The Constitutional Right to Fair Hearing is not ‘Beautiful For All Situations’ says the Supreme Court


By Olumide Babalola

The Constitutional Right to Fair Hearing is not ‘Beautiful For All Situations’ says the Supreme Court in Emeka v Okorafor (2017) LPELR – 41738(SC)

My topic is inspired by King David in the Bible where he sings praises of Mount Zion ‘as beautiful for situation and the joy of the whole earth.’ (see Psalm 48:2 King James Version). Among legal practitioners in Nigeria, even though, we are quick to wield the constitutional right to fair hearing as a magic wand in all situations where a victim is sanctioned without an opportunity to be heard, since 2017, the Supreme Court had ruled that section 36(1) of the Constitution is not applicable in all situations of denial of hearing. Undeniably, so much has been written about the right to fair hearing, but this article is confined to the Supreme Court’s decision in Emeka v Okorafor (2017) LPELR – 41738(SC) on fora where section 36(1) of the 1999 Constitution becomes impotent.

Facts of the case
In 2013, Prof. Paul Emeka – the General Superintendent of Assemblies of God Church was accused of corruption and breach of the Church’s constitution in a petition. In response to the petition, Emeka sent a letter to the executive committee (exco) denying the allegations pursuant to which he received a vote of confidence from pastors and other church members. Some members of the exco were not pleased with him and they convened another meeting to deliberate on the allegations but Prof. Emeka refused to attend on the ground of non-compliance with church regulations.

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When some officers who attended the meeting suspended Emeka from church and terminated his appointment as the General Superintendent, he filed an action challenging his dismissal for denial of fair hearing under section 36 of the Constitution among other grounds.

The relevant portion of the decision
In resolving Prof. Emeka’s allegation of denial of fair hearing by the committee, the Supreme Court interestingly ruled that:

“A cursory look at reliefs 2, 3, 4, 5, 6 & 7 claimed by the appellant at the trial reveals that he claims therein ancillary reliefs, i.e. violation of his right to fair hearing guaranteed by Section 36(1) of the Constitution (as amended), in relation to his right to employment or appointment in the Church, a private organization. The charge is not against a Court or tribunal established by law, but against a committee of a Church, a domestic tribunal. it is only when there has been an alleged violation of the right to fair hearing guaranteed by Section 36(1) of the Constitution by a Court or Tribunal established by law that such right to fair hearing can be enforced under the FREPR.” (Emphasis mine)

My brief comments

The decision above is clear to the extent that fair hearing under section 36(1) of the Constitution is not applicable to all dispute-resolving bodies or entities. For the avoidance of doubt, the section expressly provides that:

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. (Emphasis mine)
Since the provision above is fixated on courts or tribunals established by law, it is advisable that, in challenging the decisions or omissions of other entitiies not covered by this provision, reliance should be placed on relevant provisions of the African Charter on Human and Peoples Rights or other enactments on fair hearing.
Conclusively, the decision under review has once again exposed the inelegant drafting that plagues the 1999 Constitution and the urgent need for reviews as far as fundamental rights are concerned.

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