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Public interest litigation in West Africa

By Femi Falana

Public interest litigation is entrenched  in the administration of justice system in Francophone countries of West Africa.

It has been said that “the representation of the public interest in a civil hearing is guaranteed by a special institution which is often known as the State Judicial Agency and which is headed by the State Judicial Officer.

It is actually the latter who attends the hearing, who is attributed the various acts of the proceedings and progress of the case, and who is the person called to the bench of the presiding the court handling the case.

Also, when the State is summoned before the Courts, that is when it is the object of a complaint, it is the State Judicial Officer that represents it.” (Alioune Sall, Judicial Representation of the Public Interest in Francophone Africa, in WAPILC Quarterly, Volume 1, Number 1, 2009 Page 50).

With respect to criminal cases the representation of the public interest is guaranteed by a special body of magistrates called the “Prosecution” or the “Public Prosecutor’s Office”.

In exercising their powers, the Magistrates of the Public Prosecutor’s Office have great liberty, for they can without appeal assess the need to prosecute an offence on the basis of assessment criteria on which they submit no report whatsoever.

This principle of freedom in setting off public action is called the principle of “discretionary prosecution.” The prosecuting magistrates therefore evaluate the threat that an offence has against the public interest before requiring that the offender be sanctioned.

Public Interest Litigation in Anglophone West Africa.
When the Economic Community of West African States (ECOWAS) was born in 1975 the majority of the countries in West Africa were under dictatorial military regimes.

National constitutions were suspended while the rule of law was put in abeyance. Human rights including the right to life were not allowed to be enforced in courts whose jurisdiction was ousted by draconian decrees.

Trade unions, national bar associations and other civil society organizations which challenged the repressive regimes were prescribed. Media houses were closed down while journalists who wrote “subversive” articles were either detained without trial or jailed under sedition law and other obnoxious anti-media legislations.

In such atmosphere of silence and fear a few progressive lawyers decided to join issues with oppressive regimes in the law courts. In challenging the violations of the rights of human rights defenders, political activists, labour leaders etc civil rights lawyers drew inspiration from the promoters of public interest litigation in the United States, India and South Africa.

Apart from litigating popular causes in the municipal courts complaint of human rights violations were filed at the African Commission on Human and Peoples Rights in Banjul, The Gambia. As there were no local materials to rely upon, foreign cases were cited to justify the resort to public interest litigation.

In spite of the initial reluctance of judges to embrace the new challenge there is hardly any country today in West Africa whose courts have not embraced public interest litigation as part of its human rights jurisprudence.

Indeed, national courts have begun to relax the strict application of the doctrine of locus standi which has inhibited the development of public interest litigation.

The doctrine of locus standi is anchored on the belief that concerned individuals should not litigate in the public interests as it is only the Attorney-General who the power to protect a public right or to enforce the performance of a public duty.

In rejecting the anachronistic doctrine in the case of Gani Fawehinmi v. The President (2001) 14 NWLR (PT 1054) 275 at 334 Aboki JCA held:

“In our present reality, the Attorney-General of the Federation is also the Minister of Justice and a member of the Executive Cabinet. He may not be disposed to instituting an action against the Government in which he is part of, it may tantamount to the Federal Government suing itself. Definitely he will not perform such a duty. Importantly too, there is no provision in the 1999 Constitution for the State to sue itself.

Since this country attained Independence from the British Colonial Administration almost forty seven years ago, I know of no reported case of any superior court in Nigeria where the Attorney-General of the Federation has instituted an action against the Federal Government, or an Attorney-General of a State suing his State Government on account of a violation of the provisions of the Constitution. I may however be wrong in this historical assessment.

The question now is who will approach the court to challenge the Government where it violates or fails to enforce any provisions of the Constitution or the Laws where an Attorney-General will not….

I am of the opinion that in the Nigerian context and particularly under the Constitution of the Federal Republic of Nigeria, 1999, it would be wrong to slam the door of the Courts against complaints on executive excesses and unconstitutionality under the guise of lack of locus standi. Where this is done, the objective of the 1999 Constitution beautifully phrased as freedom, equity and justice may not be attained”.

Public Interest Litigation in the ECOWAS Court
Just a couple of weeks ago the ECOWAS Court of Justice accepted and applied the principle of “actio popularis” in the enforcement of human rights in West Africa. As far as the Court is concerned a Plaintiff “need not show that he has suffered any personal injury or has a special interest that needs to be protected to have standing. Plaintiff must show that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable. This is a healthy development in the promotion of human rights and this Court must lend its weight to it, in order to satisfy the aspirations of the citizen of the sub-region in their quest for a pervasive human rights regime”.

Aside from such progressive stand on locus standi the Court proceeded to uphold the right to education when it held:

“It is trite law that this Court is empowered to apply the provisions of the African Charter on Human and Peoples’ Rights and Article 17 thereof guarantees the right to education. It is also well established that the rights guaranteed by the African Charter on Human and Peoples’ Rights are justiciable before this Court. Therefore, since the Plaintiff’s application was in pursuance of a right guaranteed by the provisions of the African Charter, the contention of second Defendant that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold.”

Expanding the Democratic Space through Public Interest Litigation.
No doubt civil rights lawyers and human rights groups in West Africa have enhanced the quality of political and civil rights. In the case of New Patriotic Party v. Inspector-General of Police, Accra (2000) 2 HRLRA 1 the Supreme Court of Ghana struck down the Public Order Decree 1972 which provided that meetings, processions and demonstrations were prohibited unless sanctioned by the police on the ground that it violated the human right of freedom of assembly guaranteed by Article 21 of the Ghanaian Constitution and Article 11 of the African Charter on Human and Peoples Rights.


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