Justice James Omotosho of the Federal High Court Abuja has dismissed a suit seeking to stop the Minister of FCT, Nyesom Wike, and the Abuja Environmental Protection Board (AEPB) from arresting and prosecuting Commercial Sex Workers (CSWs) in Abuja.

Delivering judgement, Justice Omotosho, held that the application of the plaintiff was incompetent under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

Justice Omotosho held that even if it was competent, the reliefs sought were not grantable and thus,  the suit was hereby dismissed for lack of merit.

The plaintiff, under the auspices of the Incorporated Trustee of Lawyers Alert Initiative for Protecting the Rights of Children, Women and the Indigent, had instituted the suit.

The group sued the AEPB, FCT Minister, Federal Capital Territory Administration (FCTA) and the Attorney-General of the Federation (AGF) as 1st to 4th respondents respectively.

The originating summons was brought pursuant to Order 3, Rule 6 and 9 of the FHC (Civil Procedure Rules, 2019; Sections 6(6)(b), 41(1), and 42 of the 1999 Constitution (as amended) and under the inherent jurisdiction of the court.

In the suit, the lawyers prayed the court to determine whether the duties of the AEPB under Section 6 of the AEPB Act, 1997, extend to the harassment, arrest, detention and prosecution of women suspected of engaging in sex work on the streets of Abuja.

They sought a declaration that the charge made by the personnel of the AEPB before the FCT Mobile Court, which referred to arrested women suspected of engaging in sex work as ‘articles’ and considered their bodies as ‘goods for purchase,’ is discriminatory and violated the provisions of Section 42 of the 1999 Constitution.

The lawyers, therefore, prayed to the court for an order restraining the AEPB, its agents or privies, from harassing, arresting and raiding women suspected of engaging in sex work on the streets of Abuja.

They sought an order restraining the 1st respondent (AEPB), her agents or privies from prosecuting women suspected of engaging in sex work on the streets of Abuja under Section 35(1) (d) of the AEPB Act, 1997.

They equally sought an order directing all the respondents to ensure proper application of the provisions of the Abuja Environmental Protect Act, 1997, by the 1st respondent.

But in a counter affidavit jointly filed by the minister, AEPB and FCTA by their lawyer, Betty Umegbulem, the respondents prayed the court to dismiss the case.

They denied all the averments in the applicant’s affidavit.

Ahmed Gidado, a Legal Assistant, who deposed to the counter affidavit, said the applicant did not file any case against the 1st to 3rd respondents in 2019 as alleged in a previous judgment exhibited in the suit.

He argued that the exhibit attached therein was for a case filed by one Ms Mirabel Ojimba and not the applicant.

According to him, this honourable court cannot rely on a judgment which is not signed by the presiding judge and duly certified.

He said the applicant did not present any evidence to prove that any woman was harassed or arrested by the AEPB.

He argued that the applicant did not state how its fundamental human rights were violated and which of the rights was violated by the 1st to 3rd respondents to warrant the filing of the action.

The officer averred that the applicant was not the person whose fundamental human rights were allegedly violated by the 1st to 3rd respondents.

“The person (s) alleged to have been harassed, arrested or raided by the 1st to 3rd respondents are not before the court to narrate their side of the story,” he added.

Gidado said the applicant did not specifically mention the rights (as outlined in Chapter IV of the Constitution) violated by the 1st to 3rd respondents to enable the respondents to reply to the issues appropriately.

Gidado, who argued that the applicant’s prayers were not in line with the Fundamental Rights Enforcement Procedure Rules 2009, said fundamental human right cannot be enforced by another person who is not the victim of violation.

Also, the AGF, in his counter-affidavit deposed to by Barnabas Onoja, a Litigation Officer, argued that all the facts, as presented by the applicant, were untrue and misleading.

Onoja said contrary to the applicant’s submission, the AGF never received any pre-action notice from the applicant and that his office was only aware of the present suit upon the receipt of the processes.

He said the AGF does not act as a supervisory officer over the activities of every security or federal government agency.

Delivering the judgment, Justice Omotosho formulated three issues for determination.

These included “whether the applicant can bring an action to enforce the rights of a group of persons, whether this fundamental rights suit is within the jurisdiction of this court in view of the claim of the applicant and whether the reliefs sought can be granted in the circumstances.”

The judge said the applicant, a Non-Governmental Organisation (NGO), which brought the suit to enforce the rights of women engaging in sex work on the streets of Abuja, cannot be stopped from bringing the action as it was well within the law to do so.

“Consequently, issue one is resolved in favour of the applicant,” he ruled.

The judge said though the right to freedom from discrimination was claimed as the first relief, “the facts and circumstances before this court show that it is simply ancillary to the main claim as regards the provision of the Abuja Environmental Protection Act, 1997.

“The import of this is that the suit cannot be competently taken under the fundamental rights enforcement procedure. Consequently, this issue is resolved against the applicant.”

Citing Chapter IV of the 1999 Constitution (as amended), the judge examined what constituted enforceable human rights in Nigeria.

“The clear indication of the above provision is that only rights provided under Chapter IV is actionable,” he said, citing previous cases to back his decision.

He said the fundamental right against discrimination is found under Section 42 of the constitution.

“The applicant has brought this suit to enforce the rights of women suspected of engaging in sex work on the streets of Abuja.

“The applicant argued that these women should not be arrested and prosecuted by the 1st respondent (AEPB) for engaging in sex work as their male counterparts are usually not arrested.

“In a way, the applicant is advocating that women engaging in sex work should be allowed to go about their profession without restraint.

“The position taken by the applicant on this issue is, without doubt, reprehensible and ridiculous.

“These women whom the applicant is suing for are to use the proper word, ‘prostitutes’ and their profession is ‘prostitution.’ This court wonders if prostitution has become legal in the Federal Capital Territory (FCT).

“Under the Penal Code Act which is operational in the FCT, prostitutes are regarded as vagabonds under Section 405 (1) (d),” he said.

Justice Omotosho, who equally cited Sections 405(2)(d) and 407 of the Act, said “The import of the above provisions is that prostitution constitutes an offence under the Penal Code Act.”

According to him, it must be stated here that fundamental human rights in Nigeria are not absolute in operation.

“There are instances which warrant a legal breach of some rights. A common instance is for the arrest of a person suspected of committing an offence under Section 35 (1) (c) of the 1999 Constitution (as amended).”

Citing Supreme Court previous cases, Omotosho held that it was clear from the above authorities that suspicion of committing an offence is a legal ground to breach the right of a person.

“The women suspected of engaging in sex work on the streets of Abuja or prostitutes or vagabonds are by their actions allegedly committing an offence and thus their fundamental rights can be legally breached by the 1st respondent.

“Holding a different opinion would mean that a person arrested in the process of robbing others can claim to be entitled to his fundamental rights to personal liberty and freedom. This would cause anarchy and chaos In the society,” he said

According to him, assuming that prostitution is not an offence in the FCT, the rights of these prostitutes can legally be violated under Section 45 of the constitution which allows the breach of a person’s right on grounds of defence, public safety, public health, public order and public morality.

“It is a known fact that prostitutes are some of the clearest examples of indecency in society and they are champions of immorality through their immoral dressing, exposing sensitive parts of their bodies, their use of vulgar language as well as the chief culprits in spreading sexual diseases.

“Allowing prostitutes to have free rein on the streets of Abuja will, in no time, destroy the moral fibre of the city and turn it into a hotbed of immorality. This court will not allow such to happen,” he said.

Citing the old English case of “Pierce Vs Brooks [1861-73] All Er 102,” the judge said it was clear from the case that “an immoral act can also be termed an illegal act and actions founded on such acts cannot be enforced by law under the doctrine of ex turpi causa non oritur actio.

“In the same way, a suit anchored on the right to engage in prostitution cannot be enforceable anywhere in Nigeria.”

He said the court was not unaware that prostitution had been legalised in some Western nations, including in the Netherlands where prostitutes are now entitled to pensions and other benefits.

“This is not so in Africa. The African Charter on Human and People’s Rights which is one of the Statutes enforced by the Fundamental Rights (Enforcement Procedure) Rules, is clear on what fundamental rights are in Africa.”

He said looking at the preamble to the charter, the culture of Africans must reflect in their idea of what constitutes human rights.

“This philosophy is what is known as cultural relativism in the framework of human rights.

“The counterpoint to this is universality which posits that human rights should be the same in all places and should apply to persons irrespective of their culture, religion, race, gender or other differences.

“The idea behind universalism is to ensure uniformity in human rights development. Universality of human rights directly led to the drafting of the Universal Declaration of Human Rights which is the first global human rights document.

“While it is theoretically sound, universalism if applied would offend the unique cultures of some people.

“For instance, the right to same-sex marriage which is acceptable in Western nations like the United Kingdom will be deeply unacceptable to conservative and religious nations like Arab nations.

“Thus, cultural relativism means that these nations can choose which of these rights to adopt or not.

“This explains why some conservative nations exercise their right to reservation regarding several sections of the Universal Declaration of Human Rights which are in conflict with their cultural beliefs.”

The judge said Nigeria is an African nation with deeply cultural norms that guide everyday conduct.

“I daresay that prostitution is and has never been part of our culture.

“Prostitution or ‘Olosho’ and ‘Ashewo’ as the Yorubas call it, ‘Akwuna-Akwuna’ as the Igbos call it, ‘Karuwa’ as the Hausas call it or ‘Hookup’ as the young people say it, is alien to our culture.

“It has been frowned upon as a deeply immoral act worthy of shame. The fact that civilisation and westernisation has taken some root in Nigeria still does not make it right.

“Even in some Western countries, prostitution is still seen as an immoral act. In the United States of America for instance, apart from a few counties in the state of Nevada, prostitution or sex work is illegal in the other 50 states of the US.

“There is no justification for prostitution in Nigeria in the context of our cultural norms and tradition and in fact, prostitution is an anathema in Africa,” he said.

Justice Omotosho held that the prostitutes which the group sought to protect “are vagabonds” and the AEPB is well within its right to arrest and prosecute them as they constitute a nuisance in the FCT and are committing an offence by parading themselves as “women of easy virtue.”

“I, therefore, hold that this application filed by the applicant has no basis and the rights claimed are unenforceable in light of the provisions of Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Preamble to the African Charter on Human and Peoples Rights.

“I must also say here that this court is bemused by this instant application filed by the applicant which is a Civil Society Organisation set up to protect the rights of girls and women.

“This court wonders what kind of message the applicant is sending when it decided to bring an action to protect prostitutes.

“A reasonable person would have expected that the applicant would instead occupy itself with developing the girl child and protecting the sanctity of womanhood instead of promoting immorality and the spread of sexual diseases.

“It is indeed shameful that the applicant should file an action such as this,” the judge held.

Justice Omotosho also further held that the judgment of a sister court in suit number: FHC/ABJ/CS/971/2019, exhibited by the group was only of slight persuasive authority.

The judge said he was not bound by the decision of the brother judge being a court of coordinate jurisdiction, citing a Court of Appeal’s previous case to back his decision.