Promoting human rights through judicial activism

Until the Constitution of the Federal Republic of Nigeria 1979, there was no clear, positive and ambitious mission on the part of the Nigerian state to develop a distinctive mechanism, constitutionally protected, for the protection and promotion of the fundamental rights of its citizens.

 Two reasons can easily be associated for this omission. First, for a third world country predominantly dominated by a larger population of illiterates and poverty-stricken citizenry, the point is often missed in our human rights agitations when we all ignore the fact that for the survival of man, socio-economic needs such as food, shelter, clothing etc are more immediate than the fundamental rights captured and domesticated in most statute books. It is for this reason that Rolf Kunnemann in his celebrated thesis reflected as follows:

“Economic, Social and Cultural Rights are the only means of self defence and actualisation for millions of impoverished and marginalised individual groups all over the world”3 (emphasis mine).

Just as justice is identified as the first condition of any civilised society, the survival instincts of every man strives on the availability of food, shelter, clothing etcetera.

The second imaginable reason could be the early disruption of our democratic experiment when the military, in 1966, truncated the constitutional democracy put in place at independence and consequently frustrated every effort at progressively developing the critical conditions of civil rule. Indeed, despite the international rhetoric on the equal relevance, interdependence, and indivisibility of all human rights4, in practice, states have paid less attention to the enforcement and implementation



 of ESCR and their attendant impact on the quality of life and human dignity of their citizenry, than other rights.

 

 

 

It is pertinent to point out that the doctrine of locus standi has since been relaxed in favour of human rights and public interest litigations. In other words, the case of ABRAHAM ADESANYA VS. THE PRESIDENT (1981) 1ALL NLR 1 at 20 is no longer applicable and relevant in constitutional matters.

Locus standi means a place of standing or a right of audience in court to prosecute a claim or the legal right to seek judicial intervention in a controversy or dispute or to invoke judicial determination of the rights of parties to a dispute. As far as the common law is concerned, only a person whose right has been violated or is in danger of being violated by the act complained of can approach a court for redress.

However, in order to mitigate the injustice inherent in the rigid application of locus standi, the doctrine of actio popularis was developed under the Roman Law. As a concept it allows any citizen to challenge the breach of public right in court. Until very recently, Nigerian courts held fastidiously to the traditional view of locus standi which has been jettisoned in other common law jurisdictions.

In Olawoyin Vs. Attorney General Of Northern Nigeria (1961) 2 SCNLR 5 the appellant instituted an action to declare unconstitutional certain provisions of the Children and Young Persons Law 1958 of the Northern Nigeria. The High Court dismissed the action for want of locus standi. On appeal to the Federal Supreme Court Unsworth F.J declared:

“The appellant did not in his claim allege any interest but his counsel said that the evidence would be that the appellant had children whom he wished to educate politically. There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities. In my view the appellant has to show that he had a sufficient interest to sustain a claim”

As locus standi is a condition precedent for instituting an action in court any plaintiff who cannot establish that he/she has suffered more damage than the general public as a result of the illegal action complained of stands the risks of having the action struck out. By the restrictive definition of the term, litigants who are out to promote the public good by challenging unconstitutionally actions and policies of government are chased out of court on the ground that they are meddlesome interlopers or busy bodies. See the cases of Ekundare Vs. Governor In Council & Anor. (1961) 1all 149 And Attorney General Eastern Nigeria Vs. Attorney General Of The Federation (1964) 1 All Nlr 224.

Similarly, in the case of Malachy Ugwummadu Vs. President, Federal Republic Of Nigeria & 2 Ors Suit NO FHC/L/CS/1069/09 where the present guest speaker approached the Federal High Court urging it to grant an order of mandamus compelling the respondents to fully implement the entire content and provisions of the Appropriation Act 2009 which was an Act of the National Assembly. The matter was thrown out, again, on the usual excuse that I lacked the locus standi to institute the action. From that moment till date, the Government of the Federation has never implemented the annual budget of the country beyond 54% which partly accounts for the economic woes and under development.

It is interesting to note that shortly after the decision in Abraham Adesanya’s case was handed down by the Supreme Court of Nigeria, courts in other common law countries began to relax the rigid application of the doctrine of locus standi to human rights and public interest litigation. Indeed, what turned out to be a revolution began in England where the doctrine was imported to Nigeria. That was in the case of Inland Revenue Commissioner Vs. National Federation Self-Employed And Small Business Ltd (1981) 2 WLR 723 at 740 where Lord Diplock braised the trail when he said:

“It would, in my view, be a grave lucuna 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 standing from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped”.

In case of Attorney-General Of Bendel State V. Attorney-General Of The Federation (1982) 3 NCLR 1 the Supreme Court revisited the controversial issue of locus standi when it held (per Obaseki JSC):

“The Constitution has opened the gates to the Courts by its provision and there can be no justified reasons for closing the gates against those who do not want to be governed by a law enacted NOT in accordance with the provisions of the Constitution”.

In his contribution to that historic judgment, Kayode Eso JCS was more categorical when he said inter alia:

“On constitutional issues, if this is what it imports, let there be a floodgate. The Constitution can only be tested in the courts and it is access to the courts for such test that will give satisfaction to the people for whom the constitution is made…”

Unlike previous constitutions the 1999 Constitution has imposed a duty on every citizen to abide by the Constitution, respect its ideals and institutions, respect the dignity of other citizens and the legitimate interests of others, live in the spirit of common brotherhood and make positive and useful contribution to the advancement, progress and well-being of the society.

While it may be said that the provision of section 24 of the 1999 Constitution are not justiciable it cannot be denied that it has conferred a binding duty on every citizen to promote the legitimate interests of the society “In the spirit of common brotherhood”. In any case, similar duties have been imposed on every individual by virtue of Articles 27 and 29 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004.

Furthermore, it is provided that “The Court shall in a manner calculated to advance Nigeria democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights”.

Accordingly, any person who alleges that any of the fundamental rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled may apply to the High Court for redress. See Order 1 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

In SHELL PETROLEUM DEVELO9PMENT CO. LTD & 5 ORS. V. E. N. NWAWKA & ANOR. (2001) 10 NWLR (PT 720) PAGE 64 AT PAGES 82 – 83 Pats Acholonu, JCA (as he then was and of blessed memory) held as follows:

“I think that where the cause is laudable and will bring peace, justice and orderliness that will reflect the spirit of the Constitution then we should not shirk our responsibility in this area to help in advancing the cause of Social, Economic and Cultural matters as they affect this society. The development of the law of locus standi has been retarded extensively into matters not even remotely connected with them. In my opinion, let them meddle and let the court remove the wheat from the chaff”.

Since this Country attained Independent from the British Colonial Administration almost forty seven years ago, I know of no reported case of any superior court in Nigeria where the Attorney-General of the Federation has instituted an action against the Federal Government, or an Attorney-General of a State suing his State Government on account of a violation of the provisions of the Constitution or a legislation contrary to the provisions of the Constitution. I may however be wrong in this historical assessment.

The question now is who will approach the court to challenge the Government where it violates or fails to enforce any provisions of the Constitution or the Laws where an Attorney-General will not?”.

Conclusion

My conclusion will be to join very many other concerned Nigerians who clearly appreciate that the state of the Nigerian nation is today in a terrible shape and that we need all hands on deck to re-engineer the affairs of this country and position her on the path of recovery. This endeavour will not just happen, it will take men and women of courage and knowledge who will be prepared to think out of the box and make sacrifices away from their comfort zone. In this regard, the judges have a crucial role to play as co-ministers in the temple of justice. They should be willing to do all they can “legitimately” do within their province since the institution they superintend as an arm of government will lose its potency if they remain indolent and completely disconnected from the practical challenges of the citizenry. They must find a way of responding to the challenges of their nation and nationals without which the judiciary will be perceived as a part of the problem. Certainly, the judiciary must be pro-active and safeguard the constitutional democracy that we have all elected to practice. According to Professor Ben Nwabueze in the preface to his book, Judicialism In Commonwealth Africa.

Judicialism is the backbone of Constitutionalism, the practical instrument whereby the constitutionalism may be transformed into an active idea in government; it is our best guarantee to the rule of law and therefore of liberty. But of course, the court rule does not lie in the checking of function alone; it serves also on the occasion when the court uphold challenge governmental act as unconstitutional or unlawful as a powerful legitimising force”.