Chapter Two Of The 1999 Constitution Not Redundant, Requires Pragmatic Judiciary And Virile Civil Society To Give It Life — Tony Ojukwu SAN

*Says Non-Justiciability of Socio-Economic Rights is Neither Total nor Sacrosanct

A Senior Advocate of Nigeria and the Executive Secretary of the National Human Rights Commission, Tony Ojukwu has described the widely perceived non-justiciability of socio-economic rights under Chapter Two of the Constitution of the Federal Republic of Nigeria as not sacrosanct and absolute.

He said this while delivering a paper at the Townhall meeting hosted by the Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL) at Marriot Hotel, Ikeja, Lagos, yesterday.

In his paper titled “JUSTICIABILITY OF CHAPTER TWO OF THE 1999 CONSTITUTION: PRAGMATIC MEASURES FOR GOVERNMENT ACCOUNTABILITY”, stated that Chapter Two of the Constitution defines the relationship between the government and the people, and the country’s set of aspirations and ideals.

He noted; “The Constitution of every nation defines the relationship between the government and the people; it also outlines inter-governmental powers and obligations and provides the basis upon which the citizens can hold successive governments and institutions accountable to a set of national ideals and aspirations. All these and many more have been interwoven into the Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the 1999 Constitution).

The drafters of the 1999 Constitution following previous traditions, included a Chapter II which is entitled ‘Fundamental Objectives and Directive Principles of State policy.’ The provisions of this chapter can be divided into four: obligations, objectives, aspirations and human rights. For the purposes of this paper, I will endeavour to highlight these 4 pillars but essentially focusing on the accountability measures which the provisions contain.”

In the paper, he further addressed and countered arguments in support of the non-justiciability of socio-economic rights.

According to him, such arguments as solid and as convincing as they may be have been substantially rebutted as there are a lot of reasons advanced by scholars on why socio-economic rights should be judicially enforceable.

“The arguments and reasons for non-justiciability of economic and social right as strong and convincing as they may be, it is gratifying to state that most if not all of these reasons have been substantially rebutted and there are a lot of valid reasons advanced by scholars and institutions why socio-economic rights should be made judicially enforceable.”

He equally posited that the theoretical demarcation between civil and political rights, and socio-economic rights as the basis for the non-justiciability of the latter is political and superficial.

“It is argued that the non-justiciability argument based on the division of human rights into civil and political rights on the one hand and economic and social rights on the other appears to be not only political but artificial and unnecessary, more so when it has been declared that human rights are interdependent, indivisible and interrelated and that the realization of socioeconomic rights will be necessary for the actualization of civil and political rights. Both civil rights and socio-economic rights give rise to a cluster of obligations: the primary duty whereby the state should not interfere with individual activity (respect); the secondary duty whereby the state should protect individuals against other individuals (protect); and the tertiary duty to facilitate or provide for individual (fulfil).”

On the enforceability of socio-economic rights in Nigeria, he declared that the Courts have over the years carved out methods which could give life to any action seeking to enforce Chapter Two of the Constitution.
These include;

1. Where the constitution makes another provision on any of the subjects in the chapter which, being outside the chapter is justiciable;
2. Where the National Assembly makes any legislation making any of the subjects of the chapter the subject of such an Act and thus justiciable, since the National Assembly cannot by any law oust the jurisdiction of the court.
3. Chapter II could be justiciable if its breach also constitutes a breach of chapter IV i.e. the fundamental rights or any other provision of the constitution that is justiciable on its own, then the chapter becomes justiciable also by way of what is called indirect justiciability.
4. Chapter II could be indirectly justiciable by invoking the provisions of African Charter on Human and Peoples Rights, which has been domesticated making the said charter part and parcel of Nigerians domestic laws.

In concluding, he affirmed that Chapter Two of the Nigerian Constitution is not redundant but requires a sincere and responsible executive and legislature, “a pragmatic judiciary and a virile and active civil society and an enlightened citizenry” to grant its efficacy.

He enjoined the Nigerian judiciary to adopt some of the pro-active approaches taken by the judiciary in other jurisdictions like India and South Africa in her creative effort towards enhancing the enforceability of Directive Principles.