LSP062: Can the Constitutional Right to Life of a Dead Person be Enforced by his Dependents?

Humans rights are rights that every individual is entitled to irrespective of background, sex, colour, religion, etc. In Nigeria, these rights are well enshrined in sections 33-46 of the Constitution. The Fundamental Rights Enforcement Procedure Rules (hereinafter referred to as FREP Rules) is the principal mechanism of enforcing human rights claims in Nigeria. 

Under the old law of the 1979 FREP Rules, the principle of law was that only the aggrieved party whose right has been violated or is likely to be violated can maintain an action for the enforcement of his human rights. As such, this rule resulted in substantial justice being undermined by legal technicalities and was highly detrimental to public interest litigation.

To ameliorate the situation, Lord Kutigi, the then Chief Judge of Nigeria, acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules. One of the progressive provisions of this new law is that it encourages public interest litigation. In other words, it widens the scope of people who can maintain an action for human rights violations. 

Under Public Interest Litigation, it is not necessary that the Applicant has suffered some injuries of his own or has had a personal grievance to litigate. As such, third parties like NGOs, can maintain an action for an aggrieved party.

The preamble of the FREP Rules 2009 states that an applicant may include any of the following- 

(i) Anyone acting in his own interest 

(ii) Anyone acting on behalf of another person

(iii) Anyone acting as a member of, or in the interest of a group or class of person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups.

Having laid the foundation, the legal question then is, can the constitutional right to life of a dead person be enforced by his dependents? The courts have in a plethora of cases held in affirmative.

In Shobayo v COP Lagos State, (Suit No.ID/760m/2008), the applicant who was the wife of the deceased succeeded in an action brought against the torture, detention, and unlawful killing of her husband by some police officers. The Court gave an elaborate dictum thus:  “Insisting that only the citizen subject of an infringement can approach the court when such a right is violated would create an absurdity. This would imply the non-realisation of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of the fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizens must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not too distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, pursuant to Section 46(1) of the Constitution, approach the Court for redress.”

Orjieh V. The Nigerian Army & Ors is another case, where the principle that the constitutional right of a dead person could be enforced, was also reaffirmed. In that case, the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”. The Court entered judgment in favour of the Applicant and awarded her N300million as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.

Other judicial decisions that reiterated this principle are Omonyahuy v IGP &Ors (2015) LPELR-CA/L/493/13 and a 2022 case of NSCDC, Benue State Command & Anor v Samuel (2022) LPELR-56933(CA). From these cases, the established patterns seem to be that these unlawful deaths resulted from the hands of law enforcement officers.

Nevertheless, it is pertinent to state that in order to sustain an action for the enforcement of Fundamental Rights, the main or principal claim in an applicant’s process must be hinged on breach of any of the Fundamental Right as guaranteed by the 1999 Constitution. It must not be an ancillary claim else such action will be deemed as being outside the scope of the Fundamental Right proceedings and therefore incompetent as held in WAEC VS AKINKUNMI (2008) 9 NWLR (PT 1091) 151; TUKUR VS GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT.510) 549.

In conclusion, the change brought by the 2009 FREP Rules is a progressive one and reflects the modern trends in human rights actions. In addition, the kind of hooge monetary compensation awarded by the Court to the dependents is also commendable to cushion the absence of the deceased. Relying on the old FREP rules would have worked hardship on every dependent who would be left with no compensation save from the criminal action instituted by the state which itself is not a personal remedy.

Thank you for reading. See you next week.