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AN APPRAISAL OF THE ENFORCEMENT OF HUMAN RIGHTS UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 IN NIGERIA
TABLE OF CONTENTS
Title Page…………………………………………………………………………………… i
Declaration…………………………………………………………………… ………… ii
Certification…………………………………………………………………………….. iii Acknowledgment…………………………………………………………………………. iv Dedication…………………………………………………………………………………. v Table of Contents……………………………………………………………………….… vi List of Appendices……………………………………………………………………..….. ix List of Statues………………………………………………………………………..…… x List of Cases……………………………………………………………………………..… xi Abbreviations…………………………………………………………………………..….. xiv Abstract………………………………………………………………………………..….. xv
CHAPTER ONE
1.0 GENERAL INTRODUCTION…………………………………………………….1
1.1 Background to the Study……………………………………………………………..1
1.2 Statement of the Research Problem…………………………………………………2 1.3 Aim and Objectives ……………………………………………………….…………3 1.4 Scope of the Research………………………………………………….…………….4 1.5 Research Methodology………………………………………………….……………4
1.6 Literature Review………………………………………………………….………….4
1.7 Justification of the Research……………………………………….…………………7 1.8 Organizational Layout…………………………………………………….…………..7
CHAPTER TWO:
2.0 CONCEPT OF FUNDAMENTAL RIGHTS, HUMAN RIGHTS AND
CONSTITUTIONAL RIGHT………………………………………………………… 9
2.1 Introduction….……………………………………………………………………………9 2.2 Meaning of Human Rights……………………………………………………………….10
- The Concept of Fundamental Rights, Human Rights and Constitutional Rights Distinguished…………………………………………………………………………….13
- History of Fundamental Human Rights in Nigeria…………………………..…………14
- Nature of Constitutional Provisions……………………….…………………………….. 22
- The Nature of Fundamental Rights………………………………………………………27
CHAPTER THREE
3.0 EXAMINATION OF THE PROCEDURE FOR THE ENFORCEMENT OF
FUNDAMENTAL HUMAN RIGHTS IN NIGERIA…………………………………30
3.1 Introduction ……………………………………………………………… ……………..30
- Individual and Institutional Frame work for the Enforcement of Fundamental Human Rights…………………………………………………………………………………….31
- Justiciability or otherwise of the Fundamental Human Rights under the Constitution………………………………………………………………………………33
3.4 Cause of Action…………………………………………….…………… ………………37 3.5 Jurisdiction of Courts………………………………………………….…………………42 3.6 Procedure for enforcement………………………………………………………………46
- Action Commenced by Originating Summons………………………………………….48
- The Grounds for Seeking Reliefs………………………………………………………..51
3.5.3 Applicant‟s written Address and Respondent‟s Written Address
……………………………………………………………………………………………52
CHAPTER FOUR
4.0 PROBLEMS AND PROSPECTS OF THE FUNDAMENTAL HUMAN RIGHTS
ENFORCEMENT PROCESS IN NIGERIA…………………………………………..54
4.1 Introduction………………………………………………………………………………54
4.2 Instrument………………………………………………………………………………..55
4.3 Sample and Sampling Techniques……..……………………………………………….55 4.4 Statistical Tool for Analysis of Data..………………………………….……. ………… 56
4.5 Reliability and Validity of Instrument…………………………………………………56 4.6 Method of Data Analysis……………………………………………………………….56
4.7 Data Presentation and Analysis………………………………………………………..56 4.8 Test of Proposition……………………………………………………………………..57
CHAPTER FIVE
5.0SUMMARY, CONCLUSION AND RECOMMENDATIONS…………………………109
5.1 Summary of findings …………………………………………………………..… ……109 5.3 Recommendations………………………………………………………………………111
Bibliography……………………………………………………………………………112 Appendix A…………….………………………………………….……………………116
LIST OF APPENDICES
Appendix A
Questionnaire
TABLE OF STATUES
African Charter on Human and Peoples‟ Right Ratification and Enforcement Act Cap A9 LFN 2004…………………………………………………………………………………………..23
,24,29,32,33,39,42,46,51,52
Constitution of the Federal Republic of Nigeria (alteration………..………23,27,29,30,32,37,44,
46,52,72,87,88,91,100,101,
Freedom of Information Act 2011……………………………………………………………….24 Fundamental Rights (Enforcement Procedure 2009…………………2,7,30,33,42,45,46,47,48,49,
54,56,70,74,76,79,80,90,95,107
TABLE OF CASES
AZUH v UBA…………………………………………………………………….…….…….….48 Abacha v Fawehinmi (2000) 6 NWLR (pt. 660)…………………………………………..….…39
Abbas Ali v Director State Security Services & ors Unreported suit NO FHC/ABJ/CS/112/2014………………………………………………..…………………….…103
Abdulhamid v Akar(2006 ) All FWLR (pt 321) 1191………………………..…………………………………..69,87 Abubakar Tatarri Ali Polytechnic v Ali (2005)All FWLR(pt 284)….………………………89,92 Adamu v. Borno State (1996)8 NWLR 203………………………….……………………..…..34 Adinuso v Omeire(2006 )ALL FWLR(pt 310)………………………………………………..…91 Akintola v Vice Chancellor Unilorin2005] ALL FWLR [pt 259]………………………….……93 Akobiyi Tochukwu v Chinonso & Ors KDH/Z/90/2011 (unreported)………………..…………45
Alhaji MohammedSha‟aba Lafiaji vs Military Administrator of Kwara State (1995) FHCLR 321………………………………………………………………………………….……..….43,69
Anigboro v Sea Truck Ltd (1997) 8 NWLR (PT 415)…………………………..……………. 41
Attorney-General of Ondo State vs. Attorney General of the federation 35ors…..………..….27 Chief Francis Igwe & Ors v. Mr. Goddy Eze Anochu & ors (2010) 7 NWLR pt
1192……………………………………………………………………………………….……..1
Chikwendu v Mbamali(1980)3-4 SC 31…………………………………………………….….94 Doherty v. Doherty (1968) NMLR 242……………………..………………………….………45 Dongtoe v Civil service commission, Plateau State(2001)9NWLR(PT 717)…………….…….91 Ebe v Nnamani (1997) 7 NWLR (pt 513)……………………………………………..………..94
Economic and Financial Crimes Commission v Ekeocha (2008) 4 NWLR (pt.1106) 161 ……46 Edet v. Essien(1932) 11 NLR,47……………………………………………………..…….…..14
Effiong v. Ebong (2007) 28 WRN 71……………………………………………….…….……44 Egbe v Belgore (2002) 8 NWLR (pt.285)………………………………………………….….38 Fawehinmi v The President (2004)23 WRN PT 65………………………………………….…77
FBN PLC & Ors V Attorney General of the Federation & Ors (2013) LPELR- 20152(CA)………………………………………………………………………………..…37,91
Governor of Kogi State v Mohammed(2009)13NWLR(PT.1169) (2003) 21 WRN 135 Governor of Kogi …………………………………………………………………………….……..…..….45
Igwe v Ezeanoche( 2010) 7 NWLR PT. 1192 ………………………………….……….……40,50 Isuama v. Governor of Ebonyi State (2007) 20 WRN 170…………………..…………..…39,51 Jack v University of Agriculture, Makurdi [2004] 5NWLR, PT 865………..……………..39,32 Keyamo v Lagos State House of Assembly (2003) 21 WRN 135………………………..…….45 Minister of Internal Affairs v Shugaba 1982,3NCLR…………………………………………..2 Military governor of lagos State vChiefOjukwu(1936)4NWLR(Pt18)…………………………48
Muoyo v Fidelity Bank Plc(2009) 14 WNR 75………………………………………………….49 National Union of Teachers v. Conference of Secondary School Tutors of Nigeria (2007) 23 WNR 63…………………………………………………………………………………………44
National Union of Teachers v. Conference of Secondary School Tutors of Nigeria2007) 23 WNR 63……………………………………………………………………………………….……….44
Nemi v the State (1994) 10 SCNJ 1……………………………….……………………….…..44 Nigerian Social Insurance Trust Fund Management Board v Adebiyi, 1999, 13 NWLR pt 633..31 Nwankwo v Ononize-Madu(2009) 1NWLR(pt 1123)…………………………………..……..77
Odoemenam & Ors vs Attoney General of the Federation & ors (1989) FACLR ……….……46 Ogugua v State(1994) 9 NWLR pt 366…………………………………………..……….……70
Ohakosin v Commissioner of Police, Imo State(2009) 15 NWLR pt. 1164..……………….…53 Oladekoyi v. I.G.P(2011) 16 NWLR pt.11273 …………………………………………………44 Olatunji v Hammed(2009)49WRN 46…………………………………………………………..54 Olawoyin v Obafemi Awolowo University(2004) 2 FHCLR 166…………………..………….40 Olisa Agbakoba vs Director, State Security Service(1994) 6 NWLR (pt.351)………………47,49 Olufemi Adegboyega vs Nigerian Air force (unreported) Suit No. FHC/L/CS/99……….……..46
Owena Bank (Nig) Plc v Punjab National Bank (2000) 5 NWLR pt. 658…………………………………………………………………………………………… .. 50
Peterside v IMB (Nig) Ltd(2000) 6 NWLR (pt 278)…………………………………..……….87 Raymond Dangtoe v. Civil Service Commission of Plateau state(2001) 19 WRN 125……….40
S. O. Adedeji v. Police Service Commission(1967)ALL NLR 72…………………..…………41
Shell Petroleum Development Corporation v H.B. Fisherman (2002) 4 NWLR pt.758…………………………………………………………………………………………49,50
socio-economic rights and accountability project ( SERAP) v Federal Government of Nigeria(Unreported) suit No, ECW/CCJ/APP/08/08………………………………..……….….79
Tofi vs Uba(1987) 3 NWLR (pt. 62)……………………………………………..………………43 Trust Fund vAdebiyi(1999) 13 NWLR 9 (pt 633)……………………………..…………….1,40 Tukur v Gongola State( 1989)4NWLR (PT 117 )……………………………………..……….40 Tukur vGovernmentofTaraba(1997)6NWLR(Pt.510)pg.549………………………………..…93
LIST OF ABBREVIATIONS
| ASN1 | Assistant Superintendent of Narcotic |
| CA | Court of Appeal |
| CAP | Chapter |
| CSN | Chief Superintendent of Narcotic |
| DSN | Deputy Superintendent of Narcotic |
| FHC | Federal High Court |
| FHC | Federal High Court |
| FHCLR | Federal High Court Law Report |
| FREPR | Fundamental Rights (Enforcement Procedure) Rules 2009 |
| FWLR | All Federation Weekly Law Report |
| L.F.N | Laws of the Nigeria |
| LPELR | Law Pavelion Electronic Law Report |
| NA | Nigerian Army |
| NIPSS | National institute of Policy and Strategic Studies |
| NWLR | Nigeria Weekly Law Report |
| RADIC | Rapidly Deployable Integrated command and Control |
| SCNJ | Supreme Court of Nigeria Judgment |
| SNA | Senior Narcotic Agent |
| UNESCO | United Nations Educational scientific and cultural organization |
| WLR FCT | Weekly Law Report Federal Capital Territory |
ABSTRACT
The Constitution of the Federal Republic of Nigeria 1999 chose certain rights to protect under chapter IV and termed them as Fundamental Rights. These rights are chosen to be protected not only by the Constitution, but also by the African Charter on Human and Peoples „Right. Whenever there are breaches of these fundamental rights, the law provides a procedure for their enforcement, which is the Fundamental Rights (Enforcement Procedure) Rules 2009. The basic objective of the 2009 Rules is to facilitate enforcement procedure by removing some of the impediments in 1979 rule. Unfortunately it is clear that the procedure for enforcement of Fundamental Rights is still bedeviled by delay. Many applications alleging serious human rights violations are routinely struck out or dismissed. However, the pertinent question is: to what extent are the human rights provision in these legal instruments realized or enforced? It is worthy of note that there are equally other important impediments in the realization of the objective of Fundamental Rights (Enforcement Procedure) Rules 2009, such as the distinction between main claim and ancillary claim in the Nigerian fundamental rights, because litigants are cautious of whether or not their claim will succeed because of this distinction. This research examines the problem of delay associated with the Fundamental Rights (Enforcement Procedure) Rules 2009 This dissertation made an in depth analysis of the rules and considered to what extent it achieved its objective in order to enhance a robust human right regime. To achieve a close –to- accurate‟ if not accurate result, the research embarked on a field work. To this end, both doctrinal and empirical method of research is used. This research found out that the Fundamental Rights (Enforcement Procedure) Rules 2009, though has brought tremendous changes in the field of human rights protection (e.g the abolishment of locus standi and leave, is still faced with some major setback like the issue of principal and ancillary claim in the enforcement of fundamental rights and the jurisdiction of the National Industrial Court which is not clear in the rule. The work recommend that Courts should do away with the dichotomy between principal and ancillary and the definition of courts in the Rule should include the National Industrial Court.
CHAPTER ONE
- GENERAL INTRODUCTION
- Background to the Study
Fundamental Rights are rights derived from natural or fundamental or constitutional law1. They are rights which remain in the realm of domestic law, which are recognized, entrenched and guaranteed in the constitution of a country or any other legal instrument such as the African Charter on Human and People‟s Rights. Fundamental Human Rights are also described as rights which are inalienable and guaranteed to every person.
The Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples‟ Right guarantee fundamental human rights. These Fundamental Human Rights are not privileges in the sense that they could be withdrawn at the whims and caprices of the government of the day. They are rights which the executive and legislature are enjoined to respect and the judiciary to protect. However, there are instances where these guaranteed rights are violated either by the law enforcement agents or in quasi-judicial proceedings2
Furthermore, where there are breaches of these rights, the appropriate means to secure the enforcement of the victims‟ fundamental right is paramount. It is against this background that the Fundamental Rights (Enforcement Procedure) Rules was enacted. On 29th May, 1999, a new
constitution came into being. Some judicial opinions3 were of the view that the Fundamental
Rights ( Enforcement Procedure ) Rules1979 was dead pursuant to section 42(3) which provides who to make rules for the practice and procedure for the High court towards the enforcement of the provision of Chapter IV. For effective enforcement of the rights guaranteed under the 1999
Constitution, the 2009 Fundamental Rights (Enforcement Procedure) Rules was enacted, It was signed In November 11,2009 by the then Chief Justice IdrisLegboKutigi and came into force with immediate effect replacing the Fundamental Rights (Enforcement Procedure)Rules 1979.
The purpose of the Fundamental Rights (Enforcement Procedure) Rules is to facilitate the enforcement of fundamental rights4. The Rules provide for redress where there is a violation or even apprehension of likely violation of these rights5. The fundamental rights are provided in Chapter IV of the 1999 Constitution and Chapter 1 of the African Charter on Human and
Peoples‟ Rights. Where the violation has occasioned injury which could be compensated in financial terms, courts are duty bound to make orders of reparation in monetary terms if applied for and proved.
1.3 Statement of the Research Problem.
The Fundamental Right (Enforcement Procedure) Rules, 2009 is a new Rule made to replace the Fundamental Rights (Enforcement Procedure) Rules 1979. The basic objective of the 2009 Rules is to facilitate enforcement procedure by removing some of the impediments in 1979 rule which causes delay in enforcement of fundamental rights. Unfortunately it is clear that the procedure for enforcement of Fundamental Rights is still bedeviled by these impediments such as the distinction between principal and ancillary claim. Many applications alleging serious human rights violations are routinely struck out or dismissed6because of the impediments.
However, the pertinent question is: to what extent are the human rights provision in these legal instruments realized or enforced? It is worthy of note that there are equally other important
impediments in the realization of the objective of Fundamental Rights (Enforcement Procedure) Rules 2009, such as the distinction between main claim and ancillary claim in the Nigerian fundamental rights, because litigants are cautious of whether or not their claim will succeed because of this distinction.
The third problem is with respect to Order IV rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, the section provides.“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”. There is no uniform high court civil procedure rules in Nigeria, For example, an applicant brought an application under the High Court Civil Procedure Rules of Kano State with regards to a matter not covered by the Fundamental Rights (Enforcement Procedure) Rules 2009, and the application was granted. The question is, can a different applicant with the same subject matter bring same application in Kaduna State relying on the previous precedent in Kano? This will be in the negative because both cases where decide on a different principle of law, except where the Kano and Kaduna State High Court Civil Procedure Rules make the same provisions in respect of the same subject matter.
1.4 Aim and 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.
1.5 Scope of the Research
The scope of the research covers the application of the Fundamental Rights (Enforcement Procedure) Rules, in Nigerian courts.
1.6 Research Methodology
The research employs doctrinal and empiricalapproach of study.Both primary and secondary source will be used in this research. The primary source includes, the Fundamental Rights Enforcement Procedure Rules as the principal legislation.The Constitution, other relevant statute, and case laws also constitute primary sources of materials.The secondary sources include, articles, literatures of legal writers in books, and news papers on the subjectmatter. In the empirical research, this research will make use of questionnaire, which will be administered to the members of the legal profession and the law enforcement agents. This will give a fair if not accurate result as to the problems affecting the application of the Fundamental Rights (Enforcement Procedure) Rules 2009.
1.7 Literature Review
Very few scholars have written books that touched on the subject matter of the research.This is because the Fundamental Rights Enforcement (Procedure Rules) 2009 is a recent regime. After careful perusal of the available books it was discovered that though the authors discussed a vast area of the subject matter, they have not written on the new Fundamental Rights
(Enforcement Procedure) Rules 2009, which is the subject of this research.
Jamo7 made a critical analysis of fundamental rights.He gave philosophical dimensions of human rights, including United Kingdom‟s Bill of Rights, perspective of human rights, and definition of human rights and conceptualization of human rights. Most importantly is his discussion on human rights under the 1999 Nigerian Constitution, which this work also looked into.However, it is observed that the procedure of enforcement of this right is not mentioned. This research seek to elaborate on this procedure i.e the Fundamental Rights (Enforcement Procedure) Rules 2009
KayodeEso8, made a brief explanation on the concept of human rights and theories. Tohim, to understand human rights ,there is need to go back to history of notable antecedents e.gthe great Britain, the Romans and the American experience. He also looked at the theories on the origin of human rights from the perspective of religion, morality, and divinity in brief. His analysis is limited, without mentioning the group of people who first developed the idea of human rights. This work elaborates on the development of human rights with critical analysis of philosophers.
Dalhatu9discussed fundamental rights, problems of limitation on fundamental rights, distinction between human rights and fundamental rights. In his analysis of fundamental right, the author did not contemplate the provision of Chapter II of the Constitution which is the fundamental objectives and directive principles of State policy as a fundamental right and unjusticiable. The author only gave priority to Chapter IV of the Constitution.
Akande10, In her discussion on fundamental objectivesand directive principles of state policy, emphasized fundamental obligation of the government. However, her limitation is based on provision of the section without looking at the practical applicability of its provision, which will reveal that the provision is just in paper and unattainable. The research considers the current situation in Nigeria which is the practical violation of the provision of the sections,due to lack of enforcement of the provision which makes it unjusticiable. More so this research considers the provision of the 1999 Constitution as against the 1979 which was the focus of the author.
Peter11 made elaborate analysis of the constitutional provisions of fundamental rights with limitations encountered under the military and civilian regime of the first, second, and third republic. This research goes further and discussed the limitations on Enforcement of these rights in recent time.
Campbell and Goldberg12discussed the realization of human rights and constitutional protection of human rights. However, their work being foreignmade reference to the American and the British Constitutions. This research appraises the Fundamental Rights (Enforcement Procedure) Rules 2009 and the Rights under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 and the African Charter on Human and Peoples‟ Right.
Ladan13 discussed the domestic enforcement of Human Rights, including the African Charter on Human and Peoples‟ Rights but did not expatiate on the procedure of enforcement of such rights. This is another area this research explores.
Abdulwahab14 made an appraisal of the new Fundamental Rights (Enforcement Procedure) Rules 2009 pointing out the issue of principal and ancillary claim as a major problem faced by applicants.However, the injury this principle has caused in the area of human rights and practicability of its application with regards to the test on the determination of what are principal and ancillary claims is one area this research dwelled upon.
Duru15 made an overview of the new Fundamental Rights (Enforcement Procedure) Rules 2009,giving the positive side and tremendous changes brought by the Rules in comparison with the old Rules of 1979.However this work tend to point out the limitation or setbacks in the 2009 Rules and the need for improvement in order to create a society devoid of constant human rights abuse.
Lastly, Danladi16 made an in-depth analysis of enforcement procedure of the old Rules applicable at that time. With the coming of the new Rules, thisresearch made an in-depth analysis of the new Rules i.e The Fundamental Rights (Enforcement Procedure) Rules, 2009, which is the current law applicable, replacing that of 1979.
1.8 Justification for the Research
The Constitution of Nigeria 1999(as amended) provides for fundamental rights of persons under Chapter IV. When there is breach or likely breach of these rights, the Fundamental Rights (Enforcement Procedure) Rules, 2009 is in place to guide on the procedure for redress. Certainly it is imperative to examine the procedure for enforcement of these rights when they are violated because there are lacunae in the application of the rule.
1.7 Organizational Layout
This work is divided into five chapters.Chapter One introduces the topic of the Research. It opens with an introduction, setting the background for the thesis. More importantly this singles out the research problem, outlines the scope, sets out the aim and objectives, analyzes literature on the point, reveals the methodology, and attempts to justify the research.
Chapter Two examines the concept of „fundamental rights, Human rights, and Constitutional Rights‟ in relation to the historical context of Fundamental Human Rights and the quest for Fundamental Human Rights are also examined.
Chapter Three considers the process of enforcement of fundamental rights, while chapter four goes further to examine the Presentation, Analysis and Interpretation of Data. The research is concluded in chapter five with a Summary and recommendations.
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