An Appraisal of the Enforcement of Human Rights Under the Fundamental Rights (Enforcement Procedure) Rules 2009 in Nigeria
CHAPTER ONE
Objective of the Research
The aim of this research is to examine theFundamental Rights (Enforcement Procedure) Rules 2009 towards the enforcement of fundamental rights.The research therefore sets its objectives as follows:
- To assess the impact of the Fundamental Rights (Enforcement Procedure) Rules 2009, on the enforcement of Fundamental Human Rights in Nigeria.
- To identify problems in the implementation of the Fundamental Rights (Enforcement Procedure) Rules 2009 in Nigeria.
CHAPTER TWO
THE CONCEPT AND DEVELOPMENT OF HUMAN RIGHTS IN NIGERIA
Introduction
Human Rights are the basic guarantees which individuals enjoy simply because they are human beings. The rights are enshrined in Chapter IV and Chapter II of the constitution17as fundamental Rights and fundamental objectives and directives principles of state policy.
Human Rights today have not only become a global concern but remarkable interest aimed at protecting and promoting universal respect for and observance of human rights has eventually been shown at the international, regional and national levels. There have been contending explanations as to their scope and nature, regards being had to the contextual realities of the society in which they are sought to be enjoyed.
The present codification of human rights in the national constitution flows from the Universal Declaration of Human Rights(UDHR) 1948 which provides a firm foundation for the historical development and globalization of human Rights. The UDHR represents a bold attempt by the UN to elaborate on and give concrete and authoritative expression to the imprecise and ambivalent definition of human rights contained in the UN Charter18.Since the promulgation and adoption of the UDHR the United Nations has made its commitments to the promotion and protection of human rights around the globe. This justifies the numerous resolutions, declarations and conventions19which have been passed in the area of human rights. Human rights have become indispensable that virtually all constitutions the world over, make provisions for them in the preamble or substantive provisions. For example, the French constitution of 1958 refers in its preamble, to the 1789 Declaration of the Rights of Man and of the Citizen. The Nigerian and Indian constitutions incorporated virtually all the rights contained in UDHR20.
In the Nigerian Constitution, beginning from the post –independent, attention has always been given to the issue of human rights. Human Rights cannot be over emphasized because; it is the State, with its various institutions which is primarily responsible for guaranteeing the implementation and enforcement of these rights. While the need for the guarantee and protection of human rights in national constitutions cannot be doubted, it is important to do a critical content-analysis of these constitutional provisions with a view to seeing their real value and what gave rise to the quest for these Rights.
Meaning of Human Rights
The word “right” is derived from the Latin word rectus which means that to which a person has just, valid claim. This right may be classified into legal right, which is the liberty of acting or abstaining from acting on a specific manner, or the power of compelling a specific person to do or abstain from doing a particular thing21.The Black‟s Law Dictionary defines right as that which is proper under the law, morality or ethics, something that is due to a person by just claim, legal guarantees or legal principle.22
“Human Rights” have been defined by the United Nations “Human rights could generally be defined as those rights which are inherent in our nature and without which we cannot function as human beings”. Human rights is a process that has taken years in the history of mankind, it has been a process which has gone through many stages23.It is not certain as to how such liberties can be described as ”Human rights” in the modern sense.
The concept of human rights is one of the most profound questions that have ever tasked scholars. Discourse on the precise meaning and content of human rights has taxed the ingenuity of eminent scholars as the issue raises, more questions than answers on issues such as the Universality – relatively palaver24, as well as the ethical, moral, cultural, philosophical, legal and ideological underpinning of the subject matter. For this reason it is a prerequisite to examine the major stands in the various approaches to human rights.
CHAPTER THREE
EXAMINATION OF FUNDAMENTAL HUMAN RIGHTS ENFORCEMENT PROCEDURE
Introduction
Fundamental human rights and freedoms are inherent in all human kind and they find expression in constitutions and legal systems throughout the world and in the international human rights instruments. Fundamental human rights have been described as rights which are inalienable and guaranteed to every person; they stand above the ordinary laws of the land. These fundamental rights are embodied in chapter IV of the Nigerian Constitution 1999 and in the African Charter on Human and Peoples‟ Right. The Charter became part of Nigerian laws by virtue of the African Charter on Human and Peoples‟ Rights (application and enforcement) Act Cap A9 Laws of the Federation 2004.
In Nigeria, the process of protection and enforcement of the rights may be classified as conventional and unconventional or orthodox and unorthodox ways. The orthodox ways are provided by the law1, they are regularly adopted in seeking relief against an alleged infringement of right. These include invocation of judicial powers and the recourse to police enforcement. Mediation can be classified as an unorthodox procedure, which is a means of alternative dispute resolution, a process whereby parties request a third person to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a constructional or other legal relationship2. The resolution of disputes is by consensus and is a decision of the parties and not of the mediator, the mediator is not concerned with the issue of right and wrong, his primary interest is to assist parties in reaching amicable, acceptable settlement.
Fundamental rights are personal rights, the person entitled to benefit from such rights may decide to litigate in the event of violation of it, compromise it or abandon it. Where he decides to litigate, the 1999 Constitution, and the African Charter on Human and Peoples‟ Right3 guarantee to any person the right to seek redress in a High Court. He needs not wait for his right to be violated; likely hood of the violation gives him the right for redress. However, some of the fundamental rights guaranteed in the Constitution are not justiciable: consequently no action can be brought thereby.
The Right to Institute Human Rights Cases
With the promulgation of Fundamental Rights (Enforcement Procedure) Rules 2009, efforts to tackle human rights abuses which are prevalent in Nigeria received a boost. By paragraph 3(e) of the preamble to the Rules, the Courts are obliged to encourage and welcome public interest litigation in human right cases. In human rights litigation, the applicant may include any of the following:
- Anyone acting in his own interest;
- Anyone acting on behalf of another person;
- Anyone acting as a member of, or in the interest of a group or class of persons;
- Anyone acting in the public interest; or
- Association acting in the interest of its members or other individuals or
Other persons that can institute human right cases are human rights activists, advocates or group as well as any non-governmental organization who may institute human rights application on behalf of any potential applicant. Instead of leaving the issue of locust standi to the ideological inclination of individual judges, the 2009 Rules has abolished the doctrine in order to enhance public interest litigation in the field of human rights in Nigeria. It has been expressly stated in the rules that “no human rights case may be dismissed or struck out for want of locus standi”4.
CHAPTER FOUR
PRESENTATION, ANALYSIS AND INTERPRETATION OF
Introduction
Fundamental rights are generally regarded as those aspects of human rights which have been recognized and entrenched in the constitution of a country1. Fundamental rights are provided in chapter IV of the Constitution of the Federal republic of Nigeria 1999.they are also provided for in the African Charter on Human and Peoples‟ Rights (Ratification and Enforcement) Act2.
Where any of these rights is infringed or likely to be infringed, the victim can apply to the court to enforce his fundamental rights through the Fundamental Rights (Enforcement Procedure) Rules 20093.The Rules came into force on December 1, 20094,replacing the Fundamental Rights (Enforcement Procedure) Rules1979.The Rule came with certain modifications including the abolishment of Locus standi in the commencement of action, in the fundamental rights enforcement cases .This is to give effect and meaning to chapter IV of the Constitution and the African Charter on Human and Peoples‟ Rights . The court shall adopt a liberal approach in the interpretation and application of the Fundamental Rights (Enforcement Procedure) Rules5.The objective of this modification is to enhance public interest litigation in the field of human right. In Olatunji v Hammed6 it was held:
…courts should always endevour to treat fundamental Rights applications with dispatch, ignoring procedural regularities or deliberate obstacle designed to frustrate the hearing and give decisions if possible very soon after hearing arguments of the parties.
CHAPTER FIVE
SUMMARY, CONCLUSION AND RECOMMENDATION
Summary
Fundamental rights constitute the cornerstone of the Constitution of the Federal Republic of Nigeria. These rights are provided under Chapter IV of the 1999 Constitution and in the African Charter on Human and Peoples‟ Right. The concept of human rights is that aspect that tasks scholars on its precise meaning and content.Different scholars, like those of Natural and sociological schools, see human rights from different point of view.
Despite the guaranteed rights under the constitution and African Charter, the legislature contemplated that there could be breach of these rights. This is why the law laid down procedure for the enforcement of these rights when breached. The Fundamental Rights (Enforcement Procedure) Rules 2009 provides for the mode of enforcement.
The fundamental Rights (Enforcement Procedure) Rules 2009 replaced the fundamental Rights (Enforcement Procedure) Rules 1979, bringing new modification to enhance public interest litigations in the field of human rights.. With the Fundamental Rights (Enforcement Procedure) Rules 2009,there is improvement such as in the area of human right in the aspect of enforcement e.g the abolishment of LucusStandi and leave for enforcement. However, there are still setbacks in the Fundamental Rights (Enforcement Procedure) Rules 2009.e.g the issue of main claim and ancillary claim. The fundamental rights enshrined in Chapter IV of the Constitution are to protect the rights of individual against arbitrary violation. However, it is without gain saying that the Nigerian courts understanding of principal and ancillary distinction is capable of rendering the fundamental human rights in the Chapter meaningless.
To test whether the Rules met its objectives in order to enhance public interest litigation, field research work was taken. Questions were asked with regards to the procedure of enforcement which revealed the extent to which this objective was achieved. From the analysis of the field work, it was discovered that though the 2009 Rules brought tremendous changes e.g the abolishment of locus standi, there is need for improvement e.g the issue of jurisdiction of the National Industrial court.
In the course of this work the researcher made the following findings. .
- The review of cases shows that no consistent test is applied in determining the distinction between principal and ancillary claim. Some of the instances of the distinction cannot be explained on any ground other than that the court laboured under an improper understanding of the scope of the different rights protected by chapter IV of the constitution.
- The difficulty in correctly determining whether the claim is principal or ancillary lies in the fact that there is no stated procedure in the enforcement procedure rules as to how claims are to be couched. More importantly, there are no reliefs that are confined for fundamental human rights claim
- The provision of Order xv Rule 4 “where in the course of any human rights proceedings, any situation arises for which there is or appears to be no adequate provision in these rules, the Civil Procedure Rules of the court for the time being in force shall apply”. This has breed inconsistency in the enforcement of fundamental rights
Recommendation
It is recommended that:
- It is imperative that the Supreme Court formalizes the understanding that the distinction between principal and ancillary claim negates human rights, and hence discard this dichotomy.
- There should be Uniform High Court Civil Procedure Rules across Nigeria so as to enhance the doctrine of judicial
There is no doubt that the Fundamental Rights provided under Chapter IV of the Constitution and in the African Charter on Human and Peoples‟ Right will be breached, this is why the fundamental Rights (Enforcement Procedure )Rule 2009 is enacted to provide procedure for the enforcement of these rights when breached. For this reason the Rules being a procedure for remedy must attain the utmost objective to enhance litigation in the field of human right. Therefore there is need to improve the Rules in the areas it havelapses. Until the constitution is amended to make the provisions of chapter II justiciable, the expectation of having a Nigerian society free from human right violation will be a mirage.
REFERENCES
- AbiolaOjo,(1977),Fundamental Human Rights in Nigeria,The 1963 and 1979 constitutional Provisions
- Afolayan A.F. and Okorie P.C (2007) modern civil procedure Law, Dee-Sage, Lagos. Black‟s Law Dictionary,8th Edition
- Dalhatu M.B,(2008), What is Constitutional Law, Sacombuc, Zaria.
- Eze.O. (1988) Human Rights in Africa, Nigerian Law Publication Ltd, Lagos.
- Femi Falana,(2010), Fundamental Human Rights Enforcement in Nigeria, Legal text, Lagos
- Gye-Wado O.A,(1990), Comparative analysis of International Framework for Enforcemnet of Human Rights in Africa and Europe,2RADIC.
- Gye-Wado.O,(1999),The Role of Admissibility Under,the African Charter on Human and Peoples‟ Right,3 Radic.
- H.L.Peacock, A History of modern Europe 1889-1979,Heinmann Educational book,Hong Kong.
- Human Rights as a Problem in contemporary Africa,(1984) in Welch and Meltzer(eds),Human Rights and Development in Africa, Albany sunny press
