An Appraisal Of The Enforcement Of Human Rights Under The Fundamental Rights (Enforcement Procedure) Rules 2009 In Nigeria
An Appraisal Of The Enforcement Of Human Rights Under The Fundamental Rights (Enforcement Procedure) Rules 2009 In Nigeria
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
1.0 General Introduction
1.1 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.
1.2 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.
1.3 Aim and Objective of the Research
The aim of this research is to examine the Fundamental 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.
1.4 Scope of the Research
The scope of the research covers the application of the Fundamental Rights (Enforcement Procedure) Rules, in Nigerian courts.
1.5 Research Methodology
The research employs doctrinal and empirical approach 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 subject matter. 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.
Chapter Five
5.0 Summary, Conclusion and Recommendation
5.1. Summary
Fundamental rights constitute the cornerstone of the Constitution of the Federal Republic of Nigeria. These rights are provided under Chapter IV of the 1999 Constitution and in the African Charter on Human and Peoples‟ Right. The concept of human rights is that aspect that tasks scholars on its precise meaning and content.Different scholars, like those of Natural and sociological schools, see human rights from different point of view.
Despite the guaranteed rights under the constitution and African Charter, the legislature contemplated that there could be breach of these rights. This is why the law laid down procedure for the enforcement of these rights when breached. The Fundamental Rights (Enforcement Procedure) Rules 2009 provides for the mode of enforcement.
The fundamental Rights (Enforcement Procedure) Rules 2009 replaced the fundamental Rights (Enforcement Procedure) Rules 1979, bringing new modification to enhance public interest litigations in the field of human rights.. With the Fundamental Rights (Enforcement Procedure) Rules 2009,there is improvement such as in the area of human right in the aspect of enforcement e.g the abolishment of LucusStandi and leave for enforcement. However, there are still setbacks in the Fundamental Rights (Enforcement Procedure) Rules 2009.e.g the issue of main claim and ancillary claim. The fundamental rights enshrined in Chapter IV of the Constitution are to protect the rights of individual against arbitrary violation. However, it is without gain saying that the Nigerian courts understanding of principal and ancillary distinction is capable of rendering the fundamental human rights in the Chapter meaningless.
To test whether the Rules met its objectives in order to enhance public interest litigation, field research work was taken. Questions were asked with regards to the procedure of enforcement which revealed the extent to which this objective was achieved. From the analysis of the field work, it was discovered that though the 2009 Rules brought tremendous changese.g the abolishment of locus standi, there is need for improvement e.g the issue of jurisdiction of the National Industrial court.
In the course of this work the researcher made the following findings. .
- The review of cases shows that no consistent test is applied in determining the distinction between principal and ancillary claim. Some of the instances of the distinction cannot be explained on any ground other than that the court laboured under an improper understanding of the scope of the different rights protected by chapter IV of the constitution.
- The difficulty in correctly determining whether the claim is principal or ancillary lies in the fact that there is no stated procedure in the enforcement procedure rules as to how claims are to be couched. More importantly, there are no reliefs that are confined for fundamental human rights claim
- The provision of Order xv Rule 4 “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”. This has breed inconsistency in the enforcement of fundamental rights in Nigeria.
5.2 Recommendation
It is recommended that:
- It is imperative that the Supreme Court formalizes the understanding that the distinction between principal and ancillary claim negates human rights, and hence discard this dichotomy.
- There should be Uniform High Court Civil Procedure Rules across Nigeria so as to enhance the doctrine of judicial precedent.
There is no doubt that the Fundamental Rights provided under Chapter IV of the Constitution and in the African Charter on Human and Peoples‟ Right will be breached, this is why the fundamental Rights (Enforcement Procedure) Rule 2009 is enacted to provide procedure for the enforcement of these rights when breached. For this reason the Rules being a procedure for remedy must attain the utmost objective to enhance litigation in the field of human right. Therefore there is need to improve the Rules in the areas it have lapses. Until the constitution is amended to make the provisions of chapter II justiciable, the expectation of having a Nigerian society free from human right violation will be a mirage.
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