COMPARATIVE ANALYSIS OF JUSTIFIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA

ABSTRACT

Human rights became a global issue after the atrocity and barbaric genocide unleashed on over six million Jews, Sinti, and Romani (Gypsies), homosexuals, persons with disabilities and the ‘Negro’ (blacks) during the second world war by Nazis regime of Germany. Initially, individuals’ rights were not the subject of international law, because the norm of the international law is to regulate relationship amongst member states as sovereign nations; thus, United Nations [(UN) founded in 1945] were reluctant to interfere in state parties’ affairs. CESCR and CCPR are meant to be complimentary and indivisible but due to western bloc politics and cold war; western scholars privileged civil and political rights above economic, social, and cultural rights; arguing that CPR is expressed in clear language and does not place an obligation on government for their implementation: Whereas ESC rights depends on government to perform their obligations to guarantee them and is expressed in vague language which renders it unenforceable. They maintain that socio-economic rights are political aspirations/goals or directive objectives of state policies which can only be realized progressively and not of immediate actualization or enforcement. This poor attitude towards socio-economic rights led so many countries of the world including Nigeria to treat ESCR as fundamental objectives of government policy to be progressively realized. In Nigeria jurisdiction, the issue of locus standi, was a clog on the wheel of litigating socio-economic rights; however, this issue has been put to rest by the Chief Justice of Nigeria who made a new rule of court in section 3(e) of Fundamental Rights (Enforcement Procedure) Rules 2009, which provides that no human rights case should be struck out or dismissed on the grounds of want of locus standi. The dissertation will be making comparative analysis of two legal systems comprising India and Nigeria as common law countries and as an emerging economy, although India is well ahead of Nigeria right now and both countries’ Constitutions made socio-economic rights Directive Principle of State Policy (DPSP). The study enunciates the definition and historical development of human rights from the inception of UN and delves into the challenges in the two countries chosen as samples of the research, and considers the virile attitude of India’s judicial authority towards a liberal interpretation of socio- economic rights and juxtaposes it with Nigeria’s dismal and reluctant attitude towards implementation and enforcement of ESC rights. The work proceeded to prove that socio- economic rights can be justiciable in Nigeria, if the judicial attitude in administration of justice can positively change to that of enforcement driving. It drew lessons from Indian system and what could be emulated from their integral approach and public interest litigation, because the world attitude towards ESC rights has revamped towards enforceability and concludes with recommendations

CHAPTER ONE

General Introduction

1.0 Background

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 However, Black’s law dictionary defined rights to include “that which is proper under law, morality, or ethics; something that is due to a person by just claims, legal guarantee, or moral principle; a power, privilege, immunity…”2 The term is said to be claim or demand,3 an interest,4 or simply the favorable enjoyed by a person in law.

Narrowing rights down to humans, human rights denotes a special kind of moral claim5 that all may invoke. Human rights are those rights which are inalienable and inherent in human beings that make us member of Homo sapiens family and when denied of it will lead to break down of law and order in society. Put differently, Jack Donelly defined human rights as ‘the rights that one has simply as a human being,’6 ‘without any supplementary condition being required.’7 And these rights have been classified or divided into three generations/divisions, namely: First generation which are civil and political rights; second generation are economic, social and cultural rights (ESC rights);8 and third generation are solidarity/collective rights9 which are inalienable claims or entitlements

Human rights being all inclusive encapsulates socio-economic rights (i.e. economic, social, and cultural rights). Committee on Economic, Social and Cultural Rights defined human rights, especially General Comment 17; as fundamental, inalienable, and universal entitlements which belongs to persons and, under certain circumstances, group of persons and communities. Human rights are fundamental as they are inherent to human person.11 The term “socio-economic rights” refer to right “whose purpose is to assure that human beings have the ability to obtain and maintain a minimum decent standard of living consistent with human dignity.12 These rights which are principally the rights to education, health care, food, work, social security, water, highest attainable living standard and shelter, give rise to the perception that they are programmatic and that their realization more often requires resources allocation (or at least greater allocation) than other rights.13 Given their legal (or juridical) nature, “justiciability of rights is central to international human rights law: ‘Juridical’ rights serve as authoritative sources of claims, aimed at holding violator-states accountable…”14

More vital to these is the 12 July 1993 Vienna Declaration and Programme of Action which represents an attempt at global consensus, that human rights “are the birthright of all human beings,” and that all human rights are universal, indivisible, interdependent and interrelated.”15

Socio-economic rights as contained in chapter 11 of Nigerian Constitution 1999 were

Thirty‐Year Struggle: Sustained Effort to give Force of Law to the UDHR’ (November 1977) UNESCO Courier 29. made non-justiciable by S.6 (6) (c), which provides that, judicial powers:

“shall not, except as otherwise provided by this Constitution,16 extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with the fundamental objectives and Directive Principles of state policy set out in chapter 11 of this Constitution.”

This study will delve into critical examination of the seeming non-justiciability of Chapter II of Nigeria Constitution and the dismal political attitude of progressive realization of socio-economic rights according to maximum available resources,17 which invariably encouraged siphoning of public funds, dilapidated infrastructures, and serious setback in the standard of living of the citizens. The wanton limitation of economic, social, and cultural rights has led to misappropriation of public funds by successive governments living behind trails of poverty in a country with immense natural resources; richly endowed with vast land and mineral resources.

However, the same section 6(6)(c) also stated “except as otherwise provided by this Constitution,” which connotes that the courts are empowered in item 60 (a), second schedule of the Exclusive Legislative List to enforce Fundamental Objectives and Directive Principles of State Policy, if legislatures enact laws and create institutions to this effect.18 It is axiomatic from this provision that vibrant judicial attitude towards interpreting socio- economic rights into civil and political rights, will make chapter 11 of the Nigerian

Constitution justiciable like their Indian counterpart who developed virile judicial approach to the enforcement of Economic, Social and Cultural Rights.

Also, the mini dissertation examines the strict interpretation of the common law procedural practice of locus standi by the courts in Nigeria, and advocates for relaxing of this rule to pave way for public interest litigation. The mini dissertation explores the possibility of the Nigerian courts learning from the way and manner in which the courts in India (which has similar limitation as our constitution) have been able to deal with the non-justiciability of socio-economic rights through creative and innovative thinking.

1.1 Problem Statement

In dealing with the issues, the dissertation starts from the premise of identifying the failure by the 1999 Constitution of the Federal Republic of Nigeria to uphold socio- economic and cultural rights as fundamental human rights, and points out that rather, the said Constitution captures these rights in its chapter two, titled ‘Fundamental Objectives and Directive Principles of State Policy.’ Furthermore, the dissertation points out that section 6(6) (c) of the Constitution makes these rights non-justiciable. By implication the government take queue from Western world who conceives social rights as political goals and social policies to be realized in future, which cannot be litigated upon immediately; but the problem with this assumption is that African countries are indigent and cannot compare with the Western world’s development and implementation of social rights through other means, without relying on government only. The research takes the position that the ‘guarantee of socio-economic rights in Nigeria will lead to development which will invariably enhance living standards’ and the lack of resources must not be used by the state as a means of escaping from their obligation to protect, promote and respect socio-economic rights.

Obviously, the legislatures have neglected their duties to enact laws or amend the Constitution, so that social rights will be justiciable like South African Constitution; but the judiciary can take the lead like their India counterpart in

demonstrating a liberal interpretation to ESC rights, also both countries are common law countries with almost the same constitutional framework in respect of socio-economic rights.

The research also examines the challenges created by common law procedural practice of locus standi which the courts rely heavily upon to deny/grant a litigant standing before the courts, as a claw back to justiciability of socio-economic rights and public interest litigation in Nigeria. Whereas locus standi was relax in Indian jurisdiction to pave way for public interest litigation which encouraged vibrant legal enforcement of social rights.

1.2 Research Questions

Main Research Question: Are socio-economic rights in chapter II of Nigerian Constitution justiciable and what is their status?

1. What are the obvious challenges of the provisions and enforcement of Economic, Social and Cultural Rights in Nigeria jurisdiction?

2. What is the attitude of the judiciary in the Indian jurisdictions towards interpretation and enforcement of socio-economic rights provisions in their Constitution?

3. On comparative rating of each of the jurisdictions being used as my case study; which of the jurisdictions has the most effective juridical activism for the enforcement of socio-economic rights?

4. Finally, how can socio-economic rights be made justiciable in Nigeria considering the dismal and parlous provision of Chapter II of Nigerian Constitution?

1.3 Research Methodology:

The information obtained for this study are basically from library sources, international and regional treaties, Nigerian Constitution of 1999 and legislation of the National Assembly and other Acts, civil society, Indian Constitution, case law (or judicial reports), and other desk research methods.

Comparative study of India jurisdiction as a common-law country which is outstanding in judicial attitude towards enforceability of economic, social, and cultural rights has been engaged to elucidate the challenges of non-enforceability of socio-economic rights and the relaxed attitude of Nigeria judiciary to enforce ESCR.

The mini dissertation also engaged the performance of the statutory institutions in both countries in vibrant enforcement and implementation of socio-economic and cultural rights without waiting for the legislatures; so that Nigeria will conform to best practices around the world and comply with international standard of human rights regime.

1.4 Significance of The Study

Socio-economic realities in Nigeria are calling for urgent attention that cannot be ignored in order to equip Nigerians to move the nation to next level of civilization and industrialization; and most specially to improve the living standard of the population. It is pitiable indeed that education is played down and the health care is deplorable, teaming unemployed graduates are swelling by the day, there is no job in such highly endowed nation; however, this study is set to address all these issues.

The dissertation is a thrust on how economic, social and cultural rights can be justiciable through judicial activities, to ‘encourage social integration, solidarity and equality including tackling the question of income distribution’19 which ultimately will serve as protection to the less privileged; indigent/savage people, handicapped