ENFORCEMENT OF THE FUNDAMENTAL RIGHTS OF INTERNALLY DISPLACED PERSONS (IDPS) IN NIGERIA: THE ROLE OF THE JUDICIARY AND NBA IN PRESERVATION OF THE FUNDAMENTAL RIGHTS OF IDPS

According to President Buhari on the 25th of November, 2019, he said while receiving the president of the 74th United Nations General Assembly, Professor Tijjani Muhammad – Bande “the rehabilitation of IDPs in the country is urgent and imperative, if it would not constitute a big problem for the country in the future. He further added that we have to look at the issue now, properly rehabilitate them otherwise we will have a problem on our hands in the future.”

I must commend the president for considering the IDPs in his agenda but I must state quickly that where the fundamental rights of the IDPs are constantly infracted upon, not preserved and protected, the problem he is wishing that should not come to us in the future will come like a mighty roaring wind.

This article examines the importance of the role of Judiciary and NBA in preservation of the fundamental rights of Internally Displaced Persons in Nigeria. However, there are obstacles that tend to restrict the enjoyment and enforcement of the fundamental rights when breached or likely to be contravened in Nigeria but with the support of the Bar and Bench, some of those obstacles will lessen. Finally, it examines the procedure the fundamental rights can be enforced.

IDPs have existed as far back as hostilities have occurred but history has never known internally displaced problems of such magnitude as during the present century.

For centuries, the world has experienced

diverse forms of natural disasters like flood, drought and those caused by manmade factors like conflicts and wars. These factors have caused displacements and untold hardship to millions of victims who get caught in the situation. In some cases, the effects of the disaster are so perilous that large numbers of those affected have been forced to flee to different areas within the country for safety. According to Internal Displacement Monitoring Centre, the total number of IDPs (Conflict and Violence) as of 31st December, 2018 is 2,216,000. In the first half of 2019, about 142,000 new displacements were recorded, 140,000 by conflict and 2000 by disasters.

The state of being an IDP goes against all that human rights standards and norms stand for, it in a way rips off one’s inherent dignity and worth as a human being, placing him or her in a much disadvantaged position that is far from the notion of equality of all human beings. The international community and Nigeria have struggled to deal with the issue of IDPs without much success due to the increasing numbers and more complex dimensions the problem has taken in recent times.

Beyond the act of just receiving the IDPs and providing a camp for them, it is equally an important obligation for their country to make sure they provide fair treatment and protection to them. IDPs are particularly disadvantaged and thus vulnerable to many policies and actions which tend to violate and deprive them of their fundamental rights. In this regard, protection and preservation of their fundamental rights should not be left to our government because hardly will they do that, therefore, the judiciary, Nigerian Bar Association and other NGOs should stand firm to protect and preserve the rights of these persons.

According to the Guiding Principles on Internal Displacement, United Nations,

Internally displaced persons were defined as persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural, human made disasters or large scale development projects and who have not crossed an internationally recognised state border.

Similarly, the African Union Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention, 2009) adopted the same definition above. The above definition presents two elements that are decisive in identifying IDPs: the coercive or involuntary character of the displacement and the fact that the movement must occur without crossing an internationally recognized state border.

 Unlike refugees who cross national borders and benefit from an established system of international protection and assistance, IDPs are those who are forcibly uprooted within their own countries, by natural disasters, systematic violations of human rights or armed conflicts etc. Internal displacement has become one of the more pressing humanitarian, human rights and security problems confronting national and the international community. The internally displaced persons who fled their homes for several reasons are seeking refuge in different internally displaced persons’ camps across the country. These IDPs camps can be described as deplorable and uninhabitable with high rate of infectious diseases, starvation, lack of basic and socially amenities etc.

In my own opinion, hell has suddenly become a storage room for Ice blocks, similarly, the abuse of fundamental rights in Nigeria has become a norm and the existence of these fundamental rights is gradually becoming a mirage.  Up to the 1999 Constitution of Nigeria, fundamental rights provisions have continue to feature very well in the successive constitutions and campaigns for its protection exist but the abuse of these rights is on the increase especially by the executive arm of government.

However, I will not fail to acknowledge the efforts of the judiciary to tackle fundamental rights abuses which received a boost with the introduction of the Fundamental Rights (Enforcement Procedure) Rules 2009. By paragraph 3 (e) of the preamble of this rule, the courts are obliged to encourage and welcome public interest litigation and fundamental rights cases can no longer be struck out for want of locus standi.

It is apposite to state that IDPs are still citizens of Nigeria and continues to be entitled to enjoy the rights every other Nigerian enjoys. Under international law, it is the responsibility of Nigeria Government first and foremost to provide assistance for the IDPs in Nigeria. Just like all other human being, IDPs are entitled to enjoy fundamental rights as provided in our Chapter IV of 1999 Constitution. IDPs can also enforce their fundamental rights against any person whether juristic or natural in either the State or Federal High Court once they can establish their entitlement to a relief.

The court in the case of OSONDU & ANOR V AG ENUGU STATE & ORS (2017) LPELR-CA/E/25/2016 defined Fundamental Rights to mean any of the rights provided for in chapter IV of the 1999 Constitution of Nigeria and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.  The court in another case of ESSIEN V INYANG & ORS (2011) LPELR-CA/C/103/2008 held that fundamental rights is more significant than the rights under other statutes or laws, it goes to the root of the day to day existence of the citizen and corporate living of the citizens. – SEA TRUCKS NIG LTD V ANIGBORO (2001) 2 NWLR (PT 696) 159.

 It is trite that fundamental right enforcement procedure rules are special type of proceedings. They are in special class of their own unlike the ordinary cases that run through our courts daily, they are to be treated with due diligence and not to be handled anyhow. This is because the object of enforcement of fundamental right is to provide a simple and effective process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. – ADUMU V COMPTROLLER OF PRISONS, FEEDERAL PRISONS, ABA & ORS (2013) LPELR-CA/OW/292A/2011.

According to Juanita Leon,

“Displacement is hard, it breaks the soul, shatters human relations, sometimes one doesn’t even trust oneself.” 

Forced displacement violates fundamental rights. Whenever a state allows forced displacement to occur, it fails to protect its citizen’s rights. Forced displacement is a violation of the right to freedom of movement as provided in Section 41 of 1999 constitution of Nigeria. This right allows people to move freely from one place to another and to establish themselves at the place of their choice. However, this right can only be restricted in accordance of Section 41 (2) of 1999 Constitution. These restrictions must be expressly established by law and must be designed to prevent criminal offences or to protect national security, public order, safety, health or moral or the rights and freedom of others to the extent necessary in a democratic society.

However, there are certain factors that hinders access to Justice and enjoyment of the fundamental rights by IDPs and they include but not limited to; poverty, illiteracy, weak judicial system (fear of not getting justice), undue reliance on technical rules, delay in administration of justice non compliance of court orders. Perusing through the factors that hinders enjoyment of fundamental right, the role and relevance of the judiciary becomes pertinent, germane and kosher in the preservation of fundamental rights.  One of the vital ways to keep fundamental rights safe is by preserving the prevailing role of the judiciary.

Poverty: This is one of the greatest challenges to the enforcement of the fundamental rights of IDPs. Majority of the IDPs can be categorized as poor people and to state otherwise will be fallacious. According to Justice C.A. Oputa (Blessed Memory) he said:

“poverty is another modern form of slavery”.

 In the words of Eminent Jurist Aguda, he said:

 What fair hearing can a poor person hope to hear when he cannot even boast of a square meal a day? If he is cheated of his right, he would certainly prefer to leave the matter in the hands of God than risk death through starvation as a result of investing all he and his family can boast of as total of their worldly possession in trying to assess an illusory right to fair hearing of his grievance by the courts. To think that a very poor person can have a meaningful hearing in court in the pursuit of his right, real or imaginary, is to live in fool’s paradise.”

The eminent Jurist further stated that

The practical actualization of most of the fundamental rights cannot be achieved in a country like ours where millions are living below starvation. In circumstances of this nature, fundamental right provisions enshrined in the constitution are nothing but meaningless jargon to all those of our people living below or just at starvation level.

The NBA through their public Interest Litigation Section can partner with the legal aid scheme which was established to provide assistance for indigent persons like the IDPs who are unable to secure the services of private legal practitioners to enforce their legal rights. This scheme has been unable to make relevant impact in their purpose of establishment and how much more when it is the government that infracts on the rights of the IDPs, will they be able to maintain an action? Your answer is as correct as mine. But with the partnership of NBA, I believe they will be made more proactive to the meet the desires and expectations of Nigerians through creating aggrandize access to justice in regard enforcement of Fundamental rights of IDPs. The court in the case of OGBE V OKONKWO & ORS (2018) LPELR-CA/E/431/2014 held that the overriding objective of the FREP Rule, 2009 was to encourage public interest litigation in the sense that it fortifies the concept and principles of locus standi in fundamental rights cases.

Delay in the administration of justice: How Nigerian courts got used to delay in their administration of justice is a question that only God will settle. It is very doleful to see cases of fundamental rights lasting more than one year in our courts. However, a number of circumstances could have given rise to this delay: unnecessary adjournment of cases by lawyers, inability of judges to deliver judgment on time etc. In consideration of the delay to justice, citizens would now be reluctant to initiate actions for the enforcement of their rights. This attitude of the court has eroded public confidence in the judicial process and also undermines the very existence of the courts. 

As earlier stated, I must acknowledge the judiciary for the FREP Rule 2009; it has gone a long way to preserve and accelerate the enforcement of the fundamental right in Nigeria. The Rule was able to set aside the limitation of locus standi and gave room for public interest litigation. The rule gave room for speedy hearing of matters of fundamental rights but it is sad that some fundamental right matters still stay in court more than a year due to bulky matters in court and technicalities employed by lawyers in the court and other factors that causes delay for speedy hearing. However, I submit that the judiciary can do better to preserve and enforce the rights of persons by giving room to alternative dispute resolution mechanisms.  The importance of these alternative dispute mechanisms cannot be overemphasized; it is cost effective, absence of unnecessary adjournments, it saves time and there are not much technicalities as obtainable in litigation.

Going further, it is pertinent to outline the procedure the right of IDPs can enforce their rights when breached or likely to be breached. Section 46(1) and (2) of chapter IV of 1999 CFRN vests jurisdiction over enforcement of fundamental rights on the High Court. The section provides as follows: “Any person who alleges that any of the provisions of this chapter has been or likely to be contravened in any state in relation to him may apply to a High Court for redress.” Although, the 1999 CFRN did not define the “High Court”, Court, or High Court of a State or the High Court of the FCT, Abuja.

The following person can institute fundamental right cases:

Anyone acting in his own interest. (2) Anyone acting on behalf of another person. (3) Anyone acting as a member of or in the interest of a group or class of person (4) Anyone acting in the public interest (5) Association acting in the interest of its members or other individual or group.

For an IDP to commence an action for enforcement of his right personally or through NBA or Legal aid, such action must be made by any originating process which is accepted by that court. The application shall, subject to the Rules, lie without leave of the court. Such originating process shall be accompanied by a statement setting out the name and description of the applicant and the relief sought and the grounds upon which the relief is sought. An affidavit setting out the facts upon which the application is made and a written address. – Order II Rule 3.

In conclusion, it is a settled position of our law that the provisions of Chapter IV of the 1999 CFRN are enforceable by IDPs because they are citizens of Nigeria. It is important that the fundamental rights of IDPs are preserved because it is essential for the growth of Nigeria. If these IDPs are expected to perform their duties and obligations according to the laws of Nigeria for the interest of others, then at the same time, their rights and interest should be protected. Considering their vulnerable nature, it is apropos that the NBA and Judiciary should stand firm to preserve the fundamental rights of these persons and the need for more pro bono matters and public interest litigation should not be at a calm water state.