DIGNITAS LABORE

ICONS OF CHANGE

2011-06-15T08:25:00.000+01:00

DIALECTICS OF CHANGE

In the annals of mankind's history, change has been a recurrent decimal with a dialectical twist. On the one side were the custodians of the prevailing order at different epochs in history, while on the other side were the disadvantaged, from among whom the advocates of change emerged. Between the two poles however, history has not failed to produce advocates for one side from the other side- advocates for the sustenance of status quo from the disadvantaged, and advocates for change from the beneficiaries and custodians of the status quo.

VIOLENT CHANGE ICONS

At the heart of the quest for change, there has always been a struggle. Indeed change hardly occurred without a struggle. Struggles for change have often assumed different forms. In this series, we take a cursory look into the annals of history to hear from some of the key figures with whom change has been associated. We shall focus on the different approaches taken, basically violent and non-violent change. When we speak of violent change, names like George Washington and Che Guevara will feature.

'Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all'- Gorge Washington

NON-VIOLENT CHANGE ICONS

Non-violent change has arguably not been too common in the annals of history. This could well be bacause change occcurs everyday in a manner that is not too obvious, so that in a few years, human society is ahead of where it was few years back both for advocates and defenders of the status quo and the advocates for change. When we speak of non-violent change, names like Mother Theresa and Khan Abdul Gaffar Khan feature.

Khan Abdul Ghaffar Khan, Advocate of Non-violent Change, contemporary of Ghandi

BETWEEN

There are those who fall to one divide or the other bacause we can argue that they had no options. Martin Luther King Jnr and Mahatma Ghandi for example, could be argued to fall in this category. As we shall examine in the next few days, certain indicators in the lives of these two tend to show a disposition to violence. Other factors however reined-in to make them ultimately otherwise and strongly so.

'I Have a Dream'

We shall now examine two figures who hve left their footprints indellibly on the sans of time. Hardly do you examine a collection of poster pictures at an average stand without coming across the images of Mother Theresa and Che Guevara- two characters we examine next.

Mother Theresa of Calcutta

Ernesto 'Che' guevara

PONDERING THE FUTURE IN POETRY

2011-06-13T03:44:00.000+01:00

Exactly four years ago, I was undergoing compulsory national youth service (NYSC) for my country Nigeria in the city of Lagos. On a certain evening, I observed a usually lively and happy little girl looking seriously into a book. When I inquired, Adaeze (Her name) got me pondering when she said she was examining her possible career path with the help of a counselling book. She was confused as she had interest in Entertainment, Fashion and Business, but no doubt she was brilliant. This made me ponder deeply over where and how I may find myself in the future (in what i considered to be 'confused' or 'uncertain' times), through the eyes of the 'little girl' in a poem. I reproduce the poem below and draw some lessons, 4 yeras on.

LITTLE GIRL, CONFUSED AGE

There the litte girl sits, peering into the book;
Begging for clues on what the future holds,
She invokes intuition – obstacles to brook;
Entreating to relish secrets, secrets that time yonder holds.

The sparrow perches, seeking rest for the night;
The nocturnal owl hoots, peering for night prey,
As twilight grows older, she seeks some light;
Striving to elicit vigour, before the scalp goes grey

The little girl ponders in a confused age;
Cruelty is grown bold, humaneness, cold.
Gazing towards busy streets, she sees no ace;
Though much is in rot, some dazzle remains, of gold.

A seed sown in time, may just nicely blossom;
Bearing fruit in time, good fruit in our failing days,
She very well could thrive, like survivors from Sodom;
Scaling hurdles to glorious days, of glorious eternal rays.

Written at 6.40 p.m., 27 March 2007 at Lagos, Nigeria.

Everyday we make plans for the future, but much of our plans revolve around contingencies. We never have certainty of where we are headed, but mere approximations of where we want to go, or be, or do. If many things remain uncertain, a few are certain, and one of such is that determination and commitment never leave us on the same spot the next day. We always move- and never backwards, even though sometimes, progress ironically may mean a step backwards!

Have a lovely week ahead!

FROM JOMO KENYATTA: A SIMPLE STORY OF JUSTICE AND PEACE

2011-06-10T07:05:00.000+01:00

Introducing a little shift today, I present the voice of President Jomo Kenyatta as he tells us a simple story of justice and peace in the Jungle which I find fascinating and full of meaning. The story was retold by Mathew Hassan Kukah in 2004 in a paper presented at a Commomwealth Conference at the University of Melbourne, Australia.

THE GENTLEMAN OF THE JUNGLE

A man built his house. An elephant came and demanded if he could find a place to shelter his trunk from the rain. The man conceded, but the elephant went on to eject the man from the house. Commotion ensued and the Lion appeared on the scene to find out what was happening. When the lion heard the case, he suggested that a Panel be set up to investigate the matter. The Panel, made up of the Buffalo, Rhinoceros, Fox, and Hyena were called in to listen to the case and
make recommendations. The Panel decided to take evidence from the Man who had been evicted from his house. Unfortunately, in the process of hearing the man’s evidence, the animals in the Panel decided that it was better to save time so the case was struck out on the grounds that the man had not confined himself to the facts of the case and there were inconsistencies in his account.

The animals retired to the house of the Elephant for a meal and also to write their final Report and make recommendations. After the meal, they then delivered their judgement: In our minds, you tried to make a case, but it lacked merit. However, in sympathy, we give you another space to build yourself a new house.

Fearing the animals and some repercussion, the man did not appeal but quietly went ahead to put up another building. He had barely finished building when the Rhinoceros moved in. The charade about justice and a Panel continued with the same judgement offering him a new piece of land. Convinced of the injustice, the man decided that his new house would have to be the last house he would build. This time, he built a grand house that was better than anything he had ever built. No sooner had he finished than, predictably, all the Kings of the Jungle, Lion, Elephant, Fox, mainly the various members of who sat on the Panels regarding his case, moved into the new house.

Each wanted the beautiful house for him. But they soon got involved in a fight as to who would own the house. While they quarrelled and argued inside the house, the man stepped out and set the house on fire, thus burning down all his tormentors, the so called Kings of the jungle! Surveying his burnt house and his oppressors, the man said: Peace is costly, but it is worth the expense.

JOMO KENYATTA, Frist President of Free Kenya, Author of the book: Facing Mount Kenya

Millions, most probably billions who walk this earth are in a daily quest for justice that seems ever elusive, and peace that seems to behave like the fairy who never really stays around. Gone are the days when this struggle was only for Africans, South Americans and Asians alone- It is now Ubiquituous.

My Case Against Zenith Bank in Lagos High Court [LD/1515/2010], Dilemma of Settlement v. Judicial Precedent: Your Advice Pls.

2011-06-07T03:36:00.000+01:00

Exactly one year ago was a Monday 7th June 2010, and I remember dressing-up early in the morning to report to office at Zenith Bank, No. 18 Shehu Laminu Way, Maiduguri Branch in Borno State, Nigeria. I sat beside Tahir and Aliyu at the branch meeting that morning. That was exactly 13 days after I had served the Bank my notice of resignation and my humble and noble demands. I had 18 more days to effectively withdraw my services from the bank and end my 2 year sojourn in the ancient city of Maiduguri.

1 year on today, the case I filed at the Lagos High Court against the Bank and its MD is at the 'Pre-Trial Conference' stage. The next date assigned by the Honourable Judge is the 30th of June, 2011 and I find myself in a dilemma on which I need your kind advise. The Honourable Judge has directed that we explore settlement and counsel to the bank undertook to come-up with a proposal. My learned friend whose Firm is representing me said the proposal would be considered if an apology is offered and the numbers are reasonable- and therein lies the dilemma.

Yes, it is a dilemma, because my motivation for instituting this case was not for monetary benefits nor for popularity, but to do my part in helping the countless employees in Nigeria whose fate is entirely subject to the whims of their employers, and who have neither the means nor the ability to either speak out or seek any form of redress. I had experienced this in my 2 years with Zenith Bank and I know how horrible it can get- the situation is practical slavery where you have no rights and no dignity in reality. You just work and count on fortune and the whims of your employer. The prospects of setting a JUDICIAL PRECEDENT and the immense benefits it could have for employees in Nigeria for the future, inspired every step I took. A judicial precedent on this matter could have the direct and indirect effects of protecting employees from arbitrary and exploitative treatment, even those employees who are ignorant, or have no imaginable means of accessing any form of legal or political redress. SHOULD I OPT FOR A SETTLEMENT OR KEEP THE VISION FIXED ON A PRECEDENT?

First, what are the prospects of winning this case? And what could be the terms of a settlement should we go for one? Well, I cannot pre-empt the decision of the Honourable Judge as I am no clairvouyant, but I long for a decision by the court on this matter. The issue simply is that I acted on the terms and conditions on my employment letter, left my home in Kaduna to the city of Maiduguri- a process that saw me sacrifice many other things and have a close shave with death 3 times, 2 of which were in the course of duty, 1 during the Boko Haram violence. The terms on my contract stated that I will be on probation for a year, after which I will be confirmed and elevated to the next grade if my performance was up to a minimum of B+.

I worked for a year and surpassed that minimum, but Zenith Bank kept mum on the elevation. After enduring and working for 5 additional months after confirmation, I asked the HR department to kindly clarify my status, but they replied that they had no idea what my status was. I asked them for the MD's phone number but they declined, so I wrote him a letter and sent to his e-mail, copying relevant officers while dispatching the hard copy. It was a simple 'Request for Clarification of Employment Status'. Neither himself nor any other officer replied. That was why I tendered my notice on the 25th of May 2010, after another additional 6 months of absolute silence and labour. The Bank is now relying on a clause which reserves the right of the bank '...to review and vary the conditions of service of its employees...'.

The question for the Honourable Judge to decide, is whether an employer has the right and power to arbitrarily vary the contract of employment of its employees, without ever NOTIFYING the employees nor INFORMING them AT ALL, and whether this arbitrary power subsists even when the employees request for clarification in a most explicit manner. Whatever the judge decides will be beneficial to both employees and employers I think. If the Honourable Judge decides in the affirmative, then employees will be in no doubt that the employer is always right however arbitrarily it decides to amend, alter and vary terms of employment, even when employees are not consulted or informed! On the other hand, if the Honourable Judge decides that such actions by an employer are not supported by law, then employers can be less in the dark as regards their powers, while employees will be consoled that they are not voiceless and rightless workers. The benefit to me is really minimal. Now I am on the verge of completing my Masters in Law- incidentally to do with International Development Law and Human Rights, and I feel very evergised to return to Nigeria and contribute my bit in making her better.

Do I sacrifice the ideals and goals that inspired my taking the risks to file this case and opt for a settlement, especially now that I am not desperate for any monies the Bank could offer? Or do I carry on to the end? How do I convince the Honourable Judge that Her children, whether as future or current employers or employees stand to benefit from this case if decided and not settled out of court like another anonymous event gone with the wind? If I opt for a settlement, what would be the price at which to sacrifice a potential judicial precedent of this nature?

In my notice to the Bank, I had demanded a written apology from the Bank and the sum of N 20 Million (£ 80,000), knowing that the Bank holds its employees in sufficient contempt as never to oblige- that was to be good enough to get me the needed rebuff and neglect to file a case in the hope of obtaining my precedent, even if i did not get a single penny at the end. Is a judicial precedent worth N 20 Million (£ 80,000)? Can I know what benefit this precedent may serve to generations unborn? Do I know whether a decision on this matter could have policy implications and impact for the federation which could prove beneficial to many? Would opting for a settlement out of court amount to selling the birthrights of many for a 'mess of porridge'? I do not know.

Kindly advise my friends!

Concluded: IDEOLOGICAL REFUGE v JURISPRUDENCE OF INSURGENCY : CULTURAL RELATIVISM AND UNIVERSALISM IN THE HUMAN RIGHTS DISCOURSE

2011-06-04T07:42:00.000+01:00

6. AN X-RAY OF UNIVERSALISM
May we thereby acclaim universalism to be the better ideology for human rights jurisprudential discourse? Probably so, but not without first probing beyond what passes for universalism in the human rights discourse as presented by ‘conventional’ analysis and data. With a language replete with descriptions such as ‘repressive regimes’, ‘last refuge’ Et cetera, relativism would appear truly shabby as many in the western academies and among activists would hurriedly and gladly posit. On critical examination of the ‘neglected’ aspects of universalism in theory and practice however, one is left wondering which ideology serves as a springboard for inflicting greater harm to human life and dignity. This analysis would however involve a consideration of what conventional statistics would neglect.

TWAIL (Third World Approaches to International Law) as an approach to international law magnifies the practical application of the relativist epistemologies in assessing the remote and immediate effects of the Universalist approach to matters of global interest. This approach among other perspectives to appraising human rights records and performances, does not isolate the human rights data and aspects of western Universalist analysis, but takes a composite view of its systemic workings. Thus, the individualist paradigm is conjoined with the commodity and market drive of western ideological form of Neo-Liberalism .

Viewed in this context, the global abuse of human rights resulting from fall-outs of the Euro-American ideology is lodged as human rights statistics linked directly or indirectly to universalism. I postulate in accordance with the trend of TWAIL, that such an analysis would encompass global economic, political, social and environmental relations and their impact on human life in any assessments of human rights. Such a perspective is better positioned to expose the true indices of human rights statistics and violations of any entity in a more translucent manner and without ‘invisibles’.

Global Warming and its effects, commoditisation of the individual and devaluation of the human worth and value as exemplified in the sweatshop situations of Bangladesh and Indonesia all count as indices of the western contrived global system with the universalist background. The effects of imbalanced terms of trade on the economies of nations around the world and the deducible impact this has on human rights performance can be assessed as human rights indices and effects of universalism. The conditions that have been imposed by the IMF and World Bank on countries around the world, especially relating to deregulation in Structural Adjustment Programs and their impact on human wellbeing may well count as necessary accompaniments of the universalist ideology. The cost of creating the paradoxical ‘free markets’, ‘democracy’ and ‘Rule of Law’ may well count.

These perspectives predictably escape the lenses of human rights statistics of the conventional kind. On the contrary, their negative impacts are often counted with the ‘evils’ of the repressive regimes created by the unimpeded movement of capital. Cuba may suffer economic blockade with the intention of creating pressure from economic and social deprivations, but the human rights indices and failures emanating from the policy of blockade will always count as those of Cuba and no one else. A maliciously blind eye is turned to the positive act of economic deprivation. Can the positive decision of an economic blockade be made without envisaging the impact on human life and wellbeing? One doubts that even a cynic could do this! In any case, decisions of such magnitude never fall to cynics or imbeciles, but to reasoning state officials and ‘seasoned’ diplomats.

A recent manifestation of the above trend with an interestingly new twist is the unfolding scene in Cote d’ Ivoire. The manner in which the ‘International Community’ hastily towed the French paths of declaring a winner and according him recognition in total neglect of the judiciary in that country brings in a new definition of the concept of ‘Rule of Law’. How this may be defined in future, one leaves to the scholars who will undertake that task. What is clear however, is that the Ivorian constitutional court is totally ignored by the United Nations, France, Britain, the United States, Canada and many other countries. Can the assertion that this amounts to a profound qualification of the doctrine of the rule of law be meaningfully denied?
In any case, this is a clear illustration of the ‘jurisprudence of insurgency’ in its most brazen manifestation. The call for invasion and ousting of Gbagbo remains loud in spite of his control of the army and what this might entail of the accompanying human disaster. One wonders how many lives would be wasted to impose a leader designated by the ‘powers of the west’ over a population that is said to be equally divided between North and South in total disregard for the Ivorian courts and the fact that the south hosting the capital is the support base of Laurent Gbagbo. Most importantly, one supposes that the casualty resulting from such actions would count as the human rights statistics of Cote d’ Ivoire in the books of Human Rights Watch and Amnesty International, in view of the invasion that has been facilitated by France and the UN and the numerous killings and accompanying losses.

Adding to these is the invasion of state sovereignty and the disaggregation of the state in a global system that exalts capital over the human person. In this context, the human rights guise hinged upon universalism would appear to be the really dubious ideological cloak vesting institutions, transnational corporations and agencies with a legitimated route for the exploitation of societies whose historical, cultural and (sometimes) religious heritage is alien to Euro-American ideological, political, economic and military dominance. Dubbing universalism as a ‘jurisprudence of insurgency’ would appear justified within this context, for that which meets the eye may not escape a classification as the ‘creation of a global system to serve the goals of socio-economic and political insurgence’, even by the widest stretch of the evasive imagination.

Against universalism stands the practical impossibility of enforcing what has been declared ‘universal’ . Human casualty records in the trail of efforts to enforce doctrines emanating from universalism such as Humanitarian Intervention, Responsibility to Protect and Preventive Strikes under umbrellas of ‘Coalitions of the willing’ may not be ignored. Civilian casualties in Yugoslavia, Iraq and Afghanistan cannot be waived either, as stark cases of military insurgence which may not be denied even by the most subjective standards. The Libyan situation depicts a scenario where the ‘International Community’ acting with universalist ideals, would not settle for any negotiation that sees Gaddafi remain in power ‘no matter the cost’! This calls to question the priority accorded human life vis-a-vis politico-economic interests of more powerful countries.

In testing the tenors of cultural relativism and universalism in the face of scathing criticisms, one may seek to stretch the validity of the two by hypothesising a reversal of the geo-politics of the ‘universalised’ ideology: Was the Middle East to be the dominant ideological, military, political and economic force playing Euro-American roles of the last few centuries: a hypothesised reversal of the outcomes of Lepanto and Vienna battles, and was the UDHR to be drafted within this context, what would it look like? And what would be the likely response of the west?

Many historians view the Battles of Lepanto in 1572 and Vienna in 1683 as the key events that preserved Europe from being converted to Islam by the once invisible Ottoman Navy and Army. Were the fortunes of those two encounters to be reversed, one may arguably suppose that like Constantinople and the once overwhelmingly Christian East, Europe would have been predominantly Muslim today. Put another way, if the tenets of Islam were to be the founding principles of a UDHR and resultant laws to be ‘enforced’ in Europe and America, what would be the result? One would reasonably suppose that the arguments for relativism would be most advocated by those who, in the Euro-American academia, political arena and economic fields today advocate universalism? This scenario would seem to reverse the trend today and thus sustain both universalism and relativism perhaps with few but deeply significant variations.

In the same vein, the Tunis Declaration , San Jose Declaration , Bangkok Declaration and the 1981 Universal Islamic Declaration of Human Rights are votes for the argument presented above. Beyond these and towing a little of the path of positive law , we may seek to probe further by asking: to what extents are the ‘Universal Regimes’ universally enforceable? Do declarations change the facts of existing and differing cultural perception of norms around the globe? It would seem therefore, that shredding all that can be taken off the merits of relativism leaves a lot more that may not be lightly neglected, and which a meaningful global perspective of law, politics anthropology and sociology would be loathe to neglect.

7. POLICY IMPLICATIONS FOR A GLOBAL APPROACH TO HUMAN RIGHTS
What kind of global order would an unapologetic universalism produce? Something like ‘your terrorist is my freedom fighter’? Would this fashion a world with countless cultural, religious, economic and ethnic martyrs? A world where suicide is espoused in the 9/11 mould in defence of ‘normative treasures’? Perhaps this could be, and probably not exactly. We may well ask the pertinent question: Is there a universal standard? And must we fashion one if one does not exist and do everything to impose same irrespective of the costs? I leave these questions with the rhetoric effect they exude.

On the other hand, would a universally relativist world produce anything better? A world in which every ‘sovereign’ is free to treat people as its own particular perception of what is ‘the norm’ dictates? Should we deny a man the right to change his religion because a culture to which he belongs prescribes a death penalty for so doing? Should the Japanese girl of the 21st century be subjected to kidnap and rape because her culture requires a man to assert his ‘dominance’ in this way? Should the world see as ‘just’ every system of values that produces profound and legitimate cries of anguish, protest, dissent and pain because of a universalisation of cultural relativism? One would be swift to doubt this in the face of undeniable leadership rascality and inhuman repression by political proponents of cultural relativism.
Indeed, some have argued that the two are reconcilable with common points hardly disputed . Some scholars say the thrust of division is the political agenda of the sides involved; a refuge for scoundrels (Relativism) and a ‘jurisprudence of insurgency’ (Universalism) masked in notions of the interest of communities and of mankind.
The policy implication and proposition for a global approach in addressing the human rights discourse would seem to be an integration of the merits of universalism and with those of relativism in genuinely confronting human rights at a global plane. Whether the politics of the matter allows for this is quite another incisive, winding and thorny discourse.

8. CONCLUSION
If cultural relativism was merely a worthless fortress and last refuge of scoundrels in power exploiting people and creating the most repressive living conditions, little effort would be required to dismantle what may be left of this fortress ideologically, anthropologically, legally, sociologically and politically. If universalism was truly a pure and unsoiled ideology devoid of dark and relatively invisible turns and corners, no efforts however titanic, may successfully be exerted to bring her to relative disrepute. The voyage so far however reveals much to the contrary in both cases, much tenor left in relativism alongside revealingly murky turns in universalism.

After all, both ideologies may have a lot of good for humanity in shredding many of their aspects and confronting the human rights discourse in concert. This task may not be reasonably envisaged without many aspects of international and global relations being implicated. This would seem like an ideological truce at the utter decimation of none, and at considerable expense to both universalism and cultural relativism as widely conceived and advocated.

Continued, 2: IDEOLOGICAL REFUGE v JURISPRUDENCE OF INSURGENCY : CULTURAL RELATIVISM AND UNIVERSALISM IN THE HUMAN RIGHTS DISCOURSE

2011-06-03T07:42:00.000+01:00

4.3. ANTHROPOLOGY, SOCIOLOGY AND THE HUMAN RIGHTS DISCOURSE
Boas set the tone for anthropological discourse in much of the 20th century , and central to the contestations on the universality and relativity of rights are the questions of ‘the’ universal standard. Cerna makes a case for universality but locates obstacles in implementation, especially as this affects the private sphere, ‘...which deals with issues such as religion, culture, the status of women, the right to marry and to divorce and to remarry, the protection of children, the question of choice as regards family planning...’, while Donnelly makes a subtle case for ‘Relative Universality’ where he attempts to navigate a tricky middle path with many compromises on some rights that are arguably central to the universalist regime.

He comes up with solutions and paths that are so compromising as to be arguably fatal to the paradigms of universalism and better treated as an absolutely fantastic academic venture incapable of being envisaged in real life situations, particularly as it relates to one of the two illustrations he gave. Donnelly cites Article 18 of the UDHR in alluding to the denial to change ones’ religion under an Islamic setting. He asks whether article 18 is relatively universal within that context and answers, ‘probably’. Donnely interestingly goes on to state,
Prohibition of apostasy also has a deep rooted doctrinal basis, supported by a long tradition of practice... there is no guarantee that the choice be without cost. A state thus might be justified in denying certain benefits to apostates as long as those rights are not guaranteed by human rights !!!
One finds this position to be so compromising and so disfigured a representation of universality as to be utterly self-destructive. In the end it cunningly serves to strengthen the relativist epistemologies.
Clinging to the anthropological basis for cultural relativism however, Scholte makes the following case:

'From an ethnological standpoint, we have no right to make our own local temporal scale the measuring rod of historical significance... Such action would represent a pedestrian insensitivity to the prodigious wealth and enormous diversity of human customs so richly documented in the ethnographic literature... Still worse it would reflect an ethnographic arrogance so typical of egocentric and ‘cumulative’ civilizations (mostly our own), who wilfully co-opt or ruthlessly coerce ‘stationary’ societies into their own historicist mythologies and imperialistic stratagems'

Admittedly, difficulties abound in determining where the lines of universality should be drawn without dragging cultural peculiarity into the measures of relative universality, and without suspicion . Donnelly stance for instance, resorts to concessions on the extents of universality in his ‘relative universality’ proposition, a proposition advocated to lesser or greater extents by many.
The AAA’s stance on the universal declaration takes cognisance of a people’s world, which for Geertz, ‘...contains their most comprehensive ideas of order’ . An ‘external’ understanding of norms is unlikely to make a person feel ‘bound’ or ‘free’, safe as they perceive. Neither may such stance arguably make a person feel their ‘rights’ are respected in full, safe within the context of how their particular society interprets them against its own norms. Thus, the Muslim woman in Iran who finds freedom, honour and dignity in a life characterised by a veil, co-wives, a home-based role, an accustomed life-pattern of non-appearance in public settings and a ‘superior’ view of the Muslim man would arguably be confounded with notions of freedom characterised by simple dresses (read immodest), public appearance and equal mingling with the male folk (read blasphemy and dishonour) as a form of enslavement. That a Bush on Wall Street thinks she is not free does not make her feel bound, and to impose the Wall Street notion of freedom on her may be perceived as some sort of ‘monkey salvation for the fish’ where the fish is ‘salvaged’ from the ‘drowning’ waters to ‘breathe’ the air of ‘freedom’ high up in the trees!

This argument does not imply, however, that societies under culturally relative regimes are as homogenous and unanimous in norm formulation as to be devoid of dissent, disagreement and outright protests. The point should not however be lost on a recognition, that the art of enacting norms and extending them as ‘universal’ may be said to deeply underestimate the complexity inherent in modes of thought , and may well be described as culturally imperialist. However, recurrent cries of anguish, pain and dissent from countries enforcing cultures and laws condemned under the international and regional regulatory frameworks as ‘repressive’ would impede any unqualified applause for these admittedly strong arguments for relativism.

5. INSIDE CULTURAL RELATIVISM
Outcries against cultural relativism as a truly inglorious shield for suppression are loudest from the west, especially activists in the mould of Steve Barber who in rejecting Mazzar’s relativist stance, asserts that Islamic cultural relativism masks terrorism, and Maryam Namazie who affirms that cultural relativism is not only racist and gender discriminatory, but ‘....doesn’t only ignore violations; it actually legitimizes them’ . Feminism is often bitterly averse to cultural relativism, though Brems argues that the two are ‘dissident voices’ that could work harmoniously.

Cerna largely succeeds in isolating ‘repressive’ regimes whose human rights records are bad , Islamic and Asian countries almost always featuring prominently. Statistics of ‘extrajudicial’ deaths, incarcerations and brutal repression of protests and opposition are ‘alarming’ in the face of colossal wealth and privilege for leaders. Proponents of relativism would however question the criteria used to arrive at such judgments and revert to the old question: whose standards and values determine violations? For them, it falls far short of objectivity for the rules for assessing human rights records of one society to be set and administered by the institutions and actors of a different society. Such standards of assessment are guaranteed to produce the results they have regularly produced. In the mould of Amnesty International and Human Rights Watch, the masters of these bodies are bound to be exonerated by the rules and standards which govern them – a case of the masters’ tools for the masters’ house.

What universalism defines as ‘innocent citizens’ asking for their ‘rights’ in Iran, may as well qualify for ‘enemies of the Iranian state’ in the eyes of the Iranian State, threatening the very norms upon which the state is founded,- ‘Treason’ one may say! Conversely, Indian parents exercising their cultural right to ‘give out’ their daughter to a ‘suited suitor’ even against the ‘uninformed’ and ‘ignorant’ wishes of the girl would be violators of her ‘rights’ in the United States. Though this boils down and back to the very definition of rights and the quest to fashion out a universal standard, it certainly does not efface the reality of human anguish in systems that legitimize Slavery or Genital Mutilation as culturally acceptable for instance.

In the eyes of the Iranian citizen, the (Universalists’ Scoundrel) leaders represent cherished Iranian values, and their ‘God-Given’ power of decision to punish offenders against state sanctity are honourable. To castigate such in a ‘foreign’ mould only exerts his greater zeal to protect and defend the symbols of the ‘values’ he cherishes, however oppressive of a ‘segment’ of the populace. The blood stains, cries of woe, mysterious disappearances and massive elimination of numerous people amidst stern denials of the freedom of expression thus remain ignoble spectacles dotting the ‘sacred grounds’ where cultural relativism holds political sway- an ideological refuge.
...TO BE CONTINUED

Continued: IDEOLOGICAL REFUGE v JURISPRUDENCE OF INSURGENCY : CULTURAL RELATIVISM AND UNIVERSALISM IN THE HUMAN RIGHTS DISCOURSE

2011-06-02T12:15:00.000+01:00

4.1. THE POLITICS IN IDEOLOGY
In its 2003 report submitted to the 59th session of the United Nations Commission on Human Rights in Geneva on the most repressive regimes, ‘Freedom in the World’ categorised countries in accordance with their human rights records for the year. Thus, it rated Burma, Cuba, Iraq, Libya, North Korea, Saudi Arabia, Sudan, Syria and Turkmenistan as the ‘worst of the worst’, while countries ‘near the bottom’ were listed as China, Equatorial Guinea, Eritrea, Laos, Somalia, Uzbekistan and Vietnam, with countries like Chechnya and Tibet being placed between the two categories. The Executive Director in her report, made the following interesting statement: ‘The states on this year’s “most repressive regimes” list span a wide array of cultures, civilizations, regions, and levels of economic development. They include countries from the Americas, the Middle East, Central Asia, Africa, and East Asia’.

Reports and categorisations in this mould reflect a predominance of the basis on which relativism is criticised as ‘a shabby ideological cloak’ and refuge for the suppression and abuse of human rights. Upon close examination however, the epistemological frameworks of relativism may appear strengthened by analysis based on such data. In those lists, there is no European country, and the United States of America could not be there either! Countries which therefore emerge ‘good’ on such ratings are seen to share the socio-cultural basis which pre-dominates and determines the ideological paradigms of human rights as reflected in the declaration to various great extents. The ‘Americas’, Middle East, Central Asia, Africa and East Asia are all historically and culturally exogenous to the Euro-American ideology that permeates the data used it is contended, and the organisations undertaking the evaluation are viewed with suspicion since they are conceived, born, nourished and supported in locations whose geo-politics allegedly shape them largely.
If the first formal challenge to the UDHR was made by countries which have consistently appeared on ‘negative lists’ of human rights indices, and if these countries are not of similar socio-cultural heritage with the ‘dominant’ parties which emerge ‘clean’, then the politics in ideology may not lightly be ignored as relativists often contend. Challenging the universality of the declaration at the 1993 Vienna Conference, the submissions of objecting countries emphasized among other things; the Western nature of the overwhelming majority of rights declared as ‘universal’, the disregard for other cultural differences and normative perceptions of what is ‘universal’ in rights, and the unjust/imperial nature of the impositions of one standard of norms and perception on other societies .
The use made of the human rights language by Transnational Corporations, International Institutions and bodies like the United Nations and many of its agencies leaves little doubt over the politics involved in the ideological contests. As Benda Beckmann retorts, ‘Acceptance and implementation of human rights have become a frequent conditionality for financial and technical support.’ The repressive regimes on the other hand would latch on to cultural incompatibility to evade implementation of human rights ‘when the defensive shield of sovereignty threatens to become too weak’. This pattern which constantly plays out on the international scene betrays other interests that accompany particular ideologies. Such interests are largely political and economic. Thus one could interpose that requiring tenets such as ‘democracy’, ‘rule of law’, and ‘deregulation’ are indicative of the expansionist drive of the Euro-American influenced capitalist expansion in accordance with the postulations of Fukuyama. The opposition to universality of human rights on the other hand would appear to give some relevance, however little, to Huntington’s Clash of Civilisations. If none stands clearly on this, at least reference can be made to the Asian-Chinese and Islamic civilisations bits of that theses.
In the face of the annual human rights statistics and ideological stance of these ‘repressive’ countries that often argue on the premise of relativism, a deduction that the ideology is a ‘refuge’ would seem reasonable from an indifferent, complicit or tolerant view of the system produced by the ‘dominant’ universalist ideology, but not necessarily bereft of all merit in essence. The ‘face of law’ deserves attention in better appreciating critiques of universalism and relativism, and thus the politics permeating the undercurrents of law.

4.2. THE FACE OF LAW IN ASSESSING UNIVERSALITY AND RELATIVITY OF RIGHTS
A prima facie assessment of universalised legal regimes governing human rights globally leave one with little objections to the critique of the repression supposedly reliant on relativism. Critiques of law from the perspective of the relativist proponents however, leave one reconsidering the logic and justifiability of extensive or near whole-scale condemnations of relativism. This is exposed in asking a series of connected and derivative questions: ‘How were the universalised “laws” made’, ‘who were the participants in the making of the laws’, ‘what procedures were followed in the process and with what practical ultimate implications for interests of countries being represented’ and, ‘what are the after-effects of these laws in the context of global, regional and political interests of participants?’. The AAA and scholars like Cobbah, emphasise the neglect of ‘other’ cultural values, even though universalists like Donnelly will not deny such neglects.
An attempt at responding to those questions would highlight the assertions by critics, that the UDHR alongside most other human rights laws were drawn by a dominance of western participants , with a predominance of western socio-cultural ideological under-currents , in furtherance of mainly western interests and with reasonably suspected imperialist motives and tendencies . Ascribing a ‘legal face’ to what is primarily a particular culture and further declaring it ‘universal’ they contend, is logically dubious, ideologically imperialistic and positively subversive of the nature of law, read as a representation of the norms of people to whom it would apply. For it is a character of law in the contemporary world to reflect the values of the societies for which they are meant and the people to whom they are to apply.
In expounding on ‘Law and the Frontiers of Illegalities’, Nader touches on the contemporary use of law in furtherance of this mould of the universalist project in stating, ‘while theoreticians of imperialism recognize the uses of culture in the imperial project, it was and is specifically the rule of law discourse and practice that were and are key-stones of the continuing Euro-American civilizing project.’ But of course, universalism and relativism are fundamentally diametric in viewing and assessing laws which bear the ‘universal’ tag, since the universality of norms is equally impossible as cultural homogeneity is, in Tomuschat’s estimation. A simplistic consideration of international law in the forms of declarations, conventions, charters and resolutions would seem to be grossly myopic in a bid to appreciate the deep currents around the human rights discourse.
TO BE CONTINUED

IDEOLOGICAL REFUGE v JURISPRUDENCE OF INSURGENCY : CULTURAL RELATIVISM AND UNIVERSALISM IN THE HUMAN RIGHTS DISCOURSE

2011-06-01T09:38:00.000+01:00

1. ABSTRACT
Notions of Human Rights over the last few decades have shaped global law, politics and governance to the point of revolutionising many aspects of international or global relations . Consequently, the ideological frameworks underlying conceptions of human rights have been engaged in contestations, sometimes taking dimensions that are mutually antagonistic and tending to portray the ‘other’ as imperialistic or suppressive. Cultural Relativism has largely been poised against Universalism in addressing the debates on the definition and scope of application of human rights. A consideration of many criticisms of cultural relativism (as an ideological refuge) and universalism (as a jurisprudence of insurgency) on political, legal, anthropological and sociological grounds would seem to fall short of obliterating all merits of any of the two ideologies. It seems that while exposing the good and bad sides of each ideology, such considerations often highlight the possibility of a middle path that neither qualifies as universalism nor relativism as conceived and advocated in many of the ensuing contestations.

2. INTRODUCTION
Since the 1947 pronouncements of the American Anthropological Association (AAA) on the Universal Declaration of Human Rights (UDHR) in its ‘Statement on Human Rights’ , and the subsequent ‘promulgation’ of the declaration, various theoretical, legal, anthropological, religious and political contestations have besieged the universalist and relativist ideologies in challenges and counter-challenges to the notion of the universality of human rights. Many years since Boas muted on the reasoning that came to be defined as Cultural Relativism, it seems that now more than ever, the contests have grown to a point where there is a need to incisively examine the merits, if any, which may be left with these ideologies often in mutually scathing criticisms.
Clearly, the UDHR has with little resistance gained wider global appeal to date, a trend Donnelly describes as having ideologically hegemonic effects . Indeed, China only recently acknowledged publicly, the ‘universality of human rights’ on Wednesday 19 January 2011 in a meeting with Barrack Obama. Conversely, prevalence of abuse of human rights under regimes tagged ‘repressive’, casts a further shadow on cultural relativism, an ideology often linked with the stance of such regimes. Many critics of universalism on the other hand often associate it with western imperialism. The universalist ideology has however enjoyed greater favour, and would seem a step short of an absolute ideological victory cry .

3. AIM
This script examines what may be left of the merits and substances, after a consideration of universalism and cultural relativism from a perspective that is critical of the two, but mostly relativism, with a view to identifying the implications that may follow. In so doing, we engage historical, legal, political, sociological and anthropological ramifications that interface with the challenge on universalism and cultural relativism in the context of the human rights discourse. I adopt an approach that is dominant today- one of antagonism towards cultural relativism, while subsequently extending same to universalism.

4. CULTURAL RELATIVISM: EVALUATING THE IDEOLOGY
The notion that a practice, value, norm and law of a society should be understood and appraised by people outside of that society only in that society’s terms and standards came to be ‘Cultural Relativism’. Thus, ‘...an individual’s behaviour, thought, emotion, perception, and sensation are relative to, and bound by the culture of the group he or she belongs to’ . In this context, every custom is as valid and legitimate as others since none is judged by the standards and workings of another. This effectively precludes the assessment of a culture by some ‘universal objective standard’ which many contend, is a practical impossibility as cultures emanate from specific societal contexts.
Cultural Relativism owes its rise to ethnocentrism which had become prevalent in the early 20th century anthropology. Boas countered ethnocentric approaches to appraising other cultures from the western perspective by his ideas which have thence dominated and come to be identified as cultural relativism. This premise necessarily betrays the fact that the two ideologies create, recreate and reinforce each other since universalism as manifested in the dominant approach to studies in the age, can be credited with prompting the protest ‘voicing’ that is relativism. The AAA’s statement on human rights reflected the relativist perspective on the UDHR, and since then, it has been argued in politics, law, sociology and anthropology that on the one hand, the declaration and the whole idea of human rights as understood and advocated within the international system merely reflects a particular ethnocentric perspective and in this case, the Euro-American perspective. To extend this ‘particular’ ideology to the rest of the world is thus logically faulty at best and maliciously imperial at worst.
On the other hand, human rights ratings and statistics made by relevant bodies such as Amnesty International and Human Rights Watch are relied upon to commend or condemn countries with ‘good’ and ‘bad’ performances respectively. Ironically, countries with the worst performance indexes are supposedly exogenous to the ‘west’ culturally and historically. An appraisal of merits or otherwise of relativism therefore defaults into a consideration of certain factors that may be termed ‘political’ on the international arena, and reflected in the academies around the world as well.
TO BE CONTINUED...

DEHUMANISED WORKERS, GOVERNMENT AND THE COMPLICITY OF THE 'TRANS-NATIONAL CAPITALIST CLASS': ZENITH BANK PLC IN PERSPECTIVE

2010-12-02T23:14:00.000+00:00

The 'Worker' in Nigeria, Mexico, India, Bangladesh, Indonesia, Addis Ababa, South Africa suburbs of the United States, Rio De Janeiro, Brazil and Europe has found his situation as 'exploited' persisting over the years, and assuming new and drastic dimensions. The situation of the working class seems to be an unending vicious circle that annually brings many back to the same spot or worse. Respect for the dignity of labour is anything but that, better coined, 'indignity of labour'!

Formal 'Socialism' collapsed and left a free path for the growth and unapologetic expansion of 'Capital' and the Neo-Liberal ideology that underlies it. Deregulation has attained an unprecedented dominance in height and status across the world. Structural Adjustment Programs have left their debilitating effets across the world. It then seems the 'promise of the free market' was a farce and what is more, governments across the world are helpless in facing the situation due to ineptitute, complicity, incapacitation and sometimes brazen irresponsibility or a combination of these.

It would appear that private corporations have a profound control over the destiny of the worker, thanks to deregulation and the absolutely free market. Thus, employers like Zenith Bank determine the terms of employment of its workers in a manner most suited to capital devoid of a human face. Moreso, the prerogative to exert the 'maximum' from its employees as well as alter the terms and conditions of employment arbitrarily seems absolute! How has this come to be? Let us examine the Zenith Bank situation before the 'Solo Storm Revolution' of June to August 2010.

Zenith Bank Plc, a Nigerian Bank which operates in a number of African countries with a branch in London, had the practice (prior to the 'Storm'), of hiring employees on its own terms and observing those terms, to reasonable extents. However, a shocking trend developed from 2008, a trend in which Zenith Bank assumed a 'Deaf and Mute' position to its employees on the contract of employment entered. This was mostly in relation to new employees, often referred to as 'Trainees'. These employees were (are) graduates, and it is usual with many corporations to hire employees as trainees for varying periods of 3 months, 6 months or a year at most. In the case of Zenith Bank, it was a 1-year traineeship period. This 'Deaf and Mute' position of Zenith Bank involved ignoring the terms of employment requiring the trainee to be 'elevated' after a year upon confirmation of employment, which itself was a rigorous task requiring a miminum performance of 'B+' from the trainee's appraisal.

In concrete terms, Zenith Bank had these employees working extensively, often undertaking tasks proper to cadres 3 to 5 steps ahead of the 'Trainee' status while earning the same fixed rate designed for the trainee. Notedly, the trainee was not entitled to benefits accruable to other confirmed/elevated employees such as bonuses and allowances. The trainee was practically a 'Glorified Domestic/Contract' staff. Now, this 'Deaf and Mute' position did not just go on for the month following the completion of the 1 year trainee status, but months and months even exceeding 13 in some instances, (in my case it was 12 months)!

Zenith Bank was 'deaf' in that it will neither listen to the contract signed nor to the 'silent grumbles' of these 'sweatshop-like' workers. I say 'sweatshop-like not for the love of mere diction aggrandisement, but because i was there and i did it. Moreover, no one dared even 'speak' beyond the branch where one worked. It can be quite appalling to note the manner in which even top officers of Zenith Bank will not question these glaring absurdities or draw the attention of management to the situation, even where they were deeply convinced of the injurious nature of the situation. This i think, is testimony to a weird culture that has taken, and is taking further root. Nevertheless, there was stern deafness.

If Zenith Bank was injurious in being deaf, it was even more resolutely so in being 'Mute'! It failed, refused and calculatedly orchestrated conscious silence on the situation of these workers. (Subsequently, i will sketch a picture of the pattern of the daily life of these trainees in the socio-economic/professional context, but not in this post). The bank simply kept silent, but from this silence and general posture, a picture of the 'dignity' and 'honour' in which Zenith Bank held these employees was gradually emerging.

To say the least, the bank valued its counting machines and marketing vehicles far above these employees. They, (we) were effectively commodified in ways beyond the conventional commodification ideal of the capitalist free market system. This was a commodification with scorn! Indeed, even when I wrote as though from a son to a father, the then Managing Director who is now the 2nd defendant in the case filed did not deem it fit to 'clarify' the employment status of trainees 2 years on the job!

What, one will ask, was responsible for this situation where a corporation would exercise so much autonomous and arbitrary control over 'people' in such a degrading manner?. What happened to the Unions, Government, and most importantly, what happened to the people working in the system? Lastly, what happened to these hundreds of trainees, to the extent that they had no longer a 'human' sense- to the extent of just 'mowing on and on' like sheep in perpetual inaudible murmur?

Answers to these are not where they 'on first sight' may seem. They lie in a decryption of what the 'Globalising' pattern of the cosmos reveals. In undertaking this decryption, i will examine primarily, the emergence of what B.S. Chimney calls a 'Transnational Capitalist Class' at the service of global capital and the wheels of imperial globalism. This class as we shall see, is as much a victim as it is an agent (At times overzealous and tyrannical) of a pervasive globalising system...

TBC

Beyonce Sings Nigeria National Anthem

2010-10-02T21:29:00.000+01:00

EMPLOYEE CALLING ON AN EMPLOYER TO ANSWER BEFORE THE LAW FOR BREACH OF CONTRACT AND CONDUCT REFLECTIVE OF CONTEMPT FOR THE DIGNITY OF LABOUR AND DIGNITY OF HUMAN PERSONS

2010-09-24T19:59:00.000+01:00

In the developing world, with particular reference to Nigeria, the task mentioned above is one that the average employee would dread doing. The disposition to ask questions of leaders of government and leaders of industry for their actions, inactions and decisions is one that is grossly lacking in Nigeria. Whether in the civil service or in the private sector, the tendency is the same that employees would rather remain hushed on the clear wrongs done to society by their employers. It very well could be that the long years of military rule in the country have helped entrench a culture of victimisation and suppression of employees by employers. It can be even more baffling to know that this tendency has seeped deep into the private sector and worst still, a sector as sensitive as the banking sector. It is on this note that we wish to reflect on the recent treatment of employees by one of the very popular new generation banks, Zenith Bank Plc.

In hiring professional and even non-professional employees, the general practice in most sectors of the economy world over is to hire such employees on probation for a certain period, after which they are ‘confirmed’. This act usually comes with an implication as far as promotion and remuneration is concerned, usually a positive boost and contained in the contract of employment. Starting early 2008, Zenith Bank Plc employed hundreds of people across Nigeria as ‘EXECUTIVE TRAINEES’ who were to be on probation for a period of 12 months and to be confirmed and elevated to ‘EXECUTIVE ASSIATANT’ upon confirmation. It so happened however, that 12 months and more later, and after the employees had met their requirements and were confirmed accordingly, they were left (with few exceptions) as it were, stranded in the same position by Zenith Bank with no word of explanation whatsoever. In the absence of a union through which to channel their grievances, questions and uncertainties, these young men and women were left in utter darkness. It was only after some dramatic occurrences, courtesy one of the ‘EXECUTIVE TRAINEES’ that some action was taken (which though better than the pre existing maltreatment, fell far short of the terms of the contract of employment) by the bank in June 2010 and on 18th August 2010. These ‘dramatic occurrences’ are centred on what has today culminated in the bank filing a statement of defence through its lawyers in a case filed against it by the now former employee against the bank.

In failing to keep to the terms of the contract of employment, Zenith Bank is saying that its management can revise the terms and conditions of the contract of employment in any manner without either recourse to the employee, or even notice to the employee whether before or after such revision. In other words, Zenith Bank is arrogating to itself the powers and rights to arbitrarily alter/vary the terms of a binding contract of employment. In this 21st century world where all dictatorships are giving way to civil ways of conducting government, corporate and general human affairs, it remains to be seen if a judge can or indeed will uphold this position. Kajit Vs. Zenith Bank Plc and Jim Ovia with suit number LD/1515/2010 is the case in view.

TO BE CONTINUED...

ARTICLES OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 CONTD.

2010-08-31T22:22:00.000+01:00

Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

Article 21
1 . Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

FINIS.

ARTICLES OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

2010-08-30T15:07:00.000+01:00

PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, therefore,

The General Assembly,

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article I
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3
Everyone has the right to life, liberty and security of person.

Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

TO BE CONTINUED...

BREACH OF TRANSPORT CONTRACTS, ‘NON REFUND’ CLAUSES AND THE NIGERIAN CONSTITUTION

2010-07-31T13:10:00.001+01:00

A friend (Toluwanimi Fadesere of BKG Exhibitions Limited, Yaba Lagos) requested that i write an article for publication in a magazine at the 6th Lagos Motor Fair at Tafawa Balewa Square, Onikan, Lagos taking place 15-24th October 2010. He captioned the question in the following terms:

"The assignment is what section of the constitution covers breach of contracts and how do we relate it to a case where one pays transport fare from one destination to another and the vehicle broke down and nothing is done by the transporter to complete the journey for the passenger. Meanwhile there is a line in the ticket that reads 'no refund'"

I have decided to reproduce that article here with the above rephrased heading as follows:

INTRODUCTION
The most common and popular legal instrument known to the average Nigerian is the CONSTITUTION! Any reference to the law of the land would impel the common man to ask, ‘where is it in the constitution?’ or to assume that it is ‘clearly stated’ in the constitution! Rightly so, as Dr Mohammed Nuhu Jamo1 would say, the constitution is the ‘mother of other laws’ in Nigeria. Funny to know that the constitution in force (1999) only came into effect as a schedule to Decree 24 (Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999), under the General Abdulsalami Alhaji Abubakar administration on the 29th of may 1999! But as mother of all laws, the constitution that came into force in 1999 ‘gives birth’ to laws that existed even before the birth of ‘Nigeria’, and that is where we comfortably posit the BREACH OF CONTRACTS in our body of laws.

Section 315 of the 1999 Constitution provides for ‘Existing Law’ in the following terms:

(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.2

By the above provision, the Common Laws of England, the Doctrines of Equity and the Statutes of General Application that were in force as at 1st January 1900 and have since then been developing with every legislation and adjudication in Nigeria have force and life. Herein fits the law of contract, an aspect of which is the breach of contract which is the subject-matter of this piece.

BREACH OF CONTRACT: DEFINITION, REMEDIES
For there to be a breach of contract, a relationship must exist that qualifies in law as one ‘creating reciprocal legal obligations to do or not to do particular things’, ‘there must be mutuality of purpose and intention’3. In simple terms, two parties must come to a ‘give and take’ understanding and agreement. One party does an act, renders a service or refrains from same for a consideration from the other party which could be tangible or intangible. This is the case whether the contract is a formal one under seal (which in law is enforceable even without consideration), or a simple contract - written or by word of mouth, (parol). It is where there is default by one party to the contract that a breach is said to occur. In the words of the distinguished Court of Appeal Judge of Ibadan Division, Fabiyi JCA in the recently decided case of OBADIMI Vs. ADEDEJI4,

“There is no gain saying that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract, or either performs the obligation defectively or incapacitates himself from performing the contract.”

Elucidating further on the subject, Muhammed JCA in the same case stated: “...in other words, if there was a breach of the agreement to sell the concern, the most important question is ‘who made the sale inconclusive’? The answer is that the person who had stalled the sale stands in breach of the contract”5

Breach of contract usually results in injury to one party or more, and in accordance with the maxim: ‘ubi jus, ibi remedium’6, such a party will be entitled to legal remedy barring any fault on its part. Remedies for breach of contract could come by way of Injunction, Specific performance or Quantum Meruit (much as deserved), but the most common, conducive and readily available remedy for a breach of contract is DAMAGES. The damages usually awarded to the injured party could come under one of several classes: Special (specific items with clear or known monetary values, and which are within the contemplation of the parties at the time of the contract), General (where the court itself has to estimate or assess the damages, and ‘which the law will presume to be direct, natural and probable consequence of the act complained of’7). Damages could also be Nominal (where the injured party has suffered no loss as a result of the breach, entitled to nominal damages due to the violation of his right per se), and Exemplary (awards made with the secondary object of punishing the defendant party in breach for his conduct in inflicting harm on the plaintiff)

THE PASSENGER WHO PAYS TO BE TRANSPORTED
Between a passenger who boards a vehicle to be conveyed to a destination and the transporter who collects money (consideration) from the passenger, there exists a clear contract whose terms are said to be ‘implied’. The terms of every contract could either be express or implied or both. Formal and written contracts are known for their express terms, though many still have myriads of implied terms by virtue of the circumstances of each transaction, as well as statute or case law, while parol (Oral) contracts are usually held by implied terms. This is where the kind of contract between the passenger and the transporter comes in. In the words of the erudite professor8,

“...in the case of implied contracts, terms are not expressly stated. The court in such circumstances, will normally construe the existence of a contract from the conduct of the parties rather than from their words or correspondence. For example, a passenger usually enters a bus without any dialogue between him and the conductor or driver. Yet to all reasonable men, his action implies that he will pay his fare, while the bus owner is obliged to carry him safely to his destination...”

It goes without saying therefore, that the passenger who boards a commercial vehicle, has the obligation to pay for transport services, which ipso facto creates a reciprocal obligation on the part of the transporter to convey such passenger to the agreed destination. The act of soliciting passengers to a particular destination by notices and by verbal pronouncements on the part of the transporter in person or through its agents, and the act of boarding the vehicle with full knowledge of the advertised destination implies an express consensus ad idem that the transporter will convey the passenger to the advertised destination(s), and that the passenger will furnish payment (consideration) for the transport service rendered. This payment by the passenger could be in advance or in arrears of the transport service rendered depending on how the parties agree, and the prevailing lawful and acceptable practice in the area of jurisdiction.

Considering the foregoing, a passenger who neglects or fails to pay for the transport services would be in breach of the contract whose implied terms are that in exchange for his being transported to destination, he will furnish consideration by making payment. Reciprocally, it will be a breach of contract for the transporter to fail in delivering the transport service either completely or partially (devoid of anything that qualifies as frustration by an ‘Act of God’ in law). While a breach by the passenger could entitle the transporter to the remedy of Specific performance (requiring the passenger to pay the agreed fare and any other penalty arising from the passengers’ failure and/or refusal to pay as agreed), failure to convey the passenger to destination by the transporter will entitle the passenger to the remedy of damages in a legal action. Beyond a refund of the sums paid to the transporter, where such breach arises due to the transporter’s fault either through negligence, malice or other reason that a ‘reasonable man’ could avoid, the transporter could additionally be liable to pay the passenger other damages due to injury arising by virtue of the failure of the transporter to meet his obligation in the contract, and the chain of losses caused the passenger as a direct result. As is the general rule in law, each case would be treated according to its merit and based on its facts.

Where therefore the vehicle breaks-down in transit, it follows logically that devoid of any additional fault of the transporter and depending on the facts of the case, the transporter will under common law, be required to refund the entirety of the sum paid him by the passenger. His part in the contract is to convey the passenger to destination, and failure to do that as agreed entitles him to absolutely no consideration or benefit in common law. When the principles of equity are applied however, he may be granted a ‘Quantum Meruit’ remedy, i.e., giving him the equivalent of that part of the journey which he was able to accomplish. Many jurists will however disagree with this position and cling to the standard common law position by which the passenger may not only be entitled to a total refund of paid fares, but also to general damages (since it may not be practicable to return the passenger to the position he was ‘restitutio in integrum’ before the contract, since that will entail time waste and possibly additional loss).

THE CLAUSE ‘NO REFUND’ ON RECEIPT OF PAYMENT
It is not uncommon to see such words on receipts of payment, usually where payment is made in advance of the transport services. It takes little to see that such words can only have effect to the extent that the transporter is not in breach of his own part of the contract. Those words may therefore make sense, where the passenger for instance, decides midway to abort the journey (though even this is contestable depending on each case). Where however, the transporter fails, neglects, decides or is unable to complete the journey, such a clause will have absolutely no meaning or force in that contract. Were the contrary to be the case, then any one could assemble passengers, collect their monies while issuing receipts with such clauses and shortly thereafter decide to abort the journey and keep the monies collected!!! That would be a most skewed reasoning and intolerable situation before any rational beings! Such has never been, is not, and never will be the position of the law, and God save the people from such barbarity!

CONCLUSION
Contracts are a daily occurrence in human society which by virtue of human nature, are bound to see breaches committed. It is the duty of the law (Contract Law as incorporated by section 315 of the 1999 Constitution of the Federal republic of Nigeria) to see that justice is done in each case by proffering solutions to each case of breach. The case of the transporter is no exception as his obligations to the passenger and vice versa must be done or redressed in the most justifiable manner to give satisfaction to each of the contracting parties by way of Specific Performance, Injunction, Quantum Meruit but most commonly and conveniently, by Damages.

It can be stunning to observe the way parties to such contracts, especially motorists and transport companies handle such cases which leaves much to be desired. It is hoped that expositions such as this will help add to the degree of sanity and civility to the society in which we find ourselves.

BM Integrum Legis Partners (08053430524-Kajit, 08037310418-Manava),
Ungwan Rimi Kaduna.

REFERENCES
1. Senior lecturer of Constitutional Law, Faculty of Law, Ahmadu Bello University, Zaria
2. Constitution of the Federal Republic of Nigeria, 1999
3. Orient Bank (Nig) Plc Vs Bilante International Ltd. (1997) 8NWLR (Pt. 515) 37 at 76
4. (2008) 3 NWLR (Pt 1073) pg 16 paragraphs H-B
5. Ibid, pg 21
6. Meaning ‘where there is a right, there is a remedy’
7. The English Lord, Mc Naghten in Bolag Vs Hutchison (1965) 1 All NLR 182
8. I.E. Sagay, Nigerian Law of Contract (ed) 2000, page 5

ESSENTIALS OF A VALID CONTRACT OF EMPLOYMENT, CONTD

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Other essentials of a valid contract of employment are as follows:

4. For the contract of employment (Contract of Service) to be valid, its terms and conditions must be certain just as the parties must be certain and be capable of being identified reasonably. The contract will therefore not be binding where the terms and conditions are too ambiguous and uncertain. The terms and conditions spelling-out the obligations of the employer and those of the employee must be clear enough to give both sides comfort.

5. 'Concensus ad idem' (Mutual consent) is another essential requirement that must be manifest to give the contract of employment validity. The presence of Misrepresentation, Mistake, Fraud, Duress or Undue Interference affects the validity of this contract.

6. To be valid, a contract of employment must be legal and in accordance with the maxim, 'Ex turpi causa non oritur actio', the contract will be void if entered principally with the objective of performing an act prohobited by law. Both in its objective and mode of performance, the proposed contract must be legal, thus a contract for smuggling and procurement of girls for sexual gratification would be null and void as will one intended to defraud tax authorities e.g., by understating salaries in order to pay less Tax.

7. The condition of Contractual Capacity concerns the Insane, Infants and Women. Contracting parties must be of contractual age for them to be vested with Capacity to contract validly. Section 9(3) of the Nigerian Labour Act Cap L1 Laws of the Federation 2004 provides: 'Except in the case of a contract of apprenticeship, no person under the age of sixteen years shall be capable of entering into a contract of employment under this Act' Similarly, sections 55 to 57 of the Act regulates the aspect concerning women. Setion 55(1) provides: 'Subject to this section, no woman shall be employed on night work in a public or private industrial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof'

It has been trite under Common Law that a legal infant can only contract for necessaries, and the contract must be beneficial to that infant, otherwise that contract may not stand when put to test, De Francesco v. Barnum (1890). Women would not normally be legally contracted for night duty (Except for Nurses and few other exceptions and situations).

The conditions illustrated in the foregoing must exist in their respective fashions before a valid Contract of Service/ Contract of Employment can exist.

ESSENTIALS OF A VALID CONTRACT OF EMPLOYMENT

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1. An offer is a definite undertaking or promise made by the employer with the intention that it shall become binding on him as soon as it is accepted by the party to whom it is addressed. By law, such offer can be made orally, expressly or in writing. This requirement for a valid contract forms the basis and foundation upon which other essentials are built.

2. An acceptance is a final and unqualified expression of assent to the terms of the offer by the employee. The employee indicates acceptance by word, in writing or by conduct. If the employer prescribes a mode of expressing acceptance, then only that means of communication would be valid, otherwise acceptance can be by word or conduct, and in a manner commensurate to the offer.

3. The price paid in exchange for the service rendered or work done is known as Consideration. It is therefore the exchange of wages for work done between the employer and the employee. If the rate is agreed upon, then that will be the binding rate between the parties, but if none is agreed upon, the position of the law is that the rate shall be that which is current in similar trades in the area or what the custom of the trade dictates, Peters of Oron v. Symmons (1924)

...

CONTRACTS OF EMPLOYMENT

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Like other contracts, a contract of employment is governed by the general principles of the Law of Contract. The essential constitutive elements of a contract must therefore be present before a valid contract of employment can exist. However, this contract differs from the ordinary contract in certain respects; first, the remedy of Specific Performance is not readily available for the breach of a contract of employment, since it is trite that a willing employee cannot be foisted on an unwilling employer. Also, the relationship borne of this contract is largely affected by statutory regulations.

In Addressing this subject, the following key ingredients will be considered in due course;

1. Offer
2. Acceptance
3. Consideration
4. Certainty
5. Consent
6. Legality and
7. Contractual Capacity

NIGERIAN CONSTITUTION AND LABOUR MATTERS

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Like many other countries, the fundamental law in Nigeria, the 1999 Constitution of the Federal Republic contains a substantial reflection of the 1948 Universal Declaration of Human Rights. Its second chapter is titled 'Fundamental Objectives and Directive Principles of State Policy'.

Section 17 thereunder provides for a State Social Order that is founded on ideals of Freedom, Equality and Justice. In fostering such a social order, it provides clearly that every citizen shall have equality of rights, obligations and opportunities before the law. It goes further to provide that the sanctity of the Human Person shall be recognized and human dignity shall be maintained and enhanced.

The above is a sufficient expression of solidarity and agreement with the stance of the 1948 declaration on labour matters and the dignity of the human person. We see this clearly when we look a little further down the provisions of subsection 3 of that section. There it states without equivocation that the state shall direct its policy towards ensuring that all citizens without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Buttressing this position is the further provision that the state shall ensure that conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life

Employers who normally take their employees' rights for granted, as well as the greater percentage of employees would be amazed to know that the constitution further provides that the state shall ensure that the health, safety and welfare of all persons in employment are safeguarded AND NOT ENDANGERED OR ABUSED. A judge who hears a matter relating to employee welfare disputes/matters would therefore be compelled by these objectives. Additional to the above is the the obligation to ensure that there are adequate medical and health facilities for all persons, and that there is equal pay for equal work without discrimination on account of sex or any ground whatsoever.

This stance of the Nigerian constitution alongside the African Charter on Human and Peoples Rights are an avenue through which the dignity of human labour, and that of the human person can, and will get further reinforcement and protection, and that is the trend across the international community, standards that will not be lightly derogated from for whatever reason, not excluding the financial meltdown.

THE DIGNITY OF HUMAN LABOUR: UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. res 217A, 1948

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Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.