HOW NIGERIAN CONSTITUTION INADVERTENTLY REMOVED THE ENFORCEMENT OF AFRICAN CHARTER AS FUNDAMENTAL RIGHTS ON LABOUR MATTERS

Chapter 4 of the Nigerian Constitution 1999, and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Chapter A9 Laws of the Federation of Nigeria 2004 were both integrated in the Fundamental Rights Enforcement Procedure Rules 2009 as the Fundamental Rights of Nigerians that a High Court in a state must give effect to according to the provisions of Section 46 of the Nigerian Constitution as amended. According to Order 1 Rule 1 of FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009:

Order 1 Rule 1: Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.

All the fundamental rights in Chapter 4 of the Nigerian Constitution 1999 and African Charter prior to 2010, without exception, were enforceable in the High Courts of Nigeria. This changed in 2010 with the alteration of the Nigerian Constitution. Section 254 C (I) of the 3rd Alteration 2010 abrogated the extent of functions of the High Courts in respect to fundamental rights enforcement litigations in Nigeria. According to Section 254 (1) of the 3rd Alteration:

254 (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, wei f~1rc of labour, employee, worker and matters incidental thereto or connected therewith; (b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; (c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto; (d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;

Interestingly, the new constitutional alteration did not mention the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules). There was also no mention of the African Charter in the 3rd alteration. The National Industrial Court is not mentioned in the FREP Rules.

The fundamental construction in the abrogation of the high courts powers to entertain fundamental rights suit pertaining to labour issues in Section 254C is that the FREP Rules is not available for the National Industrial Court of Nigeria when the Court assumes jurisdiction over labour fundamental rights suits. The fundamental rights enforcement rules available to the National Industrial Court of Nigeria is the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017particularly the Order 3. The National Industrial Court of Nigeria is not also empowered to entertain labour-based fundamental rights suits emanating from the African Charter.

In conclusion, it goes without any ambiguity that, where the 3rd Alteration of the Nigerian Constitution has abrogated all labour-based fundamental rights suits (whether from Chapter 4 or from the African Charter) from the High Courts, all labour-based fundamental rights suits deriving from the African Charter were hung in legislative skyline and dispatched to neither the High Courts nor to the National Industrial Court. And because a Court cannot assume jurisdiction unless bestowed upon it by statute, a litigant whose fundamental rights entitlements derive from the African Charter is left without remedy in court for fundamental rights enforcement. The African Charter will descend from its glorified and special position to occupy a position of any other legislation bestowing ordinary statutory rights.

Some may still argue that Section 46(3) of the Nigerian Constitution is stretchable to involve the National Industrial Court of Nigeria by implication of law, thereby incorporating the preamble of the FREP Rule and the African Charter into the ambits of the National Industrial Court of Nigeria, while excluding the practice and procedure to be dispatched to the Rules of the National Industrial Court of Nigeria

Dr Awkadigwe Fredrick Ikenna 2018
awkadigweikenna@gmail.com
08039555380