Clarion Call For Judicial Activism By Judges In Enforcement Of Fundamental Rights
By: Hameed Ajibola Jimoh Esq.
According to online Wikipedia ‘judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law’. In his book ‘Nigerian Law on Socio-Economic Rights, Mr Femi Falana (SAN), Legal Text Publishing Company Limited, Lagos, 2017, Introduction- The Justiciability of Socioeconomic Rights, at page 5, explained thus ‘In the same vein, Justice Chukwudifu Oputa, JSC, had, in his life time, consistently impressed it on his learned brethren to engage in judicial activism in order to fill the ‘gap between the tempo of change in society and amendment in the law or legal processes to effect such change’. See: C.O. Oputa, ‘Judicial Activism: A Catalyst for Political Development or Instability’, National Association of Democratic Lawyers Distinguished Jurist Lecture, 2004 p. 49.’
It is in this vein or line of legal and judicial thought that I have also made this call articulating for judicial activism by Nigerian judges in the enforcement of fundamental rights matters brought before them for redress.
More so, from my experiences, with due respect, it is very unfortunate that some of our judges do not really appreciate the overriding objectives of the fundamental rights enforcement suits to such an extent that they decide and or hear fundamental rights matters as if they were ordinary matters even when they are in position to perform judicial activism by using their discretion, they refuse and or fail to understand why the use of their judicial activism in such particular circumstance is required.
The Preamble to the Fundamental Rights Enforcement Procedure Rules, 2009-herein after referred to as FREPR- has stated the overriding objectives of the Rules (in other words, judicial activism) in item 1 thus ‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule.
- Parties and their representatives shall help the Court to further the overriding objectives of these Rules.
- The overriding objectives of these Rules are as follows:
- The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.
- For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; i. The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system,
The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, a. For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. b. The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented. (Underlining is mine).
Furthermore, I humbly submit that considering the preamble to the FREPR above, it is clear that a court or judge has been enjoined and allowed legally to carry out judicial activism while hearing any fundamental rights enforcement matter assigned to him and in this way, I also humbly submit that judicial activism has been approved in fundamental rights enforcement proceedings.
That is why in one of my published articles titled ‘A BAD JUDGE, A BAD CASE FOR VICTIM OF FUNDAMENTAL RIGHTS’ VIOLATION’, I had submitted with due respect as follows ‘I am of the humble view that without adequate trainings for the judges to whom fundamental rights suits would be assigned; those objectives under the FREPR might just possess their powers in paper rather than in reality i.e. they would not be realised.
Then, those judges appear before the common man as ‘a bad judge’ because such a judge will not appreciate the fundamental rights suits and therefore, gives a judgment that might likely be assumed as upholding the violation of those fundamental rights or that is likely to encourage such violation using the normal procedures and principles and the regular court or under the regular court’s Rules, whereas, the FREPR is sui generis i.e. of its own rules and procedures.
Most disappointingly too, I have always discouraged some of those situations where some judges award damages such as N50,000.00 or N100,000.00 or N200,000.00 in favour of the victim of violation who is either unlawfully detained by government agency or whose right is violated in other forms. With due respect to those judges, such award is very undermining and trivializing of the fundamental rights of the victim.
For instance, how much was the cost of instituting the suit? How much is the cost of enforcing the sum of N50,000.00 or N200,00.00 awarded by the court?! What is the current value of Nigerian naira or monetary currency?!
Where the suit involves a government’s agency, and the Central Bank of Nigeria is sued in a garnishee proceeding, then, another case begins!
So, it is very important for our courts to appreciate fundamental rights enforcement suits by considering the need to award a realistic compensation in favour of the victim rather than awarding such compensation that would make the enforcement of the award unrealistic or that would encourage jungle justice and the act of shunning the court of law by seeking self-help by victim of fundamental rights violation and it is very important for our judges to carry out judicial activism whenever they are ceased of the opportunity as courts are seen in the eyes of law and a lay man as the last hope of the common man.
Furthermore, such attitudes of some of those judges would discourage human rights lawyers or activists who invest in the case of the victim on contingency agreement as despite the fact that they win the case, they find it very unrealistic for them to recover their funds invested in the case.
Also, in my humble view, such low award of compensation is just as good as telling the Applicant (victim of fundamental rights violation) and his lawyer representing him in that case that they are just wasting their time, energy and money and that the court is not interested in the case!
Also, failure on the part of some of our judges to carry out judicial activism might have been due to the facts that some of those judges to whom fundamental rights suits are assigned are those judges who are mostly trained in criminal trials or general litigation but not trained in fundamental rights enforcement (or fundamental rights litigation) and so, they only consider the crimes with which the victim is charged rather than the allegation of violation of human rights made by the victim against the person or government’s agency sued in the fundamental rights case (a civil suit) without distinguishing it from the criminal suit.
Furthermore and having said the above, I had written two (2) different letters to the Honourable, the Chief Justice of Nigeria both in 2018 and 2019 respectively recommending My Lord, pursuant to Section 46(3) of the Constitution, for:
(1) a ‘no chargeable fees’ on enforcement of fundamental rights actions; (2) establishment of special panel courts in High Courts in Nigeria to hear fundamental rights enforcement cases; and (3) establishment of a Fundamental Rights Enforcement Monitoring Committee.
And ( of recent in 2019) recommending that the Honourable, the Chief Justice of Nigeria:
(i) should utilize his powers pursuant to the section 46(3) of the Constitution and other enabling sections of the Constitution and the Interpretation Act, by making and or amending the provisions of the current FREPR or by passing a Practice Direction on Rules and Procedures on the Service and execution in a State or High Court of the fundamental rights processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria so far it pertains to the fundamental rights enforcement suits, which will depart from the provisions of the Sheriffs and Civil Process Act and its accompanying subsidiary legislations especially the careless (and militant) provisions of requirement for consent of the Attorney-General of the Federation or of the State before such moneys awarded to an Applicant under the Rules, can be garnished.
(ii) set up a Committee to immediately consider means of implementation of the research work submitted to His Lordship.
It is the above recommendations that I still humbly recommend to the Honourable, the Chief Justice of Nigeria to consider at the time His Lordship is prepared to review the Rules.
Finally, I humbly suggest and recommend that:
There should be a special panel of judges to whom fundamental rights enforcement suits are assigned;
Those judges should be made to undergo a continuous trainings in human rights enforcement (or human rights litigation);
The Chief Justice of Nigeria should consider those recommendations that I had submitted to His Lordship in order to correct the impression of a victim of fundamental rights that no victim would be able to secure justice in the court of law and that a judge is bad;
Judges should at all judges’ conferences, seminars, etc., be directed to always utilize judicial activism whenever they are ceased of the opportunity. Carrying out judicial activism would discourage violation of human rights and enforce their respect.