A Clarion Call For Judicial Activism By Nigerian Judges In The Enforcement Of Fundamental Rights Matters 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 SocioEconomic Rights,
Mr Femi Falana (SAN), LegalText 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. 
1. Parties and their
representatives shall help the Court to further the overriding
objectives of these Rules. 2. The
overriding objectives of these Rules are as follows: a. 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. b. 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,

1. 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:

1. There should be a special panel of judges to whom fundamental
   rights enforcement suits are assigned;
2. Those judges should be made to undergo a continuous trainings
   in human rights enforcement (or human rights litigation);
3. 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;
4. 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.

e-mail: hameed_ajibola@yahoo.com^[1]

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