Fundamental Rights Enforcement Procedure Rules, 2009 as a tool for the enforcement of the African Charter on Human and Peoples' Rights in Nigeria: The need for far-reaching reform

Abiola Sanni

Senior Lecturer, Department of Commercial and Industrial Law, University of Lagos, Nigeria

SUMMARY

The article traces the evolution of FREP rules in Nigeria and highlights the problems which gave rise to FREP Rules, 2009. The article discusses the new rules and acknowledges that their objectives are laudable. For instance, the new Rules had to a large extent solved the thorny issues of how to commence human rights actions, expensive filing costs, service and limitation of action. However, the article notes that it is unusual for Rules of Court to have a preamble. The FREP Rules, 2009, therefore, depart from the usual standard. The fact that the laudable objectives of the FREP Rules are contained in a preamble may minimise their legal effect since preambles do not have the same legal force as substantive provisions. What is more, a number of provisions of the Rules are inconsistent with the provisions of the Constitution of Nigeria, 1999, and stand the risk of being declared null and void to the extent of their inconsistency in adversarial proceedings. There are a few provisions in the FREP Rules, 2009, which may be adverse to the interest of victims of human right violations compared to the FREP Rules, 1979. These include the abolition of application for leave of court and the requirement to front-load evidence together with a written address before commencing an action. These requirements may be counter-productive as counsel will require more time for research. Also, the Court of Appeal decision and the argument that FREP Rules have a constitutional flavour are misconceived and may be counter-productive as it will introduce rigidity into the review of the rule. The challenges posed with the enforcement of human rights in Nigeria are multi-faceted (constitutional, judicial and social). Therefore, a simplistic attempt to solve them through a review of the FREP Rules is surely inadequate. The article calls for legislative intervention to make the provisions of chapter II enforceable and to amend section 12(1) which requires domestication of treaties and conventions as a precondition for their enforcement.

 

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* LLB LLM (Obafemi Awolowolo), PhD (Lagos); asanni@abiolasanniandco.com
1 E Brems & CO Adekoya 'Human rights enforcement by people living in poverty: Access to justice in Nigeria' (2010) 54 Journal of African Law 258.         [ Links ]
2 NJ Udombana 'Interpreting rights globally: Courts and constitutional rights in emerging democracies' (2005) 5 African Human Rights Law Journal 47 55.         [ Links ]
3 The FREP Rules, 1979 were made by the former Chief Justice Fatayi Atanda Williams in exercise of the power conferred on him by sec 42(3) of the Constitution of the Federal Republic of Nigeria, 1979. The Rules commenced on 1 January 1980. This was the first set of rules specifically made for the enforcement of fundamental rights in Nigeria.
4 In the course of the quest for independence of Nigeria from British colonial rule, it became apparent that Nigerian political arrangements would be heavily weighted in favour of three groups that dominated the three colonial regions - North, East and West - into which the British imperial government had divided Nigeria. In the north, the Fulani allied with the Hausa whom they had ruled for a century before the onset of British colonialism in 1903, dominated the affairs of the region and persecuted the Tiv and several other minorities. In the east, the Igbo maltreated the Ibibio and other minorities. In the west, the Yoruba captured power and showed great hostility towards the Urhobo and Benin especially. Consequently, there were widespread fears expressed by such demographically smaller groups who became political minorities as a consequence of the 1954 federal arrangements in Nigeria. They feared that they would become politically endangered as minority groups following political independence from Great Britain. The British imperial government appointed a Minorities Commission in 1957 to look into such fears in the northern, eastern and western regions of Nigeria and to recommend measures for lessening them. In the course of its work, the Willink Commission submitted its report in 1958. See P Ekeh 'Willink Minorities Commission - Nigeria' (1957-58) Maps of Colonial Nigeria Showing Major Ethnic Groups and Minority Ethnic Areas http://www.waado.org/nigerdelta/Maps/willink_commission/willink_minorities_commission. html (accessed 25 May 2011).         [ Links ]
5 Secs 17-32.
6 Brems & Adekoya (n 1 above) 2.
7 BO Nwabueze Constitutionalism in the emergent state (1973) 72.         [ Links ]
8 'Legal Aids Committee. Essays in law and society' Faculty of Law, University of Tanzania, Dar es Salaam (1985) 12-13,         [ Links ] quoted in F Falana Fundamental rights enforcement in Nigeria (2010) 4-5.         [ Links ]
9 Nigeria gained independence in 1960. During the 51 years after independence Nigeria has been ruled by successive military governments for 29 years.
10 E Nwauche 'The Nigerian Fundamental Rights (Enforcement) Procedure Rules 2009: A fitting response to problems in the enforcement of human rights in Nigeria?' (2010) 10 African Human Rights Law Journal 502 503.         [ Links ]
11 Aoko v Fagbemi (1961) 1 All NLR 400.
12 Akande vAraoye (1966) NMLR 215.
13 Whyte v Commissioner of Police (1966) NMLR 215.
14 Akunnia v Attorney-General, Anambra State (1977) 5 SC 161.
15 Nwauche (n 10 above) 503.
16 Falana (n 8 above) xi.
17 Nwauche (n 10 above) 503-504.
18 (1997) 3 NWLR (Pt 491) 57.
19 See also University of Calabar v Esiaga [1987] 4NWLR (Pt 502) 719; Madeibo v Nwakwo [2001] 29 WRN 137; Attorney-General of the Federation v Ajayi [200] WRN 105; WAEC v Akinkunmi [2002] 7 NWLR (Pt 766) 327; (2202) 28 WRN 13, Achebe v Nwosu [2002] 19 WRN 42; Ahmad v Sokoto State House of Assembly (2002) 44 WRN 52 [2002] 15 NWLR (Pt 791) 519.
20 Anigboro v Sea Truck (Nig) Limited [2001] 10 WRN 78 94.
21 Order 1 Rule 3(1) FREP Rules, 1979.
22 (1999) 1 FHCLR 59.
23 Fred Egbe v The Honourable Justice Adefarasin [1985] 1 NWLR (Pt 3) 594 (1987) All NLR 1 (2003) 14 WRN 57; SD Agboola & Others v Saibu & Another (1991) 2 NWLR (Pt 175) 5 66; Michael Obiefuna v Alexander Okoye (1961) All NLR 357.
24 Order 1 Rule 2(3) of FREP Rules, 1979.
25 Order 2 Rule 1(1) of FREP Rules, 1979.
26 See Boniface Ezechukwu v Peter Maduka (1997) 8NWLR (Pt 518) 625 670.
27 [2002] 6 NWLR (Pt 670) 666.
28 (2004) 14 WRN 91.
29 Executive Governor, Kwara State v Mohammed Lawal (2005) 25 WRN 142.
30 See Gongola State v Tukur [1989] 4 NWLR (Pt 117) 517; Anigboro (n 20 above).
31 [1986] 2 NWLR (Pt 18) 559.
32 As above.
33 Falana (n 8 above) 70.
34 (2006) 45 WRN 145. See also Akintemi & Others v Prof CA Onwumechili & Others (1985) All NLR 94 (1985) 1 NWLR (Pt 1) 68. See also the case of Egbuonu v BRTC (1997) 12 NWLR (Pt 531) 29 50.
35 Unreported Suit ID/33m/93 of 15 June 1994.
36 (1996) 8 NWLR (Pt 465) 230 237.
37 Olusola Oyegbemi v Attorney-General of the Federation (1982) 3 NCLR 895; Alhaji Shugaba Abruraham Darman v Minister of Internal Affairs (1981) 2 NCLR 459; University of Ilorin v Oluwadare [2003] 3 NWLR (Pt 806) 557; Governor of Ebonyin State v Isuama 92003) 8 WRN 123 (2002) 19 WRN 42.
38 (1981) 1 NSCR 420.
39 Unreported case. See JHRLP Vol 4 Nos 1, 2 & 3, cited by Falana (n 8 above) 31.
40 1 NPILR 345 359.
41 L Dibia & E Andah 'The new Rights Enforcement Rules - Goodbye law triumphant, justice prostrate!' http://www.allAfrica.com (accessed 2 June 2011).         [ Links ]
42 Falana (n 8 above) xi.
43 See para 1 Preamble to FREP Rules.
44 See Appendix A to the FREP Rules.
45 Nwauche (n 10 above) 511.
46 'Prospect and challenges of new Fundamental Rights Rules' The Punch 22 February 2010.
47 See Order IV Rule 3 FREP Rules.
48 Order XII Rule 1 FREP Rules.
49 Order XII Rule 2 FREP Rules.
50 Order XIII Rule 3 FREP Rules.
51 United States Press Ltd v Adebanjo (1969) 1 All NLR 431 432.
52 See Obimanure v Erinosho & Another (1966) 1 All NLR 250; Mbadinuju v Ezuka & Another (1994) 10 SCNJ 109 128; Skenconsult v Ukey (1980) 1sc 6 26; Adeigbe & Another v Kusimo & Another (1965) NMLR 284.
53 See Order III Rule 2 FREP Rules, 2009.
54 Eg, the FREP Rules, 1979 began by stating: 'In exercise of the powers conferred by section 42 subsection 3 of the Constitution of the Federal Republic of Nigeria, the Chief Justice of Nigeria hereby makes the following Rules.'
55 See http://www.eng.hi138.com/LegalPapers/State/ConstitutionLawPapers (accessed 17 June 2011).         [ Links ]
56 197 US 11 (1905).
57 See 'Civil procedure' en.wikipedia.org/wiki/Civil_procedure (accessed 13 March 2010).         [ Links ]
58 [2002] 9NWLR (Pt 772) 222 (2002) 27 WRN 1 (2002) 6 SC (Pt 1) 1 (2002) FWLR (Pt 11) 1972.
59 Cap C31 LFN, 2004.
60 (1981) 2 NCLR 337 350.
61 Attorney-General of Ondo State v Attorney-General of the Federation & Others (n 58 above).
62 See Okogie v Attorney-General of Lagos State (1981) 2 NCLR 350; Oronto Douglas v Shell Petroleum Development Company Limited (1999) 2 NWLR (Pt 591) 466.
63 See generally the provisions of sec 14(1)(2) of the 1999 Constitution of the Federal Republic of Nigeria.
64 (1996) 3 NWLR (Pt 439) 646.
65 The National Youth Service Corps Decree 1993, the Public Complaints Commission Act, the National Security Agencies Act and the Land Use Act.
66 Order II R 3 FREP Rules, 2009.
67 This classification has been adopted for convenience and ease of understanding of the nature of the problems.