Fundamental Human Rights provisions continue to feature very prominently in the successive Constitutions of the Federal Republic of Nigeria. There has been a rise in the activities of Human Right groups in the country, even with the advent of the democratic experiment in Nigeria. Despite these, human rights abuses have been on the on the rise in Nigeria on a daily basis.
The foundation of any genuine democracy is embedded in the rule of law, a principle that demands devotion to the spiritual and moral values, the common heritage of the people and the true source of individual freedom and political liberty. These democratic ideas are presently being assimilated into the people’s consciousness in Nigeria as the nascent democratic experiment gradually solidifies. There is increasing awareness by the citizenry of the existence of constitutionally guaranteed rights. The utility of these rights can only be attained through the process of law enforcement. It is not useful to talk of right which lies only in the realms of human imagination.
Human rights are in some circles argued as being synonymous with constitutional rights. This might be, because the general conception is that every right is enforceable in law.
In Kuti and others v. AG Federation; Oputa JSC emphasized that:
“Not every civil or legal right is fundamental right. The ideal and concept of fundamental rights both derive from the premise of the inalienable rights of man – life, liberty, and the pursuit of happiness. Emergent nations with written constitutions have enshrined in such constitution some of these basic human rights, each right that is thus considered fundamental is clearly spelt out.”
The traditional approach to human rights finds firm anchorage on natural law conceptions. Proponents of this synthesis, such as Thomas Hobbes an English philosopher suggested the existence of hypothetical social contract where a group of free individuals agree for the sake of the common good to form institution to govern themselves. They give up some liberties in exchange for protection from the sovereign. This led to John Locke’s theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean Jacques Rousseau in his “Du contract social” (the social contract).
Thomas Hobbes and John Locke construct a general scheme of rights which are common to mankind irrespective of nationality, creed or sex in line with Arnold Lien’s conception of Human Rights as:
“Universal rights or enabling qualities of human beings attaching to the human being wherever he appears, without regard to time, place, colour, sex, parentage or environment”.
These Rights are said to be inalienable with divine content and appertain to the individual. They include the right to life; right to liberty; right to property; freedom of thought, conscience and religion; freedom of expression and the press.
In Nigeria, rights that are considered fundamental to human beings are enshrined in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria.
The rights contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 in Sections 33 to 46, and the African Charter on Human and Peoples Rights are rights that are enforceable in our Courts of Law in Nigeria. These rights that are contained in Chapter IV are first generation right. They include: the Right to life – Section 33; Right to dignity of human person – Section 34; Right to personal liberty – Section 35; Right to fair hearing — Section 36; Right to private and family life, Section — 37; Right to freedom of thought, conscience and religion – Section 38; Right to freedom of expression and press — Section 39; Right to peaceful assembly and association Section 40; Right to freedom of movement Section – 41; Right to freedom from discrimination – Section 42; Right to acquire and own immoveable property anywhere in Nigeria — Section 43; Compulsory acquisition of property — Section 44; Restriction on and derogation from Fundamental Rights — Section 45; Jurisdiction of High Court and Legal Aid — Section 46; African Charter on Human and Peoples Rights which was ratified and re-enacted as municipal Law by the National Assembly on 17th of March, 1983 and came into force on the 21st of October, 1986. The Ransome-Kuti’s case against the A.G. earlier mentioned was dismissed for want of law to support it at the time.
Human Rights which are enforceable in law are those rights which are recognized by law as Fundamental Rights as distinguished from mere aspirations or individuals ideas of rights. However, rules were made pursuant to section 46 (3) of the Constitution by the past Chief Justice of Nigeria, Justice Idris Legbo Kutigi with effective date of 1st December 2009 for their enforcement.
Effort to tackle Human Rights abuses which are prevalent in the African region, especially in Nigeria received boost in 2009 with the introduction of the new Fundamental Rights (Enforcement Procedure) Rules 2009.
The new Rules, unlike the previous Rules guiding the procedure to be followed in Court in applications for the enforcement of Fundamental Rights, under Chapter IV of the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act contain some innovations that will make the processes easier for lawyers and litigants.
The new Rules unlike the previous one allow lawyers or litigants to file their brief, even if the applicant is detained. In other words, it is not necessary that the applicant shall be physically present before the Commissioner for Oaths to swear to his statement on the Affidavit. This new procedure Rule signed on 11th November, 2009 by the immediate past Chief Justice of Nigeria, C J N. Justice Idris Legbo Kutigi came into force with immediate effect. By paragraph 3(e) of the Preamble to the Rule, the courts are obliged to encourage and welcome public interest litigation in the Human Rights field and no Human Rights case may be dismissed or struck out for want of locus standi.
Thus, the following persons can institute Human Right Cases: i. Anyone acting in his own interest-individual; 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; v. Association acting in the interest of its members or other individuals or group.
Other persons that can institute human right cases are, human Rights activists, advocates or groups as well as any non- government organization who may institute Human Rights application on behalf of any potential applicant.
By the new Rules the era of inhibition on issue of locus standi is gone considering that the applicant no longer needs the leave of the court to apply for a redress for the violation of his Fundamental Rights, the cases of Anzaku V. Gov. Nassarawa State, Chukuma V. C. O. P., and Igwe V. Ezeanochie, Onah v Okenwa are good examples of a group or class of persons, Associations and individual’s enforcement of Fundamental Rights as envisaged in paragraph 3 (e) (i), (ii), (iv) and (v) of the Preamble to the enforcement rules 2009.
Challenges to Enforcement of Fundamental Human Rights
There are still some obstacles to the enforcement of Fundamental Rights even with the introduction of the new Rules. The issues of principal claim and ancillary relief is still one of the major headaches by the Applicants; illiteracy; poverty; how to determine the Court that has Jurisdiction is also a problem (e.g Court striking out or dismissing Fundamental Rights applications on ground that Fundamental Rights matters against the State Government cannot be instituted in the Federal High Courts); the Non-justiciability of the provisions of Chapter II of the 1999 Constitution of the Federal Republic of Nigeria.
These challenges which arise in the enforcement of these rights under the 1999 Constitution of the Federal Republic of Nigeria that will be addressed here – albeit briefly.
Principal Claim and Ancillary Relief
The issue of principal claim or ancillary relief is one of the major headaches by the Litigants or Applicants. The Courts have in some decided cases on Fundamental Human Rights increased restriction on the scope of the applications for the enforcement of Fundamental Human Rights Cases. Indeed, applications alleging serious Human Rights violation are routinely struck out or dismissed on the ground that they were mere ancillary reliefs.
The right of workers to belong to Trade Unions for the protection of their interest is guaranteed by the Trade Union Act, the Constitution and African Charter on Human and Peoples’ Rights. But in clear breath of such rights, Trade Union are either proscribed or derecognized by employer of labour. For some inexplicable reasons violation of the Fundamental Rights of workers to freedom of association is viewed as an ancillary relief which cannot be enforced under the Fundamental Rights (Enforcement Procedure) Rules.
Illiteracy
The inability to read and write constitutes a serious challenge to the enforcement of Fundamental Rights in Nigeria. A good number of the people in Nigeria are illiterate who cannot appreciate or understand what rights they have; this means freedom of expression have very little meaning to them. With loss of their freedom of expression goes their right to participate meaningfully in the Government.
Poverty
Poverty is also, one of the greatest challenges to the enforcement of Fundamental Rights in Nigeria especially under the present dispensation. Poverty has the following characteristics:
i. Inability for one to have the means to satisfy the necessities of life.
ii. Undernourishment or malnutrition, and
iii. Wretched and degrading shelter, shabby clothing and lack of any kind of luxury.
It is very difficult to claim that majority of our people cannot be categorized as poor, in the present setting, where people are living below poverty level of $1 per day, despite the huge resources the country is sitting on. Thus one of our eminent jurists Aguda once observed:
“……the practical actualization of most of the Fundamental Rights cannot be achieved in a Country like ours where millions are living below starvation.., in circumstances of this nature Fundamental Right provision enshrined in the Constitution are nothing but meaningless jargon to all those of our people living below or just at starvation level…”
It is very clear that the institutional frame work through which the poor can realize his Fundamental Human Right is tilted against him from the onset. Right to life is a guaranteed right under Section 33 of the 1999 Constitution of our great Country Nigeria. This presupposes as a minimum the right to food, shelter, health and education. Of what benefit is this right to life in Nigeria, when many families in Nigeria view the right to life as an empty right.
The story is the same of right to fair hearing. Right to fair hearing in the Constitution implies two important aspects, judicial independence and equality before the law; the question here is: is the Judiciary really Independent?
Right to personal liberty envisages the right not to be subjected to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification. Poverty is described by Oputa as being another modern form of slavery. Right are difficult to enforce by a poor man who cannot afford to pay summons fees let alone the services of a Counsel to prosecute the Case for him.
Aguda in the same vein observed that:
“To think that a very poor person can have a meaningful hearing in Court in the pursuit of his right real or imaginary is to live in fool’s paradise”.
The right to freedom of movement would flourish and make sense where there exist good roads, waterways and airways at costs that are affordable by all or majority of the citizens. In the context of present Nigeria, this minimum requirement seems to be conspicuously absent. A man who with his family merely exists by tilling one or two acres of land around
his tent can hardly be expected to have in contemplation the right of movement so much cherished by those who have the means to move.
The fact that there appears to be an increase in crime rate in Nigeria is itself a challenge to the enforcement of Fundamental Right. Where is right of freedom of movement, right to own property, right to personal liberty when you are not sure who will be the next to be kidnapped either by ritualist or kidnappers for ransom?
Where is the right to freedom of association when in the next minute one would be gunned down by political opponent or thrown into prison by those who are supposed to protect such rights of yours because you do not belong to the same Political Party with them?
The degree of insecurity has manifested by the recent invention of the Crime of Kidnapping “Caging” with metal rods all available opening in dwelling houses, even electricity meters outside are “caged” as well. The right to personal liberty is not enhanced when prevailing circumstances make false imprisonment a wise option.
In spite of the existence of Fundamental Human Rights provisions in our constitution, the Nigerian Police are still detaining people for long periods of time without charging them to Court for trials. A visit to the cells of special anti-fraud unit of the Nigerian Police Dugbe, Ibadan will confirm the story of Human Rights abuse by the police. The officials of the Customs and Exercise chasing smugglers at high speed on our high ways in for the seizure of banned imported items without any Warrant from Court when it was due to their inability to guard our borders that led to the presence of banned imported items in the first place. All these constitute big challenges to the realization of Fundamental Human Right by citizens.
These Fundamental Human Rights have become an issue in all jurisdictions of the world, Nigeria inclusive. Despite the enshrinement of these rights in our Constitution, and the increasing activities of human rights groups and the establishment of Human Right Commission in Nigeria, Human Right abuses are still prevalent in Nigeria.
I have tried to evaluate the provisions of Fundamental Human Right in Nigeria Constitution, and considered the extent of enforceability under the rules.
From the above it is observed that human rights are not exactly same as constitutional or fundamental rights. Fundamental rights are those aspects of human rights which are statutorily protected. Such protections have practical relevance when an individual can conveniently seek relief in a court for an infringement. But there are many obstacles to be surmounted in seeking such relief, which range from procedural rules, illiteracy, poverty or economic factors, blatant disrespect to court orders by government and its agents, the increase in the activities of militants and religious fanatics.
Until the government and its agents keep to the constitutional provisions, and until the government and its agents shun corruption and do all it takes, a civilized and just government, ought to do all for its citizens and until citizens live within the law and not the law living within the citizens, the pursuit of a society or a Nigeria free from human rights abuse will continue to be fleeting illusion. May this never happen to Nigeria!
To be able to prevent this there must be an independent, fearless and efficient Judiciary. There must be an efficient, professional and well trained police force to guarantee the security of life and property of citizens.
As a corollary to the inaccessibility of the Court, is the need to extend the jurisdiction of Magistrate Courts to include Fundamental Rights Cases, because this Court is closer to the grassroots. It is well known that Magistrate Courts, though lower than the High Court in the Judicial Hierarchy, exist in virtually every Local Government in Nigeria and are presided over by Lawyers. Legal Practitioners also appear in these Courts for the prosecution of other Cases. It is difficult to find justification for denying these Courts jurisdiction to hear Fundamental Rights Cases.
All other obstacles to the enforcement of Fundamental Human Rights as identified above must be removed so that there could be a Nigerian Society that has the lowest record of Human Rights Abuse.
Tokunbo Orimobi LP
Tokunbo Orimobi LP is a full- fledged commercial law firm with offices in Lagos, Ibadan and Abuja.
