WHAT ARE HUMAN RIGHTS?
According to Lauterpacht, “Human rights are universal rights or enabling qualities attaching to the human being. These qualities follow from the realization that as a matter of scientific fact, man is distinguishable from other living beings because he is a rational and moral person who must shape his life in accordance with moral and rational purposes”
Eze defines human rights as those things that, “represent demands or claims which individuals or groups make on society, These change over time, so things which were acceptable at first, like slavery and torture, become violations of human rights some which are protected by law and have become part of the lex lata (the law as it is) while others remain aspirations to be attained in the future”
As with Separation of Powers and Rule of Law, ‘Human Rights’ Note Maureen’s definition that human rights protect out dignity, was one of those concepts devised by society as a reaction to the problem of tyranny. Aristotle said that ‘man is a beast subject to all the vices of the beast; anger, hunger, greed, envy, etc. As such, the beast must be subject to the law, rather than the all-powerful ruler of a people
Nino said that, “Undoubtedly, human rights are among the greatest inventions if our civilization…such rights are in some sense, ‘artificial,’ that is, that they, like aeroplanes or the computer, are products of human ingenuity, even though they may depend on certain ‘natural’ facts….The significance of human rights is obviously that they constitute an indispensable tool for avoiding the kind of catastrophe that often threatens human life…These misfortunes occur not only because of the scarcity of resources, but also because many use their fellow human beings as just another resource, Slavery throughout history either for their own benefit or to realize peculiar visions of the absolute good” Hitler’s Aryan Race
As a modern legal/political idea, the concept takes its basis from the theory of Natural Law; the same Natural Law idea that was the basis for John Locke’s social contract theory (exemplified in the American Declaration of Independence, 1776) “ We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.– That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
According to classical natural law theory, there are superior standards according to which man made laws must conform; these “universal” standards are alleged to have been given by God or nature. And as the early philosophers believed, natural laws are presumed to be universal and applicable to all societies at all times Which is why International Law is based on Natural Law; these laws have been giving special authority over the laws of man.
Note: St Thomas Aquinas is known to have believed that if the King makes un-natural laws, then the people have a right and a duty to themselves and to God, to replace that King b/c the King must conform to the will of God
The French Declaration of 1789 Preamble states, “ The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all” remains to this day the model for the foundation of inviolable rights of the individual in relation to the state; rights were set forth in a state document, thus incorporating them into the national positive law.
What are International Human Rights?
International protection of human rights was late coming onto the scene. Sovereign States handled their own situations and no other Sovereign nation played attention to what went on in each municipal state. i.e. no one payed attention to Hitler and Stalin as they annihilated millions under their power First on the scene was the UN Charter; Did not spell out what specifically human rights were, or what the mechanisms were to ensure that those human rights were kept by sovereign States. then the Universal Declaration of Human Rights (1948); Filled in the gaps for the UN Charter, but it was later found to be lacking in force; did not bind the international community International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
Regional Human Rights Systems
European
Was established by the Council of Europe with the goal of preserving individual freedoms and democracy; To gain entry into the (now so called) EU, a country must show that it has an interest in the protection of human rights.
The human rights system emanates from the 1950/1953 European Convention of human rights (civil and political rights) and from the1961/1965 European Social Charter (economic and social rights)
Has worked out so that the political and economic interest of the member countries are interlinked; harm that befalls one country affects the others such that all the countries have an interest in keeping the group afloat and out of trouble
Inter-American
Was established by the Organization of American States to promote and protect human rights –(1941/1951 OAS Charter) – The American Declaration of the Rights and Duties of Man, 1948
African
AU
African Charter of Human and People’s Rights (1986): specifies “peoples” because Africans have a communal tradition which transcends the individual and those tendencies have to be recognized and protected in addition to the individual rights of the people.
Preamble says; “Taking into consideration their historical tradition and the values of African civilization which should inspire…taking into account the importance attached to these rights and freedoms in Africa… ,” showing that the charter recognizes African traditions
Implementation Mechanisms
Articles 14 – 18 dealing with rights to property, work under equitable and satisfactory conditions, health , education, culture life, health, protection of the family; women, children, aged and physically challenged.
See OGONI case
Inter-State Conflict Resolution
Article 47 allows for both Bilateral Negotiations (in which the Commission plays no part and the countries are allowed to deliberate between themselves) and Complaints Directly to the commission
Individual Communications
Individual complaints against the State Articles 55 & 56. Allows fro the Secretary of the Commission to develop a list of individuals’ complaints to be brought before the Commission for consideration, Procedure for Individual complaint: indicate authors even in situations where they require anonymity; Communications must be compatible with Charter of Org of African Unity or w/ AU; written in non-disparaging language; not based solely on news heard through mass media; all local remedies must have been exhausted; submitted within reasonable time of event; do not deal with matters already settled Clause 5 not included in Ecowas
African Court
Individuals do not have direct access to the court until Article 34(6) is ratified by their respective country
ECOWAS Court
Original jurisdiction did not extend to human rights; changed with addition of Supplementary Protocol A/SP. 1/01/05
See Hadijatou Mani Koraou v Republic of Niger
Republic v Mensa- Bonsu &Ors…
Facts: The appellant was Justice Abban a JSC, who had delivered judgment in the case NPP v A-G ( the 31st December case). His judgment was obtained and read by the first respondent, legal practitioner and a columnist in a newspaper, Mr. da Rocha. Upon reading this judgment, Mr.da Rocha claims that there was a quote which Justice Abban wrongly attributed to Dr K.A Busia when in fact it was an editorial view in a newspaper with the caption Graphic View. Mr. da Rocha thus wrote a letter to him informing him of the blunder and subsequently sent copies to the press. He also published an article captioned “ Jusitice Abban is a liar” in the Free Press Newspaper with a copy of his letter to him attached. In that article he accused justice Abban of being a liar amongst other things. In the events that followed, Justice Abban subsequenty filed an action against the first respondent for;
i) Contempt of court- on the grounds that “ so far their efforts(the respondents) have been aimed at eroding the public confidence in the judicial system.
ii)
The defendant/respondent responded by claiming that;
1) The statements were deposed of the judge in his personal capacity and not of the court
2) That the statements could not amount to contempt for they were published in good faitha dn without malice.
Held: The scurrilous abuse of the judge would amount to contempt of court on the grounds that his action not only slighted the individual but extended to the Supreme Court as well.
Contra per Adade; Act like these have the effect of sanitizing the administration of justice and couldnot be regarded as one that would amount to contempt of court.
Contra per Adade JSC. The general thrust of all the publications complained of in this case, which I have studied carefully, is to secure public acceptance of page 28 of exhibit MB1, and a firm rejection of page 28 of exhibit CTC, and even a public condemnation of the act of substitution. I do not read the articles as general comments or strictures on the courts, or the judges therein or the administration of justice. They cannot be interpreted as “an obstruction to public justice.” On the contrary, they have the effect of sanitising the administration of justice. Contra per Aikins JSC. I have carefully examined the publications and I fail to see anything scurrilous and abusive against Justice Abban and the administration of justice. The word “chicanery” simply means “legal trickery or false argument.” If Justice Abban read page 28 of exhibit MB1, as I have found as a fact, can this action not aptly be described as legal or judicial trickery or false argument? I think the first respondent has not committed any crime. The use of the word “chicanery” to describe the situation cannot, in my view, be said to be an intemperate or abusive language. Furthermore, any person who tells a lie can be charged with perjury, and perjury is a crime. Therefore to call such a person, if he is a judge, a liar or a criminal cannot in my view, amount to contempt of court. After all a liar is a person who tells an untruth.
(2) The truth or otherwise of the matter published was no defence in law in the case of contempt of court. Accordingly, in the instant case, once the publications scandalised the court, the truth was no defence nor was justification because the contempt had been committed against the administration of justice itself and not Justice Abban qua judge. In the circumstances there was no need for the court to make any finding on the issue of the genuineness or otherwise of exhibit MB1 because that was completely irrelevant to the determination of the case. Contra per Adade JSC. I have heard it said that whether page 28 of exhibit CTC or page 28 of exhibit MB1 is the genuine one, it is immaterial provided the language complained of is proved to be scandalous and libelous. I do not share this view. The court cannot assess the language except in the context of all the surrounding circumstances, which must include the truth or otherwise of the allegation made. To refuse to resolve this fundamental issue under whatever guise, subterfuge or pretence may lay the court open to a charge of running away from the truth, which we are not entitled to do, and expose us to ridicule and contempt in the eyes of the public. This issue of fact must be determined in these proceedings, not only because it is relevant to the present case, but also because it will otherwise never be determined.
(3) No wrong was committed by any member of the public, including the press, who exercised freely the ordinary liberty of criticising temperately and fairly in good faith in private or in public any case which had been concluded. Thus provided members of the public refrained from imputing improper motives to those taking part in the administration of justice and were genuinely [p.381] exercising their right of criticism without malice, they were immune from attachment for contempt. However, in the instant case, the words used by the respondents to impute derogatory conduct to Justice Abban—a liar, a criminal, one practising judicial and political chicanery and a partial judge—were pregnant with malice and were intentionally published. Since they amounted to the contempt of scandalising the court, the court was duty bound to punish the respondents so as to maintain its dignity and prevent any interference with the administration of justice.
Contra per Amua-Sekyi JSC. In exercising the power to commit for contempt, our courts must have regard also to the right of every person to express himself freely and openly on all matters of public concern whether they pertain to actions of the executive, the legislature or the judiciary. One can understand why it is that while a case is pending in court the right to comment thereon ought to be curtailed in the interests of a fair trial which the Constitution, 1992 guarantees for every individual; but it can hardly be said that when a verdict is given, the judges … should be shielded from criticism. The ordinary laws of libel, which prohibit the making of false defamatory statements about other members of the community, are the only check on any abuse of the right of free speech in circumstances such as these. I would dismiss the motion.
(4) Under rule 70 of the Supreme Court Rules, 1970 (CI 13), the Supreme Court was defined to include a single justice or three or more justices thereof. Furthermore, under articles 128(2), 133 and 134 of the Constitution, 1992 the Supreme Court might lawfully be constituted by a single judge or a group of five, seven or nine judges. Accordingly, a final judgment of the Supreme Court whether unanimous or majority was a judgment of that court made up of the composite number of judges on the panel. In the circumstances, abuse of one member of the court was an abuse of the rest of the members of the court. Accordingly, the respondents committed contempt of the Supreme Court itself by the scurrilous abuse they heaped on Justice Abban.
Contra per Aikins JSC. I do not think in the instant case it is possible to say that what was said of Justice Abban is calculated to obstruct or interfere with the course of justice in the Supreme Court, more so when in the first place Justice Abban appeared to consider the issue as a personal matter and referred it to the National Media Commission through the Chief Justice, and later to the police through the Attorney-General for investigation.
(5) Although under CI 13 the registrar was defined to include the Judicial Secretary, on the evidence, the Deputy Judicial Secretary had never been in possession of the judgments of the court. Accordingly, the registrar of the Supreme Court was the person entitled to proper custody of the judgments and the one to whom applications for copies had to be made. And besides, since under section 162 of the Evidence Decree, 1972 (NRCD 323) a certified copy of any document was presumed to be genuine, the certified copy of the judgment of Justice Abban (exhibit CTC) was the only correct, admissible and acceptable judgment. On the evidence, however, and contrary to the provisions of section 70(2) of the Courts Act, 1993 (Act 459), the first respondent was not the only one who had not been affected by the judgment of the Supreme Court [p.382] but had also not made any written or oral application to the court for a copy of the judgment of Justice Abban nor had he been exempted from paying any costs therefore. In the circumstances, the conduct of the first respondent with respect to obtaining the judgment of Justice Abban and publishing it was a contempt of court since it was an interference with the rules and processes of the Supreme Court. Dobson v Hastings [1992] 2 All ER 94 cited.
(6) Freedom of expression was essential to the achievement and maintenance of a democratic society. Accordingly, the press might criticise in matters of public interest. That right was however not absolute but subject to the limitation that it did not violate the integrity of the court or present a threat to judicial authority. Thus even though trenchant criticism of a judgment was permitted, scurrilous abuse of a judge as a judge by the imputation of unfairness and impartiality, as in the instant case, was not and would thus constitute contempt of court. Accordingly, in the instant case, the defence of fair criticism would not enure to the benefit of the respondents.
Contra per Amua-Sekyi JSC. Under our Constitution, 1992 the right to freedom of speech and expression may be curtailed for the purpose of safeguarding our people against the teaching and propagation of doctrines which incite hatred against other members of the community. What may be proscribed under this head are religious and political doctrines which tend to divide the nation and turn one section of the community against another. The provision does not sanction the curtailment of the right to freedom of speech and expression for the purpose of maintaining the dignity or authority of the court.
Contra per Aikins JSC. Although the relevant publications may be said to have been strong and rumbustious in parts, they were published in good faith and in honest belief of their truth and in exercise of the respondents’ right to freedom of expression. The intention behind the publications was, in my judgment, to uphold the independence and integrity of the Supreme Court as the highest court of justice in our judicial system. I would dismiss the application.
(7) The practice regulating the correction of errors in a judgment after it had been delivered was that if the judgment of a court as delivered was wrong by reason of any substantial error or omission, its correction should be by way of judicial review of the judgment. It was not permissible for the judge to correct the judgment by introducing passages which changed the meaning and effect of the judgment. However, if the error was a typographical error or a citation error, either the judge or the editor of the law reports could correct it when processing it for publication in the law reports since that had no effect whatsoever on the result of the case. On the evidence, since even if there was some error in page 28 of exhibit CTC it was merely a citation error, it was permissible for Justice Abban to have corrected it by the slight amendment to his opinion. Ghana v Jones [1969] 3 All ER 1700 and R v Kopito (supra) cited.
Per curiam per Adade JSC. Of course judges, like any other group of human beings, do make mistakes, and should, indeed ought, to be criticised. At times some of us feel that our judgments are not criticised enough, especially by the [p.383] legal profession. I expect, however, that the language of criticism will be tempered and measured. It is not often remembered that judges, seen by many as very strong, are in fact the weakest members in the society—we receive blows, we cannot throw any; a factor to be taken into account when a member of the public is inclined to criticise us. Dictum of Lord Justice Edmund Davies in R v Metropolitan Police Commissioner; Ex parte Blackburn (No 20) [1968] 2 QB 150 at 156, CA cited.