Vanguard (Lagos)

Nigeria: Innovations in New Fundamental Rights Rule

Efforts to tackle human rights abuses which are prevalent in the Africa region, especially in Nigeria received a boost recently with the introduction of the new Fundamental Rights (Enforcement Procedure) Rules (FREP), 2009.

The new procedure rules which was signed on November 11, 2009 by the immediate past Chief Justice of Nigeria, CJN, Justice Idris Legbo Kutigi came into force with immediate effect.

The new rules, unlike the previous rules guiding the procedure to be followed in court in applications for the enforcement of Fundamental Rights, under Chapter iv of the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, contain some innovations that will make the processes easier for lawyers and litigants.

The new rules unlike the previous one allow lawyers or the litigants to file their brief, even if the applicant is detained. In other words, it is not necessary that the applicant must be physically present before the commissioner for oath to swear to his statement or the affidavit.

However, as beautiful as the new rules are, there are still areas to be improved upon in order to create a society devoid of constant rights abuse and the violation of the law by those in authority.

Some prominent lawyers including the Nigerian Bar Association (NBA) President, Chief Rotimi Akeredolu (SAN), Mr. Olisa Agbakoba (SAN), Justice Joseph Oyewole, Mr Femi Falana, Mr Bamidele Aturu, Professor Ibidapo Obe of the Law Faculty, University of Lagos and a hosts of others x-rayed the new rules at a seminar recently and came to a conclusion that the rules still need improvement.

Apart from this, participants at the forum charged lawyers to utilise the new procedure rules to enlarge the frontiers of laws and constitutional provisions bordering on human rights violation in Nigeria.

The legal practitioners who presented papers at the seminar with the theme: "Critical Appraisal of the Fundamental Rights (Enforcement Procedure) Rules, 2009," organised by the Falana and Falana chambers, agreed that the new rules was a departure from what was obtained in the past as it allows both lawyers and litigants to use the court in redressing the violation of their rights.

Those who presented papers at the event; Justice Olubunmi Oyewole, Mr Olisa Agbakoba and Mr. Falana, all noted that the new rules have some innovations, which if taken advantage of will go a long way in protecting and educating lawyers and citizens on their right.

Innovations in the rule

Mr. Agbakoba (SAN) who spoke on the innovations in the new rules, in the areas of jurisdiction, said applicants can file an action in the state where the infringement occurs.

He also said the era of inhibition on issue of locus standi is gone noting that the applicant no longer needs the leave of court to apply for a redress over the violation of his fundamental rights.

According to him, it is also no longer necessary for an applicant whose rights were violated to personally file an affidavit before he can approach a court of competent jurisdiction.

He added that such application can be made on behalf of an applicant whose rights have been infringed upon and who is seeking a redress of same. He argued this will bring some reliefs to lawyers and litigants as well.

Shortcomings and inhibitions in the rules

Mr. Falana noted that there are limitations in the areas of the court striking out or dismissing fundamental rights applications on the ground that fundamental right matters against state government cannot be instituted in the Federal High courts.

On issues of principal claim or ancillary relief which is one of the major headaches by the applicants, Falana said often times, the Court of Appeal in some decided cases on fundamental human rights has increased its restriction " of the scope of the applications for the enforcement of fundamental human rights cases. Indeed, applications alleging serious human rights violation are routinely struck out or dismissed on the grounds that they are mere ancillary reliefs."

He also noted that there are limitations in the areas of freedom of association by workers. According to him, "The right of workers to belong to trade unions for the protection of their interest is guaranteed by the Trade Union Act, the Constitution and the African Charter on Human and Peoples' Rights.

But in clear breach of such rights, Trade Unions are either proscribed or derecognised by employers of labour. For some inexplicable reasons, the violation of the fundamental right of workers to freedom of association is viewed as an ancillary relief which cannot be enforced under the FREP Rules."

Mr. Falana then concluded by urging human rights attorney to engage in the rigorous challenge of the economic, social and cultural rights of the Nigerian people.

"I shall challenge the human rights community to take advantage of the FREP Rules to enforce the socio-economic rights of the Nigerian masses who are wallowing in abject poverty in the midst of plenty" Mr. Falana said.

Court Issues/ Public Interest Litigation under FREP

Justice Joseph Oyewole who spoke on "Public Interest Litigation under the Fundamental Rights (Enforcement Procedure) Rules 2009", said lawyers have ample opportunities under the new rules. According to him, Lawyers can as well file a public interest cases before the court depending on the evidence placed before the court and the utilisation of the law into detail.

While responding to questions on why lawyers are not given enough time to argue their brief / applications in court, especially on issues of fundamental human rights, Justice Oyewole said "firstly we have heavy congestion in the court and thus we decided in reducing the time spent on taking oral submission by lawyers', for which reason written address approach was adopted."

He also noted that with the advancement in technology, things will soon improve, especially when verbatim machines can be used in transcribing court proceedings and that lawyers will have ample time to argue their applications in court.

He however observed that there will be limitation when it comes to the area of the machine being able to transcribe dictions different from the ones recognised by the machine. He further urged lawyers to design their brief in such a way that the highlights of their arguments would take better part of their brief.

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