HUMAN RIGHTS II – PIL 208

ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

The Enforcement of Fundamental Human Rights in Nigeria is done

pursuant to Section 45 of the 1999 Constitution. The procedural rule

that regulates human rights enforcement is known as FUNDAMENTAL

HUMAN RIGHTS ENFORCEMENT (PROCEDURE) RULES, 2009. In

accordance with Section 45, it is the High Court that has the jurisdiction

to determine issues of this nature. Also see Sections 272, 215 and 251

of the Constitution.

Due to the mill of justice grinding very slowly in Nigeria particularly in

the civil actions, the former Chief of Justice of Nigeria Hon. Fatai Atanda

Williams acting under the powers vested on him by the provisions of

the Section 42 of the 1979 Constitution promulgated the Fundamental

Rights (Enforcement) Procedure Rules. The object of the rules is to take

applications for enforcement of human rights away from the purview of

the rules and procedure of other actions which are already bedeviled

with technicalities and delays.

See the case of Olisa Agbakoba v. The Director of State Security Service

(1994) 6 NWLR(Pt. 351) at 475 where it was expressly stated that “the

end purpose of the rules is to ensure where infringement of

fundamental rights has been complained of or threatened, a speedy

enforcement of such rights and simplification of procedure for dealing

with such complaints.”

It therefore follows that when a right is infringed upon or breached; about to

be infringed upon or breached; or likely to be infringed upon or breached an

Applicant can then apply for the enforcement of the right in line with S. 46

although the judge has the discretion to grant the relief(s) sought or not.

S.46(1) provides for the jurisdiction of high courts in the enforcement of

human rights and it expressly provides that “any person who alleges that any

provision of this Chapter has been, is being or likely to be contravened in any

state in relation to him may apply to a high court in that state for redress.”

In enforcing the fundamental rights, the LEAVE OF COURT must first be

sought. Leave is at the discretion of the judge and a necessary

precondition to commence an action on fundamental human rights;

failure to obtain leave prior to commencing the action to enforce such

rights renders the suit incompetent. See the case of Registered Trustees

of Faith Tabernacle Congregation Church of Nigeria v. Ikwechegi (2000)

13 NWLR (Pt. 683) at 17.

In plethora of cases, many rights has been denied in Nigeria and the

entrenchment of human rights laws is therefore, not a guarantee for their

enjoyment. Successive military governments had assaulted human rights in a

bid to suppress oppositions and stifle dissenting views which brought into

existence, draconian decrees that rendered the rule of law impotent and also

bastardized human rights norms; regrettably, even the civilian regimes are no

difference. Successive civilian governments has not taken any pro-active

steps to reform the institutions that practices these abuses thereby, giving it

a silent tolerance which has accentuated the abusive practices taking place

all over the country.

The Chapter IV of the 1999 Constitution of Federal Republic of Nigeria

stipulates that all human beings have inalienable rights. For the

enforcement of fundamental rights, a special procedure has also been

guaranteed under the it i.e. S. 46. The Constitution therefore,

empowers anyone who alleges that the Fundamental Human Rights as

provided under Ss. 33 – 45 to which he is entitled has been, is being or

is likely to be infringed upon, contravened or violated to immediately

apply to a high court in that state for redress.

The combination of both S. 251 and the Supreme Court’s decision in

Tukur v. Court of Gongola State (1989) 4 NWLR Pt. 117 at pg. 517 was

that an action for the enforcement of fundamental rights against the

Federal Government or any of its agencies should be instituted at the

State High Court and in the area where the violation occurred. The High

Court has the original jurisdiction to hear or determine any application

made to it and the court may make orders, and give directions as it may

consider appropriate for the purpose of enforcing or securing the

enforcement within that state of any of the fundamental rights to

which the Applicant is entitled.

Take notice that the enforcement of the rights can be from the Federal

Government, State Government and individuals as held in the case of

Peterside v. I.F.B (Nig.) Ltd. (1993) 2 NWLR (Pt. 278) pg. 712.

The substantive order or relief shall be made by Motion on Notice or by

Originating Summons and there must be at least Eight (8) clear days

between the Service of the Motion or Summons and the date named

therein for hearing of the application.

Failure to observe the Rules above may lead to nullity of the entire

proceedings. See Ransome Kuti v. A. G. Federation (Suit No. FSC

79/865/95) where the Supreme Court applied the equitable principle

of ubi jus, ubi remedium (where there is a right, there is remedy). This

fact liberalises the procedure for the enforcement of Fundamental

Human Rights.

STRICT ADHERENCE TO FORMS OF ACTION

In Ogugu v. The State (1994) 9 NWLR (Pt. 366) pg. 1 at 7, the court held

that other applications for the enforcement of fundamental rights

under the common law, statutes or rules of court can be used e.g.

Common Law Prerogative Remedies like Habeas Corpus, Certiorari (an

order by a superior court to an inferior court to avail it with certain

documents or even quashing the Order of such court when found

wanting), Mandamus (to do something mandatorily), Injunction, Action

for Damages and Prohibition.

This presupposes that any other procedure apart from the procedure

under Fundamental Rights (Enforcement Procedure Rules) which

enables an aggrieved person to approach the court for the redress of

his or her violated right(s) as guaranteed under the African Charter may

be resorted to as well. See Abacha v. Fawehinmi (2000) 4 SCNJ (P. 400)

at 409, 411 – 413.

AVAILABLE REMEDIES TO AN APPLICANT

1. The Order(s) made by the inferior court may be quashed for lackof jurisdiction or found wanting in other areas by way ofCertiorari, if granted by the court.

2. Also Orders may be made for Bail, Habeas Corpus, Productionand Access to Meditation may be ordered by the superior courtto the inferior or lower court suo motu (on its ownvolition/without asking) or pursuant to the application sought forby grant the applicant. See Fawehinmi v. Abacha; Frank Kokoriv. Abacha (Suit no. FSC/L/CS/817/94).

ORDER OF COURT AND THE EFFECT OF DISOBEDIENCE

The court may give such direction as it considers appropriate and

damages may be awarded. See Shugaba’s Case (supra). However, for

specific disobedience of Court Order(s), committal proceedings may be

commenced or taken against the defaulter.

THE ENFORCEMENT OF THE FUNDAMENTAL OBJECTIVESAND DIRECTIVE PRINCIPLES OF STATE POLICY (CHAPTER II)

This is the most challenging as it is non-justiciable. By virtue of Ss. 6, 12 and

46 of the 1999 Constitution; the Human and Peoples’ Rights under the

African Charter; and the Fundamental Rights as contained in the

Constitution, they are enforceable by the various High Courts depending on

the circumstances of each case. Section 1 of the African Charter gives full

recognition and effect therefore, making it applicable under the Nigerian law.

The individual rights embodied in Cap. A9 are justiciable in Nigerian Courts; protection and remedies can be sought in the courts and once established, will be enforced.

It should be noted that the non-justiciability of the Chapter II of the 1999 CFRN has no effect on the Social, Economic and Cultural Rights under the African Charter.

ENFORCEMENT OF THE CHILD RIGHTS ACT, 2003

There is no specific procedure provided but the Claimant (the child) is entitled to bring the case in the usual prescribed form and it will be heard in court. See the case of Abacha v. Fawehinmi which held that “in the event of no specific procedure for the enforcement of jurisdiction conferred, the plaintiff is entitled to bring the case in the usual manner.”

Take notice that a child will sue by his or her mother (usually) and defended by his or her guardian ad litem.

THE STRUCTURAL DEFFECTS IN THE ENTRENCHMENT AND ENFORCEMENT OF HUMAN RIGHTS LAWS IN NIGERIA

1. The Ouster of Courts Jurisdiction as contained in Section 6(6)(c)relating to Chapter II.

2. The Immunity of Specific Office Holders e.g. President,Governors, Vice-Presidents, Deputy Governors; except civilpersons in respect of official capacity or civil and criminalproceedings in which such a person is only a nominal party.

3. Lack of Judicial Independence: Due to the appointment of judges and justices

of the Federal/Supreme Courts which are made by the President and the State

High Court Judges which are made by the Governors, it therefore makes true

justice to prevail as “he who pays the piper dictates the tune.” See Ss. 271, 276,

281, 231, 238, 250, 261, 266.

4. Disobedience to Court Orders and Judgments: It is said that the court is the last

hope of the common man; therefore, it is expected that all orders and judgments

must be treated as sacrosanct. But where they are treated with levity, disdain and

flagrant disobedience, the courts frowned upon by such and treats it as contempt.

However, since the judges and justices are selected by the powers that be, these

flagrant disobediences to the orders hold sway.