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                                ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIA: THE REALITY.
                                                          BY
                                               OLUBUNMI IFEYINWA ODUNEYE

INTRODUCTION

Nature endowed man with certain rights which protect and preserve the sacredness of the human person as inviolable, equal to his fellow man, free and independent. As NIALL MACDERMOTT puts it:

“Human rights are part of the heritage of all mankind without discrimination on grounds of race, sex, religious or other differences. These rights common to mankind have a long history, many of them finding their origin in religious teachings. But now in our lifetime, they have been formulated more fully than ever before and agreed to by all peoples from all parts of the world.”

This views point ultimately informed the evolution of Civil and Political rights which essentially were conceptualised as checks on the abuse of State power. This article will commence by looking into the history of Fundamental rights in Nigeria. It will examine the importance of access to justice as an essential instrument for the protection of human rights in Nigeria and look at the factors inhibiting access to justice in Nigeria, demonstrating that it is only when an individual has access to courts that his fundamental rights can be enforced. We shall further look at the reality of the Nigerian situation in the sense that there are a number of obstacles to the realization of access to justice in the country. These obstacles, such as undue delay in the administration of justice, high cost of litigation, reliance on technical rules, locus standi, and illiteracy will be examined in turn, in validation of the proposition. The constitution of the Federal Republic of Nigeria 1999 and the Fundamental Rights (Enforcement Procedure) Rules, 2009 has provided procedures to be followed in courts for the enforcement of the fundamental rights of Nigerians. The Fundamental Rights (Enforcement Procedure) Rules which came into effect in December 2009 is an improvement of the 1979 rules in the sense that 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 reduce the obstacles to the realization of access to justice in the country, example on the issue of locus standi, jurisdiction, limitation law etc. We shall discuss some of the provisions briefly.

HISTORICAL BACKGROUND OF FUNDAMENTAL RIGHTS IN NIGERIA. Human right is a concept that has been constantly evolving and developing through human history. Researchers and historians have always shown that human rights have always been intricately tied to the laws, customs and religions of the people throughout the ages. According to the Black’s Law Dictionary, human rights is defined as the freedoms, immunities, and benefits that, according to modern values (especially at an international level), all human beings should be able to claim as a matter of right in the society in which they live. Fundamental human rights are also defined as entitlements that humans have by the fact of being human, and that are neither created nor can be abrogated by any government. Justice Eso JSC, in Ransome-Kuti v. Attorney General of the Federation, stated: “Fundamental right is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence…” Fundamental human rights have also been described as rights which are inalienable and guaranteed to every person. They have also been defined as “rights which stand above the ordinary laws of the land and which in fact are antecedent to the political society itself.” One of the earliest examples of codification of laws which contain references to human rights is the Code of Hammurabi which was created about 4000 years ago. This codified law was promulgated by King Hammurabi, the first ruler of the dynasty of Babylon. It was in ancient Greece where the concept of human rights began to take a greater meaning. Human rights became synonymous with natural rights - rights that spring from natural law. It should be noted however that there are a lot of difference between natural rights in the past and human rights today. For example, it was seen as perfectly natural to keep slaves then, but such practice as legal as it was then goes counter to the ideas of liberty and equality that is associated with human rights today. The next fundamental philosophy of human rights, according to scholars, arose from the idea of positive law where theorists saw natural law as being very vague, hollow and too open to vast difference of interpretation. Thus, under positive law, instead of human rights being absolute, they can be given, taken away and modified by a society to suit its needs. The transfer of abstract ideas regarding human rights in relation to the will of nature into concrete laws is exemplified best by various legal documents that specifically described these rights in detail. Example of such documents is British Magna Carta, 1215; French Declaration of the Rights of Man 1789; American Bill of Rights 1789; The Geneva Convention 1864, etc. The development and improvement of fundamental human rights continued that way in and around the world. In 1948, shortly after the devastation of the Second World War, the newly formed United Nations General Assembly passed the Universal Declaration of Human Right. Passing this declaration marked an international desire for peace and the beginning of a system to protect fundamental human rights. The importance of fundamental human rights is the reason there are special rules for the enforcement of fundamental human rights, and also the reason there are entrenched in the Constitution of the Federal Republic of Nigeria 1999. Fundamental human rights have a special place in Nigeria as in other countries. Apparently, Nigeria’s development of fundamental human rights has always been entrenched in the constitution since 1963 and has always been so for all the constitutions till the present constitution of the Federal Republic of Nigeria 1999. In the 1979 constitution of the Federal Republic of Nigeria the following rights; Right to life; right to dignity of human person; right to personal liberty; right to fair hearing; right to private and family life; right to freedom of, thought, conscience and religion; right to freedom of expression and the press; right to peaceful assembly and association; right to freedom of movement and right to freedom from discrimination were provided. In order to actualize the above mentioned rights, the Chief Justice of Nigeria acting under section 42(3) of the 1979 Constitution enacted the Fundamental Rights Enforcement Procedure Rules 1979 which make provisions for the procedural, steps to be taken when an individual's fundamental right has been, is being or is likely to be infringed. These rules was repealed to be FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009 in December 2009 to be beneficial for the course of ensuring that the fundamental rights of individuals are protected. Some of the provisions will be discussed in later in this article. But it is worthy to note that it is the only procedural law guiding the enforcement of fundamental rights in Nigeria.

ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS IN NIGERIA. The political and constitutional development of Nigeria has been intertwined with the quest for the promotion and protection of human rights in the country. From the pre-independence constitutional conferences through the First and Second Republics and the various military dispensations, to the present democratic government human rights questions have received merited attention in legal and political discourse.

Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 covers a whole range of rights constitutionally guaranteed. Like most of the Commonwealth countries, the provisions on fundamental rights have been enshrined in the Constitution in consonance with the principles proclaimed by the United Nations in Article 10 of the Universal Declaration of Human Rights in 1948 wherein it is stated that: “It is essential, if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law” The Constitution provides in Section 46(1) that: “Any person who alleges that any of the provisions of this chapter has been, is being, or likely to or contravened in any state in relation to him may apply to a High Court in that state for redress.” This provision apparently empowers everyone to enforce his fundamental human rights. It will also be noted that the person does not have to wait until his rights are contravened; he has the power to enforce where the rights is being contravened and where there is likelihood that the rights will be contravened. The constitution in its effort to ensure that the court jurisdiction to enforce fundamental human rights is not in doubt provides in the same section as follows: “Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this chapter”. The two provisions of the constitution discussed above ensure that a person is empowered to enforce his rights while the courts are also empowered to hear the application having been conferred with original jurisdiction. Thus, the next question is what manner or by what process will an aggrieved person enforce his human rights? The Constitution provides the answer in section 46(3) as follows: “The chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this section”. For some time now, Nigeria has been facing a crisis of human rights with the resultant effect on the country being rated as having very poor human rights Records, with series of human rights violation mostly during the military regimes of Ibrahim Babangida and Sanni Abacha. It needs be said that ever since the inception of democracy in 1999 though not eradicated, violation of human rights has been reduced to the barest minimum.

However despite the provisions of the Nigerian constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009, there is always a struggle for the protection of the human rights of individuals, groups and communities in Nigeria. The explanation for this appears to be that there still exist a number of substantive and procedural obstacles or impediments that not only inhibit the actual implementation of these rules, but preclude the masses in general from having access to justice in Nigeria. The question is then what are these impediments and how can they be surmounted to guarantee access to justice for the vast majority of Nigerians?

Access to enforcement of fundamental rights can be looked at from two main perspectives:(1) access to the law courts,(2) access to the political order and the benefits accruing from the social and economic developments in the state. Bearing this in mind, one may therefore say that access to justice simply refers to the procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress for the violation of their legal rights within that legal system.

Factors inhibiting access to justice in Nigeria: It should be noted that, the procedural rule for the commencement of an action for the enforcement of Fundamental Human Rights is guided by the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 46(3) of the 1999 Constitution of the Federal Republic of Nigeria by the Chief Justice of the Federation. Before the 2009 Rules, the procedure for the enforcement of Fundamental Rights in the High Courts required bringing up the action within a specified period of time from the occurrence of the breach of such rights, but under the 2009 Rules the limitation of the period of time has been done away with. Equally under 1979 Rule, leave of court was a requirement for the enforcement of the Right under Chapter IV of the Constitution but under the 2009 Rules, no leave is longer required thus the era of inhibition on issue of Locus Standi is gone. 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 must be physically present before the Commissioner for Oaths to swear to his statement or the Affidavit. Under the new rule such application can be made on behalf of an Applicant whose rights have been infringed upon and who is seeking a redress of same. Also, on the issue of Limitation law, the Rules provides that limitation will not apply to enforcement of fundamental rights. Order 3 of the Rules provides:

“An application for the enforcement of fundamental rights shall not be affected by any limitation statute whatsoever.” This provision simply means that an application to secure the enforcement of fundamental rights can be exercised, at any time, regardless of when the violation occurred.

However as beautiful as the new rules are there are still so many challenges for the enforcement of the Fundamental Human Rights. A number of obstacles conspire against access to justice in Nigeria. While some of these obstacles are substantive in nature, others are procedural and yet others have their roots in the present political and economic system in the country. We shall here examine some of these factors to see how they have continued to inhibit access to justice in Nigeria. Delay in the administration of justice: Very often, we see ordinary cases of enforcement of fundamental rights lasting between three to five years or even more. An example that comes to mind is the case of Garba v. University of Maiduguri, Of the students that went to court in Garba's case, only one came back to continue his studies. The rest did not have the patience to wait through; they fell by the wayside, thereby losing the opportunity of having a university education. When Garba came back, his classmates had long graduated. Infact, one was to become his lecturer! Despite the provisions of section 36(4) of the 1999 constitution , a number of circumstances could give rise to this delay: lawyers writing letters of adjournment of cases, inability of judges and magistrates to deliver judgments on time, failure of the police or prison authorities to produce accused persons in court for trial, the rule that once a magistrate or judge is transferred and a new one takes over a case, it has to start de novo etc. There is no doubt that such delays will only erode public confidence in the judicial process. However, even as we insist on the desirability of speedy disposal of cases, one must bear in mind the need to give all parties the opportunity to present their cases before final decision by the court. As Justice Mikailu pointed out in the case of Governor of Ekiti State and 4 Others v. Prince James Osayomi : "Every party is entitled to a fair hearing and there should be no over speeding and no stampeding in order to enable the trial court arrive at a just decision.” Illiteracy: The benefit of participating in government is lost by the ruralites because of their illiteracy. In the words of OJO: “Democracy is not safe in a country where a large majority of the population is illiterate. Their inability to understand the problems of government is readily visible; worse still they become very strange bedfellows to politicians who make extravagant promises.” A good number of the people in Nigeria are illiterate who cannot appreciate or understand what rights they have, therefore not even know when those rights have been or are being infringed Poverty: The cost of Litigation is so high that the ordinary Nigerian can hardly afford adequate legal representation when he has a legal matter to pursue. Filing fees in some courts are so high that it is often impossible for majority of Nigerians to have access to the courts. This is particularly so in the case of the Federal High Court, where the filing fees are related to the amount of monetary claims made by litigants. The result is that Nigerians find it extremely difficult to exercise their legal rights when it has been infringed. Attitude of some State Functionaries or Security Agents: In spite of the existence of Fundamental Human Rights provisions in our constitution 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 will confirm the story of Human Rights abuse by the police. The officials of the Department of Customs and Exercise often raid markets with guns, horse-whip and tear gases 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. Religion, Fanaticism and Militancy: Today in Nigeria there has been an increase in the activities of religion extremists in the Northern part of Nigeria. This religion extremism has led to the death of thousands of innocent citizens whose rights to life have been enshrined in the Constitution. Where are the right to life and right to freedom of religion when some people will always want another people to behave in their own religious ways? This has led to the threatening of National Security which in turn has led to the violation of people’s Human Rights. This in itself is a challenge to the realization of Fundamental Human Rights.

It is very sad to note that despite the provisions in the several laws that govern enforcement of Fundamental Human Rights of individual, there are several occurrences that show that all those laws are just in paper and not duly enforced. Femi Falana, human rights lawyer, who was at the fore front of the recent Occupy Nigeria protests, has sued President Goodluck Jonathan and the Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke, for N500m over an alleged violation of his rights by soldiers deployed in Lagos to quell protests against the removal of subsidy on fuel. According to the Punch Nigeria, In a suit filed at the Federal High Court, Lagos. The applicant said he was on January 16 2012 prevented by the armed soldiers deployed by the first Respondent (President Jonathan) from expressing his opinion on the removal of fuel subsidy at the Gani Fawehinmi Park. He said, “At about 7:30am on January 16, 2012 I was stopped at Maryland, Lagos by armed soldiers, who prevented me from moving to the venue of the rallies and ordered me to return home.” “The order issued by the 1st respondent (President Jonathan) on the 16th of January, 2012 curtailing the applicant’s fundamental rights to freedom of expression, right to assembly and movement and enforced by the 2nd respondent through his armed agents is a violation of the fundamental rights of the applicant as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the African Charter on Human and Peoples’ Rights”. This recent example of violation of Fundamental Rights by State Security Agents can only begin to show how deep rooted this problem is in Nigeria.

In the enforcement of human rights, the judiciary, Lawyers, Nigerian Police all have a role to play. These duties borders on foregoing corrupt practices, late sitting by judges etc. Lawyers generally are regarded as officers in the temple of justice as such the role expected of them in the protection and promotion of human rights in a democratic society cannot be over emphasized. The concept of public interest litigation is a noble concept which makes justice quickly and readily available to the masses when their fundamental rights are threatened. In Nigeria, many lawyers and individuals are unwilling and disinterested in challenging the excesses of certain government agencies and other corporate bodies whose activities affect their daily existence. The rationale behind this legal concept is mainly to institute actions to curb state power and to restrain the government from trampling on the political and civil rights of its citizens, and it can also be used to compel governments to undertake certain actions that will be in the overall interest of the general populace.

The Fundamental Enforcement Rules of 2009 (as amended), tacitly provides for public interest litigation for persons or class of persons whose right has been infringed. The preamble to the fundamental rights procedure rules expressly provides that “no human rights case may be dismissed or struck out on want of locus standi.”

CONCLUSION From the discussion of this topic so far, an attempt has been made in this paper to show the linkage between access to justice and the quest for the promotion and protection of human rights in Nigeria. We have also shown that there are a number of fundamental obstacles to the attainment of this highly desirable goal of increasing access to justice. The point has further been made that some of the constitutional provisions which are geared towards ensuring human rights protection are yet to be fully enforced in this country. There is an overwhelming need for a reform of the judicial process in the country in line with the global concern for human rights protection. This is necessary because the judiciary plays a pivotal role in ensuring that individuals have access to justice. However, It is instructive to note that at this point that, The Legal Aid Council a parastatal under the Federal Ministry of Justice to provide legal services for economically deficient Nigerian is an excellent innovation by the federal government. Their slogan is “Voice for the Voiceless and Justice for All.”

However, there is need for more parastatals to be put in place. The Council is the only institution empowered by law and charged with the onerous responsibility of providing free Legal Aid Services to indigent Nigerians whose income does not exceed the minimum wage, and those who are unemployed and those whose income are above but cannot afford the services of private legal practitioner. The average Nigerian has to have Human Rights Education to know what their rights are, this is because the Court cannot adjudicate upon and effectuate his rights unless there is a suit complaining about the breach or threatened breach of those rights filed in court.

REFERENCES. 1. NIALL MACDERMOTT: Opening address to The International Conference on Human Rights Education in Rural Environment, Lagos Nigeria, 1985, pg 10. 2. Black’s Law Dictionary, Abridged seventh edition. 3. (1985) 2 NWLR PT6 4. February 13, 2012 by Wahab Shittu http://www.punchng.com/feature/the-law-you/fundamental-rights-enforcement-procedure-rules-and-limitation-laws/ 5. Chap. 3 Guide to Human Rights Litigation in Nigeria written by Clement Nwankwo and 6. Melissa Crow Constitutional Rights Project June, 1994. Enforcing Human Rights through the Courts: Options for Students by J Nnamdi Aduba. 7. Section 33 – 43 of the constitution of the Federal Republic of Nigeria 1999 (as amended). 8. The Constitution of the Federal Republic of Nigeria 1999 (as amended). 9. (Chukwudifu A. Oputa, In the Eyes of the Law (Friends Law Publishers, 1992), p. 50). 10. Order III Rule I Fundamental Rights (Enforcement Procedure) Rules 2009(as amended) 11. ibid Order II Rule 2. 68 12. (1986) 1 N.W.LR. p.551 13. The Constitution of the Federal Republic of Nigeria 1999(as amended). section 36(4) provides that whenever any person is charged with a criminal offense, he shall be entitled to a fair hearing within a reasonable time by a court or tribunal. 14. (T. A. Aguda, The Crisis of Justice (Akure, Nigeria: Eresu Hills Publishers, 1986). 15. (2005) 2 NWLR pt. 909 p. 67)..... 16. (OJO, J.D.: Development of the Executive under the Nigerian Constitution l9j5o-oTi 1903 University Press p.1fe9[1]). www.google.co.ng 17. A. Oputa ‘access to Justice’ Law and Practice Vol. No. 1 of August 1988). 18. http://www.omg.com.ng/2012/01/lawyer-sues-nigerian-president-for-n500million/...January 26, 2012). www.google.con.ng 19. Order 1 Rule 2 The Fundamental Enforcement Rules of 2009 (as amended). 20. Established pursuant to the promulgation of Legal Aid No. 56 of 1976 Chapter 205 Law of the Federation of Nigeria (LFN) 1990. The current enabling law is the Legal Aid Act chapter L9, Volume 8, LFN 2004 which shall hereunder be referred to as the Act as amended (Legal Aid Council of Nigeria, Third Edition 2008 p.20). 21. 20 ibid