JUSTICIABILITY OF SOCIAL, ECONOMIC AND CULTURAL RIGHTS IN NIGERIA:

A GUIDE AWAY FROM THE CONFUSIONS

 

by Opeyemi Owolabi

 

Social, economic and cultural rights are those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing.

The foundation for socio-economic rights in Nigeria are found in the provisions of Chapter 2, the Fundamental Objectives and Directive Principles of States Policies, particularly sections 13 to 24 of the Constitution of the Federal Republic of Nigeria (as amended), 1999. These provisions accordingly mandate the government to make provision for equal treatment in government, economic benefits of Nigerians, social rights, human dignity, free and compulsory education, adequate means of livelihood,  adequate medical facilities for all persons, equal pay for equal work, protection of aged and young persons against exploitation, moral neglect, respect for international law, protection and improvement of the environment, protection, preservation and promotion of the Nigerian culture, encourage development of technological and scientific studies to enhance cultural values, obligation of the mass media, duties of citizens and national ethics.

Socio-economic rights, just like the civil and political rights, originate from the Universal Declaration of Human Rights, even though they were subsequently split. More specifically, socio-economic rights have their roots in the International Covenant on Economic, Social and Cultural Rights 1966 and its protocol to which Nigeria is a state party. While civil and political rights are regarded as first generation of rights, socio-economic and cultural rights are regarded as second and third generation of rights.

Unlike the civil and political rights domesticated under the provision of Chapter 4 of the 1999 constitution, provisions of the economic, socio and cultural rights in respect of the above items are largely warehoused under chapter 2 of the constitution as stated earlier in this article.

However, one controversial part of the enforceability of the jurisprudence of economic, social and cultural rights in Nigeria is that unlike the counterparts, the civil and political rights, section 6 (6) c of the 1990 constitution ousts the power of the court to entertain legal fireworks on the provisions of chapter 2 which generally harbor these provisions. Section 6 (6) (c) provides as follows:

 

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution”

It is not surprising therefore that in several instances Nigerian courts have upheld section (6) (6) (c) above and firmly declared that matters contained in chapter 2 of the 1999 constitution are not justiciable in court in view of the same.

The implication of this is that Nigerians cannot proceed to court to enforce rights pertaining to health, environment, economy, social right, education, culture etc.

For instance, in the case of Archbishop Anthony Okogie v. AG Lagos State 2 NCLR 337 at 350, it was held that:

 

“While Section 13 of the Constitution makes it a duty and responsibility of the judiciary among other organs of government to conform to and apply the provisions of Chapter 11, section 6 (6) (c) of the same constitution make it clear that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. It is clear therefore that section 13 has not made chapter 11 of the Constitution justiciable”

 

In the case of AG ONDO v AG Federation (2009) 9 NWLR (Pt. 772) 1, the Supreme Court of Nigeria held that rights under the Chapter 2 of the 1999 constitution are not justiciable.

While it is important to understand that the declarations of the court above are in furtherance of the literal interpretation of the provision above, however, the pertinent question to ask is that, is it absolute that the socio-economic rights are not justiciable in Nigeria, or that is it in all circumstances that the court will give effect to the blanket provision of section (6) (6) (c) to deny an applicant right to be heard?

To address the pertinent question put forward, I shall examine the provisions of the law applicable and supply subsequent the relevant judicial decisions. We begin with section 13 of the constitution which explicitly provides as follows:

“It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.”

 

It is quite necessary to note that in the above construction, the word ‘Shall’ is employed. The modal verb ‘shall’ is applied, mostly, in context where it admits of compulsion or non-permissive. In ONOCHIE v ODOGWU (2006) 6 NWLR (PT 975) 65, the Supreme Court adopted the Longman Dictionary of the English Language wherein it stated that:

“SHALL” is used to express a command or exhortation or what is legally mandatory”.

 

In TABIK INVESTMENT LTD & ANOR v GTB PLC (2011) LPELR 3131, Mukhtar JSC at page 16 held:

“The word ‘shall’ stated connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law that requirement must be met. The word ‘shall’ may have other meanings, for when used in legislation, it may be capable of translating into a mandatory act, giving permission or direction. See Nnonye v Anyichie & Ors [2005) 2 NWLR (part 910) page 623. The use of the word ‘shall’ in the case at hand, to my mind conjures mandatoriness, the conditions of which must be met and satisfied.”

 

In MALAM ABUBAKAR & ORS V NASAMU & ORS (2012) LPELR 7826 SC, the Supreme Court held:

“In its interpretative Jurisdiction a Court must abide by certain rules and principles as follows: (1) The intention of the legislative should be sought (2) The intention of the legislation is to be ascertained from the words of the statute alone and not from the words of other sources. (3) The words used are to be given their ordinary and unambiguous meaning that is the legislative to be pressured not to have put a special meaning on the word.”

Going by the literal interpretation of the above, it is safe to contend that that the legislature did not intend to completely oust the constitutional power of the court to apply the provision of chapter 2 of the constitution, notwithstanding the decisions of the court in AG ONDO v AG Federation (supra).

 

Indeed, for instance, section 15 (5) of the constitution mandates the state to abolish all forms of corruption. It will be an affront to logic to suggest therefore that the court is bereft of the requisite power to impose punishment on those found guilty of corruption or power to mandate the public officer who has statutory power to fight corruption.

Again, section 17 (3)(e) of the constitution provides that:

“The State shall direct its policy towards ensuring that-

there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;”

Apparently, it could not have been intended that a person who is discriminated against in a workplace under the conditions stated in section 17 (3) (e) of the constitution has automatically lost the right to seek the enforcement of his right as a result thereby, and again, section 42 of the constitution – a civil and political right – is an enabler to this effect.

 

Also, section 20 of the constitution the mandates the state to protect and improve the environment and safeguard the water, air and land, forest and wildlife in Nigeria. The duty of the state to ensure a conducive, clean and safe environment was recently affirmed by the Supreme Court of Nigeria in the case of CENTRE FOR OIL POLLUTION WATCH V. NNPC [2019] 5 NWLR (Pt. 1666) 518. It is plausible to posit that an unsafe environment constitutes threat to life and dignity of human person, for instance.

 

It is therefore significant to surmise in view of the foregoing that experts have argued that that all rights, whether socio-economic and cultural and political rights are inter-dependent, indivisible and interrelated. For instance, there is a logical inference of interrelation between clean environment, health and right to life. The same is applicable to the relationship between right to habitable environment and dignity of human person. There is a direct relation between education and right to information. So, the enforcement of one cannot exist in isolation of the order.

It is therefore no longer sustainable to assert that social, economic and cultural rights in Nigeria are not enforceable, as we shall soon see.

The African Charter on Human and Peoples’ Rights (ACHPR)to which Nigeria is a state party has integrated social, economic, cultural, and civil and political rights and makes them a single bundle of rights, enforceable in Nigerian court. Such rights include health, education, economic, social and cultural development, free disposal of wealth, national and international peace and security, general satisfactory to their development, and the rights that make up the bundle of the civil and political rights. See articles 1 – 25 of the ACHPR.

Particularly article 26 of the Charter creates an obligation on the state parties to fulfill the objectives of then charter when it provides in the following explicit words:

“States Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedom guaranteed by the present Charter”

 

As a matter of obligation, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act which domesticated the provisions of the ACHPR in Nigeria in section provides clearly in section 1 thus:

 

“As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria”

 

What is more, paragraph 3 of the preamble to the Fundamental Rights Enforcement Procedure (FREP), 2009, states as follows:

 

“the overriding objectives of these Rules are as follows:

(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.

(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions.

Such bills include;

(i)             The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system.

 

(ii)          The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system”

{Underlining for emphasis}

While it is argued that the FREP Rules, 2009 is a subsidiary legislation, it is instructive to note that it is a set of Rules made pursuant to the Constitutional powers conferred by Section 46(3) of the 1999 Constitution (as amended). In interpreting the nature of such Rules, the Courts have held that they share in the very nature of the constitution itself and are deemed part and parcel of the Constitution. In ABIA STATE UNIVERSITY. UTURU v. CHIMA ANYAIBE (1996) 1 NWLR (PT 439) 646, the Court of Appeal per Honourable Justice Kastina-Alu, JCA (as he then was) held

“Section 42(3) of the Constitution also empowered the Chief Justice of Nigeria to make Rules with respect to the practice and procedure to be allowed in cases concerning Section 42(1) and the Rules were accordingly enacted pursuant thereto. They form part of the Constitution…I think an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 is a peculiar action. It is a special action. The procedure is provided by the Rules which are made pursuant to Section 42(3) of the 1979 Constitution…As I have already stated earlier on in this Judgment, the Rules have the same force of law as the Constitution itself. What this means is that the Rules overrides any other enactment…”

 

Moreover, it is unarguable that the ACHPR does not conflict with the Constitution. The provision of section 6(6) (c) of the constitution has only expressly excluded the power of the court with regards to matters listed in the Chapter 2 for Fundamental Objectives and Directives Principles of State Policy in the Constitution. By parity of reasoning, it is therefore sufficient to state that the provision of the African Charter has not been expressly invalidated nor rendered inapplicable by section 6 (6) (c) of the constitution. I have stated earlier that the ACHPR has since been domesticated.

On the applicability of the provisions of the African Charter on Human and Peoples’ Rights in Nigerian courts, the Supreme Court of Nigeria in the case of ABACHA V FAWEHINMI [2000] 6 NWLR Part 660 p 228, Ejiwumi JSC, affirmed thus:

“The Africa Charter on Human and Peoples’ Rights, having been passed into our municipal law, our domestic courts certainly have the jurisdiction to construe or apply the treaty. It follows then that anyone who felt that his rights as guaranteed or protected by the Charter, have been violated could well resort to its provisions to obtain redress in our domestic courts.”

It is also not in contention that regional and continental courts have been giving effects to the provisions of the ACHPR from the outset for application in a particular state.

For instance, in the case of the Registered Trustees of the Socioeconomic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria & Anor (No. 1) – ECW/CCJ/APP/08/08, the ECOWAS court held that:

 

“every Nigerian child is entitled to the right to education and ordered Nigerian government to provide education as a matter of rights and address corruption in the education sector.”

It is thus explicit, given the foregoing, that socio-economic and cultural rights in Nigeria are justiciable.

It is also instructive to look into the combined and conflated reading of the provisions of sections 6 (6) (c) together with sections 13 and 14 to 24 of the constitution. This will give contexts to the interpretation and implication of section 6 (6) (c). It will allow us to animate that in many contexts, the social, economic and cultural rights contained in the Chapter 2 are enforceable and justiciable in court.

 

Giving credence to this method, the Supreme Court of Nigeria, Per NIKI TOBI, JSC (Pp 67 – 72 Paras C – D), when faced with the similar puzzle in the case of Olafisoye v FRN (2004) LPELR-2553(SC) held thus:

 

“A community reading of Item 60(a) and Section 15(5) results in quite a different package, a package which no more leaves Chapter 2 a toothless dog which could only bark but cannot bite. In my view, by the joint reading of the two provisions, Chapter 2 becomes clearly and obviously justiciable … And if I may fall back on Section 6(6)(c) of the Constitution which provided for an exception clause, it is my view that Section 6(6)(c) anticipates amongst other possible provisions, the provision of Item 60(a). What is the purport of Item 60(a)? The question is how can the National Assembly exercise such powers? It can only do so effectively by legislation. Item 67 under the Exclusive Legislative List read together with the provisions of Section 4 subsection (2) provide that the National Assembly is empowered to make law for the peace, order and good government of the Federation and part thereof. It follows therefore that the National Assembly has the power to legislate against corruption and abuse of office even as it applies to persons not in authority under public or government office… In the light of the above, I reject the argument of learned Senior Advocate for the appellant that the provisions of Chapter 2 are not justiciable in virtue of Section 6(6)(c) of the Constitution. I accept the argument of learned Assistant Director for the respondent that the provisions could be justiciable.”

 

It therefore becomes very glaring that in determining the justiciability or enforceability of chapter 2 of the 1999 constitution, it will amount to a great disservice to interpret the provision of section 6 (6) c of the 1999 constitution in isolation of contexts and other provisions.

This practice of deliberate narrow interpretation of the constitutional provisions was severely condemned by the Supreme Court of Nigeria in the case of the University of Ibadan v Adamolekun (1967) 1 LRS 9. In the latter case of PDP v INEC (1999) 7 SCN 297, the apex court noted as follows:

“no section of a statute shall be read in isolation of other relevant sections as to make the latter ineffective and unnecessary”

 

In the case of AC & ANOR v. INEC (2007) LPELR-66(SC), the Supreme Court, Per ALOYSIUS IYORGYER KATSINA-ALU, JSC (Pp 17 – 17 Paras A – B) held firmly as follows:

 

“It is a settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted”

 

See also Buhari & Anor. v. Obasanjo & Ors. (2005) 13 NWLR (Pt. 941) 1 (219).

 

It becomes rather compelling therefore and apparent that when the provisions of sections 5, 6(1), (6) (c), 13 – 24 of the constitution, articles1 – 26 of the African Charter on Human and Peoples’ Rights, Sections 1- 29 of the ACHPR (Ratification and Enforcement) Act & par 3 of the preamble to the FREP Rules, 2009 are read together, the socio-economic rights are justiciable in Nigeria.

 

 

 

Looking at other jurisdictions

1.      The Republic South Africa (RSA)

The RSA readily comes to mind when issues spiral into enforcement of socio-economic and political rights in the Sub-Sahara Africa. This is because it is regarded as the country with the most revolutionary approach to amendment its domestic laws to make socio-economic and cultural rights justiciable. The bill of Rights is generally seen as one of the most progressive in the world. Section 7 (2) of RSA constitution mandates the government of RSA to respect, protect, promote and fulfil range of socio economic rights.

 

 

The obligations of the RSA government in this wise have been pronounced upon by Constitutional Courts of South Africa in many instances. For instance, in the case of the President of Republic of South Africa & Anor v Modderlip Boedery (Pty) Ltd. CCT (20/04), the court held that the government has obligation to provide adequate housing for its population under section 26 of the Bill of Rights. See also the case of Government of the Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169. (CC)

 

 

2.      Namibia

Namibia was the first to enact a constitution containing a Bill of Rights. Chapter 3 (Articles 5 – 25) of the Constitution of the Republic of Namibia is devoted to the protection of fundamental human rights and freedoms. The fact is that indeed the Namibian Bill of Rights pays very scant attention to socio-economic rights, only confining itself in this regard to children’s rights and the rights to education, although article 95 in particular requires the state to actively promote and maintain the welfare of the people by adopting policies aimed at ensuring that the health and strength of the workers are not abused, among other policies.

 

3.      Uganda

 

The 1995 Constitution of the Republic of Uganda was drafted to include a Bill of Rights. This Bill of Rights is contained in Chapter Four titled, ‘Protection of Fundamental and other Human Rights and Freedoms’.

 

With respect to socio-economic rights, Uganda’s position is similar to that of Namibia and in contrast to that of South Africa. Just like the Namibian Bill of Rights, Chapter 4 of the Ugandan Constitution pays minimal attention to such rights. In spite of Uganda’s obligation to the International Covenant on Economic, Social and Cultural Rights (ICESCR) to which it is a party, the only socio-economic rights provided for under the Ugandan Bill of Rights are: protection from deprivation of property,54 the right to education,55 the right to work and participate in trade union activity56 and the right to a clean and healthy environment. 57 Other social and economic rights that should ordinarily be included in the Bill of Rights are laid down in the preamble to the Constitution under a section entitled ‘National Objectives and Directive Principles of State Policy’.

 

Few cases on socio-economic and cultural rights have come before the Uganda Constitutional Courts. In the case of Byabazaire Grace v Mukwano Industries No. 909 of 2000 for example, the court stated that before the totality of the right to a healthy environment could be determined, the National Environment Management Authority had to establish air quality standards. In Dimanche Sharon v Makerere University Constitutional Cause No 01 of 2003, the Court was called upon to consider certain aspects of the right to education. Lady Justice Kikinyogo held that the respondent’s policy did not prohibit the petitioners from practicing or participating in any religious activities and that their right to education had not been violated.

 

Conclusion

It is clear that our courts have been unable to escape the traps set by blanket and isolated interpretation of the provision of section 6 (6) (c) of the 1999 constitution as amended. The issues of socio-economic and cultural rights in Nigeria ought to have expanded beyond the level they currently are. It is also quite obvious that Nigeria has failed its obligation to progressively work towards realization of these objectives. Nigeria definitely has a long way to go in this regard.

It is therefore not in doubt that Nigerian government must fulfil a definite intention to progressively realise these objectives, and that the first step is to expunge the provision of section 6 (6) c from the constitution to avoid the confusion that bedevil many of our judges. The court must also establish special human rights and constitutional courts with major focus on human rights and progressive realization of the socio-economic rights. These courts must be populated by judges who have advanced training in human rights and are experts. It is ironical that in many of our courts, the same judges attending to cases of breach of commercial contract are responsible for determining issues relating to environmental rights. This is a lot of confusion and distraction to deal with.

 

References

 

Statutes

Constitution of the Federal Republic of Nigeria (as amended) 1999

Fundamental Rights Enforcement Procedure Rules

African Charter on Human and Peoples’ Rights

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act

International Covenant on Economic, Social and Cultural Rights

Universal Declaration of Rights

International Covenant of Civil and Political Rights

South African Bill of Rights

Uganda 1995 Constitution

The Namibia Bill of Rights

 

 

 

Articles

Dawood Ahmad, Elliot Balmer ‘Social and Economic Rights’ (2017) International IDEA Constitution Building Primer 9

John Cantius Mubangizi ‘The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation’ (2006) African Journal of Legal Studies 1 – 19.

 

Carol C Nang ‘Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take ‘other measures’ 2014 African Human Rights Law Journal Vo. 14 n.2.

Omoruyi Omonuwa, SAN ‘The Non-Justiciability of Chapter 2 of the 1999 constitution: Its Impediment on the Nation’s Political, Economic, Social, Educational and Environmental Development’ Being a Paper Presented at the University of Benin Student Union Government 1oth Legal Symposium on Friday April 21, 2017.

Okorie Kalu, Eric O Otogahi, Peter Edokpayi and Chinenye Ene ‘Nigeria: Challenges In the Enforcement Of Fundamental Rights In Nigeria’ 2020  Mondaq https://www.mondaq.com/nigeria/human-rights/986460/challenges-in-enforcement-of-fundamental-rights-in-nigeria

Ajepe Taiwo Shehu ‘The Enforcement of Socio-Economic Rights in Africa: The Nigerian Experience’ 2013 Afe Babalola University: Journal of Sustainable Development Law and Policy Vol. 2 ISS 101 – 120

 

 

 

Opeyemi Owolabi, a human rights lawyer, Legal Adviser at SERAP, writes from Lagos