Author: Agboola Ololade
Student (LL.B), Faculty of Law, University of Lagos
The Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules), even after review and amendment from the 1979 FREP Rules pursuant to Section 46 of the 1999 constitution has proved somewhat inadequate especially in the Environmental Sector.
The 1979 Fundamental Rights (Enforcement Procedure) Rules (FREP rules) was a shining light in the enforcement of human rights as it showed the government’s seriousness to protect the right of its citizens. It came into effect on the 1st January 1980 after Justice Ademola, using Section 46(3) of the 1979 Constitution made rules for the practice and procedure for the High Court towards the enforcement for the provisions of Chapter IV. The 1999 Constitution retained the provisions of Chapters II and IV as contained in the 1979 Constitution but the 1979 FREP rules was still in use until 1st December 2009 when a new FREP Rule came into existence.
Section 46 (3) of the 1979 and the 1999 Constitutions only gives the Chief Justice of Nigeria powers to make rules on practice and procedure covering the mode of commencement of an action, kind of processes required of the parties, timing and manner of processes, conduct of trials, process for judgment and how the courts and its key officials must function.
Although Section 13 of the 1999 Constitution makes it a duty and responsibility of the judiciary to conform to and apply the provisions of Chapter II, Section 6 (6)(c) of the Constitution however also makes it clear that no court has the jurisdiction to adjudicate on matters that affect the Fundamental Objectives and Directive Principles of State Policy, the resulting effect of which is; only the civil and political rights as entrenched in Chapter IV can be enforced while the socio-economic rights as contained in Chapter II cannot be enforced.
In Attorney General of Ondo State v. Attorney General of the Federation and others  9NWLR (Pt 772) 222 the Supreme Court held that it sustained the constitutionality of the Independent Corrupt Practices (and other related offences) Commission Act 2000 59 Cap C31 LFN, 2004 enacted pursuant to section 15(5) of chapter II and item 60 (a) on the exclusive legislative list of the 1999 Constitution. The import of this decision is that Chapter II of the Constitution can be made enforceable to the extent that they have enacted into law.
It is a known fact that Nigeria is experiencing problems of severe environmental degradation and uncontrolled depletion of its natural resources. The right of victims of such environmental degradation is usually dependent on the (a) recognition of such rights (b) procedure for the enforcement of the law which was meant to be taken care of with the introduction of the FREP Rules 2009. None of the Environmental legislation in Nigeria including enacted National Environmental standard and Regulations Enforcement Agency (establishment) Act 2007 provides for this right.
The right to healthy Environment is expressly provided for in Chapter II of the Nigerian Constitution 1999 where among its Fundamental Objectives of state policy, it states that (i) the state shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria, none-the-less this chapter cannot be enforced due to the provision of Sec. 6(6)(c) of the 1999 constitution which makes it non-justiciable, however it can fall under substantive rights like the right to life, dignity of human person, private and family life, equality and property as was evinced in Jonah Gbemre v. Shell petroleum Development Company of Nigeria and 2 others Unreported Suit No. FHC/B/CS/53/05, Delivered on 14 November 2005 where it was held by the Federal High Court that the actions of the 1st and 2nd Respondent in continuing to flare gas in the course of their oil exploration and production activities in the Applicant’s community was a gross violation of their constitutionally guaranteed rights to life (including healthy environment) and dignity of human person, In addition, the Nigerian Constitution provides for procedural rights that can also be mobilized for environmental protection, this includes the rights to fair hearing, freedom of expression and the press and peaceful assembly and association.
A good judicial recognition of this is the case of Okojie (Trustees of Roman Catholic School) and other v. Attorney General, Lagos State(1981) 2 NCLR 337 which is based on equivalent provision of the erstwhile 1979 Nigerian constitution. The case dealt with the constitutional issues of the Plaintiffs’ fundamental right under section 32(2) of the 1979 Constitution to own, establish and operate private primary and secondary schools for the purpose of imparting ideas and information, and the constitutional obligation of the Lagos State government to ensure equal and adequate educational activities at all levels under section 18(1), Chapter II of the 1979 Constitution.31 On reference to the Court of Appeal, the Court while considering the constitutional status of the said Chapter stated:
“While section 13 of the Constitution makes it a duty and responsibility of the judiciary among other organs of government, to conform to and apply the provisions of Chapter II, section 6 (6) (c) of the same Constitution makes it clear that no court has jurisdiction to pronounce on any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. It is clear therefore that section 13 has not made Chapter II of the Constitution justiciable. I am of the opinion that the obligation of the judiciary to observe the provisions of Chapter II is limited to interpreting the general provisions of Constitution or any other statute in such a way that the provisions of the Chapter are observed, but this is subject to the express provisions of the Constitution
In A.G Ondo state v. A.G Federal Republic of Nigeria  9 NWLR (Pt 722) which involved the constitutional validity of both the corrupt practices and other Related offences and its independent Corrupt practices and other related offences commission which were both established to enforce observance of the Directive principles set out in Sec. 15 (5) of the constitution, the court held that as the non-justiciability of the Fundamental Objectives and Directive principles of state policy Sec. 6 (6)(c) says so and can be made justiciable by legislation.
This judicial attitude by the Nigerian Courts is inconceivable, it was influence by Indian position which has now changed in India but still remains as it was in Nigeria starting with the decision in Minerra Mills v. Union of India (1980) AIR (SC) 1789 where the constitutional status of the Directive Principles were evaluated. In the area of environmental protection, the court has recognized the right of every Indian to live a healthy or pollution free-environment by utilizing the environmental provisions of part IV to flesh out the constitutional right to life. This as stated above is not so in the Nigerian constitution, thus when confronted with a situation, the courts are urged to re-interpret the fundamental rights in the constitution especially the right to life, dignity of human person, private and family life, property which is in light of Sec. 20 of the 1999 Constitution
The 2009 FREP rules laid to rest any doubt regarding the justiciability of the socio-economic provision of the Act including the right to healthy environment by defining fundamental right as “ any of the rights stipulated in the African Charter on Human and peoples rights (Ratification and Enforcement) Act”.
In Nigeria, African Charter on Human and People’s Rights has been domesticated by virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, therefore Article 24 of the Banjul Charter which provides for the right to Environment as well as other provisions of the Charter are now part of Nigerian Law. Therefore, person who feel their rights under this Act including right to Healthy Environment has been infringed or threatened by conducts of the state or private persons can now bring an action under this Act in the high court. It should however be noted that even though the 2009 FREP rules included the African Charter, its definition of Fundamental Rights, can be argued that this does not place rights under the Act on the same level as Fundamental Rights under Chapter IV of the Nigerian Constitution.
Furthermore, the issue of locus standi has been a major impediment for litigants in enforcing the right to environment, as they (individual or state) must show that they are “persons aggrieved” or must have “sufficient interest” in the matter and this has proved arduous to persons including non-governmental organization interested in the general or specific instance of protection of the environment. One of the most laudable feature of The 2009 FREP rules is that it jettisoned the requirement of “persons aggrieved” or “sufficient interest” as it expressly mandated the court in its preamble to proactively pursue enhance access to justice for all classes of litigants, especially the poor, the illiterate, vulnerable, incarcerated and unrepresented, it also expanded the class of persons that can bring an action in instances of human rights violation. It further states that no case shall be struck out for want of locus standi.
It is pertinent to note that the weakness of the 2009 Rules is the commencement of fundamental rights enforcement action and its judicial dichotomy between the Federal High Court and state High court. The Lagos State Government has also seen the need to implement evironmental right laws in order to reduce the degredation of the environment and further enhance the economy the resulting effect was evidenced on March 2 2017 on a Wednesday where the Lagos State Governor, Akinwunmi Ambode signed the Environmental Management and Protection Bill into law, expressing optimism that it would boost the safety of residents in the state.
In conclusion, the 2009 FREP Rules is a radical groundbreaking transformation from the 1979 rules and has considerably broadened the scope of the previous rules to include socio-economic rights by virtue of the African Charter on Human and peoples rights (ratification and enforcement) Act but this in itself must not go contrary to the provisions of the constitution of Nigeria 1999 as the constitution is supreme and above all other laws. It has also been noticed that the most effective mode of enforcement of socio-economic rights especially right to healthy environment is by bringing it under one or more of the Fundamental Human Rights as contained in Chapter IV. It is therefore recommended that a review is done on the constitution to make Right to Healthy environment part of the Fundamental rights under Chapter IV of the constitution of Nigeria 1999, as the degredation of the Nigerian environment as a whole is a major impediment to the Nigerian Economy and has such needs a critical evaluation, after which there should be an enhancement of the scope of the 2009 FREP rules to allow the Chief Justice powers other than just on Fundamental Right matters but also matters on Chapter II such that the other not so essential socio-economic rights would be made enforceable at the discretion of the Chief Justice.
Agboola Ololade a 500 Level Student of the Faculty of Law, University of Lagos; with keen interest in International Law, Maritime Law, Corporate law and Entertainment and Media Law to mention a few.