By Koikoibo, Jasper Dieworimene
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The 1999 Constitution of the Federal Republic of Nigeria (the Constitution) gives the Chief Justice of Nigeria (CJN) the power to make Rules for the procedure, practice, and enforcement of the Human Rights under Chapter IV[1] of the Constitution. The constitution provides that: 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.[2]
Pursuant to this, the Fundamental Rights Enforcement Procedure Rules, 2009 (hereinafter ‘the 2009 FREP Rules’) were made by the CJN. Before the 1999 Constitution and indeed before the present FREP Rules, there was a variety of thorns in the flesh (so to speak) of human rights litigation in Nigeria. These thorns included the restrictiveness of locus standi, the distinction between principal and ancillary claims, the time limitation within which to bring actions, and the fact that a litigant had to obtain leave of the court as a precondition for the enforcement of his rights.[3]
For locus standi, Oronto Douglas vs. Shell Petroleum Development Company & Ors,[4] one of the first known class action litigations on environmental law exemplifies the Old Judicial Order. In that case the Plaintiff sued Shell, Nigerian LNG Ltd, NNPC, Mobil Oil Producing and the Attorney General of the Federation, praying that the joint project for the production of liquefied natural gas did not comply with the provisions of the Environmental Impact Assessment and that the project as conceived will have negative impact on the people and environment of the Niger Delta. This case was dispensed with on the ground that the plaintiff failed to show direct injury suffered by him more than any other Nigeria. A similar decision was reached by the Court of Appeal, per Omosu, J.C.A., (as he then was) in Shell Petroleum Development Company of Nigeria Limited V. Chief Otoko & Ors.[5]
However, the 2009 FREP Rules contain commendable provisions that would overturn the issues that hitherto stultified the accessibility of fundamental rights justice in Nigeria. Among other things the present FREP Rules expand the sources of fundamental rights to include those rights enclosed in the African Charter on Human and Peoples Rights (ACHPR).[6] This means that all the socio-economic rights under the African Charter, for example the right to clean and satisfactory environment, are regarded as ‘fundamental rights’ by the 2009 FREP Rules. This is why the argument has been put forward that:
The Rules laid to rest any lingering doubt regarding the justiciability of the socio-economic provisions of the Act including the right to a healthy environment, by expressly defining fundamental rights as including ‘any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.[7]
Also, while the Constitution is not silent about the issue of locus standi and has under section 46(1) provided expressly that only a person whose fundamental right ‘has been, is being, or is likely to be contravened… IN RELATION TO HIM may apply to the High Court’, the 2009 FREP Rules now expand the class of persons who have locus standi to bring an action and allow for public interest litigation. By the FREP Rules 2009, virtually anybody can bring an action to enforce human rights violation. Preamble 3(e) of the FREP rules 2009 abolishes the locus standi rule in Nigeria. This is a radical departure from the practice as well as case law[8] under the 1979 FREP Rules.
Now, no doubt, the provisions of the 2009 Rules are impressive, but what do the novel provisions imply for the Constitution? What is the legal nature cum effect of the Rules in relation to the African Charter and the Constitution?
The Court in Bewaji V. Obasanjo[9] had hinted that ‘a statute made pursuant to the Constitution enjoys some constitutional flavor’. Although this could have been said of any legislation made pursuant to the Constitution, the case of Abia State University v. Anyaibe[10] specifically confirmed the constitutional flavour of the Fundamental Rights Enforcement Procedure Rules 1979 made pursuant to section 42(3) of the 1979 Constitution, which empowered the Chief Justice of Nigeria to make rules with respect to the practice and procedure to be followed in cases concerning breach of fundamental rights. It is to be noted that section 42(3) of the 1979 Constitution is pari materia with section 46(3) of the 1999 Constitution.
In Nwaogwugwu v. President F.R.N.[11] the court relying on the Anyaibe’s Case noted that ‘the legal effect is that the rules have a constitutional connotation.’ What does this mean exactly? One writer posits that:
Since the 2009 FREP Rules were made pursuant to Section 46 (3) of the 1999 Constitution, they are deemed to be at par with the provisions of the Constitution. They possess the same force and potency as the provisions of the Constitution. They are thus of a higher status than other laws in the hierarchy of laws in this country.’[12]
I agree with the position that in the event of any inconsistency between the FREP Rules 2009 and any other law, the former will prevail to the extent of such inconsistency even for the reason that the FREP rules are of peculiar nature as compared to other rules of court or legislations drawing their life from the Constitution.
It is notable that the various heads of the various courts, including the Supreme Court are all empowered to make rules for the practice and procedure of those courts. See for example sections 236, 248, 259, 274 which give power to the CJN, President of the Court of Appeal; and CJ of the High Court of the FCT, respectively to make rules for practice and procedure of their courts, subject to any Act or Law as the case may be. But this is not the case with the power given to the Chief Justice of Nigeria under section 46(3) which simply provides that the Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of the section (section 46) without the additional subjection to a Law or Act of National Assembly.
I however respectfully disagree with the position that the FREP Rules are at par with the Constitution. Firstly, may it be noted that the Constitution is not rendered ‘incomplete’ without the existence of the Rules.
The Supreme Court in the case of Ransome-Kuti V. Attorney General[13] acknowledged with respect to the 1963 Constitution that in the absence of the FREP Rules, the court could be approached in any form of originating process recognized by the court for the enforcement of those rights. Thus, would it not be rather too ambitious to say that the Rules, whose existence have been held to be inconsequential, are part of the Constitution, more so where they contain provisions contrary to a matter the Constitution is not silent on? I think it would.
With regard to the effect of the 2009 FREP Rules in their present state, it is firstly to be noted that the Rules, like any other law, draw life from the Constitution. The Constitution is clear as to the limits of the exercise of the power so given to the Chief Justice to make the Rules under the section 46(3). At the risk of repetition, the section provides that: 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.
Thus, it is clear that the rules may be made only WITH RESPECT TO THE PRACTICE AND PROCEDURE OF A HIGH COURT.[14] In light of this, such adoption of substantive rights by defining ‘fundamental rights’ to include the rights contained in the African Charter and other instruments for the purposes of the procedure under the FREP Rules, appear inconsistent with the Constitution and therefore of no effect to the extent of the inconsistency.
The Rules appear to be a subtle way of amending the Constitution in that, while the Rights under Chapter Four termed as Fundamental Rights are conclusive, the 2009 FREP Rules have enlarged them to include socio-economic rights under the African Charter. Let us not forget that the Constitution makes express provisions as to the manner in which it (the Constitution) can be amended and does not include amendment by the Chief Justice. See section 9 of the Constitution.
One may now ask how or by what procedure the rights in the African Charter may be enforced if the argument above were to hold water, especially with regard to the fact that the Charter contains socio economic rights which are non-justiciable under the Constitution.
To answer this, note that in Attorney-General of Ondo State v Attorney-General of the Federation, the court stated the provisions section 13[15] and section 6(6)(c)[16] respectively of the Constitution implied that courts cannot enforce any of the provisions of Chapter Two of the Constitution until specific laws were enacted embodying provisions of Chapter II.
In the words of Uwaifo JSC, ‘the Directive Principles (or some of them) can be made justiciable by legislation.’ It is therefore long established that a law validly passed by the National Assembly can make Chapter Two Rights enforceable. That being the case, a better approach (than the one adopted by the CJN with the 2009 FREP Rules) would have been for the National Assembly to insert a clause in the African Charter (Ratification & Application) Act, stating that the provisions of the Charter would be enforced by the procedure contained in the FREP Rules, instead of the reverse (as the 2009 FREP Rules have done).
This approach would have had the blessing of the Constitution because under the Constitution, the CJN can make the Rules only with respect to Chapter Four Rights, as submitted above, while the National Assembly has competence to make laws for the enforcement of rights contained in any other instrument such as the Charter.
By this approach, the National Assembly would have killed two birds (firstly, the translation of Chapter Two rights into enforceable rights and secondly, the adoption of the FREP Rules as acceptable procedure for their enforcement) with one stone (the African Charter Act). While it is noted that the time of enactment of the African Charter (Ratification & Application) Act precedes the making of the 2009 Rules, and such a clause as referred above could not have been inserted, it is also noteworthy that the Charter can still be amended to include such a clause. This approach is not only logical but will also be constitutionally sound.
In any case, in the absence of any specified procedure rules, the rights under the African Charter may be enforced through the rules of procedure ordinarily applicable to the High Court or any means acceptable to the court. The latter is in line with the stance of the Supreme Court in the case of Ransome-Kuti V. Attorney General as afore-cited.
In conclusion, it is agreed that the Rules would serve as grease on the hitherto rough plains of fundamental human rights litigation in Nigeria, but not at the expense of the supremacy of the Constitution from whence they draw life.
The completeness of the Constitution is clear and inherent in its supremacy clause. By virtue of section 1(3) of the 1999 Constitution of the Federal Republic (as amended) Constitution is Supreme and superintends over every other law in the land. The case of INEC V Musa[17] is clear on this point that ‘wherever and whenever the Constitution speaks, any provision of an Act/Statute on the same matter must remain silent.’ This includes the 2009 Rules which, although higher in hierarchy to other laws, are not at par with or part of the Constitution.
Koikoibo Jasper Dieworimene
O9069645538, jasper.koikoibo@gmail.com
[1] Chapter Four contains the so called first generation (Civil and Political) rights.
[2] Section 46(3) of the Constitution
[3] See generally D.O.W Ceazer, “An Overview of The Fundamental Rights Enforcement Procedure Rules, 2009” at https://www.academia.edu/5185466/AN_OVERVIEW_OF_THE_FUNDAMENTAL_RIGHTS_ENFORCEMENT_PROCEDURE_RULES_2009_By_Duru_Onyekachi_Wisdom_Ceazar accessed on 27 September 2019.
[4] (Unreported) Suit No.FHC/L/CS/573/1996
[5] (1990) 6 NWLR (Pt.159) 693 at 726-727
[6] See the Preambular paragraph 3(e) and Order II rule 1 of the FREP Rules 2009
[7] E. Amechi ‘Litigating Right to Healthy Environment in Nigeria: An Examination of the Impacts of the Fundamental Rights (Enforcement Procedure) Rules 2009, in Ensuring Access to Justice for Victims of Environmental Degradation’ (2010) 6(3) Law, Environment and Development Journal 320, 329
[8] See the case Adesanya v President (1981) LPELR-147 (SC).
[9] (2007) LPELR – CA/A/134/M/06
[10] (1996) 3 NWLR (Pt. 439) 646
[11] (2007) 6 NWLR (Part 1030) 237 C.A.
[12] D.O.W Ceazer, “An Overview of The Fundamental Rights Enforcement Procedure Rules, 2009” at https://www.academia.edu/5185466/AN_OVERVIEW_OF_THE_FUNDAMENTAL_RIGHTS_ENFORCEMENT_PROCEDURE_RULES_2009_By_Duru_Onyekachi_Wisdom_Ceazar accessed on 27 September, 2019.
[13] (1985) LPELR-2940 (SC)
[14] Section 46(3) of the Constitution. Emphasis mine.
[15] Which enjoins government to comply with Chapter II through legislative and other means
[16] Which bars court from entertaining suits with regard to Chapter II
[17] (2003) 3 NWLR (pt 806) 72
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