An Appraisal of the Enforcement of Fundamental Rights in Nigeria

Nigerian High Courts have had their hands full with cases filed for the purpose of the enforcement of fundamental rights, but which upon close scrutiny of the facts, have been observed by the Courts to be claims that most often do not give rise to the need to protect fundamental rights allegedly infringed upon.
Human rights are rights which are recognized legally as Fundamental Rights as distinguished from mere aspirations or individual ideas of rights. These fundamental rights are now embodied in Chapter IV of the Nigeria constitution 1999 as amended from Section 33 and 45 and the African charter on Human and People Right. The charter became part of Nigeria law by virtue of the /African Charter on Human and People Right (Application and Enforcement) Laws of the federation 2004.
The rights provided by the constitution are as follows: Right to life, section 33; right to dignity of human person, section 34; right to personal liberty, section 35; right to fair hearing, section 36; right to private and family life, section 37; right to freedom of thought, conscience and religion, section 38; right to freedom of expression and the press, section 39; right to peaceful assembly and association, section 40; right to freedom of movement, section 41; right to freedom from discrimination, section 42; right to acquire and own immovable property anywhere in Nigeria, section 43 amongst others.
These guaranteed rights are justifiable in the court of law in Nigeria. In order to actualize the protection and enforcement of these rights, section 46: subsection 3 of the constitution empowers the Chief Justice of Nigeria to make rules with respect to practice and procedure of a High Court for the purposes of enforcing the fundamental rights of a person contravened, being or likely to be contravened in any state in Nigeria. In exercise of these powers, the former Chief Justice of Nigeria, Idris Legbo Kutigi, made the Fundamental Right (Enforcement Procedure) Rules 2009, which became effective from December 1, 2009.
With the coming into force of the 2009 Rules, the Fundamental Right (Enforcement Procedure) Rules 1979 made by the then Chief Justice Fatayi Williams CJN which have been in force since January 1, 1980 were effectively abrogated subject however to savings provisions in respect of fundamental rights proceedings commenced thereunder and pending at the commencement of the new rules.
Under the 1999 constitution as amended, the persons who can apply to a High Court for the enforcement of fundamental rights are spelt out under section 46 (1) as: Any person who alleges that any of the provisions of this chapter (IV) has been, is being, or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress
It is not enough for an Applicant in an action for fundamental rights enforcement to merely allege infringement of his right(s); such Applicant must be able to prove on the balance of probabilities that the wrong complained of is an infringement of any right(s) enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) (‘the Constitution’) and the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1983 (‘the African Charter’).

This notwithstanding, the Fundamental Rights (Enforcement Procedure) Rules, 2009 (‘the Rules) enjoins the Courts to give expansive and purposeful interpretation to Chapter IV of the Constitution and the African Charter to advance and realise the rights and freedoms contained in them and afford the protections they intended.
any fundamental rights action filed where the reliefs sought have no connection or the reliefs sought do not fall into any rights stated in Chapter IV of the Constitution and the African Charter, such action will be unsustainable as a fundamental rights action.

It is however important to note that although the fundamental rights enforceable under the Rules are those stated in Chapter IV of the Constitution and the African Charter, the Rules went further to enjoin the Court in any case to give consideration to other municipal, regional and international bill of rights cited to it or brought to its attention or of which the Court is aware, whether the bills constitute instruments in themselves or form parts of larger documents like the constitution, for the purpose of advancing and not restricting the applicant’s rights and freedoms.

The bills of which consideration can be given include the Universal Declaration of Human Rights and other Instruments (including Protocols) in the United Nations human rights system as provided for in the Preamble of the Rules although not included not included in Order 2 Rule 1 which identifies the instances when a cause of action may give cause to enforcement of fundamental rights.2

In consideration of the above principles, the main issue is whether the Commissions’ act of freezing the accounts is a violation of the fundamental right to life (Section 33), right to dignity of human person (Section 34), right to personal liberty (Section 35), right to fair hearing (Section 36) and right to non-compulsory acquisition of property (Section 44), considering the fact that these rights are not absolute and that the Commission by the Economic and Financial Crimes Commission Act, 2004 (‘ the Act’) is empowered to get an order to freeze the accounts
Remedies which can be claimed include:
1. Damages to the applicant
2. Court injunction to restrain the respondent’s action
3. Compensation to the applicant
Furthermore, it has been observed that the foundation of any genuine democracy is embedded in the rule of law, a principal that demands devotion to the moral and human values, the common heritage of the people and true source of individual freedom and liberty. This is one of the legacies that our colonial masters, the British left for us, a libertarian tradition of the common law and its system of justice embodied in the Magna Carta Act of 1215 and the Bill of Right Act of 1689. Civil liberty that were guaranteed by the colonial government were expressed in the various constitutional conference held in the march towards Nigeria’s independence in order to allay minority tribe fear of domination by majority tribe. Fundamental human rights have since then continued to feature very prominently in the successive constitutions of the federal republic of Nigeria.