Public interest litigation in Nigeria: challenges and opportunities (3)

The mechanism of PIL

Having explored the dynamics and some challenges militating against PIL a little bit, it becomes fitting at this juncture to beam our searchlight on the mechanism and some opportunities connected with PIL in Nigeria. What are the underlying systems, and processes that enable us to understand how PIL works, operates, or functions which engender and encourage opportunities for the robust thriving of PIL? This is necessary in order for us to strategize on means of overcoming these challenges for a robust PIL regime. The indigent status of many of our citizens dictates the need for a pro-active mechanism to combat the forces militating against their freedom. Mass illiteracy amongst the people is hampering the agitation for the protection and observance of human rights and this is best corrected by deploying PIL as a form of public advocacy, in addition to the legal benefits.

Public-Spiritedness, Passion and Compassion:

By way of illustration, in biblical synoptic Gospels, Jesus Christ did all His works for the benefit of the beleaguered, helpless and hapless poor masses because of compassion which flowed ceaselessly from His sacrificial heart. And he admonished his followers to lay down their lives, take up their cross and follow His examples. Jesus did a bit of PIL also, when he stood in for the woman caught in adultery and was liable to be stoned to death. He took up her case and with divine wisdom and advocacy, he was able to rescue her from unjust execution. Jesus saved the souls of men from eternal damnation. In PIL, we do not save human souls from eternal damnation but we do endeavour to save them from ephemeral damnation thrust on them by both State and Non-State actors. In that connection therefore, the cardinal most fundamental attribute of any fruitful endeavour at PIL is public-spirited selflessness, passion coupled with compassion and dogged, resolute and resilient conviction to open the mouth for the fatherless, the destitute and the oppressed. This is what drove men like Gani Fewhehinmi and a host of other stars in the firmament of PIL, including yours very sincerely, to spend months and even years in unlawful incarceration courtesy of the powers that be. The goal was to crush the spirit and voice of people’s defenders which those in power feared the most, but they could not and did not succeed.

It is unfortunate that in our times, filthy lucre in our dear Naira, in Dollars and in Pounds have been stuffed inside the mouths that should speak. Many would like to drink the palm wine on behalf of the palm wine tapper but would never dare to fall from the palm tree on his behalf if need be! Let that day come back when we shall stand together shoulder to shoulder, back to back, be and give a voice to the voiceless! There is a need for all comrades and revolutionary cadres to come out from among the rot to rescue the oppressed. In the same way that we now have specialized groups within the Nigerian Bar Association, there is nothing wrong if lawyers who are involved in PIL and human rights cases come together to form a union, like Human Rights Lawyers League, etc.

Strategic Litigation:

Strategic litigation involves strategic and tactful preparation and planning out of the best possible approach applied with maximum speed and expeditiousness. It is the all-encompassing consideration of the whats, whichs, whens, whys and hows and of litigation. It involves choosing what/which battles to fight; why the fight; when to adopt what, launch which measure, contest which policy, etc. This calls for:

The usual traditional training as a legal practitioner through the regular schools up to call to bar;
Intensive and adequate pupilage under capable hands. PIL is not for the half-baked who join the bandwagon for the easy money and the fame, neither is it for the legal chicken-hearted. This is because players here are always in the eye of battle in the hottest spots of the litigious warfare. There is thus the need for a solid foundation for anyone who wishes to venture into this rather risky terrain;
Navigating the intricate maze of the pre-action considerations before instituting an action to ensure that all potential leakages and holes which the adversary may exploit are properly shut. Such pre-action considerations include indices such as:
Relevant laws;
Proper parties;
Statutory limitations;
Cause of action (and remedies);
The most suitable mode of commencement of action;
Locus standi;
Immunity;
Costs of litigation;
Venue of litigation;
Conditions precedent;
Ouster Clauses;
Viability of Alternative Dispute Resolution Mechanisms
Jurisdiction of Courts; and
Generally relative strength and weaknesses of the case.

Like the game of chess, after your deep-calculative analysis with a view to identifying and narrowing down the relevant public interest issue worthy of a legal action and arriving at a case theory, further actions are put in place by way of implementation, namely:
Conduct of legal research to determine the legal basis for the action;
Drafting of the originating processes: (Writ of Summons, Originating Summons; Originating Motions; Petitions; Charges/Informations; etc). It is important to emphasis that before them, all other pre-action correspondences and communications ought to have been exhausted;
Filing of the originating process in the appropriate court;
Service of processes;
Following the subsequent conduct of proceedings by the Court in line with the rules of Court, further exchanges of pleadings/responses to processes;
Hearing/trial of the suit;
Judgment/ruling; and
Enforcement
Appeal

Constitutionalism:

This is simply the short hand of rule by the Constitution. I must hasten to say that I speak of an ideal Constitution (not our Nigerian situation in which we have a Constitution diseased by many infirmities needing radical overhaul). The notion envisaged and being espoused here involves constitutionally systematized political practices including limitation of powers, rule of law, separation of powers, checks and balances, protection of individual rights, popular sovereignty/power to the people. Properly applied, this leads to stability and predictability; accountability, protection of minority rights and promotion of democracy. Constitutionalism consolidates and solidifies the endeavours in PIL, because it is the main pillar upon which most PIL cases rest. This is why PIL in itself must also focus on strict adherence to the Constitution and the application of the rule of law in all situations.

Continuing Training and Retraining of PIL Practitioners and Judex:

Continuing education of practitioners, judges and justices through systematic special, professional education is a sine qua non for effective operation in PIL especially in some technical areas that require specialized legal expertise. The National Human Rights Commission and the Democratic Institute should take up the major challenge of constant engagements with all relevant stakeholders in the areas of training and re-training. This is necessary to keep them up to date with latest developments in the field and to equip them to handle all the issues arising from PIL-related cases.

Reinforcement of Legal Aid and Related Schemes:

Activities of legal aid schemes such as the Legal Aid Council of Nigeria, the International Federation of Women Lawyers, etc should be supported by a combined effort of public-private partnership. In Addition, professional bodies such as the Nigerian Bar Association, the Body of Senior Advocates of Nigeria, Body of Attorneys-General of Nigeria, etc, should develop a template for the execution of PIL mandates. The experience with such State-controlled agencies such as the Office of the Public Defender, Citizens Mediation Centre, Multi-Door Court House, has been very rewarding as an alternative for the ventilation of the PIL cases. These State agencies have helped to reduce the cost of securing justice and also removed the bottlenecks, technicalities and bureaucracy associated with the regular courts. A lot of legal issues have been resolved timeously through these agencies in many cases. The lesson in this is to seek the simplest forms of ventilating PIL cases in order to achieve substantial results within a reasonable time. We may not be fixated on litigation alone but also explore all legitimate means of securing redress in any manner that is sanctioned by law.

Ebun-Olu Adegboruwa, SAN