COMPARATIVE ANALYSIS OF JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA
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ABSTRACT
This study examines the justiciability of economic and social rights in Nigeria, focusing on the legal and philosophical challenges that render these rights non-justiciable under the 1999 Constitution of Nigeria (as amended). Despite their inclusion in Chapter II as Fundamental Objectives and Directive Principles of State Policy, section 6(6)(c) explicitly precludes judicial enforcement, creating a significant barrier to their realization. The research critiques the traditional classification of human rights into generations, which often deems economic and social rights as non-justiciable due to their perceived dependence on resource availability and the risk of judicial overreach into legislative and executive domains. Through a doctrinal and comparative methodology, the study analyzes Nigerian jurisprudence alongside practices in jurisdictions such as South Africa, India, and Ghana, where courts have progressively enforced socio-economic rights. It argues that the interdependence and indivisibility of all human rights necessitate an expansive judicial interpretation to include socio-economic rights, drawing on international instruments like the African Charter on Human and Peoples’ Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The study proposes practical strategies, including leveraging domesticated international treaties, adopting integrative judicial interpretations, and utilizing existing domestic legislation to promote the enforcement of these rights. It concludes that progressive realization and adjudication of economic and social rights are both feasible and essential for Nigeria to align with global human rights standards, advocating for judicial activism, legislative reforms, and public advocacy to overcome current limitations.
CHAPTER ONE
GENERAL INTRODUCTION
1.1. Background of the Study
The
debate about the justiciability of economic and social rights in Nigeria is an
old and well-worn one. The appraisal of the arguments against making socio-
economic rights justiciable and the analysis of jurisprudence determine that
concerns about the justiciability of economic and social rights are generally
ill-conceived and run contrary to experience.[1]
Indeed, critics of justiciability have relied on overly simplistic division of
the rights in the Universal Declaration of Human Rights into two separate
covenants. One contained economic, social and cultural rights, while civil and
political rights were set out in the other. Though both set of rights were
affirmed to be indivisible and interdependent, commentators have often
distinguished between the two categories of rights by asserting that economic
and social rights are not justiciable.[2]
Worse still, economic and social rights are classified under Chapter II of the
1999 Constitution of Nigeria (as amended), as Fundamental Objectives and
Directive Principles of State Policy and
as such, these rights have been rendered non-justiciable by section 6(6) (c) of
the 1999 Constitution. Also, critics of justiciability have relied on incorrect
assumptions about the nature of the relationship between the judiciary and the
legislative or executive branches of government, when economic and social rights
are adjudicated.
To the contrary, the ways in which civil and political rights
and socio-economic rights are inter-twined and interact with one another make
it impossible to declare the latter category non-justiciable without
undermining protections of both categories of rights.[3]
These rights, otherwise called second generation rights are bedeviled often by
the absence of legal framework to implement the provisions in the international
covenants and national constitutions.[4]
Apart from the legal framework, there appears the negating influence by the
international formulators of those rights where the extent of enjoyment of
those rights, is dependent on resource availability.[5]
Little wonder therefore, that many national constitutions have the
provision made almost nebulous as to grant them the backing of a legal redress
much as often as enjoyed by the first generation rights, comprising civil and
political rights. The attempt is to make economic, social and cultural rights a
lame provision in many national constitutions of government, much as political
party manifestoes.
However, evidence demonstrates that in recent years, an
increasing number of countries have included economic and social rights in
their constitutions. In addition, some domestic courts and regional bodies
routinely adjudicate and rule upon socioeconomic rights claims. For example,
economic and social rights are litigated directly and indirectly before
regional bodies, including the African Commission of Human Rights, the
inter-American Court of Human Rights, European Committee of Social Rights, the
European Court of Human Rights, the African Court of Human Rights and other
international bodies.
1.2. Statement of the Problem
Three
important factors impede effective promotion and protection of economic and
social rights in most domestic jurisdictions, in particular, common law
jurisdictions such as Nigeria.[6]
The first, arising from the classification of rights in international law into
3 generations, is the wide conception that economic and social rights, unlike
civil and political rights are not justiciable.
Closely following this reasoning is yet a wider conception
that the provisions of ‘Fundamental
Objectives and Directive Principles of State Policy’
contained in Chapter II of the 1999
Constitution
of Nigeria are economic and social rights provisions and therefore, are by
section 6(6)(c) of the said Constitution, non-justiciable.[7] The
third factor is the provision of the very international treaty that codified
economic and social rights (the International Covenant on Economic, Social and
Cultural Rights) to the effect that economic and social rights should be
realized or implemented progressively.
The justification for this is said to be that economic and
social rights require financial and material resources and that international
law or the municipal legislature would not impose obligations with financial
implication on the executive government. Each government should therefore
fashion out how it would realize the economic and social rights based on
resources available to it.8 It
is worthy of note here that not all economic and social rights require
resources for instance: labour rights, rights to free economic activity, and so
on.[8]
The United Nations through its Commission on Human Rights
(now Human Rights Council) voted in favour of non-justiciability of economic
and social rights.[9]
The Nigerian Constitution Drafting Committee had also advanced the
argument that if the objectives and directive principles were made enforceable,
it would lead to constant confrontation between the executive and the
legislature on the one hand, and the judiciary on the other hand. To make the
judiciary the arbiters over such matters is only a short step towards building
up against them the charge of usurping the functions of the executive and the
legislature.[10]
It has similarly been contended that it will be tantamount to asking Judges to
make political value judgments if they have to decide whether governmental
actions and omissions are in line with the objectives and the directives.[11] It is argued that if the courts are granted
power to determine the priorities of government in all circumstances, that
would amount to determining the plan of action for the executive.[12] Justiciability, it is also contended, will
lead to multiplicity of actions which the courts lack the capacity to cope
with.[13]
This dissertation shall give an in-depth exposition on all these problems that
have been enumerated above.
1.3. Research Questions
In
the course of this academic inquiry, certain imperative research questions come
to mind amongst which are:
a) Does the International
Covenant on Economic, Social and Cultural Rights (ICESCR) articulate real
rights, or does it merely set forth hortatory goals, programmatic objectives or
utopian ideals?
b) Can economic, social and
cultural rights ever be fully achieved?
c) How can they best be
enforced?
d) Are economic, social and
cultural rights soft laws?
e) Should human rights be
classified into generations?
f) Are all human rights
universal, interdependent, inter-related and indivisible?
g) Will justiciability of
economic and social rights lead to multiplicity of actions which the courts
lack the capacity to cope with?
h) Will justiciability of
economic and social rights be tantamount to asking judges to make political
value judgements?
i) Why are economic and social
issues called ‘rights?’
j) What are the challenges to
the enforcement of economic and social rights?
k) Where should we place human
rights in the development discourse?
l) How does one calculate the
‘maximum extent of available resources?’
m) Should there be progressive
realization of economic, social and cultural rights?
1.4. Objective of the Study
The
objective of this study is to show that despite the controversies surrounding
the question of justiciability of economic and social rights in Nigeria,
progressive realization of these rights is practicable and that adjudication is
seriously urged in Nigeria, as this is already taking place in various
jurisdictions of the world.
1.5. Methodology
A
doctrinal approach is adopted. This
involves both library and desk research.
To this end, the study relied on primary source materials like
observations by learned commentators. A detailed and comprehensive review of
secondary source materials like case laws, statutes, conventions, treaties,
textbooks, journals, articles, periodicals, conference papers, legal news, law
reviews, the internet and other legal literature has been made. The collation and analysis of foreign and
local decided cases form part of the methods adopted in this work. Also, the methodology adopted in this
dissertation is descriptive, analytical, critical and comparative. It is descriptive and analytical because the
work described and analyzed the present state of socio-economic rights in
Nigeria, as well as some other selected jurisdictions. To ensure that the analysis undertaken in
this research work goes a step beyond the descriptive level, a critical
approach has been adopted. In order to
bring out best practices and also to lay down the general theoretical and
philosophical background of this study, effort has been made to compare the
position of the law in Nigeria with those of other jurisdictions like South
Africa, Ghana, Zambia, United Kingdom, India and Argentina. Thus, the relevant and basic laws and
institutional practices of the countries under review will be analyzed in this
dissertation. Existing scholarly writings and jurisprudence will be used in
giving this comparative analysis.
1.6. Organization of the Study
This
dissertation revolves around the vexed issue of the justiciability of economic
and social rights in Nigeria. It is divided into 5 chapters with clearly
designated headings and sub-headings.
Chapter one is the general introduction. Chapter two borders on the
generations of human rights, as well as the development of economic and social
rights through international instruments. Chapter three addresses the general
debates over the justiciability of economic and social rights and the state of
socio-economic rights in Nigeria. Chapter four is a comparative analysis of
other jurisdictions. The paper is concluded with a summary of the findings
followed by recommendations on what can be done to ensure the progressive
realization of these rights in
Nigeria.
1.7. Definition of Terms
1.7.1. Economic and Social Rights
They
are those rights that protect the necessities of life or that provide for the
foundations of an adequate quality of life.[14]
The necessities of life encompasses at a minimum, rights to adequate
nutrition, housing, health and education.[15] All
of these rights provide foundations upon which human development can occur and
human freedom flourish.[16]
Economic and social rights may also be defined as claims
against the State to have certain basic social and economic needs of life
satisfied.[17]
These social claims have also been defined by Sen as basic entitlements.[18] Sen argues that people are entitled in the
prevailing system of institutional rights, to adequate means for survival.
Entitlements are the totality of things a person can have by virtue of her
rights, which in turn depends on the legitimized process of acquiring goods
under the relevant system.[19]
The concept of basic human needs involves drawing a list of foundational human
needs of both physiological as well as social import. In addition, such basic
social rights should be conceptualized in terms of an entitlement both to be
equal as humans and to be equal as members of society. Indeed, there is
extensive literature that views these rights as part and parcel of universal
human entitlement.[20]
According to Vance, “let me define what we mean by Human Rights”. There is the
right to the fulfillment of such vital needs as food, shelter, health care and
education. We recognize that the fulfillment of this right will depend, in
part, upon the stage of a nation’s economic development. But we also know that
this right can be violated by a Government’s action or inaction for example,
through corrupt official processes which divert resources to the elite at the
expense of the needy, or through indifference to the plight of the poor.[21]
Inspite of this noble objective, there is on-going debate
about the justiciability, that is, adjudication and enforcement of economic and
social rights. Proponents exist on both sides of the debate. To understand the
nature of this discourse, we shall hereunder analyze the concept of
justiciability.
1.7.2. Justiciability
This
has been defined as “the quality or state of being appropriate or suitable for
review by a court”.[22] Arambulo remarks that the term
‘justiciability’, is generally understood to refer to a right’s faculty to be
subjected to the scrutiny of a court of law or another (quasi-judicial)
entity.
A
right is said to be justiciable when a judge can consider this right in a
concrete set of circumstances and when this consideration can result in the
further determination of this right’s significance.[23]
[1] . K .T. Fyanka, “The Justiciability of Social Rights:
Myth or Reality?” Human Rights Review, An
International Human Rights Journal,
vol. I, No. 1, (2010), pp. 433 – 464 at p. 462.
[2] .
[3] . Ibid.
[4]
. Fyanka, loc. cit., p.
463.
[5] .
[6] . E. C.
Obiagwu, Promoting Economic, Social and
Cultural Rights Using Domestic Legal Mechanisms, (Enugu:
Fourth
Dimension Publishing Co. Ltd., 2003), p. 163.
[7] . Ibid. 8. Ibid.
[8] .
[9] . K. M.
Danladi, “An Overview of Protection and Enforcement of Economic, Social and
Cultural Rights Under International
Regional Legal Regimes Convention”, An
International Human Rights Journal, vol. I., No. 1, (2010), pp. 323-432 at p. 340.
[10] . Report of
the Constitution Drafting Committee containing the Draft Constitution vol. 1,
(Lagos: Federal Ministry of Information, 1976), p. vii.
[11] . O. N. Ogbu,
“The Significance And Essence of the Fundamental Objectives And Directive Principles of State Policy”, Unizik Law
Journal, vol. 5, No. 1, (2005), pp. 276-296 at p. 278.
[12] . Ibid.
[13]
. Ibid.
[14] . Fyanka, loc. cit.,note 1, p. 435.
[15] .
International Covenant on Economic, Social and Cultural Rights (ICESCR) entered
into force on 3 January 1976, G.A.
Res. 2200 A (XXI), U.N. Doc. A/6316 (1966), 933 UNTS 3.
[16] . Ibid.
[17]
. L. M. Keller, The
Indivisibility of Economic and Political Rights, A Review of Development as
Freedom, (New York: Knopf Publishing
Co. Ltd., 1999), p. 366.
[18]
. A. Sen, Development as
Freedom, (New York: Random House Publishing Co. Ltd., 1999), at p. 435.
[19]
. Ibid.
[20] . M. H. Good,
“Freedom From Want: The Failure of United States courts to Protect Subsistence
Rights”, (1984), 6 Hum. Rts. Q. p. 335.
[21]
. C. R. Vance, “Human Rights Policy, a major 1977 Statement on Human
Rights Policy” by the Carter
Administration’s Secretary of State, (1977)
transcript available in the Office of Media Services, Bureau of Public Affairs Department of State quoted in
Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd edn., Washington DC: University
Press, 1980), p. 5.
[22] . Ibid.
[23] . K. Arambulo, Strengthening
the Supervision of the International Covenant on Economic, Social and Cultural
Rights (Oxford: William Collins Sons & Co. Ltd., 1999), p. 55.
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