SOME CULTURAL PRACTICES
THAT VIOLATE HUMAN RIGHTS
by Orjiebele Malachy
INTRODUCTION
Human
rights have become the most important topic of debate and of course controversy
in recent times. The ideal and ideas of Human Rights, has come to settle with
many people and to bear meaning in the values of people of multifarious
cultural heterogeneities, wherever they are found. Human rights have come to
stand as a value upon which many other values are measured. And therefore, it
is a considerable program for mankind on earth.
Therefore,
that man has a right to life, to the integrity of his or her body and to adequate
living conditions, that the freedom of conscience, of religion and the
expression of opinion are to be respected, that all are equal before the law
and all have a right to participate in the public affairs that are of concern
to everyone, and that any kind of discrimination is to be rejected, all these
and much more meets throughout the world with broad consensus, even if
theoretically. The obligation to respect such inalienable human rights has been
recognised by almost all states since the United Nations Declaration of Human
Rights in 1948 known as the Universal Declaration of Human Rights (UDHR). Of
course we must immediately mention that the reality in many countries of the
world today including Nigeria neither corresponds with the letter, nor still
less with the spirit of this solemn pledge.
It
is in this light that we shall highlight certain cultural practices in Nigeria
that violate certain human rights, especially, these rights as represented in
the Constitution of the Federal Republic of Nigeria (CFRN, 1999, as amended
2011); sections 33 to 46. In going about this, we shall give an understanding
of what human rights consist in as well as its characteristics, and examine
some of the sources of human rights. Then we shall consider its representation
in the constitution and this will enable us to highlight some cultural
practices that violate these human rights.
Now
there is another part to the whole conspectus of our endeavour here which is to
enumerate the sources of Nigerian Law and explain any three of them. This will
of course come after we have highlighted some cultural practices that violate
human rights in Nigeria.
UNDERSTANDING WHAT HUMAN RIGHTS
CONSIST IN
Human
rights are entitlements that a person has simply because he or she is a human
being. Human rights refer to the
"basic rights and freedoms to which all humans are entitled. Examples of
rights and freedoms which have come to be commonly thought of as human rights
include civil and political liberties and rights.”[1]
Civil rights is used to imply that the state has a positive
role in ensuring all citizens equal protection under law and equal opportunity
to exercise the privileges of citizenship and otherwise to participate fully in
national life, regardless of race, religion, sex, or other characteristics unrelated
to the worth of the individual. Civil
liberties is used to refer to guarantees of freedom of speech, press, or
religion; to due process of law; and to other limitations on the power of the
state to restrain or dictate the actions of individuals. The two concepts of
equality and liberty are overlapping and interacting; equality implies the
ordering of liberty within society so that the freedom of one person does not
infringe on the rights of others, just as liberty implies the right to act in
ways permitted to others.
Characteristics
of Human Rights
·
Human rights are inalienable. This means
that you cannot afford to lose those rights as long as you are a human being.
This implies that such rights must be upheld. Consequently, if one fails to use
such rights, he/she is liable to punishment.
·
Human rights are indivisible. No one can
agree to be denied a right because it is less important or non-essential.
·
Human
rights are interdependent: all
human rights are part of a complementary framework. For example, your ability
to participate in your government is directly affected by your right to express
yourself, to get an education, and even to obtain the necessities of life. Your
ability to live life under a humane condition directly affects your right to
life. Your right to education enables you enjoy rights to freedom of
expression.
·
Human rights also refer to those basic
standards without which people cannot live in dignity. Therefore to violate
somebody’s right is to treat that person as though he/she were not a human
being. To advocate human rights is to demand that the human dignity of all
people be respected.
Sources of Human Rights
Human rights began to have
international importance after the Second World War in 1945.The World War II
was therefore the catalyst that propelled international human rights movement.
Throughout much of history,
people acquired rights and responsibilities through their membership in a group
– a family, indigenous nation, religion, class, community, or state. Most
societies have had traditions similar to the “golden rule” of “Do unto others
as you would have them do unto you”.
The Hindu Vedas, the Babylonian Code of
Hammurabi, the Bible, the Quoran (Koran), and the Analects of Confucius are
five of the oldest written sources which address questions of people’s duties,
rights, and responsibilities. In addition, the Inca and Aztec codes of conduct
and justice and Iroquois Constitution were Native American sources, whether in
oral or written tradition, have had systems of propriety and justice as well as
ways of tending to the health and welfare of their members.
Every African society has
customary or traditional rules that regulate lives of people and which imbibe
human rights concepts, e.g. unlawful killing attracts the wrath of the society
and restitution were used to redress violations of other people’s rights.
Nonetheless, there were still some cultural practices that violate human
rights, and we shall consider them now.
(a) SOME CULTURAL PRACTICES THAT
VIOLATE HUMAN RIGHTS
The
cultural practices of the caste system (osu),
pure or domestic slavery (ohu/oru), the
pawning system (igba-ebe), genital
mutilation (iwa-ukwu), and the
killing of twins (igbu-ejima) as
found in the culture of the Igbo people of Nigeria would be used to examine
certain cultural practices which de-value human dignity and violate human
rights. Let it be noted immediately that all these species of cultural
practices that violate human rights have been legally abolished way back in
1956. We bring it up in this study for the sole purpose of highlighting certain
cultural practices that violate human rights.
The Osu Caste System and Human Rights
The
word ‘Osu’ has been designated the
meaning of a “slave”, but one distinct from an ordinary slave (Ohu/Oru). The Osu is in fact the property of a god, and once devoted to a god,
he or she has no prospects of regaining freedom and his or her movement is
restricted to the precincts of the shrine to which he was attached. Another
similar understanding is that Osu
simply means a religious cult slave under the practice of the Igbo traditional
religion and system of worship; a person who has been bought and dedicated to
the services of the owner’s cult.[2]
Again,
the 1956 Osu Bill, and as re-echoed
in the 1963 Eastern Nigerian Law on the Osu
System say that an “Osu may be a
person who was sacrificed to a shrine or a deity, and that person and his
descendants are therefore regarded as social pariahs with no social rights
which non-Osus are bound to respect.”[3]
The
Osu generally is discriminated upon
in some despicable ways. From birth to death, the free-borns (diala) do not ever dare to rejoice over
or celebrate the arrival of a new born baby delivered by an Osu as they do not sympathise or lament
over mishaps on them. As such at the death of an Osu, the Dialas do not
participate in the digging of the grave, carrying of the corpse or coffin or
even take part during the burial of an
Osu, and this is as the traditions and customs hold it to be.
The
Osus are not expected to dance to the
tune of the exclusive and symbolic male dance of the free-born. The Diala does not walk across the legs of
an Osu, shave him or be shaven by
him. He or she does not have sexual dealings with an Osu or allow all other conventional social associations with
anybody referred to as such.
From
the foregoing, it becomes clear that the Osu
Caste System contravenes and violates the human rights as enunciated in the
Constitution of the Federal Republic of Nigeria (CFRN, 1999, as amended 2011),
sections 33 to 46.
In
section 34, Right to Dignity of Human
Person, the Osu’s treatment runs contrary to the provisions of the
constitution, that no person shall be subjected to torture or to inhuman or
degrading treatment (§ 1a). Also it violates the rights that no person shall be
held in slavery or servitude (§ 1b), and no person shall be required to perform
forced or compulsory labour (§ 1c).
The
cultural practice of the Osu Caste
System violates the Right to Personal
Liberty as enunciated in CFRN, 1999, as amended 2011, Sect. 35 § 1. This
states that every person shall be entitled to his personal liberty and no
person shall be deprived of such liberty... The Osu as the case was, was denied of this very right to personal
liberty, since by the total ostracisation of them, they were already confined
within a giving radius else they come and contaminate the land.
The
Osu is denied the Right to Freedom of Thought, Conscience and
Religion as seen in the Sect. 37 §1 of CFRN, 1999, as amended 2011. Once
one is born an Osu, one remains an Osu till death, with no freedom of
thought or even conscience as he or she must behave as the society expects him
or her to behave, - like an Osu.
The
Osu caste system also violates the Right to Freedom of Expression and the
Press (CFRN, 1999, as amended 2011, Sect. 39 §§ 1, 2, and 3), the Right to Peaceful Assembly and Association (CFRN,
1999, as amended 2011, Sect. 40) and the Right
to Freedom of Movement (CFRN, 1999, as amended 2011, Sect. 41 §§ 1and 2),
since in the first place, having been ostracised they do not have any place or
say in community matters, they are not allowed to freely mingle and associate
with other members of the community by virtue of their state as Osu and ultimately they have been
confined within a specific radius(i) in the community.
The Ohu/Oru Practice and the Human Rights
The
practice of slavery (Ohu/Oru) differs
from the Osu Caste system in that it
requires no sacrifices and dedication of human beings to deities. Rather an Ohu (a slave) is a person bought with money, expected in addition to
render services to his master at whose discretion it is also to use the person
so bought for some other purpose for which he or she so wishes. The emphasis
here is on - “bought with money, expected in addition to render services to his
master” - thus we get the idea of pure slavery as different from domestic
slavery.
In
domestic slavery, one became a slave who is “a lazy child, a victim of
political machination, an unprotected/unguided stranger, a stray child or
inter-tribal war captives” (Okeke I.R.J, 1986: 80). In any case these domestic
slaves were subjected to dehumanizing and derogatory uses like using them as
sacrificial lambs when the gods of the land were to be appeased. In short,
domestic slaves were also used to ward-off calamities that could have befallen
the families of their masters.
In
juxtaposition of these cultural practices with the fundamental human rights as
represented in the Constitution of the Federal Republic of Nigeria (CFRN, 1999,
as amended 2011), sections 33 to 46, we realise that they seriously violate the
human rights.
For
one they violate the Right to Dignity of
Human Person (CFRN, 1999, as amended 2011, Sect. 34), this is so because
the human person is herewith being used as an economic commodity, as a means of
exchange, and being subjected to undue labour (CFRN, 1999, as amended 2011,
Sect. 34 § 1 a, b, and c).
This
practice of slavery also contravenes the Right
to Personal Liberty (CFRN, 1999, as amended 2011, Sect. 35). The slave is
not allowed any liberty or freedom to choose what he or she wishes to do, or
even allowed to exercise his or her freewill. The slave by coercion does solely
the will of the master.
It
as much contravenes the Right to Freedom
of Thought, Conscience and Religion (CFRN, 1999, as amended 2011, Sect.
38). The long and short here is that the slave becomes less a person by the
treatment he or she receives since he or she is no longer allowed to exercise
any freedom at all.
Finally,
the practice of slavery wholly contravenes and violates the Right to Freedom of Expression and the Press
(CFRN, 1999, as amended 2011, Sect. 39), the Right to Peaceful Assembly and Association (CFRN, 1999, as amended
2011, Sect. 40, the Right to Freedom of
Movement (CFRN, 1999, as amended 2011, Sect. 41), and the Right to Freedom of Discrimination
(CFRN, 1999, as amended 2011, Sect. 42). Since the slave has no freedom, his or
her enslaved status violates all these human rights that emphasises on freedom.
The Igba-Ebe (Pawning) System and the Human Rights
Pawning
or Igba-Ebe is another form of
enslavement. Okeke I.R.J, 1986: 90 says that the League of Nations in the
forties defined it as “an institution which the person attaches to a debt to
whomsoever the dept is transferred, so also is the person.” For a simpler
understanding, Igba-Ebe (pawning) is
the mortgaging of human beings particularly male teenage, for the acquisition
of one’s needs, cash or kind. It can also be described as a collateral security as done in the bank
today to obtain a loan, which in the case of pawning will be to obtain service.
The
distinguishing factor between a pawn and a slave is in the fact that the
pawning system has to do with lending or engagement of service, consequently,
one can buy a slave but could only engage a pawn on clearly spelt out terms.
Now
it still boils down to the fact that the practice of the pawning system is an
act that contravenes the human rights. Considering the fact that the human
person is being used as a means to an end, as a collateral for a commodity
acquired, and more so when it applies to children it is child labour we
understand even better then how it violates the fundamental human rights
especially as enunciated in the Constitution of the Federal Republic of Nigeria
(CFRN, 1999, as amended 2011), sections 33 to 46.
It
therefore amounts to the fact that the pawning system violates the Right to Dignity of Human Person (CFRN,
1999, as amended 2011, Sect. 34), the Right
to Personal Liberty (CFRN, 1999, as amended 2011, Sect. 35), and the Right to Freedom of Thought, Conscience and
Religion (CFRN, 1999, as amended 2011, Sect. 38). This is so as the pawn
will necessarily do the bidding of whom he or she is indebted to, and this
de-values human dignity, limits the individual’s (pawn) freedom and liberty,
and constricts the person’s thought and expression of his or her deepest
rumination.
Iwa-Ukwu (Genital Mutilation) and Human
Rights
Genital
mutilation also regarded as Female
circumcision in some circumstances “involves removing part or all of a woman’s labia and clitoris and is
usually performed on girls entering adolescence.” (Encyclopaedia of Microsoft Encarta, 2009) This practice is painful, and often harmful,
to the women, despite the fact that the community claims that the practice is
important and deeply rooted in their culture.
No matter what they claim, the practice is actually
a mutilation as rightly called. Hence, it is a violation of human rights when
young girls are brutalized by the painful and degrading practice of genital
mutilation. This simply has to do with the surgical modification of women’s
sexual organs, usually without their consent as those concerned are
adolescents.
This
practice therefore contravenes and violates the Right to Dignity of Human Person (CFRN, 1999, as amended 2011,
Sect. 34), since it toils with human (female) sexuality which is the pride and
the very essence of womanhood. Hence by such practices, the dignity of
womanhood is de-valued and dragged to the mud.
Genital
mutilation also violates the Right to
Life (CFRN, 1999, as amended 2011, Sect. 33) as it threatens the very life
of the individual. This is so because cases abound where some of the victims of
these practices have died from profuse bleeding after the mutilation. Also some
of the girls have become carriers of some deadly diseases which they had
contacted as a result of unsterilized instruments of surgery, especially when
such practices are carried out by quarks. Hence the lives of the individual are
seriously endangered by the practice of genital mutilation (iwa-ukwu).
Igbu-Ejima (Killing of Twins) and Human
Rights
It
was the practice in the eastern hemisphere of Nigeria, until the fight and
subsequent abolition by Mary Slessor, that those children who were born twins
were killed within the first seven days of birth. This practice was held unto,
due to the understanding that for two people to come out of one womb was an
abnormality and as such a taboo in the land. The belief was that if they were
allowed to live that calamities would befall the land.
Now
it has been stopped and I wonder how many calamities have befallen our
communities. Nonetheless, this practice violates strongly the Right to Life (CFRN, 1999, as amended
2011, Sect. 33). What is at stake here is the life of the individual children.
In fact this can also be referred to as infanticide.
Infanticide, in criminal law, is referred to as the
“killing of a newborn child by its parent or by another with the parent's
consent” (Encyclopaedia of Microsoft
Encarta, 2009). In most countries therefore, it is now considered a form
of murder, and thus punishable by law.
Fair
enough a good number of these cultural practices that violate human rights have
been abolished and this is corroborated by the fact that the international
community has become increasingly concerned with the protection of human
rights. Although concern for human rights is expressed in the UN Charter, the
development of specific norms related to human rights began in 1948 with the
passage of two nonbinding declarations: the American Declaration of the Rights
and Duties of Man, approved by the Organization of American States, and the
Universal Declaration of Human Rights (UDHR), approved by the UN.
The
Universal Declaration of Human Rights (UDHR) described a variety of rights,
including the rights to life, liberty, and security of person; to freedom from
slavery; to freedom of conscience, religion, opinion, expression, association,
and assembly; to freedom from arbitrary arrest; to a fair and impartial trial;
to privacy; and to education. This document remains the cornerstone of
international human rights law and has been the basis of bills of rights in
nearly 100 countries, Nigeria not an exception as this has found expression in
the Constitution of the Federal Republic of Nigeria (CFRN, 1999, as amended
2011); Chapter IV, Fundamental Human Rights, sections 33 to 46.
(b) THE
SOURCES OF NIGERIAN LAW
The
sources of Nigerian law include:
§ The
Constitution - Cited as the Constitution of the Federal Republic of Nigeria
1999, as amended, 2011(CFRN, 1999, as amended 2011,)
§ The
Received English Law
§ The
Nigerian Legislation
§ Juridical
Precedents
§ Customary
Laws
§ Islamic/Sharia
Law
We shall now attempt explanations of three of these
sources of the Nigerian Law.
Constitution of the Federal
Republic of Nigeria 1999, as amended, 2011
“Constitution is the system of laws, customs
and conventions which defines the composition and powers of organs of the
state, and regulates the relations of the various state organs to one another
and to the private citizens.”[4]
Constitution may also be called documents containing the substance of the law.
Features of the Nigerian
Constitution as sources of the law
Ø It
is written – this means that both the past and the present Nigerian
Constitutions are both written. The British has no written constitution. Their
constitution which is unwritten is bound by customs and convention adapted to
over time.
Ø It
is supreme – It has binding force on all authorities and persons in Nigeria. It
is the grande norm (fundamental/ principal norm).
Ø It
is enacted so that the Federal Republic of Nigeria shall only be governed in
accordance to the provisions of the constitution
Ø No
other law should be inconsistent with the provisions of the constitution. If
any other law is inconsistent, the constitution shall prevail and the other law
shall be void to the extent of the inconsistency
Ø The
Constitution is superior to other laws of the land and regulates the juridical,
executive and legislative arm of the government. The supremacy clause of the
constitution is couched thus – “This Constitution is supreme and its provisions
shall have biding force on all authorities and persons throughout the Federal
Republic of Nigeria – section 1.
Ø The
Constitution contains both the substantive and procedural provisions. Both
provisions are supreme. Substantive provisions are the rules which define the
rights, duties, liabilities and obligations of persons. Procedural provisions
are the rules of practice and procedure relating to the ways in which these
rights, duties, liabilities and obligations are enforced in proceedings before
the courts of law. The substantive laws which are enumerated are:
-
Exclusive Legislative List: This is
enacted only by the national assembly.
-
Concurrent Legislative List: As the name
suggests, could be enacted both by the national assembly and the state house of
assembly.
Laws
that are not enumerated are residual matters. (Cf., S. 4 (7) CFRN, See S 4
generally for the propositions above).
Ø Rights
and duties as well as rules which may be enforced under the law are contained
in the Constitution. This shows that not all rights and duties are enforceable
at law. Examples: agreements dealing with family relation; agreements that
deals with puberty; agreements that are binding in honour.
Ø The
constitution is both prospective and progressive. It can catch up with anything
in the past; invalidating any inconsistency in the past once amended.
The Nigerian Legislation
Another
source of Nigerian Law is the Nigerian legislation. Here, we have both primary
and subsidiary legislation.
v Primary Legislations
Primary
legislations are the laws emanating from the Major Legislative Arm of the
government – the National Assembly. The national assembly comprises the house
of senates and the House of Representatives. The state House of Assembly serves
the interest of their respective states, while the National House of Assembly
serves the interest of the nation. Their military equivalent in law is Decree
while that of a state house of assembly is ‘edict’ during the military era. Examples
of Nigerian Legislation include:
-
The criminal code
-
Companies and Allied
-
Marriage Act
-
Matrimonial Causes Act
-
Evidence Act
-
Criminal Procedure Law – (Southern
Nigeria)
-
Criminal Procedure Act (North)
-
Arbitration Act.
v Subsidiary Legislation
Other
terms for subsidiary legislation are subordinate legislation, administrative
legislation, delegated legislation, By-laws, etc. Examples of Delegated
Legislations are:
-
Regulations issued by an administrative
agent of the executive arm of government for running the affairs of the state.
-
Rules of procedure made by juridical
authorities in respect of the matters coming before the court
-
Municipal by-laws enacted by local
government council to regulate matters within their sphere of control.
Customary Laws
Another
source of Nigerian Law is the customary laws. Note: before customary law will
be considered as forming a source of Nigerian law, it must pass three tests,
namely:
-
It must not be incompatible either
directly or by implication with any law for the time-being in force of any
written law.
-
It must pass the repugnancy test. This
means that it must not be repugnant to natural justice, equity and good
conscience – human sacrifice, enslavement, killing of twins, right to personal
liberty.
-
It must not be contrary to public policy
– as represented in the CFRN S 14(3): the composition of the Government of the
Federation or any of its agencies and the conduct of its affairs shall be out
in such a manner as to reflect the federal character of Nigeria and the need to
promote national unity, and also to command national loyalty, thereby ensuring
that there shall be no predominance of persons from few States or from few ethnic
or other sectional groups in that Government or in any of its agencies.
CONCLUSION
To this end we wish to wrap-up our
discussion thus far with the understanding that Human rights are both inspirational and practical.
Human rights principles hold up the vision of a free, just, and peaceful world
and set minimum standards for how individuals and institutions everywhere
should treat people. Human rights also empower people with a framework for
action when those minimum standards are not met, for people still have human
rights even if the laws or those in power do not recognize or protect them.
It
culminates then that the dignity of the human person as well as the attendant
demand to accord the human person all of the rights that belong to him has
informed different motifs behind the formulation of many charters and
constitutions and declarations of human rights down the history of humanity as
we have examined thus far. This stretches even to our present day, so much so
that any pretence at underplaying this all important reality would only
tantamount to a betrayal of our mandate and duty to promote Justice and Peace.
REFERENCES
Constitution of the Federal Republic of Nigeria, 1999 (with amendments
2011)
Igwebuike
Okeke, The ‘Osu’ Concept in Igboland
(Enugu: Access Publishers Ltd., 1986).
Laws of Eastern Nigeria,
1963
Obiora Ike (ed.,), the Fantasy of Human Rights (Enugu: Catholic Institute for
Development Justice and Peace (CIDJP), 1997).
Osu Bill,
1956
Phillips O. Hood and Paul Jackson, Constitution and Administrative Law 6th
ed. (London: Sweet and Maxwell 1978)
"Universal Declaration of Human Rights (1948),"
Microsoft Encarta Premium 2009 [DVD]
(Redmond, WA: Microsoft Corporation, 2008)
The World Book Encyclopedia 19th Vol. 15 pp. 710-712
[1] Obiora Ike, “Human Rights, Human
Dignity and their Relevance for a Sustainable Functional Democracy in Nigeria”
in Obiora Ike (ed.,), The Fantasy of
Human Rights (Enugu: Catholic Institute for Development Justice and Peace
(CIDJP), 1997). Pp 86-87
[2] Cf. Igwebuike Okeke, The ‘Osu’ Concept in Igboland (Enugu:
Access Publishers Ltd., 1986). P 8-9
[3] Laws of Eastern Nigeria: 1963 caption 1, pp 1-2; Cf. Also Osu Bill,
1956
[4]
Phillips O. Hood and Paul Jackson, Constitution
and Administrative Law 6th ed. (London: Sweet and Maxwell 1978)
p. 5
