SOME CULTURAL PRACTICES THAT VIOLATE HUMAN RIGHTS

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 6^th 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 19^th 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 6^th ed. (London: Sweet and Maxwell 1978) p. 5