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

A Paper Presented At The NBA Town Hall Meeting By Femi Falana SAN, FCI Arb.

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, the 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 socioeconomic 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 ‘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 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 legal binding effect on States that ratified the documents. However, many jurisdictions have denied the existence of social and economic rights and refuse to give them any legal character. Some jurists argue that they do not constitute legal norms but only guiding principles. Also on regional level (Africa), socio-economic rights have been provided for in the African Charter on Human and peoples’ Rights (1986). Nigeria has ratified both covenants but has not domesticated them.

These rights are economic, social and cultural Rights and are codified in the International convention on Economic, Social and Cultural Rights (ICESCR) 1966 and Articles 22-27 of the Universal Declaration of Human Rights 1948. In the category of Socio-economic and cultural rights we can identify these category of rights, i.e. the right to work, freedom of association, right to education and learning, right to insurance for sickness, old age and disability (social insurance). These Rights come from the positive law as well as from international law. This dedication does not have the same coverage as in the case of first generation rights as it requires significant efforts from the state and so it is appropriate to everyone’s prosperity. The second generation of rights against the first generation of rights requires institutional support from the state, the first generation of rights can be exercised independently and singular.

It is important to note that second generation rights emanate from positive law, along with from international law (International Covenant on Economic, social and cultural Rights). They consist of the right to work; freedom of association; and the right to education amongst others. In 1948, the Human Rights Commission (HRC) prepared a document on human rights entitled the Universal Declaration of Human Rights (UDHR) 1948. Economic, social, and cultural rights, are specified in Articles 16 and 22-29 of the UDHR.

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. However, Section 6(6) (c) of the Constitution ousts the jurisdiction of the courts in relating to the provisions of Chapter 2. In Nigeria, 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. Section 6(6) (c) of the Constitution, on the other hand, 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 CFRN has resulted in lack of development and non-accountability by the government. 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.  

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 the 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 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 securing 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.” [1]

It is submitted that social and economic rights are interconnected to a broad range of rights such as the right to life. The right to life is negated when there is an absence of the right to food. Furthermore, the right of dignity is defeated if there is no right to affordable housing. Most crucially, it tells us that the individual needs socio-economic rights for the realization and enjoyment of the right to exist. 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 in India, in Francis Coralie v Union Territory of India [2], where it held that:

The right to life include 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.  

It is submitted that all the rights contained in both the civil and political rights enshrined in Chapter 4 are interconnected with the socio-economic rights in Chapter 2. It is worthy to note that some of laws in the ‘non Justiciable’ clause  have been enacted into laws by the National Assembly such as the Child’s right act of 2003, The Price control Act amongst others . This paper further notes that all the rights contained in both the civil and political rights enshrined in Chapter 4 are interconnected with the socio-economic rights in Chapter 2.

In Archbishop Anthony Olubunmi Okogie [Trustee of Roman-Catholic School v. Attorney-General of Lagos State [3], 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. The fundamental objectives and directive principles of state policy enshrined in the Nigerian 1999 Constitution (as amended) are thus excluded from fundamental rights according to the Nigerian Constitution and the Courts. Notwithstanding, 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 the 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 the provisions of the Constitution are null and void to the extent of its inconsistency [s. 1(3)]. However, 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. Given the fact that civil and political rights are deemed justiciable by the Nigerian Constitution, the African Charter on Human and People’ Rights (ACHPR) (hereafter African Charter) expressly provided that socio-economic rights are justiciable. Providentially, social and economic rights are incorporated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 which are enforceable in Nigerian courts. 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…”

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 power to enact laws to make the provisions of chapter II justiciable. In the case of Attorney-General, Ondo State v Attorney-General, Federation of Nigeria [5], the Supreme Court though distinguishing the non-justiciable nature of the provisions of Chapter two declare that it would amount to a deficiency of obligation and on the part of the State branches of governments if they acted in contempt of the fundamental objectives and directive principles state policy.

Socio-economic rights especially 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. It is important to understand that the Fundamental Right to Life as stated in section 33 of the 1999 Constitution (as amended) 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. Some of them include the National Health Act, National HIV/AIDS Agency Act, which was established to tackle the scourge of HIV/AIDS in the country and National Health Insurance Scheme Act, which was established to ensure access to good health services by the citizenry.

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

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.

Registered political parties are required to adopt the fundamental objectives as part of their aims and objectives while all members of the executive, legislative and judicial organs of government are required to take Oath of Allegiance and Office wherein they shall undertake to promote the fundamental objectives [6]. It is 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 it 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 same vein, the security and welfare of the people have been abandoned by the Government which has embarked on the implementation of neoliberal economic policies. Thus, due to the privatisation of the economy and control by imperialism the people of Nigeria have been subjected to poverty.

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.

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 inter marriage 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 seizure of their passports by the State Security Service. See Director, State Security Service v Olisa Agbakoba [7] , G.O.K. Ajayi v Attorney-General of the Federation [8] . In Femi Falana v Chief of Army Staff [9]  the Federal High Court declared illegal and unconstitutional “operation positive identification” planned by the Nigerian Army to compel every citizen to produce their passport or any means of identification. 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 for 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’’.

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[11]. 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 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 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 etc.28

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.[12]

Under the VAPP Act, rape[3], spousal battery[4], forceful ejection from home[5], forced financial dependence or economic abuse[6], harmful widowhood practices[7], female circumcision or genital mutilation[8], abandonment of children[9], harmful traditional practices[10], harmful substance attacks[11] such as acid baths, political violence[12], forced isolation and separation from family and friends[13], depriving persons of their liberty[14], incest[15], indecent exposure[16] and violence by state actors[17] (especially government security forces) among others are punishable offences.

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 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 [15] . 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[16].

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 co-operation 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.

Section 20-Right to Environment 

Pursuant to the obligation to protect and improve the environment and safeguard the water, air and land, forest and wild life 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 environment shall be applicable in Nigeria.

In Adediran and Akintujoye v Interland Transport Ltd[17] , 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[18]  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 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 a 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 [19], 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-Presevation 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 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 [20] the Supreme Court annulled the practice of denying female children any share in the estate of their fathers.

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.

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 warrant,  make provision for the award of titles of honour, decorations and dignities to deserving persons.

24. It shall be the duty of every citizen to –

(a)    abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;

(b)    help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;

(c)    respect the dignity of other citizens and the rights and legitimate interests.

The Federal Government enacted the Flag and Coat of Arms Act

Section 24: Duty of Citizens 

Every citizen is under a legal obligation to respect the dignity of other citizens; make 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[21] that it is the duty of every citizen to report crimes to t police and other law enforcement agencies. In Dododo Sanni v EFCC[22] the Court of Appeal held that citizens have a legal duty to report cases of corruption.

The constitutional validity of the independent corrupt practices and other related offences commission act 2000 upon promulgation was taken up in the case of Attorney General of Ondo State v. A.G. of the Federation (supra) where it was contended that it was not applicable in states which the court refuted. A similar case was Hassan v. Economic and Financial Crimes Commission[23] Nonetheless this time the bone of contention was the legality of the EFCC where the court decided that the courts had no power to stop the investigative powers of the police or EFCC. This was further raised in Kalu v. Federal Republic of Nigeria[24] where it was also dismissed.

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’ Right. Therefore, States must strive to comply with Article 21 of the African Charter for the enjoyment of socioeconomic rights by the masses. However, the duty of citizens to render assistance includes exposing corruption by reporting allegation 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 socioeconomic rights of the people.  In Paschim Banga Khet Mazdoor Samity & Others v State of West Bengal & Another [25], 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 [26], 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.” The constitutionality of the right to control natural resources was in Femi Falana v. Attorney General [27] (No. 2), wherein the plaintiff prayed the Federal High Court to order the Federal Government to reestablish the Peoples Bank of Nigeria to provide loans to underprivileged Nigerians. The plaintiff’s prayer was granted and the court ordered that the bank be reestablished by the federal government. However, till date, the federal government has failed to comply with the judgment of the court.

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 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. The Supreme Court in Abacha v Fawehinmi[29] 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. Federal Republic of Nigeria and Universal Basic Education Commission [31], 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 [32], 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 [33],

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 case of Femi Falana v African Union[34], and SERAP v Nigeria[35], was 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.”

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 [36] 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 case of Gani Fawehinmi v Col Halilu Akilu[37] where the decision of the apex court in the case of Abraham Adesanya v The President [38]  was consigned to the dustbin of history.

In jettisoning the anachronistic doctrine of locus standi in  Fawehinmi v The President[39], 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  that the appellant had locus standi to enforce the right of an oil producing community to 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 have 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[40]  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 chasing shadows or holding 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 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 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  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.

[1] saharareporters.com http://saharareporters.com/2019/04/23/making-peoples-constitution-femi-falana

[2]  (1981) AIR 746

[3] (1981) 1 NCLR 420   

[4] (2004) All NLR 203 (2004) LCN/3183 (SC)

[5]   (2002) 27 WRN1

[6] (Sections 52, 94, 135, 140, 142, 149, 180, 185, 187, 194 and 290 of the Constitution)  

[7]   (1999) 3 NWLR (PT 595) 314

[8]   (2000) 1 WRN 105.

[9]   (Unreported) Suit No: FHC/L/CS/  

[10]   (2021) LCN/15109 (CA)

[11]   (2006) 6 NWLR (PT 1005) 265

[12]   The National Agency for the Prohibition of Trafficking in Persons (NAPTIP) is named as the service provider

[13]   https://www.vanguardngr.com/2022/02/court-dismisses-suit-seeking-to-void-police-laws-barring-unmarried-female-police-from-getting-pregnant[14] (Unreported) Suit No: FHC/IK/CS/M128/2010   

[15]   (Unreported Suit No: FHC/ABJ/CS/63/2013

[16]   https://therepublicannews.net/2016/08/19/federal-court-abolishes-quota-system-for-admissions-into-federal-institutions-which-disenfranchises-igbo-students/[17]    (SC 119 of 1987) [1991] NGSC 2

[18]   (2005) AHRLR 151

[19]   (2019) 5 NWLR (PT 1666) 518

[20]   (2014) 38 WRN 1

[21]   (2009) 21 WRN 10

[22]   (2013) 1 NWLR (PT 1336) 468

[23]   (2014) 1NWLR (PT 1389) 607

[24]   (2014) 1 NWLR (PT 1389) 479

[25]   (1996) AIR SC 2326/(1996) 4 SCC 37

[26] (Unreported) Suit No: FHC/ABJ/CS/591/2009  

[27]   (Unreported) Suit No: FHC/L/CS/1121/2011

[28]  Unreported Suit No: FHC/IKJ/CS/M59/2010

[29]   (2000) 6 NWLR (PT 660) 228

[30]   (2004) AHRLR 205

[31]   (2009) AHRLR 331

[32]   (Unreported) Suit No: ECW/CCJ/APP/08/09

[33]  (2000) CHR 537

[34] Application No:001/2011)

Check out this story on saharareporters.com http://saharareporters.com/2019/11/04/falana-national-industrial-court-competent-apply-ilo-conventions

[35] (Unreported) Suit No: ECW/CCJ/APP/10/10  

[36]   (2009) JELR 57281(CA)

[37]   (1987) 4 NWLR (PT 67) 797

[38]   (1981) ANLR 1

[39]   (2008) CHR 1

[40]   (2016) LCN/9321 (CA)