Human rights and government administrative processes and their administration of justice

The fundamental right enforcement procedure rules. 2009.

Human rights are considered by natural norm theorists as the species of rights which are inherent, being part of what makes us human. Human rights are inalienable and immutable. Therefore, a person cannot be denied of these rights. It has been said several times that the fundamental rights are guaranteed in international, regional and national instruments.

These rights are ascribed to man due to his humanity. In Ransome Kuti v AG Fed, Kayode Eso stated that human rights are rights which stand above the ordinary laws of the land, and it exists before political society itself. He also said that it is a primary condition to a civilized existence. Looking at human rights and its enforcement in Nigeria, along with the mechanisms in place, international instruments also have protocols attached to them. Such protocols provide the procedure for the enforcement of whatever is contained in an international instrument. Efforts to tackle human rights abuses which are prevalent in Africa, especially Nigeria, received a boost with the introduction of FREP rules 2009. The rules constitute the only code of procedure for instituting and enforcing fundamental rights guaranteed in the constitution. It came into force in December 2009 and they are made pursuant to section 46 of the constitution. Part of the overriding objectives was that the rules aimed to ensure that the 1999 constitution, especially chapter 4 of the constitution, shall be expansively and purposefully interpreted and applied with the aim of advancing and actualizing the rights and the freedoms that are contained in Chapter 4 of the constitution. Apart from advancing these objectives, the preamble also enjoins the courts to advance the Nigerian democracy, good governance, to ensure a speedy and efficient enforcement and realization of human rights. It also states that it should encourage and welcome public interest litigations, and it should avoid dismissing any suit or matter for want of locus standi.

Comparative analysis between the 1979 rules and the 2009 rules

Prior to the 2009 rules, the frep rules of 1979 was in existence. By virtue of the 1979 rules, high courts as well as appellate courts entertained matters alleging infringement of fundamental rights. The major difference between the two rules is that the 2009 rules dispenses with the requirement for a litigant to request a leave of court before he can institute a matter alleging infringement of fundamental rights. Prior to this, a complainant has to seek the leave of the court to institute an action under the 1979 rules.

1. Innovative difference. Paragraph 3 of the preamble provides the overriding objectives of the 2009 rules. Part of such objectives includes that the constitution should be interpreted with the aim of advancing the rights and freedoms contained in the constitution. The rules also gives effect to the African Charter on human rights and the universal declaration on human rights. There is reliance on national, regional and international rights instruments for the enforcement of fundamental human rights for the enforcement of fundamental human rights. The 2009 rules by order 2 rule 1 states the enforcement of rights that are entrenched not only in the constitution in chapter 4, but also the rights guaranteed in the African Charter on human rights and universal declaration of human rights. Under the old rules, complainants could only resort to rights guaranteed under the constitution as the main tool for the protection of fundamental rights.
2. The 2009 rules dispenses with leave of court. Order 1 rule 2 of the 1979 rules states that no application shall be made unless leave has been granted in line with the rules. Without leave, such an application is doomed to fail. Ogwuche v Mba. EFCC v Ekeoha. In the last case, the court held that where a special procedure is prescribed for the enforcement of rights or a remedy, non-compliance or a departure from such a procedure is incurably fatal. The rules provide that an application for the enforcement of fundamental rights may be made by any originating process approaching the court. Under 1979, the court could refuse leave.
3. Ohokosim v COP. The court stated that the grant of leave is within the discretionary powers of the high court, and the appellate court will not interfere in such an exercise of discretion unless it was obvious that such decision was arbitrary. Under order 2 of rule 2, the 2009 FREP rules states that applications may be brought directly by any of the originating process in which the respondent shall be put on notice.
4. The time limitation under the 1979 rules is abolished in the 2009 rules. This is provided for under order 3 rule 1. The application for leave is tied to the requirement of time in the 1979 rules. Order 1 rule 3 of the 1979 rules states that leave shall not be granted where the application is not made within twelve months from the date of the events being complained of. In such circumstances, the rules impose on the applicants an undue burden. Order 3 rule 1 of the 2009 rules states that no limitation statute shall apply to an application under the FREP rules.
5. The 2009 rules encourages speed and urgency under order 4 rule 1, as applicants can now bring their actions directly under any originating summons by which the respondent may be put on notice. It shall be heard within seven days from the date of filing. The burden of seeking leave is further ameliorated by the new rules seeking limitation and enforcement.
6. The 2009 rules also allows for ex parte applications under order 4 rule 4. Ex parte application is to be granted if the court is satisfied that exceptional hardship may be caused to the applicant before the service of the application, especially where the matter touches on the life or liberty of the applicant and the court is satisfied that exceptional hardship may be caused to the applicant before the service of the application on the other party. In such instances, the court will hear the application ex parte and may go on to give interim orders pending when both parties can come to court.
7. The 2009 rules dispenses with the need for verifying affidavit. Under the 1979 rules, there was the need to verify affidavit if it is a private matter.
8. The applicant or other persons can swear to the affidavit on the applicant’s behalf under the 2009 rules.