Public interest litigation in Nigeria: Challenges and opportunities ( 4)

Ebun-Olu Adegboruwa

Published By: Paul Dada

By Ebun-Olu Adegboruwa, SAN

G. OPPORTUNITIES OF PIL

‘What is the argument on the other side? Only this, that no case has been found in which it has been done before. The argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still, whilst the rest of the world goes on. That will be bad for both.’ Lord Denning in Parker v Parker (1954) ALL ER p.22.

‘A lawyer lives for the direction of his people and the advancement of the cause of his country.’ Alexander Christopher Sapara Williams, first indigenous Nigerian lawyer, called to the English Bar on November 17, 1879.

Some years back in this land, you just woke up and read news headlines like ‘Gani Sues IBB On Status of First Lady’, ‘Gani asks Court to declare appointment illegal’, etc. Most times the President would think twice before taking any decision bearing in mind that Gani will readily challenge any act of impunity or illegality. Presently, the Fundamental Rights (Enforcement Procedure) Rules has opened the horizon for PIL initiative for the development and enforcement of fundamental rights. It is for practitioners to take their act to the next level of enforcement by flooding the courts with cases that will give positive interpretations to the Constitution in relation to PIL. For instance, the Federal Government is mooting the policy of tolling the Lagos-Ibadan Expressway which took so many years to complete, leading to loss of lives and assets. The court should be made to determine the legality of such an ambitious tax regime by those were voted into power to better the lives of the people. The power crisis has become largely intractable, with no genuine excuse to justify the humongous investment in that sector and the epileptic supply of electricity. If the reason for creating the Bands has prospered the economy of the stakeholders in the power sector, so too must they be held accountable to provide stable power supply to all their customers who have been so designated. Once the Discos cannot deliver on their promise for whatever reason, they should not be entitled to walk away with the money of their customers. In all the major cities of the nation, the courts should interprete their conduct and give redress to the customers who are being shortchanged.

Armed with the tremendous ground-breaking advances which judicial activism avails the legal system, PIL offers a good number of opportunities some of which are captured as follows:

1. Creating Legal Precedents and Advancing Jurisprudence and the Legal System:

PIL provides the anvil upon which laws are tested, and either endorsed or discarded, through judicial decision. Rather than leave things harnessed to the treadmill of nonperforming barebones of academic and dead-letter laws, PIL provides the engine for robust and engaging opportunities to break new grounds in law and practice, leading to a holistic edification of our collective corpus juris. It can lead to landmark judgments that set legal precedents and shape the legal landscape. We owe a duty to our people to intervene at critical times when they face obnoxious and offensive policies that work to oppress them. We must continue to deploy law for social engineering.

2. Promoting Social Justice Support for Marginalized Groups:

PIL allows individuals and organizations to advocate for rights of marginalized communities and promote social justice. It is in this regard that some of the public-spirited freedom fighters and constitutional lawyers some of whom have been mentioned earlier together with NGOs such as the Socio-Economic Rights and Accountability Project (SERAP) and Budgit Foundation Promotion of Information Technology in Nigeria (BUDGIT), etc, operate. PIL provides a voice for marginalized groups, including women, children, minorities, and indigenous people. The difference in this is that the incorporation of these entities helps to prevent the constant harassment and intimidation of notable individual activists and PIL practitioners by the government and other state actors responsible for the violation of the rights of the people.

3. Challenging Unjust Laws and Policies:

PIL provides avenues for individuals and organisations to challenge laws and policies that are unconstitutional or violate human rights. Recently, SERAP and BUDGIT sued the Central Bank of Nigeria, challenging the circular on the Implementation Guidance on the Collection and Remittance of the National Security Levy dated May 6, 2024 based on Section 44(2) of the Cybercrimes Act as being unconstitutional and austere on Nigerians given the prevalent economic hardships that people are already passing through. It was not long after the case was filed in court that the government announced the withdrawal of that oppressive policy.

. Raising Awareness:

PIL can create a grand swell occasioning drawing of massive attention to important social and political issues, raising public awareness and sparking debate on issues of regional or national importance. In this regard, PIL becomes an effective tool for raising awareness on all unlawful activities and other obnoxious actions of the government. Generally, media houses are very careful in publishing stories that fall within the PIL remit, either for fear of libel suits, clampdown by the regulatory authorities or self-imposed timidity. When such facts are collated to file a suit in court, media houses are more friendly and disposed to publish them the way they were filed. In such cases, the information released to the court under oath becomes more credible and weighty. They are also regarded as public documents, the contents of which the public is entitled to know. Such publications are covered under section 22 of the Constitution which enjoins the media to hold the government accountable to the people.

5. Encouragement of Policy Reform:

PIL can act as a catalyst that initiates changes in laws, policies, and practices, promoting systemic reform. Case law can also influence legislation, especially in matters dealing with public rights and obligations. This is how advanced countries developed, in using PIL to test the waters and to galvanize positive change. There are lots of negative factors discouraging PIL in this area, such as cultural biases, religious inclinations and political affiliations, all of which in some cases work to hinder a robust PIL regime. I have always insisted that a PIL activist must be nonaligned, so as to give room for free and untainted practice.

6. Strengthening the rule of law:

PIL helps to strengthen the rule of law, ensuring that the legal system is accessible and effective in protecting rights. The intervention of PIL has helped to save individual litigants scarce resources in hiring private counsel to prosecute or defend the same subject matter that has been dealt with through PIL. A good case in point is the intervention of NBA-SPIDEL in prohibiting illegal fines imposed on motorists by the Federal Road Safety Corps and other state agencies. The task ahead of us all is to open the frontiers of PIL and increase the momentum of our interventions. No oppressive policy, law or action should be allowed to thrive in our land while we have the golden opportunity to challenge them in court.

7. Enhancing Accountability:

PIL can be a powerful tool to hold governments, institutions, and individuals accountable for their actions, promoting transparency, accountability and probity. A robust, active and vibrant PIL regime is a potent restraint on all forms of impunity, illegality and arbitrariness. To this end, PIL is more like an investment, whose dividend you may not reap immediately, given that those in power are more comfortable with the status quo. Let us keep sowing the seeds of PIL, which will germinate and bear fruits in the near future.

H. CONCLUSION:

PIL, from all ramifications, is a powerful and veritable tool to drive social change and reforms. As we have seen, the power given to the public by courts through judicial activism has been very useful in settling many legal issues. Any person who believes that injustice is being meted to the society at large can approach the court for judicial remedy. We should not be so bothered about the outcome of such an initiative but rather focus on the fact that where there is a right, there will always be a remedy. PIL is aimed at transforming the society and paving the way for the elimination of various social injustices such as sexual harassment, environmental pollutions, monetary fraud and other issues, etc. We hope that with our contribution in this discourse, insight has been sparked on some interesting ways to apply legal skills through strategic litigation in all areas of choice, including the Reproductive Justice System. The ball is now in the courts of all PIL activists, to step up their game and be the conscience of the nation. There is no better time than now, to rise up to defend our people and our land from totalitarian tendencies, repressive policies and programmes that seek to snuff life out of the masses, the weak, the poor, the downtrodden and all those who have no means of securing redress. I thank you all.