BY CHARLES EZEAGU
Human rights are the totality of all rights which an individual inherits merely because he is human with life, blood, soul and spirit. Some of these natural rights are often selected, and protected in the constitutions of the various states as fundamental or constitutional rights which the state must not infringe upon, but enhance.
Fundamental rights better known as “Fundamental Human Rights” in many countries are now a common feature in constitutions that they hardly need to be explained. According to a one-time Chief Justice of Japan: “Fundamental human rights were not created by the state but are eternal and universal institutions, common to all mankind and antedating the state and founded upon natural law.” –See: Dr. T.A. Aguda: The Judiciary in the Government of Nigeria (1983) P. 41.
The word “right” is derived from the Latin word rectus which in the noun form means that to which a person has a just and valid claim, whether it be land, a thing or the privilege of doing something or saying something. We have what is called a legal right which is either the liberty (protected by law) of acting or abstaining from acting in a specific manner, or the power (enforced by law) of compelling a specific person to do or abstain from doing a particular thing.
A legal right is thus the capacity residing in one man or group of men, to control a thing with the assent and the assistance of the state, the actions of other. See: Oputa CA, Human Rights in the Political and Legal Culture of Nigeria; 2nd Idigbe Memorial Lectures (Lagos) 1988, pp-38-39.
“Human” has been defined as pertaining to, characteristic of, or having the nature of mankind, moral and rational creatures. Human rights are therefore rights which all persons everywhere and at all times equally have by virtue of being moral and rational creatures. They are inherent in any human being simply because of his humanity – the birth-right of all mankind.
The expression “human right” in its widest connotation embraces those civil, political, economic, social, cultural, group, solidarity, and development rights which are considered indispensable to a meaningful human existence. See: Ogbu O.N., Human Rights Law and Practice in Nigeria (Enugu, CIDJAP Publishers; 1999) P. 2.
“Right” here is used in a composite sense and not in a Hofeldian sense and includes both moral and legal rights. Legal human rights are those human rights that are guaranteed by positive law (Lex lata), while moral human rights are claims which ought to be in the positive law (Lex feranda).
Thus human rights have been defined as representing demands or claims which individuals or groups make on society some of which are protected by law and have become part of lex lata while others remain aspirations to be attained in future. See: Eze O.C., Human Rights in Africa: some selected problems (Lagos, 1984) Ch. 2.
It is my submission here that human rights are inherent rights to be enjoyed by all human beings of the global village and not gifts to be withdrawn, withheld or granted at someone’s whim or will. In this sense, they are said to be inalienable or imprescriptible. When they are removed from any human being, he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies, just as much as do his arms and legs.
Constitutions and other codes do not create human rights but declare and preserve existing rights. Perhaps, this is why statutory provisions for the first generation human rights are couched in negative terms. For example, to say that no person shall be deprived of his personal liberty presupposes that personal liberty is an existing right. See: Nwabueze B.O., Constitutionalism in the Emergent States (London: C. Hurst & Co Ltd, 1973) P. 41.
In line with the foregoing, it will be apposite to allude to some celebrated age-long human rights fighters. Patrick Henry posited “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty or give me death!”
Ezeagu is a Legal Practitioner and Human Rights Activist based in Abuja, Nigeria.