Need To Enforce Fundamental Rights In Nigeria
I wish to start on a critical and historical note thus… it is indeed deeply thoughtful of the author to have dedicated the book – Fundamental Rights Enforcement in Nigeria to the memory of Late Chief Gani Fawehinmi (SAN). The timing of the inauguration is also significant.
September 5, 2010, passed quietly in our wonderful country. Only few took time to remember it was the first year anniversary of the passage of the colossus called ‘Gani’. As we think back on his life, we realise the importance of freedom from want and freedom from fear, to all mankind, especially Nigerians for whom Gani fought and died valiantly for. Gani died fighting for mankind; his life was literally sacrificed on the battlefield of freedom. Today, freedom of speech, freedom of religion, freedom from want and freedom from fear are further from reality than at any time during peace.
This analysis on the book under reference is based on the interventionist work of the author, Mr. Femi Falana. The first edition was published in 2004 by Legal Text Publishing Company Limited, while the second edition has just been recently published by the same company in the current year – 2010. The foreword to the first edition saw Chief Wole Olanipekun (SAN) eulogising the pioneering effort of Falana in collating several useful authorities and literatures on this complex but vital area of the law. Olanipekun frankly stated in his foreword that “Few Nigerians can lay better claim or authority on the unique subject than Falana who is both an activist and legal practitioner in every refined ramification. Again, more than most Nigerians, Mr. Femi Falana has had his fundamental human rights bruised, breached and trampled upon with outright impunity several times by the powers-that-be in this country, not as a result of the fact that he is a law breaker but simply because of his dogged defence of the rights of others and bold opposition to tyranny and arbitrariness on the part of successive Nigerian governments.
As a result of his experience and antecedents, nobody can question his authority in this area relating to our constitution and its interpretation. In any event, he has painstakingly digested and dissected not only the rules themselves but also decided cases thereon.”
An examination of the preface to the second edition clearly captures the author’s effort to provide the reader with a current and contemporary upd0ate of the most recent development relating to the law and jurisprudence of fundamental rights enforcement in Nigeria. The author correctly submitted in the preface to his new book that “with the removal of locus standi from the law, public interest litigation has been institutionalised in the field of human rights in Nigeria. Thus, civil right advocates, human rights organisations, concerned individuals and groups have been encouraged to deepen the democratic space by taking up public interest cases. To complement the efforts of public interest litigators, judges are enjoined to apply and interpret human rights law in a liberal manner so as to advance the rights and freedom guaranteed by the constitution and the African Charter on Human and Peoples’ Rights and to proactively pursue enhanced access to justice for all classes of litigants especially the flotsam and jetsam of the society.
In pursuance of the lofty objectives of the rules, parties and their legal representatives are required to assist the courts in ensuring that fundamental rights cases are expeditiously determined. No doubt, the 2009 FREP Rules have simplified the procedure for the enforcement of fundamental rights under Chapter IV of the constitution and the African Charter on Human and People’s Rights. Undue delay, technicalities, frivolous objections and prohibitive filing fees charged by the courts for the enforcement of fundamental rights have been swept away. In order to ensure that indigent victims of human rights violations are not prevented from seeking redress in the court, the 2009 FREP Rules have made provisions for payment of nominal fees for filing of applications for the enforcement of fundamental rights”.
More recent authorities which have occurred since the publication of the First Edition have been researched upon and incorporated into the Second Edition to avail the reader of the current thinking of the courts and stage of the law on human rights. The book reveals the author’s familiarity with the current state of the law on fundamental rights as revealed in his citation of recent cases such as Afribank Nig. Plc v. Adigun (2009) 11 NWLR (Pt.1152) 329 at 350 which touched on the need for courts to expeditiously decide fundamental rights applications and therefore, as much as possible, refrain from allowing parties to lead oral evidence in fundamental rights application except where there are fundamental conflicts in the affidavit evidence before the court and the unreported case of Femi Falana v. Federal Road Safety Commission; FHC/IKJ/CS/M58/2010, where the notion of oral application for service of processes on respondents was addressed and allowed by the court. The reader will also be better informed when he comes across the case of Fawehinmi v. The President (2008) 23 WRN 65, the case that finally, to use the author’s exact words, “consigned locus standi to the dustbin of history in the area of public interest litigation in Nigeria”.
One essential feature of the book is in its detailed and informative treatment of the contents and implications of the new Fundamental Rights Enforcement Rules 2009. Specifically, Chapters one to eight are dedicated to the treatment and elucidation on the contents, implications and broad applications of the provisions of the new Fundamental Rights Enforcement Rules 2009. Wading through the pages of the aforementioned chapters, the reader is exposed the author’s criticisms of the sometimes slavish compliance with technicalities by judges when presiding over matters touching on fundamental and human rights applications. The reader guided by the author to appreciate how the new fundamental rights enforcement Rules 2009 has effectively abolished the crude and backward concept of locus standi in relation to the enforcement of fundamental and human rights.
Without much ado, the author has practically demonstrated to the reader some of the benefits inherent in the provisions and applicability of the new FREP Rules such as the statutory stoppage of the payment of skyrocketing fees as charges for filing fundamental rights enforcement applications.This is certainly an advancement when compared with the unpleasant past where fundamental rights applicant were required to pay filing fees in line with the Civil Procedure Rules of the High Court.
In fact, the situation at the Federal High Court was particularly worrisome in that fundamental rights applicants were made to pay filing charges of over N50,000 whenever they sought damages protection in excess of N1m from the court.
But today, under the new rules, applicants are simply required to pay nominal fees of N500,000 only. This will no doubt encourage more people to challenge the violation of their rights.
The author ought to be commended as he has already joined other well meaning lawyers to take positive advantage of the broad protections offered by the new rules. For a few instances, I am aware Falana has approached the court for interpretation and reversal of the dangers, the government’s non-maintenance of major highways (specifically the Lagos-Ibadan Expressway and the Benin-Ore Road among others) is causing the Nigerian public and I am aware he has similarly instituted a public interest suit on government’s neglect of public health. More are coming, I believe.
Aside the adroit treatment given to the new FREP Rules of 2009, the author also elaborated on the domestic application of the African Charter on Human and Peoples Rights (Chapter Nine), the practice nature and procedures of appeals in Fundamental Rights cases (Chapter 10), miscellaneous matters such as enforcement against private individuals, enforcement of fundamental rights on behalf of the deceased, enforcement of fundamental rights on behalf of minors and enforcement of fundamental rights by indigent persons.
The book will also easily serve as a quick reference material in view of the author’s generous reproduction of Fundamental Rights (Enforcement Procedure) Rules 2009, some precedent forms as attached to the appendix of the FREP Rules 2009, the reproduction of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 relating to Fundamental Rights and the reproduction of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP 10) Laws of the Federation of Nigeria, 1990. The reader will note the reproduction of the public interest court processes filed by Falana, the author in the unreported Suit No: FHC/IKJ/CS/M59/10 and will of course serve as a guide to other public interest l awyers on the format they may adopt in the event of wishing to file similar processes in the near future.
The second edition of this great book, will, no doubt, enright the corpus of our legal jurisprudence. I humbly recommend it to members of the legal profession and the wider public without reservation.
Shittu, a lecturer at the Department of Jurisprudence and International Law, University of Lagos, delivered this piece during the presentation of a book ‘Fundamen-tal Rights Enforcement in Nigeria’ by a Lagos -based lawyer, Mr Femi Falana, in Lagos on Monday, September 6, 2010.
•Culled from the punch
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