HUMAN RIGHTS AND NATIONAL SECURITY: A CRITICAL APPRAISAL OF THE NIGERIAN PERSPECTIVE
CHAPTER ONE
1.0 GENERAL INTRODUCTION
1.1 Background to the Study
Fundamental Rights are rights derived from natural or fundamental or constitutional law . They are rights which remain in the realm of domestic law, which are recognized, entrenched and guaranteed in the constitution of a country or any other legal instrument such as the African
Charter on Human and People’s Rights. Fundamental Human Rights are also described as rights which are inalienable and guaranteed to every person.
The Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples‟ Right guarantee fundamental human rights. These Fundamental Human Rights are not privileges in the sense that they could be withdrawn at the whims and caprices of the government of the day. They are rights which the executive and legislature are enjoined to respect and the judiciary to protect. However, there are instances where these guaranteed rights are violated either by the law enforcement agents or in quasi-judicial proceedings
Furthermore, where there are breaches of these rights, the appropriate means to secure the enforcement of the victims‟ fundamental right is paramount. It is against this background that the Fundamental Rights (Enforcement Procedure) Rules was enacted. On 29th May, 1999, a new constitution came into being. Some judicial opinions were of the view that the Fundamental Rights ( Enforcement Procedure ) Rules1979 was dead pursuant to section 42(3) which provides who to make rules for the practice and procedure for the High court towards the enforcement of the provision of Chapter IV. For effective enforcement of the rights guaranteed under the 1999 Constitution, the 2009 Fundamental Rights (Enforcement Procedure) Rules was enacted, It was signed In November 11,2009 by the then Chief Justice IdrisLegboKutigi and came into force with immediate effect replacing the Fundamental Rights (Enforcement Procedure)Rules 1979.
The purpose of the Fundamental Rights (Enforcement Procedure) Rules is to facilitate the enforcement of fundamental rights . The Rules provide for redress where there is a violation or even apprehension of likely violation of these rights . The fundamental rights are provided in
Chapter IV of the 1999 Constitution and Chapter 1 of the African Charter on Human and Peoples‟ Rights. Where the violation has occasioned injury which could be compensated in financial terms, courts are duty bound to make orders of reparation in monetary terms if applied for and proved.
1.2 Statement of the Research Problem.
The Fundamental Right (Enforcement Procedure) Rules, 2009 is a new Rule made to replace the Fundamental Rights (Enforcement Procedure) Rules 1979. The basic objective of the 2009 Rules is to facilitate enforcement procedure by removing some of the impediments in 1979 rule which causes delay in enforcement of fundamental rights. Unfortunately it is clear that the procedure for enforcement of Fundamental Rights is still bedevilled by these impediments such as the distinction between principal and ancillary claim. Many applications alleging serious human rights violations are routinely struck out or dismissed because of the impediments.
However, the pertinent question is: to what extent are the human rights provisions in these legal instruments realized or enforced especially to the aspect of National Security? It is worthy of note that there are equally other important impediments in the realization of the objective of Fundamental Rights (Enforcement Procedure) Rules 2009, such as the distinction between main claim and ancillary claim in the Nigerian fundamental rights, because litigants are cautious of whether or not their claim will succeed because of this distinction.
The third problem is with respect to Order IV rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, the section provides. “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”. There is no uniform high court civil procedure rules in Nigeria, For example, an applicant brought an application under the High Court Civil Procedure Rules of Kano State with regards to a matter not covered by the Fundamental Rights (Enforcement Procedure) Rules 2009, and the application was granted. The question is, can a different applicant with the same subject matter bring same application in Kaduna State relying on the previous precedent in Kano? This will be in the negative because both cases where decide on a different principle of law, except where the Kano and Kaduna State High Court Civil Procedure Rules make the same provisions in respect of the same subject matter.
