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HUMAN RIGHTS AND NATIONAL SECURITY: A CRITICAL APPRAISAL OF THE NIGERIAN PERSPECTIVE

CHAPTER ONE

1.0       GENERAL INTRODUCTION

1.1        Background to the Study

Fundamental Rights are rights derived from natural or fundamental or constitutional law[1]. They are rights which remain in the realm of domestic law, which are recognized, entrenched and guaranteed in the constitution of a country or any other legal instrument such as the African

Charter on Human and People’s Rights. Fundamental Human Rights are also described as rights which are inalienable and guaranteed to every person.

The Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples‟ Right guarantee fundamental human rights. These Fundamental Human Rights are not privileges in the sense that they could be withdrawn at the whims and caprices of the government of the day. They are rights which the executive and legislature are enjoined to respect and the judiciary to protect. However, there are instances where these guaranteed rights are violated either by the law enforcement agents or in quasi-judicial proceedings[2]

Furthermore, where there are breaches of these rights, the appropriate means to secure the enforcement of the victims‟ fundamental right is paramount. It is against this background that the Fundamental Rights (Enforcement Procedure) Rules was enacted. On 29th May, 1999, a new constitution came into being. Some judicial opinions[3] were of the view that the Fundamental Rights ( Enforcement Procedure ) Rules1979 was dead pursuant to section 42(3) which provides who to make rules for the practice and procedure for the High court towards the enforcement of the provision of Chapter IV. For effective enforcement of the rights guaranteed under the 1999 Constitution, the 2009 Fundamental Rights (Enforcement Procedure) Rules was enacted, It was signed In November 11,2009 by the then Chief Justice IdrisLegboKutigi and came into force with immediate effect replacing the Fundamental Rights (Enforcement Procedure)Rules 1979.

The purpose of the Fundamental Rights (Enforcement Procedure) Rules is to facilitate the enforcement of fundamental rights[4]. The Rules provide for redress where there is a violation or even apprehension of likely violation of these rights[5]. The fundamental rights are provided in

Chapter IV of the 1999 Constitution and Chapter 1 of the African Charter on Human and Peoples‟ Rights. Where the violation has occasioned injury which could be compensated in financial terms, courts are duty bound to make orders of reparation in monetary terms if applied for and proved.

1.2          Statement of the Research Problem.

The Fundamental Right (Enforcement Procedure) Rules, 2009 is a new Rule made to replace the Fundamental Rights (Enforcement Procedure) Rules 1979. The basic objective of the 2009 Rules is to facilitate enforcement procedure by removing some of the impediments in 1979 rule which causes delay in enforcement of fundamental rights. Unfortunately it is clear that the procedure for enforcement of Fundamental Rights is still bedevilled by these impediments such as the distinction between principal and ancillary claim. Many applications alleging serious human rights violations are routinely struck out or dismissed[6]because of the impediments.

However, the pertinent question is: to what extent are the human rights provisions in these legal instruments realized or enforced especially to the aspect of National Security? It is worthy of note  that there are equally other important impediments in the realization of the objective of Fundamental Rights (Enforcement Procedure) Rules 2009, such as the  distinction between main claim and ancillary claim in the Nigerian fundamental rights, because litigants are cautious of whether or not their claim will succeed because of this distinction.

The third problem is with respect to Order IV rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, the section provides. “Where in the course of any human rights proceedings, any situation arises for which there is or appears to be no adequate provision in these rules, the civil procedure rules of the court for the time being in force shall apply”.  There is no uniform high court civil procedure rules in Nigeria, For example, an applicant brought an application under the High Court Civil Procedure Rules of Kano State with regards to a matter not covered by the Fundamental Rights (Enforcement Procedure) Rules 2009, and the application was granted. The question is, can a different applicant with the same subject matter bring same application in Kaduna State relying on the previous precedent in Kano? This will be in the negative because both cases where decide on a different principle of law, except where the Kano and Kaduna State High Court Civil Procedure Rules make the same provisions in respect of the same subject matter.

1.3 Aim and Objective of the Research

The aim of this research is to critically appraise human rights and national security, the Nigerian perspective. The research therefore sets its objectives as follows:

  1. To assess the impact of the Fundamental Rights (Enforcement Procedure) Rules 2009, on the enforcement of Fundamental Human Rights in Nigeria especially in national security.
  2. To identify problems in the implementation of the Fundamental Rights (Enforcement Procedure) Rules 2009 in national security.

 

1.4       Scope of the Research

The scope of the research covers the appraisal of human rights and national security, the Nigerian perspective.

1.5       Research Methodology

The research employs doctrinal and empirical approach of study.B oth   primary and secondary source will be used in this research. The primary source includes, the Fundamental Rights Enforcement Procedure Rules as the principal legislation. The Constitution, other relevant statute, and case laws also constitute primary sources of materials. The secondary sources include, articles, literatures of legal writers in books, and newspapers on the subject matter. In the empirical research, this research will make use of questionnaire, which will be administered to the members of the legal profession and the law enforcement agents. This will give a fair if not accurate result as to the problems affecting the application of the Fundamental Rights (Enforcement Procedure) Rules 2009.

1.6       Literature Review

Very few scholars have written books that touched on the subject matter of the research.This is because the Fundamental Rights Enforcement (Procedure Rules) 2009 is a recent regime. After careful perusal of the available books it was discovered that though the authors discussed a vast area of the subject matter, they have not written on the new Fundamental Rights

(Enforcement Procedure) Rules 2009, which is the subject of this research.

Jamo[7] made a critical analysis of fundamental rights.He gave philosophical dimensions of human rights, including United Kingdom‟s Bill of Rights, perspective of human rights, and definition of human rights and conceptualization of human rights. Most importantly is his discussion on human rights under the 1999 Nigerian Constitution, which this work also looked into.However, it is observed that the procedure of enforcement of this right is not mentioned.

This research seek to elaborate on this procedure i.e the Fundamental Rights (Enforcement Procedure) Rules 2009

KayodeEso[8],  made a brief explanation on the concept of human rights and theories. Tohim, to understand human rights ,there is need to go back to history of notable antecedents e.gthe great Britain, the Romans and the American experience. He also looked at the theories on the origin of human rights from the perspective of religion, morality, and divinity in brief. His analysis is limited, without mentioning the group of people who first developed the idea of human rights. This work elaborates on the development of human rights with critical analysis of philosophers.

Dalhatu9discussed fundamental rights, problems of limitation on fundamental rights, distinction between human rights and fundamental rights. In his analysis of fundamental right, the author did not contemplate the provision of Chapter II of the Constitution which is the fundamental objectives and directive principles of State policy as a fundamental right and unjusticiable. The author only gave priority to Chapter IV of the Constitution.

Akande[9], In her discussion on fundamental objectivesand directive principles of state policy, emphasized fundamental obligation of the government. However, her  limitation is based on provision of the section without looking at the practical  applicability of its provision, which will reveal that the provision is just in paper and unattainable. The research considers the current situation in Nigeria which is the practical violation of the provision of the sections,due to lack of enforcement of the provision which makes it unjusticiable. More so this research considers the provision of the 1999 Constitution as against the 1979 which was the focus of the author.

Peter[10]  made elaborate analysis of the constitutional provisions of fundamental rights with limitations encountered under the military and civilian regime of the first, second, and third republic. This research goes further and discussed the limitations on Enforcement of these rights in recent time.

Campbell and Goldberg[11]discussed the realization of human rights and constitutional protection of human rights. However, their work being foreignmade reference to the American and the British Constitutions. This research appraises the Fundamental Rights (Enforcement

Procedure) Rules 2009 and the Rights under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 and the African Charter on Human and Peoples‟ Right.

Ladan[12] discussed the domestic enforcement of Human Rights, including the African

Charter on Human and Peoples‟ Rights but did not expatiate on the procedure of enforcement of such rights. This is another area this research explores.

Abdulwahab[13] made an appraisal of the new Fundamental Rights (Enforcement Procedure) Rules 2009 pointing out the issue of principal and ancillary claim as a major problem faced by applicants.However, the injury this principle has caused in the area of human rights and practicability of its application with regards to the test on the determination of what are principal and ancillary claims is one area this research dwelled upon.

Duru[14] made an overview of the new Fundamental Rights (Enforcement Procedure) Rules 2009,giving the positive side and tremendous changes brought by the Rules in comparison with the old Rules of 1979.However this work tend to point out the limitation or setbacks in the 2009 Rules and the need for  improvement in order to create a society devoid of constant human rights abuse.

Lastly, Danladi[15] made an in-depth analysis of enforcement procedure of the old Rules applicable at that time. With the coming of the new Rules, thisresearch made an in-depth analysis of the new Rules i.e The Fundamental Rights (Enforcement Procedure) Rules, 2009, which is the current law applicable, replacing that of 1979.

1.7       Justification for the Research

The Constitution of Nigeria 1999(as amended) provides for fundamental rights of persons under Chapter IV. When there is breach or likely breach of these rights, the Fundamental Rights (Enforcement Procedure) Rules, 2009 is in place to guide on the procedure for redress. Certainly it is imperative to examine the procedure for enforcement of these rights when they are violated because there are lacunae in the application of the rule.

1.7       Organizational Layout

This work is divided into five chapters. Chapter One introduces the topic of the Research. It opens with an introduction, setting the background for the thesis. More importantly this chapter singles out the research problem, outlines the scope, sets out the aim and objectives, analyses literature on the point, reveals the methodology, and attempts to justify the research.

Chapter Two examines the concept of fundamental rights, Human rights, and Constitutional Rights in relation to the historical context of Fundamental Human Rights and National security and the quest for Fundamental Human Rights are also examined.

Chapter Three considers the process of enforcement of fundamental rights with regards national security; while chapter four goes further to examine the issues of human rights and national security. The research is concluded in chapter five with a Summary and recommendations.

[1] Chief Francis Igwe&Ors v. Mr. GoddyEzeAnochu&ors (2010) 7 NWLR pt 1192 p. 84-85

[2] Trust Fund v Adebiyi(1999)13 NWLR,PT.633,P.16.where the applicant sought to enforce his fundamental right to fair hearing ,having been breached in the course of his dismissal.

[3] Evans U.(2015),Fundamental Human Rights Enforcement Under the Law, Retrieved on 18th April,2016,from www.connectnigeria.com

[4] Minister of Internal Affairs v Shugaba(1982),3NCLR P 915.

[5] Order II Rule 1of the Fundamental Rights (Enforcement Procedure )Rules 2009.Also provided in section 46 of the 1999 Constitution

[6] Chief Ben IfeatuvMrAustineNwankwo and others FCT/HC/M/3707/11 retrived 0n 18thapril 2016 from fcthighcourtelibrary.com.

[7] Jamo N.M,(2000),Human Rights in Nigeria:Law and Practice,(Unpublished PhD Dissertation),Faculty of  Law ,Ahmadu Bello University ,Zaria.

[8] Eso K,(2008),Thoughts on Human Rights and Education, Paul’s PublishingHouse,Oke-     Ado,Ibadan 9Dalhatu M.B, (2008),What is Constitutional Law,Sacombuc,Zaria.

[9] Jadesola A. O,(1982), Introduction toThe Constitution of  the Federal Republic Of Nigeria 1979,Sweet and Maxwell,London.

[10] Olumide P,(1992),Introduction to Nigerian Constitution,EvansBrother,Ibadan

[11] Tom C and David G.etal,(1986),Human Rights From Rhetoric to reality,BasilBlackwell,Oxford ,UK

[12] Mohammed T.L,(1999),Introduction to International Humanitarian Laws, Ahmadu Bello University Press,Zaria

[13] AbdulwahabA,Innovation  in New Fundamental Rights Rule,retrieved on 14th January 2012,from www.vanguardngr.com

[14] Duru O,(2009),An overview of the Fundamental Rights Enforcement Procedure Rules retrieved on 14th January,2013,www.academia.edu15185466/A

[15] Kabir M.D,(2006),The Imperative of Reviewing the Fundamental Rights (Enforcement Procedure) Rules,Ahmadu Bello University Law Journal,Vol 24-25,p 144.

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