By Prof Mike Ozekhome SAN

INTRODUCTION

The inaugural part of this piece was necessarily foundational: it defined ‘human rights’; ‘economic social and cultural rights’ and also reviewed historical assault on economic rights by military juntas in Nigeria. Today we continue same theme after which we shall delve into social and cultural rights and equally examine their justiciability. Enjoy.

ASSAULT ON ECONOMIC RIGHTS BY MILITARY JUNTAS (continues)

The opaque commercialization and privatization of economic policies that were originally introduced by successive military regimes in Nigeria were later to be fully and absolutely incorporated and implemented in the scheme of things by the Obasanjo administration from 1999-2007. For example, the Obasanjo administration illegally privatized NNPC, NITEL, NEPA, Federal Hotels, strategic public institutions and other public corporations, without necessarily following due process as is required under a constitutional democracy. This privatization and commercialization exercise was done with the ulterior motive of satisfying the whims and caprices of a certain cabal of politicians at the expense of the vast majority of the masses. The commanding heights of our National economy were privatized to friends, relations, school mates, surrogates and lackeys of Government officials and their compradors.

SOCIAL RIGHTS

These include right to quality education, right to security of employment, access to free medical care, right to drink clean pipe-borne water, right to electricity, right to information, right to good roads, right to good shelter and clothing, etc. These are also known as basic social amenities, which are necessarily incidental to decent and reasonable existence. We are already in the 21st century where a serious global campaign is on going for mass literacy. This campaign for good and qualitative education is predicated on the well known truism that education leads to development in all its ramifications.

Has the Nigerian Government done enough in the area of fundamentals of the importance of education? The answer in good conscience is a capital “No”. Since the days of “Ali-must-go protests (1978), education has suffered tremendously as a result of its commercialization, thus making it an exclusive preserve of the rich. The then National union of Nigerian Students (NUNS), under the leadership of late Mr. Segun Oni demonstrated its abhorrence for this and strenuously protested against the commercialization of education by the then Commissioner for Education, Amadu Ali. Unfortunately, however, this noble struggle of Nigeria Students led to indiscriminate shooting, maiming and killing of innocent and harmless students who were essentially the sons and daughters of the poor. All Federal Universities were promptly closed down following the mass protests. These tragedies occurred during the inglorious days of the military dictatorship of Obasanjo. That was perhaps the first time when Nigerian students signposted their determination to assert their inalienable right to education. Till date, education is still in shambles as all successive military and civilian Administrations have done little or nothing to improve it. While the children of the rich and people in Government attend Ivy league schools both locally and in foreign countries, the mass majority of children of the poor receive half-baked education in half completed buildings, without writing or learning materials.

In fact, since the evolution of Nigeria as a country and indeed since the attainment of political independence, no government has sincerely attempted the convocation of an Education Summit where all stakeholders are permitted to contribute intellectually to the production of a blue print for sustainable quality education that will meet our yearnings and aspirations as a rapidly developing African Country. It is an indisputable fact that without quality education, life will be of no avail and consequently, development will be retarded.

Another epochal struggle of the later National Association of Nigerian Students (NANS), for improved living standard and conditions in tertiary institutions was the 1990 agitation for the provision of the most basic needs on campuses, essentials such as pipe – borne water, electricity and laboratory equipment just to enhance quality education. The response of the then Babangida Military Junita was a far cry from the legitimate demands of the students. Between March/April, 1990, the Federal Government decided to take an IMF loan of $120m for the Federal Universities and this unilateral and retrogressive decision triggered off violent protests and agitation from the academic community. The National Association of Nigerian Students (NANS) and Academic Staff Union of Universities (ASUU), actively protested against the decision to take loan from the world Bank, essentially because the conditionalities attached thereto would worsen the already crisis – ridden educational situation in the country. Not less than three Federal Universities were closed down following the massive protests that greeted the decision to take the said IMF loan. Some students of the Obafemi Awolowo University, Ile – Ife, were arrested and arraigned before an Ile – Ife Magistrate Court for charges of conduct likely to cause a breach of the peace. The then Education Minister, Prof. Babs Aliyu Fafunwa, while trying to justify the essence of the loan stated that it was meant for the restoration of the universities, but this explanation was not acceptable to Nigerian Students as well as the Academic Staff Union of Universities, who that knew the loan would further deny Nigerians a right of access to the already collapsed educational system. All these were the by-products of SAP, an anti-people program that was initiated by General Babangida’s Military regime.

CULTURAL RIGHTS

Culture has been defined by Bairamian J. in Lewis vs. Bankole, as a mirror of accepted usage. It is a way of life of people, which has gained acceptance among them over the years. The great sage, Chief Obafemi Awolowo of blessed memory, once said that:

“Culture is the tap root of every society and if culture decays, that society will have to develop parasitic features for it to continue to exist”.

Cultural heritage has many aspects. For example, cultural songs and dance, cultural foods, cultural traditional marriage, cultural dresses and festivals. Nigerian’s multi-ethnic groups presuppose the existence of cultural pluralism. This means that as there are many different ethnic groups, so also there are different and diverse cultures in Nigeria. It is therefore necessary to preserve and promote cultural rights among the various ethnic Nationalities in Nigeria, so as to enable Nigerians participate actively in their cultural life. This would also foster our philosophy of national integration and diversity. An examination of the Nigerian Society in the pre-colonial era will reveal how well preserved, promoted and respected our cultural heritage was by all the paramount traditional rulers of the time. For example, the Benin Empire during the reign of Oba Overamwen Nogbaisi earned continental applause as a result of the Oba’s dedication and commitment to the promotion and preservation of the Benin cultural heritage. The Oyo Empire under the Alaafin of Oyo was also feared and respected by all and sundry for its commitment to the preservation of their cultural heritage. The Hausa/Fulani struggled for decades for the preservation and promotion of their cultural heritage. This was copiously acknowledged by all British Colonial Administrators in Nigeria during the colonial era.

JUSTICEABILITY OR OTHERWISE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Chapter II of the 1999 Constitution of the Federal Republic of Nigeria, 1999, as amended made copious provisions for Fundamental Objectives and Directive Principles of State Policy. Sections 13 – 24 of the constitution are basically on such all important issues and matters like fundamental obligations of the Government, the Government and the people, politics, economic, social, educational, foreign policy, environmental objectives, directives on Nigerian culture, obligations of mass media, National ethnic and duties of the citizens. Section 16 (1) – (4) of the constitution deals essentially with economic objectives, while section 17 (1) – (3) deals with social objectives; and section 21 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides for directives of Nigerian culture.

A cursory look at the Constitution of the Federal Republic of Nigeria, 1999, as altered, quickly reveals that the Government, gave these rights and privileges with the left hand, and took them back with the right hand. This is akin to the proverbial Greek gift. It is submitted with respect that, the non-justificiability of the Fundamental Objectives and Directive Principles of State Policy under the 1999 Constitution appears to be a conspiracy by the state and its preferred minions to deny the Nigerian citizens, particularly the masses, the enjoyment of their well deserved wealth by many public officers and Government functionaries. A careful consideration of the diary of looting in Nigeria will reveal how public officers in connivance with elected political office holders have embezzled and mismanaged public funds meant for provision of infrastructural facilities and other developmental projects. But since the 1999 constitution as imposed by themselves and their military collaborators has prohibited any person from challenging or seeking to enforce the Fundamental Objectives and Directive Principles of State Policy, the looting or siphoning of public funds will continue with impunity and the perpetrators will always find an escape route. The average Nigerian continues to wallow in abject penury. The recent revelations of looted billions of naira constitute and eye – opener to this tragedy.

We must encourage and promote the enforcement of all the Fundamental Objectives and Directives Principles of State Policy as they are meant to enhance the living standard of all and sundry.

THOUGHT FOR THE WEEK

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others”. – Jonathan Sacks.

By Prof Mike Ozekhome SAN

INTRODUCTION

In our last discourse on this series, we examined the procedure for enforcement of fundamental rights, including applications for leave; as well as the substantive application itself and the reactions that follow. Today, we shall continues from where we stopped with the substantive application itself and the reactions thereto and later x-ray the applications to squash proceedings; applications for production and/or release of persons restrained; orders for bail, production and access to medication. Please read on.

SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS (Continues)

In the case of LAWRENCE OLUSEGUN ADEYEMO V. C.O.P, OYO STATE ([2021] LPELR-56272(CA)), the applicant requested the court for a writ of habeas corpus under order 2 of the fundamental Rights (Enforcement Procedure) rules 1979 which provision enjoined the applicant to serve all parties who are or might be interested in the proceedings. Although the affected party had put up appearance, but raised a preliminary objection to the application for non-compliance with the statutory conditions. Babalakin. J. (as he then was) struck out the application on the ground that order 2(1)(4) is mandatory whether the application is for mandamus, certiorari, or habeas corpus.

However the Supreme Court in recent times in respect of the fundamental rights enforcements has favourably leaned towards the equitable principle of “Ubi Jus Ubi remedium”, therefore looking more at the substance rather than the form. Hence the liberalization of the procedure for the enforcement of fundamental rights as exposed in the case of ABACHA V. FAWEHINMI ((2000) 6 NWLR (Pt. 660) 228) and UBI UJONG INAH & ORS V. MARCUS UKOI ((2001) (CA) 41981.

APPLICATION TO QUASH ANY PROCEEDINGS

Sometimes it may be necessary for an applicant by way of certiorari to apply to the court for an order that such proceedings be removed from a particular court or tribunal to another court for the purpose of being quashed for lack of power and/or jurisdiction to entertain such proceedings or make such order.

However, an applicant shall not be able to question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of his application (Motion or summons), he has served a certified copy (CTC) thereof together with a Copy of the application on the Attorney-General of the Federation or of the State in which the applicant is being heard (as the case may be).

The court in granting an application seeking to quash proceedings, shall direct that the order, proceedings, conviction or the records of an inquisition be quashed forthwith upon being removed into the court hearing the application.

APPLICATION FOR PRODUCTION AND/OR RELEASE OF PERSON RESTRAINED

By virtue of Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, where an applicant complains of wrongful or unlawful detention, the court or judge to whom the application is made ex-parte may make an order forthwith for his release from such detention.

The court may also direct that an originating summons (as in form 2) be issued or that an application therefore be made by notice of motion (as in form 3). The court may also as it deem fit adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.

ORDER FOR BAIL, PRODUCTION, AND ACCESS TO MEDICATION

Pursuant to order 4 of the bail application, the court upon application may grant to the detainee reliefs including bail, production of the detainee, access to mediation etc.

The court may grant bail at ex-parte stage, pending the substantive application. Where an applicant complains of wrongful or unlawful detention, the court may subject to its discretion order that the person restrained be produced in court. And where such order is so made, it shall constitute a sufficient warrant to any superintendent of a prison, police officer in charge of a police station, police officer in charge of the complainant or any other person responsible for his detention, to produce or ensure the production of the person so restrained or detained in court.

For the purpose of enforcing a person’s fundamental rights, no matter where a detainee is kept he can be allowed access to his personal physician or medically prescribed drugs.

It suffices to note here, that once an order has been made by the court pursuant to the Enforcement Rules, and for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the constitution, such order must be complied with. Failure to obey or comply with any order so made by the court under these rules will incur proceedings for the committal of the party disobeying such an order.

CONCLUSION

Without any controversy, the idea of human rights and personal liberties has become firm and secured. The universality and immutability of human rights are now globally accepted. Consequently, any nation that slacks or shyies away from the diligent protection and enforcement of human rights stand the precarious risk of being shunned by decent and civilised nations. The United Nations seems to have captured the importance and primacy of the issue of human rights and its protection when it poignantly stated as follows:

“Human Rights and fundamental freedoms are the birth right of all human beings, their protection and promotion is the first responsibility of Government” (Universal Declaration of Human Rights (UDHR).

It is the duty of every Government everywhere and every courts of law in every jurisdiction to promote, protect, uphold, and ensure enforcement of fundamental Human rights at all times, because these rights encapsulate the very essence of man.

The end.

THOUGHTS FOR THE WEEK

“Human rights, of course, must include the right to religious freedom, understood as the expression of a dimension that is at once individual and communitarian – a vision that brings out the unity of the person while clearly distinguishing between the dimension of the citizen and that of the believer”. – Pope Benedict XVI.

“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home”. – Martin Luther King III

“Human rights are not only violated by terrorism, repression or assassination, but also by unfair economic structures that creates huge inequalities”. – Pope Francis.

By Prof Mike Ozekhome SAN

INTRODUCTION

Last week’s installment examined amongst others, the features of what constitutes violation of fundamental rights and posed the question- whether enforcement of such rights is restricted to the mechanism of the FREP Rules? This week contuse the same theme by discussing the procedure for enforcing fundamental rights, including applications for leave; the substantive application itself and the reactions thereto. Please read on.

PROCEDURE FOR ENFORCEMENT (Continues)
Furthermore, the Court of Appeal (Benin Division) dilated on the procedure in the case of N.U.T Vs. COSST ((2007) 23 E-WRN / 03 (CA).), thus:

“By virtue of Order 1 rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules, no application for an order enforcing or securing the enforcement within that state of any such rights shall be made unless leave therefore has been granted in accordance with the rules. Thus, while an applicant can approach the High Court in a state where the infringement of his rights occurs or is likely to occur for redress he has to obtain leave of the appropriate High Court before he can apply to enforce his rights. In the instant case, even if the case was a fundamental right case the suit was not commended by due process, as the respondents approached the court by way of originating summons contrary to the provision of Order 1 rule 2(2) of the Fundamental Right (Enforcement) Rules.

An application for the enforcement of fundamental right becomes incompetent if the main claim does not fall within the ambit or precinct of chapter IV of the Constitution. Any claim that falls outside chapter IV of the Constitution becomes ancillary claim. Therefore, for an applicant for enforcement of fundamental rights to be competent, it must be within the provisions of chapter IV of the Constitution.

This point reverberated in W.A.E.C Vs. Akinwumi, (2008) JELR 49485 (SC), where the Supreme Court succinctly held that:

“In ascertaining the justicieability or competence of a suit commenced by way of application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the court must ensure that the enforcement of the fundamental rights under chapter IV of the Constitution is the claim and not ancillary claim. Where the claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly invoked, and the action is liable to be struck out on ground of incompetence.”

Also, in Unilorin Vs. Oluwadare (2008) JELR 55842 (CA), the court adumbrated the point as follows, when it held that:

“When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the appellant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. However, where the main claim or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised as it will be incompetent. In the instant case, the respondent’s claim, being a challenge to his expulsion as a student from the 1st Appellant institution, is not one of those claims/reliefs envisaged by the Fundamental Rights (Enforcement Procedure) Rules.

See also Gafar Vs. Govt., Kwara State, (2007) JELR 53915 (SC); Unical Vs. Ugochukwu 2007-LD-CA-232.

It is important to note that an applicant seeking redress for the infringement of his Fundamental Rights shall in addition to declaratory and injunctive orders also be entitled to an award of damages. This is because in fundamental right cases, the law presumes that damages flow naturally from the injury suffered by the victim as a result of the violation of the rights.

APPLICATION FOR LEAVE

By virtue of Judgment (Enforcement) Rules in Nigeria, no application for an order enforcing or securing the enforcement within a state, of any such rights shall be made unless leave therefore has been granted in accordance with these rules. Also, any application for such leave must be made ex-parte to the appropriate court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and grounds on which it is sought and by an affidavit verifying the facts relied on.

The deadline for filling an application for leave is not later than 12 (twelve) Months after the date of the happening of the event complained of, unless the judge is satisfied that extenuating circumstances exist. In case of ongoing act, an action can be brought after 12 Months deadline, at any point during the continuation of the wrong. An applicant must however file the application for leave not later than the day preceding the date of hearing. The court may in granting leave to the applicant impose such terms and condition as it may deem fit, as security for cost.
It is to be noted that leave once granted, shall operate as a stay of all actions relating to or connected with a complaint which forms the subject matter of the application until the determination of the substantive suit.

The ex-parte application for leave must specify the provisions of the enforcement procedure Rules under which it is brought, the precise content of the relief to be requested once the application for leave has been granted and cursory reference to relevant laws. This must be accompanied by an affidavit verifying relevant facts to be relied on.

The deadline for filing an application for leave is not later than 12(twelve) months after the date of the happening of the event complained of, unless the judge is satisfied that extenuating circumstances exist. In cases of ongoing act, an action can be brought after 12month deadline, at any point during the continuation of the wrong. An applicant must however file the application for leave not later than the day preceding the date of hearing. The court may in granting leave to the applicant impose such terms and conditions as it may deem fit, as security for cost.

It is to be noted that leave once granted, shall operate as a stay of all actions relating to or connected with a complaint which forms the subject matter of the application until the determination of the substantive suit.

The ex-parte application for leave must specify the provisions of the enforcement procedure Rules under which it is brought, the precise content of the relief to be requested once the application for leave has been granted and a cursory reference to relevant laws. This must be accompanied by an affidavit verifying relevant facts to be relied on.

SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS

After obtaining leave, the applicant can apply for an enforcement order by way of NOTICE OF MOTION (as in form 1) or ORIGINATING SUMMONS (as in form 2). In the celebrated case of SHUGABA, A. DARMAN V. MINISTER OF INTERNAL AFFAIRS & ORS. ((1981) 2 NCLR 459). It was held inter-alia that the proper procedure to be followed in an application for enforcement or securing the enforcement of fundamental rights and redress for violation of same is guided by the fundamental Rights (Enforcement Procedure) Rule 1979 which requires that where leave has been granted to apply for the order being asked the application for, such order must be made by notice of motion or originating summons to the appropriate court.

The motion or summons, together with a copy of the statement submitted in conjunction with the application for leave, must then be served on all persons directly affected. Unless the court directs otherwise, there must be at least 8 clear days between service of the motion or summons and the date fixed for hearing.

A substantive application either by motion or summons seeking for substantive reliefs, remedies or orders may include such prayers as:

a. Unconditional release of the detainee
b. Payment of a certain sum of money as compensation in the event of the arrest and detention being illegal, unwarranted, null and void.

The court may equally make any other ancillary order after hearing argument from counsel on all sides based on the affidavit and counter-affidavit.

It should be noted that failure to adhere to the procedure laid down by the Enforcement Rules may lead to the entire proceedings being nullified. The court shall upon objection being raised for non-compliance with the rules strike the entire proceedings out. (To be continued).

THOUGHT FOR THE WEEK

“Human rights, of course, must include the right to religious freedom, understood as the expression of a dimension that is at once individual and communitarian – a vision that brings out the unity of the person while clearly distinguishing between the dimension of the citizen and that of the believer”. – Pope Benedict XVI