Fundamental Rights

Enforcement runs through the Fundamental Rights (Enforcement Procedure) Rules.

An application is made to a High Court, supported by an affidavit and a written address, rather than by the ordinary writ procedure. The Rules were designed to make the process accessible: they encourage courts to hear these matters expeditiously, allow applications to be brought by people acting on behalf of others including in the public interest, and removed the limitation period that would otherwise bar a claim.

The reliefs available are practical. A declaration that a right was breached. An order for release from unlawful detention. An injunction restraining further breach. An order for the return of property. Damages, which Nigerian courts have awarded at meaningful levels in detention cases. And a public apology, which courts have ordered.

The most common Nigerian applications concern unlawful arrest and detention, detention beyond the constitutional time limits, detention at the instance of a private person over what is really a civil debt, and seizure of property without process.

The use Nigerians most often need is the one involving police detention over civil matters.

A business dispute becomes a petition to the police, the debtor is arrested and held, and pressure is applied to pay. That is unlawful. The police have no role in enforcing civil debts, and Nigerian courts have said so repeatedly and awarded damages against both the police and the complainants who instigated it.

Detention beyond the constitutional time limits is the other frequent application. A person must be brought before a court within twenty four hours where a court is within a forty kilometre radius, and within forty eight hours otherwise.

The Rules also broadened who can apply. A relative, a lawyer, an NGO or an activist can bring an application on behalf of a detained person, which matters because the person affected is often in no position to instruct anybody.

The practical constraint is speed. The procedure is designed to be quick, and in some divisions it is, but court congestion means an application that should be heard within days is sometimes heard within weeks.

Two routes to a remedy, and choosing the right one matters.

A fundamental rights application is brought under the special Rules, by affidavit rather than by pleadings and oral evidence. It is faster, it has no limitation period, it can be brought by somebody on the applicant's behalf, and it is available where the substance of the complaint is the breach of a constitutional right.

An ordinary civil claim is brought by writ, with pleadings, discovery and trial. It is slower, limitation periods apply, and the claimant must be the person with the cause of action.

The trap is the mixed case. Where the real complaint is a contract dispute or a claim in tort, and the constitutional breach is incidental, courts will strike out a fundamental rights application as an abuse of the procedure. The right question is whether the breach of the right is the principal complaint or merely an add on.

The rights are not absolute. The Constitution itself permits restrictions in the interest of defence, public safety, public order, public morality, public health and the rights of others, provided they are reasonably justifiable in a democratic society.

The procedure is also confined to its purpose. Where the principal claim is really contractual or tortious, an application will be struck out however serious the underlying grievance.

Enforcement against the state is the deeper problem. Judgments for damages against government agencies are notoriously difficult to collect, particularly given the consent requirement for garnishing public funds.

And the socio economic provisions in Chapter II of the Constitution, covering things like education and health, are not directly enforceable in the same way, which surprises people who assume all constitutional provisions work alike.