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Essential Attributes of HRs: (2) INALIENABILITY

Inalienability of human rights. What does this mean? Don’t mind the weirdness of the sound of the word ‘inalienability’. The meaning is not as difficult as it sounds. But to help you understand, we ask you to pay attention to our story about Adaobi.

Adaobi, a 15 years old girl is an orphan. She had lost both of her parents to a ghastly motor accident when she was barely 3. Adaobi survived the accident with her left eyes badly damaged. From that early childhood, she had known handful of suffering as none among her relatives cared to take her up. After spending much of her little but miserable years with her grandma, a young couple finally came up requesting that Adaobi should be allowed to follow them to the city. With a quick exchange of small notes between them and grannie, Adaobi was transferred to Abakaliki where she now live under a ‘mistress’. While still away in the village with granie, Adaobi had dreamt of going back to school, of pursing life goals (she had once whispered to her mother, a practicing nurse at the time Adaobi’s mother was alive, that she would like to be a doctor). Now, Adaobi is counting her 5th year in the busy city of Abakaliki. Since her arrival in the city, all she had come to learn is how retched and cursed her life is, and how lucky she was to be picked from that poor state of her little village to come and live in a city. She is uncultured, and hence, had to receive regular beatings and heavy wipes of cords from her Madam, Mrs Clara. From the rising of the sun until it later goes to rest, Adaobi is forced to do house chores. Over time, she shrinked in size and her skins were beginning to wrinkle from days of suffering and beating.

Next to Madam Clara’s flat is Eze, a young man of about 30 years old. He had barely been around the compound beyond 3 months but had come to observe the terrible conditions Adaobi live in every day. He summoned up courage one day and approached Madam Clara, inquiring of her why she treats Adaobi the way she does. Madam Clara flared up! “How dare you question how I treat my girl. Do you know what it cost me and my husband to bring her out of that her wretched and poverty-stricken village? Adaobi is not a regular girl that deserve pampering oh. In fact, she is a witch. Do you know that if you don’t deal with this wicked girl, she wouldn’t help to lift even a grain up?

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How many Adaobis do we have in our communities? They are people who are subjected to less humane conditions because of some unfavourable circumstances that surround their lives. Those who maltreat them and deny them basic enjoyments of life justify their actions on reasons of power relations between them and their victims. It is as if to say, some persons enjoy good things of life because they have the bargaining power to do so. They have the voice, the influence, and the might to attract privileges for themselves. For those who do not have these forces, they are on the disadvantage. They can be trampled on and treated as much as it pleases the strong.

This is a gross understanding of one of the central principles of fairness (justice). Human rights are not up for bargains. The good life Adaobi ought to enjoy are not what she has to be in a position of power relative to Madam Clara before she can enjoy them. Her circumstances (death of her parents, her physical conditions, her vulnerability in terms of her economic background) have not taken away her dignity and the rights she possesses, such that Madam Clara can then treat her as if she is an ‘alien’.

Talking about ‘alien’, the word came to use in 14th century as meaning “belonging to another” (merriam-webster.com). By 1600s, the word gave rise to another called ‘alienable’, an adjective describing something you could give away or transfer ownership of. ‘Unalienable’ is its opposite. By 1645 ‘inalienable’ gained currency as a synonym of ‘unalienable’, and today, it is the more common variant.

From this little history, it is not difficult to understand why Legal Dictionary defines inalienable as that which “cannot be bought, sold, or transferred from one individual to another”, and en.oxforddictionaries.com says inalienable means it is “not subject to being taken away from or given away by the possessor”.

Following from this, human rights such as rights to life, liberty, freedom of speech, and child rights such as rights to survival and development, access to universal basic education (see Child Rights Acts, 2003) are not negotiable on the basis of any discrimination. This should be our take home point. Adaobi, and her likes are not some aliens deserving subhuman treatment. If you have them in your care, rearrange your prejudices and begin to show them respect before the long arms of justice get you.

Shalom!

Contributors: C. O. Ikegbunam Esq.
C. A. Nwankwo Esq.
D. A. Okoliko

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.

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Essential Attributes of HRs: (3) INDIVISIBILITY & INTERDEPENDENCY

Kabiru works as a security officer in the house of Dr Alabi. Although, he was hired as a ‘gateman’, there is hardly any other chores Kabiru does not do in Dr Alabi’s compound. He washes the cars (Alabi has two, Lexus Jeep and a Toyota 4Runer), does gardening and man the security post. Since he took up the job about 3 years ago, he has not had time to go anywhere. Some time last year, he indicated interest to travel home for the Salah break, but Alabi would not have it, arguing that he did not hire him to be away from his duty post. Kabiru has since shelved the idea of traveling.

What worries Kabiru about his job the most however, is not even the manner in which his movement is restricted. It is rather that his condition of work has been poor and unappealing. The security room where he is supposed to live and operates from has barely anything for comfort. The room has an old stool Kabiru had patched more than five times since he resumed work, and a matt he uses to pray and also sleep upon. The room’s window is like a pigeon hole so that staying inside is pretty much like being carried in a black Maria van.

To make matters worse, Dr Alabi has not been forthcoming with Kabiru’s N10,000 monthly pay as at when due. For about 7 months now, he has been fed one story or another as to why he should exercise patience. While Kabiru waits in patience however, Dr Alabi never misses to entertain ‘business friends’, family members and ‘associates’ to sumptuous parties and dinners at almost every turn of the weekend. It is during this type of occasion that Kabiru gets to ‘feel his Oga’. He would be served food enough to keep his mouth munching for days. And when latter he gets to request for his meagre salary, he would be told:

“Ah, Kabiru! Don’t act like we treat you bad in this house? We give you food here. Wait, in this era of economic recession, who doesn’t owe salary in this country? Abeg, wait till next week please.”
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Kabiru’s fate is similar to many people in our society today. Ours is a society that cuts and separate what are individuals’ due, and then give them in piecemeal while framing it to look as if, they are actually doing the individuals really some good that deserve commendation. For instance, during the peak of late payment of salary in Nigeria, the one blamed on the recent economic recession, few governments who were managing to keep up to date were busy broadcasting on air how good and praiseworthy their principals were. They do not owe salaries. But after a check on these governments, it was discovered that these same governments owe huge backlog of emoluments due to their workers outside the statutory monthly take home, including refusal to honour promotion awarded to workers. Till date, some states are still paying piecemeal salaries, with some workers receiving almost 25% of their monthly pay.

Away from salary, dignity of labour requires that a person’s condition of work should be dignifying. This principle takes into cognisance, things like number of hours spent on work, hours given for rest and leisure, and the condition of work space, whether such supports the worker to deliver more efficiently. It also involves whether a worker has access to health package that allow him/her to enjoy good health benefits. Opportunity for workers to development their capacity, and for what is called “vertical mobility of labour” (i.e. room for promotion) also count in favour of dignifying work condition. These issues are well covered in international instruments like International Covenant on Economic, Social and Cultural Rights, (see Article 7, a through d). Section (d) of Article 7 particularly addresses the need for leisure, “periodic holidays with pay, as well as remuneration for public holidays”.

Although, Nigeria is a signatory to the above Covenant, both public and private employers of labour continue to selectively honour some while violating many of these rights. their argument is akin to Dr Alabi’s family. They can afford to owe workers, but not the other way around. At least, they fulfil ‘some obligations’. Unfortunately, one of the fundamental principles undergirding respect for human rights is indivisibility. Human rights are a wholesome set of fair packages which should not be selectively respected.

Why is this the case? Well, no right is more important than the other, and each right is intricately linked to the rest of others. Take for instance, the picture painted above about Kabiru and his job. You cannot begin to discuss whether his pay is more important than the condition of his work. In each category, the condition of where he works, the amount of rest he gets, and of course, his take home package, all of these things invariably affect his human dignity by adding something to it (when they are fairly supplied) or subtracting something from it (when they are not met).

Are rights interdependent then? Absolutely, yes. The health of a worker obviously affects his/her productivity and job satisfaction. Equally, capacity building can positively impact on the dignity of labour. Hence, neglecting these elements, as many employers are doing in our society, grossly negate best practice and of course, violates human rights principles.

Beyond labour, this discussion can be applied to other sectors of the society. For instance, you don’t choose to feed your children while refusing them access to education when you can afford, or you don’t praise yourself for giving food money to your wife everyday while at every slight provocation, turn her into a punching bag, or you don’t choose to seek citizens’ votes while refusing them participation in issues of governance. Human rights are indivisible and are interdependent.

Shalom!

Contributors: C. O. Ikegbunam Esq.
C. A. Nwankwo Esq.
D. A. Okoliko

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.

HRCRC Staff having outdoor activity during their 2017 Staff Day
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Is child rights protected by law?

Recently a story about a 4-year-old girl, Uloma, made a headline in a regional newspaper, Citizens’ Advocate. Uloma was found in a slave-like manner under the watch of a certain woman, Mrs Nwali Josephine. The woman is not the little girl’s mother. Weeks before Uloma was discovered, she hawked for her ‘madam’, Mrs Nwali, with little care and feed. Her suffering was terrible such that when the Ministry of Women Affairs and Social Development found her, she was ill and had pultruding stomach indicating poor care and feeding.

You might be wondering how Uloma ended up with Mrs Nwali? Well, her mother, Veronica Igwe traded with Mrs Nwali at a rice-mill and could not pay up a balance of N 100. Uloma was then exchanged in place of the debt pending when her mother could pay. Now in the police custody over alleged child trafficking, Mrs Nwali and Mrs Igwe are wondering why anyone should frown at their actions. Was Uloma not freely given by her mother, and didn’t Mrs Nwali promise to return the child whenever she gets her pay back?

It is not difficult to see the error in the above reasoning. While the two adults engage each other in a contractual agreement, the involvement of the child problematizes their action. Child rights is a fundamental issue worldwide, and both Nigeria’s laws and international instruments have special provision for child rights protection. Often times however, interest of the child is rarely or never factored whenever adults take decisions that involve a child as it happened in Uloma’s case. The fact that children everywhere are generally dependent heightens their vulnerability. It is precisely for this reason however, that the UN Conventions on the Rights of the Child (CRC) {28/11/1989} sets out principles to mainstream child interest, such that in all nations of the world, for every act which may impact on a child, the interest of that child takes precedence. The African Charter on the Rights and Welfare of the Child, adopted at the General Assembly of AU in 1990 also prioritises child’s interest, insisting the child has the right to grow up in the family environment free from violence, fear and torture.

To step it down, beyond the provisions of the Nigeria’s Constitution in Chapter IV which sets out fundamental rights, and which in principle, are extensive to children, recent effort to give special consideration to the spate of child rights violation in Nigeria has seen the UN’s CRC domesticated as Child Rights Acts in 2003. Many states have keyed into the federal Act by enacting laws to that effect including Lagos, Ebonyi (in 2010), Enugu (in 2016) and 21 others (living 12 more states behind).

Despite this effort however, more Nigerian child are exposed to violence and abuse ranging from physical to psychological and sexual. The fact that recent survey (2014) by the National Population Commission (supported by UNICEF and the US Centres for Disease Control and Prevention) indicates that 6 out of 10 children experience at least one form of violence before their 18th birthday should make us all to shudder and awaken in us a sense of urgency to campaign aggressively against child rights violations in our society. Nelson Mandela made a remark that has import for this call. He once said:

“Safety and security don’t just happen, they are the result of collective consensus and public investment. We owe our CHILDREN the most vulnerable citizens in any society – a life FREE from VIOLENCE and FEAR”. It is up to you and us to ensure we don’t have more Uloma situations in our communities.

When it comes to human rights, we must not forget that existence of a law giving express protection to them is not the only ground to ensure their respect. This point has been made in a Journal of Jurisprudence (2010), vol. 1, by Gumbis, J. et al. who argues that “the fact that a person has rights has nothing to do with enacting these rights in legal document”. It is rather embedded in the natural principle upholding human dignity. Thus, legal lacuna can never justify actions negating human dignity in any clime.

Shalom!

Contributors: C. O. Ikegbunam Esq.
C. A. Nwankwo Esq.
D. A. Okoliko

 

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.

A snapshot from Citizens’ Advocate newspaper

 

 

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DOES OUR CONSTITUTION PROVIDE FOR THE PROTECTION OF HUMAN RIGHTS?

Oluchi was on his way to a lecture that morning. About three boys accosted him and ordered that he stopped. He turned towards them and greeted.

“O boy e, see this boy oh! Na so them dey greet senior men?”, one of the boys demanded.

Oluchi looked confused, wondering what the fuss was about. Before he could say something, one of the boys, who had gone behind him, hit him hard “packing his feet off the g

Source, gettyimages

round”. Oluchi fell with the face downward. Others joined in the beating, pounding him hard until he was left bruised and exhausted.

Chinyere was on that route to school that morning too. From a distance, she observed unusual movements of fists but couldnt not make much of her perception. As she drew near however, she saw that three guys were running away from what looked like a human figure lying on the ground. She got to the spot and found a man physically battered. She helped the man up and assisted him to a nearby clinic for medical help. She then inquired from him if he knew his attackers and what led to it. Upon realising the injustice done to him, she suggested to the man to report the matter to the police for redress.

Ah, those cult boys! Nothing would happen to them oh. Law dey wey dey protect person for this country? Oluchi voiced his frustration.
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From the above narrative, we might consider that Oluchis expression in the preceding paragraph tells of faithlessness in the power of the Nigeria legal system to protect individuals in Nigeria. If we take it to be so, we might go further to outline factors that create such hopelessness in our justice system, like police indifference to treating citizens complaints, nepotism, godfatherism, inadequate manpower and corruption in the justice sector. These things which constitute clogs in the wheel of justice can wane citizens hope to access justice in any society.

Beyond this however, the story equally points us to wonder if our law(s) provides for the protection of Fundamental Human Rights (FHRs) as espoused in the UN Universal Declaration of Rights to which Nigeria is a signatory. The answer to that is in the affirmative. The 1999 Constitution of the Federal Republic of Nigeria (as amended) expressly considers FHRs in Chapter IV. Lets pick on the key points.

Right to life
Right to dignity of human person
Right to personal liberty
Right to fair hearing
Right to private and family life
Right to freedom of thought, conscience and religion
Right to freedom of expression and the press
Right to peaceful assembly and association
Right to freedom of movement
Right to freedom from discrimination on the grounds of ethnic group, place of origin, circumstance of birth, sex, religion or political opinion.
Right to compensation for property compulsorily acquired

These are rights naturally accruable to every person by virtue of his/her existence as a human being and the provision of the constitution is that where such is violated, redress can be sought. With regard to Oluchi, he can appeal to section 34 of the Constitution which covers right to dignity of human persons to seek justice. Precisely, section 34 sub 2A grants that no person shall be subject to torture or to inhuman or degrading treatment”. The Constitution reposes in the court the authority to entertain allegations bothering on violations of FHRs such as the one cited above.

There are other human rights which, though not justiceable (cannot be enforced), are in the Constitution as expressions of aspiration for Nigerians. They include:

Free and compulsory education
Adequate health care, gainful employment
Shelter, food, etc
This set of rights, found in Fundamental Objectives and Directive Principles of State Policy under Chapter II of the Constitution, are aspirations attainable if and when the State has the resources. However, we believe the two sets of rights are both fundamental and complementary. To understand this, consider the implication of life without gainful employment or food to sustain life in the first place. It is the reason why International Bills of rights have argued that Human Rights are interdependent, interrelated, indivisible and universal. Hence, there is a need for our legal framework to consider upgrading Economic, Social and Cultural rights to fundamental rights.

Shalom!

Contributors: C. O. Ikegbunam Esq.
C. A. Nwankwo Esq.
D. A. Okoliko

 

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.

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RIGHT TO FAIR HEARING

As Ngozi descended the stairs into the mall hall at the first floor, she just knew she hadn’t been treated right. Tears welled up in her eyes and her knees were still trembling. How come she was not given a chance to defend herself? Each time she attempted to speak before her supervisor and the HR, they shouted her down.

Earlier in the morning, at about 8.00 hours, she was at her post as a cashier in a popular and busy mall. She had resumed at about 7.20 which was 10 minutes away from the red time of 7.30. As she was dressing her stands and fixing up the machine to get ready for the day’s job, Mr. Anale called up to her, instructing that she go see the top boss upstairs. It was at the boss’s office she was handed a note that spelled she was no longer needed at her place of work.

Before being given the letter, the boss had told her the management got a report on her that she fought a customer on her way home the previous day. According to them, the said customer had raised some issues concerning a transaction Ngozi handled for her during the day and instead of showing ‘a good customer relationship’, Ngozi engaged her in a public fight.

“That is unacceptable from any of our staff. You’re hereby fired”.
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The story above presents us an interesting scenario that is very much related to article 10 of UN Universal Declaration of Human Rights. The article provides for rights to “fair and public hearing”and is enshrined in the Nigerian Constitution under Chapter 4, section 36. Ngozi case is chosen because it mirrors what often happens at homes, public instructions (e.g. church, schools, and hospitals) and private institutions when people are summarily judged of having committed offense. Whenever people are condemned without an opportunity to present their defense, they are left grieved. Fundamentally, such incident negates natural justice which provides that anyone accused should have,Fair hearing,that is, such an individual is given an opportunity to present evidence to support this or her case and to discover what evidence exists against him or her. Fair hearing must not be only in a criminal or civil trial as in a court. It also applies to administrative procedures to entertain complaint as provided for in section 36, subsection 1 of the Nigerian Constitution (1999 as amended):

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a FAIR HEARING within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

Criminal case deserves special attention as often times, extra-judicial killings/corporal punishment take place in many communities within our country. African Commission on Human and People’s Rights (ACHPR) provides Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003). A(1) provides in clear terms that “in the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body”. In other words, it is not in the place of a mob or group of persons other than CONSTITUTED authorities to hear, convict and met out punishment to anyone SUSPECTED to have committed a crime or an offence. And section 36(4) of the Nigerian Constitution grants that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a FAIR HEARING in public within a reasonable time by a COURT or TRIBUNAL”. Under these instruments, ‘jungle justice’ or mob killing/punishment is criminalised. This is because, in whatever form they come, summary judgement takes away element of justice, fair hearing, by which an accused is supposed to have a chance for reasonable defence. In the case of ‘jungle justice’, section 36(5) of the Nigerian Constitution which provides that a suspect of any crime is presumed innocent until proven guilty is blatantly violated. Note that where the accused is to be ‘proven guilty’ is not at the market square, the police post or at the field. It is at a hearing that is constituted by “competent, independent and impartial judicial body” (e.g., the court, tribunal or administrative authority vested to entertain specific complaint).

Back to Ngozi, what can she do given the circumstances surrounding her dismal from job? If the company where she was fired from has higher authority than that which effected her dismal, she can appeal to it for redress. Another option is to institute legal action in the interest of her fundamental rights. Caution however, is needed. The action needs to take into cognisance terms of engagement between the employer and Ngpzi, and Nigeria Labour Laws. Michael Dugeri, a Regulatory Compliance and Commercial Law Advisor, offers insights on the difference between termination of a contract of employment and a dismissal under Nigeria’s legal system. According to him, “In Nigeria, an employer can terminate the contract of employment with his worker at any time and for any reason or for no reason at all provided that the terms of the contract of service between them are complied with”. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 – 685 and Opuo v. NNPC (2001) 14 NWLR (Pt. 734) 552. With dismissal however, the employer is required to give reason for the action. See Union Bank of Nigeria Plc v. Soares (2012) 11 NWLR (Pt. 3112) 550.

Our take is that whether termination or dismissal, there are procedures (could be internal or external, e.g. labour laws), and the principle of fair hearing is central to the integrity of that procedure. Ramatu Umar-Bako (2012) cited a case which highlights this point:

“On 20 May 2011, a Federal High Court sitting in lagos, nullified the dismissal of the former Director – General of the Nigerian Stock Exchange (NSE), Professor Ndi Okereke – Onyuike and awarded her N500 million naira in damages for exemplary and aggravated damages for recklessness. It held that Okereke – Onyuike’s RIGHT TO FAIR HEARING was breached, the letters removing her were reckless, hasty and done in bad faith. The Judge maintained that it was ridiculous for the NSE to remove her within 24 hours based on bad and unverified allegations’ and that the NSE did not comply with the condition precedent in removing the plaintiff.”

This landmark judgement should serve to encourage other employees who have been unfairly dismissed like Ngozi in Nigeria. Equally, organisations can learn from it to avoid facing legal actions by ensuring employees are fairly treated before dismissal.

For a detailed account of principles and guidelines on fair trial, see ACHPR’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).

Shalom!

Contributors: C. O. IkegbunamEsq.
C. A. Nwankwo Esq.
D. A. Okoliko

{image, defendernetwork.com}

 

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.