The Young African Research Journal (YARJ) is a publication of the Young African Research Arena (YARA). YARA is a pool of young African researchers committed to providing accurate information about Africa and African perspectives on global affairs, from the point of view of young African students. Advisory Board: Professor Akin Oyebode Dr. Chidi Odinkalu Ms. Funke Aboyade Mr. George Etomi Dr. Sope Williams-Elegbe Editorial Board: Adenike Aiyedun Senior Editor Edefe Ojomo Senior Editor Sola Asiwaju Editorial Assistant Tosin Reis Editorial Assistant YARJ is supported by the editorial and web support teams of YARA, comprising the following members: Adetola Onayemi Idrees Ibrahim Ayoola Akinbo Olaolu Oni Bankole Longe Ose Binitie Bie Jaja Simisola Samuel Dumebi Nwabudike Sola Asiwaju Emmanuel Ohiri Tope Omotayo Femi Omosuyi Tosin Reis Feyisayo Ogunmola Ugochukwu Ezeh i The Young African Research Journal (YARA) is a publication of the Young African Research Arena (YARA). Copyright © 2012 by: The Young African Research Arena (YARA) Lagos, Nigeria www.yararena.com Printed by: Bismot Global Concept +234 803 464 7754 Lagos, Nigeria ALL RIGHTS RESERVED No part of this publication may be reproduced, store in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. This book is sold subject to the condition that it shall not by any way of trade or otherwise be lent, re-sold, hired out or otherwise circulated, without the publisher’s prior consent, in any form of binding or cover other than in which it is published and without a similar condition including this condition being imposed on the consequent purchaser i Articles Analysis of the Right to the Dignity of the Human Person in Nigeria- International and Municipal Approach CHIKANSO EZITONYE……………………………………………...…3 Democratisation in Democratic Republic of Congo: Elections and the Existing Political Culture NATASHA BANDA, DENNIS NII OKAI ARMAH, SAOYO TABITHA GRIFFITH…………………………………...………...……………....34 Terrorism- A Human Rights Perspective on the Nigerian Terrorism [Prevention] Act 2011 UGOCHUKWU R. EZEH…………………..………………….…….…54 The South African Constitution and the Social Justice Jurisprudence of the Constitutional Court CALLIXTE KAVURO……….…………………………………...…..100 YARJ Reviews and Commentaries The Search for Paradise: A Brief View of the Effect of Tax Havens on the World Economy FEYISAYO OGUNMOLA…..……………….………………………..127 ii Analysis of the Right to the Dignity of the Human Person in Nigeria- International and Municipal Approach Chikanso Ezitonye1 Human dignity, being a core aspect of human existence, is protected under international and municipal laws. Nigeria, as an active and responsible member of the international community, has ratified various international instruments which impose an obligation to respect, protect, and fulfil the right to the dignity of the human person. These treaties impose on Nigeria an obligation to deter from and prevent the violation of this right. Commitment to observe these instruments is based on the international law principle of “pacta sunt servanda”, which states that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.”2 However, this right has constantly been violated by certain provisions under Nigerian laws, despite international and municipal provisions. This raises the issue of whether Nigerian law reflects the international standard on the right to dignity of the human person and to what extent the international standard has influenced Nigerian society on this right. The questions as to the complexities facing the protection of this right in Nigeria, as well as the relationship between international law (instruments) and domestic laws will be considered. In this light, the aim of this work is to show that international standards assist in interpreting the right to dignity of the human person within the municipal legal order. According to Max Sorensen, “the obligations imposed on a state by international law with a view to ensuring the implementation, in municipal law, of the terms of an international treaty to which the said state is a party, are the means of guaranteeing 1 5th year Law student, Faculty of Law, University of Lagos. This work is based on a research project submitted to the Faculty of Law, University of Lagos, in partial fulfillment of the requirements for the award of bachelor of laws degree (LL.B). 2 Vienna Convention on the Law of Treaties, entered into force on 27 January, 1980. 3 harmony and material agreement between the two legal orders”.3 The paper will establish the need to synchronize the international and municipal standards to ensure optimum enforcement of this right. It will also consider the possible ways of synchronizing both legal orders within the Nigerian legal system. Some of the international instruments that will be made reference to are; Universal Declaration on Human Rights, African Charter on Human and Peoples‟ Rights etc, while the Nigerians laws include; The Criminal Code, the Penal Code, the Sharia Penal Laws and the 1999 Constitution. Basis of the Right to Human Dignity Historically, the development of the idea of human dignity is linked to the concept of individualism, which can be traced to the Greek philosophers. The Stoics were the first to articulate the idea of individuals as reasonable beings who should be respected. Humans, in Stoic term, were characterized by reason, and this quality distinguished man from animals. Since all men had reason, they were all equal and worthy of respect.4 The ideas of Stoic philosophy, combined with Jewish and Christian belief in God, were developed into natural law theory by mediaeval Christian philosophers, such as Thomas Aquinas. He postulated that since man is created by God and occupies a unique position within the universe, he is entitled to dignity and respect of his person.5 Stoicism also influenced Immanuel Kant, whose philosophy was linked to individual autonomy, freedom, and human dignity. His philosophy provides an important 3 Max Sorensen, „Obligations of a State Party to a Treaty as Regards its Municipal Law‟ in A. H. Robertson (eds), Human Rights in National and International Law (Manchester University Press 1968) 11-12. 4 Evadnѐ Grant, „Dignity and Equality‟ (2007) 7(2) Oxford Journal: Human Rights Law Review 299, 304. 5 ibid. 4 philosophical underpinning for the right to human dignity. This formulation provides a secular basis for human dignity.6 The right to dignity of the human person is one of the most intrinsic rights of man and can be seen as the determinant of personhood.7 This right is a first generation right,8 thus a shield that safeguards an individual against the abuse and misuse of political authority or the arbitrary powers of government. It is an individual right that is absolute in nature, and is considered to be the integral basis of human rights. It is usually invoked within the context of socio-economic rights, and as the basis of other human rights or as a guide to their interpretation.9 Thus, states are obliged to ensure conditions which are consistent with basic human dignity. This right presupposes recognition of the dignity and worth of the human person, and it relates to the sanctity of the individual and protection of human persons from cruel and degrading treatment. According to Ronald Dworkin,10 anyone who professes to take rights seriously must accept, at the minimum, the vague but 6 ibid 304 – 305. 7 Kehinde M. Mowoe, Constitutional Law in Nigeria (Malthouse Press 2008) 307. 8Civil and political rights are sometimes called first-generation human rights. They arose during the Enlightenment in the 18th century and reflect the idea of individual liberty with respect to the state and the democratic idea of participation. Second-generation human rights are the economic, social and cultural rights that developed during the labour movements of the 19th and 20th centuries. The third generation of human rights, solidarity rights, have existed since the mid-1980s. They are contingent on international cooperation and aim at the formation of a community. See: Osita N. Ogbu, Human Rights Law and Practice in Nigeria: An Introduction (1st edn, Cidjab Press 1999) 15- 22. 9 Henk Botha, „Human Dignity in Comparative Perspective‟ (2009) Stell Law Report 175. 10 Ronald Dworkin, Taking Rights Seriously, (Turtle Books 1978) 198. 5 powerful idea of human dignity. An essential condition for the recognition of the right to dignity of the human person is the recognition of this right as fundamental under the relevant municipal law. Accordingly, Nigeria, which has a hierarchy of rules of law, with its written constitution11 taking precedence, provides for this right in section 34 of the 1999 Constitution. The importance of this right has been confirmed by numerous international human rights instruments, some of which Nigeria has ratified; for example, the Universal Declaration of Human Rights,12 in its Articles 4, 5 and 6; Articles 7 and 8 of the International Covenant on Civil and Political Rights13; Article 5 of the African Charter on Human and Peoples‟ Rights14; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.15 From this, it is apparent that the basis of the right transcends the limitations of national constitutional provisions, and the relevant instruments impose four levels16 of obligation on Nigeria. International Law and Municipal Law International law is the universal system of rules and principles concerning the relations between states and international 11 Constitution of the Federal Republic of Nigeria, 1999. 12 A. G Res. 217 A (iii) Doc. N.U. A/810. 13 Ratified on October 29, 1993. 14 Ratified in 1981 and incorporated in 1983. 15 UN Treaty Series, (1984) Vol. 1465. It came into force 26 June 1987. Ratified on July 28, 2001. 16 In the case of SERAC v. Nigeria, the African Commission on Human and Peoples‟ Rights affirmed the internationally accepted notions of four levels of obligations imposed by Human Rights Instruments. The Commission noted that the obligations imposed on States embrace the duty to “respect, protect, promote and fulfill the rights”. 6 organisations such as the United Nations.17 International law lays down principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another.18 It is the body of norms which regulates the affairs of members of the international community. An intrinsic feature of international law is that its legal order is horizontal, having no supreme law-making body, meaning that nation-states are juristically equal entities, despite land mass or terrain or population.19 On the other hand, municipal law is the law that operates within the domestic sphere (country), having individual citizens as its principal subjects. Municipal law meets the Austinian or the imperative notion of law as an amalgam of sovereign, command, and sanction.20 Within the domestic sphere, the legal order is vertical in nature and towers above individuals. Unlike in the international domain, the source of all laws in the municipal system is traceable to a definite law-maker. For example, the definite law-maker in Nigeria is the National Assembly at the federal level and the House of Assembly at state levels.21 The legal basis of international law is the consent of states, which is centred on the hallowed concept of sovereignty. This is expressed in Article 2(7) of the United Nations Charter, which states that: 17 Jane Stratton, „International Law‟ (2009), Hot Topics (Sydney, N.W.S) 69. 18 Elizabeth A. Oji, „Application of Customary Law in Nigeria Courts‟ (2010) NIALS Law and Development Journal 151. 19 Malcolm N. Shaw, International Law, (6th edn, Cambridge University Press 1998) 6. 20 M.D.A. Freeman, Lloyd‟s Introduction to Jurisprudence, (8th edn, Thomson Reuters Legal Ltd 2008) 255-267. 21 Constitution of the Federal Republic of Nigeria 1999, s 4. 7 Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. Within Nigeria, the legal basis of municipal law is the 1999 Constitution, which towers over all other laws and all citizens.22 Pursuant to the Constitution, other laws are made by the legislature for the peace, order, and good governance of the nation and any part thereof.23 From the foregoing, it has been established that municipal law and international law are two separate aspects of law. International law consists of rules which govern international law subjects in their international relations. Municipal law, on the other hand, refers to the internal laws of a State. They both operate in separate legal orders and have basically different subjects and subject matters.24 However, both legal orders can 22 ibid s 1(1). 23 ibid s 4. 24 Two major theories have been developed to explain the relationship between international law and municipal law: monism and dualism. There is however a third approach which has been formulated and for the purpose of this paper is termed the “different subject matter view”. The monist theory supposes that international law and national law are simply two components of a single body of knowledge called “law”. International law and municipal law are considered to belong to a single “universal legal order”. Thus, they coexist and operate concurrently over the same subject matter. The ultimate argument of the monist is that, international law is superior to national law and where there is conflict between the two, the former prevails. On the other hand, international law and municipal law are considered by the dualist to be entirely separate legal orders. According to Professor Oppenheim, “international law and municipal law are in fact two totally and essentially 8