Fundamental Rights Jurisprudence (1)

There is growing concern about the state of human rights litigation in Nigeria and the seeming eclipse of that aspect of our legal practice. The war against corruption has coloured the real intent of the human rights struggle in so far as corruption cases are wrongly lumped together with cases for the enforcement of human rights. The United Nations Charter contains detailed narration of the universal rights accorded to all mankind and this has been codified in the International Covenant on Civil and Political Rights, which is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, right to human dignity, electoral rights and right to due process and a fair trial. The African Charter on Human and Peoples Rights has also been enacted to codify these rights. In Nigeria, Chapter Four of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has domesticated these rights and conferred jurisdiction on courts for their protection and enforcement. The African Charter has also been translated into municipal legislation through the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, making them justiciable in our local courts. Let me register my bias ahead of this discourse as one who believes that Nigeria has not done much to secure the protection for and enforcement of human rights.

Generally, human rights speak of universal rights granted to every human being by virtue of his/her humanity, being intrinsic to every individual naturally, such as the right to life, freedom of expression and the like. Fundamental rights are variants of human rights that have been codified and enacted into law, thus becoming enforceable upon their violation. They are fundamental because they are recognized by law. They are specifically so described in Chapter IV of the Constitution, comprising sections 33 to 46 thereof. They are also codified in the African Charter enforcement legislation. I will however limit myself to the Fundamental Rights (Enforcement Procedure) Rules, 2009 for the purpose of this presentation, being the channel of judicial enforcement of all fundamental rights cases in Nigerian Courts. Fundamental rights are categorized as follows:

1. Section 33, Right to Life. It is the most basic of all the rights. It guarantees human life and prohibits unlawful or arbitrary execution of any citizen.
2. Section 34, Right to Dignity of Human Person. It abolishes any form of slavery, compulsory labour, all forms of torture, oppression, assault, inhuman and degrading treatment.
3. Section 35, Right to Personal liberty. It prohibits arbitrary arrest and detention except in line with a procedure permitted by law.
4. Section 36, Right to fair hearing. This is very vast, extending to matters of reasonable trial, right to counsel of one’s choice, prohibition of double jeopardy, presumption of innocence before trial, etc.
5. Section 37, Right to private and family life. This guarantees the privacy of citizens, their homes, correspondence, telephone conversations, etc.
6. Section 38, Right to freedom of thought, conscience and religion. This extends to the right to belong to and practice any religion.
7. Section 39, Right to freedom of expression and the press. It is the freedom to speak, to hold and communicate opinions and to own, establish and operate any medium for the dissemination of information, ideas and opinions such as radio, newspaper, television, etc.
8. Section 40, Right to peaceful assembly and association. It is the right to form or join any association for the protection of certain interests, including political parties.
9. Section 41, Right to freedom of movement. Every citizen is entitled to move freely throughout Nigeria and to reside in any part thereof.
10. Section 42, Right to freedom from discrimination. A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not be subjected to disabilities or restrictions to which others are not made subject.
11. Section 43, Right to acquire and own immovable property. Every citizen is free to acquire and own immovable property such as land anywhere in Nigeria.
12. Section 44, Freedom from and mode of compulsory acquisition of property. No moveable property or any interest in an immovable property shall be taken possession of compulsorily.
13. Section 45, Derogation from Fundamental Rights. Notwithstanding the above provisions, the state is entitled to make any law that may derogate from the fundamental rights granted if they are reasonably justifiable.
14. Section 46, Enforcement of Fundamental Rights. Any person who alleges that any of the provisions granting fundamental rights has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court, Federal High Court or National Industrial Court in that State for redress.

Section 46 (3) permits the Chief Justice of Nigeria to make rules with respect to the practice and procedure for the enforcement of fundamental rights in Court. Pursuant to this section, the Chief Justice of Nigeria enacted the Fundamental Rights (Enforcement Procedure) Rules, 2009, wherein the mode of enforcement of these rights has been outlined. In its preamble, the FREP Rules contain the aims and objectives of the legislation.

1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
2. Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
3. The overriding objectives of these Rules are as follows:

(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.

(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include;

Constitution of the Federal Republic of Nigeria 5 (i) The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system,

(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system,

(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.

(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.

(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights applications on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:

(i) Anyone acting in his own interest;

 (ii) Anyone acting on behalf of another person;

 (iii) Anyone acting as a member of, or in the interest of a group or class of persons;

(iv) Anyone acting in the public interest, and

 (v) Association acting in the interest of its members or other individuals or groups

(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation of human rights.

(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.

As stated above, the expectation is that cases filed for the enforcement of fundamental rights will enjoy priority over and above all other cases, especially where they relate to the life or liberty of the citizen. It used to be the case that once such a case is filed, it will be assigned to a court immediately and a hearing date assigned urgently. Given its peculiar nature, the FREP Rules make provision for the preservation of fundamental rights through ex-parte applications for the release of citizens from unlawful detention, for the production of persons in custody and for keeping matters in status quo pending the hearing and determination of the substantive application. This is important in order to avoid situations in which citizens lose their lives or liberties to the bureaucracy of the courts, given the sad example of Bello v A-G Oyo State where the appellant was executed whilst his appeal was still pending in court. I am however worried that certain decisions of our courts seem to have worked to dimmish the noble objectives of the FREP Rules.

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