Justiciability Of Chapter Two Of 1999 Constitution (as amended): Need For The Nigerian Judicial System To Be More Proactive

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NOTWITHSTANDING the several decisions of domestic and regional courts which have upheld the socio-economic rights of the people, lawyers and judges have continued to give the misleading impression that only civil and political aspects of fundamental rights are enforceable in Nigeria.

Thus, victims of violations of socio-economic rights have been left without access to the remedies provided by law.

To compound the crisis, some judges in the High Courts have continued to invoke the anachronistic doctrine of locus standi to dismiss or strike out public interest cases filed by public interest litigators to secure the enforcement of socio-economic rights of disadvantaged citizens or groups.

This paper challenges the notion that socio-economic rights are not justiciable or enforceable by Nigerian courts and sets out the trends in the justiciability of the fundamental objectives and directive principles of state policy enshrined in Chapter II of the 1999 Nigerian Constitution.

In our contribution to the debate, we intend to question the ‘marginalisation’ of socio-economic rights by drawing attention to the gradual evolution of relevant laws and progressive judicial decisions on socio-economic rights in Nigeria. 

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Justiciability of socio-economic rights: In 1966, the Human Rights Commission drafted two important international documents: the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights to have a legally binding effect on states that ratified the documents. Nigeria has ratified both covenants but has not domesticated them.

However, many countries have denied the existence of social and economic rights and refuse to give them any legal character. Some jurists argue that socio-economic rights do not constitute legal norms but only guiding principles.

At the regional level, the member states of the African Union adopted the African Charter on Human and Peoples’ Rights in 1986. Apart from ratifying the African Charter the Federal Government domesticated it.

The African Charter contains political and civil rights as well as socio-economic rights and solidarity rights. The socio-economic rights include the right to work, freedom of association, right to representation in public office, right to education, right to health, right of equal access to public property, right of women and children recognised in all international conventions and treaties.

Civil and political rights as enshrined in the International Covenant on Civil and Political Rights, are regarded as first-generation rights, while economic, social and cultural rights, as laid out in the International Covenant on Economic, Social and Cultural Rights are regarded as second-generation rights.

Unlike the first generation rights which may be enforced by individuals, the second generation rights require institutional support from the state.

Socio-economic rights are enshrined in Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria. They are part of the fundamental objectives and directive principle of state policy. As far as members of the ruling class are concerned, they are the ideals towards which the nation is expected to strive in order to meet socio-economic rights for the citizenry.

It has been said that “… the pull for the Chapter II of the 1979 Constitution, which is also incorporated in the 1999 Constitution, was actually the Minority Report of Osoba and Usman that we are celebrating today. Although the undeniably progressive provisions of Chapter II have been cynically made non-justiciable, the whole chapter itself was a backhanded response to the ideological and political pressures generated by Osoba and Usman’s report and draft in their own categorically radical draft. It was a concession the majority members of the CDC were forced to make to Osoba and Usman. But the majority of members of the CDC gave the people socio-economic rights in Chapter II of the 1979 Constitution with one hand and took away the rights with the other hand by the non-justiciable Clause.

Since then the struggle has been shifted to the courts and the push for enactment of laws to back up policies tailored to secure socio-economic rights for the people. Hence, we have had the emergence of legislations backing funding of basic education and primary healthcare and policies on social housing, social insurance and financial inclusion. It must be admitted that all these are at best palliatives and they are never a substitute to the constitutionally- enshrined provisions for social-economic rights.”

It is submitted that social and economic rights are interconnected to a broad range of political and civil rights. For example, the right to life is negated when there is the absence of the right to food. Furthermore, the right to dignity is defeated if there is no right to affordable housing. Most crucially, it ought to be pointed out that the individual needs socio-economic rights for the realisation and enjoyment of the right to exist. In other words, the right to health is connected to political, economic and social welfare and safety for all citizens of Nigeria. Its enforceability is crucial for the sustenance of Nigeria.

The lack of which may result in human insecurity, widespread diseases and endemic infections lack of access to health care, all resulting in deprivation, as well as a retarded economic development and poor standards of living.

The preamble of the Charter affirms that: “Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights…”

It is important to understand that the fundamental right to life enshrined in section 33 of the 1999 Constitution should not be interpreted rigidly as the right to life does not mean the right to life alone, it also entails that health emanates from the Right to life and since life is considered to be precious, it must not be interpreted narrowly, as it also includes, the right to shelter, clothing amongst others. There are many health-related laws but they have not been implemented to the benefit of the majority of citizens.

Since fundamental rights are enforceable and the Directive Principles are not, then Directive Principles must conform to and run ancillary to fundamental rights for them to be enforceable. This perceptive has been resonated by the Supreme Court of India, in the cases of Francis Coralie v Union Territory of India, where it held that:

The right to life includes the right to live with human dignity and all that goes with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter, … the magnitude and components of this right would depend upon the extent of economic development of the country, but it must, in any view of the matter, include the bare necessities of life …The fundamental right to life, which is the most precious human right.., must be interpreted in a broad and expansive spirit so as to invest It with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person, we think that the right to life inc1ude the right to live with dignity and all that goes with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter.

Under the Nigerian Constitution, human rights are divided into two categories: civil and political rights, which are justiciable under Chapter four of the 1999 Federal Republic of Nigeria Constitution, as well as economic, social, and cultural rights, which are non-justiciable under Chapter two thereof. But section 6(6) (c) of the Constitution has stripped the judiciary of its authority in matters pertaining to Chapter 2. As a result, it represents a significant hindrance to socio-economic growth. The continued non-justiciability of Chapter 2 has resulted in a lack of development and non-accountability by the government.

In Archbishop Anthony Olubunmi Okogie [Trustee of Roman-Catholic School v. Attorney-General of Lagos State, the court held that the fundamental objectives and directive principles of state policy are non-justiciable and that Nigerian courts lack jurisdiction to adjudicate on them.

Notwithstanding the apparent non-justiciability of the fundamental objectives, the executive, legislative and judicial arms of government are under a constitutional requirement to enforce socio-economic rights.

The legal obstacle in ensuring that socio-economic rights are justiciable is due to the fact that the Nigerian Constitution has constitutionally made socio-economic rights to be non-justiciable. In the case of Federal Republic of Nigeria v Aneche & 3 Ors, Niki Tobi[4] (JSC) in interpreting section 6 (6) (c) held that: In my view, section 6 (6) (c) of the Constitution is neither total nor sacrosanct as the section provides a leeway using the words “except as otherwise provided by this Constitution”.

This means that if the Constitution otherwise provides in another section, which makes a section or sections of chapter 11 justiciable, it will be so interpreted by the courts. It is quite clear that the Constitution is supreme and any other law that is inconsistent with its provisions are null and void to the extent of its inconsistency.

Given the fact that socio-economic rights are not justiciable under the Nigerian Constitution while they are justiciable under the African Charter, some jurists have questioned the constitutional validity of the African Charter. It is submitted that by virtue of Section 12 of the Nigerian Constitution, international treaties shall have the force of law when enacted into law by the National Assembly.

To that extent the   African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 is valid legislation having been enacted pursuant to section 12 of the Constitution.

It is further submitted that despite the legal obstruction in enforcing socio-economic rights of Nigerians, item 60 in the Exclusive Legislative has empowered the national assembly to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution. This implies that the legislative arm of government has the power to enact laws to make the provisions of chapter II justifiable.

In the case of Attorney-General, Ondo State v Attorney-General, Federation of Nigeria

[6], the Supreme Court held that notwithstanding the non-justiciable nature of the provisions of Chapter two, it would amount to a deficiency of obligation on the part of the branches of governments if they acted in contempt of the fundamental objectives and directive principles of state policy.

In view of the fact that the provisions of the Fundamental Objectives and Directive Principles in Chapter 2 have been subjected to judicial interpretation by Nigerian courts, it is pertinent to review the provisions of sections 13-24 of the Constitution.

The review will examine the laws made pursuant to chapter two of the Constitution and the decisions of domestic and regional courts on socioeconomic rights.

Section 13- The Government and the People

All authorities and persons exercising legislative, executive and judicial powers are under a legal obligation to conform to, observe and apply the provisions of chapter 2 of the Constitution. While it may be said that section 13 is not justiciable the provisions of the Constitution which require all senior members of the executive, legislative and judicial organs of government to take Oath of Allegiance and Office are binding.

In taking the oaths the said public officers undertake to promote the fundamental objectives[7] outlined in chapter two of the Constitution. Furthermore, all registered political parties are required to adopt the fundamental objectives as part of their aims and objectives.  

It is therefore submitted that notwithstanding the provision of section 6(6)(c) of the Constitution elected officials may be sued for violating the undertaking to preserve the fundamental objectives. In AG Ondo v AG of the Federation(supra) Uwais CJN (as he then was) said that “the provisions of section 13 thereof apply to ‘all organs of government, and all authorities and persons exercising legislative, executive and judicial powers. The sections do not distinguish between federal, state and local governments.” 

Section 14-The Government and the People: Section 14 provides for the security and welfare of the people,  participatory democracy and composition of the government in a manner that reflects federal character.

Sections 214-218 provide for the maintenance of the internal and external security of the nation. Specifically, the Police Establishment Act and Armed Forces Act have spelt out the rights and duties of members of the armed forces and the police.  

Other laws have established paramilitary and other security agencies. However, the nation has been subjected to insecurity due to gross mismanagement and criminal diversion of the huge fund earmarked for defence in the annual Appropriation Act of the Federal Government.

In the same vein, the security and welfare of the people have been abandoned by the Government due to the zealous implementation of neoliberal economic policies. Thus, the dubious privatisation of the economy and control of the same by imperialism have continued to promote poverty in the country.   

Apart from banning unconstitutional change of government, the Constitution has made provisions for the periodic election of all political representatives in line with the provisions of the Electoral Act.  In addition, each State Government has an electoral law to regulate the election of local government officials. The federal character principle enshrined in section 14 (3) & (4) of the Constitution is designed to ensure that the Federal, State and Local Governments are constituted in a manner that no particular ethnic or religious group.

The Federal Character Commission is one of the federal executive bodies established by section 153 of the Constitution with the responsibility to ensure that the principle of Federal character is reflected in all appointments. For the avoidance of doubt, the Federal Character Commission Act provides for the realisation of the objective.

Both the Federal Character Commission and the Federal Civil Service Commission are peopled by the representatives of every State in the country.

It is our strong view that the lopsided appointments made by the Federal Government can be challenged under the Federal Character Commission Act and the Constitution. 

Section 15-Political Objectives: The State shall encourage national integration and prohibit discrimination in all its ramifications. For the purpose of promoting national integration, the State shall guarantee adequate for free mobility of people, goods and services throughout the Federation, secure full residence rights for every citizen, encourage intermarriage among people from different religious, ethnic or linguistic ties, foster a sense of belonging among the various people of the federation.

The State shall abolish corruption and abuse of power.  

Some individual lawyers have challenged the restriction of their movement due to the seizure of their passports by the State Security Service. See Director, State Security Service v Olisa Agbakoba[8]  , G.O.K. Ajayi v Attorney-General of the Federation[9].

In the Governor of Delta State & 2 Ors v, Olukunle Ogheneovo Edun Esq

[10]  the Court of Appeal (per Ekanem JCA) held that “The Vehicle Inspection Officers went beyond the powers vested in them by the law and the Road Traffic Regulations, by violently stopping the private motor vehicle of the Respondent on a public highway, using menacing tactics and dangerous implements to demand Certificate of Road Worthiness which the said vehicle is not required to have. Such conduct sends a wrong signal to the citizens who may adopt such strong-arm tactics as a means of settling disputes”. 

In Femi Falana v Attorney-General of the Federation

[11] the plaintiff had prayed the Federal High Court to declare the abolition of the People’s Bank of Nigeria illegal and order the Federal Government to re-establish the Bank on the ground that the law establishing it had not been repealed by the National Assembly.

In opposing the case, the Attorney-General challenged the locus standi of the plaintiff to institute the action and the competence of the suit on the ground that it was statute-barred.

In his reply to the objections to the suit, the Plaintiff who appeared for himself submitted that the doctrine of locus standi has given way to public interest litigation in Nigeria.  

Saying that the federal government has acknowledged that poverty was on the increase in the country, the Plaintiff submitted that it was unjust to abolish the bank when the Central Bank of Nigeria had recently bailed out commercial banks, collapsed by the rich and was currently wiping out the toxic debts owed by the same set of few pampered citizens.   

In upholding the contention of the Plaintiff, the judge held that the plaintiff had established his locus standi as a concerned citizen in line with the new trend on legal standing in public interest litigation in Nigeria.  

The judge ruled that since the People’s Bank of Nigeria Act (Cap P7) Laws of the Federation of Nigeria, 2004 is a valid and existing law, the decision to scrap the bank by the federal government is illegal and unconstitutional.

The Judge also said that as a continuous violation, the case was not affected by the Public Officers Protection Act.

Justice Idris, therefore, ordered the federal government to re-establish the bank to continue to give soft loans to underprivileged citizens in line with the provisions of the People’s Bank of Nigeria Act. 

Section 16-Economic Objectives: In order to ensure that the resources of the nation are harnessed to promote the happiness of the people the Government shall control and manage the economy in a manner that the commonwealth is not concentrated in the hands of a few people or a group. Consequently, section 44 (3) of the Constitution states that the entire mineral resources of the nation shall be taken over and vest in the Government of the Federation. See Ag Abia v AG of the Federation[12]. The national assembly shall make laws for the management of the mineral resources. See the Petroleum Industry Act, 2021.  

Section 17-Social Objectives: In promoting the social objectives of the nation the State shall ensure promote equality of rights, obligations and opportunities before the law, the sanctity of the human person, governmental actions shall be humane, exploitation of human and natural resources shall be preserved while the independence, impartiality and integrity of the judiciary shall be secured and maintained.

Accordingly, the State shall direct its policy towards ensuring that all citizens have opportunities to secure adequate means of livelihood and suitable employment, conditions of work are just and humane, health, safety and welfare of persons in employment are safeguarded, there are adequate medical and health facilities for all persons, equal pay for equal work and that children, young persons and the aged are protected while there shall be public assistance in deserving cases.

It is submitted that some of the aforesaid social rights are captured in the fundamental rights enshrined in chapter 4 of the Constitution.  For instance, section 33 provides for the right to life, section 34 provides for the right to dignity of the human person, section 36 provides for the independence of the judiciary while section 42 has abolished discrimination.

This means that social rights which are not justiciable may be enforced under chapter 4 of the Constitution. Furthermore, the national assembly has enacted a number of laws to advance the social rights of the Nigerian people. They include the Labour Act, National Minimum Wage Act, Pension Reforms Act, Employees Compensation Act, National Health Insurance Act, National Health Act, Peoples Bank Act, National HIV/AIDS Agency Act etc. 

Laws for the protection of the rights of the Elderly and people with disabilities: In line with Section 16 (2) (d) of the Nigerian 1999 Constitution which mandates the State to provide adequate social services and improve the quality of life of the elderly the National Senior Citizens Centre Bill has been passed into law as the National Senior Citizens Centre Act, 2017 to cater for the needs of senior citizens (70 and above) in the country.

Pursuant to the law, President   Buhari has approved the take-off of the National Senior Citizens Centre and the constitution of its 12-member board.   

The National Assembly has equally promulgated the  Discrimination Against Persons with Disabilities (Prohibition) Act, 2018. The law has prohibited discrimination on the basis of disability and imposed sanctions including fines and prison sentences on those who contravene the provisions.  On August 24, 2020, President Buhari approved the executive members of the National Commission for Persons with Disabilities. 

Legal Protection of women and children: Article 18(3) of the African Charter on Human and Peoples Rights states that  “The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.” I have argued elsewhere that the implication of the provision is that all international human rights treaties for the protection of women and children are applicable in Nigeria.  

However, Nigeria has ratified the Convention for the Elimination of Discrimination Against Women and Child’s Rights Convention. Pursuant to such ratification the national assembly enacted the Child’s Rights Act which has comprehensively provided for the rights and welfare of every child and the Compulsory, Free, Universal Basic Education Act provides for free and compulsory education for every child from primary to junior secondary school. 

The Violence Against Persons Act was passed into law in a bid to eliminate violence in private and public life; prohibit all forms of violence, including physical, sexual, psychological, domestic, harmful traditional practices; discrimination against persons and to provide maximum protection and effective remedies for victims and punishment of offenders.

The content of the Act is rich in its provisions as it covers most of the prevalent forms of violence in Nigeria today ranging from physical violence; psychological violence; sexual violence; harmful traditional practices; and socio-economic violence.

[13] Under the VAPP Act, rape], spousal battery, forceful ejection from home, forced financial dependence or economic abuse, harmful widowhood practices, female circumcision or genital mutilation, abandonment of children, harmful traditional practices, harmful substance attacks such as acid baths, political violence, forced isolation and separation from family and friends, depriving persons of their liberty, incest, indecent exposure and violence by a state actor (especially government security forces) among others are punishable offences.  

In the case of Nigerian Bar Association v Inspector-General of Police

[14] the claimant questioned the legality of the dismissal of a policewoman who became pregnant when she was not married. The federal high court struck out the case on the ground that the police regulation under which she was dismissed is not unconstitutional. It is doubtful if the attention of the learned trial judge was drawn to the case of Women Empowerment and Legal Aid (WELA) v Attorney-General of the Federation[15]  in which the plaintiff challenged the constitutionality of Regulation 124, which required a female police officer to seek security clearance of her finance before marriage and that she could not marry until after three years in the service. Adah J. (as he then was) found both Regulations discriminatory, unconstitutional and in breach of section 42 of the Constitution and Article 2 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.

18-Right to Education: There are many laws and policies formulated by the Government to that there are equal and adequate educational opportunities at all levels. Apart from promoting science and technology Government is obligated to eradicate illiteracy; and to this end, the Government shall as and when practicable provide(a) free, compulsory and universal primary education;(b) free secondary education; (c) free university education; and (d) free adult literacy programme.

The Child’s Rights Act and the Compulsory, Free Basic Education Act have imposed a duty on the Government to provide free and compulsory education for every child in the country.   But due to the negligence of the Government not less than 16 million children had dropped out of school before the attack on schools by terrorists. Nigeria is said to have the largest number of out of school children in the world. Hence, the SERAP and LEPAD have approached the courts for legal redress.   

In Dr Olisa Agbakoba SAN v Attorney General of the Federation (AGF)and Anor

[16]   the Federal High Court declared as unconstitutional the decades-long state-based, quota system admission into federal government colleges, also known as unity schools. The trial Judge, John Tsoho J., in a ruling on the disparity in admission declared that the action of the Minister of Education in prescribing and applying different requirements for candidates seeking admission into Unity Schools is in violation of Section 42(1) of the 1999 Constitution. The court eventually directed the Minister of Education to apply uniform admission requirements, especially cut-off marks, to all candidates seeking admission into the Unity Schools[17].

In Legal Defence and Assistance Project (LEPAD) v. Federal Ministry of Education[18] Tsoho J. (as he then was) held:

“Having been guided by the pronouncements of the Supreme Court in the case of AG, Ondo State v. AG Federation(supra) I hold that with the enactment by the National Assembly of the Compulsory, Free, Universal Basic Education Act, the specific provisions covered by the Act have become justiciable or enforceable by the Courts”.Consequently, the Court declared that the Federal and State governments are under constitutional obligations to provide financial institutional resources for free, compulsory and universal primary education to junior secondary school education for all qualified Nigerians in fulfilment of the constitutional obligation under Section 18(3)(a) of 1999 Constitutional and Section 2 of the Compulsory, Free, Universal Basic Education Act.  

19. The foreign policy objectives of the Government: Since Africa is said to be the cornerstone of the foreign policy of Nigeria the Government is required to promote African integration and support for African unity. Furthermore, Government shall promote international cooperation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestations; respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication; and promote a just world economic order. 

The Government enacted the Technical Aid Corps to establish the Nigerian Technical Aid Corps, among other things, to share Nigeria’s know-how and expertise with other African, Caribbean and Pacific countries and matters connected therewith. On an annual basis, Nigerian professionals are sent to needy African, Caribbean and Pacific countries by the Federal Government.. 

Section 20-Right to Environment: Pursuant to the obligation to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria the Government has enacted the National Environmental Standards Regulations Agency and National Oil Pollution Agency.  

Both laws provide that all international conventions, treaties, protocols and agreements on the environment shall be applicable in Nigeria.   

In Adediran & Anor. v Interland Transport Ltd

[19], the Supreme Court held that the restriction at common law whereby actions based on a public nuisance could only be instituted by the Attorney-General himself, or in his nominal capacity as a relator to those affected, was null and void, such restriction being in direct conflict with Section 6(6)(b) of the Constitution 1979.

In John Gbemre v Shell Petroleum Development Corporation & 2 Ors

[20] the court ruled that the Associated Gas Reinjection Act and (Continuing Flaring of Gas) Regulations of 2984 which allowed flaring of gas were illegal as they violate the right to life and dignity of the human person guaranteed by sections 33 and 34 of the Constitution and articles 4, 5, and 24 of the African Charter Act.

The locus standi of non-state actors to enforce the fundamental right of people in the oil-producing community was upheld by the Supreme Court in the case of Centre Oil Pollution Watch v. Nigerian National Petroleum Corporation[21], Kekere-Ekun JSC) held that sections 20 and 33 of the 1999 Constitution, as well as Article 24 of the African Charter on Human and Peoples’ Rights, recognize the fundamental rights of the citizenry to a clean and healthy environment to sustain life. 

Section 21-Preservation of Nigerian Cultures: The State shall protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and encourage the development of technological and scientific studies which enhance cultural values. The Courts have struck down customary practices which discriminate against women and girls on the basis of culture. For instance, 

in Ukeje v Ukeje

[22] the Supreme Court annulled the practice of denying female children any share in the estate of their fathers.  See also Mojekwu v Mojekwu [23] 

Section 22- Duty of Mass Media to promote public accountability and transparency: The mass media are obligated to promote public accountability of the Government to the people. To ensure that the duty is effectively carried out the national assembly has enacted the Freedom of Information Act to make information available to citizens by public authorities. In SERAP v Attorney-General. 

Section 23.- Defence of The National Ethics: The national ethics shall be media Discipline, Integrity, Dignity of Labour, Social, Justice, Religious Tolerance, Self-reliance and Patriotism. Under the National Honours Act, the President is empowered by the warrant, to make provision for the award of titles of honour, decorations and dignities to deserving persons.

 Section 24: Duty of Citizens: Every citizen is under a legal obligation to respect the dignity of other citizens; make a positive and useful contribution to the advancement, progress and well-being of the community where he resides;  render assistance to appropriate and lawful agencies in the maintenance of law and order, and declare his income honestly to appropriate and lawful agencies and pay his tax promptly..

The Supreme Court held in Fajemirokun v CCB

[24]that it is the duty of every citizen to report crimes to t police and other law enforcement agencies. In Dododo Sanni v EFCC[25]the Court of Appeal held that citizens have a legal duty to report cases of corruption.

But corruption cannot be dealt with without challenging the political economy of the post-colonial capitalist states in Africa and this is also the view of Article 21 of the African Charter on Human and Peoples’ Rights.

Therefore, States must strive to comply with Article 21 of the African Charter for the enjoyment of socio-economic rights by the masses. However, the duty of citizens to render assistance includes exposing corruption by reporting allegations of corrupt practices.

Enforcement of Socio-economic Rights: No doubt, Nigeria does not embrace the positive constitutionalization of socioeconomic rights majority of them have been made justiciable through legislation and domestication of international human rights treaties and conventions. While the Ecowas Court does not hesitate to enforce the provisions of the African Charter and other relevant human rights instruments domestic courts have continued to hold on to the theory that fundamental objectives are not justiciable.  

Having regard to the state of human rights law regime in Nigeria it is submitted that hujju are seven ways of enforcing socio-economic rights in line with binding judicial authorities and existing laws made pursuant to the provisions of chapter 2 of the Constitution.  

First, victims of socio-economic rights abuse may petition and seek redress in the National Human Rights Commission. The Commission has been vested with the power to apply all international human rights treaties that have been ratified by Nigeria. Second, in view of the interconnectedness between some fundamental objectives and fundamental objectives, it is submitted that socio-economic rights may be enforced via chapter 4 of the Constitution.

For instance, the right to freedom of movement and from discrimination as well as the right to dignity of the human person and right to health may be enforced under the fundamental rights enshrined in Chapter 4 of the Constitution.

The fundamental objectives entrenched in the Indian Constitution are similar to the provisions of Chapter 2 of the Nigerian Constitution. Even though they are also not justiciable the Indian judiciary has, through judicial activism, upheld the socio-economic rights of the people. 

 In Paschim Banga Khet Mazdoor Samity & Others, v State of West Bengal & Another

[26], the Supreme Court of India held: Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life, is, thus, of paramount importance.

The government hospitals run by the state and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on these parts of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21 of the Constitution. 

Third, the breach of the provisions of certain laws that have been enacted pursuant to chapter 2 may be challenged in a competent court.

See the Attorney-General of Ondo State v Attorney-General of the Federation. in the case of Bamidele Aturu v Minister of Petroleum Resources & Ors

[27], the court held in support of the Price Control Act, Adamu Bello, J., held that “By enacting the Price Control Act and the Petroleum Products, the National Assembly working in tandem with the government has made the Economic Objectives in section 16 (1) (b) of the constitution in chapter 11 justiciable.

The enactment is to secure the economic objectives of the state to control the national economy in such a manner as to secure maximum welfare, freedom and happiness of every citizen of Nigeria.”

Thus, in Femi Falana v Attorney-General of the Federation

[28], Idris J. (as he then was, now JCA) granted the reliefs sought by the Claimant and ordered the Federal Government to re-establish the Peoples Bank since its abolition was carried out in contravention of the provisions of the Peoples Bank. Similarly, in LEPAD v Minister of Education the Federal High Court held that every Nigerian child is entitled to free and compulsory education by virtue of the Compulsory, Free Basic Education Act.     

Fourth, by virtue of the Fundamental Rights (Enforcement Procedure)   Rules 2009 the socio-economic rights entrenched in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004 may be enforced in a High Court in the State where a breach has occurred.

The Rules have enjoined all Courts to apply the Universal Declarations of Human Rights and other instruments [including protocols] in the United Nations Human Rights system and the African Charter on Human and Peoples’ Rights and other instruments [including protocols] in the African regional human rights system in the enforcement of the fundamental rights enshrined in Chapter IV of the 1999 Constitution courts. 

In Abacha v Fawehinmi

[29]the Supreme Court held that all arms of government must obey and enforce provisions of the African Charter pursuant to the Ratification Act, save the provisions are suspended or repealed by a later statute.

In the leading judgment of the court, Ogundare J.S.C. rightly held that if there is a conflict between the African Charter Act and another statute, “its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not intend to breach an international obligation.”  

In Joseph Odafe and Ors v. Attorney General of the Federation and Ors

[30] the Court held that the State had a duty to protect the physical health and mental health of inmates of prisons in Nigeria. 

Fifth, the violation of the socio-economic rights of the Nigerian people may be challenged in the Court of Justice of the Economic Community of West African States in Abuja, Nigeria. Being a member state of the regional economic union the Government of Nigeria is bound by Article 15 of the Revised Treaty of the Ecowas to comply with the decisions of the Community Court.  

The Ecowas Court has resisted the moves by Nigeria to cite the provisions of the Constitution to frustrate the enforcement of socio-economic rights.  

In SERAP v. the Federal Republic of Nigeria and Universal Basic Education Commission

[31], the Applicant sought to enforce the right of every Nigerian child to education.

The defendant argued that the Court lacked jurisdiction to hear the case because it dealt with domestic laws and policy which are not within the subject matter jurisdiction of the Court.  

It was further contended by the defendant that the educational objective in the Constitution of Nigeria is non-justiciable and that SERAP lacked locus standi to institute the case as it was not directly affected by the laws sought to be enforced.

The Court dismissed all of the objections and upheld the right of every Nigerian to education in accordance with article 17 of the African Charter. In the celebrated case of  

SERAP v Nigeria & Ors

[32], the ECOWAS Court held that the “violation of the right to an adequate standard of living, including the right to food, to work, to health, to water, to life and human dignity, to a clean and healthy environment; and to economic and social development.”  

Sixth, victims of socioeconomic rights in Nigeria are entitled to file complaints before in the African Commission on Human and Peoples Rights in Banjul, The Gambia. Under the defunct military junta in Nigeria, the Commission provided legal succour for many victims of human rights abuse. See the cases of SERAC v Federal Republic of Nigeria[33]. Civil Liberties Organisation v Nigeria, Constitutional Rights Project v Nigeria[34]. 

Under the current human rights jurisprudence in Africa, victims of socio-economic rights abuse may file cases before the African Court on Human and Peoples Rights in Arusha, Tanzania, However,  aggrieved individuals and Non Governmental Organisations in Nigeria are not competent to approach the African Court on Human and Peoples Rights since the Federal Government has not complied with Article 34 (6) of the Protocol for the Establishment of the Court.

Hence, the cases of Femi Falana v African Union[35]and SERAP v Nigeria

[36], were struck out by the African Court on account of lack of jurisdictional competence. In the same vein, the Court declined to entertain the application of SERAP for an advisory opinion on corruption in Nigeria.   

Seventh, by virtue of section 254C (1) (f) and (h) of the 1999 Constitution, as amended, the National Industrial has been vested with the judicial power to apply and interpret all conventions of the International Labour Organisation ratified by Nigeria.   In several cases, the Court has upheld the socio-economic rights of many Nigerian workers based on the ILO Conventions.

Based on the Constitutional amendment Nigerian workers have been urged to “take advantage of the revolutionary constitutional amendment to enforce their rights guaranteed by  the Constitution, African Charter on Human and Peoples Rights, Universal Declaration of Human Rights,   International Covenant on civil and political rights as well as International Covenant on social, economic and cultural rights.” 

The frustration of enforcement of socio-economic rights by High Court Judges: It is pertinent to note that the Judiciary has begun to play a more constructive role in promoting human rights and public accountability in Nigeria as seen in the case Fiicharles Organ& Ors. v. Nigeria Liquefied Natural Gas Ltd

[37] where it was stated that all organs of government and all authorities and powers are to strictly conform to, observe and apply the provisions of the Constitution, most especially in Chapter 2. But in spite of the clear and unambiguous position of the Supreme Court on locust standi a number of judges in the High Court have continued to strike out cases on socio-economic rights and other public interest cases.

 As if that is not enough, heavy fines are imposed on the claimants for dragging the Government to Court to account for official impunity. It is submitted that such decisions constitute judicial misconduct as they fly in the face of the judgment of the Supreme Court in the case of Gani Fawehinmi v Col Halilu Akilu

[38] where the decision of the apex court in the case of Abraham Adesanya v The President[39]   was consigned to the dustbin of history. 

In jettisoning the anachronistic doctrine of locus standi in  Fawehinmi v The President

[40], Aboki JCA (as he then was, now JSC) made it abundantly clear that illegal actions of the Government would be left unchallenged if a concerned citizen like the Appellant was chased out of the temple of justice on the grounds that only the Attorney-General could sue the Government of which he is a part.   For the avoidance of doubt, the Supreme Court held in Centre for Oil Pollution Watch v NNPC

[41] that the appellant had locus standi to enforce the right of an oil-producing community to the environment as the rule of locus standi has given way to public interest litigation in Nigeria.   In view of the undeniable fact that the appellate has jettisoned the doctrine of locus standi it is submitted that all courts are duty-bound to desist from striking out public interest cases for want of locus standi.     

In Ganiat Amope Dilly v Inspector-General of Police & Ors

[42]   the Court of Appeal held that by the combined effect of the Constitution, African Charter and the Universal Declaration of Human Rights the right of a dead person to life can be litigated upon in court by family members under the Fundamental Rights (Enforcement Procedure) Rules, 2009. Augie J.C.A (as she then was) stated that “The right to life of a dead person can be litigated in the court.

Failure to address such violations will create a monstrous situation where infractions will continue unabated and without redress thereby reducing such fundamental right to chase shadows or hold the wind.

And definitely, it will be contrary to the constitutionally guaranteed right to life, the African Charter on Human Rights and United Nations Universal Declaration of Human Rights, 1948 too. No court should be part of such retrogressive jurisprudence of human rights.” 

In spite of the abolition of locus standi in public interest cases, Judges of the Federal High Court and many state high courts have a penchant for dismissing cases pertaining to socio-economic rights. It is high time the judges involved were made to apply the relevant decisions of the appellate courts in line with the doctrine of stare decisis.

Otherwise, such Judges should be reported to the National Judicial Council for deliberately ignoring judicial authorities that are binding on them. In Monday Ubani & Anor v The Senate & Ors

[43] two plaintiffs, Monday Ubani, had filed a suit to challenge the constitutionality of the jumbo-sized pay said to be collected by the members of the National Assembly. The Plaintiffs had relied on the interview of Shehu Sani, a former member of the Nigerian Senate representing Kaduna Central Senatorial District, where he had in March 2018, revealed that each senator received the sum of N13.5 million monthly as running cost, in addition to N750,000 monthly consolidated salary and allowances. 

In their argument before the court, the two chambers of the National Assembly had filed a defence denying its members ever collecting such jumbo-sized pay, but failed to disclose to the court how much members earn. On its part, the National Assembly Service Commission filed a defence, denying being responsible for the mouthwatering pay being taken by the members of the National Assembly. They equally contended that the plaintiffs lacked the locus standi (the legal right) to institute the action against them, contending that the plaintiffs had no cause of action against them. They urged the court to strike out the suit. 

However, delivering judgment on the matter, the judge, Chuba Obiozor J. dismissed the preliminary objections of the 3rd and 4th defendants. The judge said the plaintiffs were properly clothed with the right to institute the legal action, citing the Supreme Court case of Centre for Oil Pollution Watch v. NNPC. The court held that public-spirited individuals (taxpayers) had sufficient interest in ensuring that public authorities submitted to the rule of law and that no public authority had the power to arbitrarily or with impunity break the law or general statute. 

He, therefore, declared that the 3rd, 4th and 5th defendants (the Senate, the House of Representatives and the National Assembly Service Commission) “have no power, close or semblance of power and cannot determine, direct, command and/or instruct the 2nd defendant (RMAFC)) or any person howsoever, to make, determine and/or fix the salaries, wages, remuneration, running cost or allowances of the 3rd and 4th defendants. as only RMAFC can fix salaries of public officers’ The RMAFC (2nd defendant) is the only body responsible for determining the salaries, remuneration and/or allowances of the National assembly or political office holders, the court ruled. 

“In line with Section 32 (b)(d) of part 1 of the third schedule of the Constitutional of the Federal Republic of Nigeria, 1999 as amended, the 2nd defendant was ordered to embark on a downward review and fix the salaries, remuneration or allowances of the 3rd and 4th defendants to reflect the economic realities in the country.

The judge said   that “since the members of the National Assembly has denied collecting the jumbo remunerations and allowances, the EFCC should look at their books and if it is found that they truly collect such amount of money, they should be prosecuted.”

A similar suit filed by the Socio-economic and Accountability Project (SERAP) was assigned to the same judge. Earlier in the proceedings, the Judge had ruled that SERAP would abide by the decision reached in Ubani’s case.  

In view of the fact that the Government has disregarded many cases in which the socio-economic rights of citizens have been upheld it is no longer sufficient to campaign for the justiciability of the provisions of chapter 2 of the Constitution. I am therefore compelled to call on the Nigerian Bar Association and the human rights community to wage a serious campaign against disobedience of court orders.

As far as I am concerned, the   Attorney-General who disobeys a court order should be penalised by the Legal Practitioners Disciplinary Committee. Judges should invoke the powers of contempt to deal with officials who treat court orders with disdain. 

Conclusion: The paper has questioned the notion that socio-economic rights are not enforceable in the courts. Having offered a detailed account of judicial decisions and laws enacted by the National Assembly for the promotion of socio-economic rights it is hoped that lawyers are armed with the vital skills and tools to enforce the fundamental rights of the Nigerian people.

In particular, lawyers should be prepared to enforce the socio-economic rights of the people guaranteed by-laws made pursuant to Chapter two of the Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.

It is high time the debate on socio-economic rights was moved from desirability to enforcement. The Nigerian courts should borrow from the reasoning of Yakoob, J., in Government of the Republic of South Africa v. Grootboom[44], where he held that: Socioeconomic rights must all be read together in the setting of the Constitution as a whole.

The State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing.

Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the State has met its obligations in terms of them.

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