Who Can File a Constitutional Action in Nigeria?

Who Can File a Constitutional Action in Nigeria? Navigating the Labyrinth of Locus Standi and Public Interest Litigation

Nigeria’s constitutional democracy, built on the bedrock of the 1999 Constitution (as amended), promises a robust framework for the protection of fundamental rights and the upholding of the rule of law. At the heart of this promise lies the ability of individuals and entities to approach the courts when their constitutional rights are threatened or violated, or when governmental actions deviate from the dictates of the supreme law. However, the question of “who can file a constitutional action in Nigeria?” is not as straightforward as it might seem, often entangled with the complex legal doctrine of locus standi (standing to sue) and the evolving landscape of public interest litigation.

This extensive exploration delves into the intricacies of these concepts, examining the legal provisions, landmark judicial pronouncements, and the practical challenges faced by those seeking to enforce constitutional norms in Nigeria.

I. The Supremacy of the Constitution and the Foundation for Constitutional Actions

The 1999 Constitution of the Federal Republic of Nigeria, by virtue of its Section 1, firmly establishes itself as the supreme law of the land. Any other law inconsistent with its provisions is, to the extent of that inconsistency, void. This supremacy underpins the very essence of constitutional actions, which are legal proceedings initiated to challenge the constitutionality of legislative enactments, executive actions, or even the decisions of other arms of government. The judiciary, as the guardian of the Constitution, is vested with the power of judicial review, enabling it to interpret the Constitution and declare any act or law inconsistent with it as null and void.

Chapter IV of the Constitution, specifically Sections 33 to 46, enumerates the fundamental human rights guaranteed to every Nigerian citizen. These rights are not mere aspirations but legally enforceable entitlements. Section 46(1) of the Constitution is particularly crucial, providing that “Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” This provision, alongside the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules), forms the primary legal framework for the enforcement of fundamental human rights, which are a significant subset of constitutional actions.

II. Unpacking Locus Standi: The Gatekeeper of Justice

At the forefront of any discussion on who can file a constitutional action is the doctrine of locus standi. Literally meaning “place of standing,” it refers to the legal capacity of a party to initiate proceedings in a court of law. In essence, it is the threshold requirement that determines whether a court has the jurisdiction to entertain a matter. Without locus standi, a case, no matter how meritorious in substance, will be struck out by the court.

Historically, the Nigerian legal system, heavily influenced by English common law, adopted a conservative approach to locus standi. This traditional approach required a plaintiff to demonstrate a direct, personal, and sufficient interest in the subject matter of the litigation, showing that their civil rights and obligations have been, or are in danger of being, infringed. A general interest shared with the public was often deemed insufficient.

A. The Traditional Test: “Sufficient Interest” and “Injury”

The conservative stance on locus standi in Nigeria can be traced back to the landmark Supreme Court decision in Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 2 NCLR 358. While this case attempted to clarify the position, some interpretations of Justice Bello’s judgment (as he then was) significantly narrowed the scope of who could sue. The prevailing view for a considerable period was that for a person to have locus standi, they must show:

1. Sufficient Interest: The plaintiff must have a real and genuine stake in the matter, beyond that of a mere busybody or a meddlesome interloper.
2. Actual or Threatened Injury: The plaintiff must demonstrate that their civil rights and obligations have been, or are likely to be, directly affected by the act complained of. This often translated to a requirement of personal detriment or injury.

This restrictive interpretation often posed a significant barrier to public-spirited individuals and organizations seeking to challenge governmental excesses or protect collective rights. For instance, an environmental activist challenging pollution that affects an entire community might struggle to prove a unique, personal injury distinct from that suffered by other members of the public.

B. The Constitutional Liberalization and its Nuances

The coming into force of the 1979 Constitution (and subsequently the 1999 Constitution) with its entrenched fundamental rights provisions, particularly Section 46 (then Section 42), marked a turning point, albeit a gradual one, in the interpretation of locus standi in constitutional matters. The language of Section 46, stating “Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any state in relation to him,” has been interpreted by some jurists as a broader gateway to justice, especially for fundamental human rights enforcement.

While the “in relation to him” phrase still suggests a personal nexus, the Supreme Court, in certain cases, began to lean towards a more liberal interpretation, especially when fundamental rights are concerned. This shift is not a complete abandonment of the “sufficient interest” test but rather a recognition that the nature of constitutional rights, particularly human rights, often necessitates a more expansive view of standing.

Key judicial pronouncements illustrating this evolving trend include:

• Fawehinmi v. Akilu & Anor (1987) 4 NWLR (Pt. 67) 797: Though primarily a criminal case, the Supreme Court, through a powerful dissenting judgment by Obaseki JSC (which later found acceptance in subsequent cases), indicated a willingness to relax the strict locus standi rule in matters of public interest and human rights. This case hinted at the possibility of a “public interest standing” where a breach of a public duty or constitutional provision affects the entire populace.
• Olisa Agbakoba v. The Attorney General of the Federation & Minister of Education (2000) 6 NWLR (Pt. 660) 314: This case, involving a challenge to discriminatory admission policies in federal government colleges based on gender and state of origin, saw the Federal High Court adopt a more liberal stance, suggesting that where a constitutional provision is violated, and such violation affects a broad segment of the populace, the requirement of individual injury might be less stringent.

Despite these liberalizing tendencies, the application of locus standi remains a point of contention and can vary depending on the facts of each case and the specific court. It is important to note that the liberalization is more pronounced in fundamental human rights enforcement actions under Section 46 of the Constitution, compared to general constitutional issues.

III. Public Interest Litigation (PIL): A Vehicle for Collective Rights

The concept of Public Interest Litigation (PIL) has emerged as a crucial mechanism for addressing issues that affect the public at large, even when no single individual can demonstrate a direct, personal injury. PIL seeks to advance the cause of justice for marginalized groups, protect the environment, promote good governance, and uphold constitutional principles that transcend individual interests.

A. The Philosophy Behind PIL in Nigeria

The rationale for PIL in Nigeria is rooted in the recognition that:

• Access to Justice: Strict locus standi rules can effectively shut out vulnerable groups and public-spirited citizens from challenging governmental wrongs, thereby undermining access to justice.
• Enforcement of Public Rights: Many constitutional provisions and laws are designed to protect collective rights or ensure good governance. Without PIL, breaches of these provisions might go unchallenged.
• Judicial Activism: PIL encourages a more proactive role for the judiciary in safeguarding constitutionalism and human rights, moving beyond a purely adversarial model to a more socially conscious one.

The Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules) explicitly encourage and welcome public interest litigation in the human rights field. Order II, Rule 1 of the FREP Rules states that “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 which he is entitled, has been, is being, or is likely to be infringed, may apply to the court in the state where the infringement occurs or is likely to occur, for redress.”

Furthermore, the Rules enjoin courts to proactively pursue enhanced access to justice for all classes of litigants, “especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.” This provision signifies a clear legislative intent to foster PIL in the human rights sphere.

B. Who Can Initiate PIL?

While the FREP Rules provide a clearer pathway for PIL in human rights, the general principles of locus standi still influence other areas of constitutional litigation. Traditionally, the Attorney-General, as the chief law officer of the federation or state, is considered the proper person to institute actions for the protection of public rights. However, the rise of PIL has seen a broader category of entities and individuals engaging in such litigation:

1. Individuals Acting in Public Interest: While the “sufficient interest” test remains, courts are increasingly willing to consider the nature of the constitutional violation and its broader impact. An individual, even without a direct personal injury, might be granted locus standi if the issue is one of grave public importance and there is a clear constitutional breach.
2. Non-Governmental Organizations (NGOs) and Civil Society Organizations (CSOs): These organizations, particularly those with a focus on human rights, governance, and environmental protection, are increasingly active in filing constitutional actions. Their standing is often premised on their mandate to protect and promote the rights of specific groups or the general public. While some cases have been lost on grounds of locus standi where the NGO could not establish that its own civil rights were directly affected, the trend is towards greater recognition of their role, especially under the FREP Rules. Organizations like HURILAWS (Human Rights Law Service) have championed numerous successful PIL cases, leading to landmark decisions that have shaped Nigerian jurisprudence.
3. Professional Bodies: In some instances, professional bodies can file actions concerning matters that affect the standards or integrity of their profession, especially when linked to constitutional principles.
4. Academic Institutions and Legal Scholars: While less common, academic institutions or individual legal scholars, in their pursuit of legal development and justice, might initiate or support constitutional actions, particularly amicus curiae briefs (friend of the court) to provide expert legal insights.

IV. Specific Practice Areas of Individuals and Entities with Standing

Beyond the general principles of locus standi and the growing embrace of PIL, certain categories of individuals and entities are explicitly or implicitly recognized as having the capacity to file constitutional actions:

A. Aggrieved Individuals:

The most straightforward scenario involves an individual whose fundamental human rights, as enshrined in Chapter IV of the Constitution, have been directly violated or are about to be violated. Section 46(1) provides the express right to seek redress in a High Court. Examples include:

• A person unlawfully arrested or detained challenging the infringement of their right to personal liberty (Section 35).
• Someone whose right to a fair hearing has been denied in a legal proceeding (Section 36).
• An individual facing discrimination based on their ethnicity, religion, or gender (Section 42).
• A person whose property has been compulsorily acquired without adequate compensation, challenging the violation of their right to acquire and own immovable property (Section 44).

B. Corporations and Legal Entities:

Corporate entities, as legal persons, also possess the capacity to sue and be sued in their corporate name. This right extends to the enforcement of their fundamental rights where applicable. For example, a company might challenge an unlawful government action that infringes its right to own property or its right to a fair hearing in administrative proceedings.

C. Associations and Groups:

Registered associations and groups can file constitutional actions, particularly where the rights of their members or the objectives of the association are directly implicated by a constitutional breach. However, they generally need to demonstrate how the constitutional violation affects their collective civil rights or those of their identifiable members. The ability of an association to sue in a representative capacity for its members or for the public good is often a key aspect of PIL.

D. Public Officers and Institutions (in Specific Circumstances):

While constitutional actions are typically brought against the government or its agencies, in certain limited circumstances, public officers or institutions might file actions to seek interpretation of their constitutional powers or to challenge actions that impede their constitutional functions. This is often seen in disputes between different arms or tiers of government. For instance, a State Government might sue the Federal Government over a matter of constitutional interpretation regarding fiscal federalism.

E. The Attorney-General:

As previously mentioned, the Attorney-General of the Federation or of a State has a unique constitutional role as the chief law officer. They possess the inherent power to institute and undertake criminal proceedings and also to institute civil proceedings for the enforcement of public rights. While this power exists, the trend of PIL has seen private individuals and groups increasingly taking on this role when the Attorney-General is perceived as unwilling or unable to act in the public interest.

V. Procedural Aspects of Filing a Constitutional Action

The procedure for enforcing fundamental rights in Nigeria is primarily governed by the Fundamental Rights (Enforcement Procedure) Rules 2009. These rules simplify the process, making it more accessible.

• Originating Process: Applications for the enforcement of fundamental rights are typically commenced by way of originating motion or originating summons, supported by an affidavit setting out the facts, and a statement detailing the reliefs sought and the grounds upon which they are sought.
• Jurisdiction: Section 46 of the Constitution vests original jurisdiction for the enforcement of fundamental rights in the High Courts (Federal High Court and State High Courts). The High Court in the state where the alleged infringement occurred, or is likely to occur, is the competent court.
• Time Limit: While the FREP Rules promote speedy resolution, there isn’t a strict statutory limitation period for fundamental rights enforcement actions. However, undue delay can be a factor the court considers. The rules encourage prompt action as soon as the infringement occurs or is likely to occur.
• Leave of Court: Historically, leave of court was required to commence fundamental rights actions. However, the FREP Rules 2009 largely abolished the requirement for leave, allowing direct commencement of actions. This is a significant step towards easing access to justice.
• Consequential Orders: The High Court has wide powers to 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 of the fundamental rights. This includes declaratory orders, injunctions, damages, and orders of mandamus or prohibition.

For constitutional actions that do not fall strictly under the fundamental rights enforcement procedure (e.g., challenges to legislative acts or general constitutional interpretation), the general rules of civil procedure apply, which may vary slightly between the Federal High Court and State High Courts. Such actions are often commenced by originating summons or writ of summons depending on the nature of the dispute and whether facts are in contention.

VI. Challenges and Limitations

Despite the progressive strides in judicial interpretation and the framework provided by the FREP Rules, filing constitutional actions in Nigeria is not without its challenges:

1. Conservative Judicial Interpretation of Locus Standi (Outside Fundamental Rights): While there’s a discernible shift in fundamental rights cases, some courts, particularly in general constitutional matters not directly related to Chapter IV rights, still adopt a somewhat conservative approach to locus standi, potentially hindering truly public interest cases.
2. Resource Constraints: Accessing legal aid, especially for indigent citizens, remains a significant hurdle. Public interest organizations often operate with limited resources.
3. Delay in Justice Delivery: Despite provisions for speedy hearings in fundamental rights cases, the general problem of case backlog and delays in the Nigerian judiciary can frustrate the purpose of constitutional actions, especially when urgent redress is required.
4. Enforcement of Orders: Obtaining a favorable judgment is one thing; enforcing it, particularly against governmental agencies, can be another formidable challenge, often requiring further legal steps.
5. Executive Non-Compliance: Instances of executive non-compliance with court orders, though diminishing, remain a concern and can undermine the efficacy of constitutional actions.
6. Cost of Litigation: Litigation in Nigeria can be expensive, involving legal fees, filing fees, and other disbursements, which can be prohibitive for many.
7. Technicalities: While the FREP Rules aim to reduce technicalities in fundamental rights enforcement, other constitutional actions can still be bogged down by procedural complexities.
8. Limited Scope of Justiciability of Chapter II Rights: Chapter II of the Constitution outlines the “Fundamental Objectives and Directive Principles of State Policy.” These provisions, dealing with economic, social, and cultural rights, are generally non-justiciable, meaning they cannot be directly enforced by courts. This presents a blind spot in Nigeria’s constitutional framework, as many issues of public interest (e.g., right to education, health, adequate housing) fall under this chapter. Activists and legal scholars continue to advocate for the justiciability of these rights to provide a more comprehensive framework for constitutional actions.

VII. The Expanding Frontier: Emerging Trends and Future Directions

The landscape of constitutional actions in Nigeria is continuously evolving, driven by judicial pronouncements, legislative reforms, and the increasing activism of civil society.

• Growing Judicial Activism: Nigerian courts are increasingly demonstrating a willingness to engage in judicial activism to protect constitutionalism and human rights, especially in response to public demand for accountability and good governance. This is reflected in the more liberal approach to locus standi in certain contexts.
• Strategic Litigation by NGOs: Human rights and advocacy groups are employing strategic litigation, carefully selecting cases that have the potential to set precedents, influence public policy, and expand the frontiers of constitutional rights.
• Focus on Environmental Rights: With increasing awareness of environmental degradation, there is a growing trend towards constitutional actions challenging environmental pollution and seeking to enforce environmental rights, often framed within the broader context of the right to life and dignity.
• Digital Rights and Technology: As society digitizes, issues of digital rights, privacy, and freedom of expression in the online sphere are becoming fertile grounds for constitutional actions, pushing the courts to interpret constitutional provisions in novel ways to address contemporary challenges.
• Advocacy for Justiciability of Chapter II Rights: There is ongoing advocacy and academic discourse on making the fundamental objectives and directive principles of state policy (Chapter II) justiciable. If successful, this would vastly expand the scope of constitutional actions to include economic, social, and cultural rights, allowing individuals to hold the government accountable for failures in these critical areas.

Conclusion

The question of “who can file a constitutional action in Nigeria?” has evolved from a historically restrictive answer to a more nuanced and, in many respects, more inclusive one. While the doctrine of locus standi remains a critical gatekeeper, particularly in general constitutional matters, the explicit provisions for fundamental rights enforcement and the growing recognition of public interest litigation have significantly broadened the category of potential litigants.

Individuals whose fundamental rights are directly infringed undoubtedly have the standing to seek redress. Beyond this, public-spirited individuals, non-governmental organizations, and various associations are increasingly empowered to act as guardians of the Constitution, challenging governmental actions that violate public rights or undermine constitutional principles.

However, challenges persist, particularly concerning the inconsistent application of locus standi outside of human rights cases, the slow pace of justice, and the significant hurdle of enforcing orders against powerful entities. The ongoing debate about the justiciability of Chapter II rights also represents a crucial frontier for expanding the scope and impact of constitutional actions.

Ultimately, the ability to file a constitutional action is a cornerstone of democratic accountability and human rights protection in Nigeria. As the nation continues its democratic journey, a continued commitment to liberalizing locus standi, strengthening judicial independence, and addressing procedural and financial barriers will be essential to ensure that the Constitution remains a living document, accessible and enforceable by all who seek to uphold its supreme authority and protect the rights it guarantees.