THE DYNAMICS OF SOCIAL AND ECONOMIC RIGHTS *Aduba, J. N., Dakas, D. C. J & Gye-Wado O.

Introduction The province of human rights is so encompassing and its tentacles so

widespread that the concept embraces virtually all aspects of human life. In the circumstance, a rather general appreciation of the concept could obscure the parts and yet the whole is elusive to the grasp. Thus, it is apposite to concentrate on specifics, with a view to a better understanding of the issues at stake. In this paper, we shall x-ray the dynamics of social and economic rights. The paper is divided into three parts. Part I lays a theoretical foundation for the discourse while part II focuses on the jurisprudence of social and economic rights and paves way for the concluding part. 1. Theoretical Foundation The concept of human rights engenders one of the most profound questions ever to task the intellect. Discourse on the precise meaning and content of human rights has taxed the ingenuity of eminent scholars and jurists of remarkable intellectual prowess; yet, the issue raises more questions than answers. Hans Kelson's remarks about the concept of justice, which is inextricably intertwined with the concept of human rights, is equally true of the latter: No other question has been discussed so passionately, no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers... yet, this question is today unanswered as it ever was. It seems that it is one of those questions to which the resigned wisdom applies that man cannot find a definite answer but can only try to improve the question.1

1.1 The Concept of Human Rights

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This could be accounted for by (he fact that, as Julius Store points out, definitions are essentially mnemonics for clarification. They may be preambulatory mnemonics foreshadowing elucidation to follow, or summation mnemonics recalling what has been the subject of prior exposition. In either situation, 'a definition cannot fruitfully be more definite nor more definitive than the exposition it calls to mind'.2 This is the moreso that discourse on human rights often has philosophical, legal and ideological underpinnings. Indeed, the fault is not with the concept itself as it is with those who perceive it; a situation-akin to blind men's perception of an elephant. Be that as it may, it suffices, for our present purpose, to examine the major Strands of the various approaches to the concept of human rights: the traditional approach and the socialist approach. The traditional approach finds firm anchorage on natural law conceptions. Its protagonists such as John Locke and Thomas Hobbes, construct a general scheme of rights which are common to mankind irrespective of nationality, creed or sex.3 These rights are said to be inalienable with divine content and appertain to the individual. They include the right to life; right to liberty; right to property, freedom of thought, conscience and religion; freedom of expression and the press. The socialist approach, on the other hand, is predicated on the dialectical thesis that the economic infrastructure is the determinant of the superstructure: It is concrete material conditions of the society which give rise to the sort of rights that can be enjoyed. Therefore, there can never be rights with divine content derived from the natural law synthesis. From this point of view, what are considered human rights in a bourgeois society is the liberty allowed for either the exploitation or alienation of the working class and peasantry by the dominant class. The very fact of inequitable social relations constitutes a bottleneck in the enjoyment of human rights.4 Thus, the socialist approach questions the validity of the traditional stance and maintains that human rights is a mere legal potentiality which 2|P a g e

depends on material conditions for its concretisation as a social reality. 5 Consequently, human rights must find expression in the matrix of the material realm. It is noteworthy that the third world perceives economic development as an intrinsic aspect of human rights.6 It is doubtful if the retreat of socialism in recent times has extinguished the relevance of the socialist synthesis although the degree of its articulation may be considerably whittled down. It is pertinent to appreciate the fact that the foregoing approaches to human rights inhere with certain limitations. The obsession of the traditional school with the individual obscures the reality of inter -state relations, undermines corporate existence within the context of a collectivised notion of human rights and gives the impression that the individual lives in a cocoon, oblivious of the interests of others. On the other hand, the socialist approach, rooted as it is in the Marxist theory of law as a superstructure and the infrastructure as the base which determines the former, raises the vital question of the role of law (if any) in effecting changes in the society. Marx's pronouncements that 'there is no history of law' and that 'law can never be more highly developed than the economic Structure and the social state or culture cause by it',7 are often construed as meaning that law, like other indices of the superstructure, is incapable of influencing the base, thus giving rise to a unidirectional relationship in favour of the latter. However, as Professor Osita Eze8 rightly points out, this position is rigid and lends credence to the vulgarization of a proper appreciation of the relationship between the infrastructure and the superstructure. Indeed, Marx and Engels were to confess, that they were partly to blame for the undue emphasis on economic determinism, owing to the dearth of time, place or opportunity to give the other elements in the interaction their due.9 Thus, law, within conceivable limits, is capable of accelerating economic progress. However, we must not lose sight of the fact that law cannot move too far in advance of socio-economic relations. Consequently, the promulgation of laws for whose implementation the concrete material conditions are nonexistent or inchoate and artificially to accelerate the development of 3|P a g e

social relationships with the aid of law is fraught with difficulties.10 The bottom line is that human beings are the beneficiaries of human rights. Any paradigm which is not cognisant of this fact reveals in idle fantasy. The concept of human rights in our view is better appreciated within the context of the generational development of human rights.

1.2 The Generations of Human Rights

For a proper appreciation of the current formulations of the norms of human rights, Karel Vasak's notion of 'generations of rights'11 is a convenient spring board. In his view there are presently three generations of human rights: First generation rights which relate to civil and political rights, the second generation rights of economic, social and cultural nature and the third generation rights which deal with the issue of solidarity.

1.2.1 First Generation Rights

Civil and political rights, which form the bedrock of first generation rights, are libertarian in character. They relate to the sanctity of the individual and his rights within the socio-political milieu in which he is located. Such rights include the right to life, freedom from torture and inhuman treatment; right to liberty; freedom from slaver and forced labour; freedom of movement; right to fair trial, freedom of though) conscience and religion; right to property; right to vote and be voted for and other right which are central to the traditional synthesis. By their very nature, first generation rights are said to be 'negative rights' in the sense that they impose restraints on the state without requiring positive action for their enjoyment. While it may be true that rights entail primarily positive or primarily negative correlative duties, the negative - positive rights distinction is not entirely correct. As Henry Shue12 argues and rightly so, the distinction between negative and positive is better appreciated not in terms of 'rights' but of 'duties'. Shoe's typology of duties is apt: (a) (b) (c) Duties to avoid depriving; Duties to protect from deprivation; and Duties to aid the deprived. 4|P a g e

Thus, virtually - if not - all rights reflect both negative and positive correlative duties. First generation rights largely represent western democratic ideals which, in the words of Adamantia Pollis, are predicated on a definition of the person as 'an isolated, autonomous individual' and inherent with individual self-aggrandizement and the glorification of private property as a fundamental inalienable human right.13 While conceding that there is 'a substantial element of truth' in the views which are critical of (lie liberal tradition and that 'horrors have been committed in the name if liberalism'. Jack Donnelley argues that the criticisms reflect the 'conventional or minimalist conception of liberalism' which is 'only one strand of the liberal tradition of political theory and practice'.14 He further argues that there exists a radical liberal tradition under which 'individualism is moderated by social values, private property rights are limited rather than absolute, and civil and political rights are coupled with economic and social rights'.15 The so-called 'radical liberal tradition' may well be a departure from orthodox liberalism, but it is apparent that primacy is often accorded civil and political rights, relative to other generations of human rights. As Donnelley himself concedes, 'individualism, private property rights, and civil and political rights - the three elements singled out in the conventional conception - do indeed have a special place in the western liberal human rights tradition'.16

1.2.2 Second generation rights

Second generation rights, primarily of economic, social and cultural nature, pertain to equality and are predicated on the necessity for the material well-being of the citizenry, with the state playing a pivotal role. They are essentially equalitarian or egalitarian in character and embrace inter alia, the right to work; the right to just conditions of work: the right to fair remuneration: the right to an adequate standard of living; the right to organise, form and join trade unions; the right to equal pay for equal work: the right to social security: the right to food; the right to education and the right to participate in cultural life. 5|P a g e

Generally, these rights are said to require affirmative governmental action for their implementation. Consequently, they are positively presented as 'rights to' rather than 'freedoms from' as is characteristic of first generation rights.17 The countries of the third world, reeling under the pangs of underdevelopment, tend to perceive first generation rights as luxuries and, instead, place premium on the second arid third generation rights. Amnesty International's 'Background Paper on Ghana', reveals that the principle of 'one man one vote' is meaningless unless accompanied by the principle of 'one man, one bread'.18 Professor Claude Ake is also of the view that: ... human rights have to be much more than the political correlate of commodity fetishism which is what they are in the western tradition. In that tradition, the rights are not only abstract, they are also ascribed to abstract persons. The rights are ascribed to the human being from whom all specific determinations have been abstracted...19 Accordingly, Professor Ake argues that the first generation rights of freedom of speech and freedom of the press do not mean much for a largely illiterate community absorbed in eking a living out of an arid mortar of subsistence. Thus: ... if rights are to be meaningful in the context of a people struggling to stay afloat under very adverse economic and political conditions, they have to be concrete :.. in the sense that their practical import is visible and relevant to the conditions of existence of the people to whom they apply. And most importantly, concrete in the sense that they can be realised by their beneficiaries.20 The social and economic dimensions of second generation rights are our focal point in this paper and will be the subject of farther enquiry later.

1.2.3 Third Generation Rights

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Third generation rights relate to the question of solidarity. They deal with the organic and corporate existence and working of the society and embrace inter alia, the right to safe and healthy environment, the right to development and the right to share in the common heritage of mankind. These rights are still in the process of progressive development and they have met with opposition, mainly from the West. For instance, they have been branded and dismissed as unjustified political demands.21 It has further been argued, as regards the right to development, that: While the linkage of human rights and development at the level of development planning is an exciting development that is conceptually well-grounded and promises important progress in the realisation of human rights ... the right to development is both conceptually Mid practically misguided, at best a legally and morally confused notion that is likely to be positively detrimental to the realisation of human rights.22 Whatever may be said of this generation of human rights, it is hoped that the co-operative synthesis which lies at its root will become the shared responsibility of all and sundry. ii 2.1 The Jurisprudence of Social And Economic Rights

The Current Formulation of Social and Economic Rights

The point had earlier been made that social and economic rights are pan and parcel of second generation rights which are egalitarian in character. The current formulation of these rights are better appreciated within the context of their perception at the level of three geo-political expressions international, regional and municipal.

2.1.1 International dimensions of social and economic rights

The formation of the United Nations and the consequent establishment of the Economic and Social Council (ECOSOC) which, in turn, established the United Nations Commission on Human Rights (UNCHR), have led to 7|P a g e

the development of fairly elaborate scheme of human rights. The Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, the International Covenant on Economic, Social and Cultural Rights, 1966 and numerous Convert and Declaration on specific issues such as the rights of women, children, the status refugees, etcetera abound. For our present purpose, the Universal Declaration and the Covenant on Economic, Social and Cultural Rights suffice. The Universal Declaration which was adopted and proclaimed by United Nations' General Assembly Resolution 217 (A) (III) of 10 December 1948 embodies social and economic rights although it is anchored principally on civil and political rights. For instance, Article 22 thereof makes provision for the right to social security, while Article 23 provides for the right to work, to free choice of employment, to just and favourable conditions of work, protection against unemployment, equal pay for equal work, just and favourable remuneration and to form and join trade unions. While Articles 24 and 26 guarantee the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay and the right to education, respectively. Article 25 provides: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond their control. (2) Motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock, shall enjoy the same social protection. Although the Declaration is still dogged by the controversy which surrounds the binding character of United Nations General Assembly Resolutions, Philip Alston is of the view that 'the declaration's philosophical underpinnings -are sufficiently eclectic, its text sufficiently 8|P a g e

flexible, and recent developments sufficiently responsive, to ensure its continuing relevance as a living instrument of incomparable importance in the field of human rights.23 While we do not share the view of Alston that the Declaration is an instrument of 'incomparable importance in the field of human rights', there is no doubt that it is a landmark in the field of human rights. More importantly, the social and economic rights provisions of the Declaration have been given concrete expression in the International Covenant on Economic. Social and Cultural Rights which was adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16 December 1966 and entered into force on 3 January 1976. The preamble thereto recognises that 'the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights'. Article 1 guarantees the right to self-determination, enabling peoples to freely determine their political status and freely pursue their economic, social and cultural development'. The Article further provides that ^all peoples may; for their own ends, freely dispose of their natural wealth and resources' and that 'in no case may a people be deprived of its own means of subsistence'. Articles 6 and 7 are on the right to work, just and favourable conditions of work, equal pay for equal work, safe and healthy working conditions. Article 8 guarantees the right of everyone to form trade unions and join the trade union of his choice, the right of trade unions to function freely and the light to strike. Article 9 recognises the right of everyone to social security while Article 10 provides special protection for motherhood, children and young persons. Article 11 recognises the right of everyone to an adequate food, clothing and housing, and to the continuous improvement of living conditions, whereas Articles 12 and 13 recognise the right of everyone to the enjoyment of the highest available standard of physical and mental health and the right to education, respectively. There is no doubt that the covenant embodies rights which are of critical relevance to human existence. Without them, the human being is 9|P a g e

a living skeleton. Unlike the Declaration, the binding character of the covenant is not in doubt. Its Achilles' heel, however, is its enforcement machinery, as shall be amply demonstrated in the second lap of this part.

2.1.2 Regional Perspectives of Social and Economic Rights: The African Dispensation
At the regional plane, European, American and African regimes stand out. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 essentially deals with civil and political rights although this has now been complemented by the European social charter of 1961. The Inter-American convention on Human Rights of 1969 and the African charter on Human and Peoples' Rights which was adopted in 1981 are more comprehensive and give a more elaborate account of contemporary human rights jurisprudence. We shall undertake a case study of the African regime with particular reference to social and economic rights. The preamble to the African charter recounts the plight of the African continent given its devastation by the triple tragedies of slave trade, colonialism and neo-colonialism and takes into consideration the virtues of Africa's historical tradition and the values of African Civilisation which should inspire and characterise Africa's reflection of the conception of human rights. With particular reference to social and economic rights, the charter guarantees the right to work, enjoy the best attainable state of physical and mental health, the right to education and the right of all peoples to their economic, social and cultural development in strict respect of their freedom and identity and in the equal enjoyment of the common heritage of mankind.24 Articles 20 and 21 of the charter recognises the right of all peoples to self-determination, including the rights to freely dispose of their wealth and natural resources. The charter establishes an African Commission on Human and peoples' Rights and mandates it to inter alia, ensure the protection of human and peoples' rights under conditions laid down by the charter. As

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shall

be

shown

later,

this

enforcement

machinery

is

weak

and

incapacitated by a myriad of problems.

2.1.3 Municipal Perspectives of Social and Economic Rights: A Case Study of Nigerian Regime
Chapter IV of the constitution of the Federal Republic of Nigeria 1979, embodies human rights as fundamental rights and farther provides that breaches of these rights are actionable in court. The tragedy, however, is that chapter IV is predicated only on first generation rights, even though African tradition emphasises communalistic ethos. Social and economic rights do not find expression in the constitution as such but are branded as 'Fundamental objectives and directive principles of state policy" under Chapter II. These include political, economic, social, cultural, educational and foreign policy objectives and directive principles. These fundamental objectives and directive principles are premised essentially on second generation rights. However, while section 13 of the constitution, the very first section of chapter II, provides that 'it shall be the duty and responsibility of all organs of government, and of all authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this chapter of the Constitution,' section 6(6) (c) provides that the 'judicial powers' vested in the courts enumerated in the constitution: Shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter II of this constitution. According to the Constitution Drafting Committee (CDC), the inclusion of this section, which is generally understood as making chapter II nonjusticiable, was based on the argument that unlike first generation rights which impose restraints on the State, the other generations of human rights require positive action on the part of the State to secure material 11|P a g e

means

for

their

enjoyment.

Thus,

given

Nigeria's

state

of

underdevelopment, it is futile to encourage litigation based on violations of human rights other than those of the first generation. While it is true that underdevelopment impedes the realisation of human rights, what is of critical relevance 'is the nature of the political system and the extent to which it is geared to create the material conditions for the promotion and enjoyment of these rights'25. Additionally, the Constitution Drafting Committee not only assigned a predatory role to the state, but also failed to address the 'why' question. What accounts for Nigeria's sorry state of underdevelopment? Is it the absence of the requisite human and material resources? Is it not true that besides the monstrous character of the international system, the domestic terrain inheres with internal contradictions? Is it not true that Nigerians are under developing Nigeria? The position of the Constitution Drafting Committee also fails to take cognizance of the fact that law can, within conceivable limits, serve as an accelerator of economic relations. Besides, the Committee was influenced by the pedestrian distinction between negative rights and positive rights26 Notwithstanding courts on the road the non-justiciability to social of chapter distributive II of the

constitution, its provisions can be used as 'indicators and signposts by the leading and justice'27. Consequently, they serve as prisms through which the human rights records of various governments could be viewed. Additionally, lack of commitment to the realisation of these objectives and directive principles may well attract impeachment proceedings. Impeachable conducts are not specifically defined under the constitution except for the reference to 'gross misconduct', defined as 'a grave violation or breach of the provisions of this constitution or a misconduct of such nature as amounts in the opinion of the House of Assembly to gross misconduct'28 Section 13 of the Constitution which requires all organs of government and all authorities and persons to 'conform to, observe and apply" the provisions of chapter II is also germane in this respect, considering that members of parliament have investigatory powers.29

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At this juncture, it is pertinent to note that Nigeria's human rights regime transcends the constitutional framework. In 1981, the African charter, as earlier pointed out was adopted. This charter came into force at the continental plane on 21 October 1986, Earlier, on 17 March 1983, the charter became part of Nigerian law by virtue of the African Charter on Human and Peoples' Rights (Application and Enforcement) Act of 1983, otherwise known as the African Charter on Human and Peoples' Rights Application and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria, 1990. This is consistent with section 12 of the 1979 constitution which endorses the doctrine of transformation. The enactment of the African Charter as part of Nigerian law is a landmark in Nigeria's human rights dispensation. This is because the charter embodies all the generations of human rights. Thus it transcends the obsession of the Western liberal tradition with first generation rights and proceeds to locate itself within the province of contemporary human rights jurisprudence. However, the question whether the transformation of the charter-into Nigerian law is an adequate recipe for the nonjusticiability of charter II of the constitution will become evident in the course of the ensuing discourse. 2.2 The Relevance of, and the Problem of

Enforcement/Realisation of Social and Economic Rights Given the current formulation of social and economic rights as disclosed by the foregoing exposition, there is no doubt that the significance of these rights lies in the fact that they constitute 'the essence of living'.30 Indeed, it is puerile to imagine that first generation rights can be realised in isolation of economic and social rights. As Professor Ake rightly points out, 'if a bill of rights is to make any sense, it must include among others, a right to work and to a living wage, a right to shelter, to health, to education. That is the least we can strive for if we are ever going to have a society which realises basic human rights'.31 Wallowing in esoteric exercises about the supposed sanctity of the liberal tradition is overdue for a dungeon. As justice Bhagwati further points out. the language of human rights carries great rhetorical force of uncertain 13|P a g e

practical significance. However, it is necessary that the highly general statements universality, of human rights and which ideally use are the language of into inalienability indefeasibility transformed

concrete realities if human rights are to be relevant in the resolution of economic and social problems.32 Indeed, 'if human rights are to have a social relevance, their content and indeed the whole social and philosophical basis (sic) for their existence must be made to reflect the dynamics of society. Giving due and functional recognition to ... social and economic rights will help to achieve this'.33 Unfortunately, the realisation of social and economic rights is fraught with enormous problems. We have already drawn attention to the controversy surrounding the legal status of the Universal Declaration of Human Rights. 1948. In respect of the 1966 Covenant on Economic, Social and Cultural Rights, the enforcement machinery is fluid. Article 2(1) thereof merely provides that: Each state party to the present convention undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its

available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.34
Part IV of the covenant makes farther provision for the submission of reports on measures which have been adopted and the progress made in achieving the observance of the rights recognised therein without laying any concrete foundation for the effective realisation of those rights. In respect of the African regime, the institutional framework for the enforcement of human rights stops at the level of the African Commission.35 The. Commission is incapable of enforcing its own decisions36 and the bulk of its work revolves around promotional activities. The Nigerian dispensation is much more tragic given that as earlier pointed out, chapter II of the constitution which would have formed the basis of social and economic rights is non-justiciable. Unfortunately too, 14|P a g e

the implementation of the African Charter in Nigeria is not devoid of practical impediments. For instance, since the Charter became part of Nigerian law at a time when it had not become operative at the continental level, does this affect its validity within the municipal domain? Second, the enforcement machinery of the Charter differs substantially from that of the human rights guaranteed under Chapter IV of the Constitution; in the circumstance, are both the substantive and procedural provisions of the Charter entirely part of Nigerian law? Third, what is the status of the Charter juxtaposed the constitution? Is it of subordinate, equal or superior standing to the constitution? Alternatively, is it part of the Constitution? Assuming that the Charter is subordinate to the constitution under Nigerian law, and there is overwhelming evidence in favour of that assumption,37 are the social and economic rights embodied in the Charter consistent with or complementary to Charter II of the constitution? What is the mode of initiation of proceedings before Nigerian courts for alleged breaches of Charter provisions, given that the Fundamental Rights Enforcement Rules 1979, were made pursuant to section 42(3) of the constitution "with reference to the practice and procedure' for the purposes of Chapter IV of the Constitution? These questions have been discussed elsewhere.38 It suffices, for now, to acknowledge that the enactment of the African Charter in Nigeria is not an adequate recipe for the non-justiciability of Chapter II of the Constitution. The most serious impediment to the realisation of social and economic rights is underdevelopment. This is particularly so for the third world countries whose economies and peoples have been exploited and strangulated. Consequently, a key solution to the problem of realisation of social and economic rights lies in the attainment of the goals of the new international economic order (NIEO). This does not, of course, obscure the fact that the underdevelopment of the third world countries is also traceable to gross national abdication on the part of the nations of those countries. Thus, the need to engender a new national economic order (NNEO) consistent with the ideals of the new international economic order and the general scheme of human rights is imperative.39 The

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entrenchment

of

durable

democratic

structures

is

part

of

this

desideratum.
III. Conclusion Social and economic rights belong to the second generation of human rights. This generation of human rights addresses issues which relate to equality. Social and economic rights are so fundamental that they lie at the root of human existence. These find expression in international and regional human rights instruments. However, Nigeria's constitutional human rights regime expresses them as fundamental objectives and directive principles of state policy and makes them nonjusticiable. Furthermore, although social and economic rights are embodied in a number of instruments, their enforcement machinery is so weak that they are no more than tissue guarantees. Additionally, underdevelopment and unequal relations inhibit the concrete realisation of social and economic rights; consequently, the radical transformation of the entire society along egalitarian lines is a categorical imperative whose time is NOW, for: ... the large majority of people who are living in almost sub-human existence in conditions of abject poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberty, though representing some of the cherished values of a free society, would sound as empty words bandied about in the drawing rooms of the rich and well-to-do, and the only solution for making these rights meaningful to them is to remake the material conditions and usher in a new social order where socioeconomic justice will inform all institutions of public life so that the pre-conditions of fundamental liberties for all may be secured. 16|P a g e

We tarry at our own peril.

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REFERENCES * Aduba, Dakas and Gye-wado are of the Faculty of Law, University of Jos, Nigeria. 1. Kelsen, H., What is justice? (London: University of California Press, 1957), p. 1. 2. Stone, J., Legal System and Lawyers' Reasoning, cited in Dias, R. M. W.

Jurisprudence, 4th ed. (London: Butterworths, 1976), p. 10

3. Lien, A. J., A Fragment of Thoughts Concerning the Nature and the

Fulfillment of Human Rights (Westport: Greenwood Press Publishers,

1973), pp. 144-145). 4. Gye-Wado, 0., 'A Comparative analysis of the institutional framework for the enforcement of human rights in Africa and Western Europe;' (1990) 2 RADIO, p. 188. 5. Some authors have made a distinction between human rights and fundamental rights. In the view of Dr. Mudiaga Odje, 'while all rights enjoyed and asserted by human persons may be described generally as human rights not all human rights can be termed fundamental rights or fundamental human rights... unless they are entrenched in the constitution'. Odje, M., 'Human rights: Civil, political. Social, economic and cultural - their place and protection in the future political order'. The Nigerian Bar Journal, vol. 21, No 3 of August 1986, p. 87; see also Idigbe, C., 'Fundamental rights provisions of the Constitution', In All Nigeria Judges Conference papers, 1982 (London: sweet and Maxwell, 1983), p. 2. This view is tenable only to the extent that it gives expression to the representation of human rights in various constitutions as fundamental rights. To say that a human right not fundamental merely on account of its non-embodiment in the constitution over stretches the issue. 6. For further discussion of the conceptual premises of human rights, see Eze, O. Human rights in Africa: some selected problems (Lagos; NIIA, 1984), Chapter Oputa, C. A., Human rights in the political and legal culture of Nigeria (Lagos: Nigerian law publication Ltd., 1988); 18|P a g e

Cranston, M., what are human rights? (New York: Taplinger, 1973), Chapter I; Shivji, I., The concept of human rights Africa (London: Codesria. 1989), Chapter 1 Kartashin, V., The socialist countries and human rights', in Vasak, K(ed.), The international dimensions of human rights (Paris: UNESCO. 1982), Chapter XX; Szabo, I., 'Historical Foundations of Human Rights and subsequent developments' in Vasak, K. (ed.), ibid.. Chapter II; An Nairn and Deng (eds.). Human rights in Africa - Cross - Cultural perspectives (Washington: The Brookings institution 1990), Gye-wado 0. 'A Comparative analysis of the institutional framework for the enforcement of human rights in Africa and western Europe', Loc. cit; Howard & Donnelley, 'Human dignity, human rights and political regimes', 80 American Political Science

Review, 801; Mitchel N. 'Liberalism, human rights and human dignity', 81 American Political Science Review
921; Shetack, J., The jurisprudence of Human rights', in Meron, T. (ed.) Human rights in international law (Oxford: Clarendon, 1984) Chapter III Shepherd, Jr. & Nanda (eds.). Human rights and third world development (Westport: Greenwood Press 1985); Welcli and Meltzer (eds.), Human rights and development in Africa (Albany: Sunny Press, 1984). 7. Marx/Engels., Works, quoted in Eze. Ibid., p. 7 8. Eze, Ibid. 9. Ibid. 10 Ibid.; see also Martin, R., Personal freedom and the law in Tanzania (Nairobi Oxford University Press, 1974). pp. xxii - xxiii; Chkivadze, the state, democracy and legality in the USSR: Lenin's ideas today (Moscow: Progress Publishers, 1972). pp. 41-42 11. Vasak. K. 'A 30 Year Struggle', UNESCO COUFUER, November 1977, p. 29 12. Shue, H., Basic rights: subsistence and affluence in US foreign policy (Princeton: University Press, 1980), pp. 35 - 64; Shue, H., 'Rights in the light of duties' in Brown. P. G. & Maclean, D. (eds.), Human Rights and United States Foreign policy (Mass: Lexington Books. 1979). pp. 65 - 81; Maccallum, Jr., 'Negative and Positive Freedom', in Flatham. R. 19|P a g e

(ed.), Concepts in Social and Political philosophy (London: Macmillan. 1973), pp. 294-308. 13. Pollis, A., 'Liberal, Socialist and Third World perspectives of human rights' in Schwab. P. & Pollis. A. (eds.). Towards a human rights framework (New York: Praeger. 1982), pp. 5-7; Macpherson, C. B. M. The Political theory of possessive individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962). 14. Donnelly. J., 'Human rights and Western Liberalism', in Nairn and Deng (eds.), op. cit. pp. 31-35 15. Ibid., p. 33. Rhoda Howard is equally of the view that the fear of anomie which criss-crosses criticisms of the liberal tradition are based on exaggerated misconceptions of the nature of social life in the western world. Howard, R., 'Group versus individual identity in the African debate on human rights', in Na'im and Deng, Aid.. pp. 159-183. 16 Ibid. Emphasis ours Welch and Meltzer, op. cit., p. 24. We have already drawn attention to the inaccuracy of a mechanical distinction between negative rights and positive rights and the point feeds no repetition here. 18 Cited in Ihonvbere, J. 0., 'Underdevelopment and Human rights violations in Africa' in Shepherd Jr., G. W. and Anikpo, M. 0. C. (eds.). Emerging human rights: The African political economy context (Westport, Connecticut: Greenwood Press, 1990), p. 55. 19 Ihonvbere, J. 0. (ed.) The political economy of crisis and underdevelopment in Africa: Selected works of Claude Ake (Lagos: Jad Publishers Ltd., 1989), p. 51. 20 Ibid. Professor Osita Eze is equally of the view that 'to the extent that socio-economic rights are not guaranteed, then to that extent will civil and political rights i remain palliatives for the masses' Eze, 'Human rights issues and violations: The African experience', in Shepherd, Jr. and Anikpo, op. cit., P. 102. For the view that second generation rights cannot be protected without civil and political liberties that enable people to demand their rights from the state, see 20|P a g e 17 Welch Jr., C., 'Human rights as a problem in contemporary Africa', in

Howard, R., The full - belly thesis: should economic rights take priority civil and political rights? a discussion from sub-Saharan Africa.

University of Toronto development studies working paper No. A 3 of

April 1983 21 Donnelly, J., 'In search of the Unicorn: The Jurisprudence and politics of the right to development', California Western International law

Journal 15, No. 3 of 1988.

22 Donnelly, J., "The 'right to development' - How not to link human rights and development", in Welch and Meltzer, op. cit., p. 261. see also Donnelly, J. 'Human rights and development: complementary or Competing concerns?' in Shepherd, Jr. and Nanda, op. cit. pp. 27-55. 23 Alston, P., The Universal Declaration at 35: Western and posse' or alive and Universal?', Review of the International Commission of

Jurists, No. 31 of December 1983, pp. 61-62

24 Articles 15, 16 17 and 22 of the African Charter. 25 Eze, Human rights in Africa: Some selected problems, op. cit., p. 32. 26 For the view that the provisions of chapter II are justiciable, see Fagbohunlu, T., 'The legal framework of human rights in Nigeria', in the CLO Annual Report on Human Rights in Nigeria 1990 (Lagos: CLO, 1991) p. 109 at 124-126. For counter-arguments, see Dakas, D.C.J. 'The legal regime of human rights in Nigeria: agenda for the constitutional conference', being a paper presented at the Faculty of Law, University of Jos, in Continuation of the Department of Public and Private law Seminar Series, on 16 March 1994. Dakas, however, shares the view of Fagbohunlu, that economic, social and cultural rights are crucial for the elucidation and meaningful appropriation of other (enforceable) rights conferred by the constitution. 27 Oputa, C. A., 'Access to justice', law and practice Vol. 1, No. 1 of August 1988, p. 10 see also Aguda, T. A., Human rights and the right to development in Africa: NIIA Lecture series No. 55, pp.21-26;

Okogie & anor v Jakande & ors (1981) I NCIR 232; Bar Hodge and Mukharja (1973) 4 SCC 255.

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28 See for instance sections 132 and 170 (II) of the 1979 Constitution;

Abdulkadir Balarabe Musa v. Auta Hamza & Ors. 3 NCIR 229; (1982) 5
S.C. 172. 29 See for instance, Sections 82 and 120 of the 1979 Constitution. 30. Goubadia, A., Human Rights in Nigeria historical perspective, in Kalu, A. U. & Osinbajo, Y. (eds.). Perspectives on human rights (Lagos: Federal Ministry of Justice, 1992). p 57 31 Ihonvbere, J.O. (ed.). The political economy of crisis and underdevelopment in Africa: selected works of Claude Ake, Loc. cit. see also Aguda, T. A., A new perspective in law and justice in Nigeria, National institute for policy and strategic studies Kuru, distinguished lecture series of October 25 1985; Aduba, J.N. 'Human rights and social justice in Nigeria: issues, dilemma and options in Kalu & Osinbajo, op. cit., pp. 220-237; Aduba, J.N., The impact of poverty on the realisation of fundamental human rights in Nigeria", presented at the second conference of Attorneys-General in the Federation. 9-12 September, 1991 at Abuja. 32 Bhagwan. P.N. Fundamental rights in their economic, social and cultural context in Developing human rights jurisprudence: The domestic application of international human rights norms. Commonwealth judicial colloquium, Bangalonre, 24 - 26 February, 1988, P. 58. 33 Goubadia, Loc. cit. 34. Emphasis ours. 35. The American and European regimes both have a commission and a Court each. 36. Gye-Wado, 0., op. cit. 193. 37. Sections 1(1) (3) and 12 of the 1979 Constitution. 38. See Dakas D.C.J., The implementation of the African Charter on Human and Peoples' Rights in Nigeria', 3 UJLJ (1986-1990) p. 39.

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39. See generally, Onwuka & Aluko (eds.). The Future of Africa and the new International economic order (London & Basingstoke: Macmillan publishers Ltd. 1986). 40. Per Justice Bhagwati, P. N. in Minerva Mills Ltd. v Union of India (1980) AIR SC 1789.

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