Challenges to the Enforcement of Human Rights and Remedies (3)

Challenges to the Enforcement of Human Rights and Remedies (3) 

This article deals with the challenges frequently encountered in bid to access judicial remedies for the enforcement of fundamental human rights as follows and the remedies available.

Problem of Disobedience to Court Orders

The Constitution of Nigeria 1999 provides not only access to court but also outlines the procedure for the enforcement of the guaranteed rights. The clarification of the correct procedure for human rights litigations is of great legal and practical relevance. As observed by Diplock L.J in Jaundoo v. Attorney – General of Guayana[1], ‘‘question of procedure and access to the courts are of great importance in themselves…’’

The adjudicatory mechanism for securing the enforcement of the fundamental rights is provided for in section 46(1) of the 1999 Constitution which empowers “any person” who alleges actual or imminent contravention of the guaranteed rights to “apply to a High Court for redress.” The procedure for the commencement and determination of such cases is contained in the Fundamental Rights (Enforcement Procedure) Rules, 2009.

Without doubt, accessibility to court by litigants is one thing, respect and obedience to the judgment and orders of the court is yet another important consideration. It is a notorious fact that judgments and orders of courts are not self-executing and the judiciary does not have its own body or institution charged with the responsibility of enforcing its judgments[2].

The implication of this fact is that the judiciary inevitably depends on the executive for the enforcement of its judgments. The executive branch, without doubt, is the greatest violator of human rights[3]. It is the major “predator” from which judicial protection is often sought[4]. This being the case, there is little guarantee that when an order is made against the executive branch, the same will be treated as sacrosanct.

On the contrary, the unfortunate and regrettable experience has been regular disobedience of the executive to lawful and subsisting court orders[5]. Often, government chooses the orders to obey. It obeys those it is comfortable with and disobeys those which are in conflict with its interest, ignoring the consequences to the individuals whose rights have been violated. This is true both under military rule as well as democratic dispensation.

For instance, the Federal Government refused to obey the Supreme Court judgment which declared illegal the withholding of revenue to the Lagos state local government[6].The problem of disobedience to court orders in Nigeria has tasked the intellectual energy of learned authors[7]and provoked legitimate concern and condemnation by the press[8]. So bad was the situation at a time that the umbrella body of legal practitioners in Nigeria, the Nigerian Bar Association, called out its members on a two-day boycott of courts nationwide[9].

We also have the more recent instances of Sambo Dasuki and Nnamdi Kanu who after being granted bail by competent courts are still remanded in prison custody in flagrant disobedience and disregard of the powers and orders of the courts under the guise of fighting corruption and national security.

The inevitable question therefore is: what is the value of a judgment and order which is disobeyed? Disobedience to court orders undoubtedly undermines the authority, dignity, and integrity of the court and can promote anarchy. But much more, it constitutes a remarkable challenge to the development and realization of human rights[10].

Absence of True Judicial Independence

The term judicial independence, otherwise referred to as the independence of the judiciary, does not lend itself to a generally accepted definition. Consequently, an examination of some attempts which have been made to define it will suffice for the present purpose.

According to Oyeyipo,[11]

Judicial independence postulates that no judicial officer should directly or indirectly, however remote be put to pressure by any person whatsoever, be it government, corporate body or an individual to decide any case in a particular way. He should be free to make binding orders which must be respected by the legislature, the executive and the citizens, whatever their status…

‘Independence’ means putting judges in a position to act according to their conscience and the justice of the case, free from pressures from governments, funding bodies, armies, or any other source of state power or inappropriate influence that may possibly bear upon them[12].

‘Impartiality’, on the other hand, is the judicial characteristic of disinterest towards parties and their causes in litigation[13]. Judicial independence is fundamental to every democracy, both as a guarantor of the separation of powers in the state and of the rule of law.

It is the only check on an otherwise powerful government, when that government commands an overall majority in parliament and could, by its otherwise untrammeled law-making and executive power, put citizen liberty at risk. It ensures justice and equity through the predictability of court decisions that cannot be overruled by a political establishment.

In practical terms, as recent studies have shown, it promotes economic development because investors feel more secure if they have access to an independent judiciary to resolve any disputes against the state[14] or against competitors favored by the government.

Some of the problems include the difficulty of detecting and dealing with the judge who becomes a government lickspittle, the confusion associated with the arcane method of ‘impeachment’ and other methods for removing senior judiciary; the pressures on courts from cost-cutting in a time of austerity; and the limited remedies available domestically and internationally against governments that seek to bend judges to their will[15].

From the above premise, it can be safely concluded that judicial independence is not yet a reality but a mere aspiration in Nigeria today. The appointment and removal of judges are not isolated from politics, ethnicity favoritism, and other primordial considerations.

Apart from the problem of appointment and removal, the judiciary is faced with other formidable problems which inevitably compromise its independence and impartiality. The Nigerian Judiciary lacks financial autonomy in the real sense of the word, even though under the present constitutional dispensation, a measure of financial autonomy is sought to be enthroned[16].

Furthermore, the remuneration of judicial officers is not only inadequate but laughable. The implication of this is that judicial officers are exposed to avoidable temptations of being corrupt such that their judgments are not the result of legal rule, forensic argument of counsel, precedent, and cold facts of the case, but are rather dictated by extraneous considerations. The plight of many judges is worsened by environmental challenges such as absence of social security and bloated extended family[17].

From the above, the challenge posed by the absence of true judicial independence is formidable. Similarly, its implications for human rights promotion and protection are no less daunting.

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[1]  (1971) A.C. 972.

[2]   Under the 1999 Constitution, as Amended, it is the Responsibility of the Executive branch to enforce the   law, including judicial decisions. See CONSTITUTION, Art. 5 (1999) (Nigeria).

[3]   See M.Mutua, Human Rights: A Political and Cultural Critique 2 (2002). See   Also Chidi Anselm Odinkalu, Back to the Future: The Imperative of Prioritizing for theProtection of   Human Rights in Africa, 47 J. of Afr. L. 1-37 (2003).

[4]   I. Sagay, Newbreed Magazine, August 13, 1989 at 8.

[5]  This is amplified by the cases of Military Governor of Lagos State v. Chief Emeka O. Ojukwu, [1986] 1    NWLR 621 (Nigeria); Lakanmi & Kikelomo Ola v. Attorney General(Western State), [1971] Univ. Ife     L. Rep. 201.

[6]    See A. G. of Lagos State v. A.G. of Federation, [2004] 20 NSCQR 99 (Nigeria); see also A. G. Abia State v.   A.G. Federation, [2006] 16 NWLR 265, wherein, although the Supreme Courtdeclared it unconstitutional,   the federal government paid deductions from the Federation directly tothe local government. A. G.   Federation v. A. G. Abia State & 35 Ors. (No. 2), [2002] 6 NWLR 542; A.G. of Ogun State &Ors v. A. G. of   the Federation, [2002] 18 NWLR 232.

[7]    See, J.A. Dada, ‘Impediment to Human Rights Protection in Nigeria’, Annual    Survey Ot Int. &Comparative Law, Vol. Xviii, Spring,2012 At 67-92 And P. U. Umoh,    Human Rights In Nigeria: Impediments To Realization, 2 Univ. Of Uyo L.J 41, 46 (1988)

[8]    Thisday Editorial, 23 March, 2006. In lamenting the incessant disobedience to court orders, the Editorial    stated that; “All over the world, the true measure of democratic government is not mere election. It is the    Supremacy of the law. Sadly the Obasanjo Government has shown an unhealthy disdain for the courts. The    Government has most flagrantly disobeyed court orders and ruling often for political reasons”.

[9]    For the gravity of the problem, see L. Megwara, The Law and Practice of Human Rights in Nigeria, Lagos:     Olive Printing and Publishing House, 2010 at 256 -257.

[10]     See, Umoh, op. cit.note 54, at 47-48.

[11]   T.A. Oyeyipo, Commentary on the paper captioned Whether the Establishment of the National Judicial Council and the Set-Up Will Bring a Lasting Solution to the Perennial Problems Confronting the Judiciaries in this Nation 5, delivered at the 1999 All Nigerian Judges Conference (NJC) held at International Conference Centre, Abuja, Nigeria November 1-5, 1999.

[12]   Geoffrey Robertson QC “Judicial Independence: Some Recent Problems” International Bar Association’s   Human Rights Institute (IBAHRI) Thematic PaperNo. 4, June 2014, p.3.

[13]   Ibid.

[14]    M.Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine   (Cambridge University Press 2012) p 5, and studies cited therein. The World Bank’s International Centre    for Settlement of Investment Disputes (ICSID) Convention offers international arbitration for foreign    investor disputes, but only with member governments proceeded against pursuant to an ICSID clause in    the investor’s contract.

[15]     Robertson op.cit p.3.

[16] The 1999 Constitution empowers the National Judicial Council to “collect, control and disburse all moneys, capital and recurrent, for the judiciary.” Third Schedule, Part 1, 21(e).

[17]   MUHAMMED MUSTAPHA AKANBI, The Judiciary and the Challenges of Justice (1996)   p.45.

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