THE IMPERATIVES OF JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN NIGERIA: AN ANALYSIS OF CHAPTER II OF THE 1999 CONSTITUTION AND JUDICIAL ATTITUDES

 

Outline

The following outline has been adopted in discussing this topic:

·         Introduction

·         What are the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria (CFRN ) 1999?

·         The essence of the Chapter II provisions

·         Two Schools of Thought on Chapter II

·         The non-justiciability constitutional provision

·         The pro-justiciability provisions

o   The constitutional pro-justiciability provisions

o   Statutory pro-justiciability provisions: The African Charter on Human and People’s Rights Act, CAP10, Laws of the Federation of Nigeria (LFN) 1990.

·         Judicial attitudes to chapter II provisions

o   Attitudes of the Nigerian courts to chapter II provisions:

o   Attitudes of courts in other jurisdictions to Economic Social and Cultural Rights (ESCR)

o   Nigerian courts’ attitudes to chapter II provisions: politics or law?

·         The role of the civil society in enforcing Chapter II provisions

·          

Introduction

An old NIPOST pensioner occupies a space in front of a Post Office in Ibadan as a form of protest against non-payment of his pensions for several years. He recalls his bitter experiences to a Radio journalist: He has no house to live in and so he lives under a makeshift structure in a market. His wife had abandoned him because he could not provide her needs. He does not know the whereabouts of his children. They are scattered in different places, struggling to eke out a living on their own  They had no opportunity for education because nobody was available to pay their school fees. When the old man falls ill, he goes to the pastor for prayers as he cannot afford the cost of medical care. The old pensioner and members of his family find life an agonizing experience – hungry, homeless, sick, no clothing, no education, etc. There is no hope of a better future.

Can the old pensioner ask government to provide him housing under the law? Can the children ask the Federal or State Government for cost-free education as a right under the law? Can they claim they have a right to work, food, healthcare and so on? If the Executive arm of government refuses to provide them, do they have the right under the Constitution to go to court for an Order of court that these socio economic rights be provided? This is what is referred to as justiciability or enforceability. The socio-economic rights are provided for under Chapter II of the Constitution of the Federal Republic of Nigeria (CFRN) 1999.  However, there is controversy in the interpretation of constitutional provisions on whether or not the rights are enforceable or justiciable.

This paper sets out to analyse the provisions of chapter II of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 and the attitudes of Nigerian courts to its enforceability. It argues that the claim of non-enforceability of Chapter II (that is, the chapter, which guarantees socio-economic rights) is a reflection of class politics which is programmed against the interests of the poor and downtrodden, and not necessarily because the Constitution ousts the jurisdictional competence of the court to adjudicate on implementation or non-implementation. The paper highlights the provisions of Chapter II of the Constitution. It undertakes a comparative analysis of the jurisprudence of Nigerian and foreign jurisdictions in order to show that the Nigerian courts could learn from judicial activism in furtherance of enforceability of socio-economic rights. However, beyond expecting the courts to enforce chapter II, the paper challenges the civil society, particularly the labour movement component, to realize that it has a responsibility in advocating and taking practical trade union actions to actualize implementation of socio-economic rights. To expect government to willingly implement pro-working class constitutional provisions, without stubborn pressure by the working masses, is to expect a statue or stone to shed tears. It is the actual or threat of collective action, and especially strike action by the working class, which is effective at pushing government to change its policies and give effect to human rights.

 

WHAT ARE THE PROVISIONS OF CHAPTER II, CFRN, 1999?

Chapter II of the Constitution is titled Fundamental Objectives and Directive Principles of State Policy. It consists of 12 sections, from section 13 to section 24. Among others, it provides for the following thirteen (13) key categories of rights, which by section 13 are to be observed and applied by all authorities and persons who exercise legislative, executive or judicial powers:

·         Right to General welfare and security : the security and welfare of the people shall be the primary purpose of government (S. 14(2)( (b);

·         Right to participatory governance system: participation by the people in their government shall be ensured in accordance with the provisions of this Constitution (S. 14(2)(c);

·         Provision of Transportation: adequate facilities for movement of people, goods and services throughout the Federation (S. 15(3)(a);

·         Provision of Physiological needs: suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens (S. 16(2)(d);

·         Right to employment: all citizens, without discrimination on any group whatsoever, [shall] have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment (s. 17(3)(a);

·         Conditions of work: [it shall be ensured that] conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life (S. 17(3)(b); Also, the state is to put in place policies to ensure that  the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused (S. 17(3)(c);

·         Right to health: adequate medical and health facilities for all persons (S. 17(3) (d);

·         Gender sensitive rights - Right to equal pay: for equal work without discrimination on account of sex, or on any other ground whatsoever (S. 17(3) (e);

·         Right of the child: children, young persons and the aged are [entitled to be] protected against any exploitation whatsoever, and against moral and material neglect (S. 17(3)f);

·         Right to public assistance in conditions of need (S. 17(3)(g);

·         Right to education, from cradle to grave: free, compulsory and universal primary education; free secondary, university education and adult literacy programme (S. 18(3)(a) to (d);

·         Right to a safe environment: The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria (S. 20);

·         Cultural rights: the state shall protect, preserve and promote the Nigerian cultures which enhance human dignity (S. 21).

Perhaps, in order to ensure that the State has the capacity to fund the socio-economic rights that require budgetary provision to execute, S. 16 of the Chapter provides essentially for state ownership and control of the major sectors of the economy. That the state shall:

·         manage and operate the major sectors of the economy, without prejudice to equally operating or participating in other sectors of the economy (S. 16(1)(c)

·         protect the right of every citizen to engage in any economic activities outside the major sectors of the economy, even though any person may still participate in the major sectors of the economy (S. 16(1)(d);

·         not operate the economic system 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 (S. 16(2)(c);

·         ensure that the material resources of the nation are harnessed and distributed as best as possible to serve the common good; (S. 16(2)(b);

·         (b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity (S. 16(1)(b).

In the same spirit of ensuring availability of resources to meet socio-economic needs, Chapter II, in Section 15(5) mandates the state to fight corruption:

‘The State shall abolish all corrupt practices and abuse of power’.

(NB: The full provisions of Chapter II are provided in Appendix I to this paper).

THE ESSENCE OF CHAPTER II PROVISIONS

In international human rights law, the rights in Chapter II belong to the category of Economic, Social and Cultural Rights (ESCR), contained in the International Covenant on Economic Social and Cultural Rights (ICESCR), (1966).

Akande (1999) has helped to succinctly conceptualise the importance of Chapter II provisions, which Odinkalu (2012: 20) terms ‘the most important Chapter of the Constitution’. According to Akande (1999, cited in Arewa (2010:454):

‘Governments in developing countries have tended to be preoccupied with power and its material perquisites with scant regard for political ideals as to how society can be organized and ruled to the best advantage of all’.

In Minerva Mills Ltd & Ors v. Union of India & Ors, the India court has also identified the importance of the Directive Principles, as follows:

They project the high ideal which the Constitution aims to achieve. They are so fundamental in the governance of any country. In fact, there is no sphere of public life where delay can defeat justice with more telling effect than in the non-implementation of the Directive Principle.

In the context of disturbing proportions of unemployment, abject poverty, homelessness, hunger, frustrations, accompanied by unprecedented high levels of crimes of all shades, including bloodletting, kidnapping, mass murder, it would appear that only massive investment in socio-economic rights by the Nigerian State can provide enduring solution. In a state of deepening poverty and non satisfaction of socio-economic rights, resources would inevitably be diverted from attending to the physiological needs to satisfying the avarice of members of the ruling class

TWO SCHOOLS OF THOUGHT ON CHAPTER II

There are two main schools of thought on the Directive Principles:

·         The pro-justiciability school, which argues that Chapter II should be retained and helf to be enforceable by the court, and

·         The anti-justiciability school, which argues for complete elimination or, in the alternative, retention in the constitution for the purpose of acting only as a guide to governance where possible.

THE ANTI-JUSTICIABILITY SCHOOL

Popoola (2010) refers to the position of one Dr. Ojo, which may fairly represent the position of the anti-justiciability school, in certain fundamental respect. This school contends that Chapter II is ‘a (mere) manifesto of aims and aspirations’; a ‘moral homily’; ‘toothless bulldogs’.

Specifically, Dr. Ojo (1976) opines that:

‘there can hardly be any national dissent on the need to provide good shelter for all, …to afford every Nigerian the opportunity to have a say and participation in its government, the need for total education of all, the care for the old and aged etc…and indeed to ensure everyone’s welfare. When we degenerate to seeking provisions for leisure and social life, adequate food for all Nigerians in the Constitution, I believe we are not only reducing the seriousness of the Constitution, we might inadvertently be inviting cynicism on it.

… the inclusion of these objectives and directives in the Constitution may be good politics, but it is certainly not good law or Constitution-making. They should be expunged from the Constitution and severely left to where they properly belong – party political manifestoes (Ojo, A.  in Sunday Times, 31 October 1976, cited in A. O. Popoola, 2010: 324 at 351, Cited in A. O. Popoola (2010: 324 at 348)

 

The anti-justiciability school also relies on the position of Professor Wheare who submits that :

‘…it is worth remarking that a Constitution is first of all a legal document. It is intended to state supreme rules of law. It should confine itself therefore, as completely as possible to stating rules of law, not opinions, aspirations, directives and policies….’ (Wheare, cited in A. O. Popoola (2010: 324 at 348)

 

THE NON-JUSTICIABILITY PROVISION IN THE 1999 CONSTITUTION

The sole key constitutional provision, which the non-justiciability school relies upon is S. 6 (6)(c), which provides that:

 

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

THE CONSTITUTIONAL PRO-JUSTICIABILITY PROVISIONS

The following constitutional provisions make the Constitution, particularly Chapter II, binding. These are:

1.      S. 6(6)(c), CFRN, 1999

2.      S. 1(1), CFRN, 1999.

3.      Section 13, CFRN, 1999.

4.      section 224, CFRN, 1999, and

5.      Item 60(a) of the Exclusive Legislative List.

The above listed provisions are discussed below.

·         S.6(6)(C) Does Not Completely Foreclose Justiciability of Chapter II

Unlike the constitution of many other countries, including India, which directly declares that similar provisions shall not be enforceable, S.6(6)(c) of the 1999 constitution does not absolutely foreclose justiciability of chapter II and allows its enforcement if it is so provided in any other section of the Constitution. The court, in Federal Republic of Nigeria v. Anache (2004), has upheld this position, stating that since S. 6(6)(c) is qualified by the phrase, ‘save as otherwise provided by this Constitution’, the justiciability of Chapter II is not entirely foreclosed

Also, in Olafisoye v. Federal Republic of Nigeria (2005), the court was asked to determine whether or not the National Assembly is competent to make laws for the peace, order and good governance of Nigeria, pertaining to abolishing corrupt practices and abuse of power under S. 15(5)[2] – a section under Chapter II; combined with other provisions of the Constitution. In this particular case, the Supreme Court upheld the likelihood of justiciability of Chapter II, ‘if’ the Constitution makes a section(s) of Chapter II justiciable, as follows:

The non-justiciability of (sic!) section 6(6)(c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of 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 Chapter II justiciable, it will be so interpreted by the Courts (Olafisoye v. Federal Republic of Nigeria, cited in Anyebe, 2010:379).

Other provisions, which make the Constitution, including Chapter II binding, include:

·         S. 1(1) proclaims the supremacy and bindingness of the constitution, as follows:

1. (1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.

·         Section 13 provides that all authorities and persons exercising legislative, executive or judicial powers ‘shall’ observe and apply Chapter II, 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 [i.e. Chapter II] of this Constitution (S. 13, CFRN, 1999).

·         Section 224 provides:

‘The programme as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution’ (S. 224, CFRN, 1999).

·         Finally, Item 60(a) of the Exclusive Legislative List places responsibility on the Federal Government to establish and regulate ‘ authorities for the Federation or any part thereof -

(a)    To promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution’

 

STATUTORY PRO-JUSTICIABILITY PROVISIONS: THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS ACT, CAP10, LFN, 1990

The African Charter equally contains socio-economic rights, which include:

Article 15: Right to work

Article 16: Right to health

Article 17(1): right to education

Article 17(2): Right to participate in the cultural life of one’s community

Article 17 (3): Duty of state to promote & protect the moral and traditional values recognized by the community

Article 18(1): Recognition of family as the natural unit & basis of a society

Article 18(2): Right of the family to be assisted as the custodian of morals and traditional values

Article 18(3): Protection of the rights of women and children, and

Article 18(4): Rights of the aged and disabled.

The Supreme Court has held in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 600) 228 that:

‘…the African Charter which is incorporated into our municipal law becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts’.

The implication of the above holding of the Supreme Court is that the socio-economic rights in Chapter II are enforceable under the African Charter.

JUDICIAL ATTITUDES TO CHAPTER II PROVISIONS

In this subsection, the following shall be examined:

·         Attitudes of the Nigerian courts to Chapter II provisions

·         Attitudes of courts to economic social and cultural rights (ESCR) in other jurisdictions

·         Nigerian courts’ attitudes to Chapter II provisions: politics or law?

ATTITUDES OF THE NIGERIAN COURTS TO CHAPTER II PROVISIONS

There is no clear cut position of the court in Nigeria on justiciability or otherwise of Chapter II provisions. There are precedents that uphold justiciability in certain contexts, just as there are other precedents that declare same Chapter non-justiciable.

However, the point may be made that where non-implementation of specific socio economic rights are concerned, the predominant attitude of the Nigerian courts is the tendency to hold that Chapter II is non-justiciable.

But the courts have held that Chapter II is justiciable where:

·         Implementation of Chapter II infringes on fundamental rights in Chapter IV, particularly on the right of the private sector to establish private schools, to impart ideas and information, and

·         Where statutes enacted to actualize Chapter II provisions are challenged.

These two aspects are discussed below.

WHERE IMPLEMENTATION OF CHAPTER II RESULTS IN VIOLATION OF CHAPTER IV

Two Chapters in the 1999 Constitution are directly devoted to enunciation of rights:

·         Chapter IV, on fundamental rights (see Appendix B), which are expressly and unconditionally declared justiciable, and

·         Chapter II, on socio-economic rights.

The fundamental rights in chapter IV are civil and political, in nature. By virtue of S. 46(1) and (2) of the Constitution, the Fundamental rights are declared justiciable. This section provides that:

·         46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

·         (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.

The courts tend to exercise jurisdiction in cases where implementation of Chapter II results in violation of Chapter IV. The practical (though unintended) implication of this attitude is to render Chapter II justiciable.

In two cases, namely, Archbishop Anthony Olubunmi Okogie & Ors v. Attorney General of Lagos State (1981) and A . O. Adewole & Ors. V. Alhaji Jakande & Ors (1981), the Lagos State Government, by a circular dated 26 March 1980, purportedly abolished all private primary educational institutions (which were fee-paying) in the state. This was done ‘towards ensuring that there are equal and adequate educational opportunities at all levels as provided under S. 18, of the 1979 Constitution, a non-justiciable provision in the 1979 Constitution. The Plaintiffs, in separate actions, challenged the government policy on the ground that it was unconstitutional. That:

·         It violated their rights to participate in sectors of the economy other than the major sectors of the economy (S. 16(1)(c), a ‘non-justiciable’ section of the of the 1979 Constitution).

·         the responsibility of the Government to provide equal and adequate educational opportunities at all levels  is restricted to government but does not preclude the plaintiffs (i.e. private sector) from providing educational services; (S. 18, CFRN, 1979).

·         It violated their constitutionally guaranteed fundamental right to hold opinions, receive and impart ideas without interference (S. 36(1) of the 1979 Constitution, an expressly identified justiciable section of the Constitution).

In the Okogie case, the Plaintiff applied for reference to the Court of Appeal. The Court of Appeal proceeded on the general note that Chapter II is not justiciable, and that ‘the arbiter for any breach of the Objectives and the Directive Principles of State policy is the legislature or the electorate’ (Cited in Fagbohun, 2010:  150 at 171.). At the same time, the Court of Appeal held that the implementation of Chapter II could not be done in such a way as to infringe on Fundamental rights enunciated in Chapter IV of the Constitution, in the instance case, the freedom to hold opinion, receive and impart ideas. That the court shall not declare any policy or legislation as invalid unless it infringes on constitutionally guaranteed Fundamental rights (See Popoola, 2010: 324 at 343) The court found in favour of the Plaintiffs on the basis that sections 16(1)(c) and 18 of the Constitution guarantee their rights to participate in the economy and hindering them would amount to a violation of their fundamental right under S. 36  - freedom to hold, receive and impart ideas.

WHERE ENACTMENT OF LEGISLATION BASED ON CHAPTER II IS CHALLENGED

The courts in Nigeria tend to hold that Chapter II is justiciable in instances where statutes based on actualizing Chapter II provisions are challenged.

Thus, in Attorney General of Ondo State v. Attorney General of the Federation & ors (2002), the Ondo State Government, on Federalism principle, 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 was established to fight corruption throughout the country, including through prosecution of alleged offenders. The Supreme Court, per Uwaifo, JSC, justified the enactment of the Act on the Fundamental Objectives and Directive Principles of State Policy, borrowing from the Indian jurisprudence, 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

Similarly, in AG Lagos State v. AG Federation (2003) the Supreme Court held that the National Assembly was competent to enact the Federal Environmental Protection Agency Act for the protection of the environment, in furtherance of Chapter II just as the competence of the Federal Government in enacting the Corrupt Practices and Other Related Offences Act, in relation to S. 15(5) (under Chapter II), was upheld in the AG Ondo v. AG Federation case.

The above two cases confirm an alternative route by which chapter II could be enforced in the face of the courts’ reluctance to enforce same. Pressure from below could be mounted on the legislature to  enact statutes pursuant to the rights contained in chapter II, and particularly under S. 13 and item 60(a) of the exclusive Legislative List. The courts would then have no reason not to enforce the provisions of such legislation. The issue of the Constitution having covered the field cannot also arise, as the Constitution does not provide exhaustive details on measures to be taken to give effect to the rights, as held in INEC v. Musa (2003).

On the Right to education and freedom from discrimination:

In Badejo v. Federal Ministry of Education & Ors, the Applicant scored 293 marks and was not invited for interview for admission into Federal Government Colleges because her score was below the 295 cut-off marks for girls from her State of origin. Other candidates from states designated as educationally disadvantaged who scored below 293 were however invited for interview. The Applicant alleged discrimination contrary to S. 39 (a justiciable provision) of the 1979 Constitution. (Note that s. 14(3) a non-justiciable provision however provides for Federal Character principle. The trial court held the applicant lacked locus standi. The court of appeal held that the Applicant had locus but that the event had been overtaken by events. The Supreme Court upheld the holding of the Court of Appeal but said it would not engage in futile academic exercise. The Supreme Court failed to use the opportunity to declare the right of citizens to education (a Chapter II provision) and link the right to education to the right to life (a chapter IV, fundamental rights provision)(See Dakas, 2010:308).

 

ATTITUDES OF COURTS IN OTHER JURISDICTIONS TO ESCR

This subsection analyses the general attitude of courts in other jurisdictions to enforceability or otherwise of socio-economic rights. However, in order to adequately appreciate the judicial attitudes in other jurisdictions, it is important to understand the difference between the constitutional provisions on socio-economic rights of some selected countries.

Differences between the Nigerian Constitutional Provisions on Directive Principles and Other Jurisdictions

In this subsection, the provisions of the Nigerian Constitution on socio-economic rights are compared to the Irish and Indian Constitutions.

The Irish Republic Constitution makes Directive Principles of state policy as a guide for the legislature solely in the making of laws. Thus, statutes that do not conform to the Directive Principles could be set aside by the courts.

Section 45 of the Constitution of the Irish Republic (Eire) provides as follows:

The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas.[3] The application of those principles in the making of laws shall be care of the Oireachtas exclusively, and shall not be cognizable by the Court under any of the provisions of this Constitution. (Cited in Anyebe, 2010:377).

 

Similarly, Article 37, Constitution of India provides that the provisions contained in this Part:

‘shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’ (Cited in Dakas, 2010:287).

The similarity between the Constitutions of Irish Republic and India is that the Directive principles are to act as a guide in the making of laws. However, the provisions of the Nigerian Constitution represent an improvement over those of the Indian and Irish Constitutions, in that, the Nigerian Constitution makes it mandatory for all authorities to ‘observe’ and ‘apply’ the Directive Principles, in the following words:

S. 13. 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.

Whereas the courts have been generally more active and enthusiastic in enforcing socio-economic rights in jurisdictions where the Directive Principles are merely to be used as a guide in law making, in Nigeria (where the Constitution mandates the courts to enforce socio-economic rights), the courts have generally been hesitant in enforcing same rights.

 

JURISPRUDENCE OF INDIAN COURTS ON DIRECTIVE PRINCIPLES

Let us recall, as explained above, that the Indian Constitution, unlike the Nigerian Constitution, expressly and unambiguously make socio-economic rights (contained in its Directive Principles) unenforceable by the courts. In spite of that limitation, the Indian courts have successfully and creatively made socio-economic rights enforceable by establishing that the right to life (which is constitutionally enforceable) is meaningless without enforcing socio-economic rights.

Thus in Francis Coralie v. Union Territory of India (1981), the Indian Supreme Court held that the right to life includes the protection of:

‘every limb or faculty through which life is enjoyed …namely, the bare necessities of life such as adequate nutrition, clothing, and shelter and facilities for reading, writing, and expressing oneself in diverse forms, freely moving about and …’

 

The Right to Shelter

 

In Shanti Star Builders v. Narayan K. Totame (1990) the court held that ‘the right to life …would take within its sweep the right to food… and a reasonable accommodation to live in’

 

Also, In Olga Tellis v. Bombay Municipal Corporation, the petitioners sought to restrain the Bombay Municipal Corporation from evicting them from their slum and pavement dwellings on the ground that eviction would constitute an infringement of their right to life. Though the court held that in the instant case, the petitioners needed the authorization of government to use public place for private purpose, the court used the case to justify how the right to shelter is a part of the right to life, as follows:

 

The sweep of the right to life conferred by Article 21 is wide and far reaching… An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as part of the right to life, the easiest way of depriving a person his right tolife would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life…So unimpeachable is the evidence of the nexus between life and the means of livelihood…

 

Indeed, in Port Elizabeth Municipality v. Various Occupiers, the South African Constitutional Court restrained the eviction of occupiers on the ground that it infringed on the right to housing. It affirmed “the need for special judicial control” of the process of eviction, concluding that while there is no constitutional requirement that the state provide housing to any evicted household, “a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme.” Note that in South Africa, unlike Nigeria, socio-economic rights are justiciable. The South African Constitution only has a Bill of Rights in its Chapter II, which comprises both socio-economic and civil and political rights, without identifying one as ‘fundamental rights’ and naming the other, ‘Directive Principles’.

 

(Also, in South Africa, the constitutional right to water has been upheld by the court. In Bon Vista Mansions, the High Court of South Africa found a violation of the constitutional right to water on the basis that the Applicants had existing access to water before the Council disconnected the supply. The Court held that the act of disconnecting the supply was prima facie in breach of the Council’s constitutional duty to respect the right of access to water, in that disconnection deprived the Applicants of existing access. An interim injunction was issued ordering the local authority to restore the water supply to the residents)

 

 

 

 

 

 

Right to food

 

In Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors  the Supreme Court made several orders directing state governments to ensure regular supplies of food to prevent hunger and starvation:

 

In our opinion, what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them…

 

In another order, the court directed state governments to implement a Mid-day Meal Scheme:

 

…by providing every child in every Government and Government assisted primary schools with a prepared mid-day meal with a minimum content of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days. Those governments providing dry rations instead of cooked meals must within three months start providing cooked meals in all Government and Government-aided primary schools in at least half the districts of the State (in order of poverty) and must within a further period of three months extend the provision of cooked meals to the remaining parts of the state

 

The right to education: the nexus between directive principles and fundamental rights

The Supreme Court of India has used the right to education to brilliantly explain the relationship between the directive principles, which are not justiciable and the fundamental rights, which are justiciable.

 

In Mohini Jain v. State of Karnataka (1992)  , otherwise called the Capitation fees case, the Supreme Court declared the charging of capitation fees in professional colleges as illegal and unconstitutional, on the ground that ‘the right to education flows directly from the right to life’ because ‘the right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education’ as the ‘Fundamental Rights guaranteed under Part III of the Constitution of India, including the right to freedom of speech and expression … cannot be appreciated and fully enjoyed unless a citizen is educated.’(cited in Dakas, 2010:301). The Supreme Court held that:

 

The directive principles which are fundamental in the governance of the country cannot be isolated from the Fundamental rights guaranteed under Part III. These principles have to be read into the Fundamental rights. Both are supplementary to each other… Without making ‘right to education’ under Article 41 of the Constitution a reality, the Fundamental Rights under chapter III shall remain out of reach of a large majority which is illiterate (cited in Dakas, 2010:3010).

 

 Although scholars have pointed out that there are other precedents which show that the Supreme Court of India has not always been consistent in linking the Directive Principles to Fundamental rights, it is generally recognized that ‘the India judiciary has, generally speaking, commendably transformed the bifurcated regime of human rights under the India Constitution into a symbiotic, supplementary and mutually reinforcing framework’ (Dakas, 2010:304).

 

NIGERIAN COURTS’ ATTITUDES TO CHAPTER II PROVISIONS: POLITICS OR LAW?

On the basis of the foregoing analysis of constitutional provisions, the judicial activism in other jurisdictions as far as ESCRs are concerned, one cannot but agree with (Odinkalu, 2012:12) that the judicial attitude in Nigeria that Chapter II is non-justiciable is politics rather than law. Odinkalu (2012:12) posits, and we agree that:

‘Any suggestion of conflict between Sections 6(6)(c) and 13 does not arise because of the contingent modifier in the former provision, which, in the structure of the Nigerian Constitution, necessarily means that the latter [i.e. section 13] applies by virtue of the modifying contingency evinced in the former … Without a basis, therefore, in the text of the Constitution, the idea that socio-economic rights are not justiciable is easily exposed as founded merely on ideological factors extrinsic to our Constitution (Odinkalu, 2012:12)

In other words, the failure or refusal of the courts to determine issues relating to socio-economic matters is nothing but the unpreparedness of the courts to ‘step on the toes’. (Anyebe, P. (2010:376) of political power holders (in the interest of the ruling class and against the interest of the downtrodden) and not necessarily because the law makes socio-economic rights unjustifiable.

The Nigerian judiciary is urged to be guided by the courageous words of the Late Kayode Esho, JSC:

It would be tragic to reduce Judges to a sterile role and make an automation of them. I believe it is the function of Judges to keep the law alive, in motion, and to make it progressive for the purpose of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable, but acceptable way of avoiding narrowness that spells injustice. Short of being a legislator, a Judge, to my mind, must possess an aggressive stance in interpreting the law (Kayode Esho in Transbridge Trading Company Limited v. Surrvey International Limited (1996) 4 NWLR (Part 37) 576 at 596-597, cited in Dakas, 2010:313.)

 

THE ROLE OF CIVIL SOCIETY

The Constitution is not just a legal document; it is fundamentally a political document, a product of political processes; a product of interplay of social and political forces, a reflection of the balance of power between the ruled and the rulers. The inclusion of Chapter II for the first time in the 1979 Constitution reflected a phase, wherein the welfare of the people was, relatively, the priority of government, as reflected in the 2^nd National Development Plan. Today, there is a paradigm shift (since 1986), from the state being the engine of economic power to the private sector being the engine of economic power. Hence, privatization of public enterprises has become the primary programme of government. There is therefore a linkage between the tendency o hold that Chapter II is not justiciable and neoliberal policy of privatization. Let us recall that Chapter II provides essentially for state ownership in the major sectors of the economy. Therefore, the enforcement of Chapter II has to be politically resolved. The judiciary itself is susceptible to political influences and cannot therefore be relied upon absolutely to realize implementation of Chapter II.

WHAT IS TO BE DONE?

 

Beyond investing hopes in the judicial enforcement of ESCR, civil society, including the trade union movement, has a responsibility to mount pressure from below, including strike actions, to actualize socio-economic rights, such as the right to cost-free healthcare. As the late Akinola Aguda (2000:307) pointed out:

 

The provisions of Chapter II of the 1999 Constitution constitute the most blatantly political part of the Constitution, in itself an essentially political instrument… They constitute the political manifesto of the vast majority of Nigerians. Therefore, to be realistic, their enforcement will have to be largely political.

 

Arewa (2010:457) appears to agree with Aguda when he stated that ‘those who govern cannot be trusted to give effect to the laudable objectives encapsulated in Chapter II and that the citizenry must be in the driving seat in ensuring that the letters of the Constitution are translated into concrete reality…’

 

In order to strengthen the struggle for the actualization of socio-economic rights in Nigeria, it is suggested that civil society and particularly the labour movement component, embark on public campaigns such that:

 

·         Chapter II provisions are transferred to Chapter IV so that the economic and social rights become fundamental rights, or

·          

·         S. 6(6)(C) is out-rightly deleted from the CFRN, 1999 through constitutional amendment/reform,

·          

·         Nigeria be brought under pressure to implement international treaties to which it willingly accepted membership, regardless of whether or not the country practices the dualist or the monist system[4]. This will be in accordance with the holding of the ECOWAS Court in Socio Economic Rights and Accountability Projects (SERAP) v. FRN and Universal basic Education Commission (UBEC). In the case, SERAP filed a suit against the Federal Government of Nigeria and UBEC, alleging violation of the rights of Nigerians to quality education, dignity of the human person, and the right of peoples to their wealth and natural resources as well as the right to economic and social development guaranteed under the African Charter on Human and Peoples Rights (ACHPRs)[5]. The Federal Government of Nigeria and UBEC claimed that the right to education is non-justiciable, being a right under Chapter II. The ECOWAS Court held that irrespective of the non-justiciability of the right to education under Nigerian Constitution, the government is bound by the African Charter on Human and Peoples Rights, which guarantees the right to education and ‘the fact that these rights are domesticated in the municipal law of the Federal Republic of Nigeria cannot oust the jurisdiction of the Court, and

·         Overwhelming proportions of the citizenry accept that it is a basic responsibility of government to meet the socio-economic rights, regardless of what the Constitution or law provides. This would mean transforming the debate from justiciability to normativity. The attitude of the courts to enforceability of socio-economic rights is likely to be positively influenced by what is considered as the societal norm. After all, not all countries in the world operate the written constitution.

Thanks for your attention.

Femi Aborisade

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·          

·         REFERENCES

·          

·         Papers and documents cited

·         Akande, J. O. (1999). Introduction to the Constitution of the Federal Republic of Nigeria, 1999. Lagos: MIJ Professional Publishers, cited in Arewa, J. A. (2010), ‘The state of socio-economic rights in Nigeria: Exploring the Potential of law to further the development goals of Nigeria’ in Azinge, E. & Owasanoye, B. (2010).

·         Alemika, E.E.O. (2010) ‘socio-economic consequences of non-justiciability of the fundamental objectives and directive principles of state policy’ in Azinge, E. & Owasanoye, B. (2010), pp. 224-261)

·         Anyebe, P. (2010). ‘Enforcing the good governance charter: Judicial and non-judicial approaches to economic, social and cultural rights under chapter two of the 1999 Constitution’ in Azinge, E. & Owasanoye, B. (2010).

·         Arewa, J. A. (2010), ‘The state of socio-economic rights in Nigeria: Exploring the Potential of law to further the development goals of Nigeria’ in Azinge, E. & Owasanoye, B. (ed) (2010). pp. 394-450.

·         Azinge, E. & Owasanoye, B. (ed) (2010).  Justiciability and constitutionalism: An economic analysis of law. Lagos: Nigerian Institute of Advanced Legal Studies.

·         Dakas, D., CJ (2010). A panoramic survey of the jurisprudence of Indian and Nigerian courts on the justiciability of fundamental objectives and directive principles of state policy’ in Azinge, E. & Owasanoye, B. (2010).

·         Fagbohun, O. (2010). ‘Legal arguments for non-justiciability of Chapter 2 of the 1999 Constitution’ in Azinge, E. & Owasanoye, B. (ed) (2010).  Justiciability and constitutionalism: An economic analysis of law. Lagos: Nigerian Institute of Advanced Legal Studies, pp. 150-190.

·         Hart, H.L.A. (1961). The concept of law. London: Oxford University Press, cited in Fagbohun (2010).

·         Odinkalu, C. A. (2012). Lawyering for a cause: The Femi Falana story and the imperative of justiciability of socio-economic rights in Nigeria. Text of Public Lecture in Honour of Femi Falana, SAN, delivered at The Polytechnic, Ibadan (10 December).

·          

·         Popoola, A. O. (2010). ‘Fundamental Objectives and Directive Principles of State Policy: Executive Responsibility and the Justiciability Dilemma in Azinge, E. and Owasanoye, B. (2010). ….., pp. 324-368.

·         The Vieena Declaration and Programme of Action, UN Doc. A/Conf. 157/23, Part I, para 5, cited in Fagbohun (2010), pp. 157-158.

·          

·         Cases cited

·         Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 600) 228.

·          

·         AG Lagos State v. AG Fedration (2003) 15 NWLR (Pt. 842) 113, 175.

·          

·         AIR 1978 SC 597.

·          

·         Attorney General of Ondo State v. Attorney General of the Federation & ors (2002) FWLR (Part 111) 1972 at 2144.

·          

·         Federal Republic of Nigeria v. Anache (2004) 14 WRN.

·          

·         Francis Coralie v. Union Territory of India (1981) 1 SCC 608, at 618-619, cited in Dakas (2010: 288).

·          

·         INEC v. Musa (2003) 3 NWLR (Pt. 806) 72, 152.

·          

·         Minerva Mills Ltd & Ors v. Union of India & Ors AIR 1789 1981 SCR (1) 206 1980 SCC (3) 625.

·          

·         Mohini Jain v. State of Karnataka (1992) AIR SC 1858.

·          

·         Olafisoye v. Federal Republic of Nigeria (2005) 51 WRN 52.

·          

·         Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545.

·         Oronto Douglas v. Shell Petroleum Development Company Limited (1999) 2 NWLR (Pt. 591) 466.

·          

·         Shanti Star Builders v. Narayan K. Totame (1990) 1 SCC 520.

·         Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria (3oth Ordinary Session, Banjul, The Gambia, 13 -27 October, 2001)

·          

·         Socio Economic Rights and Accountability Projects (SERAP) v. FRN and Universal basic Education Commission (UBEC), cited in Anyebe, P. (2010), in Azinge,…, pp. 380-381.

·          

·         Uzuokwu v. Ezeani (1991). 6 NWLR (Pt. 200) 700 at 761-762.

·          

·         W.P. (Civil) No. 196/2001, (unreported) May 2, 2003.

·          

·         Statute referred to

·         Corrupt Practices and Other Related Offences Act, 2000.

·          

·         Website

·         http://www.ichrp.org/files/papers/96/108__Justiciability_of_Economic_Social_and_Cultural_Rights_-_Relevant_Case_Law_Verma__Shivani__2005__background.pdf

·          

 

 

 

 

 

 

 

 

 

 

 

·         APPENDIX A: THE PROVISIONS OF CHAPTER II, CFRN 1999

·          

·         Chapter II

·         Fundamental Objectives and Directive Principles of State Policy

·         13. 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.

·         14. (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.

·         (2) It is hereby, accordingly, declared that:

·         (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;

·         (b) the security and welfare of the people shall be the primary purpose of government: and

·         (c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.

·         (3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.

·         (4) The composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.

·         15. (1) The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress.

·         (2) Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.

·         (3) For the purpose of promoting national integration, it shall be the duty of the State to:

·         (a) provide adequate facilities for and encourage free mobility of people, goods and services throughtout the Federation.

·         (b) secure full residence rights for every citizen in all parts of the Federation.

·         (c) encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and

·         (d) promote or encourage the formation of associations that cut across ethnic, linguistic, religious and or other sectional barriers.

·         (4) The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties.

·         (5) The State shall abolish all corrupt practices and abuse of power.

·         16. (1) The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution.

·         (a) harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy;

·         (b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity;

·         (c) without prejudice to its right to operate or participate in areas of the economy, other than the major sectors of the economy, manage and operate the major sectors of the economy;

·         (d) without prejudice to the right of any person to participate in areas of the economy within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.

·         (2) The State shall direct its policy towards ensuring:

·         (a) the promotion of a planned and balanced economic development;

·         (b) that the material resources of the nation are harnessed and distributed as best as possible to serve the common good;

·         (c) 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; and

·         (d) that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens.

·         (3) A body shall be set up by an Act of the National Assembly which shall have power;

·         (a) to review, from time to time, the ownership and control of business enterprises operating in Nigeria and make recommendations to the President on same; and

·         (b) to administer any law for the regulation of the ownership and control of such enterprises.

·         (4) For the purposes of subsection (1) of this section -

·         (a) the reference to the "major sectors of the economy" shall be construed as a reference to such economic activities as may, from time to time, be declared by a resolution of each House of the National Assembly to be managed and operated exclusively by the Government of the Federation, and until a resolution to the contrary is made by the National Assembly, economic activities being operated exclusively by the Government of the Federation on the date immediately preceding the day when this section comes into force, whether directly or through the agencies of a statutory or other corporation or company, shall be deemed to be major sectors of the economy;

·         (b) "economic activities" includes activities directly concerned with the production, distribution and exchange of weather or of goods and services; and

·         (c) "participate" includes the rendering of services and supplying of goods.

·         17. (1) The State social order is founded on ideals of Freedom, Equality and Justice.

·         (2) In furtherance of the social order-

·         (a) every citizen shall have equality of rights, obligations and opportunities before the law;

·         (b) the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced;

·         (c) governmental actions shall be humane;

·         (d) exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented; and

·         (e) the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.

·         (3) The State shall direct its policy towards ensuring that-

·         (a) all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;

·         (b) conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;

·         (c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

·         (d) there are adequate medical and health facilities for all persons:

·         (e) there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;

·         (f) children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect;

·         (g) provision is made for public assistance in deserving cases or other conditions of need; and

·         (h) the evolution and promotion of family life is encouraged.

·         18. (1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.

·         (2) Government shall promote science and technology

·         (3) Government shall strive 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.

·         19. The foreign policy objectives shall be -

·         (a) promotion and protection of the national interest;

·         (b) promotion of African integration and support for African unity;

·         (c) promotion of international co-operation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestations;

·         (d) 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

·         (e) promotion of a just world economic order.

·         20. The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.

·         21. The State shall -

·         (a) protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and

·         (b) encourage development of technological and scientific studies which enhance cultural values.

·         22. The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.

·         23. The national ethics shall be Discipline, Integrity, Dignity of Labour, Social Justice, Religious Tolerance, Self-reliance and Patriotism.

·         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 of others and live in unity and harmony and in the spirit of common brotherhood;

·         (d) make positive and useful contribution to the advancement, progress and well-being of the community where he resides;

·         (e) render assistance to appropriate and lawful agencies in the maintenance of law and order; and

·         (f) declare his income honestly to appropriate and lawful agencies and pay his tax promptly.

·          

·          

·         APPENDIX B: FUNDAMENTAL RIGHTS IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, CFRN, 1999

·         Chapter IV

·         Fundamental Rights

·         33. (1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

·         (2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary -

·         (a) for the defence of any person from unlawful violence or for the defence of property:

·         (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

·         (c) for the purpose of suppressing a riot, insurrection or mutiny.

·         34. (1) Every individual is entitled to respect for the dignity of his person, and accordingly -

·         (a) no person shall be subject to torture or to inhuman or degrading treatment;

·         (b) no person shall he held in slavery or servitude; and

·         (c) no person shall be required to perform forced of compulsory labour.

·         (2) for the purposes of subsection (1) (c) of this section, "forced or compulsory labour" does not include -

·         (a) any labour required in consequence of the sentence or order of a court;

·         (b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;

·         (c) in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;

·         (d) any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or

·         (e) any labour or service that forms part of -

·         (i) normal communal or other civic obligations of the well-being of the community.

·         (ii) such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly, or

·         (iii) such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.

·         35. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law -

·         (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;

·         (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;

·         (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

·         (d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;

·         (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or

·         (f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:

·         Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

·         (2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

·         (3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.

·         (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of -

·         (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or

·         (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

·         (5) In subsection (4) of this section, the expression "a reasonable time" means -

·         (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and

·         (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.

·         (6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law.

·         (7) Nothing in this section shall be construed -

·         (a) in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and

·         (b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by such detention of which he has been found guilty.

·         36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

·         (2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law -

·         (a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

·         (b) contains no provision making the determination of the administering authority final and conclusive.

·         (3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.

·         (4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:

·         Provided that -

·         (a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen

·         years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;

·         (b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.

·         (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;

·         Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

·         (6) Every person who is charged with a criminal offence shall be entitled to -

·         (a) be informed promptly in the language that he understands and in detail of the nature of the offence;

·         (b) be given adequate time and facilities for the preparation of his defence;

·         (c) defend himself in person or by legal practitioners of his own choice;

·         (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and

·         (e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.

·         (7) When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any persons authorised by him in that behalf shall be entitled to obtain copies of the judgement in the case within seven days of the conclusion of the case.

·         (8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed

·         (9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.

·         (10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.

·         (11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

·         (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

·         37. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

·         38. (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

·         (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.

·         (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.

·         (4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.

·         39. (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

·         (2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:

·         Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.

·         (3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society -

·         (a) for the purpose of preventing the disclosure. of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

·         (b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.

·         40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

·         Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.

·         41. (1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.

·         (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society-

·         (a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or

·         (b) providing for the removal of any person from Nigeria to any other country to:-

·         (i) be tried outside Nigeria for any criminal offence, or

·         (ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty:

·         Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.

·         42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-

·         (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

·         (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

·         (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

·         (3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.

·         43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

·         44. (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things -

·         (a) requires the prompt payment of compensation therefore and

·         (b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

·         (2) Nothing in subsection (1) of this section shall be construed as affecting any general law.

·         (a) for the imposition or enforcement of any tax, rate or duty;

·         (b) for the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;

·         (c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.

·         (d) relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporate bodies in the course of being wound-up;

·         (e) relating to the execution of judgements or orders of court;

·         (f) providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;

·         (g) relating to enemy property;

·         (h) relating to trusts and trustees;

·         (i) relating to limitation of actions;

·         (j) relating to property vested in bodies corporate directly established by any law in force in Nigeria;

·         (k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;

·         (l) providing for the carrying out of work on land for the purpose of soil-conservation; or

·         (m) subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in

·         order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.

·         (3) Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

·         45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

·         (a) in the interest of defence, public safety, public order, public morality or public health; or

·         (b) for the purpose of protecting the rights and freedom or other persons

·         (2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:

·         Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.

·         (3) In this section, a " period of emergency" means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.

·         46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

·         (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.

·         (3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.

·         (4) The National Assembly -

·         (a) may confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section; and

·         (b) shall make provisions-

·         (i) for the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and

·         (ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.

·          

·          

 

---

[1] Being paper delivered at a Workshop organized by the Food, Beverage and Tobacco Senior Staff Association in collaboration with Friedrich Ebert Foundation on the theme "Social Protection and the Decent Work Agenda in the Food. Beverage and Tobacco Industry: Issues Arising" on 19^th- 20th April, 2013 at Grand Inn and Suites, IJebu-Ode, Ogun State.

[2] Note however that in Adebiyi Olafisoye v. Federal Republic of Nigeria (2004) The Supreme Court adopted the literal rule in statutory interpretation and held that the provisions of S. 6(6)(c) of the CFRN are clear that S. 15(5), (one of the sections under chapter 2) is not justiciable.

 

[3] i.e. Irish Parliament

[4] The dualist system refers to the process by which rights contained in International Treaties such as the African Charter on Human and Peoples Rights are first incorporated or transformed into domestic law through legislation to be binding. The monist system refers to the process whereby rights in international treaties are automatically adopted into domestic law

[5] Particularly under Article 17 (right to education) and Articles 1, 2, 21 and 22 of the ACHPRs.