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Human Rights Enforcement by People Living in Poverty: Access to Justice in Nigeria

Published online by Cambridge University Press:  20 September 2010

Eva Brems and
Charles Olufemi Adekoya
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Abstract

This article analyses the challenges facing those living in poverty in Nigeria in accessing justice for the enforcement of their rights, despite those rights being constitutionally protected and despite the existence of a specific procedure for their enforcement. People living in poverty are generally most likely to see their human rights violated, and least likely to enforce their rights. The article posits that the judiciary in developing countries has a crucial role to play in fighting human rights violations specifically affecting people living in poverty, and notes the great challenge for the Nigerian legislator and judiciary towards making justice accessible in practical terms to the needy in Nigeria. The example of public interest litigation in India can serve as a source of inspiration in this respect.

Information

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 2 , October 2010, pp. 258 - 282
Copyright
Copyright © School of Oriental and African Studies 2010

INTRODUCTION

Human rights remain unfulfilled promises for large numbers of people throughout the world, despite their recognition in national constitutions and in widely ratified international treaties, and regardless of the availability at the national level of judicial mechanisms for their enforcement. People living in poverty are generally most likely to see their human rights violated, and least likely to enforce their rights. Improving human rights protection for people living in poverty is not a challenge for the judiciary, or even the legal system, alone. Yet, judicial enforcement at the national level is where human rights can show their teeth. The real and visible prospect that perpetrators of human rights violations will be held accountable and that victims will be compensated is crucial for the strength of any human rights protection system. It sustains its credibility in the eyes of the rights holders and acts as a deterrent towards potential perpetrators.

With a population of approximately 140 million, Nigeria is the most populous nation in sub-Saharan Africa. According to Nigeria's National Bureau of Statistics, the national incidence of poverty is about 54.7 per cent of the population.Footnote 1 Poverty in economic means goes hand in hand with poverty in terms of the enjoyment of human rights. This article presents the legal provisions for human rights protection in Nigeria, before examining the obstacles experienced by people living in poverty in accessing justice for the enforcement of their human rights. It concludes with a number of suggestions for procedural and institutional changes that may help further access to justice in fundamental rights cases in Nigeria.

FUNDAMENTAL RIGHTS IN THE NIGERIAN CONSTITUTION

The first bill of rights in Nigeria can be traced to the independence constitution of 1960. Shortly before independence, when the colonial government introduced regional government, minority ethnic groups expressed fears of domination and marginalization. In response to these concerns, the colonial government set up a Minorities Commission in 1957. Based on its recommendations, a bill of rights was included in chapter III (sections 17–32) of the 1960 constitution.Footnote 2 This constitution also introduced a political arrangement modelled on the Westminster Parliamentary system and retained the English monarch as the head of state. In 1963, Nigeria became a republic and adopted the 1963 republican constitution which ended the monarchy.Footnote 3 This constitution retained the fundamental rights provisions. In 1979, upon the return to democracy after a difficult period in Nigerian history, another constitution came into being; this contained fundamental rights provisions similar to those in the previous constitutions. After another difficult period, the current constitution came into force on 29 May 1999 (the 1999 Constitution). Chapter IV of the 1979 and 1999 Constitutions includes only civil and political rights. Economic, social and cultural rights can be found in chapter II of the 1999 Constitution as Fundamental Objectives and Directive Principles of State Policy.Footnote 4 They are declared to be non-justiciable.Footnote 5

Nigeria has ratified or acceded to many of the major international and regional human rights instruments.Footnote 6 However, they do not have direct effect in Nigerian law. The status of these conventions in the domestic legal system is determined by section 12(1) of the 1999 Constitution, which states: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”. Only the African Charter on Human and Peoples' Rights (the African Charter) has so far been incorporated.Footnote 7 The Supreme Court confirmed in Abacha v Fawehinmi (Fawehinmi)Footnote 8 that the African Charter is now part of Nigerian law.

LEGAL MECHANISM FOR FUNDAMENTAL RIGHTS ENFORCEMENT

For the purpose of entertaining suits for the protection and redress of fundamental rights violations, section 46 of the 1999 Constitution confers original jurisdiction on the High Court in a state. This section further empowers the Nigerian chief justice to make rules with respect to High Court practice and procedure in connection with the enforcement of those rights.

The Fundamental Rights (Enforcement Procedure) Rules

The then chief justice in 1979 made the current rules, the Fundamental Rights (Enforcement Procedure) Rules, 1979 (the Rules) pursuant to section 42(3) of the 1979 constitution. The Rules came into force on 1 January 1980. Section 46(3) of the 1999 Constitution provided for similar rules to be made by the Nigerian chief justice, but this has not been done. The implication of this is that, by virtue of section 315 of the 1999 Constitution, the existing Rules remain in force until new rules are made.

Although section 46 of the 1999 Constitution confers original jurisdiction on the High Court in a state, the Supreme Court held in Jack v University of Agriculture, Makurdi,Footnote 9 that both the Federal and State High Courts have concurrent jurisdiction in respect of the enforcement of fundamental rights, and that an application for fundamental rights enforcement can either be made to the Federal High Court or the High Court of the state in which the breach occurs.

The Rules can only be invoked where the principal claim is in respect of a human rights violation. Where the violation of human rights was a mere appendage to the main claim, the Supreme Court of Nigeria held, in Tukur v Government of Taraba State,Footnote 10 that a party cannot rely on protection under the Rules. On the other hand, where a violation is the principal claim, the Rules can be invoked for other tangential claims.Footnote 11 In Fawehinmi, the Supreme Court also held that the procedure for enforcing rights under the African Charter is the same as that for enforcing fundamental rights under the 1999 Constitution.Footnote 12

Procedure

In order to embark on legal redress of a fundamental rights violation under the Rules, an applicant must file an ex parte [made on behalf of another] motion for leave to apply for the enforcement of a breach of a fundamental right. The application for leave must be filed within 12 months from the date when the cause of action arose or any longer period as may be allowed by the court.Footnote 13 It must be accompanied by an affidavit in support, verifying the relevant facts giving rise to the breach.Footnote 14 After obtaining leave of the court, the applicant can apply for an enforcement order. The process of seeking leave has been described as an in-built delay mechanism.Footnote 15 The step of applying ex parte for permission to enforce the right has been labelled unnecessary, cumbersome and capable of frustrating the fundamental rights of Nigerian citizens.Footnote 16 Another concern is the likelihood of the court dabbling in the merits of the main application while considering an application for leave. For these reasons, the issue of leave may be described as dysfunctional.

On the hearing date, the hearing may be adjourned if the court is of the opinion that the applicant has improperly failed to serve any person, whether or not such a person is directly affected by the proceedings. On the other hand, the court may on its direction grant an opportunity to be heard to any person or body that so desires, even if such person has not been properly served. This provision has been said to give the status of amicus curiae [friend of the court] to practically every Nigerian (which effectively means any interested party, irrespective of nationality) who desires to be heard in the application.Footnote 17

Generally, under the Rules, a fundamental rights application can be brought either to question the validity of and quash an order, warrant, commitment, conviction, inquisition or record, or for the production and release of detained persons, in cases of wrongful or unlawful detention.

Both section 46(2) of the 1999 Constitution and order 6 rule 1(1) of the Rules dictate that the court may make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or seeing the enforcement of constitutionally guaranteed fundamental rights. Although the Rules make no provision for specific remedies, it was held in Asemota v Yesufu Footnote 18 that the language implies the availability of certain remedies (ie an order of certiorari [removal of proceedings to a higher court], mandamus [ordering the hearing of an appeal] or prohibition), as well as a certain writ (ie habeas corpus [to have an individual appear]), and this list was by no means intended to be exclusive.Footnote 19 However, under order 6 rule 2, any party disobeying a court order may be subject to imprisonment.Footnote 20

In Dele Giwa v Inspector General of Police,Footnote 21 the court awarded monetary compensation to the applicant who had been illegally detained by the police and a public apology was also offered to the applicant. In the Court of Appeal's decision in Adeyemi Candide-Johnson v Mrs Esther Edigin,Footnote 22 the propriety of monetary compensation in fundamental rights violation cases was confirmed; also, in Minister of Internal Affairs v Shugaba, the Supreme Court stated: “in cases involving an infraction of fundamental rights of a citizen, the court ought to award such damages as would serve as a deterrent against naked, arrogant, arbitrary and oppressive abuse of power … However, such award must not be excessive.”Footnote 23

In other words, the courts will permit the recovery of damages for the violation of rights in addition to the traditional remedies of certiorari, mandamus, prohibition, declarations and injunctions.

OBSTACLES TO EFFECTIVE HUMAN RIGHTS ENFORCEMENT

Despite a constitutional bill of rights and the availability of a specific procedure for fundamental rights enforcement in Nigeria, people living in poverty are confronted with enormous obstacles that stand in the way of their accessing justice for the enforcement of their rights. Some of the main problems are ignorance and illiteracy, procedural complexity, the cost of legal procedures, the strict interpretation of locus standi [right to be heard] rules, lack of assertiveness by rights holders, corruption, the inefficient administration of justice, and lack of trust in the justice system.

Ignorance/illiteracy

In the words of Justice Suleiman Galadima JCA: “The Constitution may be a common document to those in the course of whose activities it is a regular feature. However, it is no gainsaying that a majority of Nigerians do not know what rights they have, enshrined in the Constitution”.Footnote 24 Ignorance and illiteracy are indeed major obstacles to fundamental rights awareness and enforcement in Nigeria. The 1999 Constitution is written only in the country's official language, English, and has not been translated into the major local languages spoken by the local people. Thus, given the level of illiteracy in Nigeria,Footnote 25 illiterates and even functional illiteratesFootnote 26 are generally not aware of their fundamental rights as provided in the 1999 Constitution or have no knowledge of human rights generally. An individual can hardly enforce rights of which he or she is ignorant or take up the cause of others without being aware of those rights. Moreover, in Nigeria's 2006 sixth periodic report to the Committee on the Elimination of Discrimination Against Women (CEDAW Committee), it was observed that the use of the English language, rather than local languages, as the communication medium in court, as well as the complex nature of the court system, are barriers to women accessing justice in Nigeria.Footnote 27 The same barriers also apply to men.

Procedural complexity

A 2006 United Nations (UN) report indicated that people perceive the biggest obstacle to using the courts to be the complexity of court processes.Footnote 28 As the above overview of the Rules makes clear, the procedure is complex and highly technical, which makes it difficult for an average person to understand. Apart from the fact that illiterates cannot comprehend such provisions, a poor but literate person is likely to find it impossible to go through a procedure successfully without the services of counsel, an expense he or she may be unable to meet.

Costs filing, service fees, legal fees, transport costs

Nigeria's 2006 sixth periodic report to the CEDAW Committee mentions the high cost of litigation, including lawyers' fees, and the inaccessibility of courts of law due to their locations coupled with poor transportation systems as major inhibitive factors for poor and/or rural women having access to justice.Footnote 29 This report reflects the challenge faced by people living in poverty in Nigeria, irrespective of gender.

Protecting or enforcing one's right in a court of law in Nigeria can be very expensive. Litigants have to bear several costs, such as filing fees, which in some cases depend on the plaintiff's claim. An additional cost that should not be underestimated is that of transportation to and from court, for each sitting. For people living in poverty, access to justice can indeed be hindered by the impossibility of physically reaching the court building. The inability of people living in poverty to bear any expense for transport often forces people to walk to the court.Footnote 30 The cost of attending court sittings, either as a witness for prosecution in criminal matters or as plaintiff in civil matters can be challenging. The Director of Public Prosecutions (DPP) at a state Ministry of Justice stated in an interview with the authors that sometimes she has to pay transportation costs for poor people to attend court to give evidence in matters in which they are the victims. The DPP added that the government has to resort to rendering this financial assistance because victims have been seen to abandon prosecuting crimes owing to their inability to afford the cost of attending court sittings.

In many states of the federation, the costs of filing fundamental rights enforcement cases are unduly high. In Lagos State High Court, a litigant might pay about N7,500 (approximately $60) to file an action for a fundamental rights enforcement; to file a simple motion costs N350 (approximately $3), while no payment is required for a claim for a liquidated sum. Federal High Court fees have recently become astronomical: to file a new action may cost about N50,000 (approximately $400) for a monetary claim, while a simple motion costs about N330 (approximately $3).Footnote 31 This is in a country where the minimum monthly wage is N7,500 (approximately $60), and the majority of the people live below the poverty line. In appeal cases, the appellant has to contend with various fees.Footnote 32

Where a matter being filed includes a claim for a specified sum at the federal level, some State High Courts require that prospective plaintiffs should pay a certain percentage of that amount in addition to the filing fees. It would seem more reasonable that such percentage should be payable after judgment has been entered for the plaintiff and the judgment is to be executed, not before filing the action.

Then there is the cost of legal counsel. Engaging the services of a lawyer in fundamental rights enforcement cases will cost not less than N50,000 (approximately $400).Footnote 33 This amount excludes the cost of filing, service and other administrative expenses to be borne by the prospective applicant. In a technical report on the Nigerian court procedures project conducted in 2001, litigants generally expressed the view (74.2 per cent of the data collected) that lawyers' fees are excessive for poor citizens.Footnote 34

Strict application of locus standi rule

Locus standi deals with the right or competence of a person to institute proceedings in a court of law for redress or assertion of a right enforceable in law. This concept is predicated on the assumption that no court is obliged to provide for a claim in which the applicant has a remote, hypothetical or non-existent interest. In fundamental rights enforcement cases, it is the person whose right has been, is being or is likely to be breached who can bring the action to court in Nigeria.Footnote 35

The constitutional basis for the locus standi rule in Nigeria can be found in section 6(6)(b) of the 1999 Constitution, which provides that someone can only approach the court “for the determination of any question as to the civil rights and obligations of that person”, so that only the person whose right is threatened or infringed can apply to court for redress.Footnote 36 The courts in Nigeria have applied this rule strictly. The court will therefore not ordinarily entertain an action that is brought on behalf of another person, irrespective of the social status of the person.Footnote 37 This has created major impediments for human rights non-governmental organisations (NGOs) or individual activists to bring actions to enforce generic or group rights. Even individual victims rarely succeed, because they have to show a personal interest over and above the interests of members of the general public. Nigeria's apex court has adopted strict conservatism regarding the issue of locus standi, on the premise that liberalization on this front would open the floodgates of litigation to busybodies.Footnote 38 Yet the consequence of Adesanya has been to frustrate the enforcement by public spirited people of fundamental rights in Nigeria for people living in poverty,Footnote 39 hence excluding from justice people who live in poverty and have a cause.Footnote 40

The Supreme Court attempted to broaden the restrictive interpretation of locus standi as enunciated in Adesanya in its decisions in Fawehinmi v Akilu Footnote 41 and Akilu v Fawehinmi (No 2). Footnote 42 Unfortunately however, in so doing, the apex court distinguished between civil and criminal cases, with the effect that it is only in criminal matters that the rule is somewhat liberalized.Footnote 43 Even in criminal matters, the courts still require a party to disclose a personal interest or a close bond with the victim of the rights violation.Footnote 44

In the 2006 case of Theophilus Uwalaka and Two Others v Police Service Commission,Footnote 45 a human rights NGO instituted an action on behalf of two others as applicants, seeking an order of mandamus to compel the respondent to investigate the allegation of bribery/extortion and other investigative malpractices alleged against some police officers, which the respondent had refused or neglected to investigate. The court held that the NGO had no locus standi to institute the action for itself and on behalf of the first and second applicants, as its civil rights or obligations were not in danger. The case typifies the setback that the issue of locus standi is giving to human rights NGOs in their bid to assist the indigent to enforce their rights.

It has been argued that “there should be a very broad and liberal interpretation of section 6(6) to make it accord with the preamble to the Constitution and a relax of the extreme legalism and the undue rigidity involved in the concept of locus standi at least where constitutional issues are called in question”.Footnote 46 Given the divergent interpretations of locus standi in some of the cases that have come before the apex court in Nigeria,Footnote 47 it has moreover been suggested that section 6(6) be amended to put the controversies to rest and in order to allow more access to the court in constitutional matters.Footnote 48

Lack of assertiveness

Draft guidelines published by the Office of the UN High Commissioner for Human Rights noted that the most important tool for people living in poverty to defend themselves against human rights abuses is court protection, yet that, even if legal assistance is provided for them, they often lack the capacity to assert themselves in court.Footnote 49 Indeed, people living in poverty suffer exclusion and the lack of a voice as a result of poverty, so that, even if they have access to courts,Footnote 50 they often lack the necessary assertiveness to have their human rights enforced.Footnote 51

In a developing country such as Nigeria, the legal process (in particular the adversarial procedure) tends to intimidate the litigant, who feels alienated from the system. A poor person who enters the legal system, whether as a litigant, witness or party, may well find the experience traumatic.Footnote 52

Corruption

The incidence of corruption which has plagued the judicial system in Nigeria relates to unofficial payments to judges, lawyers, court staff and police with the purpose of obtaining favourable judgments.Footnote 53

Corruption in the justice administration system in Nigeria takes many forms. These include: the acceptance of gratification or other considerations by the presiding judge or magistrate to influence the decision in a case in favour of one of the parties; collusion between litigants (often the plaintiffs) and the court bailiffs; faking the actual service of court process, as well as forged endorsements of service in the court records, with the aim of ensuring the non-appearance of the defendant to defend the suit, so that the plaintiff can obtain a default judgment against the real defendant, who has no knowledge of the suit.Footnote 54

Also, corrupt practices may characterize every stage of filing and processing new suits before they are assigned for hearing. Litigants may have to pay bribes to court officials for: speedy processing of their matters; to get a suit officially recorded in the registry; to have a writ issued, signed and endorsed; to ensure bailiffs effect service of court processes and file necessary affidavits of service; to obtain assignment of cases to the appropriate judge; and to fix a date for the case to be mentioned in court.Footnote 55 The various stages of filing and actual assignment of cases for hearing may be subject to corrupt practices by litigants and their lawyers who offer gratification to court officials and in some cases to the judicial officers themselves, for the purpose of facilitating speedy processing of a procedure or to obstruct or delay its processing. The choice of judge or magistrate who is to hear the matter may be influenced, with the aim of perverting the course of justice. In criminal matters, corrupt practices also influence the granting or refusal of bail to accused persons. Bail may sometimes depend on the defendant's ability to pay gratification, while accused persons who cannot pay may be denied bail or be given onerous bail conditions, which may be difficult to fulfil.Footnote 56

Court bailiffs, who are central to the service of court processes and the execution of judgments in Nigeria, have been particularly identified as the most mischievous and corrupt personnel within the judiciary, who act as barriers to speedy trials and the dispensation of justice.Footnote 57 The Justice Kayode Esho Judicial Panel, set up in December 1993 by the late dictator, General Sani Abacha, investigated various allegations of corruption against some judicial officers in Nigeria. The panel issued a damning report against some judicial officers and recommended the “withdrawal” of 47 judicial officers, comprising eight chief judges, 21 High Court judges and 18 magistrates.Footnote 58 The government did not consider the panel's report until eight years later,Footnote 59 during the regime of Olusegun Obasanjo. As a result of the long delay, the National Judicial Council (NJC)Footnote 60 set up another five-man committee which later reviewed the recommendations in the panel report and confirmed the indictment of two chief judges and four High Court judges, while absolving two other judges of blame.Footnote 61

Official findings of corruption in the Nigerian justice system abound. The 2006 UN assessment found that “the more corruption the less the trust; the less trust the more people accept bribery as a given fact when dealing with justice sector institutions”.Footnote 62 In the technical report on the Nigerian court procedures project, corrupt personnel among lawyers, litigants and judges were generally agreed to be one of the main causes of trial delays and denial of justice in the civil justice systemFootnote 63 in Nigeria.Footnote 64 Likewise, some of the complaints handled in Nigeria's Public Complaints Commission'sFootnote 65 Annual Reports include allegations of extortion by court officials, demands for gratification and suppression of appeal by a judicial officer.Footnote 66

As noted above, corruption in whatever form affects people living in poverty most, and excludes them from access to justice. Moreover, public perceptions of the integrity and performance of the justice system are crucial to maintaining respect for the rule of law and the role of the courts in a healthy democracy.Footnote 67 Bringing one's case before an independent and impartial court or institution is an integral part of the right to a fair hearing.Footnote 68 Lack of impartiality and independence of the judiciary is often linked to corruption. In fact, widespread corruption subverts the entire formal legal system.Footnote 69

Inefficient administration of justice

Probably the greatest problem with the Nigerian judiciary is the excruciatingly slow pace of justice, as a result of which parties have to be present in courts on countless occasions from the filing of the case until its actual conclusion.Footnote 70 The Rules were made not only as a guide for bringing fundamental rights enforcement actions, but essentially for the speedier hearing of those cases compared to other civil cases. The 2001 technical report found that civil matters such as personal injury or tort cases take an average of 3.4 years to be disposed of while family disputes and divorce cases take 2.5 years to conclude.Footnote 71

The technical report also found that numerous actual delays in civil proceedings can cause a matter to be protracted to between seven and 20 years.Footnote 72 For instance the case of Wilson Bolaji Olaleye v NNPC Footnote 73 took 13 years before judgment was given and damages awarded to a dead victim of a kerosene explosion and his dependants. In Ariori v Elemo,Footnote 74 the Supreme Court of Nigeria ordered a retrial of the case after 20 years of litigation on the ground that the trial High Court's inordinate delay (of 15 years) had occasioned a miscarriage of justice. The report noted other causes of prolonged delays when matters are adjourned indefinitely.Footnote 75 Trial courts often resort to this procedure when they are awaiting the decision of a superior court (the Supreme Court in most cases) in matters in which issues in respect of interlocutory appeals are pending.Footnote 76 The effect of the slow pace of justice affects people living in poverty most, as they cannot fund litigation spanning a long period of time. A fundamental rights enforcement case may last for an average of five years or may even be prolonged for as long as the rich defendant wants.

Affirming the adverse effect of the inefficient administration of justice in Nigeria, Hon Justice T Akinola Aguda stated:

“The whole system of administration of justice is heavily weighted against the vast majority of the people, who are unable to afford the expense of any search after justice. If however the poor is foolhardy enough to enter the temple of justice, he and his family may regret it for the rest of their lives. For in the process - in the pursuit of what he considers to be just - he may become bankrupt and die a pauper. Because, no matter how little a claim may be if one of the parties is a wealthy person or is the State, such a case may traverse eight courts in between 5 and 20 years.”Footnote 77

Criminal trials in Nigeria are also bogged down by inordinate delay.Footnote 78 Poor accused persons are the worst affected by having to spend long periods in detention awaiting trial,Footnote 79 especially owing to an inability to afford legal representation. A 2005 report on prison reform,Footnote 80 indicated that 64 per cent of the inmates of Nigerian prisons are awaiting trial, most spending between two to 15 years in prison awaiting trial.

However, in the High Court of Nigeria's Lagos state, the case flow in civil litigation has been streamlined, improved and automated, under the civil process improvement and automation project which began in 2006. Under this project, the entire civil litigation case flow from filing to final disposition has been improved upon through the court automated information management system (CAIS).Footnote 81 Disposition standards of fundamental rights cases have now been put at within six months, while other general civil cases are said to be concluded within 12 months.Footnote 82 It is to be noted that the CAIS only covers four of the judicial divisions in the state.Footnote 83 Moreover, lawyers, human rights activists and human rights NGOs in Lagos state claimed in interviews with the authors that, in practice, fundamental rights cases are not concluded within six months as stipulated, and expressed the view that the situation has only improved marginally.

The 2006 UN report indicated that the length of trial was the most serious problem of the country's justice system when compared with other factors hampering justice delivery.Footnote 84 In its findings, the report stated that: “Court users who had more negative perceptions and experience when it came to seeking access to justice, were likely not to use the courts when needed”, and that “inefficient courts are likely to encourage citizens not to seek solutions in accordance with the law but to resort to other, often illicit, means including corruption”.Footnote 85

Mistrust

In his final report in 1996 Leandro Despouy, the special rapporteur on human rights and extreme poverty, included, in addition to some of the issues raised above,Footnote 86 mistrust among the obstacles barring access to justice for the very poor. He stated that this stemmed from their experience of the justice system.Footnote 87 According to him, whether they are defendants or accused, they often see their petitions turned against them: “There is a strong possibility that they would be reproached with some unlawful aspect of everyday life quite unrelated to the grounds for the petition; the poorest have learned that, in seeking their due in a given matter, it is often preferable not to be in the wrong in some other respect”.Footnote 88

The technical report on the court procedures project noted general agreement among litigants and lawyers that people living in poverty are not fairly treated by the civil justice system in Nigeria.Footnote 89 There is consequently a low level of public trust in the courts and declining willingness of citizens to use the courts to protect their rights.Footnote 90 People living in poverty therefore do not access the legal system willingly unless they are forced into it as an accused or defendant in a law suit.Footnote 91 They see the law as an instrument of oppression and try to avoid it.Footnote 92

IMPROVING HUMAN RIGHTS ENFORCEMENT IN NIGERIA THROUGH ACCESS TO JUSTICE

Access to justice is crucial to human rights enforcement and is increasingly recognized as a component of poverty reduction programmes.Footnote 93 Yet for people living in poverty in Nigeria today, access to justice for the enforcement of their human rights is the exception rather than the rule. Improving access to justice requires reforms in the justice system. These should be based on the lessons learned by other states that are confronted with similar problems. In particular, the Indian experience with public interest litigation is worth examining.

Judicial reforms

As discussed above, litigation in Nigeria is associated with inordinate delays. This problem is further compounded by the long trajectory of a case through the judicial hierarchy from the High Court to the Court of Appeal and then to the Supreme Court. The current chain or hierarchy of courts in Nigeria may unduly prolong both litigation and prosecution in criminal trials, especially in view of the slow pace of the administration of the justice system. Timely dispensation of justice may be facilitated by justice sector reforms that would shorten the length of judicial ladders to be climbed in order to exhaust judicial remedies.

One option for such a reform is the elimination of the Court of Appeal from the current judicial hierarchy in Nigeria, with the High Court and Supreme Court remaining the only superior courts of record. As a result, appeals would lie directly from the High Court, which is the court of first instance in human rights cases, to the Supreme Court, which is the final court. Alternatively, the Court of Appeal could continue to exist, but be bypassed in constitutional and human rights cases.

A third scenario is the establishment of a Constitutional Court with competence in constitutional and human rights matters. This would relieve the Supreme Court of the workload which results from its serving as the final appellate court on all legal and constitutional matters. An additional benefit of this scenario would be that a Constitutional Court would be likely to pay special attention to human rights matters and avoid an excessively legalistic approach in their interpretation.

In addition, any proposed judicial reforms will require a thorough examination of the current justice system in order to determine where inordinate delays usually occur. The justice administration system should be completely overhauled to address inefficiency, and the rules of procedure should be reviewed to remove technicalities which breed delay.

Public interest litigation

Nigeria can learn from other developing countries that have been exploring ways to improve access to justice for people living in poverty. A particularly promising experience is that of public interest litigation (PIL) in India. PIL as practised in India has been described as following a doctrine of procedural relaxation in cases of human rights violations, in order to make both access to justice and furnishing of proof easier.Footnote 94 Through an innovative use of judicial power,Footnote 95 it represents a classic example of the courts becoming directly involved in solving the problem of legal services to the poor through their court rules.Footnote 96 While the focus is mostly on procedural liberalization, there is also a strong principled substance, leading for example to the finding that the state is under a constitutional obligation to see that there is no violation of the fundamental rights of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.Footnote 97 PIL in India can thus be described as a platform for vindicating the rights of people living in poverty. Its main characteristics are the liberalization of rules of standing, the relaxation of procedural requirements of access, the appointment of commissioners for the purpose of gathering evidence, its non-adversarial nature, the innovative character of relief and remedies, and the court's supervision of its own orders.

Locus standi liberalization

The Indian Supreme Court declared that the rules governing locus standi, developed by Anglo-Saxon jurisprudence, are manifestly uncongenial to India's social and cultural setting.Footnote 98 Liberalization started with the locus classicus [an important and often cited judicial authority] decision in SP Gupta v Union of India (SP Gupta),Footnote 99 popularly known as the Judges' Transfer case, which upheld the locus standi of citizens to institute public interest cases before the Supreme Court. It also became firmly established that, where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of a violation of their constitutional or legal rights, and that person or determinate class of persons is by reason of poverty or disability in a socially or economically disadvantaged position and unable to approach the court for relief, any member of the public or a social action group acting in good faith can maintain an application in a High Court or the Supreme Court seeking judicial redress for the legal wrong or injury caused to that person or determinate class of persons.Footnote 100

The strict rule of locus standi therefore became relaxed in two ways: representative standing and citizen standing.Footnote 101 Representative standing occurs in situations where a person is by reason of poverty or disability in a socially or economically disadvantaged position and unable to approach the court for relief. In such cases, a third party is allowed to prosecute the matter on his behalf.Footnote 102 Citizen's standing is also granted to any member of the public with sufficient interest to maintain an action for redress of a public wrong or injury caused by an act or omission of the state or a public authority which is contrary to either the constitution or the law.Footnote 103

In sharp contrast to the strict position of the Nigerian courts on locus standi described above, the Indian Supreme Court has therefore been making human rights truly “human” by granting other people the legal right to defend the rights of fellow human beings.Footnote 104 Some Nigerian judges already see the benefit of locus standi liberalization. In Ozekhome v The President,Footnote 105 the High Court in a rare move gave standing to a legal practitioner to sue on behalf of his clients who were being detained without trial by the then military government. As a High Court case, it cannot however serve as a precedent. Instead, a relaxation of locus standi rules through an amendment to section 6(6) of the 1999 Constitution is desirable.

Relaxation of procedural requirements of access

A related feature of Indian PIL is the Supreme Court's dispensing with formal writs drawn in legal language,Footnote 106 despite the fact that there are formal rules for the filing of petitions.Footnote 107 The treating of ordinary letters, telegrams or even a post cardFootnote 108 as a petition was initiated informally and followed on an ad hoc basis by some of the judges of the Indian apex court. It became institutionalized by the Supreme Court in the case of SP Gupta, decided in December 1981.Footnote 109 The court consequently held in this and a host of other casesFootnote 110 that, procedure being merely a handmaiden of justice, it should not stand in the way of access to justice for the weaker sections of Indian humanity. It became established that, where the poor and the disadvantaged are concerned, the Supreme Court will not insist on a regular writ petition, so that a simple letter addressed by a public spirited individual or a social action group acting in the public interest would suffice to activate the jurisdiction of the court.Footnote 111 The court therefore accepts lettersFootnote 112 and telegrams.Footnote 113 This is irrespective of whether the letter is addressed to the court or an individual judge.Footnote 114 In this way, the Supreme Court evolved what has come to be known as “epistolary jurisdiction”.Footnote 115

Meanwhile, in Nigeria, the procedure for fundamental rights enforcement remains technical, cumbersome and lawyer-centred, as described above. The drawbacks of this system are accentuated by inconsistent judicial decisions, some of which tend to strict adherence to procedural laws whereas others promote liberal construction of those laws. In Raymond Dongtoe v Civil Service Commission of Plateau State (Raymond Dongtoe),Footnote 116 the Supreme Court of Nigeria held that, where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from that procedure is fatal to the enforcement of the remedy.Footnote 117 This conflicts however with the Supreme Court's earlier decision in Saude v Abdullahi,Footnote 118 where it held that it was not clear that the Rules set out the only procedure by which redress could be sought. So, adopting a particular procedure will not impeach the remedy sought. In that particular case, the originating summons was signed by the legal practitioner to the respondent, instead of by the presiding judge as required by the Rules; this was held not to impeach the proceedings for the enforcement of fundamental rights. This position rejecting excessive legalism was affirmed by the Court of Appeal in Olisa Agbakoba v The Director of State Security Service,Footnote 119 where the court held that the end purpose of the Rules is to ensure that, where the infringement of fundamental rights has been complained of or threatened, there is a speedy enforcement of those rights and a simplification of the procedure for dealing with the complaints.

It is submitted that Nigerian courts should allow claimants in fundamental rights cases to come to court by any convenient means, without strict adherence to the Rules. It has been recognized that the Rules, first put in place in 1980, are due for a comprehensive review, to address the flaws in them and enable applicants to secure judicial redress with ease and without delay.Footnote 120 Some Nigerian judges are already on this track. In Alhaji Mohammed Shaaba Lafiaji v Military Administrator of Kwara State,Footnote 121 the High Court seemed fully to appreciate the importance of enforcing rights; it held that matters concerning the enforcement of fundamental rights of citizens are so important that the mode of access to the courts to enforce these basic rights should not be restricted to one particular means nor the procedure used in the attainment of the enforcement of those basic rights be made cumbersome and technical. Also, in Nnamdi Azikiwe University and Others v Nwafor,Footnote 122 the Court of Appeal held that, in order to render meaningful the provisions of the 1999 Constitution dealing with fundamental rights, the court should not be tied to the apron strings of the principles of practice and procedure governing the trial of normal civil cases, such as parties being bound by their pleadings;Footnote 123 it further held that, in the matter of enforcing fundamental rights, courts should be less slavish to the rules of court, but rather use them as a handmaiden to do substantial justice. The next step would be for the Supreme Court to reverse its decision in Raymond Dongtoe.

Non-adversarial system of evidence through expert committees

The Indian Supreme Court moreover reasoned that, where one of the parties to litigation is weak and helpless and does not possess adequate social and material resources, he or she is bound to be at a disadvantage under the adversarial system; this is not only because of the difficulty in getting competent legal representation, but more than anything else because of the inability to produce relevant evidence before the court. It was obvious to the court that the problem of proof presents difficulties to vindicate the rights of the poor.Footnote 124 This led to the practice of appointing diverse people such as lawyers, professors of law, court officials, journalists, bureaucrats, district judges, mental health professionals, experts and bodies of experts as commissioners, in order to gather material facts on behalf of poor petitioner(s)Footnote 125 and to make a report to the court, which might also contain recommendations.Footnote 126 This practice of appointing socio-legal commissions of inquiry for the purpose of gathering relevant evidence was institutionalized by reason of the Supreme Court judgment in Bandhua Mukti Morcha. Footnote 127 The reports of the commissioners serve as prima facie evidence of the facts and data stated in those reports, although it is left for the court to determine what weight it should attach to those in light of the various affidavits filed in the proceedings.Footnote 128 Moreover, the role played by the court under PIL in India is more assertive than in traditional actions,Footnote 129 as the “judge is given a greater participatory role in trials so as to place the poor as far as possible on a footing of equality with the rich in the administration of justice”.Footnote 130

In Nigeria on the other hand, courts adhere strictly to the adversarial procedure inherited from Britain, where the court is seen as an unbiased umpire who must not descend into the arena of justice. As a result, the burden of proof remains a serious hurdle for people living in poverty in Nigeria who wish to enforce their fundamental rights.

Another important aspect of PIL that deserves to be mentioned is the practice by courts of appointing lawyers, including very senior lawyers, as amicus curiae. Where PIL is initiated in person, the courts also appoint lawyers to act as amicus curiae, thus indirectly providing legal aid to the poor.Footnote 131 They assist the court to sift out relevant facts from documents and pleadings, highlight the legal issues involved, narrow down those issues and sharpen the focus of discussion.Footnote 132 The lawyers discharge this duty professionally without charging a fee, and they feel honoured for being called upon by the court to assist.Footnote 133 This undoubtedly adds to the quality of justice received by people living in poverty, who would ordinarily not have been able to afford the services of lawyers in the first place, but now enjoy the services of some of the most prominent among them.Footnote 134

Innovative remedies

Under PIL, the Indian Supreme Court devised innovative remedies. The reliefs granted are corrective rather than compensatory and are focused on the future.Footnote 135 They include detailed and far-reaching directions to specific government bodies or agencies, judicial monitoring of state institutions, granting of damages to victims of government brutality and the unique order of interim compensation,Footnote 136 among others. In the case of Bandhua Mukti Morcha, the Supreme Court made an order giving various directions for identifying, releasing and rehabilitating labourers who were held in debt bondage. Directions were also made for the observance of labour laws,Footnote 137 creation of legal awareness, and the provision of safe drinking water, medical assistance and educational facilities.Footnote 138 In Hussainara Khatoon v State of Bihar,Footnote 139 concerning pre-trial detention, the Supreme Court directed the state government to prepare an annual census of prisoners on trial as of 31 October of each year and submit it to the High Court, and further directed the High Court to ensure the early disposal of cases where prisoners had been in detention for too long. PIL has also been used to invoke legal aid for the poor in a novel way. For instance, the court has held that the right to legal aid services is incidental to the right to life in article 21 of the Indian Constitution.Footnote 140 In Khatri v State of Bihar II,Footnote 141 the Supreme Court held that the state is under an obligation to provide free legal service to an accused indigent, not only at the stage of trial but also at the stage where he is produced before the magistrate, as well as when he is remanded from time to time. The court further held that, if a trial is held without affording legal aid to an indigent accused at state expense, the conviction will be set aside.

For this reason, PIL has been viewed as “a strategic arm of the legal aid movement intended to bring justice within the reach of those who, on account of their indigency, illiteracy, and lack of resources, were not able to reach the courts”.Footnote 142 This is yet another reason why introducing PIL in Nigeria would be highly beneficial.

Innovative interpretations

Another commendable feature of Indian PIL is the practice of giving innovative interpretations to constitutional provisions, expanding the scope of fundamental rights in order to increase their meaning for people living in poverty. A case in point is the right to life in article 21 of the Indian Constitution. In the landmark case of SP Gupta, the Supreme Court interpreted the right to life to include the right to a means of livelihood and the right to human dignity.Footnote 143 Also, in Bandhua Mukti Morcha, the Supreme Court upheld the right of bonded labourers to live in dignity and free of exploitation.Footnote 144 Of particular importance to enhancing economic, social and cultural rights is the case of Francis Coralie v Union Territory of Delhi Footnote 145 where the court also held that the right to life under article 21 includes the right to live with human dignity with the basic necessities of life appertaining to it, such as adequate nutrition, clothing, shelter, and facilities for reading and writing, etc. The right to health was also upheld by the apex court in Paschim Banga Khet Majoor Samity v State of West Bengal,Footnote 146 as an integral part of the right to life. The Supreme Court's beneficial construction of constitutional provisions in its PIL jurisdiction in this manner enabled it to overcome the non-justiciability of economic, social and cultural rights under the Indian Constitution.Footnote 147

This stands in contrast to the Nigerian courts that have consistently stated that the directive principles of state policy provisions in chapter II of the 1999 Constitution are not justiciable, and have moreover extended this to the economic, social and cultural rights provisions in the African Charter, despite their incorporation into Nigerian law.Footnote 148

Court's supervision of its own orders

Making far-reaching pronouncements is one thing; having them executed is another. The court's dependency for the execution of its orders on state agencies, that are not necessarily favourably disposed, proved to be a major obstacle. In response, the Indian Supreme Court created monitoring mechanisms adapted to specific cases. For example in Bandhua Mukti Morcha, concerning labour matters, the Supreme Court gave detailed directives concerning actions to be taken on the welfare of the quarry workers; it also appointed the joint secretary in the Ministry of Labour in order to secure implementation of the court directive, requesting him to visit the quarry after three months to ascertain compliance or otherwise with the court directives.Footnote 149 In PIL cases, the court also has the practice of not disposing of matters by one-off judgments. Instead, the court passes a series of short orders and sees to their effective implementation before a final judgment is handed down in the matter.Footnote 150 The court has termed this methodology a “continuing mandamus”.Footnote 151 At the post-judgment stage, the court sometimes retains the case file for the purpose of monitoring compliance with its orders.Footnote 152 Where detailed guidelines are laid down in the main judgment it can thus monitor their implementation for a period of time afterwards.Footnote 153

The Nigerian concept of the separation of powers relegates this function to the executive under its responsibility for the execution and maintenance of the constitution and all laws.Footnote 154 With the exception of the possibility of the court meting out punishment for contempt,Footnote 155 the enforcement of court orders in respect of fundamental rights therefore depends on the cooperation of the executive. It therefore follows that Nigeria needs an activist judiciary to be able to go the way of the Indian judiciary in PIL, both in terms of an innovative construction of the 1999 Constitution and radical procedural liberalization that will throw open the gates of justice to the poor and deprived.

CONCLUSION

The example of PIL in India clearly shows that it is possible for the judiciary in a developing country to make a significant contribution to fighting human rights violations specifically affecting people living in poverty. The analysis of the Nigerian cases has shown on the one hand that the basic formal ingredients for human rights enforcement, a bill of rights and a procedure to deal with violations, are present, and on the other hand that numerous serious obstacles hamper the enforcement of fundamental rights by people living in poverty. This article has suggested that this creates a great challenge for the Nigerian legislator and judiciary, learning from the successes and mistakes of India and other countries, to make the necessary reforms that would enable real access to justice to all who need it in Nigeria.

Footnotes

ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
ibid.
Ibid.
Ibid.
ibid.
Ibid.

References

1 Nigerian National Bureau of Statistics “Poverty profile” (2005), available at: <http://www.nigerianstat.gov.ng/Connections/poverty/PovertyProfile2004.pdf> (last accessed 26 June 2010).

2 Obiagwu, C and Odinkalu, CA “Combating legacies of colonialism and militarism” in An-Na'im, AA (ed) Human Rights Under African Constitutions: Realizing the Promise for Ourselves (2003, University of Pennsylvania Press) 211 at 233;Google Scholar Committee for the Defence of Human Rights Boiling Point: A Publication on the Crisis in the Oil Producing Communities in Nigeria (2000, CDHR) at 3; see also Order in Council LN 228 of 1959 in which statutory instrument no 1772 was published as an amendment of the Nigerian Constitution (Amendment) Order in Council.

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6 These include the: International Covenant on Economic, Social and Cultural Rights (1966), ratified by Nigeria on 29 July 1993; International Covenant on Civil and Political Rights (1966), ratified on 29 July 1993; International Covenant on the Elimination of All Forms of Racial Discrimination (1966), ratified on 16 October 1967; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), ratified on 13 June 1985; Optional Protocol to CEDAW (1999), ratified on 22 November 2004; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), ratified on 28 June 2001; Convention on the Rights of the Child (1990), ratified on 19 April 1991; and Rome Statute of the International Criminal Court (2002), acceded to on 27 September 2001. Regional instruments include the: African Charter on Human and Peoples' Rights (1981), ratified on 22 June 1983; Optional Protocol to the African Charter on the establishment of an African Court on Human and Peoples' Rights (1998), ratified on 20 May 2004; African Charter on the Rights and Welfare of the Child (1990), ratified 23 July 2001; and Protocol to the African Charter on the Rights of Women in Africa (2003), ratified 16 December 2004.

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8 [2000] 6 NWLR (pt 660) 228.

9 [2004] 14 WRN 91; [2004] 5 NWLR (pt 865) 208. A similar decision was arrived at by the Court of Appeal in Exec Gov Kwara State v Lawal [2005] 20 WNR 679 and by the Lagos High Court in Fasawe v A-G, Federation and Others suit no M/490/2006 (unreported), in the Ikeja Judicial Division before Hon Justice Inumidun E Akande, the ruling of which was delivered on 28 November 2006.

10 [1997] 6 NWLR (pt 510) 549; see also Awguocha v Zubair [2002] FWLR (pt 99) 1129.

11 Dongtoe v Civil Service Commission of Plateau State [2001] FWLR (pt 50) 1639.

12 It was decided in Constitutional Rights Project v The President of the Federal Republic of Nigeria (unreported suit no M/102/93, judgment delivered on 5 May 1993 by the High Court of Lagos State, Lagos Judicial Division) that the provisions of the African Charter cannot be ousted by local legislation. Laudable as this decision is, it does not serve much purpose as a result of the principle of binding precedent based on the hierarchy of courts; this is in view of the Supreme Court decision in Fawehinmi which decided that non-justiciable provisions of chap II of the 1999 Constitution cannot be enforced indirectly through the provisions of the African Charter. This means that human rights under the African Charter which are not justiciable under the 1999 Constitution cannot be enforced, notwithstanding the fact that the constitution is covered by the African Charter, which is itself incorporated into Nigerian law.

13 Order 2 of the Rules.

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18 [1980] suit no M/21/80 decision of the State High Court, Abeokuta, cited in G Fawehinmi Nigerian Law of Habeas Corpus at 307, also referred to in CRP Guide to Human Rights Litigation, above at note 14 at 32.

19 CRP, ibid.

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26 A person is functionally illiterate if he cannot engage in all those activities in which literacy is required for effective functioning of his group and community and also for enabling him to continue to use reading, writing and calculation for his own and the community's development. See the Organisation for Economic Co-Operation and Development “Functionally illiterate”, available at: <http://stats.oecd.org/glossary/detail.asp?ID=1279> (last accessed 10 April 2008).

27 CEDAW/C/NGA/6 of 5 October 2006.

28 UN Office on Drugs and Crime “Assessment of the integrity and capacity of the justice system in three Nigerian states” (technical assessment report, January 2006) at 33.

29 Above at note 27 at 100.

30 The extreme poor's lack of resources of livelihood or means to approach or even reach court has been described as the biggest obstacle to justice. See Justice RK Abichandani “Obstacles to justice and the suffering humanity”, available at:  <  http://gujarathighcourt.nic.in/Articles/accesstojustice.htm> (last accessed 21 August 2007).

31 Order 53 rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 specifies fees in app 2 to the Rules. In respect of the recovery of a specified sum not exceeding N20,000 (approx $160), a filing fee of N1,000 (approx $8) is payable; for claims exceeding N20,000 but not exceeding N100,000 (approx $800), the sum of N1,500 (approx $12) is payable, while for claims exceeding N100,000 but not above N1,000,000 (approx $8,000) a filing fee of N2,500 (approx $20) is payable, up to a maximum filing fee of N50,000 (approx $400). An originating summons costs about N680 (approx $5), while a motion on notice costs about N330 (approx $3), and an ex parte motion costs as much as that on notice. All fees exclude the costs of service, which is calculated by distance, but is not less than N100 (approx $0.80) each. In other cases, the fees for different motions may increase, depending on the type of application being filed, so that an application for a writ of habeas corpus is N500 (approx $4). The aggregate of these fees may be payable by a party filing a suit for the enforcement of his fundamental rights, if he is claiming damages for the violation of his rights.

32 Such as the filing fee for a motion for leave to appeal; if appeal is not as of right, a filing fee for notice of appeal where leave is granted and other filing fees as may be necessary. The fees are specified in the third schedule to the Court of Appeal Rules 2002 under Fees in Civil and Criminal Matters, order 1, rule 5 and they range from N500 (approx $4) to N100 (approx $0.80) per filing of each motion.

33 Interviews with Nigerian lawyers (between April and October 2006) revealed that briefing counsel to handle a fundamental rights enforcement matter in court will cost not less than N50,000 in counsel fees alone.

34 IA Ayua and DA Guobadia (eds) “Technical report on the Nigerian court procedures project, including proposal for reform of the High Court of Lagos State Civil Procedure Rules” (2001, Nigerian Institute of Advanced Legal Studies) at 43.

35 Shugaba v Attorney General of Federation [1982] 3 NLCL 895; University of Ilorin v Oluwadare [2003] 3 NWLR (pt 806) 557. See further, A Ibidapo-Obe Enforcement of Rights and the Problem of Locus Standi in Nigeria (2003) 2 UNAD LJ 113 at 120.

36 Related to this provision are secs 36(1) and 46. Sec 36(1) deals with the right to fair hearing and provides for someone's “determination of his civil rights and obligations”, while sec 46 provides for the right of anyone to go to court for “any person who alleges that any of the provisions of the Constitution has been, or is being or likely to be contravened … for redress”.

37 Adesanya v President of Nigeria [1981] 2 NCLR 358 (Adesanya).

38 Adesanya; and In Senator Abraham Adesanya v The President of the Federal Republic of Nigeria (1981) 1 All NLR (pt I) 1.

39 Adesanya. Obiagwu and Odinkalu “Combating legacies of colonialism and militarism”, above at note 2 at 233.

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42 [1989] 2 NWLR (pt 102) 122.

43 This is because the narrow confines which sec 6(6)(b) restricts have already been broadened by the Criminal Code, the Criminal Procedure Law and the 1979 constitution, based on the various powers of arrest and prosecution conferred by various secs of the Criminal Procedure Law and the Criminal Code on “any person”. Private persons can initiate criminal proceedings as provided in sec 59(1) of the Criminal Procedure Act and sec 143(d) of the Criminal Procedure Code.

44 Akilu v Fawehinmi (No 2), above at note 42.

45 Unreported suit no FHC/ABJ/M570/2005, ruling delivered on 11 July 2006 by Hon Justice BO Kuewumi, Federal High Court, Abuja.

46 Eso Thoughts on Law and Jurisprudence, above at note 40 at 211.

47 Adesanya; and Akilu v Fawehinmi (No 2), above at note 42.

48 Eso Thoughts on Law and Jurisprudence, above at note 40 at 109.

49 Guideline 13 (right of equal access to justice) in UN Office of the High Commissioner for Human Rights “Draft guidelines: A human rights approach to poverty reduction strategies” (September 2002), para 192, available at: <http://www.fao.org/righttofood/KC/downloads/vl/docs/Human%20rights%20approach%20to%20poverty%20reduction%20strategies_draft%20guidelines.pdf> (last accessed 26 June 2010).

50 In Nigeria's 2006 report to the CEDAW Committee (above at note 27 at 98), lack of capacity for asserting rights was noted as one of the factors responsible for the limited access to justice among rural women.

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59 The delay occasioned by the government in implementing the recommendations of the Kayode Esho Panel report had resulted in some of the indicted judicial officers being able to escape justice one way or the other, as four of the chief judges recommended for removal had died, while 13 of the judges had retired from service by February 2001 when the National Judicial Council began considering the panel's recommendations. See Odivwri and Okenwa ibid.

60 A body established by the 1999 Constitution for the appointment, discipline and removal of judicial officers in Nigeria. See sec 153(1).

61 Odivwri and Okenwa “Six judges may be sacked”, above at note 58.

62 UN Office on Drugs and Crime “Assessment of the integrity and capacity of the justice system”, above at note 28 at 33.

63 Ayua and Guobadia (eds) “Technical report on the Nigerian court procedures project”, above at note 34 at 28 and 39, table 2.

64 Others are inadequate personnel, poorly trained personnel, poor administrative organization, inadequate infrastructure and resources, deficiency in the system of assigning cases, poor office and court administration by judges, tardiness on the part of counsel, abuse of court procedures, poor conditions of service, inadequate use of time saving procedures and too many cases. See id at 28–29, tables 2 and 3.

65 Nigeria's Public Complaints Commission, established in 1975 through Decree No 31 of 1975 as amended by Decree No 21 of 1979. The decree was entrenched in the 1979 constitution and is now cap P37 Laws of the Federation 2004. The commission is the only body which by law has investigative power over the courts.

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71 Ayua and Guobadia (eds) “Technical report on the Nigerian court procedures project”, above at note 34 at 23.

72 Ibid.

73 Reported summarily in The Guardian on 3 July 1997 and cited in id at 23.

74 (1981) 1 SCNL 1, commented upon in Ayua and Guobadia ibid.

75 Ayua and Guobadia, id at 24.

76 Ibid.

77 See Hon Dr TA Aguda “The jurisprudence of unequal justice” (foundational lecture delivered at the Lagos State University, 12 January 1987) at 4 and 6.

78 In Garba v The State [1972] 4 SC 118, the Supreme Court of Nigeria condemned the inordinate period of two years and two months which the appellant spent in custody before trial. Accused persons now spend between five and over ten years in custody before they are tried or released.

79 In Saidu v The State [1982] 4 SC 41, cited in O Agbakoba, SAN and Ibe Travesty of Justice, above at note 24 at 46, the Supreme Court of Nigeria condemned the long period of detention awaiting trials and stated: “It does not give the court any joy to see offenders escape the penalty they richly deserve, but until they are proved guilty under the appropriate law in our law courts, they are entitled to walk about in our streets and tread the Nigerian soil and breathe the Nigerian air as free as innocent men and women”.

80 Report of the National Working Group on Prison Reforms and Decongestion (February 2005, Federal Republic of Nigeria) at 6–7.

81 Key advantages and benefits of the CAIS to stakeholders in the administration of justice in Lagos state are available at: <www.lagosjudiciary.gov.ng/d003/main.aspx?dbName=DB_News192> (last accessed 14 August 2008).

82 Disposition standards of other civil matters, such as matrimonial causes, will be concluded within three months (undefended) or 12 months (defended), while probate and other matters will be concluded within 18 months, revenue matters within six months, commercial matters within 12 months and land matters within 24 months.

83 Lagos, Ikeja, Ikorodu and Badagry.

84 UN Office on Drugs and Crime “Assessment of the integrity and capacity of the justice system”, above at note 28 at 20.

85 Id at 20 and 22.

86 The special rapporteur cited six obstacles as some of those barring the poor from access to justice; these are: (i) their indigent condition; (ii) illiteracy and lack of education and information; (iii) the complexity of procedures; (iv) mistrust; (v) the slow pace of justice; and (vi) in many countries, the fact that they are not allowed to be accompanied or represented by solidarity associations which could also bring criminal indemnification proceedings. See Leandro Despouy's final report on human rights and extreme poverty published in 1996: E/CN.4/Sub.2/1996/13 at para 163.

87 Ibid.

88 Ibid.

89 Ayua and Guobadia (eds) “Technical report on the Nigerian court procedures project”, above at note 34 at 21.

90 UN Office on Drugs and Crime “Assessment of the integrity and capacity of the justice system”, above at note 28 at 27.

91 Muralidhar “Judicial enforcement of economic and social rights”, above at note 69 at 261.

92 Id at 262.

93 For example, UN Development Programme (UNDP) “Access to justice practice note” (2004); UNDP Programming Justice: Access for all, A Practioner's Guide to a Human Rights-Based Approach to Access to Justice (2005, UNDP). See also Guideline 13, above at note 49.

94 Vandenhole “Human rights law, development and social action litigation”, above at note 51 at 144.

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100 Bhagwati “Judicial activism and public interest litigation”, above at note 95 at 571.

101 DC Wadhwa v State of Bihar AIR 1987 SC 579.

102 SP Gupta.

103 Ibid.

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109 Ibid. See also Bhagwati, id at 572.

110 For example: People's Union for Democratic Rights v Union of India (1983) 1 SC 1473; and Bandhua Mukti Morcha (1984) 2 SCR 67 (AIR 1984 Sc 802).

111 MC Mehta v Union of India AIR 1987 SC 1086 (MC Mehta).

112 Ram Kumar Misra v State of Bihar (1984) 2 SCC 451, cited in Desai and Muralidhar “Public interest litigation”, above at note 52 at 38.

113 Paramjit Kaur v State of Punjab (1996) 7 SCC 20, cited in Desai and Muralidhar, ibid.

114 In Bandhua Mukti Morcha, above at note 97, the petitioners had addressed a letter to Hon Bhagwati J alleging a violation of their rights.

115 MC Mehta.

116 [2001] NWLR (pt 717) 132.

117 Supporting this decision are the Court of Appeal decision in Abia State University v Chima Anyaibe [1996] 1 NWLR (pt 439) 646 and the Supreme Court's decision in Din v Attorney General of Federation [1988] 4 NWLR (pt 87) 147.

118 [1989] 4 NWLR (pt 116) 387 at 419 per Eso JSC.

119 [1994] 6 NWLR (pt 351) 470 at 500.

120 See Omoregie, E “Enforcement of fundamental rights in Nigeria: Proposals for reforms” (2005) 8 (1) University of Benin Law Journal 91 at 100–05.Google Scholar

121 [1995] FHCLR 321.

122 [1999] 1 NWLR (pt 585) 116 at 133 per Salami JCA.

123 As enunciated in the cases of Emegokwue v Okadigbo (1973) 4 SC 113 and Olabanji v Ajiboye (1992) 1 NWLR (pt 218) 473 at 485.

124 Bhagwati “Judicial activism and public interest litigation”, above at note 95 at 573; see also Bandhua Mukti Morcha, above at note 97.

125 Desai and Muralidhar “Public interest litigation”, above at note 52 at 5.

126 Bhagwati “Judicial activism and public interest litigation”, above at note 95 at 573.

127 Above at note 97, 802 at 816–17, 845 and 848–49 (SC); see Bhagwati, id at 575, where the case was also cited.

128 Bandhua Mukti Morcha.

129 Ibid.

130 Desai and Muralidhar “Public interest litigation”, above at note 52 at 2.

131 Fredman Human Rights Transformed, above at note 107 at 127.

132 S Muralidhar “Implementation of court orders in the area of economic, social and cultural rights: An overview of the experience of the Indian judiciary” (paper presented at the First Asian Regional Judicial Colloquium on Access to Justice, New Delhi, 1–3 November 2002) at 4. The author mentioned that, in the case of Vishaka v State of Rajasthan (1997) 6 SCC 241 dealing with sexual harassment of women in the workplace, Mr FS Nariman, senior advocate, assisted the Supreme Court as amicus curie in the matter.

133 Id at 6.

134 In Nigeria, it was recorded that only wealthy or educated litigants often hire lawyers to represent them in court, while others appear without representation. See Spear, T “Section introduction: New approaches to documentary sources” in Falola, T and Jennings, C (eds) African History: Spoken, Written, Unearthed (2003, University of Rochester Press) 169 at 204.Google Scholar

135 Vandenhole “Human rights law, development and social action litigation”, above at note 51 at 159.

136 In Bodhisattwa Gautam v Subhra Chakraborty  (1996) 1 SCC 490, the Supreme court ordered the accused to pay Rs 1,000 per month as interim compensation to the victim of rape for the duration of the criminal case. The court held rape to violate the right to life under art 21 of the Indian Constitution, which includes the right to live with human dignity. This is as opposed to the procedure in common law where interim relief is normally limited to maintaining the status quo in the matter, until the final disposition of the case.

137 Bandhua Mukti Morcha v Union of India (2000) 10 SCC. In that case the court found that legislation dealing with welfare of the people, such as the Bonded Labour (Abolition) Act 1976 and the Minimum Wage Act 1948 which could contribute to the dignity of the people, had not been implemented.

138 Bandhua Mukti Morcha, above at note 97 at 848–49, cited in Bhagwati “Judicial activism and public interest litigation”, above at note 95 at 576.

139 1979 AIR 1360 (SC), cited in Bhagwati ibid.

140 Sheela Barse v Union of India (1986) 3 SCC 596.

141 (1981) I SCC 627.

142 See Desai and Muralidhar “Public interest litigation”, above at note 52 at 2.

143 Ibid.

144 Ibid.

145 (1981) 1 SCC 608, AIR 1981, SC 746.

146 (1996) 4 SCC 37.

147 Muralidhar “Implementation of court orders”, above at note 132 at 3.

148 See the Supreme Court's decision in Fawehinmi, to the effect that the African Charter cannot be superior to the constitution and, as such, anything not permitted under the constitution cannot be enforced through the African Charter. This is in view of the fact that the Supreme Court held earlier in Ogugu v The State ([1994] 9 NWLR (pt 366) 1), that the provisions of the African Charter are enforceable in the same manner as those of chap IV of the 1979 constitution.

149 Cited in Bhagwati “Judicial activism and public interest litigation”, above at note 95 at 577.

150 Muralidhar “Implementation of court orders”, above at note 132 at 3.

151 Vineet Narain v Union of India (1998) 1 SCC 226 at 243, cited in Muralidhar ibid.

152 Muralidhar ibid.

153 Ibid. See DK Basu v State of West Bengal (1997) 1 SCC 416 (main judgment), where detailed guidelines concerning arrest were specified and compliance with the court directions was monitored until six years after the main judgment. For a sampling of subsequent orders, see those reported in (1999) 7 SCALE 222; (2000) 5 SCALE 353 and (2001) 7 SCALE 481.

154 See Ekeocha v The Civil Service Commission of Imo State & Another (1981) 1 NCLR 154.

155 See order 6 rule 2 of the Rules, which provides for committal proceedings for the contempt of a party disobeying its order.