Limitation and Enforcement of Fundamental Rights

Section 45 (1) of the Constitution states:

Nothing in sections 37, 38, 39, 40, and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society;
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom of other persons

(2) of S.45 states:

An act of National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during the period of emergency.
Provided that nothing in this section shall authorize any derogation the provisions of section 33 of this constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of section 36(8) of this constitution.

(3) states:

In this section, a ‘period of emergency’ means any period during which there is in force a proclamation of a state of emergency declared by the president in exercise of the powers conferred on him under section 305 of this constitution.

As can be seen thus, though the Constitution guarantees fundamental rights on one hand, it hereby provides for restrictions on fundamental rights and grounds on which it can take away, derogate, or limit the exercise of fundamental rights in the interests of the state by laws which are reasonably justifiable in a democratic society on the grounds of defence, public safety, public order, public morality, public health; or for the purpose of protecting the rights and freedom of other persons. The foregoing is to the effect that these rights are not in any way absolute as there are limitations so as to safeguard the rights of others and prevent any form of lawlessness and anarchy.

This section of the constitution provides for restriction and derogation, the question that rightly comes to mind is, are the two concepts the same? Restriction has been see in the light of limitations and limitations are qualifications or exceptions to those rights and they operate at all time while derogation on the other hand is an occasion when a rule or law is allowed to be ignored that is a suspension of rights. Section 45 of the constitution of the federation is the general restriction and derogation section and it applies to virtually all the rights though some specific sections contain their limitations.

Jurists such as Professor Ben Nwabueze have posited that the provisions on the restrictions and derogation are elastic thus accommodating encroachment on the rights. Again this provision tends to impute on the person whose rights have been infringed upon to show that it was not within the ambit of the term ‘reasonably justifiable’. The term reasonably justifiable has a wide connotation and tends to be vague.

It should however be noted that by the proviso to section 45, the only derogation to section 33 of the constitution that Right to life is death resulting from acts of war. It should also be noted that derogation is different from the term limitation in that while the former means a temporary suspension of rights, on the other hand limitations are qualifications to the guaranteed rights.

Enforcement of human rights

Section 46 of the 1999 constitution provides as follows;

(1) Anymore who alleges that any of this chapter has been or likely to be contravened in any state relation to him may apply to a High Court in that state for redress.
(2) Subject to the provisions of this constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.
(4) The National Assembly –
(a) may confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section; and
(b) shall make provisions –
(i) or the rendering of financial assistance to any indigent citizen of Nigeria where his right under this chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and
(ii) or ensuring that all allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.

The consistent feature of chapter IV of the constitution in the Nigerian constitution need be appreciated by all and sundry. However, the constitutional provision of the law without creating the procedural steps to be adopted in enforcing the violation of such rights. Section 46 of the constitution is clearly worded giving right to everyone or anyone whose right has/is being violated to seek redress in the court of law.

However, although the law creates where the redress can be sought, the means and procedures of seeking such redress that is how is not provided for by the constitution.

The Fundamental Rights Enforcement Procedure Rules 1979, which provided for the procedural steps required for the enforcement of any fundamental human rights infringement was made in 1979 by the Honourable Justice Atanda Fatai Williams, the then Chief Justice of Nigeria in pursuant of the power conferred on him by section 42 (3) of the 1979 constitution now section 46(3) of the 1999 constitution.

Following from the above constitutional provisions, the Chief Justices have made rules for the enforcement of fundamental rights enforcement and are known as Fundamental Rights (Enforcement Procedure) Rules which guides all fundamental human rights procedures in Nigeria. The current ruling is the Fundamental Rights (Enforcement Procedure) Rules 2009.

Ruling on jurisdiction and venue

What is Jurisdiction? Jurisdiction is the exercise of judicial power on specific territorial areas as clearly stated in the enactment creating the various courts that is simply powers vested in the courts by law.

Both the 1979 and 1999 constitution rested jurisdiction in matters of enforcement of fundamental rights in the High Courts. However, by virtue of the Fundamental Rights (Enforcement Procedure) Rules, High Courts include Federal High Court and State High Court. Order 1 of the Rules provides; “Court means the Federal High Court or the High Court of a State”.

Another paramount question is which court is vested with jurisdiction in fundamental human rights proceedings. By virtue of section 46 of the 1999 constitution jurisdiction is vested in the High Court of the State where such right was violated. Also only the High Courts of the state where such right was violated. Also only the High Courts have original jurisdiction to entertain cases of infringement of fundamental rights.

The rules cover all cases of infringement of fundamental human rights as covered or provided for by the constitution where it is infringed upon or likely to be infringed. Application is initiated by way of first seeking for the leave of court and when the leave is granted then the substantive motion or summons supported by a verifying affidavit used in the motion for leave and the statement in support of application for leave. An affidavit of urgency can be included where necessary (this practice has developed over time as a rule of practice and not law).

The application for the enforcement of fundamental human rights must be made within twelve months from the date of the incidence or event complained of or of such period as provided by the law or on the alternative the delay is explained to the satisfaction of the court where the application is made. It should be noted that where the act complained of his continuous, an action can be brought outside the limitation period at any time during the continuance of the said act.

The above provision however has created practical problems of jurisdiction for legal practitioners as the Court vested with jurisdiction is not determined at will by practitioners but by the facts of each case.

Section 251 of the 1999 constitution clearly provides for matters upon which the Federal High Court is vested with jurisdiction. In essence while the jurisdictions of state high courts are general that of the Federal High Court is specific and limited to the provisions of section 251 of the 1999 constitution.

However, in Grace Jack v University of Agriculture, Makurdi, Katsina – Alu Jsc. pointed out that “both the Federal High Court and the High Court of State have concurrent jurisdiction in matters of the enforcement of a person’s fundamental rights. An application may therefore be made either to the judicial division of the Federal High Court in the state or the High Court of the state in which a breach of fundamental right occurred, is occurring or about to occur”.

Where an issue/case is however to be enforced against the Federal Government, such should be enforced at the Federal High Court- Tukur v Government of Gongola State. The above position contravenes section 46(2) and is so, incoherent with the provision of the constitution. It is the belief that the Supreme Court will one day revisit the decision. It is equally important to note that only the High Courts have original jurisdiction to entertain actions for the enforcement of fundamental rights in contradistinction with the appellate courts.

To initiate this proceeding, the right for the enforcement of which an application can be made under these rules must be one provided for in Chapter IV of the constitution that is from section 33 – 46 of the 1999 constitution. Any claim that does not fall under this section cannot succeed under the enforcement proceeding. In essence for a high court to be seized of the matter it must come under Chapter IV and not where the alleged breach of such rights is incidental to the real claim of the application. This was the reasoning of the Court in the case of Tukur v Taraba State.

Venue

It is trite law that enforcement of fundamental rights application can only be filed at the High Court of a state or Federal High Court within or covering the state where the alleged violation occurred. However, where a breach occurs partly in one state and partly in another, either of the two states have jurisdiction over the matter, see the case of Dangote v Civil Service Commission & Ors.

In the light of the above, where a matter instituted under the fundamental rights enforcement procedure containing both issues of non-fundamental claims as the basic claim and fundamental rights claim as ancillary claims, the courts shall not be vested with jurisdiction even in relation to the fundamental rights claims. On the other hand, where the basic matter borders on fundamental rights and ancillary claims are non-fundamental rights, such can be taken under an application of fundamental rights.

Procedure for enforcement of fundamental rights

Application for the enforcement of Fundamental Rights (Enforcement Procedure) Rules basically can be categorized into three of which each is guided by time:

application for leave.
the substantive application.
hearing and determination of the application based on affidavit evidence and argument thereon.

Application for leave

Any person alleging a breach of his fundamental rights is at liberty to enforce the violated rights and unless leave to apply for the enforcement of the fundamental rights is sought and granted by the court, the person cannot so enforce. The leave is applied for as motion ex parte and the motion should contain, the following:

a statement setting out the name and description of the applicant;
the relief(s) sought;
the grounds on which it is sought; and
an affidavit verifying the facts relied on.

The reason for the application for leave as a precondition for enforcement was stated by Uwais, JSC (as he then was) in Fawehinmi v Akilu, as to determine preliminary matters such as whether a prima facie ground exists on which it can be held that the applicant’s rights have been violated and needed to be enforced.

Per Order 1 Rule 2(4) of the FREP Rules, the application for leave must be filed not later than the day preceding the date of hearing and enough copies of the statement and affidavit for service on the other party or parties as the court may order must be filed in court. The application for leave must be made within 12 months from the date of the happening of the event, matter or act complained of or such other period of time as may be prescribed by any law, or except where a period is so prescribed, the delay is explained to the satisfaction of the court or judge to whom such applications made otherwise the application shall not be granted.

There are instances where in the court refused application brought after the expiration of the twelve-month period allowed and was held incompetent. See the case of Egbe v Adefarasin. On the other hand, if reasons are adduced and they are cogent and satisfactory, the courts are empowered to extend the time within which to apply.

The substantive application

Upon the leave being granted, the applicant shall apply by way of Notice of Motion (form 1) or by Origination of Summons (form 2) in the appendix of the rules to the appropriate court. There must be at least 8 clear days between the service of the Motion or Summons and the day fixed for hearing unless otherwise directed by the court. This is however not a strict and compulsory law.

From the rules, it posits that the choice of which of the forms to use is that of the applicant, but we submit that the choice of process is dependent on the facts so relied upon in the application. In essence if the facts are contentious in nature or has the likelihood to be, the application should be by motion on notice and if they are not contentious, by originating summons.

By the provision of the FREP rules, an originating summons is expedient to be signed by the judge and not by counsel or applicant. By the rules, entering a Motion for hearing implies filing the motion for hearing.

The motion on notice or originating summons must be filed after leave has been obtained and must be entered for hearing within 14 days of granting leave. It is important to note that all parties must be served and affidavit of service must be filed before hearing.

Hearing and determination of substantive application

All parties to the application must supply to any other party copies of the affidavit which he proposes to use at the trial after which the application in relation to the motion on notice or originating summons is heard. Again there should be consistency of forms by the parties.

Amendment is not foreclosed in the enforcement procedure, hence, it is possible to amend the statement in order to deal with new facts arising out of the affidavit of any other party and the applicant may be allowed to use further affidavit for the purpose, but this is done with the leave of the court.

Reliefs under enforcement proceedings available at court

The courts have the power to make orders, issue writs and give directives as required and consider appropriate for the purpose within the applicant’s application, while in the absence of a specific prayer, the court may suo-moto grant any of the ancillary reliefs at the Ex parte stage.

The main claim under the enforcement proceedings is damages while others are ancillary and they are;

Damages.
Bail/release.
Production.
Access to modification.

Others include;

Prerogative writs and orders like habeas corpous, madamus, prohibitions, certiorari etc.
Injunctions and declarations.

It should be noted that it is contemptuous to disobey any order or directive of the court under the fundamental rights (Enforcement Procedures) Rules.

When can a person apply to enforce his fundamental rights?

This question was answered by Niki Tobi, JCA in Uzoukwu v Ezeonu. According to his Lordship, section 42(1) of the 1979 constitution (now 1999 constitution section 46) has three limbs:

The First limb is that the fundamental right in chapter iv has been physically contravened. In other words, the act of contradiction is completed and the plaintiff goes to court to seek redress.

The Second limb is that the fundamental right is being contravened there; the act of contravention may or may not be completed. But in the case of the latter, there is sufficient overt act on the part of the respondent that the process of contravention is physically on the hands of the respondent and that the act of contravention is in existence substantially.

In the Third limb, there is likelihood that the respondent will contravene the fundamental right or rights of the plaintiff.

While the First and Second limbs ripen together in certain situations, the Third limb of the subsection is entirely different. The Third gives the plaintiff the power to move to the court to seek redress immediately he senses some move on the part of the defendant to contravene his fundamental rights. But before a plaintiff invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights.

A more speculative conduct on the part of the respondent without more, cannot ground an action under the third limb.

In conclusion, the procedure for the enforcement of these rights are clearly spelt out in the FREP rules and all that is required when infringed is to seek for a leave of court and bring an application against the person or tier of government that has caused such infringement.