July 5, 2014
by Bassey Isoh
“So policeman go slap your face you no go talk,army man go whip your yansh, you go dey look like dundee…..”
Popular lyrics of the 70s from the great Fela Anikulapo Kuti,decrying the military use of brute force and illegalities in their dealings with civilians. Unfortunately,we have not made much progress all these decades as we are still plagued with elementary issues of human rights abuse.
What a shame or should I say;what a shameless giant of Africa. In 2014,soldiers still take laws into their hands;burning buses,intimidating,assaulting and dehumanizing hapless civilians. I want to share this piece again. It was presented in December 2011,when the then military hierarchy in conforming with President Yar’Adua’s resolve to sincerely protect the rule of law and fundamental rights of the citizens rolled out pragmatic policies with the view to enlightening their personnel and sanctioning erring violators of rights of citizens.
Unfortunately, we have lost all these gains , as the present dispensation has taken us back to the stone age. They either encourage or shut their eyes to such violations.They see,say and do nothing even when such violations have gone viral on all the known and acceptable public media. Ofcourse, there will always be canvassers who will tell you they cant do everything. It is high time we began to fight for what is originally ours but was taken away by fraud. “human rights na my property,they cant dash me my property.”
HUMAN RIGHTS AND MILITARY DUTIES LEGAL PERSPECTIVE HOLDEN AT WESTERN NAVAL COMMAND, LAGOS SPEAKER BARRISTER BASSEY ISOH
Distinguished guests, ladies and gentlemen Introduction I am glad to speak on the topic “Human Rights and Military Duties; the legal perspective. This topic, to say the least is germane especially at this time we the people of Nigeria most significantly, the military have tacitly agreed to embrace democracy as our mode of governance in conformity with the modern global trend and the original concept of government and governance.
You will agree with me that there are plethora of cases where military personnel in the exercise of the their legal duties, honestly believe they needed to exercise certain powers for “order and discipline” albeit so many other persons will view such actions as infringement on the human rights of the citizens involved.
Recently, the Chief of Naval Staff expressed concern over the rising number of cases where the courts award damages against the navy and promised to work with the justice ministry to address the situation. There was a case of a lady who was assaulted and the sum of N300 million was awarded against the Navy by the court.
There was also another case of one Joe Etene, where the court ruled;that he was assaulted by naval personnel and awarded the sum of N150million as compensation against the navy. Ladies and Gentlemen, I knew Joe Etene, I would have beaten him up myself 13 years ago. He is a man any other man would have loved to beat up because of his arrogant attitude and cantankerous disposition, but I didn’t. Why? you may ask because as far back as 1997, I knew the consequences of beaten up another man, so I ignored him. To further buttress, my point, it is apposite at this point to have a working definition of Human Rights.
WHAT ARE HUMAN RIGHTS?
The generally acceptable definition of human rights as captured by the Wikipedia is “Rights commonly acceptable as inalienable to which a person is inherently entitled to” in order words the word inalienable means “That which cannot be taken from you. So human rights are rights that accrues to you by virtue of your nature as a human being.”
What are those human rights that the majority of the countries of the world have accepted as rights no man or authority, no matter how highly placed can take from another man.
They are rights to which a person is inherently entitled. Human rights are rights inherent to all human beings whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language or any other status.
We are all equally entitled to our human rights without discriminations. These rights are all interlated, interdependent and indivisible. They were first emphasised in the universal declaration on Human Rights in 1948 and has been re-iterated in numerous international human rights conventions, declarations and resolutions.
The 1993 world conference on Human Rights for example, noted that it is the duty of states to promote and protect all human rights and fundamental freedoms regardless of their political economic and cultural sense.
All states, including Nigeria have ratified at least one these resolutions of none discrimination and the principles of equality as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” States have duties to respect, protect and fulfil human rights.
The 1999 constitution of the Federal Republic of Nigeria in its chapter IV made provisions for the protection of the human rights of every Nigerian citizen and makes it obligatory for these rights to be respected and protected. These rights are:
1) The right to life
2) The right to dignity of human being
3) Right to personal liberty
4) Right to fair hearing
5) Right to private and family life
6) Right to freedom of thought, conscience and religion
7) Right to freedom of expression and the press
8) Right to peaceful assembly and association
9) Right to freedom of movement
10) Right to freedom from discrimination.
Section 33(i) of Chapter IV of the constitution reads: “Every person has a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.” However, sub-section 2(c) of this section clearly states that the life of a person maybe taken for the purpose of suppressing a riot, insurrection or mutiny.
Now this particular provision is instructive in view of the constitutional provision of the responsibilities of the military. Note also, that the constitution of Federal Republic of Nigeria is superior to any other laws of this country. A military personnel is governed by two laws. The military laws and the civil laws (constitution).
The constitution of Nigeria supercedes every other laws in this country. For instance, if a provision of the Navy Act or any other armed forces Act is in conflict with the provisions of the constitution, the constitution prevails and such provision of that Act/Law or any other laws in Nigeria is void to the extent of the inconsistency.
The primary responsibility of the Armed forces as stated in section 217 of the constitution are: a) Defending Nigeria from external aggression b) Maintaining its territorial integrity and securing its borders from violation on sea or air. c) Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as maybe prescribed by an act of the National Assembly d) performing such other functions as maybe prescribed by an Act of the national Assembly.
For the purposes of this paper, we shall limit ourselves to 217(c) which deals with the duty of the military to assist civil authorities to restore order and suppress insurrection when called upon. For emphasis, the military can only participate in the restoration of civil order and suppression of insurrection when called upon to assist the civil authorities like in the case of Niger Delta Militant Crisis, the Jos Crisis and the Boko Haram crisis.
In assisting to suppress riot and quell insurrection, the personnel is legally expected to use force that are reasonably necessary to suppress such riots or insurrection. If there is a peaceful protest by a group of persons against a policy of the government and the military is called upon to restore order. In so far as they conduct themselves orderly, it will be legally wrong to start beating them up or shooting at them.
It is only when they become violent that a military personnel is legally permitted to use such force as it is reasonably necessary to restore order and protect the lives and properties of other citizens. It is my believe that the recent concern of the military authorities and the federal government on the issue of complaints of abuse of human rights against military personnel is the tendency for some personnel to wade into civil disputations which they are not constitutionally empowered to do and more often than not beat up or assault such persons involved. They may have been provoked but the law clearly states that a person can only assault another in self defense, to protect his life and property or that of another or in the execution of the judgement of a court or to suppress insurrection. Section 34(1a) of the 1999 constitution reads: “No person shall be subjected to torture or to inhuman or degrading treating”. The next question therefore is how did we get to this point?
To place this paper in its proper perspective, it is apposite to take a brief look at the history of armed forces in Nigeria and the original intention of the colonial masters.
THE COLONIAL ERA
In the month of April 1861, the British consult in Lagos sought and obtained permission from his superiors in London to establish a consular guard of 30 men which later metaphosed into the Hausa constabulary and regularized in 1879 by an ordinance. The primary function of the force then was to protect the interest and safety of the colonial officials and the foreign merchants against hostile natives.
In 1896, this armed force participated prominently in the Colonialist war in Benin. Since, the intention of the Britain was the forceful occupation of Nigeria territories enforcement of its system of governance and the enhancement of her economic interests, the military was fashioned in the order of an oppressive army to subdue any resistance from hostile natives.
Therefore, the introduction of the use of arms, horsewhips (Koboko) and all manner of brute in dealing with the hostile natives were employed. These trend continued even after the Nigerian independence as there were no conscious effort by the authorities to address these violations of human rights, albeit, Nigeria has always had these human rights provisions right from our independence constitution. Six years after independence precisely on the 15th day of January, 1966, Nigeria experienced it first military coup d’état. By the 17th day of January 1966, the military government had effectively taken over the machinery of state. The constitution (suspension and modification) Decree No 1 of 1966 was promulgated on the 4th day of March, 1966, the decree sought to suspend certain provisions of the constitution of the Federation and the region and modified other provisions. Section 3 of the Decree empowered the military Government to make laws for the whole country or any part of it on any matter.
COMMON CHARACTERISTICS OF MILITARY ADMINISTRATION AND HUMAN RIGHTS ABUSES
1) The section of the constitution that clearly outlaws the taking over of government in any manner other than by democratic elections via the ballot boxes is outrigtly suspended by a Decree i.e. The Constitution (suspension and modification decree).
2) The military decrees are made superior to the constitution i.e the supremacy and enforcement Decree and the decrees are made to operate retroactively.
3) Fundamental Rights of citizens are undermined and abused with impunity. Many citizens were detained without trial. The fundamental principle of justice based on the presumption of innocence was abondoned. The infamous Decree No 2 of 1984, which vested special powers on the Chief of Staff to detain certain category of persons without trial was promulgated. Subsequent military administrations adopted this Decree though with modification
4) There were ouster clauses to oust the court from entertaining any grievance that may arise out of the application of any Decree / Edict where any such clause is found.
5) The military government are not responsible to anybody since they were not elected
6) The judiciary is generally neglected. Like the colonialist, the military employs use of force to enforce legitimacy when they come to power and human rights of citizens are generally infringed upon. With Democracy and the general acceptance of constitutional rule, the need for rigorous re-orientation of military personnel can never be overemphasized. The constitution which is the highest legal statutes in the country states in its chapter 36 thus: “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…”
It is instructive to note that the law awards compensation to victims and inflicts punishment to the convict of a human rights violation case. The position today is that no matter the provocation, no human being has the right to subject another to torture, assault or any form of inhuman are degrading treatment except in the circumstances discussed above. That every man is borne equal and subject to the provisions of the law.
The respect of Human Rights differentiates us from lesser animals. A former supreme court Justice; Kayode Eso puts in succintly when he said: “It is the primary condition to a civilized existence”. In order words we can’t talk about a civilized society, rule of law and constitutionality without making the respect of human rights our top priority. In the case of the military, there are so many instances where the offending personnel and the military authorities are asked by the courts to pay compensation to the victim.
CONCLUSION / RECOMMENDATION
1. Continuous and rigorous re-orientation of military personnel on human rights and the extent, limitations of their constitutional powers.
2. Human rights as a subject should be incorporated into the corricular of every military institution.
3. Personnel should also be aware that the courts today imposes heavy monetary penalty against violators of fundamental rights. Recently, Baba Suwe was awarded the sum of N10million naira for the violation of his right by NDLEA (though this decision was upturned at the higher court) the courts will not sacrifice humans rights at the alter of exigency or duties.
4. Unlike in the past the citizens are becoming more aware of what constitutes violation of human rights. About 15 years ago Justice Chukwudifu Oputa once said “The lofty rights in Chapter IV of our constitution are not for mere declaration.
The problem with our citizens is that majority don’t know what their humans rights are and for those who are aware, they are too poor to go to court and enforce violations of their rights”. This is not so today as the citizens are becoming more aware of their rights and duties. While I am still wondering whether I have left some fundamental issues out, I sincerely hope I have left some points in.