ADMINISTRATIVE REMEDIES – THE NATIONAL HUMAN RIGHTS

COMMISSION

1.0. ADMINISTRATIVE VS JUDICIAL REMEDIES

There is a conceptual distinction between administrative and judicial remedies. With

respect to the former, administrative authorities provide institutional mechanisms for

aggrieved persons to seek appropriate administrative redress, remedies, or reliefs for

injury or loss arising from administrative conduct.

Thus, administrative remedies can be usefully conceptualised as non-judicial

remedies. Furthermore, administrative remedial mechanisms serve to protect

individuals from arbitrary administrative conduct and are relatively more expeditious,

flexible, cost-effective, and less formal than judicial mechanisms. Administrative

remedies may be sought through various means and the procedures for doing so

typically range from basic forms (such as letter-writing) to more complex forms such

as lodging formal complaints, petitions, and appeals.

Conversely, in order to access judicial reliefs and remedies, claimants typically have to

institute legal suits in appropriate courts of competent jurisdiction. Judicial remedies

include certiorari, mandamus, and orders of prohibition as well as declarative and

injunctive reliefs etc.

Prof Oyewo adopts the following classification of administrative or non-judicial

remedies:

i. Domestic or internal procedures

ii. Appeals and petitions
iii. Tribunals and inquiries
iv. Ombudsman
v. Human Rights Commission

1
 vi. Code of Conduct Bureau
vii. Complaints and petitions to the Legislature.

However, this reading material is concerned with the National Human Rights

Commission (NHRC). Today, Human Rights Commissions feature as an important

category of national human rights institutions.

2.0. WHAT ARE NATIONAL HUMAN RIGHTS INSTITUTIONS?

Obiora Okafor & Shedrack Agbakwa have outlined the definition, evolution,

categories, and functions of human rights institutions in the following excerpt:

As defined by the United Nations, national human rights institutions are by no

means a novel feature either of the human rights landscape or of the
institutional terrain of most countries in the world. From ombudspersons to
national human rights commissions, the institutional terrain of virtually every
country features at least one kind or the other of a national institution for the
promotion and protection of human rights. As well, the vastly increased
worldwide attention that is now being paid to the development of such national
institutions belies the relatively long (if hitherto unremarkable) history of their
existence in various parts of the world. Indeed, the question of the necessity for
the establishment of such institutions was discussed by the United Nations
Economic and Social Council (ECOSOC) as far back as 1946. This matter was
again discussed by ECOSOC in 1960. As importantly, the first set of guidelines
for the structure and functioning of national institutions was endorsed by the
United Nations in the late 1970s.

Long as their history might be, it is correct nevertheless to perceive the 1990s
and the period that has followed as the age of national human rights
institutions. This age has witnessed the accordance by the United Nations of
priority to this aspect of the struggle for human rights. This age has also
witnessed the exponential and exuberant proliferation of national institutions
the world over. Receiving impetus from the 1991 Paris International Workshop
on National Institutions for the Promotion and Protection of Human Rights,

2
 and the conclusions of that conference (now known as the Paris Principles), the
work of the United Nations in encouraging the establishment by each state of
its own national institution(s) has gained momentum. The 1993 Vienna
Declaration and Programme of Action's ringing endorsement of this aspect of
the United Nations human rights work has further cemented its pride of place
within that body's agenda.

Particularly popular among states that have recently established their own
national institutions has been the subcategory of national institutions that are
referred to as national human rights commissions (NHCs). This subcategory is
said to differ significantly from another subcategory referred to as
Ombudspersons. While the primary function of the latter kind of institution is
the oversight of public administration in order to ensure its fairness and
legality, that of the former is the promotion and protection of the human rights
of individuals and groups. While these functions will in many cases overlap, the
former institution is thus functionally distinguish able from the latter.1

(footnotes omitted)

3.0. INTERNATIONAL MINIMUM STANDARDS FOR NATIONAL HUMAN RIGHTS

COMMISSIONS

Based on the 1993 Paris Principles Relating to the Status of National Institutions for

the Protection of Human Rights (Paris Principles), the following characteristics, inter

alia, constitute international minimum standards for credible national human rights

institutions:

i. They should have a legal status - Human Rights Commissions should be

institutions established by law (i.e., their mandate, composition, and

competence should be enshrined in a constitutional or legislative text).

1
Obiora C. Okafor & Shedrack Agbakwa, ‘On Legalism, Popular Agency and "Voices of Suffering": The
Nigerian National Human Rights Commission in Context’ (2002) 24(3) Human Rights Quarterly 662, 664-665.

3
 ii. The protection and promotion of human rights should form part of their core

mandates.

iii. Their institutional independence and organizational autonomy should be

guaranteed – i.e., they should not be dependent on other branches or organs of

government.

iv. Pluralistic composition – i.e., their membership should include human rights

organisations; civil society groups; universities and qualified experts;

representatives of trends in philosophical or religious thought; parliament;

trade unions; professional associations involved in human rights advocacy; and

representatives of government departments (who should participate only in an

advisory capacity).

v. They should possess investigatory and advisory jurisdiction.

vi. They should enjoy adequate funding and financial autonomy.

Points to Ponder: To what extent does Nigeria’s national human rights institution (i.e.,

the National Human Rights Commission conform to the above international minimum

standards?)

4.0. HISTORY OF NIGERIA’S NATIONAL HUMAN RIGHTS COMMISSION

The NHRC was established in 1995 during military rule. In the following excerpt, Prof

Philip Aka offers a brief overview of the history of the NHRC. According to him2:

The machinery traditionally used to enforce human rights in Nigeria, like in

many other societies, is the judiciary or courts. During eras of civilian rule, these
courts do a fairly good job protecting human rights, but are much less effective
in periods of military rule when judicial autonomy becomes severely vitiated.

2
Philip Aka, ‘Nigeria Since May 1999: Understanding the Paradox of Civil Rule and Human Rights Violations
Under President Olusegun Obasanjo’ (2003) 4 San Diego International Law Journal 209, 217-218.

4
 The judiciary remained the only machinery for human rights enforcement in
Nigeria until 1995. That was the year the human rights commission approach
evolved as a supplement to the traditional machinery. The establishment of the
National Human Rights Commission (NHRC) had all the mark of the strange
irony that sometimes characterizes the conduct of public affairs in Nigeria. The
NHRC was set up by a military decree and during the rule of the ruthless
dictator General Sani Abacha (1993-98). In setting up the commission, Abacha
meant to fulfill Nigeria's commitment to the United Nations and the
Organization for African Unity (OAU) to establish a national institution for
human rights protection! Some observers point to the influence of external
factors in explaining the foundation of the NHRC. Others cite the foundation as
a testament to the commitment of Nigerian people for justice even in the face
of great odds.3 (footnotes omitted)

4.1. THE NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

Governing Council

Section 2 of the National Human Rights Commission (Amendment) Act 2010 amends

the Principal Act by establishing a Governing Council responsible for the discharge of

the functions of the Commission. The members of the Governing Council of the NHRC

are appointed by the President subject to confirmation by the Senate.4 They are

required to be persons of proven integrity.5

The Chairperson of the Council is required to be a retired judge (of the Supreme Court,

or Court of Appeal, or Federal/State High Courts). Apart from the aforementioned

cadre of retired judicial officers, legal practitioners with 20 years post-qualification

experience and relevant expertise in the field of human rights are also eligible for

appointment as Chairperson. The composition of the Council includes representatives

3
Ibid
4
National Human Rights Commission Act, section 2(3) (as amended)
5
Ibid

5
from the Ministries of Justice, Foreign Affairs, and Internal Affairs respectively. Other

members include representatives of registered human rights organisations in Nigeria,

as well as representatives of the professional bar, media organisations, and organised

labour. There is also a mandatory requirement to include in the membership of the

Council women who possess sufficient expertise in the field of human rights.6 The

Executive Secretary of the NHRC is also a statutory member of the Governing Council.7

4.2. STATUTORY MANDATES AND FUNCTIONS OF THE NATIONAL HUMAN

RIGHTS COMMISSION (NHRC)

Note that Section 5 of the Principal Act contains the functions of the NHRC. However,

the provisions of section 5(a), (d), (e), & (h) were amended whilst new paragraphs (j)

– (r) were introduced by section 6 of the Amendment Act.

The statutory functions of the Commission encompass all matters relating to the

protection of human rights as provided in the 1999 Constitution and international

treaties to which Nigeria is a signatory such as the African Charter on Human and

Peoples’ Rights, the United Nations Charter, and the Universal Declaration on Human

Rights.8 Some international treaties also included in the provision are the

International Covenant on Civil and Political Rights (ICCPR), the International

Convention on the Elimination of all Forms of Racial Discrimination, the Convention

on the Elimination of all forms of Discrimination against Women (CEDAW), and the

Convention on the Rights of the Child.

The NHRC is charged with the task of monitoring and investigating alleged cases of

human rights violations. In discharging its monitoring and investigative functions, the

6
Section 2(2)(g)
7
Section 2(2)(h)
8
Human Rights Commission Act, section 5(a) of the Principal Act (as amended)

6
Commission is required to make appropriate recommendations to the President for

the prosecution, inter alia, of persons implicated in human rights abuses.9 However,

apart from prosecution, the Commission may recommend other actions that it deems

expedient.10 The NHRC may also visit police cells and detention centres in order to

ascertain their conditions and make recommendations to the appropriate

authorities.11

The statutory functions of the NHRC also include obtaining redress and remedies on

behalf of victims of human rights violations and providing other forms of assistance to

them.12 In this respect, the NHRC is empowered to independently conduct appropriate

investigations and inquiries and institute civil action on any matter relating to the

exercise of its functions.13

In addition, the NHRC is mandated to conduct research and other relevant studies

into human rights issues and also provide assistance to the Federal, State, and Local

Governments concerning the formulation of appropriate human rights policies.14 The

NHRC has a duty to sensitise members of the public to human rights issues by

organising both local and international seminars, workshops and conferences.15

The Act also imposes a legal obligation on the NHRC to publish periodic reports on

the state of human rights protection in Nigeria.16 These reports are to be submitted to

the executive, legislative, and judicial branches of government as well as to state and

local governments.17 Pursuant to this mandate, for instance, the NHRC issued a report

9
Section 5(b)
10
Ibid
11
Section 6(1)(d)
12
Section 5(c)
13
Section 6(1)(a)-(b)
14
Section 5(d) (as amended)
15
Section 5(f)
16
Section 5(e) (as amended)
17
Ibid

7
in September 2020 on the farmer-herder crisis in parts of Nigeria’s North-Central

geopolitical zone.18 The NHRC is also mandated to maintain library facilities and

undertake the collection and dissemination of data and materials on human rights

issues.19

The enabling Act contemplates a collaborative role for the NHRC and thus mandates

it to co-operate and liaise with local and international human rights organisations. 20

Although the Act allows the NHRC some discretion in determining the thrust of its

collaborative activities, these must nonetheless be geared towards the advancement,

promotion, and protection of human rights.21 Similarly, the NHRC is also mandated

to participate in all international activities relating to the promotion and protection of

human rights.22

The NHRC also has jurisdiction to receive and investigate complaints relating to

human rights violations. Following its investigations, the Commission is empowered

to make appropriate determinations.23 For instance, the NHRC can lawfully determine

damages or compensation payable in cases involving a violation of human rights.24

The functions of the NHRC extend to examination of existing legislation,

administrative provisions, and proposed bills or bye-laws. This function is to be

exercised with a view to determining the conformity of existing or proposed

legislations with human rights norms.25 The Commission has the power to publish

18
See the Report on Farmer-Herder Crisis in Middle Belt Nigeria: https://www.nhrc.gov.ng/activities/report-on-
farmer-herder-crisis-in-middle-belt-nigeria.html
19
Section 5(i)
20
Section 5(g) (as amended)
21
Ibid. See also section 6(1)(f)
22
Section 5(h)
23
Section 5(j)
24
Section 6(1)(e)
25
Section 5(k)

8
guidelines concerning the avoidance of acts and practices with respect to its statutory

functions.26

Consistent with its core obligations, the Commission is also required to promote public

discussion of human rights issues in Nigeria27 and organise research and educational

programmes aimed at human rights protection and promotion.28 Such research

programmes may be organised by the Commission on its own initiative, or upon the

request of any of the different tiers of government – federal, state, or local.29

The Commission is also expected to issue reports concerning the enactment of

legislation on human rights issues.30 The enabling law also contemplates a role for the

Commission in the area of alternative dispute resolution. As such, the NHRC can act

as a conciliator, in appropriate cases, between parties to a complaint.31 With respect to

relevant international human rights instruments, the Commission is legally

empowered to report on actions that should be taken by the different tiers of

government to ensure compliance. This function may be exercised by the Commission

suo motu or upon request by any tier of government.32

When a case of human rights violation requires the institution of criminal proceedings,

the Commission can refer it to the State or Federal Attorney-General for prosecution.33

It is noteworthy that the Commission has the power to intervene in court proceedings

involving human rights issues when it considers it appropriate to do so.34 However,

26
Section 5(l)
27
Section 5(m)
28
Section 5(n)
29
Ibid
30
Ibid
31
Section 5(q)
32
Section 5(o)
33
Section 5(p)
34
Section 5(r)

9
such intervention must be based on leave of the court hearing the proceedings and

must also conform to any conditions imposed by the court.35

Finally, the HRC is also legally empowered, by virtue of an omnibus provision in its

enabling law, to discharge functions that are necessary or incidental to its statutory

mandates.36

From the foregoing, the functions of the NHRC may thus be conceptualised according

to seven major categories:

i. Promotional and Edificatory Functions (promoting human rights

causes and edifying the public through human rights educational

programmes).

ii. Remedial Functions (assisting victims of human rights abuses obtain

remedies; instituting civil action; determining payments of

compensation; and facilitating alternative dispute resolution).

iii. Advisory/Recommendatory Functions (advising state organs on

compliance with human rights standards and recommending

appropriate action).

iv. Monitoring functions (monitoring compliance with human rights

standards; scrutinising existing and proposed legislation; reporting on

appropriate action by state organs).

v. Investigative functions (investigating cases involving human rights

violations and related issues).

vi. Research-related functions (issuing reports and undertaking

studies on human rights issues and maintaining research facilities).

35
Ibid
36
Section 5(s)

10
 vii. Collaborative functions (collaborating with local and international

organisations and stakeholders in the field of human rights).

Points to ponder: Should the NHRC be granted independent prosecutorial power in

criminal cases involving human rights violations?

5.0. EVALUATING THE NHRC’S PERFORMANCE

The performance of the NHRC has been a mixed bag of shortcomings and success.

Some commentators, such as Prof. Oyelowo Oyewo, assert that the Commission has

performed creditably. As such, he characterises it as ‘one of the most effective

administrative non-judicial [institutions] investigating complaints, grievances and

petitions against violations of human rights, maladministration, abuse of power, and

injustice on the part of the administration.’37

Other scholars such as Okafor & Agbakwa note that the NHRC has recorded

considerable success in some areas like the protection of prisoners’ rights and positive

collaboration with human rights organisations and stakeholders. However, they also

highlight some of the shortcomings of the Commission. As they put it:

The [National Human Rights Commission] has not performed as creditably in

some other areas. It has failed to profoundly affect as much as it could the
overall human rights situation in Nigeria. It lacks some of the powers that are
necessary to do its work effectively; has not been as physically accessible as
possible to the bulk of Nigeria's mass urban poor or mass rural dwellers; has
not been funded adequately; has not connected as much as is possible with the
voices of suffering that form a huge segment of Nigeria's population, and has
not been successful in getting the legislature and the executive to "domesticate"
most of the human rights instruments that have been ratified by Nigeria.

37
Oyelowo Oyewo, Modern Administrative Law and Practice in Nigeria (Lagos: Unilag Press, 2016) 284

11
 As a Nigerian high court judge has put it, while the [NHRC] has probably
transformed positively the human rights situation of most Nigerian prisoners
and detainees, it has not been as successful regarding other areas of human
rights promotion and protection, such as the treatment of women, the state of
the educational system, the treatment of students' union activists, and the
environment.

Still, the [NHRC’s] flexible procedures, educational and preventive orientation,

and its ability to investigate and adjudicate complaints at minimal costs (if any
at all) to the complainant commend it to the poor, the needy and the oppressed
as a potentially effective and credible alternative to the often highly technical
and expensive procedures of the regular courts.

Yet, despite its comparative advantage in some areas vis-a-vis the regular
courts, the future of the [NHRC] could be bleak if the government does not
sufficiently empower and resource it, and if it does not reinvent itself so as to
be much more proactive, mass-oriented than it has been so far.38

5.1. SOME FACTORS INHIBITING EFFECTIVE PERFORMANCE OF THE

NHRC’S FUNCTIONS

i. An Urban-Oriented and Elitist Outlook

The NHRC has been criticised for having an elitist outlook and concentrating its efforts

on programmes and activities on the urban-based elite. Consequently, the

Commission may be conceptualised from the standpoint of people living in rural

communities as a relatively remote and inaccessible institution. To perform its

functions more effectively, the NHRC will have to enhance its presence in rural

communities and cater, to an even greater degree, to the interests of the grassroots of

Nigerian society.

38
Okafor & Agbakwa, ‘On Legalism, Popular Agency and "Voices of Suffering" (supra) p. 718

12
 ii. A widespread lack of Constitutional Literacy

The effective performance of some of the NHRC’s functions is, ironically,

undermined by a general lack of constitutional literacy in the country. According

to Charles Fombad, the concept of constitutional literacy refers to the capacity of

citizens to effectively grasp the meaning, scope, and implications of their rights and

duties within the context of a constitutional democracy. 39 In a social context

characterised by widespread ignorance about constitutional rights, democratic

norms and human rights standards, most people may lack the ability to recognise

cases of human rights infringement. This situation, in turn, affects their ability to

leverage remedial mechanisms like the National Human Rights Commission. It is

important to note that the dearth of constitutional literacy in Nigeria is largely a

product of the country’s historical experience of decades of military dictatorships

during which human rights were routinely violated and suppressed.

iii. Lack of Political Will to Sanction Violators of Human Rights

The efficacy of the NHRC is also impacted by political interference and a lack of

political will to sanction violators of human rights. Furthermore, the NHRC is required

to have recourse to Attorneys-General to ensure criminal prosecution or initiate

criminal proceedings. As such, it cannot always guarantee that persons implicated in

human rights abuses will be held accountable particularly when powerful interests are

involved.

39
Charles Manga Fombad, Constitutional literacy in Africa: challenges and prospects (2018) 44(3)
Commonwealth Law Bulletin 492

13
 iv. Insufficient Attention to the Plight of Vulnerable Social Groups

Whilst it has made some commendable efforts in this area, the NHRC can still do more

to draw national attention towards issues affecting some minority groups and

vulnerable social groups.40 However, the NHRC’s capacity to place the rights of

vulnerable groups at the centre of the national human rights agenda is constrained by

some socio-cultural and other structural factors. For instance, in 2016 a Gender and

Equal Opportunities Bill was defeated in the Senate. The proposed legislation sought

to protect Nigerian women from discriminatory practices and give domestic legal

effect to some international human rights instruments like the UN Convention on the

Elimination of all forms of Discrimination against Women. Nonetheless, the Bill was

firmly opposed and rejected by some senators on religious and cultural grounds.

v. Preference for Judicial Remedial Mechanisms

The efficacy of the NHRC is inhibited to a certain degree by commonly held

perceptions that judicial remedies are preferrable to administrative remedial

mechanisms. Thus, persons affected by human rights violations may prefer to seek

judicial reliefs rather than have recourse to administrative mechanisms like the

NHRC. Again, some aspects of the Commission’s mandate may be regarded as

involving a duplication of functions. For instance, section 5(k) of the National Human

Rights Commission Act (as amended) which empowers the Commission to examine

legislation for conformity with human rights norms may be regarded as overlapping

40
Examples of vulnerable social groups include children, economically disadvantaged persons and communities,
ethnic minorities, people living with disabilities, sexual minorities, the elderly, religious minorities, internally
displaced persons, the homeless etc.

14
with the powers of courts to undertake judicial review of legislation.41 In order to fulfil

its statutory obligations, the NHRC must grapple – to a certain degree – with

perceptions that administrative remedial mechanisms are inferior to judicial

alternatives.

vi. Lack of Constitutional Status

Although the NHRC is duly established by law, its legal status, arguably, falls short of

standards applicable in other jurisdictions. In South Africa, for instance, the functions

and powers of the Human Rights Commission are enshrined in the Constitution.42

Furthermore, the South African Human Rights Commission is expressly recognised in

the constitutional text as a State institution supporting constitutional democracy.

By contrast, Nigeria’s NHRC is establised by ordinary legislation. The lack of

constitutional status leaves it vulnerable to having its powers and functions altered (or

whittled down) by mere compliance with ordinary – and relatively less rigorous -

legislative procedures. There are good grounds for arguing that constitutional

recognition would better enhance the status and institutional independence of the

NHRC and fortify its capacity to fulfil its mandates.

vii. Legitimacy Deficits

When the NHRC was established in 1995 by the Abacha regime – notorious for

political repression and brazen human rights abuses – it was widely viewed with

suspicion and cynicism. Following the restoration of civilian rule in 1999, the NHRC

attempted to rehabilitate its institutional reputation by participating in the

proceedings of the Human Rights Violations Investigations Commission (also known

41
However, the review functions of Commission appear to be somewhat wider than the ordinary scope of judicial
review insofar as it extends to proposed legislation.
42
See s. 184 of the Constitution of the Republic of South Africa.

15
as the ‘Oputa Panel’), which was convened to investigate cases of human rights abuses

that largely occurred during military rule. However, some commentators have argued

that the fact that this investigative function was assigned to the Oputa Panel, rather

than the NHRC, was due to public perceptions of the Commission as a relic of military

rule.

At present, there are indications that the NHRC is taking concrete steps to reposition

itself as an institution worthy of public confidence. For instance, in line with its

mandate, it has made far-reaching recommendations on the reform of the Nigerian

criminal justice sector, inter alia. During the recent #EndSARS protests in 2020, the

NHRC supported the campaign against police brutality and urged Nigerians to lodge

complaints of human rights abuses against the security forces including the notorious

Special Anti-Robbery Squad (SARS) of the Nigerian Police.

In the final analysis, the Commission’s capacity to effectively discharge its obligations

towards the human rights community and the broader Nigerian society will largely

depend on public perceptions concerning its institutional legitimacy and credibility.

16