Public interest litigation in Nigeria: Challenges and opportunities – Part 2

Legislations and Rules of Court: Undoubtedly, legions of legislations and subsidiary legislations such acts, laws, and bye-laws, including Rules of courts which at birth were bound and shackled by the conservative spirit of narrow-restrictive common law doctrines have, over time, received some measure of liberation through amendments and re-enactments consequent upon activist judicial pronouncements, decisions and various reforms.

A prototype instance of these is the Fundamental Rights (Enforcement Procedure) Rules, which, having been specially designed to be sui generis and to ensure expeditious disposal of cases of fundamental rights, obliterate such obstacles as limitation statute; allows for deposition in the affidavit in support of the Originating Motion by proxy, etc. The Preamble to the FREP Rules encapsulates this liberal character of this special procedure thus:
 
“The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights applications on behalf of any potential applicant. In human rights litigation, the application may include any of the following: (one), Anyone acting in his own interest; (two), Anyone acting on behalf of another person; (three), Anyone acting as a member of, or in the interest of a group or class of persons; (four), Anyone acting in the public interest, and (five), Association acting in the interest of its members or other individuals or groups;(emphasis supplied).

Activities of Activists and Constitutional Lawyers:
Adeniyi & Olomola, on the activities of activist constitutional lawyers observe that “several activists like the late Constitutional Lawyer Chief Gani Fawehinmi SAN, Femi Falana, Olu Onagoruwa, Ebun-Olu Adegboruwa and some not for profit organisations like Socio-Economic Rights and Accountability Project (SERAP), Campaign for Democracy (CD) and many others have been involved in one way or the other with the enforcement of socio-economic benefits (Adam, 2009).” We submit that the momentum and build-up accumulated by the drive train of the activities of these public-spirited lawyers and organisations brewed and sanctioned in the crucibles of judicial activism have been the greatest contribution to PIL. 

Challenges of public interest litigation:
Locus Standi: “Locus Standi” is a Latin phrase meaning “place of standing”. It denotes legal capacity to institute proceedings in a court of law or the right to bring an action or to be heard in a given forum. It is used interchangeably with terms like “standing” or “title to sue”. In other words, locus standi is the legal capacity of a plaintiff or claimant to institute an action in a court of law in exercise of the claimant’s constitutional right. It is abecedarian law that absence of or lack of locus standi on the part of a party instituting an action translates to lack of jurisdiction on the part of the court. For a Plaintiff’s lawsuit to be valid, he must show: (a) that at the time the cause of action arose he had a legal right; (b) that the legal right has been breached or violated (or in some situations, that there is a threatened breach of that legal right) by the Defendant; and (c) that the legal right is capable of being remedied at law.

Non-Justiciability of Chapter Two of the Constitution:
Chapter Two of the Constitution of the Federal Republic of Nigeria (1999) as amended (“the Constitution”) provides for the Fundamental Objectives and Directive Principles of State Policy. It deals with non-justiciable Socio-Economic rights. Section 6(6)(c) of the Constitution makes Chapter 2 thereof non-justiciable, in the following terms:

“The Judicial Powers vested in accordance with the foregoing provisions of the section – shall not, except as otherwise provided by the Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.”
 
Adeniyi & Olomola opine that the issue of non-justifiability of Chapter 2 of the Constitution “is a major clog for the realisation of socio-economic rights in Nigeria. This provision shut down every available opportunity to redress the anomalous situation of its non-justiciability. We could not agree less. A situation where core objectives such as political, economic, social, educational, foreign policy and environmental objectives including food security, directive on Nigeria Culture, National ethics, etc are rendered non-litigable like a toothless bulldog is not acceptable. In that way, PIL is greatly hampered, slowed down and subjected to great friction and brought to a screeching halt in many instances.
 
Victimisation and backlash:
Victimisation of all categories of the PIL cast, in a manner of speaking, has remained a trademark of PIL. It is a hydra-headed monster. All PIL lawyers and actors have always been marked men. Right from the epoch of the successive military juntas down to this era of pseudo-democracy, all well-meaning legal and judicial players in the field of PIL have had a fair share of persecutions both from State and Non-State actors, ranging from incarcerations, assassinations and near-assassination attempts, etc. Experiences and travails of activists and constitutional lawyers like the late Chief Gani Fawehinmi, SAN, Femi Falana, SAN, Olisa Agbakoba, SAN, Olu Onagoruwa, and yours very sincerely, are a matter of history. By and large, PIL cases can face opposition from powerful interests, leading to intimidation, harassment, threats, and even risks of death.

Lack of adequate funding:
In an underdeveloped economy like ours where a majority of the populace is still grappling with the bread and butter concerns of life, barely being able to afford a three-square meal, pursuit of enforcement of their constitutional rights is the least on their minds. No wonder in this country, many leave their matters in the hand of God since they cannot afford to go to court to enforce their rights. This is the very problem PIL is designed to cater for. However, the reality remains that funding is a great challenge in an austere economy like ours. There can be no over-emphasising that fact. PIL cases often require significant financial resources which can be difficult to secure. These cases remain at the mercy and clemency of benevolent public donors locally and internationally. 

Snail-pace of the Justice System:
The very slow process of justice delivery in our justice system is also a major hindrance to effectiveness of PIL activities. Situations which ordinarily ought to have been expeditiously disposed of last for years and sometimes decades to render them very discouraging. In another breath, PIL cases can be lengthy and time-consuming thereby delaying justice. Again, case overload as a result of which courts may be overwhelmed with PIL cases, leading to delays and inefficiencies is a cause for concern.

Legal complexity:
It has been identified that PIL cases can often involve complex technical legal issues which require special expertise. In such situations, lack of the required special skills and expertise on the part of the judges and lawyers can pose a challenge in doing substantive and substantial justice to matters. Typical areas of complexity include ICT/cybersecurity law, health law, and other evolving areas of the legal system in a 21st century world where nothing short of global best practices are required. But due to the intricate labyrinths, dynamics, and special details/nuances involved in these areas, high level skills, training and expertise which are required to do adequate justice to the legal issues involved within the province of PIL are usually not possessed by the bench and the bar.

Political Pressure:
PIL cases may be influenced by political considerations and groups thereby compromising judicial independence.

Lack of orientation and public apathy:
Due to lack of proper orientation and information coupled with poverty, illiteracy, etc, which undoubtedly will lead to public apathy, PIL cases may not receive sufficient public support or attention, as a result of which its impact is limited.

Inadequate infrastructure:
Inadequate court infrastructure, inadequate legal aid, and lack of access to justice pose a great hindrance to the prospects of PIL cases. Some high-profile cases require elaborate, sophisticated forensic examinations and operations to ensure effective treatment. Lack of these is a major setback to efficiency in PIL.
 
Ethical Considerations:
It has been observed that PIL lawyers must navigate ethical dilemmas, balancing zeal with integrity and avoiding frivolous cases. Issues of conflict of interests, popularity, media publicity and attention, the pump and pageantry that attend some PIL cases can be very tempting, leading to compromise of the rules of professional conduct for legal practitioners.

Corruption and Lack of Transparency:
Politicisation of PIL cases due to selfish political interests of politicians has been a major setback to the success and effectiveness and integrity of PIL. Some PIL cases may be shrouded in secrecy, limiting public scrutiny and accountability.
Adegboruwa is a Senior Advocate of Nigeria (SAN).