The Constitution of the Federal Republic of Nigeria 1999 as amended provides for fundamental objectives and directive principles of state policy in Chapter II. The importance of that Chapter II has been downplayed basically because it is not justiciable.
There are twelve chapters, arranged thematically and addressing topical socio-economic rights issues such as the right to health; education, and work. Each chapter cleverly analyses the contents of specific socio-economic rights and corresponding obligations of Nigeria to protect, respect, promote and fulfill the rights.
This article will emphasize the reasons why socio-economic rights, which are enshrined in chapter two of the Constitution of Nigeria 1999, should be moved to chapter four, for the benefit of justiciability of the rights in any court of competent jurisdiction and the human well-being in Nigeria, as a way to tackle national insecurity and the agitation for division in Nigerian.
Also, to map and mirror this gradual evolution of laws and progressive judicial decisions on socio-economic rights in Nigeria. Socio-economic rights are now enforceable in several countries. In countries like South Africa, India, and some Latin American countries, the enforcement of these rights has been achieved by either merging constitutional provisions with socio-economic rights or the courts giving expansive definitions to the provisions of the Constitution. in Nigeria against the promise of better living standards which they offer. Let’s examine the below scenario:
“What use is freedom of the press if someone is illiterate because their parents could not afford to send them to school? What use is freedom of association if someone cannot get to a meeting because they are working 14 hours a day in a call center or garment factory”?
What are Economic, Social, and Cultural Rights?
Economic, social, and cultural rights include the human right to work, the right to an adequate standard of living, including food, clothing, and housing, the right to physical and mental health, the right to social security, the right to a healthy environment, and the right to education.
Economic, social, and cultural rights are part of the body of human rights law that developed in the aftermath of World War II.
Human rights law includes all economic and social rights, as well as civil and political rights like the right to free speech and the right to a fair trial. These rights are deeply intertwined: for example, the right to speak freely means little without a basic education, the right to vote means little if you are suffering from starvation. Similarly, the right to work means little if you are not allowed to meet and assemble in groups to discuss work conditions.
Why are they called “rights”?
All the world’s great religious and moral traditions, philosophers, and revolutionaries recognize that human beings deserve to live in freedom, justice, dignity, and economic security. The International Bill of Rights grew out of these traditions and calls for all governments to make sure their citizens have human rights—civil, political, social, cultural, and economic. Referring to economic, social, and cultural issues as “rights” uses the legal framework developed under international law, and gives individuals legitimate claims against state and non-state actors for protection and guarantees.
During the Cold War and within trickle-down economic theory, economic, social, and cultural rights were frequently mislabeled as “benefits,” meaning individuals had no basic claims to things like food and shelter. After the Covenant came into force in 1976, jurisprudence around economic and social rights began to develop and great progress followed the formation of the United Nations Committee on Economic, Social, and Cultural Rights.
Economic, Social And Cultural Rights In Nigeria
The Constitution of the Federal Republic of Nigeria 1999 creates a bifurcated regime of human rights. On one hand, Chapter IV of the Constitution provides for “Fundamental Rights” (which embody civil and political rights) and expressly makes this category of rights justiciable. This class of rights is mainly liberal in its pedigree and forms the core of the so-called first-generation rights. These include the rights to life, dignity, personal liberty, fair hearing, private and family life, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, freedom of movement, freedom from discrimination, and to acquire and own immovable property anywhere in Nigeria.
On the other hand, Chapter II of the Nigerian Constitution provides for “Fundamental Objectives and Directive Principles of State Policy” and section 13 imposes a “duty and responsibility” on “all organs of government, and…all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply” the provisions of Chapter II. Accordingly, Section 14(2)(a) proclaims that “sovereignty belongs to the people of Nigeria from whom government through…[the] Constitution derives all its powers and authority”. Furthermore, Sections 16 and 17 of the Constitution, which specifically deals with economic and social objectives, require the State to steer its policy towards ensuring that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group. It aims to ensure that all citizens should have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment under just and humane conditions. Other such obligations include; suitable and adequate shelter, suitable and adequate food, reasonable national minimum wage, sick benefits and the welfare of the disabled, etc.
What is the position for enforcement of Economic, Social, and Cultural Rights under the Constitution?
It is instructive to note that, in spite of the recognition given to these issues in the Constitution (and the establishment of certain public institutions and laws to ensure that socio-economic rights enshrined in welfare laws are enforced), the same constitution does not accord these ESC rights the status of fundamental human rights, while at the same time doing so in the case of the CP rights guaranteed in its Chapter IV. What is more, the effect of Section 6(6)(c) of the CFRN 1999 is that issues contained in Chapter II are not justiciable in the courts, except to the extent that they are rendered justiciable in statutes. As such, the non-justiciability of Chapter II is only to the extent provided for Section 6(6)(c) of the Constitution. This point was emphasized by the Supreme Court of Nigeria in AG Ondo State v AG of the Federation. In this case, the court was of the opinion that where an Act of the National Assembly (Nigeria’s federal legislature) has been passed into law pursuant to the directive principles of state policy, such an Act can be enforced in a court of law.
In part because of her colonial heritage, Nigeria adopted fundamental human rights provisions that were almost entirely civil and political in nature, rather than socioeconomic. Thus, almost all judicial, scholarly, and other legal attention has been paid to the promotion and protection of CP rights while comparatively little attention has been focused on the legal realization of ESC rights. Many reasons have been offered to explain this, including the recommendations of the Willink Commission on Minorities and the demands by early nationalists.
Professor Osita Eze attempted to provide a reason for the absence of socio-economic rights in the constitutions of most African states when he stated that:
The reason for the marked absence of socio-economic rights in African constitutions is often based on the fact that, unlike political and civil rights which attempt to limit the encroachment of states and its [sic]instruments on human rights they require states to provide material means for their enjoyment….since African countries are undeveloped, it will be futile to encourage litigation on the infraction of socio-economic rights.
Judicial Interpretations Of Economic, Social And Cultural Rights In Nigeria
Section 6 of the CFRN 1999 provides that the judicial powers of the Federation shall be vested in the courts to which this section relates, i.e. courts established for the Federation. As a consequence of Section 6, it has been held by the courts that “judicial power” denotes the power of a competent court to interpret the law, decide, and pronounce judgment, and carry it into effect between persons before it. The responsibilities captured here are enormous, as it involves ensuring that citizens enjoy the rights and freedoms guaranteed under the Constitution through the resolution of disputes involving social and moral questions that are often of profound importance to society.
The judiciary is thus the arm of the government which is constitutionally empowered to interpret the law. It, therefore, has a significant role to play in ensuring that citizens enjoy the rights and freedoms guaranteed in the Constitution. As such, a timid and weak judiciary could therefore be fatal to the enjoyment of human rights. Thankfully, in recent times (perhaps taking a clue from the regional courts) the Nigerian courts have risen to the occasion and have awarded judgments in favor of certain socio-economic claims.
Regarding the role that the courts have played in interpreting the principle of non justiciability of ESC rights under the Nigerian Constitution, courts have predominantly made the point that these rights are non-justiciable. This was the case in Archbishop Anthony Olubunmi Okogie & Ors v Attorney General of Lagos State.
In addition to the earlier discussed international and regional human rights instruments that have recognized the socio-economic rights of citizens and which have been ratified by Nigeria, the National Assembly has enacted into statutory law certain provisions of Chapter II of the Constitution. Such enactments include the Nigerian Education Bank Act, the Child’s Right Act 2003, the Compulsory, Free, Universal Basic Education Act 2004, the Independent Corrupt Practices and Other Related Offences Commission Act, 2000, the Freedom of Information Act 2011, etc.
Thus, in Attorney General of Ondo State v Attorney General of the Federation & Ors, the Ondo State Government challenged the constitutionality of the enactment of the Corrupt Practices and Other Related Offences Act under which the Independent Corrupt Practices and Other Related Offences Commission (ICPC) was established to fight corruption throughout the country, including through the prosecution of alleged offenders.
The Supreme Court, per Uwaifo JSC, justified the enactment of the Act on the basis of the Fundamental Objectives and Directive Principles of State Policy. Borrowing from Indian jurisprudence, he declared as follows:
[Every] effort is made from the Indian perspective to ensure that the Directive Principles are not a dead letter. What is necessary is to see that they are observed as much as practicable so as to give cognizance to the general tendency of the Directives. It is necessary therefore to say that our own situation is of peculiar significance. We do not need to seek uncertain ways of giving effect to the Directive Principles in Chapter II of our Constitution. The Constitution itself has placed the entire Chapter II under the Exclusive Legislative List. By this, it simply means that all the Directive Principles need not remain mere or pious declarations. It is for the Executive and the National Assembly, working together, to give expression to any one of them through appropriate enactment as occasion may demand.
Conclusion and recommendation
It is a general principle of law that an effective remedy must accompany every right so that in case of its violation, the victimized person has a measure of redress. The right to an effective remedy must be guaranteed and should be available in cases of the violation of socio-economic rights. In view of this necessity, there is a growing global acceptance of the justiciability of socio-economic rights. This has begun to translate into concrete progress in making domestic remedies more accessible and effective for rights-holders who want to claim their
socio-economic rights and seek protection from the violation of such rights.
In Nigeria, vast proportions of the citizenry accept that it is a basic responsibility of the Government to promote, protect, and help realize their socio-economic rights, regardless of what the Constitution or other law provides. It’s very clear that the distinction between first- and second-generation rights are false and artificial, that both generations of rights are indivisible and interdependent. Both are necessary for a good life and for human flourishing: to live well, we need both freedoms from tyranny and freedom from want or toil. To include civil and political rights in a constitution without including socioeconomic rights is to leave the job half done and to provide the framework only for a hollow, superficial ‘bourgeois’ freedom.
I strongly submit that chapter two of the Constitution should be moved to chapter four for the purpose of justiciability, and as a preventive measure to tackle national security, and the agitation for division in Nigeria. Because Economic, social, and cultural rights include the human right to work, the right to an adequate standard of living, including food, clothing, and housing, the right to physical and mental health, the right to social security, the right to a healthy environment, and the right to education. Meanwhile, the root of our problems in Nigeria is poverty. If those rights can be enforced it will limit the problem, everybody will live a comfortable life and ignore abnormalities in the society.
1- Constitution of the Federal Republic of Nigeria, 1999, s 46 [1999 CFRN], online: <www.nigerialaw.org/ConstitutionOfTheFederalRepublicOfNigeria.htm> See generally ss 33- 43. ss 16-17.
2- (2002) 9 NWLR (Pt 772) 222.
3- Osita Eze, Human Rights in Africa: Some Selected
4- Problems (Lagos: Nigerian Institute of International Affairs & Macmillan Publishers, 1984) at 3.
5- Akin Olawale Oluwadayisi, “Economic and Socio-Cultural Rights in the Democratic Governance of Nigeria: Enforcement Mechanisms Beyond Justiciability” (2014) 5 Nnamdi Azikiwe University UJ International & Jur 105.
6- Abiola Ojo “Fundamental Human Rights in Nigeria: The 1963 and 1979 Constitutional Provisions” (1977-80) Nig J Contemporary L 118.
Osita Eze, supra note 34, p 31.
7- African Charter on Human and Peoples Rights Cap. A9 Vol. 1, LFN 2004.
8- African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act, supra note 39.
9- (1981) 2 NCLR 337. See also AO Adewole & Ors v Alhaji Jakande & Ors, (1981) 1 NCLR 262.
10- See AO Popoola, “Fundamental Objectives and Directive Principles of State Policy: Executive Responsibility and the Justiciability Dilemma” in Azinge & Owasanoye, supra note 21 at 324.
(2002) 9 NWLR (Pt 772) 2.
11- (2003) 15 NWLR (Pt 842) 113, 175.
Federal Environmental Protection Agency (Amendment) Act 1992.