JUDICIAL PROTECTION OF HUMAN RIGHTS IN NIGERIA: PROSPECT AND CHALLENGES BEING A PAPER PRESENTED BY CHIEF OGWU JAMES ONOJA, SAN AS A GRAND HONOREE AT THE 34TH ANNUAL LAW DINNER, FACULTY OF LAW, LAGOS STATE UNIVERSITY HELD ON THE 19TH OF AUGUST 2021 AT ANCHOR EVENT PLACE, IKEJA, LAGOS STATE.
“Ultimately, it is the law that will safeguard our societies – human rights law, binding law which is the distillation of human experience, of generations of human suffering, the screams of the victims of past crimes and hate. We must guard this law passionately, and be guided by it.” ZeidRa’ad Al-Hussein – Former United Nations High Commissioner for Human Rights (2014 – 2018).
INTRODUCTION
It is important to state that the concept of human rights was not new to Africa or Nigeria prior to the adoption of the UNDHR or the African Charter. Even before the advent of colonialism, Africans had a notion of human rights which was fiercely protected e.g. right to life, right to ownership and protection of property, etc. The Colonial Administration then came with their concept of rights under common law and principle of magna carter,Also, successive Nigerian Constitutions since 1960 consistently made provisions on protection of fundamental human rights. The Willink Commission of 1956 and the 1960 and 1963 Constitutions respectively made provisions to guarantee human rights. These Constitutions however, made enforcement weak and difficult mostly due to the absence of clear and specific mode for initiating action for enforcement of fundamental rights.
Legal practitioners were using varying originating processes to litigate rights violations some of which did not address the issues of urgency in human rights litigations. In summary, human rights in the context of this discourse, are the rights that are so essential to human existence such that they have been statutory protected, recognized and enforced by the National and International laws and Conventions.
The roles of courts in the adjudication and determination of disputes pertaining to human rights violation is recognized under our common law system of justice and constitutionally defined. Section 6(6) of the 1999 Constitution generally vested Judicial powers on the courts established therein to determine all disputes between individuals, government and organisations. Specifically, the Judiciary is drawn into the resolution of rights violation vide the provision of section 46 (1) and (2) of the 1999 Constitution which give the High Court original jurisdiction to hear and determine disputes on human violations. The critical urgency in rights violation led to the struggle to ease the processes of human rights enforcement in the courts in Nigeria.https://googleads.g.doubleclick.net/pagead/ads?client=ca-pub-4141543021945955&output=html&h=280&adk=2632076043&adf=3264790055&pi=t.aa~a.2343666857~i.8~rp.4&w=730&fwrn=4&fwrnh=100&lmt=1629484240&num_ads=1&rafmt=1&armr=3&sem=mc&pwprc=3490474407&psa=0&ad_type=text_image&format=730×280&url=https%3A%2F%2Fnaijarealitynews.com%2F2021%2F08%2F20%2Fjudicial-protection-of-human-rights-in-nigeria-prospect-and-challenges-being-a-paper-presented-by-chief-ogwu-james-onoja-san-as-a-grand-honoree-at-the-34th-annual-law-dinner-faculty-of-law-lagos-s%2F&flash=0&fwr=0&pra=3&rh=183&rw=730&rpe=1&resp_fmts=3&wgl=1&fa=27&dt=1629484240854&bpp=7&bdt=3450&idt=-M&shv=r20210812&mjsv=m202108190101&ptt=9&saldr=aa&abxe=1&cookie=ID%3D2a78a1be666f1391-223c8927afc900e6%3AT%3D1629455436%3ART%3D1629455436%3AS%3DALNI_MboU_QW-A31JwCI8Ry-BzW_o0yEtA&prev_fmts=0x0&nras=2&correlator=4777564622880&frm=20&pv=1&ga_vid=491915335.1629484239&ga_sid=1629484240&ga_hid=1224540298&ga_fc=0&u_tz=-420&u_his=1&u_java=0&u_h=768&u_w=1366&u_ah=728&u_aw=1366&u_cd=24&u_nplug=3&u_nmime=4&adx=120&ady=2349&biw=1349&bih=657&scr_x=0&scr_y=788&eid=44747621%2C20211866%2C31062297&oid=3&pvsid=3507100316650951&pem=157&wsm=1&eae=0&fc=1408&brdim=0%2C0%2C0%2C0%2C1366%2C0%2C1366%2C728%2C1366%2C657&vis=1&rsz=%7C%7Cs%7C&abl=NS&fu=128&bc=31&ifi=2&uci=a!2&btvi=1&fsb=1&xpc=wBl9G4SNF8&p=https%3A//naijarealitynews.com&dtd=63
The emergence of the 1979 Constitution provided an exciting opportunity for legal practitioners to positively advance the cause of human rights litigations to address the efficiency and the required speed in rights litigation. Section 42(3) of the Constitution empowered the Chief Justice of Nigeria to make rules for the enforcement of fundamental rights enshrined under Chapter IV of the Constitution. Pursuant to the said power, in 1979, the then Chief Justice of Nigeria –Hon. Justice Fatai Williams made the Fundamental Rights (Enforcement Procedure) Rules, 1979 (FREP Rules) which took effect in October, 1979.
However, the FREP Rules 1979 had its short comings. For example, the Rules failed to address issues of jurisdiction as well as preliminary and procedural issues. The inadequacies led to varying and conflicting decisions on FREP Rules by Courts, particularly trial Courts. To address the conflicting decisions, attempts were made to codify case laws on issues such as Limitation Law, Public Officers Protection Law, Pre-Action Notices, Locus Standi etc. In other to address these issues, the Chief of Nigeria – Hon. Justice Idris Legbo Kutigi, GCON promulgated the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules 2009). Unlike the FREP Rules 1979, the FREP Rules 2009 included a preamble encapsulating preliminary areas of law that are relevant for courts’ jurisdiction in enforcement of fundamental rights thus:https://googleads.g.doubleclick.net/pagead/ads?client=ca-pub-4141543021945955&output=html&h=280&adk=2632076043&adf=1575995420&pi=t.aa~a.2343666857~i.12~rp.4&w=730&fwrn=4&fwrnh=100&lmt=1629484241&num_ads=1&rafmt=1&armr=3&sem=mc&pwprc=3490474407&psa=0&ad_type=text_image&format=730×280&url=https%3A%2F%2Fnaijarealitynews.com%2F2021%2F08%2F20%2Fjudicial-protection-of-human-rights-in-nigeria-prospect-and-challenges-being-a-paper-presented-by-chief-ogwu-james-onoja-san-as-a-grand-honoree-at-the-34th-annual-law-dinner-faculty-of-law-lagos-s%2F&flash=0&fwr=0&pra=3&rh=183&rw=730&rpe=1&resp_fmts=3&wgl=1&fa=27&dt=1629484240854&bpp=2&bdt=3450&idt=3&shv=r20210812&mjsv=m202108190101&ptt=9&saldr=aa&abxe=1&cookie=ID%3D2a78a1be666f1391-223c8927afc900e6%3AT%3D1629455436%3ART%3D1629455436%3AS%3DALNI_MboU_QW-A31JwCI8Ry-BzW_o0yEtA&prev_fmts=0x0%2C730x280&nras=3&correlator=4777564622880&frm=20&pv=1&ga_vid=491915335.1629484239&ga_sid=1629484240&ga_hid=1224540298&ga_fc=0&u_tz=-420&u_his=1&u_java=0&u_h=768&u_w=1366&u_ah=728&u_aw=1366&u_cd=24&u_nplug=3&u_nmime=4&adx=120&ady=3007&biw=1349&bih=657&scr_x=0&scr_y=788&eid=44747621%2C20211866%2C31062297&oid=3&pvsid=3507100316650951&pem=157&wsm=1&eae=0&fc=1408&brdim=0%2C0%2C0%2C0%2C1366%2C0%2C1366%2C728%2C1366%2C657&vis=1&rsz=%7C%7Cs%7C&abl=NS&fu=128&bc=31&ifi=3&uci=a!3&btvi=2&fsb=1&xpc=7ppbdbE8aT&p=https%3A//naijarealitynews.com&dtd=163
“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.”
Explaining the legal significance of the Preamble to the FREP Rules, 2009, the Court of Appeal in Aig-Imoukhuede v. Ubah, held that:
“In construing the provisions of an enactment, such as the 2009 Rules, a subsidiary legislation, the preamble to the enactment, though not a part of the enactment, can be resorted to as an aid to the construction of the enactment where there is some difficulty in arriving at the meaning of the words used in the enactment.”
Paragraph 2 of the Preamble places a burden on parties and their legal representatives to assist the court in furthering the overriding objectives of the FREP Rules, 2009 which according to paragraph 3(a) and (b)(i) and (ii) thereof, is to ensure that the provisions of the Constitution especially Chapter IV as well as the African Charter are expansively and purposely interpreted and applied in ways that advance the realization of the rights, freedoms and protection contained in them. The overriding objectives of the FREP Rules, 2009 are as follows:https://googleads.g.doubleclick.net/pagead/ads?client=ca-pub-4141543021945955&output=html&h=280&adk=2632076043&adf=1602142277&pi=t.aa~a.2343666857~i.18~rp.4&w=730&fwrn=4&fwrnh=100&lmt=1629484847&num_ads=1&rafmt=1&armr=3&sem=mc&pwprc=3490474407&psa=0&ad_type=text_image&format=730×280&url=https%3A%2F%2Fnaijarealitynews.com%2F2021%2F08%2F20%2Fjudicial-protection-of-human-rights-in-nigeria-prospect-and-challenges-being-a-paper-presented-by-chief-ogwu-james-onoja-san-as-a-grand-honoree-at-the-34th-annual-law-dinner-faculty-of-law-lagos-s%2F&flash=0&fwr=0&pra=3&rh=183&rw=730&rpe=1&resp_fmts=3&wgl=1&fa=27&dt=1629484240863&bpp=2&bdt=3459&idt=2&shv=r20210812&mjsv=m202108190101&ptt=9&saldr=aa&abxe=1&cookie=ID%3D2a78a1be666f1391-223c8927afc900e6%3AT%3D1629455436%3ART%3D1629455436%3AS%3DALNI_MboU_QW-A31JwCI8Ry-BzW_o0yEtA&prev_fmts=0x0%2C730x280%2C730x280%2C1349x657%2C1005x124&nras=6&correlator=4777564622880&frm=20&pv=1&ga_vid=491915335.1629484239&ga_sid=1629484240&ga_hid=1224540298&ga_fc=0&u_tz=-420&u_his=1&u_java=0&u_h=768&u_w=1366&u_ah=728&u_aw=1366&u_cd=24&u_nplug=3&u_nmime=4&adx=120&ady=3685&biw=1349&bih=657&scr_x=0&scr_y=1064&eid=44747621%2C20211866%2C31062297&oid=3&psts=AGkb-H-k8FFz5Qhsz10iwDVF8jIUTCRDJvUEryceeagoxIsC2PtCOBsHuexr_ZLULkn7f51cC0QyKiQtUCYqhHrb9X1E51W58JSfYNKH%2CAGkb-H8TErDFgNUlN3bl0KFpOA7W7yqzRMv8xACY80i-Q_4z65cVa0ccrONoa8SpJ5YbHZPg48PTrBoR9iIq%2CAGkb-H_y0r4AaiZlq7nJUk1CyyxsAqtVBrF8XaL3lFIH9aoVU9sFd0bnSaeWpjmJvgGBL8bWOpHlKOXF1eQ_&pvsid=3507100316650951&pem=157&wsm=1&eae=0&fc=1408&brdim=0%2C0%2C0%2C0%2C1366%2C0%2C1366%2C728%2C1366%2C657&vis=1&rsz=%7C%7Cs%7C&abl=NS&fu=128&bc=31&ifi=4&uci=a!4&btvi=4&fsb=1&xpc=jam6MX9gtl&p=https%3A//naijarealitynews.com&dtd=M
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 realizing 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 part of larger documents like Constitutions. Such bills include:
The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights systems.
The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system.https://googleads.g.doubleclick.net/pagead/ads?client=ca-pub-4141543021945955&output=html&h=280&adk=2632076043&adf=490136241&pi=t.aa~a.2343666857~i.26~rp.4&w=730&fwrn=4&fwrnh=100&lmt=1629484935&num_ads=1&rafmt=1&armr=3&sem=mc&pwprc=3490474407&psa=0&ad_type=text_image&format=730×280&url=https%3A%2F%2Fnaijarealitynews.com%2F2021%2F08%2F20%2Fjudicial-protection-of-human-rights-in-nigeria-prospect-and-challenges-being-a-paper-presented-by-chief-ogwu-james-onoja-san-as-a-grand-honoree-at-the-34th-annual-law-dinner-faculty-of-law-lagos-s%2F&flash=0&fwr=0&pra=3&rh=183&rw=730&rpe=1&resp_fmts=3&wgl=1&fa=27&dt=1629484240870&bpp=1&bdt=3470&idt=1&shv=r20210812&mjsv=m202108190101&ptt=9&saldr=aa&abxe=1&cookie=ID%3D2a78a1be666f1391-223c8927afc900e6%3AT%3D1629455436%3ART%3D1629455436%3AS%3DALNI_MboU_QW-A31JwCI8Ry-BzW_o0yEtA&prev_fmts=0x0%2C730x280%2C730x280%2C1349x657%2C1005x124%2C730x280&nras=7&correlator=4777564622880&frm=20&pv=1&ga_vid=491915335.1629484239&ga_sid=1629484240&ga_hid=1224540298&ga_fc=0&u_tz=-420&u_his=1&u_java=0&u_h=768&u_w=1366&u_ah=728&u_aw=1366&u_cd=24&u_nplug=3&u_nmime=4&adx=120&ady=4331&biw=1349&bih=609&scr_x=0&scr_y=1915&eid=44747621%2C20211866%2C31062297&oid=3&psts=AGkb-H-k8FFz5Qhsz10iwDVF8jIUTCRDJvUEryceeagoxIsC2PtCOBsHuexr_ZLULkn7f51cC0QyKiQtUCYqhHrb9X1E51W58JSfYNKH%2CAGkb-H8TErDFgNUlN3bl0KFpOA7W7yqzRMv8xACY80i-Q_4z65cVa0ccrONoa8SpJ5YbHZPg48PTrBoR9iIq%2CAGkb-H_y0r4AaiZlq7nJUk1CyyxsAqtVBrF8XaL3lFIH9aoVU9sFd0bnSaeWpjmJvgGBL8bWOpHlKOXF1eQ_%2CAGkb-H9dvfvUWgI5jqRLrknecmX70kMu_-7oxnp_WNWOfZRVu67ndfBT2CU-Dy0VCexn7NEuYce6p7abTg&pvsid=3507100316650951&pem=157&wsm=1&eae=0&fc=1408&brdim=0%2C0%2C0%2C0%2C1366%2C0%2C1366%2C728%2C1366%2C609&vis=1&rsz=%7C%7Cs%7C&abl=NS&fu=128&bc=31&ifi=5&uci=a!5&btvi=5&fsb=1&xpc=n1DwZ01psQ&p=https%3A//naijarealitynews.com&dtd=M
To a scholarly mind, there appears to be a mind agitation on the constitutionality of the power of the Chief Justice of Nigeria to make or abrogate laws in this case including African Charter on human and people’s right and Universal Declaration of Human Rights. This vexed issue was a subject of consideration by Kolawole. J (as he then was) in The Registered Trustees of Social Economic Rights and Accountability Project and 5 Others v. A.G. Federation & Anor, wherein his lordship declared the provisions of paragraph 3(a), (b) and (e) of the preamble to the FREP Rules, 2009 unconstitutional. His lordship enthused thus:
“The Chief Justice of Nigeria in exercise of a delegated power conferred on him by Section 46(3) of the Constitution, made the “Fundamental Rights (Enforcement Procedure) Rules, 2009”. Prior to the 2009 Rules, we had the “Fundamental Human Rights (Enforcement Procedure) Rights, 1979”. The Rules which the Chief Justice of Nigeria has been delegated Constitutional authority to make are rules in respect of the provisions of “this chapter”, i.e. Chapter IV of the CFRN, 1999 as amended. The question which the 2nd respondent has raised is whether the preamble to the Rules, i.e 3(a), (b) and (e) have not as it were expanded the clear provisions of Section 46(1) & (3) of the Constitution.
Let me reproduce this preamble to the …”. These provisions are in my view, a sort of philosophical underpinning meant to guide the Court in the interpretation and application of the new Fundamental Human Rights (Enforcement Procedure) Rules, 2009. They are intended to provide a guide as to the approach which the High Court, including the Federal High Court are to adopt when handling cases filed to seek the enforcement of fundamental rights. The question is whether the Fundamental Human Rights (Enforcement Procedure) Rights, 2009 have expanded the scope of the provisions in Chapter IV beyond what the drafters have clearly stipulated therein.
I have no doubt, as was argued by the 2nd respondent that when the provision of section 46(1) of the Constitution is read and construed in its ordinary or literal meaning of the words used, the intention of the drafters of the Constitution is that the Rules which the Chief Justice of Nigeria is constitutionally empowered to make “for the practice for the High Court” is intended to be for the enforcement of those fundamental rights specifically and exclusively provided for in the said Chapter IV of the Constitution. When the preamble in clause 3(b) (i) and (ii) go further to include “The African Charter on Human and Peoples’ Rights and other instruments (Including protocols) in the African regional human rights system” and “The Universal Declaration of Human Rights and other instrument … the Hon.
Chief Justice of Nigeria, by this expansion of the enforceable rights beyond the provisions in Chapter IV of the CFRN, 1999 as amended had unobtrusively effected an unconstitutional amendments of the provisions of section 46(1) & (3) of the CFRN, 1999 as amended as a delegated authority. I am of the view, with the greatest respect to the person and office of the Chief Justice of Nigeria that in so doing, it had acted ultra vires the limited mandate conferred by section 46(3) which Section 46(1) has clearly and affirmatively limited to the Provisions of this Chapter” i.e. Chapter IV of the Constitution. Likewise in respect of clause 3(e) of the Preamble to the Fundamental Human Rights (Enforcement Procedure) Rights, 2009, when one reads and construe the said provisions, it is clear that it has expanded the scope for the “Applicants” who can apply to enforce the rights guaranteed by Chapter IV of the Constitution beyond the category of person which the drafters of Section 46(1) of the CFRN, 1999 as amended has provided for.
The above decision is clearly innovative and deeply thought out. The issues raised by his lordship will bring about a paradigm shift in the enforcement of Fundamental Human Rights in Nigeria, the impact of the preamble on provisions of Section 46(1) and (3) of the CFRN, 1999 and the application and interpretation of international declarations on human rights. We follow with keen interest the decision of his lordship as it journeys to the apex Court. However, it should be noted that as at the time of preparing this paper, no appeal has been filed against the judgment.
Another area of concern is Order II of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which has provided in Rule 1 thereof that fundamental right cases shall not be affected by statutes of limitation. There appears to be an obvious lack of constitutional imprimatur for the Chief Justice of Nigeria to jettison laws on limitation of actions made by the National Assembly which are meant to be superior to Rules of Court. In my book on Fundamental Rights,I asked two basic questions on this issue:
Can the Chief Justice of Nigeria by whatever guise or pretext, acting alone in the comfort of his hallowed and majestic Chambers, in his administrative capacity, and by a stroke of his pen, make rules that will override the effect and validity of a federal statute passed by a majority National Assembly?
What is the status and hierarchy of the FREP Rules? Is it a law or just rule of Court made by the Chief Justice of Nigeria?
In the end, I concluded thus:
“The power of the Chief Justice of Nigeria to make laws for the enforcement of Fundamental Rights under Section 46(3) cannot by any stretch of imagination include the power to extend or increase the jurisdiction of Court without amendment or statutory backing of those with legislative capacity. The act of the Chief Justice of Nigeria in abrogating the provisions of the Statute of Limitation, it is respectfully submitted is unconstitutional and done without legal circumspection.”
To douse the reader’s curiosity, I still remain resolute on the above position until the proper thing is done by way of constitutional amendment.
PROSPECTS IN THE ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIA
2.1 THE CODIFICATION OF THE FREP RULES, 2009 PURSUANT TO SECTION 45(1) OF THE CONSTITUTION
2.2 As discussed earlier in relation to enforceability of fundamental rights matters in Nigeria, the Chief Justice of the Nigeria promulgated the Fundamental Rights (Enforcement Procedure) Rules, 1979 (FREP Rules of 1979) which gave way much later when Hon. Justice Idris Legbo Kutigi in his time as the Chief of Justice of Nigeria promulgated the Fundamental Rights (Enforcement Procedure) Rules, 2009 otherwise called the FREP Rules, 2009. The FREP Rules, 2009 regulates the practice and procedure of courts in relation to Fundamental Rights Proceedings. In fundamental rights proceedings therefore, the rules of court with respect to any pending matter is only resorted to where there is obvious lacuna or lack of provision in the FREP Rules. See League Management Co. Ltd & Anor V. Abubakar & Anor where the Court of Appeal held that:
“The sui genesis attribute of matter commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009 is that it is governed by specific and special Rules of Procedure, and it is not subject, except where the context so admits, to the Rules of Procedure governing other civil matters. It has nothing to do with the application of established principles of law to such a matter.”
2.3 Under the FREP Rules, proceedings are fast tracked to the disappointment of Counsel or Respondents who would want to delay proceedings with frivolous applications. One of the objectives of FREP Rules, 2019 is to encourage public interest litigations. In Ogbe V. Okonkwo & Ors, the Court of Appeal stated thus on fundamental rights litigations under the FREP Rules:
“The overriding objectives of the Fundamental Rights Enforcement Procedure Rules, 2009 was to encourage public interest litigations in the sense that it fortifies the concept and principles of locus standi in Fundamental Human Rights cases.”
ESTABLISHMENT OF THE NATIONAL HUMAN RIGHTS COMMISSION
In dealing with cases relating to the violation of basic rights in Nigeria whether at the home front, public and private institutions or elsewhere, the National Human Rights Commission was established through the enactment of the National Human Rights Commission Act to entertain complaints from individuals or groups whose rights have been violated or abused for redress. Successive Executive Secretaries who are seasoned legal practitioners have been appointed to head the National Human Rights Commission over the years where over a thousand petitions have been received annually and duly treated with appropriate sanctions meted on anyone or institution found culpable of violating the fundamental rights of another. In 2018 alone within a space of ten months, the North Central office of the Commission received 1,106 petitions. Issues of torture and abuse, whether domestic or in the public sphere are always handled with dispatch with every sense of responsibility by the Commission. Though an extra judicial measure in combating cases of human rights abuse in Nigeria, the establishment of the National Human Rights Commission is undoubtedly a boost in eradicating the scourge of human rights abuse in Nigeria.
To further empower the National Human Rights Commission in easing the pains of delay in court trials, the National Assembly promulgated National Human Rights Commission (Amendment) Act, 2010 which gives the Commission power to investigate and determine human rights violations. Section 6(1)(e) provides:
“The Commission shall have power to-
(e) make determination as to the damages or compensation payable in relation to any violation of human rights where it deems it necessary in circumstances of the case.”
The decision or recommendation by the National Human Rights Commission shall be binding and enforceable by the Federal and State High Courts. Section 22 (1) and (2) of the NHRC Act, 2010. I personally consider this law a good development in the protection of human rights in Nigeria.
4.0 THE NIGERIAN CORRECTIONAL SERVICE
4.1 With the change of name from Nigeria Prisons Service to Nigeria Correctional Service in the year, 2019 by an act of the National Assembly, there is obvious respite for inmates in detention facilities in Nigeria. The object of Criminal jurisprudence in Nigeria was radically changed from its hitherto primitive status with provisions for correctional and reformative measures.
4.2 Persons in detention are now being treated as human beings and not just mere criminals with rights to be represented and protected as distinct from the sad narrative of the past. Vocational trainings and other educational and reformative activities are being organized for inmates. Even those already sentenced to death and are awaiting execution, have rights and that continue to the point of execution. Execution must be carried out as provided by the law.
5.0 THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015
5.1 By the coming into effect of the Administration of Criminal Justice Act (ACJA), 2015, the hitherto scenario where persons accused of having committed offence are thrown into detention to languish away without trial and without any respect to their dignity and sanctity of human persons have now been curtailed. The ACJA, 2015 has ample provisions on fast track of criminal investigation and prosecution so that persons who may be found to be innocent of whatever allegation that is hanging against them may have opportunity of facing speedy trial to know their fate in deference to the presumption of innocence as constitutionally provided. Investigation and prosecution must be done timeously. Inordinate delays in prosecution are not allowed because they are capable of terminating criminal proceedings.
5.2 In a bid to accord respect to persons standing trial, the ACJA, 2015 has replaced the word “accused” with “defendant”. This is also in line with the presumption of innocence contained in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.”
5.3 The object of the ACJA, 2015 is therefore, quick dispensation of justice and respect for the rights and dignity of a defendant standing trial. This has helped in a great way in ameliorating rights violation of persons standing trial by the law enforcement officers.
5.4 In fact, the Act has provided in unequivocal terms that from the time of arrest to any other step in the course of criminal investigation and prosecution, the suspect or defendant must be given human treatment. Relations must be informed and no person should be arrested in place of another. Bail must be granted in all cases except offences attracting capital punishment unless the prosecution can prove the contrary. In capital offences, the judge has the discretion to grant bail. The power of the court to order the release of a person detained for more than 24 hours without bail.
6.0 THE POLICE ACT
6.1 The police arguably accounts for the highest number of human rights violation in Nigeria. However, the Police Act is very clear on the duties of the police which is the prevention of crime, detention of criminals, the arrest of offenders, preservation of law and order, protection of life and property and due enforcement of all laws and regulations etc. The Act has helped immensely in putting police officers to check majorly in the protection of life and property.
6.2 In October 2020, youths had taken to the streets across the country to protest serial cases of human rights violation by the Police Special Anti-Robbery Squad (SARS). In Lagos state, at the Lekki Toll Gate, the protest was reported to have turned violent and fatal. The aftermath of the protests, saw Judicial Panels of inquiry being set up by some State Governors across the country to look into petitions brought by citizens whose rights were violated by the police over the years. This exercise brought succor and hope to many victims of police brutality especially in Lagos State. These Panels of Inquiry were able to reach bold decisions and equally unveiled various acts of the police that are contrary to their job descriptions as provided for in the Police Act, using the Act as parameter vis-à-vis the Constitution and other ratified laws and conventions on Human and Peoples Rights.
7.0 PRACTICAL CHALLENGES AND LIMITATIONS TO ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIA
There are many impediments to effective and efficient enforcement of fundamental rights in Nigeria. These obstacles range from poverty, inadequate legislations, inequalities, discrimination, armed conflicts, political banditry, weak institutions, depraved cultural practices amongst others.
3.1 LIMITATION OF RIGHTS BY LEGISLATION
7.2 The power to make law is vested in the parliament pursuant to section 4 of the 1999 Constitution, which vested the legislative powers in the National Assembly of the federation. The rights guaranteed under Chapter IV of the Constitution cannot be legislated away or limited save as provided under section 45 of the 1999 Constitution which provides thus:
“ (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
in the interest of defence, public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedom of other persons.
(2) An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorize any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of section 36(8) of this Constitution.
(3) In this section, a “period of emergency” means any period during which there is in force a proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.”
7.2.1 Thus, the National Assembly pursuant to their powers under section 4 of the Constitution, can enact laws to limit the rights guaranteed pursuant to:
Section 37 – Right to private and family life;
Section 38 – Right to freedom of thought, conscience and religion;
Section 39 – Right to freedom of expression and the press;
Section 40 – Right to peaceful assembly and association; and
Section 41 – Right to freedom of movement.
7.2.2 The implication of section 45 of the Constitution is that the rights guaranteed under sections 37 to 41 can be derogated from or limited by the National Assembly in the performance of their legislative duties in the following instances:
In the interest of defence;
Public safety;
Public order;
Public morality;
Public health; and
For protecting the freedom and rights of others
7.2.3 Apart from the powers of the National Assembly to limit the rights guaranteed under sections 33 to 41 of the Constitution, the President, pursuant to section 45(3) of the Constitution can make a proclamation to restrict the rights therein in a “period of emergency” pursuant to his powers under section 305 of the Constitution which provides thus:
“(1) Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.
(2) The President shall immediately after the publication, transmit copies of official Gazette of the Government of the Federation containing the proclamation, including the details of the emergency, to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation”.
7.2.4 President Muhammadu Buhari, pursuant to his powers under section 305 of the Constitution and sections 2-4 of the Quarantine Act, issued Covid 19 Regulations, 2020. These regulations restricted the rights to freedom of movement, association etc. in certain parts of the country which was later extended to cover the whole Federation. These regulations fit into the provision of section 45(1) since they were meant to curtail the spread of the Corona virus as a measure to ensure public health and safety. It was based on the President’s proclamation imposing lockdown to curtail the spread of Corona virus aforesaid that the various heads of court in Nigeria had to issue Covid-19 Practice Directions and Guidelines for virtual sitting of Courts. These Guidelines and Practice Directions were reproduced in my book from pages 532 – 609.
7.2.5 It can therefore be seen that the limiting measures taken by the legislature in their legislative capacity under section 4 or the President by proclamation under section 305 are themselves limited under section 45(2) only to measures that are reasonably justified for the purpose of dealing with the situation that existed during the emergency. Thus, the government has not been given carte blanche powers to take measures that result in the derogation of fundamental rights. This portends that the President can only exercise his emergency power in line with the definition of emergency under the Constitution. Section 45(3) defines “period of emergency” to mean any period during which there is in force a proclamation of a state of emergency declared by the President in exercise of his powers under section 305 of the Constitution.
7.2.6 Accordingly, for a period to be categorized as a “period of emergency”, it must be so designated by a proclamation of a state of emergency declared by the President in exercise of his powers pursuant to section 305 of the Constitution.
7.2.7 On the whole, it can be seen that while the Constitution has provided limits to the enforcement of fundamental rights, the same Constitution requires that derogation from the enjoyment of these rights must be reasonably justifiable in law. This can partly be because of the obligation arising from international conventions on human rights, which the Nigerian state has ratified. Under such conventions, like the International Convention on Civil and Political Rights, Nigeria has not only undertaken not to violate human rights but is obligated to protect them.
7.2.8 Therefore, for derogation from these rights to be justified, certain requirements must be met. First is the onus of proof of the reasonability and justifiability of the derogation and this can be said to fall squarely on the State. The law must be necessary for the interest of public morality or public order etc. It must not be excessive or out of proportion or contrary to the objective which it sought to achieve.
7.2.9 Secondly, where it is proved that the derogation is committed by the defendant, which is usually an agency of the government, the onus is on such a defendant to justify the derogation. This is the reasoning of the court in plethora of decided cases. In Obiegue v. A.G. Fed, the Court of Appeal held as follows:
“In an action for the enforcement of fundamental rights, where the respondent confirms and admits a detention, the burden is on him to justify the detention. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. In the instant case, the respondents failed to justify the detention of the appellant. There was no valid excuse or justification for his arrest and detention in any respect. It was an infringement of his fundamental rights.”
7.3 DELAY IN JUSTICE ADMINISTRATION
It is common knowledge that until the bench is approached with a case for determination, there cannot be a pronouncement by the judiciary on such an issue. FREP Rules litigation must be timeously disposed of so that litigants can be encouraged to approach the courts whenever there is a violation of their Rights. Delay in the administration of Justice must be avoided at all cost.
7.3.1 One of the challenges facing the Judiciary is the issue of delay tactics being employed by lawyers especially on the opposing side with all kinds of frivolous objections and applications for adjournment. Litigation under the FREP Rules as codified is sui generis and has to be determined as quickly as possible.
7.3.2 Judges are therefore encouraged to be bold in protecting the sanctity of the court room and the rule of law by not given vent to needless or inordinate delays by lawyers who would employ all manner of quirk and stratagem to delay the hearing of Fundamental Rights cases. A Judge is the master of his court and should be jealous in the discharge of his judicial responsibilities. Often times, courts also encounter obvious disregard for their orders in Fundamental Rights Cases.
7.4 DISOBEDIENCE TO ORDER OF COURT
7.4.1 The law enforcement agencies that often constitute the Respondent in fundamental rights cases have little or no regard for the order of court. Even when orders are made either for the procurement or release of a defendant in detention or an order for compensation to be paid a party whose rights have been unjustly violated, we have seen in the past flagrant disobedience to such orders by the law enforcement agencies. These kinds of attitude discourage not just the litigants but the Judges themselves whose orders are being ruthlessly and impudently disobeyed without consequences. Order XIV gives the court the power to impose sanctions for contempt. This is necessary in order for the court to protect itself from the abuse of its powers and to uphold the dignity and majesty of the court. In FRN V. Akubueze (2010), the Supreme Court held thus:
“…The rationale for contempt is the need to vindicate the dignity of the court as an institution and, thereby, protect it from denigration and ensure due administration of justice. It is not to boaster the power, dignity and ego of the Judges as an individual”.
7.4.2 Order XIV of the FREP Rules is a codification of one of the inherent powers of a court of law. The Court has inherent powers to deal with and punish for contempt of its orders. In Oguegbo V. PDP (2016) the Supreme Court held that:
“A court of law has the jurisdiction to protect its own judgment from being ridiculed or disparaged …, any disobedience to court’s order is a serious contempt and courts of law must protect themselves from being maligned and/or ridiculed”.
7.4.3 It is therefore advised that our courts and indeed judges manning the courts should peremptorily and without delay invoke their powers to punish for contempt under the rules in deserving situations.
7.5 CONGESTION OF COURTS
7.5.1 One of the impediments to smooth and effective adjudication of fundamental rights cases is congestion of courts. Due to the exponential growth in the population of Nigeria coupled with the lack of basic infrastructure and amenities, human rights abuses occur unchecked. The cases that come to court are lumped with other cases in court. This is because there are no special courts designated to handle fundamental rights cases. Judges are often given assignments outside their courtroom and judicial divisions. Assignment such as election petitions, may take six months or more and during this period, other cases in court may not be duly attended to. Due to this challenge, cases that are meant to be expeditiously attended to and dispensed with are treated otherwise. This leaves persons in some cases continually incarcerated while others are victimized without a remedy. It is imperative that more courts and especially, special courts are created to treat fundamental rights cases as sui genesis envisaged by the FREP Rules. The National Assembly and stakeholders in the justice reform sector have a handy role to play in this.
7.6 ENFORCEMENT OF MONETARY JUDMENTS
7.6.1 Victims of human right abuse are often compensated with monetary judgments. Agencies that perpetuate unjust violations of basic human rights are agents of the state; the culpability of their actions therefore vicariously lies on the state. Now under the Sheriffs and Civil Process Act, the consent of the Attorney General must be first sought and obtained before proceeding against the state to enforce monetary judgment. This Provision of the law poses a great danger in the execution of monetary judgment against public officers. It is like one going down to kneel before the opponent after beating him in a bout to say, “please give me my trophy”. Where is it done? But this is the position of the Attorney General in this instance and the power conferred thereon by the Act.
7.6.2 In my book, this is what I had to say on this disturbing issue;
“It is submitted that the post judgment powers conferred on an Attorney General by Section 84 of the SCPA Smacks of making the office of Attorney General superior to that of the courts. That is to say, it is like that of an appellate court. Secondly, it seeks of seeking consent of an adversary, which certainly will be withheld.
Thirdly, it amounts to elevating the Sheriffs and Civil Process Act over and above the constitution of the Federal Republic of Nigeria. This is so because the various decisions of the courts on the applicability of Section 84 under reference is without regard to the clear and unambiguous provisions of Sections (1) (3) and 287(3) of the constitution…
In view of the above submission, the Supreme Court and all the superior courts of record are hereby called upon to declare the provision of Section 84 of the SCPA unconstitutional, null and void for being in conflict with and inconsistent with the provision of the constitution”
7.7 POVERTY, LACK OF ORIENTATION OR LACK OF
ACCESS TO BASIC LEGAL SERVICES:
7.7.1 The prevalent rate of joblessness and poverty in the land where a large percentage of Nigerians cannot boast of two square meals a day is no news. Majority sleep on their rights and do not bother to seek redress because of the cost of litigation and lack of access to basic legal services.
Orientation on the part of some persons is non-existent as far as matters of fundamental rights and their enforcement are concerned. In some cases, it is suppression and prevention of victims from speaking up either because of stigma or threat to their lives. Persons mostly affected in this regard are victims of rape and children often molested. Others are persons who do not even know their rights such as the uninformed and illiterates and persons that are ostensibly cut off from reality such as the mentally impaired.
7.8 MILITARY INTERVENTION AND ADMINISTRATION IN NIGERIA
7.8.1 Nigeria like most of the African and third world countries had had its share of military coups and interventions resulting in prolonged military governance. Most of these interventions were characterized with the suspension of some parts or all the provisions of the constitution which normally include the fundamental rights of the citizens and ousting the powers of the courts to entertain fundamental right cases. Military rules are characterized by arbitrary detention, restriction on freedom of speech, interrogation by torture etc. Also, the use of military in the performance of police and civil duties are responsible for many rights violations.
7.9 RELIGIOUS AND CULTURAL PRACTICES
Most of the rights violations occur in many of our faith based organisations in Nigeria and in our homes and villages under the pretext of religious, traditional and cultural practices. This is particularly a very sensitive area which usually attracts mixed feeling and opinions. The judiciary has risen up to occasion in striking down some of the cultural practices and customs as repugnant law to natural justice and public policy. The womenfolk and children are particularly endangered in Nigeria when it comes to right to property, freedom of thought etc. Recently the Supreme Court gave judgment against a couple who refused blood transfusion for their child on religious grounds.
7.10 POOR DETENTION FACILITIES
7.10.1 Another challenge facing the enforcement of fundamental human rights in Nigeria is poor detention facilities at the Police and Correctional Service. Lack of adequate facilities and proper hygienic and sanitary environment often times lead to challenging ailments in detention centres.
7.10.2 Malnutrition is another area of concern in detention centers as budgetary allocations to feed inmates are either siphoned or diverted into private pockets. It is even more appalling what detainees go through in police detention cells; it is so dehumanizing to say the least.
7.11 LACK OF PROPER TRAINING FOR THE LAW ENFORCEMENT AGENTS
7.11.1 Another scourge militating against the prevention of human rights abuse is that personnel and officers of the law enforcement agencies are not properly trained on the nature and scope of their works leading to flagrant violation of people’s rights and they often than not get away with this. The police force is the worst of them all. Citizens that are meant to be protected and for which reason the police force and other law enforcement agencies were created and had their officers employed and saved from the mercy of hunger, idleness and joblessness are now being ironically victimized. Innocent people have been killed due to gross negligence of law enforcement agents as a result of lack of proper training on basic issues such as rules of engagement in the face of argument or protests. What was shamefully dramatized last year October at the Lekki Toll gate during the end SARS protest is still fresh in our memory and we do not pray to see the like of such morbidity ever again.
7.11.2 Often times, we have seen the security agencies fighting themselves in a show of shame due to lack of training when they are all working or supposed to be working for the state and for a common goal. Sadly, deaths often occur from this kind of needless Fisticuffs.
8.0 THE WAY FORWARD IN THE PROTECTION OF HUMAN RIGHTS
PUBLIC INTEREST LITIGATION
8.1.2 Encouragement of Public Interest Litigation is without doubt the way forward in judicial protection of Human rights in Nigeria. Public Interest Litigation will help advance the frontiers of human rights in Nigeria. The Black’s Law Dictionary defines Public Interest Litigation as a legal action initiated in Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Public interest litigation will empower Nigerian Judges to instigate changes in our society. This will give judicial activism more chance to foster and address diverse shortcomings in the protection of human rights in Nigeria.
8.1.3 The backbone of any true democracy is Public Interest Litigation and a big motivation for the judiciary, to effect change and truly be the last hope of the common man. Judges must be courageous and follow in the footstep of the great Lord Denning. Judges must not be afraid to change the narratives in civil rights, expanding the frontiers of human rights and bringing about a sharp paradigm shift. A judge must be courageous enough to deliver a minority judgment knowing well that with time it can become the majority judgment.
8.1.4 I am not unaware of the impediment of the concept of locus standi in the growth and development of Public Interest Litigation but this too can only be solved with even more cases bothering on the interest of the public. A short history of the development of locus standi in Nigeria will show that every time the scope of the concept was expanded, it was in relation to public interest litigation. For example in IGP v. ANPP, the Court of Appeal held that Nigerians have the fundamental right to hold rallies without police permit(s) as obtaining a permit to protest contravenes the fundamental human rights guaranteed by the Constitution. In reaching its decision, the Court stated that:
“… a rally or placard carrying demonstration has become a way of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of government in civilized countries… it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally.”
8.1.5 Public Interest litigation will therefore help in expanding the scope of the concept of locus standi.
8.1.6 Following closely to the above recommendation is the need for the judiciary to always tend towards a broader interpretation of our constitutional provisions wherever possible as stated by Udo Udoma, JSC in Nafiu Rabiu V. The State as follows:
“The function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our several communities must involve, and therefore mere technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or narrower sense, in my view, this court should whenever possible and in response to the demands of justice lean towards the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the object and purpose of the Constitution.”
9.0 QUICK DISPENSATION OF JUSTICE IN FUNDAMENTAL RIGHTS CASES
9.0.1 Fundamental Rights cases should be treated as special cases as intended by the Rules. Room should not be given to occasion delay by whatever means and undue applications from the respondents with the aim of either truncating the hearing or cause delay entirely should be avoided. My Lord, the Honourable Chief Justice of Nigeria in his foreword to my book on the need to treat fundamental rights cases with speed admonished thus:
“There is a gripping demonstration in this book of zero tolerance for delays in the fundamental rights proceedings. This is to obviate the court and indeed judges whether consciously or unconsciously from indulging respondents in most cases who will be looking for all forms of quirk and stratagem to delay proceedings to the detriment of applicants who might be locked up in prison or subjected to one dehumanizing condition or the other. Time therefore is of the essence in fundamental rights proceedings.”
10.0 CEASELESS JUDICIAL INTERVENTION
10.1 It is crystal clear from the foregoing, that the prospects of Judicial Intervention in furthering the course of human rights in Nigeria is quite enormous. For cases of human rights violations in Nigeria that have come to our various courts for judicial pronouncements, even handed decisions have often been given and the courage and boldness exhibited by the judiciary in delivering judgment without fear or favour deserve serious commendation. The judiciary as a vital organ of government charged with interpretation of law has a major role to play in reshaping our society and entrenchment of the rule of law. The Judges in handling a few of the privileged Fundamental Rights cases that come before them must demonstrate tactfulness and uncommon courage. This is because, whatever happens and on any issue of fundamental rights violation no matter how bizarre, the society awaits the decision of courts as a measure of discouraging extra-judicial intervention of any kind.
10.2 The pronouncement of courts ultimately constitutes the compass and encouragement for an aggrieved person(s) to seek enforcement of his rights in the first place. It is in this light, that the American jurist Oliver Wendell Holmes J., defined law as that made by Judges thus:
“The prophecy of what the court can do and nothing more pretentious is what I mean by Law”.
10.3 In other words, whatever the courts pronounce is the law and that is it. The law made by the National Assembly may become a mere abstract document until it is subjected to some form of judicial interpretation. So the powers of the court in this all important aspect of human endeavour cannot be over-emphasized.
11.0 INCREASED ACCESS TO JUSTICE AT ALL LEVELS OF THE SOCIETY
There is a compelling urgency to amend laws and rules of judicial engagements in Nigeria to allow the indigents who are ordinarily the victims of right violation to access the courts. This can be in the form of reduced filing fees and charges for instituting human rights cases and increased availability of probono services by Legal Aid Council and offices of Public Defenders across the country.
11.1 It is worthy to note that violation of fundamental rights is a daily occurrence in every community in Nigeria, in villages and organisations far away from the prying eyes of the law and institutions saddled with the responsibility to bring violators to account. The court with jurisdiction to handle rights violation is the Federal or State high Courts. These courts are normally situated in cities and urban areas far from the major theaters of right violations. It is my humble suggestion that section 46(1) and (2) of the 1999 Constitution be amended to give the Magistrate and Upper Area Courts the vires to enforce fundamental rights. These lower courts now manned by Legal Practitioners, are nearer to the grassroots and accessible to the majority of Nigerians as they are situated in communities.
11.2 It is my further suggestion that policy and law makers should consider laws that will allow the use of arbitration and mediation, with all their benefits, to resolve human rights cases especially in the determination of quantum of damages payable and where there is no issue of liberty and threat to life. Most of the High and Appellate Courts in Nigeria have included Arbitral Proceedings and Centers in their Rules and it is just and expedient to take advantage of these provisions and institutions to address human rights cases. This is important because of the delayed trials and lengthy period of trials and appeals from High Court to Supreme Court where in some instances, the victim never live to take benefits of compensation awarded by courts.
11.3 It is my opinion that Lawyers and litigants take the enormous opportunity presented by Sections 6(1)(e) and 22(1)and(2) of the National Human Rights Commission (Amendment) Act, 2010 to expediently bring right violators to account without the frustration of delayed court proceedings and technicalities.
11.4 As I end this paper, I admonish Magistrates and Judges of the Nigerian Judiciary to utilize every chance they get to protect the fundamental human rights of Nigerian citizens and I do hope these words of the great jurist – Justice Thurgood Marshall will guide and encourage them:
“You do what you think is right and let the law catch up.”