(We) are unable to forgive what (we) cannot punish and (we) are unable to punish what has turned out to be unforgivable - Hannah Arendt [1]

INTRODUCTION

The granting of amnesty [2] is by no means new in history. Religious testaments, notably the bible records the creator as saying, ‘I am the one who wipes away all your sins and remember them no more'[3]. Down through the ages, the practice has evolved not only as the exclusive of the divine, but has become an elastic and effective tool for striking compromise for peace by nations in transition. Consequently, amnesties have featured prominently at various times in the peace efforts of nations for the protagonists of war. With the establishment of the International Criminal Court (ICC), amnesties as a shield against accountability for international crimes have become a debatable prescription. At the heart of this argument are certain provisions of the Rome Statute of the ICC on the ‘complementary’ arrangement which allows the ICC to prosecute only when a national state is unwilling or unable to perform its prosecutorial role.

This essay argues that although the Rome Statute is silent about amnesties, the purport of amnesties which is not to condone impunity but to chart a path of peace agrees with the spirit of the Rome Statute which essentially is to end impunity and contribute to the prevention of international crimes. The essay concludes on the note that it is difficult for the International Criminal Court to ignore limited amnesties as a bargaining tool in civil wars or political crimes negotiations.

Jegede Ademola Oluborode looks at the Protocol on the Rights of Women in relation to medical or scientific experiments and argues that ethical and scientific standards are lowered when it comes to African women and informed consent may not be enough to protect vulnerable African women.

This article is a reflection on the provision of article 4(2)(h) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa( Protocol on the Rights of Women) which seeks to prohibit all medical and scientific experiments on women without their informed consent. The article argues that the prohibition of all medical or scientific experiments on women without their informed consent, without more, falls short of other ethical requirements for safety in scientific and medical experimentation. This in itself is an expression of the regrettable gap which over the years has existed in major international human rights instruments, to which most African States are signatory. To this end therefore, the article suggests that along with the requirement of consent, there is a need to legally prescribe appropriate human rights standard on the performance of medical and scientific experiments. The article concludes that a re-draft of article 4 (2)(h) of the Protocol on the Rights of Women is imperative to ensure maximum legal protection for women, who by virtue of their role in the society are most vulnerable to medical and scientific exploitation.

INJUSTICES IN MEDICAL OR SCIENTIFIC EXPERIMENTS AND WOMEN [1]

Examples of where women have been victims to medical and scientific exploitation under the pretext of research are not new. Grave atrocities were committed in the process of medical experiments carried out during the Second World War on non-consenting women and children prisoners of Nazi concentration camps [2]. During the same period in history, African women from the German South West Africa, now Namibia, were part of sterilization programmes instituted by Germany without their consent [3]. In more recent times, evidence from Nigeria implicated Pfizer International Incorporated (PII) of fraud and criminal breach of trust of its controversial drug test, popularly known as Trovan Clinical Trials, which it carried out on Nigerian citizens in Kano in 1996, which had fatal results [4].

The burden of disease, generally, including malaria, sickle cell anaemia, tuberculosis and HIV/AIDS, weighs heavily on Africa, where these illnesses are most prevalent. In more ways than one, the impact of these diseases has been disproportionately borne by women. While medical and scientific trials and research involving women, holds great prospects for the solution of these problems, researches and pharmaceutical companies who engage in trials can not always be trusted to function with due consideration for ethical requirements, when such requirements are not well specified and projected in the African human rights system.

It is noteworthy that due to low level of literacy in Africa, very few women who are research participants are sufficiently educated to really understand the details of studies and trials in which they are engaged [5]. The poverty and powerlessness of women often lead to their participation in clinical and scientific researches merely for inexpensive inducements, and largely due to less understanding of study risks, or for the pregnant women, under the mistaken belief that such studies will result in care for their unborn children. There are for instance, controversies which have surrounded microbicide trials carried out on women in South Africa which revealed that women in the study developed higher risk of HIV infection [6]. In 2007, the US-based reproductive health research organisation, CONRAD, also announced the premature end of trials of a cellulose sulphate-based microbicide in Nigeria, Benin and Uganda after the data safety and monitoring committee found a higher number of infections in the active group compared to the placebo group [7].

The New England Journal of Medicine carried a comment on 15 on-going clinical trials testing cheaper drug regimens to prevent maternal-foetal transmission of HIV in Africa. Some 16,000 pregnant, HIV-positive women were enrolled in the placebo-controlled trials. The problem with these trials was that it began after Zidovudine (AZT) had been found to prevent such transmission by 50% or more, and is recommended to all HIV-positive pregnant women in western countries. In other words, it was reported that, thousands of women in the trials were getting sugar pills to test the efficacy of the new regimens whereas if they had been enrolled in trials in Europe, they would have received a standard course of AZT [8]. This further underscores the point that the truth in Africa, is that very few women do enjoy the benefits of the research in which they participate.

The survival of women therefore raises the question as to whether international human rights have done enough to protect women in terms of medical and scientific experimentation and if not, whether there is the need for the African human right system to review existing legal framework with the view of addressing such gap.

INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS ON MEDICAL/ SCIENTIFIC EXPERIMENTS

When international human rights instruments have discussed access to health services, it has been silent on medical and scientific experimentation. This was the case with the Universal Declaration of Human Rights which only guarantees in its Article 25(1) the right of everyone 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. Similarly, subsequent notable instrument such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 12(2)(d) only urges the States to take steps to achieve full realization of the right to health by creating conditions which would assure to all medical service and medical attention in the event of sickness [9]. Article 5 (d)(iv) of the Convention on the Elimination of All Forms of Racial Discrimination is no different when it provides for the right to public health, medical care, social security and social services [10].

Although, the need to take urgent steps to address the inequality as it affects women on a number of issues led to the adoption of the Convention on Elimination of Discrimination Against Women (CEDAW), [11] the Convention fails to sufficiently address the issues of human rights around medical and scientific experiments in its copious provisions in Article 11(f), 12(1) and 14(2) (b) regarding improvement of access of women to health care services. This is also lacking in the 1999 General Comment of the Committee on the Elimination of Discrimination against Women, which interpreted the right to health under Article 12 of CEDAW as the right of women to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures and available alternatives [12].

Article 4(2)(h) of the Protocol on the Rights of Women provides that States parties shall take appropriate and effective measures to prohibit all medical or scientific experiments on women without their informed consent. This appears progressive for Africa, considering that, with the exception to South African Constitution which has similar provision; hardly does any other African constitution have a similar provision with such safeguard [13].The Protocol is however merely re-stating article 7 of the International Covenant on Civil and Political Rights (ICCPR) which provides that ‘no one shall be subject without his free consent to medical or scientific experimentation [14]. The inherent weakness in the foregoing efforts is that the requirement of consent, without more excludes certain elements of ethics which are fundamental in medical and scientific experiments and in so doing, deprives them of being legally determinable.

ELEMENTS AS IMPORTANT AS ‘INFORMED CONSENT’ IN MEDICAL AND SCIENTIFIC EXPERIMENTS

The medical misdeeds at the Second World War led to the Nuremberg code in 1947, a set of principles devised to protect human subjects from unethical experimentation [15]. The Nuremberg code was a part of the judgment delivered in the so-called Doctors’ Trial at Nuremberg following World War II. The principles of the code were based upon the criteria for ethical research that were elucidated by the two expert medical witnesses at the trial if human experimentation was to be justified. These are: informed consent; Results must be for the good of society; and the experiment must be conducted only by scientifically qualified persons [16].

While further reinforcing the principles at Nuremberg, the Declarations of Helsinki (1964 and 1975, with further revisions in 1983, 1989, 1996 and 2000) emphasised that in research involving human beings, the potential benefits must outweigh hazards. The Belmont Report of 1979 projected three ethical principles as relating to research on human subjects namely; respect for persons; beneficence and Justice. The principle of respect to persons connotes that individuals should be treated as autonomous agents. The principle of benevolence indicates that harm must not be occasioned; maximum benefits must be ensured while Justice signifies that there should be fair distribution of burdens and benefits of research [17].

RECENT EFFORTS AT CODIFYING RESEARCH ETHICS

The Universal Declaration on the Human Genome and Human Rights (the Declaration) which regulates cell research appears to have provided for other requirements apart from informed consent. Article 5 of the Declaration recommends that attention be given to best interest the persons involved in the research, compliance with national and international research standards or guidelines, health benefit, minimal risk and minimal burden, compatibility with the protection of the individual's human rights [18]. Apart from failing to define what the national and international research standards and guidelines are, the Declaration, suffers the same setback with other declarations, which is that generally, they are not binding in international law.

In 1997, Convention on Human Rights and Biomedicine was adopted by the Council of Europe (The Convention). The Convention provided extensively for ethics regarding medicine and scientific experiments. Article 16 of the Convention extensively provides for protection of a person undergoing experimentation and accommodates the ethics on Justice, Benevolence and freedom of harm which the Nuremberg Code, Helsinki Declaration Belmont Report have projected. Article 23 of the Convention allows parties to pursue judicial protection to prevent or to put a stop to an unlawful infringement of the rights and principles in the Convention at short notice [19].

Africa may not however benefit from the Convention considering that the only parties to the Convention were members of the Council of Europe. Without regional legal human rights coverage of the subject, it is unlikely that the Convention as it is presently will be of any use on African concerns on the matter of experimentation and exploitation. The need for such coverage is imperative in a globalised world where Africa remains a fertile ground for research and stands the greatest risk to be impacted by medical exploitation. That is more so considering that it is unlikely that free choice and benefits can be enjoyed by women in relation to medical and scientific experiments where standards are absent.

THE WAY FORWARD

From Universal Declaration of Human Rights through CEDAW to the Protocol on Women Rights, international human rights instruments to which most African nations are signatory are inadequate as a standard of regulating scientific and medical experiments. Most importantly, article 4(2)(h) of the Protocol on Women Rights lacks the essential components on ethics required for scientific and medical experimentation. The Protocol on Women Rights, just as the Convention on Human Rights & Biomedicine should accommodate requirements which the Nuremberg Codes, Helsinki Declaration and Belmont Report have projected in terms of respect for persons; beneficence and fairness. Achieving this will be a leap forwards as it will take the principles beyond the realms of mere ethics to the realms of active rights. It is therefore suggested that article 4(2)(h) of the Protocol on Women Rights in addition with the principle of informed consent should include the principles of beneficence and fairness. This is imperative in this age of globalisation where Africa remains a fertile ground for research and its women the most vulnerable.

*Jegede Ademola Oluborode is a legal practitioner and a human rights activist in Nigeria.

*Please send comments to or comment online at http://www.pambazuka.org/

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Jegede Ademola Oluborode looks at various marginalized groups in relation to human rights in Nigeria.

INTRODUCTION

"Burdened in the midst of hope!"

With the wave of democracy sweeping across Nigeria once again in 1999, and more fundamentally since 2003, efforts have been made towards institutional development aimed at laying political foundation for Nigeria to realize its potentials. Basic freedoms in the form of political and civil rights, whether sincere or otherwise, at least appear to have featured predominantly in these efforts. Little or no attention is however being given to economic, social and cultural rights so well encapsulated in several international and regional instruments to which Nigeria is signatory.

In a regime of neglect to crucial rights, Marginalized Groups, and their category is ever growing, suffer more. This is perhaps because, apart from contending with inattention which appears to be common fate of all, the harms and injuries faced by these groups, due to inadequate legal framework and political leadership commitment to their concerns, are gradually emerging and may dominate human rights discourse in the coming decades. Using the marginalized group as a barometer, attempt is made here to appraise human rights violations in Nigeria and predict its future situation. The Essay concludes on the note that unless there is a renewed commitment to embrace and apply human rights as vehicle of positive change, the future may only be remarkable for intense agitations and bitter protests of the marginalized.

HUMAN RIGHTS AND MARGINALIZED GROUPS IN NIGERIA

The human rights concerns and needs of Nigerians, particularly the Marginalized Groups remain unaddressed. The approach adopted below is to define and describe the human rights situation of the marginalized by variables such as disability, sexual orientation, religion, region and gender.

DISABILITY

Section 42 of the 1999 Constitution of Nigeria guarantees the right to freedom from discrimination in all its forms against any person. The provision may be considered applicable to persons with disabilities. Prior to 1999, the Nigerian with Disability Decree of 1993 made copious provisions for the protection of human rights of persons with disabilities. In its Section 3, provisions were made for their human rights and privileges while Section 14 established a National Commission for Persons with Disability. As beautiful as this piece of legislation is, nothing concrete has however been done to match its provisions with action. To date, the National Commission for persons with Disabilities has not taken off. Contrary to section 9 of the Decree, transport is not free for the disabled, national news and official broadcasts do not provide sign language for interpretation in accordance with section 19, while it has been difficult in the circumstance of our electoral process for the disabled to exercise their rights to vote and be voted for. In spite of the social rights guaranteed under the Act, most disabled live off begging on the city streets.

Two significant Bills for persons with disabilities were introduced at the National Assembly in year 2000 namely; (1) A Bill for an Act to provide Special Facilities for the Use of Handicapped Persons in the Public Buildings and (2) A Bill for an Act to Establish a National Commission for the Handicapped Persons and to vest it with the Responsibility for their Education and Social Development and for the Connected Purposes . Nothing significant came out of these Bills.

Nigeria has signed the Convention of the Rights of Persons with Disabilities and its optional protocols. At a Forum to sign the Convention, the then Minister of External Affairs, Mrs. Joy Ogwu, noted that Nigeria was in the process of signing a Disability Law . Except for the National Disabled Trust Fund (Establishment Bill) presented in 2004 by Senator. Chris Adighije which is still dragging at the National Assembly, no such Law appears to have been passed till date. Section 21(1) of the 1999 Constitution provides that no treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. Lack of political commitment to appropriate legal framework and implementation of the existing laws underlies the violation of Disability rights in Nigeria.

By 2018, events are more likely to reveal that it requires more than a piece of legislation or endorsements of international conventions to realize the rights of person with disabilities in Nigeria. Appropriate legislations will benefit from Human rights education and advocacy in the coming decades. Human rights activities in this regard will also be complemented if there is an upgrade of legal education to accommodate Disability Rights.

SEXUAL ORIENTATION

Section 214 of the Nigerian Criminal Code penalizes consensual homosexual conduct between adults by fixing 14 years as punishment. Similar position appears to be taken in the Sharia Codes against sodomy . The effect of this framework is that relationship and marriage ceremonies between the people of the same sex are criminal in Nigeria. In a letter routed through the Human Rights Watch by a network of national and international NGO's, the foregoing trend has been criticized as inconsistent with international legal regime which emphasizes that granting lesbians and gays the basic rights of expression and association is a good public health measure capable of boosting government efforts to curtail the spread of HIV/AIDS .

It does appear that the greatest challenge in the struggle for lesbian and gay rights activism in Nigeria presently is the lack of understanding of major policy and law makers about the public health significance of gay and lesbian rights. Predictably, this trend may continue in the coming two decades and may be characterized by a clash of two views; public morality and public health. One can only speculate about the dominant view in the future. One thing is certain though, behavioral and social practices can not be shaped by a piece of legislation without other tools of public health education to complement, more so by pieces of legislation which tend to undermine gay and lesbian rights.

RELIGION

The secular nature of the Nigerian State is well captured in Section 10 of the 1999 Constitution which provides that the Government of the Federation shall not adopt any religion as State Religion. Islamic law has however come into operation in the northern part of the nation such as Sokoto, Kebbi, Niger, Kano, Katsina, Kaduna, Jigawa, Yobe, Bauchi, Borno, Zamfara, and Gombe with extensive jurisdiction covering criminal cases. People have been tried for different manners of offence and received sentences based on the provisions of the Sharia. The Sharia provisions on sentences have been subject of international condemnation lately as amounting to cruel, inhuman and degrading treatment, including death sentences, amputations and floggings. The manner in which Sharia is applied violates women rights to freedom from discrimination, particularly in adultery cases where standards of evidence differ based on the sex of the accused.

Christian groups notably Christian Association of Nigeria (CAN) has consistently asserted the threat that rapid islamisation of the northern part of the nation portends for the minority Christians. The plank of their position has been that such trend may occasion inter-religious crises and reprisal killings in different parts of the country. Lack of judicial pronouncement and federal position on the issue of the nation’s secularism heighten the anxiety of the minority and discourage them from taking advantage of their right to freedom of religion.

In the coming two decades, controversies, particularly in relation with religion and constitutional provision on secularism of the nation will increase. Agitations for Sharia law will likely continue in the nation with increasing protests by members of other religious groups notably, Christians. Clashes as well as reprisal attacks along religious grounds are not ruled out with the minority suffering the most in the majority’s efforts at domination.

REGION

Underlying the hydra-headed conflict situation in the Niger Delta region (Ondo, Edo, Delta, Imo, Abia, Bayelsa, Rivers, Cross rivers and Akwa Ibom States) is the perceived grave violation of human rights of the communities in the region. The situation has its roots in the discovery of oil in the region by the Royal Dutch Company in the late 1950s and has continued till date. The allegation of the people from the Niger Delta-Region in Nigeria is that attempts by Government to alleviate the regions problems have been insincere.

It has been observed by the Human Rights Watch, and rightly so, that the Federal Government policy towards conflict in the Delta has vacillated between heavy-handed attempts at imposing order and attempts to bring reconciliation . In September 2005 federal authorities arrested Niger Delta People’s Volunteer Force (NDPVF) leader Asari on charges of treason. In what seems to be a reconciliatory move, charges against him were later dropped by the new administration of President Musa Yar’adua who had earlier indicated an interest to convey a National Summit to address Niger Delta question. Meanwhile, hostage taking and kidnapping still continue to characterize the conflict face of the Niger Delta region.

Lack of an a-political comprehensive blue print development programme for the region as well as political commitment has over the years accounted for the deep human rights crisis of the Niger Delta region. In the coming decades, issues of self determination, police brutality, illegal occupation and detention will bitterly rage in the Niger- Delta region and may degenerate into humanitarian crises unless political leadership realizes the need for a review of the legal regime of ownership and control of oil resources vested in the Federal Government through legislations such as The Petroleum Act 1969 and Land Use Act to accommodate the concerns of the communities in the areas.

GENDER

The legal framework for the observance of womens rights remains hazy in Nigeria and it is a major bane to the realization of their human rights. The argument in this respect has been whether the Constitution as it is, entails a comprehensive set of provisions on human rights capable of supporting the emerging body of womens rights particularly, reproductive rights embodied in international instruments such as (The Convention of the Elimination of all forms of Discrimination against Women (CEDAW) of 1981) to which Nigeria is signatory and the consensus of Conferences such as (International Conference on Population and Development (ICPD),1995) which Nigeria approved.

The provisions on human rights in the 1999 Constitution do not provide for, the rights to health, a standard of living adequate for health and well being and the right to enjoy scientific progress and to consent to experimentation as envisaged in the World Health Organisation Bill on Sexual Rights. Issues such as health, economic and social rights are only accommodated in the Fundamental objectives and directive principles of state policy in sections 13 to 24 of the constitution.

The consequence of the foregoing is that whereas the provisions on human rights are actionable in court, the 1999 Nigerian constitution does not make provision for the enforcement of fundamental objectives of the state or for accountability of the same. It merely provides for policies and directives to be made on such matters. In line with these directives, the government has made several policies including the following:
- National health policy (1996)
- National Women Policy (2001)
- National Reproductive Health Policy (2002)
- National HIV/AIDS Policy (2002)

However, these policies are merely directive and neither confers on any individual a right that is actionable nor the duty to hold government accountable for their performance in Nigeria. Equally too, certain rights in the Constitution are abstract and too narrow to avail protection as reproductive rights. These are as follows;

- The right to be free from discrimination: this imposes criteria which is rather onerous to establish.

- The right to dignity of the human person: it apparently does not envisage the broader issues of child labour, female genital mutilation or the concept of ‘marital rape’.

Apart from the foregoing lack of basic legal framework for reproductive rights which calls into question the relevance of government service to women, the representation of women in governance remains a major challenge. Although Obasanjo’s administration appears to have made an appreciable success in this regard, much still remains to be achieved.

In the coming two decades, gender gaps in Nigeria will evolve still in a dynamic version. Foreseeable gender inequities in the future may not necessarily feature between groups but within the same group.

CONCLUSION

In describing the future of Human Rights situation in Nigeria, some hope could be sensed, but the question to anticipate is how political leadership in Nigeria can take advantage of its new breath of democracy in gaining the confidence of its diverse and marginalized citizenry. Using a human rights-based approach in reforming all its vital systems and sectors of government remain the major strategy for positive change. Otherwise, the coming decade may only be remarkable for intense agitations and bitter protests of the marginalized with all its attendant human rights wrongs. This is a great burden which is greatly to be feared!

* Jegede Ademola Oluborode is a legal practitioner and a human rights activist in Nigeria.

**Please send comments to or comment online at www.pambazuka.org

Jegede Ademola Oluborode makes a case for human rights being a collective responsibility everywhere all the time

As an activist, one of the most pressing concerns which have agitated my mind in recent times is the way and when human rights issues evolve for national as well as international attention. Quite frequently, I have been tempted to question the agenda of these issues by asking the following: Whose issues are they? And how involving and timely is the process of defining, identifying, building consensus and designing interventions on the issues?

I am governed in this skepticism because apart from being unimpressed by the timing of human rights issues, I have been bordered by the response of political leadership to issues of widespread human rights significance and traumatized by the attention given to less significant issues being glamourised as most significant. In the many times that I have done this, I can not help but to notice that relevance has often been compromised for glamour. Indeed, more often than not, the agenda for human rights issues is dominantly the “King’s Agenda and not people oriented”! Sad enough, this trend has also found its way into the global stage.

I will make my self clearer with a story I have thought out for this purpose! For the sake of this story we will assume the existence of a Kingdom, a King and a fierce Lion. Let’s go now into the storyline!

Once upon a time, the subjects of a kingdom converged to seek the gracious audience of the King on the issue of a fierce lion which comes attacking at will, maiming lives and killing many in the kingdom. The king granted them an audience. Having listened to the concerns and comments so movingly related by the people about the strange lion, the king proceeded to ask their spokesmen “where is the Lion?” To which the entire people replied “it has fled away.” Then the King said “if the Lion has gone, then there is no trouble because “the trouble has gone.”At this stage, the king’s officials requested the people to leave the palace. Bewildered and disappointed, the people dispersed.

The Lion continued with its preying and subsequent reports on its attacks met with the same question and response of the king “where is the lion”, “if the Lion has gone, then there is no trouble because the “the trouble has gone.”

One fateful day, the king’s only son went on a royal visit to a neighbouring village. As providence would have it, the Lion came attacking once again and on that occasion, it was the one and only son of the king who fell prey to the ferocious animal. Shocked by the incident, the people’s initial challenge was how to inform the King about the tragedy as they were afraid of his possible reaction and wrath. But they summoned the courage to make the decision about informing the King.

As usual, they arrived at the palace to request the audience of the king who came out in the full regalia of a happy ruler to attend to his subjects. Now, listen to his royal majesty’s first comment “hope it is not the Lion again because you will only have one response from me which is, if the Lion has gone, then there is no trouble because the trouble has gone.” The spokesmen of the subjects said “Long live the King, you are right, it is the Lion, and it has eaten up your one and only son.” The King shouted wild in response “TROUBLE HAS COME!”

Any time political leadership, whether national or international, moves the nation or world around an issue; let’s bother to inform them that we hope it is not their “only son who has been killed”. Let us go further to ask them about how seriously the issues affect so many. Indeed, quality and positive human rights activism lies in being able to foresee issues and take steps to check them, for the fence around the hill is better than an ambulance in the valley-prevention is better than cure!

* Jegede Ademola Oluborode is a legal practitioner and a human rights activist in Nigeria.

**Please send comments to or comment online at www.pambazuka.org