THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009: THE CONSTITUTIONALITY OF THE ABOLITION OF LOCUS STANDI AND TIME LIMITATION
JAMES A. KANYIP, Esq.
The judiciary in Nigeria is the most popular and effective mechanism for human rights enforcement and protection. Under section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, as amended (“the Constitution”), any person who alleges that any of his fundamental rights and freedoms under Chapter IV of the Constitution is being or is likely to be contravened in any individual or the State in relation to him may apply to a High Court in that State for redress; and the High Court shall have original jurisdiction to hear and determine any application made to it, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any right within the State. It should be noted that only the High Court (the Federal High Court, State High Court or the High Court of the Federal Capital Territory) has original jurisdiction in respect of applications for the enforcement of human rights in Nigeria. See Order 1, rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
In the exercise of the powers conferred on him by section 46(3) of the Constitution and with a view to ensuring the smooth enforcement of fundamental rights and freedoms enshrined therein, the then Chief Justice of Nigeria, Idris, Legbo Kutigi made the Fundamental Rights (Enforcement Procedure) Rules, 2009 (“the Rules”) to replace the 1979 Rules. The Rules brought in some laudable innovations which are revolutionary in nature for the purpose of enforcement of human rights in Nigeria. For purposes of emphasis, paragraph 3 of the Preambles to the Rules is reproduced thus:
“3. The overriding objectives of these Rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protection intended by them
(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form part of larger documents like constitutions. Such bills include:
(i) The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system.
(ii) The Universal Declarations of Human Rights and other instruments (including protocols) in the United Nations Human Rights system.
(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the incarcerated, and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights applications, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(ii) Anyone acting as a member of, or in the interest of a group or class of persons;
(iv) Anyone acting in the public interest; and
(v) Association acting in the interest of its members or other individuals or groups
(f) The Court shall in manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.”
First, the Rules enjoin the Court to give the Constitution, especially the provisions of Chapter IV, as well as the African Charter on Human and Peoples’ Rights expansive and purposive interpretation and application.
Second, the Rules enjoin the Court to respect municipal, regional and international bills of right cited to it or brought to its attention which include the African Charter (including protocols) in the African regional human rights system, and the Universal Declaration of Human Rights (including protocols) in the United Nations human rights system.
Third, the Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture pursue the speedy realization of human rights; and shall give human rights suits priority in deserving cases. Specifically, where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.
Fourth, the Rules enjoin the Court to encourage and welcome public interest litigations aimed at enforcing human rights provisions. Here, human rights activitists, advocates, public-spirited persons, and Non-governmental Organizations (NGOs) can bring human rights application on behalf of potential applicants. To this end, the requirement of locus standi is abolished by the Rules. This provision is novel.
Last, under Order III, rule 1, an application for the enforcement of fundamental right shall not be affected by any limitation statute whatsoever. This provision is also novel. Under the 1979 Rules, there was a limitation time of one (1) year within which to commence an action to enforce a fundamental right that was breached or threatened to be breached. See Order 1, rule 3 of the 1979 Rules. Under the new Rules, there is no time limit to commence such action. Therefore, an action for the enforcement of fundamental rights and freedoms can be commenced at any time whatsoever.
The innovations in the new Rules have received commendations from a wide spectrum of the human rights community. To A. A. Akume:
“The fundamental rights enforcement procedure rules 2009 is indeed a radical piece of subsidiary legislation. It has laid to rest the vexed issue of locus standi and statute of limitation enacted to protect infringing public officers from prosecuting after the three months window period. The provision of the rules allowing direct and representative actions in the enforcement of human rights is a welcome relief. This provides a grandiose platform for the enforcement of human rights in Nigeria. The new rules portray Nigeria’s determination to join the league of nations with good human rights regime, a fundamental attribute of civilized nations of the world. The rules will also enhance the activities of civil society organisations of Nigeria. They are now free to operate in the area without being afraid of the locus standi dragon or the statute of limitation monster. The coast is also clear for activist judges who want to see democracy, rule of law and good governance thrive in Nigeria. They must now listen to litigants without the fear of locus standi and statute of limitation as it relates to human rights enforcement. Executive rascality and oppression of the masses must be tamed by ferocious denouncement of human rights violations. Nigeria is put on the road to becoming of good human rights record globally with the 2009 fundamental rights enforcement procedure rules. This is even more so given that the preamble to the fundamental human rights enforcement rules allows Nigerian Courts to apply regional and international instruments, including additional protocols dealing with human rights to which Nigeria is signatory” (See “The Abolition of Locus Standi and Statute of Limitation in Fundamental Rights Enforcement in Nigeira”, Human Rights Review (An International Human Rights Journal), An Annual Publication of Department of Public Law, Ahmadu Bello University, Zaria, Nigeria and The National Human Rights Commission of Nigeria, Vol. 1, No. 1, October, 2010, p. 395.)
Worthy of mention, here, is that when a fundamental right or freedom is constitutionally conferred on an individual, then the provisions of section 46 of the 1999 Nigerian Constitution, and those of the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to the Constitution are automatically applicable in the event of a breach or likely breach of that right. See Ogugu v. State (1994) 5 NWLR (Pt 336) 1
The constitutionality of the provisions of paragraph 3(e) of the Preamble to the Rules dealing with the abolition of locus standi, and Order III, rule 1 of the Rules dealing with the abolition of time limit is subject to debate. It is our view that the provisions have the colouration of rules of court and not rules of substantive law. It is settled law that rules of court do not confer jurisdiction, neither do they confer substantive rights and obligations that are actionable per se. In the case of Haruna Yunusa Sa’eed & Another v. Patrick Ibrahim Yakowa & Another Suit No. SC/21/2012, the Supreme Court, per F. F. Tabai, JSC who delivered the lead judgment held thus at page 13:
“The First Schedule to the 2010 Electoral Act (as amended) represents the Rules of procedure for Election Petitions. And as rules of court, they do not confer jurisdiction. See Ogunremi & Ors v. Dada & ORS (1962) N.S.C.C. 419 at 422. It follows therefore that a petitioner’s breach of any of the provisions of the 1st Schedule does not affect the jurisdiction of the tribunal or court to entertain or adjudicate on the petition…”
The effect of this decision is that rules of court are meant to guide the orderly and systematic presentation of a cause before a court; and do not, ipso facto, create rights and obligations. See Famfa Oil Limited v.Attorney-General of theFederation & Another (2003) 11 MJSC 66
Such rights and obligations are created by substantive law vide the constitution, statutes, common law or international norms of obligations like treaties.
Having said this much, the constitutionality of the provisions of Order III, rule 1 of the Rules is even more complex when juxtaposed with the provisions of other statutes imposing time limit on the commencement of a cause of action. For instance, section 2 of the Public Officers Protection Act, Cap P41, Laws of the Federation of Nigeria, 2004 provides that an action against a public officer must be commenced within three (3) months of the accrual of the cause of action. This provision is clearly in conflict with the provision of Order III, rule 1 of the Rules. Which one prevails? The argument can be four-way. First, it can be argued that since the Rules are direct derivate of the Constitution by virtue of the provision of section 46(3) thereof, then they are superior to the provision of the Public Officers Protection Act. This argument sounds convincing on the face of it.
Second, and on the other hand, if the holding of Belgore, JSC in the case of Famfa Oil v. Attorney-General of the Federation & Another (supra at page 77) is good law, and we agree that it is, then the first argument can be punctured. He said:
“(Rules of) procedure are to guide orderly and systematic presentation of a case, it is to help the substantive law and not to enslave it. It is true that the Constitution allows for Rules of Procedure to be made but it does not make procedure to be master of the law. After all, all laws have the Constitution as their fountain and they exist only due to the Constitution. The insertion of S.254 in the Constitution of the Federal Republic of Nigeria, 1999 is to provide not only for the obvious but to empower who is to make the Rules. Certainly, it has not made the Rules superior to any law or makes the Rules more fundamental than any law.”
It was argued in the above case that the Federal High Court (Civil Procedure) Rules were superior to statutory law because it was a creation of section 254 of the Constitution. The Supreme Court dismissed that contention as can be seen, per Belgore, JSC above.
Third, section 46(3) of the Constitution only empowers “the Chief Justice of Nigeria to make rules with respect to the practice and procedure of a High Court for the purposes of this section.” This means that the Chief Justice of Nigeria only has powers to make rules and no more. A closer and critical look at the provisions of paragraph 3(e) of the Preamble to, and Order III, rule 1 of the Rules will show that they are rules of substantive law and not rules of procedure. The Chief Justice of Nigeria has no power under the Constitution to make rules of substantive law; the power is vested in the legislature: the National Assembly and States House of Assembly depending on the subject matter, and whether it falls within the Exclusive Legislative List or Concurrent Legislative List. This position is fortified by the provisions of section 46(4)(a) of the Constitution which provides thus:
“The National Assembly:
(a) may confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section”
From the above provisions, it is clear that the provisions of paragraph 3(e) of the Preamble to, and Order III, rule 1 of the Rules fall within the exclusive legislative competence of the National Assembly and not the Chief Justice of Nigeria. It is our submission, therefore, that the Chief Justice of Nigeria acted ultra vires his powers when he included the provisions of paragraph 3(e) of the Preambles to, and Order III, rule 1 of the Rules.
Fourth, the Rules are a subsidiary legislation while the Public Officers Protection Act is an Act of the National Assembly: a principal legislation. It is settled law that in the event of a conflict between a subsidiary legislation and a principal legislation, the latter prevails. See N. T. Bell v. Mrs. E. E. Ebenezer (1961) ANLR 364. In view of this, we submit that the provision of Order III, rule 1 of the Rules, being a rule of procedure, cannot override, supercede or be superior to the provisions of Section 2 of the Public Officers Protection Act. This is so, a fortiori, that both the Rules and Act are derivatives of the same Constitution; and since one is a rule of procedure while the other is a rule of substantive law, the latter prevails.
Last, the opening words of paragraph 3 of the Preambles states: “…The overriding objectives of these Rules are as follows:…” The problem here is that, first, the contents of paragraph 3 are contained in a preamble and not the main body of the Rules. A preamble is an introductory explanation; a section at the beginning of a speech, report, or formal document that introduces what follows; a section at the beginning of a speech, report, or formal document that introduces what follows. A preamble is not the main enactment but an explanation of what the main enactment is all about, the general policy, or what it sets out to achieve, although resort may be made to it for purposes of construction or interpretation when the words in the main enactment are ambiguous. See the cases of Abioye & Others v. Yakubu & Others (1991) 5 NWLR 130 and Ogbonna v. Attorney-General, Imo State & Others (1992) NSCC 103. Second, the problem is further aggravated by the use of the words ‘overriding objectives’. Objectives are the goals set out to be achieved by something or somebody. Therefore, it is our view that the whole of the provisions or contents of paragraph 3 to the Preambles are merely policy or mission statements not intended to be part of the main enactments contained in the Rules. They have no force of law.
Our arguments thus far are not an attempt to say that the efforts to bring some novel revolutions into the Rules are not commendable. They are indeed commendable. However, they would have been constitutionally effective only if contained in the Constitution or in a statute as substantive law; and this can only be done by the National Assembly. Untill that is done, it is our view that the Rules cannot be used to as a guise for substantive law.