Guardian

IN the first part of this article, Remedy to Fundamental Human Rights (1), published last week, we listed the three stages by which an aggrieved person may apply for damages for the breach of his fundamental rights as guaranteed under the constitution. We have discussed the first stage and identified the nature of the remedy or redress available to an aggrieved applicant at that level. This (second) part will focus on the two other stages of remedy available to the applicant.

The second stage at which a person may apply to enforce his fundamental right is the time when the right is being infringed, that is, when the alleged infringement is in progress, on-going or continuing. For instance, in our example to the breach of right to personal liberty used in the first part of this topic, the second stage here will mean that the aggrieved person is still in detention. The available remedy at this stage will be an order of the court to stop the continuing infringement and in the example given, an order to release the applicant from detention.

At this stage, time is of the essence so as to prevent further infringement of the applicant from detention and it requires that the proceedings of the courts leading to the obtaining of the redress should be fast. This accounts for the making of the special rules of procedures for the enforcement of fundamental rights. The current Fundamental Rights Enforcement Procedure (FREP) Rules 2009 is an improvement on the earlier one of 1979.

The current FREP Rules aims at fast-tracking the proceedings of fundamental rights cases. This objective is to be achieved by adopting the two devices below:

The first device being that the FREP Rules approves of the use of originating application as opposed to a Writ of Summons for all cases of fundamental rights action. This departs from the usual practice where the use of originating application is limited to cases where facts, which the courts will pronounce upon are not in dispute. The major advantage is that it is time-effective. This is because the case will be decided upon affidavit evidence, therefore, it will eliminate the need for witnesses of parties to go into the witness box to give evidence and be cross-examined with its attendant delay as is experienced in cases initiated by a writ of summons and statement of claims. All the applicant need to do is to file all the required processes including the written address while the respondent is to file his own counter affidavit along with a written address.

The other device adopted by the FREP Rules to ensure expeditious disposal of human rights cases is to give a short time within which certain steps are to be taken. For instance, the respondent is to file his response within five days under Order 11, Rule 6 of the FREP Rules 2009, while the court is given only seven days to hear the application after all the processes have been filed. The rules also allow the court to deem a process adopted if a party fails to appear before the court to prove or argue the case.

In spite of the novel objective of the FREP Rules to fast-track cases brought under it, Fundamental rights action still take longer time for their hearing and determination because of the congestion of court lists and some other related issues.

Another remedy that an applicant can apply for at this stage is an order to restrain further violation of the right of the applicant.

The third stage at which a party can seek remedy for breach of fundamental right is the stage at which the right has not yet been breached but the breach is anticipated, where it is looming, where it is impending. Here, it means the applicant is being proactive to prevent the breach. The available remedy at this stage is to obtain an order of the court to restrain the conduct or action, which the applicant anticipates will result in breach, pending the determination of the court whether the alleged conduct or act will result in breach of the right of the applicant.

For instance, where a party is served with a notice to acquire his landed property and the party is of the opinion that due process has not been followed or that the reason for the acquisition is not premised on the constitutionally required over-riding public interest or if a party is served with an invitation from the police for an alleged offence and the party anticipates that the invitation will lead to his arrest and undue detention, such party can approach the court for an order of court preventing the police from arresting or detaining the applicant in any manner inconsistent with his fundamental right to personal liberty.    This simply implies that if the person is arrested, he should either be released or charged within the constitutionally stipulated period of 24 to 48 hours.

At this juncture, it is note-worthy that the remedy available at this stage is the most abuse by applicants. Sometimes, a party obtains an order of court to restrain his arrest perpetually, whereas, there s no such remedy under the constitution, a person can prevent his arrest and detention in a particular manner that breaches his right but not a blanket order that prevents his arrest. Some applicants also obtain orders to prevent arrest with the ultimate objective of covering up some facts during the period the order is subsisting or to frustrate successful investigation into his misdeeds. It our view that one way to cure this abuse is for the court to be on guard and uncompromising such that an applicant for such a remedy must place tangible evidence before the court to support the application of the breach.

Also, such a remedy should rarely be granted ex-parte, that is, without putting the other party on notice and affording an opportunity to oppose the ground of the relief.