on 7 October 1960. The country has
since domesticated some UN treaties and Regional treaties including the African Charter on
Human and Peoples right of 1981.

23
 A land mark development of human rights laws in Nigeria is traceable to the fear of
the 9minorities and the need to allay their fears of being dominated by the three major ethnic
groups in Nigeria: Hausa, Ibo and Yoruba whose political inclinations were embodied in the
three political parties existing then, the Northern People’s Congress (N.P.C), the National
Convention of Nigerian Citizens (N.C.N.C) and the Action Group respectively.

Nigeria has experienced series of constitutional development before her

independence in 1960. The pre-independence constitutions are the 1914, 1922, 1946,
1951, and 1954 constitutions. These constitutions focused attention on the importance
of including certain fundamental rights in future Nigeria constitutions. The first ray of
hope of codifying human rights provisions in Nigeria was in 1948 when the political
parties started calling for the incorporation of fundamental rights in the Nigerian
constitution. Dr Nnamdi Azikwe of the NCNC and Chief Obafemi Awolowo the
leader of the defunct Action Group spearheaded those calls. The Macpherson
constitution of 1951, conceded to Nigeria, the right to run their own affairs under the
supervision of the Colonial overlords. The incessant clamour for independence by
different interest groups in Nigeria, birthed the 1957 Constitutional Conference in
London.

At the conference, the minority ethnic groups experienced their fears about
the prevailing oppressive conduct of the majority ethnic groups in each of the existing
region. The conference, then agreed to the setting up of a commission headed by Sir
Henry Willink. The commission recommended the entrenchment of a long list of
fundamental human rights in the Independence Constitution to allay the fears of the
minorities. The rights in the proposal were similar to the ones in the 1948 Universal
Declaration of Human Rights, but were more specifically fashioned after the
European Convention on Human Rights. Following the report of Sir Willink
Commission, human rights were entrenched in chapter III of the 1960 Constitution
and made justiciable. Examples of such rights include: right to life, liberty, right to
judicial determination of one’s civil rights, right to freedom from discrimination etc.
These rights were adopted verbatim in the Republican Constitution of 1963. Since
then, subsequent constitutions in Nigeria also have provisions of fundamental rights
entrenched in them.

24
 The past military rule in Nigeria violated these guaranteed rights by the imposition of
their draconian decrees. This implies that the entrenchment of human rights does not, per se,
guarantee their enjoyment. Where the rule of law is bastardized, the entrenched provision of
human rights remain a figment of imagination. A laudable and striking innovation in the 1979
constitution is the inclusion of the social, economic and cultural rights in Chapter II of the
constitution, which is known as the fundamental objectives and directive principles of state
policy. These provisions are also in the extant constitution of the Federal Republic of Nigeria,
the 1999 constitution. Although much cherished, these rights are rendered non-justiciable i.e.
they are not enforceable by the courts due to lack of socio- economic complement which
permits their meaningful realization. Examples of these rights include the rights to education,
good health etc. These objectives and principles guide and direct the action of government its
agencies and every person the country.

3.3 References/ Further Reading:

1. Constitutions of the Federal Republic of Nigeria, 1960, 1979 and 1999.

2. O. Eze, Human Rights in Africa: some selected problems (Macmillan Nigeria 1984)

3. T. Elias, Nigeria: The Development of the Laws and constitution (Stevens 1967)

3.4 Self- assessment Question.

1. Discuss the history of human rights in Nigeria.

25