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APPRAISAL OF THE ENFORCEMENT OF HUMAN RIGHTS UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 IN NIGERIA

APPRAISAL OF THE ENFORCEMENT OF HUMAN RIGHTS UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 IN NIGERIA

 

ABSTRACT

The Constitution of the Federal Republic of Nigeria 1999 chose certain rights to protect under chapter IV and termed them as Fundamental Rights. These rights are chosen to be protected not only by the Constitution, but also by the African Charter on Human and Peoples Right. Whenever there are breaches of these fundamental rights, the law provides a procedure for their enforcement, which is the Fundamental Rights (Enforcement Procedure) Rules 2009.

The basic objective of the 2009 Rules is to facilitate enforcement procedure by removing some of the impediments in 1979 rule. Unfortunately it is clear that the procedure for enforcement of Fundamental Rights is still bedeviled by delay. Many applications alleging serious human rights violations are routinely struck out or dismissed. However, the pertinent question is: to what extent are the human rights provision in these legal instruments realized or enforced?(Scroll down for the link to get the Complete Project Material)

human rights

INTRODUCTION

Human Rights that are enforceable in law are those rights which are recognized by law as Fundamental Rights as distinguished from mere aspirations or individuals ideas of rights. These Fundamental Rights are now embodied in Chapter IV of the Nigerian Constitution of 1999 from Section 33 to 46, and the African Charter on Human and People Rights, which was ratified and re-enacted as a Municipal Law by the National Assembly on the 17th March 1983. The chapter provides a background to the enforceability of human right and specification of the objective of the study.

The Charter became part of Nigerian Law by virtue of the African Charter on Human and Peoples Rights (Application and Enforcement) Act.  Although human rights had been part and parcel of the successive Nigerian Constitutions since Independence in 1960, the Fundamental Rights Enforcement Procedure Rules (hereinafter referred to as ‘Fundamental Rights Enforcement Procedure Rules’) were first introduced in 1979.

Hitherto, the principal means for enforcing human rights were the prerogative writs of Habeas Corpus, Certiorari, Mandamus and Prohibition. These were often found cumbersome, somewhat technical and lacking in the flexibility necessary for the proactive pursuit of human rights claims. In the wake of the 1966 military coup in Nigeria, the 1963 Constitution of the Federal Republic of Nigeria was suspended, including chapter two on the protection of human rights… (Scroll down for the link to get the Complete Project Material)

Statement of the Research Problem

The current procedural rule for the commencement of an action for the enforcement of Fundamental Human Rights is guided by the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 46(3) of the 1999 Constitution of the Federal Republic of Nigeria by the Chief Justice of the Federation.

The current fundamental rights enforcement procedure rules, which were signed on 11th November, 2009 by a past Chief Justice of Nigeria, (CJN) Justice Idris Legbo Kutigi, came into force with immediate effect. The 2009 Fundamental Rights Enforcement Procedure Rules are aimed at advancing democracy… (Scroll down for the link to get the Complete Project Material)

Research Objectives

The aim of this research is to examine the Fundamental Rights (Enforcement Procedure) Rules 2009 towards the enforcement of fundamental rights. The research therefore sets its objectives as follows:

  • To provide a critical appraisal of the Fundamental Rights (Enforcement Procedure) Rules 2009, on the enforcement of Fundamental Human Rights in Nigeria… (Scroll down for the link to get the Complete Project Material)

LITERATURE REVIEW

Conceptual Framework

The word “right” is derived from the Latin word rectus which means that to which a person has just, valid claim. This right may be classified into legal right, which is the liberty of acting or abstaining from acting on a specific manner, or the power of compelling a specific person to do or abstain from doing a particular thing.

The Black’s Law Dictionary defines right as that which is proper under the law, morality or ethics, something that is due to a person by just claim, legal guarantees or legal principle… (Scroll down for the link to get the Complete Project Material)

Natural law Approach and the Sociological Approach to Human Right

The natural law approach:  philosophers and jurists in their search for a law that was higher than positive law, developed the theory of natural law. It was first elaborated by the stoics of the Greek Hellenistic period, and later by those of the Roman period. Natural law, they believed, embodied those elementary principles of justice which were right reason i.e. in accordance with nature unalterable and natural.

Medieval Christian philosophers, such as Thomas Acquinas, put a great stress on natural law as conferring certain immutable rights upon individuals as part of the law of God… (Scroll down for the link to get the Complete Project Material)

Theoretical Framework

The development of human rights has gone through three contemporary generations. The first generation deals with the question of civil and political rights. A right is political when it gives an individual the rights to participate in decision making e.g. the age in which to participate in politics. Civil rights are rights given to civilians; the example of civil and political rights is the entire Chapter Four of the Nigeria constitution.

This has been the trend of the Nigerian Constitution.Such rights include; rights to life, freedom from torture and inhuman treatments, freedom from slavery and forcedlabours, freedom of movement, Right to fair hearing, freedom of thoughts, conscience and religion… (Scroll down for the link to get the Complete Project Material)

APPRAISAL OF THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES 2009

The current procedural rule for the commencement of an action for the enforcement of Fundamental Human Rights is guided by the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 46(3) of the 1999 Constitution of the Federal Republic of Nigeria by the Chief Justice of the Federation. The current fundamental rights enforcement procedure rules, which were signed on 11th November, 2009 by a past Chief Justice of Nigeria, (CJN) Justice Idris Legbo Kutigi, came into force with immediate effect.

Access to Justice in the Fundamental Rights Enforcement Procedure Rules 2009

The FREP Rules, 2009 imposes a duty on the court to pursue enhanced access to justice for all classes of litigants, especially, the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented. In this regard, Clause (d) of the FREP Rules, 2009 provides to the effect that 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. This, of course, is one of the overriding objectives enshrined in the preamble to the 2009 FREP Rules… (Scroll down for the link to get the Complete Project Material)

 FINDINGS AND DISCUSSION ON THE CAUSE OF ACTION AND PROCEDURE FOR ENFORCEMENT IN THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES 2009

Findings

Jurisdiction of Courts: Jurisdiction means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means; if no restriction is imposed the jurisdiction is unlimited.

A limitation may either be as to the kind and nature of the actions and matters of which a particular court had cognizance or as to area over which the jurisdiction extends or it may partake of both these… (Scroll down for the link to get the Complete Project Material)

Discussion

With the promulgation of Fundamental Rights (Enforcement Procedure) Rules 2009, efforts to tackle human rights abuses which are prevalent in Nigeria received a boost. By paragraph 3(e) of the preamble to the Rules, the Courts are obliged to encourage and welcome public interest litigation in human right cases.

Other persons that can institute human right cases are human rights activists, advocates or group as well as any non-governmental organization who may institute human rights application on behalf of any potential applicant… (Scroll down for the link to get the Complete Project Material)

human rights

SUMMARY, CONCLUSION AND RECOMMENDATIONS

Summary

In the course of this work the researcher made the following findings.

The review of cases shows that no consistent test is applied in determining the distinction between principal and ancillary claim. Some of the instances of the distinction cannot be explained on any ground other than that the court laboured under an improper understanding of the scope of the different rights protected by chapter IV of the constitution… (Scroll down for the link to get the Complete Project Material)

Conclusion

The Fundamental Rights (Enforcement Procedure) Rules 2009 replaced the fundamental Rights (Enforcement Procedure) Rules 1979, bringing new modification to enhance public interest litigations in the field of human rights. With the Fundamental Rights (Enforcement Procedure) Rules 2009, there is improvement such as in the area of human right in the aspect of enforcement e.g the abolishment of LucusStandi and leave for enforcement… (Scroll down for the link to get the Complete Project Material)

Recommendations

It is recommended that:

  • It is imperative that the Supreme Court formalizes the understanding that the distinction between principal and ancillary claim negates human rights, and hence discard this dichotomy… (Scroll down for the link to get the Complete Project Material)

human rights

BIBLIOGRAPHY

BOOKS

AbiolaOjo,(1977),Fundamental Human Rights in Nigeria,The 1963 and 1979 constitutional Provisions Afolayan A.F. and Okorie P.C (2007) modern civil procedure Law, Dee-Sage, Lagos.

Black‟s Law Dictionary, 8th Edition

Dalhatu M.B,(2008), What is Constitutional Law, Sacombuc, Zaria.

Eze.O. (1988) Human Rights in Africa, Nigerian Law Publication Ltd, Lagos.

Femi Falana,(2010), Fundamental Human Rights Enforcement in Nigeria, Legal text, Lagos

Gye-Wado O.A,(1990), Comparative analysis of International Framework for Enforcemnet of Human Rights in Africa and Europe, RADIC.

Gye-Wado.O,(1999),The Role of Admissibility Under,the African Charter on Human and Peoples‟ Right,3 Radic.

H.L.Peacock, A History of modern Europe 1889-1979,Heinmann Educational book,Hong Kong.

Human Rights as a Problem in contemporary Africa,(1984) in Welch and Meltzer(eds), Human Rights and Development in Africa, Albany sunny press

Jadesola A.O, (1982), The Constitution of the Federal Republic of Nigeria, Sweet and Maxwell, London

Jean-Bernard Marie,(2003) National Systems for the Protection of Human Rights in Human Rights International Protection, Monitoring Enforcement, Januzsy monides(Ed.) Aldershot Hants, Ashgate, UNESCO Publlishing,

KayodeEso ,(2008),Thoughts on Human Rights and Education, Paul‟s Publishing House.

Lien,A.J(1973) AFragment of Thoughts Concerning the Native and Fulfilment of Human Rights, West part Greenwood Publishers

Mohammmed Tawfiq Ladan, (1999) International Humanitarian Laws, Ahmadu Bello University, ABU Press, Zaria

Journal and Reports

A.Oputa, (1988) access to justice, law and practice vol. No 1 of August.

Annal Report of Human Rights Situation in Nigeria 1995, Published by the Committee for the Defence of Human Rights (CDHR).

Audi J.A.M.(2012),Challenges of Constitutional Governance in Nigeria, in Legal Essay in Honour of Dr Samson Sani, Private Law Department, ABU.

JHRLP V 4Nos .12&3 December 1994,

Kabir Mohammed Danladi,(2006),The  Imperative of Reviewing the Fundamental Rights (Enforcement Procedure)Rules.ABU Law Journal,vol.24-25

Papers/Thesis/Desertations

Dalhatu. M.B, 2008, The Role of the Judiciary in the Enforcement of Human Rights in

Nigeria,(Unpublished Phd Thesis)Faculty of Law, Ahmadu Bello University,Zaria

Kabir Mohammad Danladi,2010, A Comparative Analysis of European Convention on Human Rights and AfricanCharter onHuman and Peoples Rights,(Unpublished Phd dissertation)Faculty of Law, Ahmadu Bello University, Zaria

Web Resources

Abdulwahab Abdullahi, Innovation in New Fundamental Rights Rule, retrieved January,2012,www.vanguardngr.com

Gye-wado.O,A ,1990,Comparative Analysis of International Framework for Enforcement of Human

human rights

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