Impediments to the Successful Protection of Refugees in Nigeria

Impediments to the Successful Protection of Refugees in Nigeria

The promotion and protection of human rights have engaged the attention of the world community, and though the African country especially Nigeria has subscribed to major International human rights instruments, violations continue to occur with disturbing frequency and regularity in the country.

There are multifarious and multi-dimensional impediments to the full realization of human rights of citizens and refugees in Nigeria. The impediments to human rights promotion and protection in Nigeria can be classified as constitutional, social, and political, among others.

The Nigerian Constitution and Human Rights Treaties

Section 12 of the 1999 Constitution of Nigeria concerns treaties and their implementation. Since international human rights instruments are, essentially, multi-lateral treaties, a careful examination of the provisions of section 12 becomes not only relevant but imperative. The section provides that:

  • No treaty between the Federation and any other country shall have force of law except to the extent to which any such treaty has been enacted into law by the National Assembly
  • The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

What therefore is the implication of the foregoing in light of the well known principle of international law of treaties that a state cannot be bound by any agreement to which it has not given its consent—either by signing, ratification, accession or any other means of declaration of intent to be bound?

Besides, most treaties are not self-executing and as such, parties to them are usually enjoined to institute municipal measures to guarantee the application of such treaties within their domestic systems.[1] The implication of the provisions of section 12 of the 1999 Constitution is simply that human rights treaties entered into by Nigeria will not become binding until the same have been passed into law by the National Assembly.

In General Sani Abacha v. Gani Fawehinmi,[2] the Supreme Court held that by section 12(1) of the 1979 Constitution (the ipissima verbis of section 12(1) of the 1999 Constitution), “an international treaty entered into by the government of Nigeria does not become ipso facto binding until enacted into law by the National Assembly and before its enactment, an international treaty has no force of law as to make its provisions actionable in Nigerian law courts.

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Further, the court unanimously held that “unincorporated treaties cannot change any aspect of Nigerian law even though Nigeria is a party to those treaties” but that they may “however indirectly affect the rightful expectation by the citizen that governmental acts affecting them would observe the terms of the unincorporated treaties.”

The practical significance of the provisions of section 12 of the 1999 Constitution in the context of human rights promotion and protection, therefore, is that international human rights treaties are not ipso facto applicable and enforceable in Nigeria unless they are domesticated as in the case of the African Charter on Human and Peoples’ Rights.[3] Accordingly, the effectiveness of ratified human rights treaties is predicated on their being domesticated. This is so because the provision of the constitution is supreme.

Weak Institutional Infrastructure

A major deficiency in the development of human rights is one of enforcement. Since the enforcement of human rights largely depends on the domestic machinery of national governments, Nigeria has erected seemingly firm institutional infrastructure to safeguard human rights in the country.

The institutional infrastructure includes the judiciary, the National Human Rights Commission, the Public Complaints Commission, and the Legal Aid Council. Regrettably, the various institutional mechanisms are not strong enough or capable of providing adequate and effective platforms for meaningful human rights promotion and protection. This is especially so because many of these institutional mechanisms are not independent and do not have the financial and logistical capability to meaningfully function as they ought to.

The extra-judicial bodies are in a more precarious position. Being controlled, directly or indirectly, by the government through funding, composition of membership, and provision of operational guidelines, among others, government interference or influence becomes not a mere possibility but a reality.

Poverty

The commonest obstacle to the realization of fundamental right is poverty or lack of funds to enforce ones right in court. The financial inability has been recognized in all jurisdictions as the central impediment to enforce one’s right.

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In Nigeria and in Africa generally, poverty is a reality and the most known hindrance to obtaining justice. Examining the uneasy access on the poor to the enjoyment of the right to fair hearing and equality before the law, the eminent Justice Oputa said what is the value of fair hearing to the poor man who cannot pay summon fees let alone afford the services of a counsel.[4]

The effect of poverty is that the practical actualization of the fundamental rights cannot be achieved where millions are living below starvation level. Most lawyers are not interested in taking pro bono matters for refugees considering their poor conditions because most of these refugees did not come to Nigeria with their resources and most of them don’t have means livelihood.

Illiteracy

This is another major factor obstructing the realization of our fundamental right. The high level of illiteracy prevalent in our society is better imagined than experienced. Education has the effect of empowerment to people and it is only an empowered person that can maximize the opportunity and resources available in his environment.

An educated person will easily adapt to the realities of the situation and have the intellectual capacity to insist on the enforcement of his rights, unlike the illiterate. Legal rights are irrelevant unless they can be enforced.

Freedom of speech and press do not mean much to a largely illiterate rural community absorbed in the daily rigors for the struggle for survival. To think an illiterate person can have a meaningful hearing in court in the pursuit of his right is to live in a fool’s paradise. Most of the refugees that seek refuge in Nigeria are illiterate and do not know their legal rights and do not know when they have remedy for breaches of their right.

 

 

[1] For more information on human rights treaties within states’ legal and political systems, see Henry J. Steiner et al., International Human Rights in Context: Law, Politics, and Morals 725-729 (1st ed. 1996).

[2] . Abacha v. Fawehinmi, [2000] 6 NWLR 228

[3] The African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. Nigeria signed (1982), ratified (1983), and domesticated the African Charter as Cap 10, LFN, 1990 or Cap A9, LFN, 2004.

[4] Oputa, ‘Access to Justice’ law and practice vol 1 of August 1988

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