1.0. INTRODUCTION – WHAT EXACTLY ARE FUNDAMENTAL RIGHTS?
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
The above quote, i.e. the American Declaration of Independence, is perhaps the greatest statement of what fundamental rights are.
On July 4, 1776, the United States Congress approved the Declaration of Independence. Its primary author, Thomas Jefferson, wrote the Declaration as a formal explanation of why Congress had voted on July 2, 1776 to declare independence from Great Britain, more than a year after the outbreak of the American Revolutionary War, and as a statement announcing that the thirteen American Colonies were no longer a part of the British Empire.
Congress issued the Declaration of Independence in several forms. It was initially published as a printed broadsheet that was widely distributed and read to the public.
The above declaration is significant for two reasons. The first is that it set the tone for the fight for independence of the United States of America, which is arguable now the greatest country on earth. And secondly, it enshrined and brought to the fore the concept of fundamental rights (referred to as unalienable rights in the declaration) globally.
The latter is most applicable to the discussion in this short paper. The meaning of fundamental rights is inherent in the above declaration and subsequently many attempts have been made to provide a comprehensive definition of the concept.
Fundamental Rights and Human Rights, for all intents and purposes mean the same thing, but with the marked difference that Human Rights are universal, whilst Fundamental Rights are peculiar to individual countries and contained in their laws.
In my simple way, I would define fundamental rights as innate entitlements every human is born with. In other words, those rights contained in the laws of a nation that are so basic, and to deprive a person of them would amount to depriving them of their humanity.
Fundamental Rights may be defined as basic rights that primarily and inherently belong to every individual, regardless of colour, class, creed of any other considerations. These rights are meant to protect fundamental freedoms and human dignity from undue government interference.
Are Fundamental Rights Really that Important?
The main rationale of fundamental rights is the protection of the governed from the government. Fundamental rights are important in the relationships that exist between individuals and the government that has power over them as these rights (where properly enshrined) mean that this power that the government has over the governed is limited and checked.
States have to look after the basic needs of the people and protect some of their freedoms. In other words, where the power of the government to do with its subjects as it wills, is unchecked, the resulting situation is the inhumane treatment of the governed.
For this reason, in almost every country of the world, rights that are generally agreed to be fundamental are enshrined in the laws of individual countries. We shall now examine the legal framework of fundamental rights particularly the enforcement of these rights with Nigeria as our focal point.
2.0. STATE OF PLAY: NIGERIA
The Nigerian state has always been a peculiar one on the fundamental rights enforcement front. Nigeria as a nation over the years has witnessed a blatant disregard of rights which our Constitution holds out to be fundamental.
There has been a number of explanations for this, but I must attribute this factor to our history of military governments in power. The question that begs to be answered is whether the situation is any different today? I leave the answer to this question to your sound judgment.
The Legal Framework of Fundamental Rights Enforcement
The fundamental rights provisions for Nigeria are contained in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended) and in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
The fundamental rights provided under these laws are the only fundamental rights that can be enforced by a Nigerian Court. These rights include the right to life, right to dignity, right to personal liberty, right to fair hearing, right to privacy, right to freedom of thought conscience and religion, right to freedom of expression, right to freedom of assembly and association, right to freedom of movement, right to freedom from discrimination and the right to own property.
On the procedural front, the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules) regulate the procedure of fundamental rights matters in our Courts alongside the rules of the Courts.
Fundamental rights may be enforced by the individual who alleges that his rights have been, are being, or are likely to be violated; furthermore, the action to enforce this individual’s fundamental rights may be brought by another on his behalf.
An action to enforce fundamental rights may also be brought by anyone acting as a member of, or in the interest of a group or class of persons, anyone acting in the interest of the public or an association acting in the interest of its members or other individuals or groups. The effect of this on the time honoured principle of locus standi has been well discussed and debated in a number of texts and would not be delved into here.
Any High Court in Nigeria has jurisdiction over fundamental rights enforcement matters and a High Court has been defined to include either the Federal High Court or the States High Courts.
It is however appropriate to commence at the Federal High Court any matter that falls within the original exclusive jurisdiction of the Federal High Court whilst the matters not within the original exclusive jurisdiction of the Federal High Court may be commenced at the High Court of the applicable state.
The National Industrial Court may also exercise jurisdiction over fundamental rights enforcement matters where same is related to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.
The Practice and Procedure of Fundamental Rights Enforcement
A fundamental rights matter may be commenced by any of the originating processes regularly used to commence actions in the Courts with jurisdiction to hear these matters i.e. Writ of summons, Originating Summons, Petition and Originating Application. However, the Originating Motion on Notice is the most preferable mode of commencing a fundamental rights enforcement matter.
The apparent advantage inherent in this mode of commencement is that there is no need for oral testimony making the matters easy to dispense with. It is also important to note that fundamental rights enforcement matters cannot be statute barred and may be brought at any time.
The Motion on Notice to be filed by the Applicant (the person enforcing his fundamental rights) typically is supported by an Affidavit and a Written Address. These should also be supported with a statement setting out the description of the applicant, the reliefs sought and the grounds on which the reliefs are sought.
In opposition, a Counter Affidavit and a Written Address are filed. The Respondent (the person alleged to have violated the Applicant’s rights) may object to the jurisdiction of the Court to hear and determine the suit.
An application for fundamental rights enforcement is usually set down for hearing within 7 days from the time of filing of the application. The hearing is based on the adoption of the parties’ written address and oral arguments are allowed for not more than 20 minutes which is restricted to such matters that came to the knowledge of the party after he had filed his Written Address.
Applications for fundamental rights enforcement may also be made Ex parte, i.e. without putting the Respondent on notice. This is usually made and can be heard if the Court is satisfied that exceptional hardship may be caused to the Applicant before the service of the application on the respondent, particularly if the life of the applicant is in danger, the personal liberty of the applicant is involved or it is an on-going breach.
The possible Orders the Court can make after hearing an application for the enforcement of fundamental rights are as follows:
a) An order for the release of the applicant;
b) The award of damages to the applicant;
c) An order of injunction or declaration is made for the protection of the rights of the applicant;
d) An order granting right to access the applicant’s counsel or family;
e) An order permitting access of the applicant to medical care.
3.0. THE PROBLEM WITH ENFORCEMENT AND A WAY FORWARD
Upon an appraisal of the legal framework and the procedure for fundamental rights enforcement in Nigeria, one thing is clear, to wit, we have the laws and the legal framework that ought to ensure that the fundamental rights of the people are protected.
Although the adequacy of the applicable law in its current state is the subject of debate, it is still curious that there are still so many instances of the abuse of the rights of individuals, particularly in recent times.
A major concern that needs to be addressed is the fact that many individuals do not know that these rights exist, and where they do, they do not know how to seek redress for the violation of these rights.
Worse still, a few know that these rights exist and know how to seek redress for the violation of their rights, but cannot afford to seek said redress. The right of access to the Courts of justice of the Federation is a right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) allows citizens and non-citizens to seek redress in a court of law against any violations of their civil rights. The law frowns at any attempts, statutory or contractual, to frustrate the right of access to Court and the implementation of this constitutional provision. The truth however is that many citizens cannot afford legal fees necessary for access to justice.
The civic education of every Nigerian citizen should include an enlightenment of their rights under the Constitution. As part of our services to humanity and as a way of giving back, Legal Practitioners need to take on more pro-bono cases on behalf of litigants whose rights have been violated and cannot afford to seek redress.
I must commend states like Lagos State for initiatives like the Office of the Public Defender and the Multi-Door Court House at the High Court of Lagos State which aid the masses in redressing fundamental right violations.
We need to do more as a nation however to ensure that fundamental rights are protected and that there is adequate redress where they have been violated.
This paper would be incomplete if I fail to mention the need for a strong political will as regards fundamental rights enforcement. The government and those that govern must see the protection of these basic rights as non-negotiable and there must be a sacred respect for the rule of law in Nigeria. This really is the only way to go.
Associate, Kenna Partners
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Associate at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation. Joseph is also a Chartered Mediator.