CHAPTER ONE

GENERAL INTRODUCTION

  Background to the Study

Human rights are the fundamental features of any true democratic setting because the essence of democracy itself is based on the idea of human rights. Human rights are mostly viewed as the inalienable rights of people. They are the legal entitlements which every citizen could enjoy without fear of the government or its fellow citizens.

The foundation of any genuine democracy is embedded in the rule of law, a principle that demands devotion to the spiritual and moral values, the common heritage of the people and the true source of individual freedom and political liberty. These democratic ideas are presently being assimilated into the people’s consciousness in Nigeria as the nascent democratic experiment gradually solidifies. There is increasing awareness by the citizenry of the existence of constitutionally guaranteed rights. The utility of these rights can only be attained through the process of law enforcement. It is not useful to talk of right which lies only in the realms of human imagination.

Human rights are in some circles discussed, but erroneously, as synonymous with constitutional rights. This might be, because the general conception is that every right is enforceable in law. The word ‘right’ means that to which a person has a just and valid claim, whether it be land, a thing or the privilege of doing something. ‘Human’ pertains to having characteristics of, or the nature of mankind, human rights are thus rights which all people (mankind), everywhere, and at all times have by virtue of being mortal and rational creature. They are inherent in every human creature by virtue of his humanity. These rights embrace a wide spectrum of civil, political, economic, social cultural, group solidarity and developmental claims which are considered indispensable to a meaningful human existence.

The constitution on the other hand is the body of laws on the basic of which a state (Country) is governed. In Nigeria, the constitution is the supreme law of the land on the basis of which the validity of other laws is determined. It is the grundnorm of the country’s corpus juris.[1] Rights in the constitution are enforceable in accordance with the provisions of the constitutions unlike general human rights some of which are not justiciable and constitute mere aspirations of the citizens. In Kuti and others v. AG Federation,[2] Oputa JSC emphasized that:

“Not every civil or legal right is fundamental right. The ideal and concept of fundamental right are both derive from the premise of the inalienable rights of man – life, liberty, and the pursuit of happiness. Emergent nations with written constitutions have enshrined in such constitution some of these basic human rights, each right that is thus considered fundamental is clearly spelt out.”

Thus, in Nigeria, those rights that are considered fundamental to human beings are enshrined in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria (as amended).[3] The rights contained in Chapter IV of the Constitution, Sections 33 to 46, and the African Chapter on Human and people’s rights are rights that are enforceable in our Courts of Laws in Nigeria. These rights that are contained in Chapter IV are first generation rights such as  right to life, right to dignity of human person,  right to personal liberty, right to fair hearing, right to private and family life, right to freedom of thought, conscience and religion, right to freedom of expression and press, right to peaceful assembly and association, right to freedom of movement, right to freedom from discrimination, right to acquire and own immoveable property anywhere in Nigeria, compulsory acquisition of property, restriction on and derogation from Fundamental Rights.

One of the British legacies in the Commonwealth of which Nigeria is a member is a libertarian tradition of the Common Law and its system of Justice embodied in the Magna Carta of 1215 and the Bill of rights of 1689. Civil Liberties were guaranteed by the Colonial Government but to the extent necessary to prevent rebellion against Colonial Government. This was expressed in the various Constitutional conferences held in the march towards Nigerian independence in order to allay minority tribes’ fears of domination by majority tribes.

Fundamental Human Rights provisions have continued to feature very prominently in the successive constitutions of the Federal Republic of Nigeria. The 1979 Constitution of the Federal Republic of Nigeria introduced a new dimension to the Constitutional recognition of human rights by providing Fundamental Objectives and Directive Principles of State Policy (Chapter II)[4] in addition to Fundamental Human Rights (Chapter IV). The 1989 Constitution followed this trend and so did the 1999 Constitution which forms the focus of this study.

The 1999 Constitution is being reviewed but nothing is being done to make the provisions of Chapter II of the Constitution justiciable. Social, Political, and Economic factors have continued to constitute these greatest obstacles to the citizens’ desire to seek redress for the infringement of their rights.

The rights are entrenched in Chapter Four and Chapter Two of the 1999 Constitution respectively, even though the rights in Chapter Two are expressed to be non-justiciable. The role which the judiciary plays in the protection of human rights can never be over emphasized. In this research work, the problems and prospects of protection of human rights by the judiciary are adequately dealt with. Human rights are so highly placed in every democratic society as such; its importance was expressed by the Court of Appeal in the case of Fawehinmi vs Abacha.⁵ The Courts are open to entertain and decide on the issue of fundamental rights at any time without any restrictions and it is never affected by the statute of limitation. This is a shift from the 1979 Enforcement of Fundamental Rules and it is a significant innovation brought in by the 2009 Enforcement Procedure Rules. This work purports to analyse the issues and challenges of judicial protection of human rights in Nigeria.

1.2 A BRIEF OVERVIEW OF THE COURT OF APPEAL OF NIGERIA

In the Nigerian Judicial system, the Court of Appeal is the second in the hierarchy of the Courts and next to the Supreme Court of Nigeria.

1.2.1 Origin

The Federal Supreme Court which in pre-independence era was the intermediate appellate Court had since1963 become the final appellate Court. The jurisprudence of this country acknowledged the need for an intermediate appellate Court. The Western State of Nigeria at that time had experimented with the process and established the Western Nigerian Court of Appeal (WNCA). This court was short-lived. The Court of Appeal was established by the Federal Court of Appeal Act (no. 43 of 1976), which came into existence in 1976 and was then called the Federal Court of Appeal. Their lordships, the late Hon. Justice D. O. Ibekwe and Hon. Justice M. Nasir, then Justices of the Supreme court, provided the initial injection of appellate experience. The history of this Court must be eternally grateful to this duo.

1.2.2 Justices

The Justices of the Court are appointed by the President of the country, on the recommendation of the National Judicial Council. For the office of the President of the Court, this appointment is in addition subject to the approval of the Senate. To further strengthen their independence, the Constitution provides that salaries of the justices of the Court are not determined by any executive fiat but paid out of the Consolidated Revenue Fund. The only condition is that, it may not exceed what is recommended by the Federal Revenue and Fiscal Allocation Committee. Since the formation of the Court in 1976, there have been six Presidents of the Court and 209 Justices in all. The court has had periodic infusion of new Justices and of new ideas through its existence. The Justices of the Court are elevated to the apex Court, (the Supreme Court) and some retire due to the constitutional retirement age; new ones are appointed from the superior courts of record.

1.2.3 Structure

At the Headquarters in Abuja, there is the Office of the President who is the Head of Court. There is also the office of the Chief Registrar, the Accounting Officer of the Court, who reports directly to the President. There are also heads of the various departments – Finance and Accounts, Administration and Supply, Library and information services, Election Petition tribunal, ICT, Planning Research & Statistic (PRS) and Audit, all report directly to the Chief Registrar. In each division there is a Presiding Justice (PJ) who is in-charge of the day-to-day management of the division. The Presiding Justice (PJ) reports directly to the President of the Court. Each division has a minimum of three Justices including the Presiding Justice. There is a Deputy Chief Registrar (DCR) who is the Head of Administration of each Division of the Court. He serves as the Accounting Officer and reports to the Chief Registrar. The other units in the divisions are Registry, charged with the responsibility of filing papers relating to Appeals or other matters that require the determination of the Court; Administration, Finance and Library. These sections are all headed by senior officers who report to the Deputy Chief Registrar of the Division. The Deputy Chief Registrar in turn reports to the Presiding Justice and keeps him informed of the daily activities of the Division. The Court of Appeal has been called the Court of Unity, where you find Justices coming from different backgrounds and cultures working together in harmony for the promotion of the Administration of Justice in the Country.

1.2.4 Role of the Court

The Court is primarily an Appellate Court. The Court shall be deemed to be duly constituted for the purpose of hearing and determining any appeals, civil or criminal, if it consists of three Justices at a sitting. The Court of Appeal hears appeals from the Federal High Court, the High Court of a State, High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of a State including Abuja, the Customary Court of Appeal for both Abuja and the States, the Code of Conduct Tribunals, and Election Tribunals; particularly with regards to the National Assembly Election Tribunals, the Governorship and Legislative Houses Election Tribunals. The Court has original jurisdiction as Court of first instance in Presidential Election Petition.

1.3Statement of the Problem

Human rights violation is a phenomenon that has somewhat become a pronounced tradition which results to a gross violation of human rights in the Nigerian. Adetoro & Omiyefa (2014) described human rights violations as becoming a culture of impunity in the country. These violations usually involve degrading and ill-treatments meted out on individuals who are supposed to be protected by the state. Ancillary to that, the researcher observes that violations of the rights to security and protection of life causes fear and insecurity in the Nigerian society. Important to note however, is that security is an important criterion for human existence and coexistence.

During the military era, little or no concern was given to human rights by the government. In the Fourth Republic however, democratic rule is governed by a constitution which entrenches human rights protection. Yet, violations of all sorts, both by criminal minded citizens and the state officials are being perpetrated with impunity. More than 400 people lost their lives to inter-communal conflict in Nigeria’s Middle Belt States and scores were rendered homeless from these clashes in 2013. The Middle Belt is a human geographical term designating the region of central Nigeria populated largely by minority ethnic groups and stretching across the country longitudinally. These include Kwara State, Kogi State, Benue State, Plateau State, Nasarawa State, Niger State, Taraba State, Adamawa State as well as the southern parts of Kaduna State, Kebbi State, Bauchi State, Gombe State, Yobe State and Borno State. The states specifically affected by the conflict were Benue State, Taraba State and Plateau State (Human Rights Watch, 2017).

Ancillary to this, the judiciary remained nominally free from interference and pressures from other branches of the government, but corruption did impede pursuit of justice. Poverty and corruption continued to afflict the citizen, while the weakness of anti-corruption institutions in government inhibited the realization of social and economic rights and the fair transparent functioning of the public and private sectors.

Even with the establishment of the Human Rights Commission (HRC)and other human rights organizations in Nigerian, human rights violation of different forms (such as kidnapping, extrajudicial killing, unlawful arrest and detention, torture, human trafficking among others) are still recorded on daily basis. Horrific abuses in the northern part of the country by the Islamist militant group ‘Boko Haram’ and the Nigerian security forces’ heavy-handed response to this violence has dominated Nigeria’s human rights atmosphere over the years since 2013. In may 2013 for instance, Former President Goodluck Jonathan imposed a state of emergency, which was extended for another three months in November in the three states (Adamawa, Borno and Yobe) where Boko Haram is most active. The emergency failed to put a stop to the atrocities and protect civilians. All these are crimes against humanity (Human Rights Watch 2017).

Compendiously, the level of human rights violation in Nigeria gives the country a bad reputation in the international system and altogether insecurity to the citizens at large.

1.4 Aims and Objectives

The main thrust of this long essay is on appraisal on the role of Appeal Courts in the protection of Human rights. A study of any Human Right case at court of Appeal.

The study has the following specific key objectives;

1. To critically appraise the effectiveness of the judiciary in discharging its  mandate in  the protection of human rights  under Nigeria law.
2. To analyse and recommend practices that will assist and strengthen not only the protection of human rights, but the strengthening, development and growth of the judiciary in
3. To make significant contribution to the discourse on the judicial protection of human rights in Nigeria after having examined its prospects and challenges in

1.5 Justification of the Research

It is observed that the judiciary is surrounded with much challenges which hamper the distribution of its Constitutional duty to ensure adequate protection of the rights of citizens in Nigeria, it is obvious that the judiciary as an arm of the government lacks the independence which the other two arms enjoy and this has made the judiciary to resemble an agency of the executive arm of government. The dispensation of justice is the principal role of the judiciary, but it appears that some of the officers in the temple of justice got carried away at some point due to self-gratification and corruption this was why sometime in October 2016, most of the judges had their house raided on the allegations of corruption.

According to Justice Onnoghen in A.G Abia State vs A.G Federation⁹

8Psalm 11 vs 3, King James Version.

9 (2006) 16 N.W.L.R. pt.1005, p.265, pp. 420-421.

I hold the view that though we may continue to say that our democracy is at its infancy, we cannot lose sight of the fact that ours is a Constitutional democracy based on the rule of law; if then our democracy is based on the rule of law and Constitutionalism how come the judiciary is left to remain perpetually dependent on the executive arm rather than assuming its powers as vested in it by the Constitution which created it.

For the judiciary to adequately perform its functions as enshrined in the Constitution, which includes the promotion of the rule of law and protection of human rights, then separation of powers, judicial review and democracy, must be clearly followed as this will ensure the protection of human rights by the Courts and the other arms of government.

This research work will not only foster a better understanding and analysis of the judicial protection of human rights, it will also show the need for the strengthening of the political order toward a more responsive approach to the violation of human rights.

1.6  Research Methodology

This paper is based on the doctrinal method of research conducted in libraries and Internet. In this study, extensive research, analytical study, discussion and range of intellectual materials are employed, in the completion of this study an accurate and conducive paper will be presented at the end of this work.

In view of this references would be made to primary sources and the secondary sources. The primary legal sources relied on, comprise statute law and regulations, case law, customary laws, treaties, conventions and various international instruments guiding the Fundamental Human Rights in Nigeria such as Constitution of the Federal Republic of Nigeria 1999 (as amended), Universal Declaration of Human Rights, African Charter on Human and Peoples Rights, Magna Carta 1215, Bill of Rights of 1689.

While the secondary sources include textbooks, journals, publications, serials, internet, reports, periodicals, guidelines, articles, newspapers, documents and a host of other printed materials.

These, in themselves, may not always provide a complete and comprehensive statement of the law in any given situation. Institutional publications, seminar papers and law reports in the area of the subject matter of this research, and other relevant materials will be consulted and used.

1.7  Scope and Limitation of the Research

By choice, this study was narrowed down to the role of Appeal Courts in the protection of Human rights. Case study of any Human Right case at court of Appeal. This was a major delimitation and definition of scope of the study. By electing to conduct a qualitative case study, which is the best approach for a study of this nature, the scope of the study has been narrowed.

  1.8 Literature Review

Some good literature on the subject matter is available while some deal with different aspect of this topic. Research had to be undertaken with recourse to various sources to bring about this work.

Felix Daniel Nzarga in his Article title “An analysis of human rights violations by the Nigerian security services”[5] heexamines what human rights is and what constitutes human rights violations and analyses the various violations of human rights by men of Nigerian security services. But he has fails to discuss the various human rights guaranteed under the Nigerian laws and international instruments.

Dr. Jacob Abiodun Dada, in his Article title “Human Rights Protection in Nigeria: The Past, the Present and Goals for Role Actors for the Future”[6] This article provided a historical Development of human rights in Nigeria, starting from pre-colonial era, to colonial era and post-independence Nigeria. It highlighted the scope of human rights guaranteed in each epoch and the impediments to their full realization. But he fails to traces the origin of fundamental human rights, the roles of the agencies for enforcement of such rights as well as the role of the international community for the protection of human rights.

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