Fundamental Rights Enforcement Against Private Persons

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FUNDAMENTAL RIGHTS ENFORCEMENT AGAINST PRIVATE PERSONS: Navigating the Complex Terrain of Human Rights in the Private Sphere

Introduction: The Evolving Landscape of Human Rights Protection

For decades, the concept of fundamental human rights has been primarily understood as a shield against the overreach of the state. Constitutions and international treaties predominantly focus on the “vertical” application of these rights, meaning they impose obligations on governments to respect, protect, and fulfill the rights of their citizens. This traditional view, while crucial, has increasingly proven inadequate in a world where private actors – individuals, corporations, and non-governmental organizations – wield immense power and influence, often impacting individuals’ fundamental rights as profoundly as, if not more than, state entities.

The question of “horizontal” application – the enforceability of fundamental rights against private persons – has thus emerged as one of the most significant and complex challenges in contemporary human rights jurisprudence. It compels us to re-evaluate the very nature of human rights and their scope in an interconnected society. While some rights, like the prohibition of slavery or torture, clearly apply to everyone regardless of whether they represent the state, the application of other rights, such as freedom of speech, privacy, or equality, in purely private relationships presents considerable legal and philosophical dilemmas.

This blog post will delve into the intricacies of fundamental rights enforcement against private persons, exploring the theoretical underpinnings, the varied approaches adopted by different legal systems, the challenges encountered, and the potential pathways forward. We will move beyond the traditional state-centric paradigm to understand how individuals can seek redress when their fundamental rights are violated by non-state actors.

I. The Theoretical Basis for Horizontal Application: Why Extend Rights Beyond the State?

The shift from a purely vertical to a more horizontal understanding of human rights is driven by several compelling reasons:

• The Changing Nature of Power: In the 21st century, the state is no longer the sole, or even primary, locus of power. Multinational corporations, influential individuals, religious organizations, and even powerful social movements can significantly impact individual freedoms and well-being. Limiting human rights enforcement to state action leaves vast areas of potential abuse unaddressed.
• The Interconnectedness of Society: Our daily lives are increasingly shaped by private interactions – employment contracts, landlord-tenant agreements, social media platforms, and private healthcare providers. If fundamental rights are to be truly meaningful, they must offer protection within these crucial private spheres.
• Preventing Evasion of Responsibility: A strict vertical application can create loopholes, allowing the state to indirectly violate rights by delegating certain functions to private entities or by failing to regulate private conduct that infringes upon rights. Horizontal application ensures a more comprehensive accountability framework.
• Promoting a Human Rights Culture: Extending human rights obligations to private actors fosters a broader societal commitment to these values. It encourages individuals and private organizations to consider the human rights implications of their actions and to build a culture of respect for dignity, equality, and freedom.
• Addressing Historical Injustices: In many societies, historical injustices were perpetrated not only by the state but also by private individuals and groups. The horizontal application of rights can be crucial in addressing the lingering effects of discrimination, oppression, and inequality in private relationships.

II. Models of Horizontal Application: Diverse Legal Approaches

Different legal systems have adopted varying approaches to the horizontal application of fundamental rights, reflecting diverse constitutional philosophies and socio-political contexts. These models can generally be categorized as direct, indirect, or a hybrid approach:

A. Direct Horizontal Application (Direct Third-Party Effect)

In systems with direct horizontal application, certain fundamental rights are directly enforceable against private individuals or entities, without the need for intervening legislation. This means an individual can directly sue another private party in court for a violation of a constitutional right.

• Characteristics:
  • The Bill of Rights or Fundamental Rights chapter explicitly states its applicability to private persons or to “all law.”
  • Courts can directly apply constitutional provisions to disputes between private parties.
  • Often seen in constitutions adopted in post-authoritarian or post-conflict states, aiming for a transformative constitutionalism that permeates all aspects of society.
• Examples:
  • South Africa: The South African Constitution is a prime example of direct horizontal application. Section 8(2) explicitly states that a provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. This has led to landmark cases where fundamental rights have been enforced directly against private employers, landlords, and other individuals. For instance, the right to equality has been used to challenge unfair discrimination in private employment.
  • Ireland: The Irish Constitution also provides for a degree of direct horizontal application, particularly concerning rights like freedom of association.
• Advantages:
  • Provides strong and immediate protection against private rights violations.
  • Promotes a comprehensive human rights culture throughout society.
  • Minimizes opportunities for evasion of responsibility.
• Disadvantages:
  • Can potentially infringe on individual autonomy and freedom of contract.
  • May lead to judicial overreach, as courts become arbiters of private disputes based on broad constitutional principles.
  • Requires careful balancing of competing rights, especially between the claimant’s fundamental right and the respondent’s private autonomy or property rights.

B. Indirect Horizontal Application (Indirect Third-Party Effect)

Under indirect horizontal application, fundamental rights do not directly bind private parties. Instead, they operate indirectly by influencing the interpretation and development of ordinary private law (e.g., contract law, tort law, labor law) and statutory law. This means that private law must be interpreted in a way that is consistent with constitutional values.

• Characteristics:
  • Constitutions typically bind the state, but courts interpret existing legislation and common law in light of constitutional rights.
  • Fundamental rights act as “emanations” or “radiating effects” that permeate the entire legal system.
  • The state’s positive obligation to protect rights is central, meaning the state is responsible for enacting laws that prevent private violations.
• Examples:
  • Germany: The German Basic Law primarily binds the state. However, German courts have developed the doctrine of “Drittwirkung” (third-party effect), which means that fundamental rights indirectly influence private law. For example, contractual terms may be deemed invalid if they violate fundamental rights, or common law principles might be reinterpreted to align with constitutional values.
  • Canada: While Canadian courts have generally adopted a vertical approach, they increasingly interpret private law and statutory regimes in a manner consistent with the Canadian Charter of Rights and Freedoms, demonstrating an indirect horizontal effect.
  • India: While India’s constitution primarily focuses on vertical application, the Supreme Court has in some instances, particularly concerning Articles 19 (freedoms) and 21 (right to life and personal liberty), extended their scope to bind private parties through judicial interpretation. The Kaushal Kishor judgment, for instance, marks a significant shift towards horizontal application for these rights, although the precise contours are still evolving. Rights like Article 15(2) (non-discrimination in public places), Article 17 (abolition of untouchability), and Article 23 (prohibition of human trafficking and forced labor) are explicitly enforceable against private persons.
• Advantages:
  • Preserves the traditional distinction between public and private law, reducing concerns about judicial overreach into private autonomy.
  • Allows for a more nuanced and context-specific application of rights within existing legal frameworks.
  • Encourages legislatures to enact laws that give effect to fundamental rights in the private sphere.
• Disadvantages:
  • May offer less immediate or robust protection compared to direct application, as it relies on the interpretation of existing laws or the enactment of new ones.
  • Can lead to inconsistent application if judicial interpretation varies.
  • May not adequately address situations where no specific private law governs the rights violation.

C. Hybrid Approaches and Nuances

Many countries employ a hybrid approach, combining elements of both direct and indirect application, or adopt specific legislative measures to address certain private rights violations.

• Specific Legislation: Often, states respond to the need for horizontal application by enacting specific anti-discrimination laws, labor laws, consumer protection laws, or privacy laws that regulate private conduct and incorporate human rights principles. This is a common and practical way to achieve horizontal effect for certain rights.
• “State Action” Doctrine (USA): In the United States, the Bill of Rights largely applies only to “state action.” However, the concept of “state action” has been broadly interpreted in some contexts to include private entities that perform public functions or are deeply intertwined with the state. This creates a limited form of horizontal application for certain scenarios.
• Positive Obligations of the State: Even in systems with purely vertical application, the state often has a “positive obligation” to ensure that private actors do not violate fundamental rights. This means the state must take reasonable legislative and administrative measures to protect individuals from private abuses. For example, a state’s failure to enact or enforce laws against private discrimination could constitute a violation of its human rights obligations.

III. Key Fundamental Rights and Their Horizontal Application

The applicability of fundamental rights to private persons varies significantly depending on the nature of the right:

• Rights with Clear Horizontal Application:
  • Right to Life: No private person can unlawfully take another’s life.
  • Freedom from Slavery, Servitude, and Forced Labor: This prohibition unequivocally applies to private individuals and entities.
  • Freedom from Torture and Inhuman/Degrading Treatment: Private actors cannot inflict such treatment.
  • Freedom from Discrimination (in certain contexts): While discrimination by the state is universally condemned, many jurisdictions now legislate against private discrimination in areas like employment, housing, and access to public services.
  • Right to Human Dignity: This foundational right underpins many others and can be invoked in private interactions where dignity is violated.
• Rights with Debatable or Limited Horizontal Application:
  • Freedom of Speech/Expression: Can a private employer restrict an employee’s off-duty speech? Can a private social media platform censor content? These are complex questions involving balancing rights.
  • Right to Privacy: While private individuals have a right to privacy from state intrusion, does this right also restrict private entities (e.g., employers monitoring employees, private investigators)? This is an area of evolving law, often addressed through data protection and privacy legislation.
  • Right to Equality: Beyond specific anti-discrimination laws, the extent to which the constitutional right to equality applies in purely private relationships (e.g., social clubs, personal relationships) is highly debated.
  • Right to a Fair Hearing: Primarily a right against the state in judicial and administrative proceedings, but elements like due process might indirectly influence internal disciplinary procedures of private organizations.
  • Freedom of Assembly and Association: While individuals can freely associate, the extent to which a private association must admit or retain members, or respect their internal democratic rights, is contentious.

IV. Challenges in Enforcing Fundamental Rights Against Private Persons

The horizontal application of fundamental rights, despite its necessity, comes with significant challenges:

• Balancing Competing Rights: One of the most significant challenges is balancing the fundamental right of the claimant against the fundamental rights (e.g., freedom of contract, private property, autonomy) of the private person against whom the claim is made. For example, enforcing freedom of speech against a private employer might conflict with the employer’s right to manage their business or protect their reputation.
• Defining “Private”: The line between “public” and “private” can be blurry. When does a private entity become “state-like” enough to be directly bound by constitutional obligations? This is particularly relevant for large corporations or private entities performing functions traditionally associated with the state (e.g., private prisons, private security forces).
• Judicial Expertise and Overreach: Courts, traditionally focused on public law, may lack the expertise to adjudicate complex private disputes through the lens of constitutional rights. There’s also the risk of judicial overreach, where courts impose their interpretations of rights on private relationships, potentially stifling innovation or legitimate private choices.
• Remedies and Enforcement: What are the appropriate remedies for private violations of fundamental rights? Damages, injunctions, or specific performance may be applicable, but ensuring effective enforcement in private contexts can be difficult.
• Complexity and Cost of Litigation: Enforcing fundamental rights, especially against private persons, can be complex, time-consuming, and expensive, potentially limiting access to justice for vulnerable individuals.
• Lack of Clear Standards: Unlike state action, where government conduct is often regulated by specific administrative laws, the standards for private conduct under constitutional rights can be less clear, leading to uncertainty.
• Public vs. Private Morality: The horizontal application of rights might be seen by some as an attempt to impose “public morality” onto private spheres, potentially infringing on individual freedom and choice.

V. Mechanisms for Enforcement and Redress

Despite the challenges, various mechanisms exist or are being developed to facilitate the enforcement of fundamental rights against private persons:

• Constitutional Litigation: In jurisdictions with direct horizontal application (e.g., South Africa), individuals can directly approach courts to seek redress for private rights violations.
• Development of Common Law: Courts, even in jurisdictions with indirect horizontal application, can develop and adapt common law principles (e.g., tort law, contract law) to align with constitutional values, thereby providing remedies for private rights violations.
• Anti-Discrimination Legislation: Specialized statutes prohibiting discrimination based on various grounds (race, gender, religion, etc.) in areas like employment, housing, and public accommodation are a primary mechanism for horizontal enforcement. These laws often establish administrative bodies (e.g., human rights commissions) to investigate and mediate complaints.
• Labor Laws: Legislation protecting workers’ rights (e.g., freedom of association, fair labor practices, safe working conditions) directly applies to private employers and is a crucial aspect of horizontal rights enforcement.
• Consumer Protection Laws: These laws often incorporate principles of fairness and non-exploitation, indirectly giving effect to economic and social rights in consumer relationships.
• Data Protection and Privacy Laws: These modern legislative frameworks explicitly regulate how private entities collect, use, and store personal data, thereby enforcing the right to privacy against private actors.
• Industry-Specific Regulations and Codes of Conduct: Certain industries may adopt self-regulatory measures or be subject to specific regulations that incorporate human rights principles, often driven by public pressure or international standards.
• Corporate Social Responsibility (CSR) and Business and Human Rights Frameworks: While not directly legally enforceable in the same way as constitutional rights, these frameworks encourage businesses to respect human rights in their operations and supply chains. The UN Guiding Principles on Business and Human Rights (UNGPs) provide a framework for states to protect against human rights abuses by businesses and for businesses to respect human rights.
• Alternative Dispute Resolution (ADR): Mediation and arbitration can offer less adversarial and more accessible avenues for resolving disputes involving private rights violations, particularly in areas like employment or consumer complaints.
• Public Interest Litigation: Non-governmental organizations and public interest lawyers often play a vital role in bringing cases that challenge systemic human rights violations by private actors, pushing for judicial development of the law.
• Role of National Human Rights Institutions (NHRIs): NHRIs can investigate complaints against private entities, mediate disputes, conduct inquiries, and advocate for legal reforms to enhance horizontal enforceability.

VI. The Nigerian Context: Navigating the Vertical-Horizontal Divide

In Nigeria, the enforcement of fundamental rights is primarily governed by Chapter IV of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009. Historically, Nigerian jurisprudence has largely leaned towards a vertical application of fundamental rights, meaning they are primarily enforceable against the government and its agencies.

• The Traditional View: Courts have often held that the Fundamental Rights Enforcement Procedure Rules are designed to protect citizens from state overreach and that private individuals or companies cannot be directly sued under this procedure for human rights violations. Instead, if a private entity violates a right, the victim is expected to report the violation to the relevant government authorities, who then have a duty to investigate and, if necessary, take action. If the government fails in this duty, then the government itself could be sued for its omission.
• Specific Exceptions and Evolving Interpretations: While the general principle remains, there are important nuances and a growing recognition of the need for greater horizontal protection:
  • Statutory Exceptions: Certain rights, by their nature or through specific legislation, have always had a degree of horizontal application. For instance, the prohibition against slavery, servitude, and forced labor (Section 34 of the Constitution) clearly applies to private persons. Similarly, anti-discrimination provisions in labor laws and other specific statutes bind private employers.
  • Indirect Application through Common Law and Statutes: Nigerian courts, like those in other jurisdictions, will interpret existing laws (e.g., contract law, tort law, criminal law) in a manner consistent with constitutional fundamental rights. For example, a contract that forces an individual into servitude would be void for illegality, drawing on the constitutional prohibition of forced labor.
  • Positive Obligations of the State: The Nigerian state has a positive obligation to protect its citizens’ rights from private abuses. This means the government must enact and enforce laws that prevent private persons from violating fundamental rights. Failure to do so could lead to a claim against the state for its omission.
  • Emerging Judicial Trends: There is a nascent but growing trend in some judicial pronouncements and scholarly discourse suggesting a more expansive interpretation of “any person” in Section 46(1) of the Constitution (which allows “any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him” to apply to a High Court for redress). While not a widespread direct horizontal application, it indicates a recognition of the evolving landscape. However, as noted in the search results, there have been conflicting interpretations on this issue.
• Challenges in the Nigerian Context:
  • Strict Procedural Rules: The Fundamental Rights Enforcement Procedure Rules, while designed to be fast-tracked, can sometimes be technical, posing barriers to access to justice.
  • Locus Standi (Standing to Sue): While the FREP Rules have liberalized locus standi to some extent (encouraging public interest litigation), its interpretation in cases involving private actors can still be a hurdle.
  • Resource Constraints: The judiciary, police, and other enforcement agencies may face resource limitations, impacting their ability to effectively investigate and prosecute private violations.
  • Lack of Public Awareness: Many Nigerians may not be fully aware of their fundamental rights or the avenues for seeking redress, especially against private entities.

VII. Future Directions and Recommendations

The global trend is undeniably towards a more robust horizontal application of fundamental rights. To fully realize the promise of human rights in the private sphere, several key areas require attention:

• Legislative Reforms: States should enact comprehensive legislation that specifically prohibits and provides remedies for fundamental rights violations by private persons in crucial areas, such as employment, housing, education, and access to services. These laws should align with international human rights standards.
• Judicial Activism and Interpretation: Courts should continue to play a proactive role in interpreting existing laws and developing common law principles in a manner that gives effect to fundamental rights in private relationships, while carefully balancing competing rights.
• Strengthening National Human Rights Institutions: NHRIs should be empowered with broader mandates and sufficient resources to investigate, mediate, and offer remedies for human rights complaints against private entities.
• Promoting Business and Human Rights: Governments should implement and enforce the UN Guiding Principles on Business and Human Rights, holding businesses accountable for their human rights impacts and ensuring access to effective remedies for victims.
• Capacity Building and Awareness: There is a need for ongoing training for judges, lawyers, law enforcement, and civil society on the principles of horizontal application. Public awareness campaigns can also empower individuals to assert their rights against private actors.
• International Cooperation: Sharing best practices and collaborating on legal frameworks for horizontal application among states can contribute to a more harmonized and effective global approach.
• Focus on Positive Obligations: Emphasizing the state’s positive obligation to protect individuals from private rights abuses reinforces the complementary roles of public and private accountability.
• Technological Advancements and Digital Rights: The rise of digital platforms and artificial intelligence necessitates new legal frameworks to ensure the protection of fundamental rights (e.g., privacy, freedom of expression, non-discrimination) in the online private sphere.

Conclusion: A Holistic Approach to Human Rights Protection

The enforcement of fundamental rights against private persons is no longer a peripheral issue but a central pillar of comprehensive human rights protection. As private power continues to expand, so too must the reach of human rights obligations. While the journey towards a fully realized horizontal application presents significant legal, practical, and philosophical challenges, the imperative to ensure that individuals are protected from abuses by all actors, not just the state, is undeniable.

By adopting a multi-faceted approach that combines robust legislative frameworks, progressive judicial interpretation, strengthened institutional mechanisms, and a commitment to fostering a universal human rights culture, societies can move closer to a truly holistic model of human rights protection, where dignity, equality, and freedom are respected in every sphere of life, public and private alike. This ongoing evolution reflects a deeper understanding that human rights are not merely abstract ideals, but practical tools for justice and accountability that must permeate the very fabric of our societies.