Environmental Justice Beyond Time Constraints: The FREP Rules and the Enforcement of Human Rights in Nigeria. (Part 2).
Limitation under the Fundamental Rights Enforcement Procedure Rules (FREP)
The Fundamental Rights (Enforcement Procedure) Rules of 2009 have completely removed any limitation period previously imposed by statutes of limitation for claims related to fundamental rights. Notably, the earlier FREP Rules of 1979 required that applications for the enforcement of fundamental rights be submitted within twelve months of the occurrence, act, or matter complained about, unless the delay was satisfactorily justified. Furthermore, the 1979 Rules mandated that applicants obtain leave from the court before bringing an application, a process often subject to judicial discretion.
In contrast, the 2009 Rules have eliminated the need for such leave, allowing applicants to initiate proceedings by simply filing a motion or any other accepted originating process, as outlined in Order II, Rule 1. This change has significantly reduced judicial discretion in determining whether to entertain claims, particularly in complex and often controversial areas like human rights and environmental justice. By abolishing the leave requirement, the 2009 FREP Rules ensure that individuals seeking to enforce their fundamental rights, including environmental rights, enjoy greater access to the courts.
In this context, the application of limitation statutes to actions for the enforcement of fundamental rights has become a crucial issue. Just as time does not run against the state in the prosecution of criminal cases, applications for the enforcement of fundamental rights are no longer subject to any limitation statutes.
A key change from the 1979 FREP Rules to the 2009 Rules is the removal of any time restrictions for bringing claims. Order I, Rule 3 of the 1979 FREP Rules stated:
“Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made.”
However, Order III of the FREP Rules 2009 provides:
“An application for the enforcement of Fundamental Rights shall not be affected by any limitation statute whatsoever.”
This provision clarifies that no statute of limitation applies to claims brought under the Fundamental Rights (Enforcement Procedure) Rules of 2009, including those relating to environmental rights and the rights guaranteed under the African Charter on Human and Peoples’ Rights.
A pertinent question arises: Can the limitation provisions in the 1979 FREP Rules still affect a constitutional or African Charter claim that arose before the 2009 FREP Rules came into force? Since the FREP Rules are procedural in nature, they take immediate effect upon promulgation. Consequently, the date when the claim arose is irrelevant in determining the applicability of the limitation provisions of the 1979 FREP Rules. Once the 2009 FREP Rules were introduced, they automatically applied to all claims for the enforcement of fundamental rights, regardless of when the underlying cause of action occurred.
In the case of El-Rufai v. Senate of the National Assembly & Ors (2014), the Court of Appeal addressed the enforcement of fundamental rights. The Court ruled that the 2009 Fundamental Rights Enforcement Procedure (FREP) Rules effectively eliminated any limitation periods for enforcing these rights, clarifying that no statute of limitation could bar such claims. This interpretation aligns with the legislative intent behind the 2009 FREP Rules, which aimed to ensure that actions involving fundamental or human rights, including those arising under the African Charter on Human and Peoples’ Rights, would not be obstructed by statutory limitations. The Court’s decision reinforces the understanding that the 2009 FREP Rules operate prospectively, thereby removing previous procedural barriers to the enforcement of fundamental rights.
Nigerian courts have consistently demonstrated a strong commitment to upholding fundamental rights beyond the constraints imposed by prior procedural rules. Justice Fatayi-Williams, a former Chief Justice of Nigeria, emphasised the critical importance of protecting fundamental rights for individual liberty and well-being. He stated that:
“…An application for the enforcement of Fundamental Rights is not affected by any limitation statute whatsoever.”
This assertion is corroborated by Section 46(1) of the 1999 Constitution, which empowers individuals to seek redress for violations of fundamental rights, thereby overriding any limitation statutes.
Moreover, in the case of Federal Republic of Nigeria v. Ifegwu (2003), the Supreme Court reinforced the notion that fundamental rights are intrinsic to human dignity and cannot be constrained by time limits. The Court also affirmed in Uzoukwu v. Ezeonu II (1991) the distinction between “Fundamental Rights” and “Human Rights.” While human rights are derived from international law, fundamental rights are enshrined in national constitutions and are not subject to the same limitations.
Ultimately, the Supreme Court’s decision in Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors. v. Attorney General of the Federation (1985) clearly established that fundamental rights transcend ordinary laws and are guaranteed by the Constitution, meaning they are inalienable and not subject to statutory limitations.
In conclusion, the 2009 FREP Rules unequivocally remove the application of any limitation statutes to fundamental rights claims. Consequently, individuals seeking to enforce their right to a clean and healthy environment, particularly in cases involving oil spills under the Constitution or the African Charter on Human and Peoples’ Rights are not hindered by limitation periods, ensuring that such claims cannot be statute-barred.
Limitation of Action Under the African Charter on Human and Peoples’ Rights
The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9), which came into effect on March 17, 1983, does not specify a time limit for initiating proceedings to enforce the rights outlined in the Charter. The preamble of the Act states:
“WHEREAS a Charter entitled the ‘African Charter on Human and Peoples’ Rights’ has been duly adopted by various States in Africa, and Nigeria is desirous of adhering to the said Charter; AND WHEREAS it is necessary and expedient to make legislative provision for the enforcement in Nigeria of the said Charter by way of an Act of the National Assembly…”
This Act grants the provisions of the African Charter the full force of law in Nigeria, making them enforceable in Nigerian courts just like any other domestic law. The Nigerian Supreme Court affirmed this domestic legal recognition in the case of Abacha v. Fawehinmi (2000) [1], where Justice Iguh emphasised that the rights and obligations under the African Charter are fully enforceable in Nigeria as part of its municipal law.
Although the question of limitation periods concerning the enforcement of the African Charter has not been explicitly addressed in either the Charter or the Ratification and Enforcement Act, Nigerian courts have interpreted the rights contained in the African Charter as justiciable. This means they can be invoked in Nigerian courts for enforcement.
Article 24 of the African Charter guarantees the right to a “general satisfactory environment favorable to development.” This right is enforceable in Nigerian courts through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Nigerian courts have relied on this provision in notable cases such as Attorney General of Lagos State v. Attorney General of the Federation [2] and Gbemre v. Shell Petroleum Development Company of Nigeria Ltd [3], ruling that actions like gas flaring, which lead to environmental pollution, violate the right to a healthy environment.
In cases of environmental degradation, such as oil spills, the Nigerian courts have interpreted Article 5 of the African Charter, protecting the right to human dignity, in conjunction with Section 34 of the Nigerian Constitution. This interpretation aims to protect individuals from inhumane or degrading treatment arising from environmental harm. Consequently, oil spills and other forms of environmental pollution, which expose communities to unsafe living conditions, may constitute violations of the right to dignity.
Article 16 of the African Charter ensures the right to the “best attainable state of physical and mental health,” a right that is intricately linked to the right to a clean environment. The harmful effects of oil spills on health, especially in communities where water, land, and air are contaminated, have been recognized by the courts as violations of these rights. In cases like The Social and Economic Rights Action Center (SERAC) v. Nigeria, it has been demonstrated how oil pollution adversely affects health, infringing upon the right to health guaranteed by the Charter.
Additionally, Articles 22 and 24 of the African Charter protect economic, social, and cultural rights, as well as the right to a healthy environment. These rights are closely tied to the right to development, and oil spills, which disrupt the livelihoods of affected communities, violate these rights. The African Commission found in the Ogoni Land Case (SERAC v. Nigeria) that oil exploration, conducted without adequate environmental protection, violated the right to development.
The Preamble to the FREP Rules 2009, particularly Rules 3(a) and 3(b), emphasises the importance of broadly interpreting the rights enshrined in both the Nigerian Constitution and the African Charter. It mandates courts to apply both domestic and international human rights frameworks expansively, to safeguard and advance individuals’ rights. Moreover, Order III of the FREP Rules 2009 states, “An application for the enforcement of Fundamental Rights shall not be affected by any limitation statute whatsoever.”
Therefore, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act is directly enforceable in Nigeria under the FREP Rules 2009, and these rights cannot be restricted by any statute of limitations. This includes cases related to environmental degradation caused by oil spills, allowing claimants to seek redress for violations of their fundamental rights, including the right to life, health, dignity, and a healthy environment. The provisions of the African Charter, as embodied in the FREP Rules 2009, remain free from limitation periods, ensuring the ongoing protection of human rights, including environmental rights, in Nigeria.
The Nigerian Constitution and the African Charter on Human and Peoples’ Rights provide a robust legal framework for the protection and enforcement of human rights, including environmental rights. The FREP Rules 2009 strengthen this framework by ensuring that claims to enforce these fundamental rights are not obstructed by statutory limitation periods. Even in cases where third-party actions such as sabotage contribute to environmental harm, the fundamental rights of individuals to a clean environment, life, dignity, and health remain justiciable in Nigerian courts.
Therefore, individuals or communities seeking redress for environmental damage caused by oil spills can pursue claims under the Constitution and the African Charter without the fear of being time-barred. This underscores the importance of upholding the justiciability of human rights in environmental matters, ensuring that affected communities have access to justice and can safeguard their fundamental rights.
The Role of the FREP Rules and Limitations
Under the FREP Rules 2009, claims related to the enforcement of fundamental rights under Section 46 of the Nigerian Constitution and the African Charter are exempt from statutory limitation periods. This exemption means that even if an oil spill occurred years before its effects became apparent, or if the full impact of the spill unfolds over time, individuals and communities can still seek redress. The FREP Rules assert that fundamental rights are inalienable and not subject to time limitations, allowing claims to be made regardless of how much time has passed since the initial damage.
Order III Rule 1 of the FREP Rules explicitly states, “An application for the enforcement of Fundamental Rights shall not be affected by any limitation statute whatsoever.” This rule ensures that violations of fundamental rights, including the right to a healthy environment, can be pursued without any time constraints. Such an approach aligns with international human rights principles, which prioritise the protection of inalienable rights over procedural technicalities like limitation periods.
Practical Implications for Environmental Claims
The removal of limitation periods under the FREP Rules offers a significant advantage for claimants in environmental cases, particularly those involving oil spills. Environmental damage is often not immediately apparent, and its full impact may take years to manifest. By allowing victims of such harm to seek redress without the limitations of a time constraint, the FREP Rules ensure that the right to a healthy environment, enshrined in both the Nigerian Constitution and the African Charter, remains protected and enforceable.
This legal framework is crucial for facilitating access to justice for victims of environmental degradation, especially in cases where harm is gradual or delayed. It reinforces the idea that the right to a clean and healthy environment should not be hindered by procedural barriers. Individuals should have the opportunity to seek remedies for violations, irrespective of when the damage is discovered.
Final Thoughts
Limitation periods are a significant factor in environmental litigation, especially in oil spill cases. However, the FREP Rules 2009 provide an essential safeguard by removing these time constraints for claims under the Nigerian Constitution and African Charter. This serves to ensure that fundamental rights, such as the right to life, dignity, health, and a clean environment, remain enforceable even after considerable time has elapsed.
The elimination of time limits for fundamental rights claims is particularly vital given the delayed nature of the impacts of oil spills and other environmental harm. This provision aligns with international human rights law, which emphasises the protection of rights over procedural obstacles, thereby ensuring that victims of environmental violations can always seek justice. Ultimately, the absence of a limitation period under the FREP Rules offers an effective means of enforcing environmental human rights, holding violators accountable, and promoting a more just and equitable system for environmental protection in Nigeria.
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