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Fundamental rights are inalienable rights inherent in man by the mere reason of his existence. Just like the nomenclature suggests, these rights are sacrosanct, primal, and integral to man’s existence. They are the bedrock of civilized existence in human society.
Underscoring their primal and inalienable nature, Fundamental Human Rights are typically enshrined and guaranteed by the apex legislation in every society. In Nigeria, the Constitution, which is the grund norm, from which other laws take their authority, enshrines Fundamental Human Rights in Chapter IV[i]. In effect, Fundamental Human Rights stand above the ordinary laws of the land.[ii].
Legislative Framework of Fundamental Rights in Nigeria
1. Constitution of the Federal Republic of Nigeria 1999 as amended
The Constitution, in sections 33-44, contains certain fundamental Human rights that are recognized and guaranteed by the Constitution. It is noteworthy that these categories of rights are justiciable, unlike the Rights in Chapter II of the Constitution, which are not justiciable. The implication of this is that where those Human Rights guaranteed in Chapter IV have been or are being or likely to be infringed, he or she can approach the court and rightfully seek a remedy. The Constitution not only sets out the substantive rights, but also lays down procedural provisions for enforcing those rights.
Other pieces of legislation that govern the enforcement of fundamental Human rights in Nigeria include the following:
2. The African Charter on Human and Peoples’ Rights (Enforcement & Ratification) Act
It is instructive to note that by the provision of the Constitution,[iii] is to the effect that no treaty shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly. The African Charter on Human and Peoples’ Law was domesticated in Nigeria in 1983 and therefore has the force of law in Nigeria
3. Fundamental Rights Enforcement Procedure Rules, 2009 (FREP) Rules:
The Fundamental Rights Enforcement Procedure Rules 2009 (FREP) serve as the procedural rule book, guiding the process of institution and enforcement of Fundamental Human Rights Claims in Nigeria. The Chief Justice of Nigeria is constitutionally empowered to make these rules[iv].
The Fundamental Human rights guaranteed by the Constitution of the Federal Republic of Nigeria include the following:
∙ Right to life
∙ Right to dignity
∙ Right to personal liberty
∙ Right to a fair hearing
∙ Freedom of religion
∙ Freedom of expression and the press
∙ Right to peaceful assembly and association
∙ Freedom of movement
∙ Right to private and family life
∙ Right to freedom from discrimination
∙ Right to acquire and own immovable property
Who can apply for the enforcement of Fundamental Human Rights?
By the provisions of the Constitution, any person who alleges that any of his fundamental human rights in Chapter IV of the Constitution is likely to be, or is being, or has been contravened can apply to the courts (with jurisdiction) for redress[v]. Also, any person who alleges that his rights enshrined in the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act are being contravened can apply for the enforcement of his rights[vi].
It had been argued that actions brought under the FREP Rules can only be instituted by a single person. This argument attempts to give a rather literal and conservative meaning to the provisions of Section 46 of the Constitution.
MULTIPLE APPLICANTS
The Supreme Court has however put to bed this contention when it held held that the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 cannot, and should not, be given a constricted, narrow and limiting interpretation. The Court further held that the phrase refers should be given the wider interpretation to include more than one person or individual[vii].
DO ARTIFICIAL ENTITIES ENJOY FUNDAMENTAL HUMAN RIGHTS?
On whether an artificial entity (a company) can file for the enforcement of its fundamental rights, our courts have been divided. While some courts have taken the view that artificial persons can file for the enforcement of their fundamental rights that accrue to a corporate entity,[viii] other courts have vehemently opposed the said view and insist that the enforcement of fundamental rights is exclusively reserved for natural persons[ix]. It is the writer’s respective view that the former position should be upheld by courts with respect to rights which accrue to corporate entities, such as the right to own private property.
It is also important to note that in cases where the breach of fundamental rights results in the demise of the victim, our judicial jurisprudence has accommodated the position that dependents of the deceased can seek to enforce their right to life as guaranteed by section 33 of the constitution[x].
Appropriate Forum and Venue for Enforcement of Fundamental Rights:
By the provision of Section 46 (1) of the Constitution and Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules, the State High Court and the Federal High Court can hear and determine actions seeking the enforcement of Fundamental Human Rights.
It is also noteworthy that the jurisdiction of the National Industrial Court is exclusive where the breach of Fundamental Human rights is connected with determining an industrial dispute, which the court has jurisdiction[xi].
While it is trite law that an action for the enforcement of Fundamental Human Rights may only be filed at the High Court of a state or Federal High Court within or covering the state where the alleged violation occurred, where the alleged breach occurred partly in one state and partly in another, either of the two states have jurisdiction over the matter[xii].
Mode of Commencement of Fundamental Human Rights Action
By the provisions of the Fundamental Rights Enforcement Procedure Rules, 2009, Fundamental Rights action can be commenced by any of the permissible Originating processes with all the required accompanying processes[xiii].
It is, however, worthy of note that as a matter of practice, counsel appear to have adopted a preference for either an originating summons or originating motion as a mode for commencement of fundamental rights action.
Limitations of the Enforcement of Fundamental Rights
It is important to understand that though the Constitution guarantees fundamental rights on one hand, it is in no way absolute, as it equally provides for instances of derogation from these fundamental rights.
Some of the instances in which certain fundamental rights can be derogated from include:
a. In the interest of defence, public safety, public order, public morality, or public health; or
b. For the purpose of protecting the rights and freedom of other persons[xiv].
Significantly, section 45 (2) of the Constitution provides to the effect that an act of National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during the period of emergency.
Our Courts giving effect to these instances of derogation have, in a plethora of cases, held that an invitation by a law enforcement agency while conducting its investigative duties as statutorily empowered cannot be held to amount to a breach of fundamental rights[xv]. where such an invitation, however, is unconnected to a criminal investigation, for instance, where the police are used by a party as a debt recovery agent, the victim can effectively file an action and seek the enforcement of their fundamental rights.
Reliefs available to litigants
Some of the reliefs available to a litigant following the successful enforcement of a fundamental rights action include the following:
1. Damages
2. Release from Detention
3. Production
4. Injunction and Declaration
It is imperative to note that it is contemptuous to disobey any order or directive of the court under the fundamental rights (Enforcement Procedures) Rules.
In conclusion, Fundamental Human Rights proceedings are sui generis proceedings which have been accorded special treatment within the Nigerian Judicial jurisprudence. This has ensured that Fundamental Rights Actions are relatively speedily determined and Fundamental Rights breaches remedied accordingly. In recent times, there has been a litany of positive pronouncements in favour of the Applicant whose Fundamental Human Rights had been infringed by erring Law enforcement agents.[xvi] It is therefore the writer’s considered position that should your rights be infringed, do not hesitate to consult a lawyer licensed to practice law in Nigeria to seek its enforcement.
[i] Chapter IV (1999) Constitution of the Federal Republic of Nigeria (as amended)
[ii] Lagos State Govt & Ors V. Abdulkareem & Ors (2022) LPELR-58517(SC)
[iii] Chapter IV (1999) Constitution of the Federal Republic of Nigeria (as amended)
[iv] Section 46 (3) of the 1999 CFRN
[v] Section 46 (1) 1999 CFRN
[vi] order. 2 r. 1 of the FREP Rules 2009
[vii] Total Exploration & Production (Nig) Ltd V. Okwu & Ors (2024) LPELR-62623(SC)
[viii] Okechukwu & Anor V. EFCC & Ors (2014) LPELR-24079(CA)
[ix] All Jaafariyya Development Association & Anor V. Government Of Kano State & Ors (2021) LPELR-57168(CA)
[x] NSCDC, Benue State Command & Anor V. Samuel (2022) LPELR-56933(CA)
[xi] Section. 254 C (1) (d) CFRN 1999
[xii] Dangote v Civil Service Commission & Ors 2001) 9 NWLR PT (717) 132
[xiii] Order. 2 rules. 1 to 7, FREP Rules 2009
[xiv] Section. 45 C (1) (d) CFRN 1999
[xv] Onnis & Ors V. Alakija & Ors (2018) LPELR-50607(CA)
[xvi] HARUNA v. SANI & ORS (2023) LPELR-61225(CA), PROJECT ARCADE LTD & ANOR v. IGP & ORS (2022) LPELR-59127(CA)
Written by Ovye Israel for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com