Challenges to the Enforcement of Human Rights and Remedies 

Challenges to the Enforcement of Human Rights and Remedies 

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.

Constitutional Derogation

Derogation from human rights can be explained as a temporary suspension of certain rights recognized in human rights instruments or the constitution. This is provided for in Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

  • Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
    • In the interest of defense, public safety, public order, public morality or public health; or
    • For the purpose of protecting the rights and freedom or other persons
  • An act of the 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 that period of emergency:

Provided that nothing in this section shall authorize any derogation from 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.

  • 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.

The import of this section is that there can be no derogation from the rights guaranteed in sections 37, 38,39,40,41 unless there is a law passed to that effect which must be reasonably justifiable in a democratic society in the interest of justice, public safety, public order, public morality or public health or for the purpose of protecting the freedom of other persons.

In exercising such powers, states have to show that such measures are consistent with other obligations the state may have under international law. Derogation aims to strike a balance between the protection of the individual rights of a person and protection of national needs in times of crisis[1]. The bottom line is that for purposes relevant under this section the human rights of an individual may be derogated from albeit reasonably but no judicial remedies will avail the individual.

Problem of Locus Standi

Locus Standi can be defined as the existence of a right of an individual or group of individuals to bring an action before a court of law for adjudication. It is used interchangeably with terms like “Standing to Sue” or “Title to Sue”.  The court in the case of Taiwo v Adegboro & ors[2] defined locus standi to mean standing to sue or competence of a party to sue. The concept of Locus Standi in Nigeria has been so misunderstood and misapplied by Nigerian courts that it now works injustice in the Nigerian Legal System.

The origin of the confused state of locus standi in Nigeria is no doubt traceable to the decision of the Supreme Court of Nigeria in the case of Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria &Anor[3] (hereinafter referred to as “Adesanya’s case”. Of particular importance in this regard is the judgment of Mohammed Bello JSC (as he then was) who in a seven-page judgment, read the innocuous section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 into the law of locus standi.

Bello J.S.C. in Adesanya’s case held at that:

It seems to me that upon the construction of the subsection, it is only when the civil rights and obligations of the person who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the court may be invoked. In other words, standing will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of[4].

This personal opinion of Bello J.S.C. in Adesanya’s case has triggered off the problem bedeviling locus standi in Nigeria. This is because virtually all the decisions of courts coming after Adesanya’s case took Bello’s opinion as being the decision of the Supreme Court on that issue and as such a binding precedent. It will be shown that the Supreme Court was not unanimous on this point and that Bello’s view did not even represent the majority opinion of the Justices of the Supreme Court that decided Adesanya’s case.

Tunde Ogowewo in his article “The problem with Standing to Sue in Nigeria”[5]Posited that:

“A close study of the case will reveal that the court in Adesanya’s case was in fact divided on this issue with no discernable majority. It will be apparent by now that there were two aspects to the C.J’s construction of section 6(6)(b): first he saw the provision as creating an actiopopularis in Chapter IV constitutional litigation; secondly, he did not see the provision as laying down a standing requirement.”

Oputa JSC (as he then was) in A.G Kaduna State v. Hassan[6] admitted this lack of consensus in Adesanya’s case when he said at that:

It is on the issue of locus standi that I cannot pretend that I have not had some serious headache and considerable hesitation in views on locus standi between the majority and minority judgments – between Justices of equal authority who were almost equally divided[7].

Interestingly, most of the later decisions of the courts did not put this assertion into considerations. In most of the cases, the courts proceeded from the premise that for a Plaintiff to have locus, he must show that his civil rights and obligations have been or are likely to be affected by the action as held in the Adesanya’s case.

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What looked like an oasis in the desert of the confusion on Locus standi is the dissenting decision of Ayoola JCA (as he then was) in F.A.T.B.V. EZEGBU[8] when he stated thus:

“I do not think section 6(6) (b) of the Constitution is relevant to the question of Locus standi. If it is, we could as well remove any mention of Locus standi from our law book. Section 6(6) (b) deals with judicial powers and not with individual rights. Locus standi deals with the rights of a party to sue. It must be noted that standing to sue is relative to a cause of action.”

Ayoola JCA (as he then was) seemed to be on his own with this his new found position as most other cases that came after that did not give this line of thought a consideration.

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Interestingly, the Nigerian Supreme Court in the case of Owodunmi v. Registered Trustees Of Celestial Church &Ors[9] has accepted this position of Ayoola JCA on the exact effect of section 6(6)(b) of the Constitution. The Supreme Court in Owodunmi’s case held that the Supreme Court in Adesanya’s case did not after all by a majority decision subscribe to Bello’s view on section 6(6) (b) lying down a requirement of standing. Ogundare JSC who delivered the lead judgment with no dissenting judgment, after reviewing Adesanya’s case said;

A word or two on Adesanya v. President of the Federal Republic of Nigeria (supra). It appears that the general belief is that this court laid down in that case that the law on locus standi is now derived from Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in section6(6) (b) of the 1999 Constitution)…..I am not sure that this general belief represents the correct position of the seven Justices that sat on that case only 2(Bello and Nnamani JSC) expressed view to that effect[10].

The court in the case of Dilli v Adamu & anor[11] held that where a plaintiff lacks locus standi, the court has no jurisdiction to entertain the suit which should be struck out. The court in another case of Baido v INEC & ors[12]  held that whenever the issue of locus standi is raised, the court before which the action is pending is under a duty to determine it first before going into the merit of the action itself.

Lord Diplockhad in Inland Revenue Commissioners v. National Federation Of Self Employed And Small Business Ltd[13]said:

It would in my view be a grave lacuna in our system of public law if a pressure group like the Federation or even a single public spirited tax payer were prevented by outdated technical rules of locus from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.                                       

Lord Diplock who I will describe as an exponent of Abolitionist school, advocates for a complete abolition of the test of locus standi especially in public interest litigation. He views that the court should concern itself with the merit of the matter and not the threshold issue of locus standi.

The argument being brandished by the opponents of this view is that striking down the law of locus will open up the floodgate of litigation. But I am of the opinion that the interest should really be on rule of law and justice and not whether the floodgate will be opened or not.

 

[1]  Ibid.

[2] (2011) LPELR-SC.96/2002

[3]  (1981) 2 NCLR 358.

[4]pages 385-386

[5]  (1995) Journal of African Law Vol. 39 No. 1 at Pg. 9.

[6]  (1985) 2 NWLR (Pt 8) 483.

[7]page521

[8]  (1994) 9 NWLR 149, 236.

[9]  (2000) 10 NWLR (Pt. 675) 315.

[10]at page 341 f-h:

[11] 2016 LPELR-CA/A/236/2008

[12] 2008 LPELR-CA/j/EP/GOV/23M/08

[13]  (1981) 2WLR 723 at Page 740.

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