HUMAN RIGHTS AND NATIONAL SECURITY: A CRITICAL APPRAISAL OF THE NIGERIAN PERSPECTIVE

CHAPTER ONE

1.0 GENERAL INTRODUCTION

1.1 Background of the Study

Fundamental rights are entitlements that stem from natural law, fundamental principles, or constitutional provisions. These rights exist within the sphere of domestic law; they are formally recognized, entrenched, and protected in the constitution of a country or in other legal instruments, such as the African Charter on Human and Peoples’ Rights. Fundamental human rights are also regarded as inalienable entitlements that are guaranteed to every individual.

The Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights both safeguard fundamental human rights. These rights are not mere privileges that can be withdrawn at the discretion of the government in power. Rather, they are entitlements that the executive and legislature are required to uphold, and that the judiciary is mandated to safeguard. Nevertheless, there are situations in which these protected rights are infringed upon, whether by law enforcement officials or during quasi-judicial processes.

Furthermore, when breaches of these rights occur, identifying the appropriate mechanisms to secure redress and enforce the victims’ fundamental rights becomes essential. It is in this context that the Fundamental Rights (Enforcement Procedure) Rules were introduced. On 29th May 1999, a new constitution was enacted. Certain judicial views held that the Fundamental Rights (Enforcement Procedure) Rules 1979 had become obsolete due to the provisions of section 42(3), which specifies who is empowered to create rules governing practice and procedure in the High Court for the enforcement of Chapter IV rights.

To ensure the effective enforcement of the rights guaranteed under the 1999 Constitution, the Fundamental Rights (Enforcement Procedure) Rules 2009 were promulgated. These Rules were signed on 11th November 2009 by the then Chief Justice Idris Legbo Kutigi and took immediate effect, thereby replacing the Fundamental Rights (Enforcement Procedure) Rules 1979.

The primary purpose of the Fundamental Rights (Enforcement Procedure) Rules is to streamline and support the enforcement of fundamental rights. The Rules make provision for remedies in cases of actual violation or even the reasonable apprehension of a likely violation of these rights. The fundamental rights themselves are enshrined in Chapter IV of the 1999 Constitution and Chapter I of the African Charter on Human and Peoples’ Rights. Where a violation results in injury that can be remedied financially, the courts are obligated to award monetary compensation by way of reparation where such relief is sought and properly established.

1.2 Statement of the Problem

The Fundamental Rights (Enforcement Procedure) Rules 2009 represent a new set of Rules designed to supersede the Fundamental Rights (Enforcement Procedure) Rules 1979. The core aim of the 2009 Rules is to improve the enforcement process by eliminating certain obstacles present in the 1979 Rules that contributed to delays in the enforcement of fundamental rights. Regrettably, it is evident that the enforcement procedure for fundamental rights continues to be hindered by similar impediments, including the distinction between principal and ancillary claims. As a result, many applications alleging grave human rights violations are frequently struck out or dismissed due to these obstacles.

The key question that arises is: to what extent are the human rights provisions contained in these legal instruments actually realized or enforced, particularly in relation to matters of national security? It is important to note that there are additional significant challenges affecting the achievement of the objectives of the Fundamental Rights (Enforcement Procedure) Rules 2009, notably the distinction between main claims and ancillary claims in Nigerian fundamental rights litigation. Litigants often proceed with caution, uncertain whether their claims will succeed because of this distinction.

A third issue concerns Order IV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, which states: “Where in the course of any human rights proceedings, any situation arises for which there is or appears to be no adequate provision in these rules, the civil procedure rules of the court for the time being in force shall apply.” Nigeria does not have uniform High Court Civil Procedure Rules across the country. For instance, if an applicant successfully brings an application under the High Court Civil Procedure Rules of Kano State for a matter not expressly covered by the Fundamental Rights (Enforcement Procedure) Rules 2009, the question arises whether another applicant with an identical subject matter can rely on that Kano precedent when filing in Kaduna State. The answer would generally be negative, because the two cases would have been decided under different legal principles, unless the High Court Civil Procedure Rules of both Kano and Kaduna States contain identical provisions on that subject matter.

1.3 Aim and Objective of the Study

The aim of this research is to undertake a critical appraisal of human rights and national security from the Nigerian perspective. In furtherance of this aim, the research sets out the following specific objectives:

1. To evaluate the impact of the Fundamental Rights (Enforcement Procedure) Rules 2009 on the enforcement of fundamental human rights in Nigeria, with particular emphasis on national security contexts.

2. To identify challenges in the implementation of the Fundamental Rights (Enforcement Procedure) Rules 2009 in relation to national security.

1.4 Scope of the Study

The scope of this research is limited to the critical appraisal of human rights and national security from the Nigerian perspective.

1.5 Research Methodology

This study adopts both doctrinal and empirical research methods. It relies on primary and secondary sources of information. Primary sources include the Fundamental Rights (Enforcement Procedure) Rules as the main legislation, along with the Constitution, other relevant statutes, and judicial decisions. Secondary sources consist of journal articles, books by legal scholars, and newspaper publications addressing the topic. For the empirical component, questionnaires will be administered to members of the legal profession and law enforcement agencies. This approach is expected to provide a reasonably accurate picture of the practical problems encountered in the application of the Fundamental Rights (Enforcement Procedure) Rules 2009.

1.6 Literature Review

Only a limited number of scholars have produced works that directly address the subject matter of this research. This scarcity is largely attributable to the relatively recent introduction of the Fundamental Rights (Enforcement Procedure) Rules 2009. Upon thorough examination of existing literature, it was observed that although the authors cover broad aspects of the field, none have specifically focused on the new Fundamental Rights (Enforcement Procedure) Rules 2009, which forms the central subject of this study.

Jamo conducted a critical examination of fundamental rights, exploring their philosophical foundations, including the United Kingdom’s Bill of Rights, various perspectives on human rights, definitions, and conceptualizations. Of particular relevance is his discussion of human rights under the 1999 Nigerian Constitution, a theme also examined in this work. However, his analysis does not address the procedure for enforcing these rights. This research seeks to fill that gap by elaborating on the Fundamental Rights (Enforcement Procedure) Rules 2009.

Kayode Eso provided a concise overview of the concept of human rights and associated theories. He emphasized the importance of tracing human rights history through notable antecedents such as those in Great Britain, Rome, and the American experience. He also briefly examined religious, moral, and divine theories on the origin of human rights. His treatment is somewhat limited and does not identify the specific groups that first developed the concept of human rights. This study expands on the historical development of human rights through a detailed critical analysis of key philosophers.

Dalhatu examined fundamental rights, the problems of limitations on such rights, and the distinction between human rights and fundamental rights. In his discussion, he did not consider the provisions of Chapter II of the Constitution, the Fundamental Objectives and Directive Principles of State Policy as having fundamental rights character, noting instead their non-justiciable nature. His focus remained primarily on Chapter IV of the Constitution.

Akande, in her treatment of the Fundamental Objectives and Directive Principles of State Policy, highlighted the government’s fundamental obligations. However, her analysis is confined to the textual provisions without exploring their practical application, which often reveals them to be largely theoretical and unattainable. This research examines the contemporary Nigerian situation, including practical violations of these provisions arising from their non-enforcement and consequent non-justiciability. It also compares the 1999 Constitution with the 1979 Constitution, which was the focus of the earlier author.

Peter offered a detailed analysis of constitutional provisions on fundamental rights and the limitations experienced under both military and civilian regimes during the First, Second, and Third Republics. This study extends the discussion by addressing limitations on the enforcement of these rights in more recent times.

Campbell and Goldberg explored the realization of human rights and constitutional protections, drawing primarily on the American and British constitutions. In contrast, this research evaluates the Fundamental Rights (Enforcement Procedure) Rules 2009, the rights under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, and the African Charter on Human and Peoples’ Rights.

Ladan addressed the domestic enforcement of human rights, including aspects of the African Charter on Human and Peoples’ Rights, but did not provide detailed treatment of the enforcement procedure. This is another area that this research explores in depth.

Abdulwahab appraised the new Fundamental Rights (Enforcement Procedure) Rules 2009 and identified the distinction between principal and ancillary claims as a major obstacle for applicants. However, the actual harm caused by this principle in human rights cases, along with the practical test for determining what constitutes principal versus ancillary claims, receives deeper examination in this study.

Duru presented an overview of the new Fundamental Rights (Enforcement Procedure) Rules 2009, highlighting its positive aspects and the significant improvements it introduced compared to the 1979 Rules. This work, however, focuses on the limitations and shortcomings of the 2009 Rules and advocates for further reforms to foster a society with reduced incidence of human rights violations.

Finally, Danladi provided an in-depth analysis of the enforcement procedure under the old Rules that were in force at the time. With the advent of the new Rules, this research offers a comprehensive examination of the Fundamental Rights (Enforcement Procedure) Rules 2009, which is now the applicable law, having replaced the 1979 version.

1.7 Justification for the Research

The 1999 Constitution of Nigeria (as amended) guarantees fundamental rights to persons under Chapter IV. In the event of a breach or threatened breach of these rights, the Fundamental Rights (Enforcement Procedure) Rules 2009 provide the procedural framework for seeking redress. Given the existence of gaps and challenges in the application of these Rules, it is essential to examine the enforcement procedure for these rights when they are violated.

1.7 Organizational Layout

This work is structured into five chapters. Chapter One introduces the research topic. It begins with a general introduction and background, identifies the research problem, defines the scope, articulates the aim and objectives, reviews relevant literature, describes the methodology, and provides justification for the study.

Chapter Two examines the concepts of fundamental rights, human rights, and constitutional rights within their historical context, alongside the relationship between fundamental human rights and national security. Chapter Three analyzes the enforcement process for fundamental rights in the context of national security. Chapter Four further explores issues arising at the intersection of human rights and national security. The research concludes in Chapter Five with a summary and recommendations.