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BEING THE TEXT OF A KEYNOTE SPEECH DELIVERED BY JUSTUS UCHE IJEOMA, ESQ., EXECUTIVE DIRECTOR, INTERNATIONAL HUMAN RIGHTS AND EQUITY DEFENSE FOUNDATION (I-REF) AT A COLLOQUIUM ORGANISED BY THE LEGAL IDEAS FORUM INTERNATIONAL (LIFIN) ON THE 25TH OF MARCH, 2019 AT THE DENCA MOOT COURT OF THE CHUKWUEMEKA ODUMEGWU OJUKWU UNIVERSITY, IGBARIAM CAMPUS.
Protocols,
INTRODUCTION
“Human rights” is one topic that remains current and relevant at every point in our chequered history in Nigeria. Even as we grapple with the burden of grossly manipulated elections that have made us a laughing stock among the committee of nations, a keen observer will not need the aid of a binocular to be able to see the nexus between what is happening in the country and our human rights culture. Behind every act of impunity is a mindset that repudiates human rights. Wherever there is killing of innocent citizens, whether by state or non state actors, and the government looks the other way, know for sure that such government has a very scant regards for human rights. There is a relationship between bad governance, pervasive corruption, official ineptitude and lack of respect for human rights. It is my view that most of the ills that have become emblematic in our system today are direct manifestation of our lack of respect for human rights and unwillingness to enforce same when it is violated.
Therefore, there is no better time than now to begin to have a conversation around this all-important subject. I commend the leadership of LIFIN for finding it apposite to make this topic part of her program today.
Within the time allotted to us for this topic, we shall make effort to look at the topic under the following subheadings: what is human right?; what constitutes human rights violation; what are the roles of lawyers in the enforcement of fundamental human rights and; procedure for the enforcement of human rights in court, and then conclusion.
WHAT IS HUMAN RIGHT?
Human right has been defined by a lot of eminent scholars and jurists. According to Louis Henkin, it is: “those liberties, immunities, and benefits which by accepted contemporary values, all human beings should be able to claim as of right of the society in which they live” [1].
Professor Osita Eze, defined human rights as, “demands or claims which individuals or groups make on society, some of which are protected by law and have become part of the lex leta while others remain aspirations to be attained in the future”.[2]
With greatest respect, these definitions did not go far enough. They failed to factor in some of the most fundamental characters of human rights: inalienability, universality and imprescriptibility. They are inalienable rights. That is they cannot be taken away from any individual without harming or violating such individual’s humanity. Human rights are inalienable because they are inseparable from the man, and they consist part of the existence of human being. Human rights cannot be subjected to the “accepted contemporary values” of any given society. Also, human rights are universal. I call it a common denominator to all men. It inures to all men irrespective of gender, race, creed or colour. Every member of the human community has these rights attached to them. The rights are inherent in man.
Furthermore, human rights are not just human rights because they are prescribed by laws or constitutions of nations. The constitutions or other codes mere declare it.
The foregoing thoughts accord with the views of other eminent scholars who have weighed in on the subject at one time or the other. Professor U. O. Umozurike definition is apt in this regards. He defined human rights as:
“claims, which are invariably supported by ethics and which should be supported by law, made on society, especially on its official managers, by individuals or groups on the basis of their humanity”.[3]
Our own Professor Osita Nnamani Ogbu explains that: “human rights are inherent in human beings simply because of their humanity, and have accordingly been defined as rights which are inherent in the human being. They are enjoyed by all human beings of global village and not gifts to be withdrawn or withheld or granted at someone’s whim or will. In this sense, they are said to be inalienable or imprescriptible. If you remove them from any human being, they will become less than human. They are part of the very nature of human beings, and attach to all human beings everywhere in all societies, just as much as do his arms and legs”[4]
The Supreme Court in the popular case of Ransome Kuti v. A G Federation[5], in its characteristic sagacity, stated thus:
“it is a right which stands above the ordinary laws of the land which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution is to have these rights enshrined in the constitution so that the rights could be immutable”
From the above dictum of the Supreme Court, it is clear that fundamental rights inure to all persons. These rights are held highly sacrosanct and are jealously guarded and protected by the Constitution.
WHAT CONSTITUTES HUMAN RIGHTS VIOLATION
As there are so many human rights even so there are many acts that will constitute a breach of each right. What therefore, may constitute a violation of human rights depends on the right, which its violation is being complained of. The whole of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) set out the fundamental human rights, as under our current legal regime.
It ranges from right to life, as contained in Section 33, right to the dignity of human person-Section 34, right to personal liberty, Section 35, Fair hearing- Section 36, right to private life and family-Section 37, right to freedom of thought and conscience and religion-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; and right acquire and own immovable property anywhere in Nigeria-Section 43. Section 44 deals with compulsory acquisition of property, Section 45 deals with situation where there could be justifiable derogation from the fundamental rights while Section 46 provides for the jurisdiction of the High Court and Legal Aid.
There are a plethora of decided cases, from the High Court to the Supreme Court, where the courts have spelt out various acts that constitute human rights violations. For example, in the case of Bello v. A.G Oyo[6] the Supreme Court held that the execution of a condemned criminal whose appeal was still pending in the court of appeal constitutes a violation of right to life and awarded damages against the Government of Oyo State.
In the case Ugochukwu Oraefo v COP & Ors[7]. The Court held that: “the arrest of the Applicant for an undisclosed crime is illegal, unlawful, unconstitutional and constitutes a gross violation of the Applicant’s right as enshrined under the Section 35 of the Constitution of the Federal Republic of Nigeria,1999.(as amended)”
In the same token, other courts of the land have found occasions to give meaning to acts that constitute a breach of other rights. To organize raids with the use of guns, horse-whips, and teargas in a market in the course of purported search for contraband goods and to strike or otherwise injure custodians of such goods amounts to a violation of right to the dignity of human person[8]. Similarly, the beating, pushing and submersion of the Applicant’s head in a pool of water by the 1st respondent was held to constitute inhuman and degrading treatment[9].
ROLE OF LAWYERS IN THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS
As aspiring lawyers, I think it is important to begin early enough to imbibe the requisite disposition as to what the roles of lawyers are in the realisation of human rights-friendly socio-legal environment. I have noticed that sometimes, our legal education system is configured with some cords of intimidation and subjugation. The culture of robust engagement that usually drives legal learning is almost absent in most of our institutions today. And when I talk about engagement, I don’t mean riotous banters that are devoid of intellectual content. I mean a situation where students are allowed, encouraged to interrogate the system by asking critical questions founded on knowledge and the quest to know more. I mean where students involve and associate themselves with platforms that enhance cross-fertilisation of ideas with a view to deepening their individual legal roots. This is the reason I cherish the concept of Legal Ideas Forum International (LIFIN).
The roles of lawyers in the promotion, protection, preservation and advancement of human rights cannot be overemphasised. Pats-Acholonu, JCA (as he then was) in the case of WILLIAMS V. AKINTUNDE[10] stated that: “ we all agree that the attorney whose professional thoughts begin and end with his own private clients is a pitiable mockery of what a great lawyer really is and that only by taking part in the movement for the betterment of the law of the profession can he practice law in the grand manner, the only way it is worth practising.”
The International Commission of Jurists (ICJ) has remained consistent in their avowed role of guiding lawyer in the part of social engineering. In 1962 in Rio De Janerio reached the following resolution[11]: “it is the duty of lawyers in every country, both in the conduct of their profession and in public life, to help ensure the existence of a responsible legislature elected by democratic process and an independent and adequately remunerated judiciary and to be always vigilant in the protection of civil liberties.”
- “Lawyers should be anxiously concerned with the prevalence of poverty, ignorance and inequality in human society and should take a leading part in promoting measures which will help eradicate those evils, for while they continue to exist, civil and political rights cannot of themselves alone ensure full dignity of man.”
- “lawyers have to be active in law reforms, especially where public understanding is slight and the knowledge of the lawyer is of importance. They should review proposed legislations and present to the appropriate authorities programs of reform. Lawyers should promote knowledge of, and inspire respect for the rule of law, and appreciation by all people of their rights under the law”. (Emphasis mine)
In a similar development, the United Nations General Assembly in December 1990 adopted the Basic Principles of Role of Lawyers, which proclaims, among other things, that “Lawyers shall seek to uphold human rights and fundamental freedoms recognised by national and international law and shall at all times act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession[12]”
In the words of President Kenneth Kaunda, a lawyer should “…be something more than a practising professional man; he must be more even than a champion of the fundamental rights of and freedoms of the individual. He must be, in the fullest sense, a part of the society in which he lives and he must understand that society if he is to be able to participate in its development and the advancement of the economic and social wellbeing of its members”[13]
PROCEDURE FOR THE ENFORCEMENT OF HUMAN RIGHTS IN COURT
The enforcement of human rights in Nigeria is principally guided by the Constitution of the Federal republic of Nigeria, 1999 (as amended) and Fundamental Rights (Enforcement Procedure) Rules, 2009. Under the current legal regime a lot of bottlenecks that were formally associated with the enforcement of human rights in Nigeria have been taken care of. The Rules make it clear that: “The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule”[14].
Parties and their legal representatives are encouraged to help the Court to further advance the overriding objectives of these Rules.[15]
The overriding objectives of these Rules are as follows[16]:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; Commencement 4 Fundamental Rights (Enforcement Procedure) Rules, 2009
(i) The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system,
(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system,
(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want oflocus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(iii) Anyone acting as a member of, or in the interest of a group or class of persons;
(iv) Anyone acting in the public interest, and
(v) Association acting in the interest of its members or other individuals or groups
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency
Some of the most important changes brought about by the enactment of the Rules are:
1. LOCUS STANDI: by Paragraph 3(e) of the Preamble to the Rules, anyone can bring action for the enforcement of fundamental rights of any person without being inhibited by the locus standi rule. The concept of being one’s brother’s keep has been codified and public interest litigation encouraged by the provision.
2. CAUSE OF ACTION AND JURISDICTION: Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction.[17]
3. MODE OF COMMENCEMENT: An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court, which shall, subject to the provisions of these Rules, lie without leave of Court[18]. Quite unlike other causes where a litigant is bound to commence the action in a manner provided, here it will not matter whether the action is commenced by motion, or by summons, or by any other originating process, provided that such process is accepted by the court.
4. NO STATUTE OF LIMITATION: By the provision Order III Rule1, “an application for the enforcement of fundamental right shall not be affected by any limitation statute whatsoever. That is to say that time does no longer run against a victim of human rights violation.
CONCLUSION
“Human rights”, as a subject, affects everyone and so we cannot afford to play the ostrich, burying our heads in the sands of delusion while our whole body is exposed the invidious danger of human rights abuse. There is no individual that can stand aloof, particularly in a society such as ours, where the human rights records keep going from bad to worse. As lawyers, howbeit in equity, there is need for us to develop the right attitude and sincere commitment towards changing the narratives. Though the current legal regime somewhat encourages the enforcement of human rights, there are still a lot of challenges that militate against, or discourage people from, approaching the courts for the enforcement of their rights. We will all need to resolve to keep the flag flying till victory is ultimately achieved.
Thank you!
References
[1] Henkin, L. “Human Rights” in Bernhardt (ed) Encyclopedia of International Law, 1985 Vol. 8, P.268, cited by Ogbu, O. N Human Rights Law and Practice in Nigeria, (Enugu: Snap Press Nig. Ltd, 2013) P.2
[2] Eze, O Human Rights in Africa (London: Macmillian Press, 1984) P. 5
[3] Umozurike, U. O. The African Charter on Human and People’s Rights (London: Martinus Nijhoff Publishers, !1997) P.5
[4] Ogbu O. N. Op. Cit. P.4
[5] (1985)2 NWLR (Pt.6) 211 per Kayode Eso, JSC
[6] (1986)5 NWLR (pt. 45) 828; (I986) 12 SC. 1.
[7] Judgement delivered by Hon. Justice E. S Nri-Ezedi of the Ogidi High Court on the 5th of March, 2019 in an action: HID/MISC/129/2018, brought by yours sincerely.
[8] (1982) 2 NCLR 552 Pp. 561- 562
[9] Alabor v. Boyles & Anor (1984) 3 NCLR 830
[10] (1995) 3 NWLR (Pt.381) P. 101
[11] Ogbu, O. N. Op cit. Pp. 440-441
[12] Ogbu O. N, op cit p. 441
[13] Address to the Law society of Zambia
[14] Fundamental Rights (Enforcement Procedure) Rules, 2009, Paragraph 1 of the Preamble
[15]Ibid, Paragraph 2
[16] Ibid, Paragraph 3
[17] Ibid, Or II Rule 1, See also Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
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[18] Ibid, Or II Rule 2
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