Chapter 2 of 1999 Constitution: Why Nigerian judiciary must be proactive —Falana

•Leading rights lawyer, Mr Femi Falana, SAN speaks to the enforceability of socio-economic rights in Nigeria

Introduction 

Notwithstanding the several decisions of domestic and regional courts which have upheld the socioeconomic 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, this paper challenges the notion that socio-economic rights are not justiciable or enforceable by Nigerian courts. In our contribution to the debate we intend to question the ‘marginalization’ of socio-economic rights by drawing attention to the gradual evolution of relevant laws and progressive judicial decisions on socio-economic rights in Nigeria.

Justiciability of socioeconomic 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 legal, 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 refused to give them any legal character. Some jurists argue that socioeconomic 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.

Unlike the first generation rights which may be enforced by individuals the second generation rights require institutional support from the state. Socioeconomic 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 is submitted that social and economic rights are interconnected to a broad range of political and civil rights. 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.

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 striped 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 lack of development and non-accountability by the government.

Enforcement of socioeconomic 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 there 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.

7 Ways to enforce socioeconomic rights

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 socioeconomic rights of the people. In Paschim Banga Khet Mazdoor Samity & Others v State of West Bengal & Another, 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 part 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 , 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 , Idris J. (as he then was, now JCA) granted the reliefs sought by the Claimant and ordered the Federal Government to reestablish 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 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 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 socioeconomic 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. Federal Republic of Nigeria and Universal Basic Education Commission , the Applicant sought to enforce 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 , the ECOWAS Court held that the “violation of the right to adequate standard of living, including the right to food, to work, to health, to water, to life and human dignity, to a clean and health environment; and to economic and social development.”

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

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 and SERAP v Nigeria, 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 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.”

Conclusion 

Having offered a detailed account of judicial decisions and laws enacted by the National Assembly for the promotion of the socio-economic rights, it is hoped that lawyers are armed with the vital skills and tools to enforce 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 , where he held that: Socio-economic 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.