By Prof. Wahab Egbewole
HUMAN Rights is an interesting and even more controversial concept. Its popular appeal all over the world demonstrates its acceptability and boundless reach. It is one of the most discussed and highly sensitive political and legal issues that emerged after the Second World War.
Human Rights means many things to many people, nations, cultures and religions. Though the universal conception of human rights rooted in Western values has dominated the human rights debate, it has come under increasing criticism from other cultural and religious values. It has been argued that the modern human rights is a super-imposition of the western ideas rooted on individualism over other cultural values.
Non-western cultural values such as Islam have continued to challenge the universal claim of modern human rights instruments on the basis that the idea of human rights is in contradistinction to Islam.2 The notion that an individual is an independent being with inalienable rights against the state has been argued not to be in tandem with Islamic principles. In Islam, the belief is that God created human beings and has given them rights, however, they also have duties towards Him, and they cannot do whatever they wish or live as they please, even if there is a consensus about it.4
Many nations and scholars have attempted to resolve this conflict by finding a middle ground solution that ensures that both the Islamic and western notion of human rights operate side-by-side
Societies operating legal pluralism, in which both western and Islamic ideas feature prominently their co-existence, have ensured that all the religious differences are accommodated in the law of the land. In Nigeria, the 1999 Constitution is a clear example of a legal document that acknowledges the country’s cultural and religious pluralism.
Though the human rights provisions under the Constitution are modelled along the modern universal human rights instruments, most of these rights are equally rooted in Islam. Not only that, Constitution recognised the existence of Islamic personal laws of Muslims in Nigeria.
It must however be underscored that this mixture has raised a number of issues at the operational level and this has resulted in a number of legal and political misgivings which in some cases have been tested in court. Thus, this paper will raise a number of issues including whether human rights and Islam can co-exist or mutually exclusive? What is the level of engagement between Islam and human rights? How has the traditional scholars approached the relationship between Islam and human rights? Are there peculiar Nigerian approaches to the relationship between Islam and human rights? What is the effect of the current deconstruction or interventionist approach of the matrix between law and religion? This discourse will equally make a number of suggestions to foster an enduring marriage between human rights and Islam on the theoretical foundation that what is not forbidden may be permissible with a caveat on the need for rules of engagement so that each will stay in line.
Concept of Human Rights
The term ‘human rights’ has become so popular that there is hardly political, moral, religious and legal discourse without the term being mentioned. It must be emphasised that the concept has remained fluid, nebulous, abused and evoked for all conceivable platforms. It is used in political speeches, in law, in media, in workplaces and even in market places. Individuals, groups and
nations claim a variety of rights ranging from right to life, right to work, right to religion, right to privacy, etc. These rights have at one time or the other been asserted and denied, exercise and waived, violated and respected and above all extensively discussed, interpreted and disputed in various contemporary societies.1
Understanding the concept of human rights is not a straight-forward exercise. The complexity associated with human rights ensures that it is only what one encounters in relevant legal acts, constitutions, statutes and international instruments, various terms and notions other than human rights that actually define what human rights is. These include fundamental rights, fundamental freedom, civil liberties and civil rights, individual and collective human rights as well as peoples’ rights. Among these various terms, human rights seem to be the most general notion encompassing rights attributable to individuals, group of individuals, peoples and even mankind.
As wide spread as human rights appears to be, there is no unanimity in the definition of human rights by both legal and political writers. Legal instruments usually contain lists of rights which they are supposed to be promoted, secured and protected. Definition of human rights are preferred by learned authors in jurisprudence and legal theory, which on their part considerably depending on the philosophical schools that such authors represent.2 Donnelly offered a definition of human rights which is generally considered as a western construct:
Human rights, following the manifest literal sense of the term, are ordinarily understood to be the rights that one has simply because one is human. As such, they are equal rights, because we either are or are not human beings, equally. Human rights are also inalienable rights, because being or not being human usually is seen as an inalterable fact of nature, not something that is either earned or can be lost. Human rights are thus “universal” rights in the sense that they are held “universally” by all human beings.
Cranston has defined human rights as ‘something of which no one may be deprived without a great affront to justice. There are certain deeds which should never be done, certain freedom which should never be invaded, some things are suppressively sacred.’1 This definition has been considered to be more idealistic and lacks precision.2 Eze however offered a simpler definition:
Human rights represents 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 the future.