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The recent Nigeria Immigration Services (NIS) recruitment exercise has been described by many as a national tragedy. It is not difficult to understand why. A number of young Nigerians had lost their lives in search of a job. Hundreds of others were injured. Since March 15, 2014 when the tragedy occurred, the Federal Government’s actions so far have, to say the least, left much to be desired. In the eye of the law, a great injustice have been done. And in law, for every wrong, there is a remedy.
The vacancy to be filled was about 4000. Up to 700,000 persons applied. Each applicant payed N1,000. With up to N700 million collected from the applicants, the NIS still failed to ensure a hitch-free recruitment exercise. No adequate arrangement had been made for the applicants. Stadia, universities, federal government colleges and other venues were to be used across the country for the exercise. There was no shortlist. Without any effective crowd control system or safety mechanism provided, the exercise was a tragedy waiting to happen. Can the applicants get justice?
The NIS has violated the fundamental human rights of the applicants who participated in the recruitment exercise. The recruitment exercise was conducted with no regard for human life, respect and dignity of the human person. It also exploited the up to 700,000 applicants, taking undue advantage of their unemployment conditions and desperation to secure a means of livelihood.
All the applicants were subjected to inhuman and degrading treatment. Section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states that every individual is entitled to respect for the dignity of his person. No person shall be subject to torture inhuman or degrading treatment.
Some of the applicants lost their lives in the stampede. Section 33(1) of the Constitution also guarantees every person’s right to life.
The applicants have the economic right to secure suitable employment. Section 17(3)(a) provides that the State shall direct its policy towards ensuring that- all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Even if this right is not enforceable being under Chapter 2 of the Constitution, it at least provides what the fundamental duty of the government is.
Under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Article 2 provides that every individual shall be entitled to the enjoyment of the rights and freedom recognised and
guaranteed in the Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
According to the provisions of Article 4 of the Charter, human beings are inviolable. Every person shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived
of this right. Article 5 further guarantees that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man are prohibited under the Charter to which Nigeria is a signatory. Having been domesticated, the African Charter is binding on the government, its agencies, bodies and individuals. The inalienable rights of the applicants cannot be denied. Having been wronged, there must be a remedy under the law.
A legal action can be brought against the Federal government on behalf of the applicants. This can be by way of a fundamental human rights enforcement. The Fundamental Human Rights Enforcement Rules 2009 has been made pursuant to the fundamental human rights provisions from section 33 – 44 in chapter four of the Constitution. As far as the subject matter falls within the provisions of chapter four of the Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, as stated above, the enforcement action must be entertained by the court.
The action can be instituted at the Federal High Court against the Federal Government. Those to be added as parties along with the Federal government are the Nigerian Immigration Service and its
Comptroller General, and the Minister of Interior. The Attorney General of the Federation and Minister of Justice should also be included. Although Order 1 Rule 2 the Fundamental Human Rights Enforcement Rules 2009 provides that both a State High Court or Federal High Court has jurisdiction on matters of fundamental rights enforcement, it would be safer to go with the Federal High Court in this case. This is because of the Federal agencies and institutions that have been sued as respondents along with the Federal government. To be sure, fundamental rights provisions are enforceable against the government, agencies and individuals. This has been held in Theresa Onwo v Nwafor Oko (1996) 6 NWLR (Pt 456) 584.
In the enforcement of their fundamental rights, damages may be awarded to the applicants. The Court of Appeal per Coker JCA in Minister of Internal Affairs v Shugaba (1982) 3 NCLR 915 at 953 has since made it clear that although the Constitution specifically provides for compensation only under section 32(6) of the 1979 Constitution (as it then was), it “does not…exclude the right to claim damages in respect of the invasion of any other rights.” This means applicants can sue for general and specific damages for the abuse of their rights. Apart from damages, the applicants can also ask for other reliefs such as injunctions and declarations. Premised on the economic exploitation of the applicants, the applicants can seek an order
declaring the conduct of the recruitment exercise illegal. It can also ask for the refund of the applicants’ monies.
The applicants could also institute a criminal action against the NIS. For those applicants who lost their lives in the stampede, the NIS officers in charge of organising the recruitment exercise where deaths occurred can be charged for manslaughter. Manslaughter is the unintentional killing of a person by criminally negligent action or omission. This criminal liability can be proved once all the elements of the offence have been sufficiently made out. But compared to civil liability, criminal negligence may be a hard one to prove in this case. This is because the court will be considering the degree of the NIS officers’ alleged actions and failure to act, and how these actions and failure have resulted in the death of the applicants. The standard in criminal actions is also higher – proof beyond reasonable doubt. Also, it’s the state that will have to charge the NIS (a situation that is very unlikely). So rather than going through the whole org of getting private prosecutors [Gani Fawehinmi v Akilu (1987) 4 NWLR (Pt 67) 797], a fundamental rights enforcement procedure provides a much better alternative. Another point is that criminal action may not also provide a better means of adequately compensating the applicants should judgment be in their favour.
Thankfully, the days of locus standi [Senator Abraham Adesanya v President of the Federal Republic of Nigeria & Anor (1981) 5 SC 112] as far as fundamental human rights enforcement is concerned in Nigeria are over. In other words, the question of the legal capacity to sue does not arise in this case. Preamble 3(d) of the Fundamental Rights Enforcement Procedure Rules 2009 requires a Nigerian court to provide enhanced access to justice for all classes of litigants. This applies particularly to rights involving the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented. Pursuant to this, preamble 3(e) requires that a court shall entertain public-interest litigation involving human rights violation. No human rights case may be dismissed or struck out for want of standing to sue. This means human rights activists, advocates, civil rights groups, non-governmental organisations etc may institute a human rights application on behalf of the applicants in this case.
By virtue of the novel and special provision above, any of the following persons can apply for fundamental rights enforcement: anyone acting in his own interest; anyone acting on behalf of another person; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest, and associations acting in the interest of its members or other individuals or groups.