Who Wants to Be a Gani?

As discussions about ‘the rule of law’ in Nigeria take on a mocking tone it is important to discuss the fact that we are all responsible for the ‘rule of law’, not just lawyers, judges and politicians. For the rule of law to become engrained in society we must actively use legal means to address injustice and fight abuse which directly or indirectly impacts on our civil liberties. The rule of law and ‘standing’ are intricately woven because for a nation to be bound by law, it must be conscious that the application of ‘law’ is not in restricted to the hands of a few – but is in the hands of all. Arguably if Nigerians had the right to address inequalities in their courts, some of them would not have to resort to terrorism and lawlessness. Constitutional reform and environmental enforcement are just a few of the areas that would benefit from the expanded right to sue.

What are the citizens’ right to sue in Nigeria and how can it be used effectively to ensure widespread access to justice? The United States of America is often the butt of jokes for being a litigious society; a place where a person who buys a hot cup of coffee and places it between her legs while driving can sue the coffee shop when she gets burnt. Extreme? Yes, but we are at the extreme in Nigeria too, where we never seem to consider legitimate reasons to sue, not even when we should such as the negligence of a hospital during an operation. Instead we merely avoid the place/system where we have been burnt and let others go and get burnt themselves.
It is easy to understand why exercising the right to sue is not popular in Nigeria: the slow judicial system, costs of litigation, and low success rates are all downers. But our culture also unwittingly plays a role. The ‘haka Allah ya so’ (‘that’s what God has ordained) ideology makes it easy to shrug and walk away when a doctor cannot explain how the shoulder of a new born baby has been dislocated.

So if we won’t do it for ourselves, will we do it for others? If I do not feel responsible for ensuring that something bad which has happened to me will not happen to someone else, will I feel responsible for my country? What does it take to be a ‘Gani’? If your heart burns when you hear of a totally inane bill being considered by the state or federal legislature, what are your rights and what are the issues you will face?

As Gani has found out: ‘locus standi’ (the right to sue) is the bane of the citizen’s right to use the courts to seek redress, especially on policy issues. Gani’s 1992 case against former President Ibrahim Babangida to compel him to account for the $12.4 billion oil revenue earned by Nigeria during the Gulf war was only recently struck out by the FHC…sixteen years later. According to the presiding Judge, Gani did not have the right to sue. Law is indeed a double edged sword. If I find a man committing an act which seems grossly indecent but yet there is no law prohibiting such act, then I must abide by the ‘law’ and let him be. This ruling, made a few months ago, seems to be based on Section 6(6)(b) of the Constitution and the precedent set in Senator Adesanya v. President of Nigeria in 1981: that a person only has the right to sue when his civil rights and obligations have been or are likely to be affected. Unfortunately this precedent on locus standi has been the subject of lengthy articles and discussions and has been refuted by other jurists, most recently by Justice Ayoola in two different cases. According to, Justice Ayoola, Section 6(6)(b) of the Constitution and the Adesanya case are not the yardstick for the right to sue. Instead, the right to sue should be relative to a cause of action. The cause of action is the heart of a case upon which the right to seek justice is based and its difficult to prove, especially when the person bringing the law suit is being altruistic, as is usually the case in Gani’s lawsuits.

The right to sue is fundamental to the development of the rule of law – it helps build accountability to the public. It results in the fear of public officials that private citizens can and will take them to court to seek redress for abuse of powers and contribute to the current anti corruption drive.
However, where does all this leave a citizen? When the courts insist that a person can only sue when their civil rights have been directly infringed by an action, this perpetuates the general ennui regarding the enforcement of rights and the duties of citizens to monitor officials.

A look at the other jurisdictions clearly indicates that the restrictions on the right to sue in Nigeria are outdated. What practitioners should be arguing and what judges should be taking into consideration is ‘sufficient interest’ which in the UK is given a wide interpretation to allow individuals and NGOs to sue government and government agencies if they have sufficient interest to do so.

In ‘Broadening “Standing to Sue” for Citizen Enforcement ‘, John E, Bonine shared his research on locus standi across the globe and boldly stated that ‘barriers to law enforcement by citizens are falling in countless countries’ – Bangladesh, Botswana, Costa Rica, Chile, etc, but Nigeria did not make the list. For some countries, the changes are characterised by judicial reasoning while in others, constitutional reform has been necessary. Countries that have opted for constitutional reform, like Botswana and Nepal, have realized how fundamental the citizen’s right to sue is and even without the scars of civil war and military rule, have taken the care to entrench the rule of law through their citizens. These constitutions expressly provide citizens with the right to sue for violations of the constitution while for some the power is implicit as is the case with the Indian and Tanzanian constitutions.So for all those who were totally heated up about the Bakassi issue – here is your chance, take action and try to get the law to work for you (and the rest of us).

Better still, next time you get a chance to speak to your elected representative to the federal and/state legislature, ask them what reforms they intend to put in place to expand the citizen’s right to sue.

Published September 16 2008