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Enforcing the right to political participation, how do I take legal action to protect against breaches of the right to political participation?

Which options are there available to people in Nigeria?

There are two main option for those available to people in Nigeria who seek to enforce their right to political participation, judicial enforcement and non-judicial enforcement.

Judicial enforcement refers to the process of using the courts to ensure that the government or others respect the provisions of the law on political participation. Non-judicial enforcement refers to other non-court-based steps to ensure respect for political participation.

What if I do not want to go to court?

There are non-judicial enforcement options available. Some of these options include:

Petitions: which can be written to the National Human Rights Commission, The African Union or United Nations, requesting for intervention.

Letters: can be written to authorities within a country or a State to bring to their knowledge the occurrence of a violation going on within their territory. For example, a letter could be written to the National or State Assembly, the governor or president, or the Attorney General of the State, informing them about a violation, especially by a public officer.

A letter can also be written to embassies or human right organizations seeking for help and protection especially when a person’s life is under threat or when there is systemic violations of the right to political participation.

Social Media Advocacy/Campaigns:It is recommended to seek support from a human rights organisation that could help you with these strategies. Social media has served as a means of advocating for good governance and respect of human rights.Social media can indeed help in the enforcement of process by:

Creating an awareness of the occurrence of such violation as you may be suffering.
providing an avenue for getting possible professional assistance regarding the matter
Serving as a means of saving any possible evidence one has on the internet.
Spurring people to look out for such violation within their environment, thereby serving preventive purposes.

Complaints to the appropriate authority and to the National Human Rights Commission

Complaints to the appropriate authority

In the event of breach of the right to political participation, an official report in the form of a notice of breach of right and the damage done, if any, should be made to the appropriate authority, such as INEC.

TIP:

Contact a lawyer, human right organization or NHRC for assistance.

Notify the appropriate authority in charge, attaching evidence of the breach.

Complaints to the National Human Rights Commission

This institution was established for the promotion and protection of human rights in Nigeria. If you feel your rights have been violated, you can file a complaint to the Commission.

Functions of the Human Rights Commission:

Investigation of all matters relating to the promotion and protection of human rights.
Monitoring and investigating all alleged cases of human rights violation in Nigeria and make appropriate recommendations to the federal government for prosecution and such other actions as it may deem expedient in each circumstance.
Assisting victims of human rights violations and seeking appropriate redress and remedies on their behalf.

What is required to complete a human rights complaint form

Name, address, email, and telephone of the complainant. Note: “Complainant” is a person who brings a claim.
In the body of the complaint, include a story of what happened and the name of the violator (individual/ institution).
Alongside the complaint, you are advised to include necessary documents that will serve as evidence of the violation.
You are required to provide the contact details (Name, address, telephone) of any witnesses.
At the end of the complaint, you must state certain things you want the Commission to do and ensure your signature is attached.

To know more about the format of a formal complaint, visit https://nhrc.gov.ng/index.php/complaint-form. You can also visit the State branches of the National Human Rights Commission to lodge the complaint.

The Commission has quasi-judicial powers. This means to help with your complaint it can:

summon persons and evidence.
visit any place of detention with a view to ensuring that detainees’ rights are not violated.
award compensation and enforce its decisions.

The decisions of the commission are enforced by taking that decision to the High Court and asking for it to be enforced.

Judicial mechanisms to protect and enforce freedom of assembly: the fundamental rights enforcement procedure

This is a special procedure to protect fundamental or human rights, including the right to political participation.

At what point can I start a process to ensure enforcement of my rights?

You do not have to wait until after an actual violation of your rights. If there is a threat to violate or likelihood of violating the right is enough reason to go to court. It is advisable to begin enforcement processes as soon as possible.

Is there a time limit to seek justice at the courts on human rights violations?

No. However, it is advisable you bring a lawsuit as early as possible, to preserve the necessary evidence that may support a decision in your favour (such as death of witnesses, missing records, loss of memory to remember crucial events, etc).

Who can start a Fundamental Rights Enforcement Procedure claim?

Based on the provisions in the Fundamental Rights Enforcement Rules, Section 3(e), the followings persons or organizations can take legal action:

Anyone acting in his own interest.
Anyone acting on behalf of another.
Anyone acting as a member of, or in the interest of a group or class of persons.
Anyone acting in the public interest.
Association acting in the interests of its members or other individuals or groups. This includes human rights activists, advocates, or groups as well as any non-governmental organisations, acting on behalf of a potential applicant.

Who can I take legal action against?

It is important to identify who you can take legal action against because suing the wrong party (person) could make you lose your case.

It is only the government and its agents that can be taken to court on human rights violations. Individuals and private companies cannot be taken to court under this procedure.

If your rights are violated by private individuals and companies, you report these violations to the relevant government authorities. Where the government fails to do its work, they have failed in their duty to enforce human rights protection and you can take legal action against these authorities for their failure.

TIP: when you think the right to political participation is being breached or will be breached, try to identify which public body is responsible. This can be, for example, the Independent National Electoral Commission.

Where can I take legal action?

The Federal High Court and the High Court of a State are the courts that have the legal power to accept fundamental rights cases. However, in a matter in which the Federal Government or any of its agencies is involved, the Federal High Court will be the right court at which to start your action.Every State has a High Court with divisions at different parts of the State. The list and location of the Federal High Court in Nigeria can be found here.

How do I take legal action?

1. Get a lawyer first.

2. Your lawyer will file an application. The application shall be supported by a statement setting out the:

Name, description of the applicant, the relief(s) sought, in other words, what you are asking the court to give you, and
the grounds upon which the reliefs are sought, in other words what are the rights that have been violated and the laws that allow you to seek the court’s help.

3. The application must be supported by an affidavit or statement setting out the facts upon which the application is made. This means explaining what the facts were that lead to your human rights being violated.

4. The application should be accompanied by a written address which shall contain a brief argument in support of the grounds, or reasons as to how the facts amount to the violation of your rights and which rights. You must be able to show to the satisfaction of the court that your political rights and obligations have been or are about to be violated and the claim must disclose reasonable cause of action.

5. The other party will be served with your application, which means the other party will be made aware of the application. They will be given 5 days from receiving your application to oppose and submit a written address and a counter affidavit stating his facts and grounds to oppose your application.

6. You will then be served or informed by the court about the other party’s response and will be given 5 days to respond to their arguments by submitting another written address and affidavit.

What happens if my legal action is not successful in court?

You can appeal to the Court of Appeal against the decision of the High Court. Bear in mind that appeals are complex and subject to specific rules. This will require you to discuss this with a lawyer to determine together if to appeal or not.For more information, please see the Access to justice in Nigeria: The Fundamental Rights Enforcement Procedure and other means of defending human rights guide.

Where do I go to specifically challenge the outcome of elections?

If you are challenging the outcome of elections, there is Electoral Alternative Dispute Resolution (EADR) which serves as an alternative to litigation whereby a Directorate in INEC will look into the complaint and settle the misunderstanding. This is usually done mostly after the declaration of the winner in an Election matter. It should be noted that approaching this Panel depends on the choice of both parties. You will be required to do the followings:

Identifying the wrongs in the concluded election.
What you want the Panel to do to you.

If you or your party wants to go to court, you are required start an election petition.

What is an election petition and how does it operate?

This simply refers to a written application which sets out the claims of an aggrieved person challenging the outcome and conduct of an election and other related matters. It is usually the way of commencing an action in a Court or Tribunal.

Who can present election petition?

A candidate that participates in the election.
A political party which participated in the election.

The person who brings the claims to Court or Tribunal after the conduct of an election is mostly referred to as “Petitioner”.

Who can I bring an election petition against?

A person whose election is complained of after his declaration as the winner by the Independent National Electoral Commission.
The Independent National Electoral Commission who conducted the election.

The two parties above are called “Respondents” when there is a formal election petition against them in Court or Tribunal.

What must an election petition contain?

Here is the format a proper election petition should follow:

The parties interested in the election should be specified.
The petitioner must state his right in presenting the election petition.
The petitioner needs to clearly state the fact of the election petition.
The petitioner must include basis upon which the election petition is based.
The petitioner needs to state his requests from the Court or Tribunal. For instance, that the petitioner be declared validly elected or returned as the winner of the election.
The petitioner must sign the election petition at the foot of the petition. However, if he has secured the service of a legal practitioner, the petition must be signed by the legal practitioner on his behalf.

What are the grounds or reasons on which my claims can rest?

That the candidate declared to be the winner of an election is not qualified to contest.
That the candidate did not have majority of lawful votes cast at the elections.
That the election was marred by corrupt practices or non-compliance with the provisions of the Electoral Act.
That the petitioner or its candidate was unlawfully excluded from the election even when he was lawfully nominated.
That the person whose election is questioned has submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.

In which court do I present an electoral petition?

It depends on the election you are challenging, as follows:

In the case of Presidential election (President and Vice president), the court of Appeal is the appropriate court that is empowered to entertain the petition (established in section 239 of the Constitution). If the decision is not in your favour, you can then approach the Supreme Court of Nigeria. Note that the decision of the Supreme Court of Nigeria is final.
In the case of National Assembly elections (Senatorial seats and House of Representatives), the National Assembly Election Tribunal is the appropriate court empowered to entertain the petition (as established in section 285 subsections 1 of the Constitution). However, you are entitled to approach the Court of Appeal. Thus, the decision of the Court of Appeal is final.
In the case of Governorship elections (Governor and Deputy Governor), the Governorship Election Tribunal established is the appropriate court empowered to entertain the petition (as established in section 285 subsection 2 of the Constitution). However, if the decision is not in your favour, you can still approach the Court of Appeal and up to the Supreme Court of Nigeria. Note that the decision of the Supreme Court of Nigeria is final.
In the case of State House of Assembly elections, the State House of Assembly Election Tribunals are the appropriate courts empowered to entertain the petition (as established in section 285 subsections 1 of the Constitution). However, you are allowed to approach the Court of Appeal. Note that the decision of Court of Appeal is final.
In the case of the Chairmanship (Chairman and Vice chairman) or Councillorship elections held in Abuja, the Area Council of Election Tribunal, Federal Capital Territory, Abuja is the appropriate court empowered to entertain the petition (as established in section 135 of Electoral (amendment) Act, 2010). However, if the decision is not in your favour, then you have the right to approach the Area Council of Election Appeal Tribunal, Federal Capital Territory, Abuja. Note importantly that the decision in this Tribunal is final.

Are there other courts available to seek the protection and enforcement of political participation?

The ECOWAS Community Court of Justice: In 2005, a new protocol was introduced giving the ECOWAS Court of Justice powers to entertain suits relating to human rights violations.

TIP: It is worthy to note that cases need not be pursued in national courts before they can be brought to ECOWAS court. In fact, a human right violation case still pending at a national court can be presented before the ECOWAS Community Court.

However, Article 10 (d) of the 2005 protocol on the court as amended states that:“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

Not be anonymous; nor
be made whilst the same matter has been instituted before another international court for adjudication”.

In summary, the ECOWAS Court is a viable option for any person who wants to complain of any violation of their rights because:

It is located in Abuja, Nigeria.
You don’t need to have gone through national courts before going to the ECOWAS Court.
The procedure for application is not overly complex.
The ECOWAS court can attend to issues of human right violations. This is provided in section 9 (4) of the 2005 Supplementary Protocol of the Court.

What steps do I need to take to prepare for enforcement in court?

Whichever legal avenue you are taking, when preparing for judicial enforcement, here are some steps that you as an individual who is not a lawyer could still take to assist your lawyer in your case:

Prepare a record of the event or series of events that describes the breach of your right or a threat of breach of your right.
Gather documents, information including videos, audio recording and pictures and /or accounts from other people who are aware of the abuse or breach of your right. These items could serve as evidence in court.
Reach out to a lawyer, law firm or any Non-Governmental Organization (NGO) that works on human rights as soon as possible to share your experience and plan the enforcement process. This guide provides a list of organizations that could support enforcement process.

Do I need a Lawyer?

Yes. It is advisable to get the assistance of a lawyer. It is true that the law allows you to represent yourself in court but it is important to have a lawyer to guide you through the complex court processes.Some organizations such as the Nigerian Bar Association and the Legal Aid Council assist people who cannot afford lawyers to get legal assistance for human rights cases.

What evidence can show that my right has been infringed?

In preparation for judicial enforcement, here are a few pieces of evidence you could gather as soon as the infringement occurs:

Copies of text messages, emails or social posts
Pictures, videos and audio recordings
Hospital reports, payment receipts or similar documents
Letters from government agencies, acknowledgement copies of letters to government agencies or decisions of administrative bodies.
Testimony of other persons who are eyewitnesses.

What steps can I take to make sure I gather helpful evidence?

Such necessary evidence can be gathered by:

Downloading videos, pictures and other digital information and storing them in at least 3 flash drives or hard disks.
Ensure that the recipient acknowledges every letter to government agencies.
Identify eyewitnesses who could make statements to support your court case.
Get the testimony of those witnesses either in writing or by audio or video recording.
Collect and store relevant newspaper, magazine or other publication in different safe places to avoid destruction by water or fire. In addition, take pictures of the documents.

What can I ask for in court?

Where one’s right to political participation has been violated or infringed upon, the individual has the right to seek remedy through the court.

It is within the powers of the court to determine if there has been any violation and also to issue necessary orders and award appropriate compensations.

Examples include:

Monetary Compensation: This refers to material compensation given to a party once the court has found that the fundamental rights of an applicant have been violated by the conduct of the respondent, and if the person has suffered injury, depending on the circumstances.

For instance, in the case of Ms. Warmate V. Senator Elisha Abbo Suit No. FHC: CV/2393/2019 the High Court of the Federal Capital Territory (FCT) held that Senator Elisha Abbo was wrong to have assaulted Ms. Osimibibra Warmate. Therefore, the court ordered him to pay the sum of N50 million to Ms. Osimibibra Warmate as compensation for doing such to her.

Injunctions: An injunction is a court order requiring a party to do or cease from doing a specific action.

For example, in the case of People’s Democratic Party (Pdp) And 2 Others V Biobarakuma Degi- Eremienyo (Apc Governorship Deputy Candidate For Bayelsa State And 3 Others.

In this case, the People Democratic Party and others challenged the outcome of the Governorship election on the ground that Mr. ‘Biobarakuma Degi-Eremienyo who emerged as Deputy Governor – elect presented false information and that he was disqualified from contesting in the same manner thus affecting the Governorship Candidate. The Supreme Court agreed with the petitioner’s arguments and thus cancelled the emergence of APC’s candidates and ordered the Independent National Electoral Commission to declare as winner the candidate with the highest number of lawful votes.

Declaratory reliefs: This is a declaration by the court stating out the rights of the individual/group. They serve to state the existence of certain rights when these rights have been infringed by the government or other state actors.

Apologies: In certain situations, the court may order an erring party (usually the government) to make a public apology to the victim in conjunction with other remedies.

Right to political participation

In Nigeria, people are voicing out the need to be involved and to be part of decisions over what happens in society. Action4Justice in Nigeria promotes legal empowerment as a tool to make Nigeria a more participative and democratic society.