By Prof. Wahab Egbewole
IT is obvious from the definitions of the authors, human rights encompasses those claims some of which as contained in, and enforceable by the extant laws, and others, though desirable, are unenforceable in practice,4 either because they have not found expression in an objective law or because of other circumstances, which may make their enforcement impracticable.
Some human rights provisions have been enacted into various national constitutions of the world, some of which are being referred to as fundamental rights. Fundamental rights have been generally regarded as those aspects of human rights which have been recognised and entrenched in the Constitution of a country. They are specially provided for to enhance human dignity and liberty in every modern State. In Nigeria, the 1999 Constitution provides for ‘fundamental rights’ and as such Nigerian Courts have found it expedient to draw a line of dichotomy between ‘human rights’ and ‘fundamental rights’. Drawing a distinction between the two concepts, the Court in the case of
Uzoukwu & Ors v. Ezeonu II &Ors held:
Due to the development of Constitutional law in this field a distinct difference has emerged between ‘Fundamental rights’ and ‘Human Rights’. It may be recalled that human rights were derived from and out of wider concept of natural rights. They are rights which every civilised society must accept as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration it was in respect of ‘Human Rights’ as it was envisaged that certain Rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law. They are fundamental because they have been guaranteed by the fundamental law of the country; that is by the Constitution.
From the above definitions, one can summarily say that fundamental rights are such freedoms which are expressed in or guaranteed by basic or pre-eminent lawus. It must be understood that what we now have as fundamental human rights are the provisions contained in the United Nations Convention on Civil and Political Rights while a number of developments have emerged in the human rights global community with the evolution of various rights categories of rights described in terms of generations.
CATEGORIES OF HUMAN RIGHTS
The introduction of modern human rights into international law discourse through the Universal Declaration of Human Rights (UDHR) in 1948, led to the ideological divide between the West and the East in the negotiating process of the framework for the recognition and protection of human rights. It has been observed that this divide resulted in the creation of a dichotomy of human rights along the existing Cold War groupings with the traditional West placing emphasis on civil and political rights and the East showing a preference for economic, social and cultural rights. It is understandable that division is inevitable first in the light of the political gulf between the two extremes as well as the economic and social focus of the eastern bloc either as a result of the socialist ideology or the seeming emphasis on workers right by way of Marxism class theory.
The inability of the Western and Eastern blocs to be unanimous led to the drafting and adoption of two sets of rights documents: the International Covenant on Civil and Political Rights (ICCPR) –considered as the ‘first generation rights’- and The International Covenant on Economic, Social and Cultural Rights (ICESCR) dubbed as the ‘second generation rights’. It is to be noted that even at the stage of the creation of the two categories of rights, there appears to be different standards for their actualization. There is still ensuing debate whether ICCPR were considered more important than ICESCR.
States have repeatedly hid under nebulous phrases like “available resources” and “progressive realization” to justify their failure to implement the socio-economic rights. However, in the 1970s, the third category of rights coined as the ‘third generation rights’ made a foray into international human rights discourse. We have argued earlier that the Ostrich game within the African continent on non- availability of resources to deny the citizens’s economic rights is more of greed and corruption as against resource scarcity being bandied.
Three generations of rights: The idea of generations of rights was coined by Karel Vasak in the 1970s. Vasak adopted the rallying cry of the French Revolution based on liberty, equality, fraternity as its template for organizing our understandings of human rights. Vasak’s template has become commonplace, despite being unsatisfactory either as a theoretical or as a chronological account of human rights.
Civil and political rights are considered as the first generation rights, socio-economic rights are seen as second generation rights while solidarity or group rights are considered as third generation rights. This generation has issues of environmental and development rights as very active in this regime.
First Generation Rights
This generation of rights are the liberty rights, encompassing civil and political rights. These rights were the first to be established historically, and have often been viewed as the basis or core of any possible rights system. First generation rights emerged to protect the interests and negative liberties of the individual against the power and encroachment of states, and includes freedom of speech, expression, religion, association, right to life, rights to a fair trial, among others. They are generally seen to impose immediate negative duty on the state to ensure their protection and unconstitutional violations. They are codified in the UN’s International Covenant on Civil and Political Rights. Nigeria, being a signatory to this international human rights instrument, also made provisions for this class of rights in Chapter IV of its 1999 Constitution styled ‘Fundamental rights’. These rights are considered justiceable, as they confer an immediate right of action in court to the victim of such rights violation to claim damages.The rights are regarded as irreducible minimum that states owe their citizens and if these rights are breached or threatened to be breached, the citizens are protected.
To be Continued