How to Enforce Your Fundamental Rights Under the Nigerian Constitution

In a democratic society, the protection and enforcement of fundamental human rights are the bedrock of justice, liberty, and human dignity. The Nigerian Constitution, particularly Chapter IV, enshrines a comprehensive set of these rights, recognizing them as inalienable and essential for a meaningful human existence. However, the mere existence of these rights in the Constitution is not enough; their effective enforcement is what truly guarantees their utility and protects citizens from arbitrary actions by both state and non-state actors.

This comprehensive guide aims to shed light on the various avenues available to individuals seeking to enforce their fundamental rights under the Nigerian Constitution. It will explore the constitutional provisions, the legal framework for enforcement, practical steps to take, and the challenges that may be encountered, offering insights into navigating the legal landscape to secure justice.

I. Understanding the Essence of Fundamental Rights in Nigeria

Fundamental rights are often described as inherent, universal, and inalienable rights that every individual possesses by virtue of being human. In Nigeria, these rights are specifically enumerated and protected by the 1999 Constitution (as amended), making them “antecedent to the political society itself,” as famously stated by Eso JSC in Ransome Kuti v. Attorney General of the Federation. They stand above ordinary laws and are designed to safeguard the dignity and liberty of individuals.

A. Key Fundamental Rights Enshrined in Chapter IV of the 1999 Constitution (as amended):

Chapter IV of the Nigerian Constitution (Sections 33-46) provides a robust framework of civil and political rights. It’s crucial to understand that only rights listed in Chapter IV or those domesticated from international treaties like the African Charter on Human and Peoples’ Rights are generally enforceable under the Fundamental Rights (Enforcement Procedure) Rules. Economic, social, and cultural rights, while important, are often considered non-justiciable in the same direct manner, though there’s ongoing advocacy for their enforceability.

• Section 33: Right to Life: Guarantees that every person has a right to life and prohibits intentional or arbitrary deprivation of life, with certain exceptions (e.g., execution of a death sentence by a court).
• Section 34: Right to Dignity of Human Person: Prohibits torture, inhuman or degrading treatment, slavery, or forced labor. This section is frequently invoked in cases of police brutality and unlawful detention.
• Section 35: Right to Personal Liberty: Protects individuals from arbitrary arrest and detention, stipulating conditions for lawful arrest and detention, including the right to be informed of the reason for arrest and to be brought before a court within a reasonable time.
• Section 36: Right to Fair Hearing: A cornerstone of justice, ensuring that anyone accused of a crime or whose civil rights and obligations are affected has a right to a fair hearing within a reasonable time by a court or tribunal. Key elements include public hearing, presumption of innocence, and legal representation.
• Section 37: Right to Private and Family Life: Safeguards the privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications.
• Section 38: Right to Freedom of Thought, Conscience and Religion: Guarantees the freedom to think, choose, and practice any religion or belief, and to manifest and propagate such belief.
• Section 39: Right to Freedom of Expression and the Press: Protects the right to hold opinions and to receive and impart ideas and information without interference. This is vital for a free press and public discourse.
• Section 40: Right to Peaceful Assembly and Association: Ensures the right to assemble freely and associate with other persons, and to form or belong to any political party, trade union, or other association.
• Section 41: Right to Freedom of Movement: Grants every citizen of Nigeria the right to move freely throughout Nigeria and to reside in any part thereof, and to egress from and ingress into Nigeria.
• Section 42: Right to Freedom from Discrimination: Prohibits discrimination on the grounds of ethnic group, place of origin, sex, religion, political opinion, or circumstances of birth.
• Section 43: Right to Acquire and Own Immovable Property Anywhere in Nigeria: Guarantees every citizen the right to acquire and own movable and immovable property in any part of Nigeria.
• Section 44: Compulsory Acquisition of Property: Sets out the conditions under which property can be compulsorily acquired, emphasizing prompt payment of compensation.
• Section 45: Restrictions and Derogations: This crucial section outlines circumstances under which certain fundamental rights may be restricted or derogated from, typically in times of war, public emergency, or for national security. It is vital to understand the limitations and ensure that any such restrictions are “reasonably justifiable in a democratic society.”

II. Identifying a Violation of Your Fundamental Rights

Before initiating any enforcement action, it’s essential to clearly identify if a fundamental right has been violated, is being violated, or is likely to be violated. A violation occurs when an action or inaction by an individual, a government agency, or a public official infringes upon one of the constitutionally guaranteed rights.

Common examples of rights violations in Nigeria include:

• Unlawful arrest and detention: Being arrested without a warrant or a clear reason, or being detained beyond the constitutionally prescribed period without being charged to court.
• Police brutality and torture: Any form of physical or psychological abuse by law enforcement agents.
• Extra-judicial killings: The unlawful killing of individuals by state security forces.
• Denial of fair hearing: Being denied legal representation, the opportunity to present one’s case, or having one’s case heard by a biased tribunal.
• Freedom of expression suppression: Arbitrary censorship, harassment of journalists, or restriction of peaceful protests.
• Discrimination: Being denied opportunities or treated unfairly based on ethnicity, religion, or gender.
• Unlawful demolition of property: Demolition of property without due process or adequate notice.

It is important to note that generally, only the government and its agents can be taken to court under the Fundamental Rights (Enforcement Procedure) Rules for human rights violations. If your rights are violated by private individuals or companies, you typically report these violations to the relevant government authorities or pursue civil action under general law.

III. Avenues for Enforcing Your Fundamental Rights

Nigeria offers both judicial and non-judicial mechanisms for the enforcement of fundamental rights. Understanding these avenues is critical for choosing the most appropriate course of action.

A. Judicial Enforcement: The Courts as the Last Resort

The judiciary plays a paramount role in safeguarding fundamental rights. Section 46(1) of the 1999 Constitution specifically grants jurisdiction to the High Courts to hear and determine applications for the enforcement of fundamental rights.

1. The High Court (State and Federal): The Primary Forum

The State High Court and the Federal High Court have concurrent jurisdiction to hear fundamental rights enforcement applications, provided the subject matter falls within their respective jurisdictions. The primary legal framework governing this procedure is the Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules), which replaced the 1979 Rules and were designed to provide enhanced access to justice, especially for vulnerable groups.

• Commencement of Action: An application for the enforcement of fundamental rights is typically commenced by way of an Originating Motion. This motion must be supported by:
  • An Affidavit in Support: This sworn statement sets out the detailed facts upon which the application is made, including how the applicant’s rights have been violated.
  • A Statement Setting Out:
    • The name and description of the applicant.
    • The relief(s) sought (e.g., declaration that a right has been violated, an injunction, damages, public apology).
    • The grounds upon which the reliefs are sought (i.e., which fundamental rights have been violated and under what legal provisions).
  • A Written Address: This contains brief legal arguments supporting the grounds for the application, citing relevant laws and judicial precedents.
• Procedure:
  • The application is filed in the High Court in the state where the infringement occurred or is likely to occur.

  • The court encourages and welcomes public interest litigations, meaning that strict requirements for locus standi (legal standing to bring a case) are relaxed in human rights cases to ensure that no human rights case is dismissed or struck out on this ground.

  • Applications are generally given priority, especially where the liberty of the applicant is at stake.

  • The respondent (the party against whom the action is brought) is served with the application and given a specified period (usually 5 days) to respond with a counter-affidavit and a written address.

  • The applicant then has a chance to reply to the respondent’s arguments.

  • The court then hears arguments from both sides and makes a determination.

• Reliefs the Court May Grant: The High Court has broad powers under the FREP Rules to grant various reliefs to remedy human rights violations, including:

  • Declarations: A formal statement by the court that a right has been violated.
  • Injunctions: Orders compelling a party to do or refrain from doing something (e.g., stopping further harassment, releasing a detained person).
  • Damages/Compensation: Monetary awards to compensate the victim for losses, injury, or suffering caused by the violation.
  • Apology: An order for a public apology.
  • Mandamus: An order compelling a public official or body to perform a duty.
  • Habeas Corpus: An order requiring a person to be brought before a court to determine if their detention is lawful.

2. Appellate Courts (Court of Appeal and Supreme Court): Seeking Higher Justice

If a party is dissatisfied with the judgment of the High Court, they have the right to appeal to the Court of Appeal and, subsequently, to the Supreme Court. These appellate courts review the decisions of lower courts to ensure that justice was served and that legal principles were correctly applied.

3. Other Courts/Tribunals (Limited Jurisdiction):

While the High Courts are the primary forum, other courts may have limited jurisdiction over specific human rights issues:

• National Industrial Court (NIC): Handles matters relating to fundamental rights arising from employment and labor relations.
• Magistrate Courts: While generally not having fundamental rights jurisdiction, they may deal with minor offenses that could involve human rights implications, such as assault or unlawful detention, but not typically through the FREP Rules.

B. Non-Judicial Mechanisms: Alternative and Complementary Avenues

Beyond the formal court system, several non-judicial bodies and organizations play a vital role in promoting, protecting, and enforcing human rights in Nigeria. These avenues can sometimes offer quicker, less formal, or more accessible redress, or provide support for judicial processes.

1. National Human Rights Commission (NHRC): The Primary Human Rights Ombudsman

Established by the National Human Rights Commission Act, the NHRC is Nigeria’s independent national institution for the promotion and protection of human rights. Its mandate includes:

• Monitoring and Investigating: Investigating alleged cases of human rights violations and making recommendations to the government.
• Assisting Victims: Providing assistance to victims of human rights violations and seeking appropriate redress and remedies on their behalf.
• Public Enlightenment: Organizing seminars, workshops, and publications to raise public awareness on human rights issues.
• Quasi-Judicial Powers: The 2010 amendment to the NHRC Act granted the Commission quasi-judicial powers, including the ability to summon persons, evidence, award compensation, and enforce its decisions, though the enforceability of its awards has sometimes been a point of contention.
• Visitation Rights: Power to visit any place of detention to ensure detainees’ rights are not violated.

2. Public Complaints Commission (Ombudsman): Addressing Administrative Injustices

The Public Complaints Commission acts as an ombudsman, investigating complaints by citizens against administrative actions of government agencies, public corporations, and officials. While not directly focused on fundamental rights, administrative injustices often have human rights implications.

3. Legal Aid Council of Nigeria (LACON): Access to Justice for the Indigent

LACON provides legal assistance, including legal advice and representation, to indigent citizens who cannot afford legal services, particularly in criminal matters and, to some extent, in civil cases, including fundamental rights enforcement.

4. Civil Society Organizations (CSOs) and Non-Governmental Organizations (NGOs): Advocates for Change

CSOs and NGOs are crucial actors in the human rights landscape. They:

• Advocacy and Lobbying: Campaign for legislative reforms and policy changes to strengthen human rights protection.
• Public Interest Litigation: Initiate lawsuits on behalf of victims or in the public interest to enforce human rights.
• Legal Aid Clinics: Many NGOs offer free or subsidized legal advice and assistance to victims of human rights abuses.
• Monitoring and Reporting: Documenting and exposing human rights abuses, often releasing reports that draw national and international attention.
• Awareness Campaigns: Conduct public education programs to inform citizens about their rights and how to seek redress.
• Collaboration: Work with international bodies like the UN and other human rights organizations.

5. The Press/Media:

A free and independent press plays a vital role in exposing human rights abuses, raising public awareness, and holding government and other actors accountable. Investigative journalism can bring to light violations that might otherwise go unnoticed.

6. Petitions and Protests (within legal bounds):

Peaceful protests and petitions are legitimate forms of expression and can draw attention to human rights issues, compelling authorities to act. However, it’s crucial that such actions remain within the bounds of the law to avoid further complications.

IV. Practical Steps to Take When Your Rights Are Violated

When faced with a fundamental rights violation, acting promptly and strategically can significantly improve your chances of obtaining redress.

A. Documenting the Violation:

This is perhaps the most critical initial step. Comprehensive documentation provides concrete evidence to support your claims.

• Gather Evidence: Collect any available evidence, such as:
  • Photographs and Videos: If safe to do so, capture images or videos of the incident, injuries, or destruction of property.
  • Witness Statements: Obtain contact details and statements from eyewitnesses.
  • Medical Reports: If there are injuries, seek medical attention immediately and obtain detailed medical reports.
  • Official Documents: Keep copies of any relevant official documents, such as arrest warrants (if any), police reports, or court papers.
  • Correspondence: Save any relevant emails, messages, or letters.
• Keep a Detailed Record: Maintain a chronological log of all events related to the violation, including dates, times, locations, names of individuals involved, and a clear description of what happened.

B. Seeking Legal Counsel:

While some individuals might attempt to represent themselves, the complexities of fundamental rights litigation make professional legal counsel almost indispensable.

• Importance of Consulting a Lawyer: A lawyer specializing in human rights law can:
  • Assess the merits of your case and determine if a fundamental right has been violated.
  • Advise on the most appropriate legal avenue for redress.
  • Prepare and file the necessary legal documents.
  • Represent you in court or before relevant non-judicial bodies.
  • Navigate procedural complexities and deadlines.
• Finding a Qualified Human Rights Lawyer: Seek out lawyers or law firms with a proven track record in human rights litigation. Legal aid organizations and reputable CSOs can also provide referrals.

C. Understanding the Legal Process:

The enforcement of fundamental rights can be a lengthy and often challenging process.

• What to Expect During Litigation: Be prepared for court appearances, cross-examinations, and potential delays. The legal system can be slow, and patience is often required.
• Costs Involved: Legal fees, filing fees, and other associated costs can be significant. Discuss these with your lawyer upfront and explore options like pro bono services (free legal representation) or legal aid if eligible.
• Patience and Perseverance: The pursuit of justice for human rights violations can be an arduous journey, but perseverance is key.

V. Challenges and Limitations in Enforcing Rights in Nigeria

Despite the constitutional guarantees and the FREP Rules, individuals seeking to enforce their fundamental rights in Nigeria often face significant hurdles. Acknowledging these challenges is important for a realistic approach.

• Delay in Justice Delivery: The Nigerian judicial system is often plagued by delays, leading to prolonged litigation that can be frustrating and costly for victims. Case backlogs, frequent adjournments, and procedural complexities contribute to this challenge.
• Cost of Litigation: Legal fees and other associated costs can be prohibitive for many ordinary Nigerians, effectively denying them access to justice despite constitutional provisions for legal aid.
• Ignorance and Lack of Awareness: A significant portion of the Nigerian population remains unaware of their fundamental rights and the mechanisms available for their enforcement. This “legal illiteracy” leaves many vulnerable to abuses.
• Corruption: Corruption within the law enforcement agencies and, in some instances, within the judiciary itself, can undermine the justice system and impede the fair enforcement of rights.
• Executive Disobedience of Court Orders: A persistent challenge has been the non-compliance or outright disobedience of court orders by government agencies and public officials, which erodes public confidence in the judiciary and weakens the rule of law.
• State-Actor Interference: Security agencies sometimes overstep their bounds, usurping judicial functions, engaging in unlawful arrests and detentions, and criminalizing civil disputes.
• Prison Congestion and Unlawful Detention: Many individuals are held in overcrowded detention facilities for extended periods without trial, violating their right to personal liberty and dignity.
• Lack of Resources for Enforcement Bodies: Institutions like the NHRC and Legal Aid Council often face budgetary constraints and inadequate resources, limiting their capacity to effectively carry out their mandates.
• Security Challenges: In certain regions, insecurity can make it difficult for individuals to report violations or for human rights defenders to operate effectively.
• Societal and Cultural Norms: Some societal and cultural norms may hinder the reporting of certain human rights violations, particularly those affecting women, children, and vulnerable groups.

VI. Conclusion: Upholding the Pillars of Justice

The enforcement of fundamental rights is not merely a legal process; it is a critical pillar of democracy and a testament to a society’s commitment to justice and human dignity. While the journey to enforce these rights in Nigeria can be challenging, the constitutional provisions and the existence of various judicial and non-judicial mechanisms offer pathways to redress.

Every citizen has a role to play in upholding these rights – by knowing them, demanding their respect, and actively seeking justice when they are violated. The continuous efforts of legal professionals, civil society organizations, and concerned citizens are vital in strengthening the human rights framework in Nigeria and ensuring that the constitutional guarantees are not merely aspirational but are lived realities for all.

By understanding the rights enshrined in the Constitution, the available enforcement procedures, and the potential challenges, individuals can empower themselves to demand accountability and contribute to a society where human rights are truly respected, protected, and fulfilled. The fight for human rights is a continuous one, and vigilance, advocacy, and persistent pursuit of justice are essential for its success.