Anchor : Inalienable means something that can never be taken away from you. Are Human Rights truly inalienable especially in times of emergencies?
Martins Ejindu : Thank you very much Mr Moderator for that tickling question. I appreciate your mastery in coining such an intimidating, but necessary area of discussion.
Foremostly, the existence of human rights as a concept of both International law and municipal jurisprudence, is as ancient as the hunter’s gun. It wasn’t until late 18th century that a host of nations began the codification of rights. As it may interest you to know, rights are rights – nothing more, nothing less. It is the special reserve that we have given a host of such rights that has gotten so popular, so widely celebrated, yet acceptably controversial.
For greater clarity the question posed above will be pinnacled under two sub-questions:
1. Are human rights truly inalienable? The answer is yes. According to Article 1 the Universal Declararion of Human Rights 1948, “All human beings are born free and
equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
The import of the above is that man is born with rights, yet those rights are not in themselves “absolute”, after all, the act enjoins man to work with one another towards the goal of brotherhood. In other words, the extent of your right should be determined by your respect for other’s rights.
Let us pay a visit to the Nigerian jurisprudence. Chapter 4 of the Nigerian Constitution, 1999 (hereinafter referred to as CFRN) and its alterations, provides for all such rights which, to me, were only drawn from the letters of the Bill of Rights as applicable in the United States and the Human Rights Act, applicable in the UK. To digress a bit, there are two categories of rights captured by the International Covenant for Civil and Political Rights. There are non-derogable rights and derogable rights. Derogable rights are such rights that can be suspended when the situation demands so. On the other hand, non-derogable rights are the core of most stringent adherents of human rights – that is, come what may, they cannot be overriden, for example, the right to life. Many might argue that if right to life is non-derogable, why is there the death penalty? The answer is very simple; most legally developed nations have geared towards the abolishment of the death penalty. That is to show how important it has become to enable non-derogable rights in some jurisdictions. So, while you may want to hit on the death penalty as recourse, remember the many nations that have done away with it. Enough emphasis laid. Attention must now be centered municipally in the Nigerian context. Thus, all such rights in Chapter 4 CFRN are inalienable. Do you know what that means? It means that every right guaranteed under the CFRN 1999 are inalienable except there are intervening circumstances purported to limit the existence of those rights. Such circumstances shall be adjusted within the circumference of the second ambit of question asked; especially in times of emergencies.
During emergencies, for the protection of the greater good, certain rights may be suspended. (depending on the circumstance) All international and domestic documents governing human rights all protect the right of movement and association; freedom to traverse countries of one’s choice and all. However, today, almost all nations affected by the recent pandemic (COVID 19) have all placed limitations on the rights to move freely, or travel across borders. In some countries, a breach of the ban is treated as a crime punishable with either compulsory isolation or imprisonment depending on the severity of the breach. (India and Zimbabwe as examples) In Nigeria, the current response to the emergency has prompted the ban on the right to move freely as before.
Another sphere of right that was affected is the freedom to worship as guaranteed by international documents and in our case, Chapter 4 of the CFRN, particularly, Section 38(1) which guarantees the right to worship either alone or in community with others. A part of that right has by virtue of Buhari’s declaration on March 30th, remained suspended. Also, the curfew in Lagos State and FCT is a ready example of the status quo.
In such instances as exposited above, one always considers the greater good; the necessary sacrifice for greater enjoyment. If rights become absolutely inalienable, then the evolution of the necessary spirits of socio-ideological impact is defeated. As much as it is important to stress the need for the inalienable nature of human rights, it is even more important to protect humanity by pausing certain rights where they are very necessary.
Jeronya Mbiabat from the University of Buea, Cameroon : Are there less important and more important Human Rights?
Martins Ejindu : Well, the question of whether some rights are considered more important than others can only be answered upon the examination of what a particular nation considers fundamental; basic, moral and obligatory. On a universal examination, it may be more directly required to state that certain rights are regarded as non-derogable; a near-absolute situation which most nations have come to the agreement that they are so universally important such that any breach of such rights would be seen as a violation of the principles upon which the world order is premised.
Accordingly, those rights are regarded as first amongst their equals. The United States of America presents a perfect illustration. Trust me when I tell you that America is built on two principles; DIGNITY OF LIFE AND LIBERTY. The slightest shove with a native from Pennsylvania will be followed with: “goddamn, don’t violate my liberty”. It goes to tell you how much they value the liberty of men. Another instance is seen on the global scale where over 142 nations of the world have currently abolished the death penalty. These nations see the right to life as an invaluable category of right that stands tall in the midst of its contemporaries. Nations that have yet refused to let go of the death penalty and public executions are regarded as “civilly barbaric” and are not handed the scroll of human rights principal adherent, a deserving honour handed to chieftains and ambassadors of civil rights.
Do you know why the value of life and liberty have been seen to be recognized as unequalled in the eyes of many sovereign nations? During the first and second world wars, the world was terribly hit by the cruelty of a number of world leaders who took turns in romancing the garments of the grim reaper. The world was black with human rights’ violations, primary of which was, the killing of innocent civilians estimated at over 20 million deaths during the first world war, and over 85million during the second world war. Till today, nations are yet to recover from these losses and the gross violations that followed.
In order to reasonably placate the sorrows that followed those dark times, it became a generous necessity to protect the right to life, liberty, and freedom of all persons which are the bane of most international enactments governing the rights of men.
So if you ask me whether some rights are more important than others, I will say yes and I will say no. Yes because, all rights are fundamental but the value we give some of those rights will determine whether or not we can say they are more important. If you had noticed earlier before now, you will realize that the Rome Statute of the International Criminal Court recognizes certain crimes as entertainable by the ICC, they include, CRIMES AGAINST HUMANITY, CRIMES OF AGGRESSION, GENOCIDE , AND WAR CRIMES. What do they have in common? “Omnipotent value of the right to Life”. Leaders who have violated these rights on a mass scale have variously been sentenced at the ICC under the various International Criminal Tribunals. I would also say no – that all rights are equally important because rights are all fundamental. Thus, none should be deprived any individual. An individual is free to exercise all of his rights at his own discretion as long as he doesn’t use his rights to jeopardize the rights of others.
To conclude, all rights are necessary for the peaceful coexistence of all humans, No right is inferior but not all rights attract the same level of interest. This is because, man’s natural instincts is to be free, and to live. And that is why all over the world, a nation’s evaluation is considered on the premise of her value for the duo. That is why in some jurisdictions suicide is seen as a crime. You then begin to wonder, why would you punish a person who already wants to die? You can answer the question yourself. Your guess is as good as mine.
Anchor : Can a Human Right be traded-off or validly compromised to protect another Human Right?
Martins Ejindu : This question is the most comprehensively suitable for the current situation that the world has found itself. This is because, times like we are in have presented many experts of law, principalities in human rights analysis – with questions bothering on the legality or otherwise of the suspension of a group of rights simply to favour or protect others.
Critically speaking, it will be important to state that my response to this question is a joinder to my earlier analysis of the importance of certain rights above others. If all rights were truly equal in the face of it, why then do we sacrifice some to favour some. The answer is, well, funny. Some rights are the basis for the existence of others, “Quote me”.
Recently in Nigeria, the right to movement has been suspended to an extent, many persons are involuntarily confined to their homes; the same goes for right to public assembly. Before you shout or cry foul, I have just one simple question; If Covid-19 kills everyone, who will now exercise the right to movement or assembly or worship? Nobody! If you insist on your “right to privacy” and refuse to tell NCDC (Nigerian Center for disease control) that you are having symptoms suspected to be in relation to a possible exposure to corona virus, when you die, who will exercise that your right to privacy? Perhaps your ghost. A private burial would not be so out of place as well.
Some of our spiritual leaders have willingly cited that it is against our liberty to prevent us from worshipping freely at our places of worship. Dead men don’t pray, remember. While they are hellbent on emphasizing the right to freedom of movement and assembly, they are quick to forget that “life is your right” It is on this right that all others may be exercised. Rights are for humans, and to qualify as one, you must be alive, not so? Not just alive, but reasonably healthy.
So yes, some rights can be sacrificed to retain the core of the society. It doesn’t necessarily mean that the ones that were sacrificed weren’t important, it only goes to show that rights are contingent on one another. Sometimes, one must be relaxed to promote the greater good. In relaxing a particular right, the state usually examines the consequences that may arise. If the consequences outweigh the benefits that the relaxation will occasion, then the relaxation might be considered foolhardy.
Also, in a situation where bandits are suspected to be in operation, and unsuspecting and unarmed civilians are seen approaching the danger zone, the state may through the police force restrain the entrance of those civilians into the forbidden zone. By such prevention, one may relevantly cite a provision of chapter 4 of the CFRN that has been breached by such restraint, forgetting that if not for such necessary restraint, the complainant might have fallen victim to unspeculated attacks. So, reliance on Section 41(1) CFRN 1999 as providing for freedom to move freely may be totally unnecessary.
In conclusion, as it is evident in the Nigerian scenario as well as the global scene, some rights such as the right to movement, peaceful assembly, worship have all been somewhat paused just so humanity can enjoy the right to life which is currently under global threat. Such times do not come all the time, but when they do, it should be accepted as part of the struggle to retain the prevalent civilization.
And yes, all the questions I was asked, are seemingly interwoven. Don’t bite your lips to find out that I also gave interwoven responses. An elder from my village remarked that since the birds have learnt to fly without perching, the hunter will shoot without aiming, and that was why I used one stone to successfully kill 3 birds.
ABOUT THE AUTHOR
Obinna martins Ejindu is a Law student of University of Benin, Edo state, Nigeria and a speaker at the LIFIN webinar. He is an avid legal researcher and author.
For knowledge and Justice