Does every wrong give birth to a violation of one’s fundamental right?
A client once shared the story of how his mother refused to disclose who his father is, and he concluded “I want to enforce my Right to know my father!” In this sense, he has a Right, but is it fundamental? This is why it is essential for every layman to understand first that not every wrong will amount to a violation of one’s Rights, and not all Rights are fundamental and therefore enforceable.
There are debates on the issue of whether it will not amount to a misnomer to classify certain rights as being “fundamental” while others are simply regarded as “human rights” (but we can leave the debate to lawyers). However, it seems to be well established that those rights that are expressly permitted by the law of a nation and declared to be enforceable are the Rights that qualify as being “fundamental”.
For a Right to be enforceable therefore, the first thing to find out is whether the Right is expressly provided for or incorporated and declared to be enforceable as a fundamental right. To this extent, everybody is obliged to have a copy each of the 1999 Constitution, the African Charter on Human and Peoples’ Rights, and the Fundamental Rights (Enforcement Procedures) Rules 2009; these are the principal documents that will give every person a basic understanding of their enforceable rights and how to go about the enforcement of those rights.
Where an act tantamount to a violation of one’s fundamental right is being, has being, or is likely to be contravened, a person may apply to a High Court in that State for Judicial redress. Sometimes, the violation may spread across different States, in that situation, the person may choose to apply to Court in any of the States through his or her Legal Attorney. The documents to be filed in Court and the specific Court to approach whether Federal High Court or a State High Court ought to be sorted out by the Legal Attorney, but a person applying for the protection of his or her fundamental right may concern him or herself with jotting the facts of the infringement, keeping records that may serve as evidence in the course of judicial proceedings (e.g. pictures), and narrating the story in details to a Legal Attorney so as to receive professional guide and advice on the competence of the alleged infringement. A person may initiate an action (as the Applicant) for the enforcement of his/her fundamental right or that of another person. When approaching the court on behalf of another person, the guiding principle is that the Applicant is either acting in his own interest; on behalf of another person; as a member of, or in the interest of a group or class of persons; in the public interest, and/or as an Association acting in the interest of its members or other individuals or groups.
Certain Rights are applicable to citizens alone (under the 1999 Constitution). They are: right to privacy and family life, right to freedom of movement, right to freedom from discrimination, and right to acquire and own immovable property anywhere in Nigeria. Non citizens are not totally shut out by the provisions, but may enjoy some of the provisions not as a right, but as a matter of privilege upon the fulfilment of necessary conditions. Having incorporated the African Charter, it is evident that non citizens can enforce the above stated citizens’ rights under the Charter without any recourse to the 1999 Constitution; however, non citizens can only enjoy the provisions within the context, and scope of the Charter.
Upon hearing the Application and apart from the prayers sought by an Applicant, the Judge may make such order or orders as may be just and expedient in the circumstance.
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