Justiciability of Chapter II of the Nigerian Constitution
Have you ever heard anything about the justiciability of Chapter II of the Nigerian Constitution, 1999, which contains socio-economic rights?
Are you aware of the fact that these rights contained in the second chapter of the Nigerian constitution are not enforceable, or non-justiciable? This post is on this issue, and possible solution.
The Chapter II of the Constitution of the Federal Republic of Nigeria, 1999, is titled, and includes, ‘Fundamental Objectives and Directive Principles of State Policy.’ The provisions of this chapter of the Nigerian Constitution can also be called Socio-economic rights.
These socio-economic rights are different from the Fundamental Human Rights provided for in Chapter IV of the Constitution, titled ‘Fundamental Rights’. While the later are justiciable in Nigeria, with original jurisdiction to the High Court, the former are, however, unenforceable or non-justiciable.
This Chapter II of the constitution of the Federal Republic of Nigeria, 1999, houses sections (13)-(24) of the constitution, which provides, inter alia, for certain duties of the government for the benefit of the citizenry, as well as duties of the citizens of the state.
Section 18(3), in the Chapter, provides thus: Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide-
- free, compulsory and universal primary education
- free university education; and
- free adult literacy programme
Also, Section 14(b)-(c) of the Chapter provides: ‘the security and welfare of the people shall be the primary purpose of the government; and’ ‘the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.’
Of course, on the part of citizens, the Chapter also provides in Section 24(b), among other provisions of the section, as the duty of every citizen, to ‘help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;’
Do you find the aforementioned rights interesting? There are more. However, there is a caveat. This entire Chapter II of the constitution of Nigeria is unenforceable.
It can be further noted that Item 60 of the Second Schedule to the constitution, which is part of the Exclusive Legislative List, provides, therefore, that the National Assembly can legislative on ‘The establishment and regulation of authorities for the federation or any part thereof- 60(a) ‘to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution;’
See also: Definition and meaning of Law
However, the Constitution stipulates that the provisions of Chapter II of the constitution are unenforceable, by ousting the jurisdiction of the Nigerian courts from enforcing any of such provisions. This is according to Section 6(6)(c) of the Nigerian Constitution, which states, inter alia, that the judicial powers vested in the courts of the state ‘shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or so as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directives Principles of State Policy set out in Chapter II of this Constitution;’
Therefore, the provision of Section 6(6)(c) serves as an ouster clause, limiting the judicial powers of the courts as to enforcing the provisions or deciding upon whether the act or omission of any authority or person is in line with the Chapter II of the Constitution.
This provision has further been given judicial authority as it is so held in the case of Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR Pt.772,and other like case(s).
However, in Olafisoye v. Federal Republic of Nigeria (2004) 4NWLR Pt.864, the court was seen to have shifted from this view, as in the case above, by holding that when Section 15(5) is read together with Item 60(a) of the Second Schedule, it can be justiciable.
Section 15(5), which is part of the Chapter II of the Constitution, provides that ‘The State shall abolish all corrupt practices and abuse of power.’
Arguably, however, it can therefore be postulated that the view the court in Olafisoye v. Federal Republic of Nigeria, should be followed and widened, going forward. Widened in the sense that no other provision of the constitution need be read with the provisions of Chapter II for them to be justiciable.
See also: Natural Law Theory
The provisions of Chapter II should not be read in isolation to that of Chapter IV of the constitution, but rather, as complementary. For a citizen cannot be said to hold and enjoy his right to life, when he does not have access to adequate health care system, good employment, satisfactory shelter and clothing, sufficient education for the century, decent environment, security, and others.
Simply put, the rights of the citizenry provided under Chapter II of the Constitution of the Federal Republic of Nigeria are more relatable to those which are provided under Chapter IV of the same constitution, than divided. In fact, divided they fall.
It should be noted that this kind of interpretation that promotes interrelatedness of human rights is not strange to some other known jurisdictions. In India, for example, while the Directive Principles of State Policy is provided for in Part IV of the constitution of the country of more than a billion citizens, Section 37 of the same chapter provides for their unenforceability.
However, there has been so much judicial activism in India to promote the inseparableness, indivisibility, and interrelatedness of human rights. And this has paid off.
Consequently, section 21 of the constitution of India, which is part of the Fundamental Rights, and specifically provides for right to life and personal liberty of the citizenry, has been interpreted as not just being right to physical life, but also to enjoy life, and that the state must ensure that citizens live a decent and fulfilling life.
See also: Legal Positivism: Positive Theory of Law
Therefore, in the Indian case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal & Anor (1996) 4 SCC 77, in which a man sued the state because he was denied a bed in a hospital which was full, after he had an injury in falling off a train, the Supreme court of India held that the right to life of a citizen included the provision of timely medical care in order to preserve the life.
Such decisions as is seen above should not be unheard of the Nigerian Judicial system, even in more express terms, as so much as possible, in order to bring to existence the provisions of Chapter II of the Nigerian constitution, and explicitly preserve that of Chapter IV.
What more can be said of South Africa, where the Socio-economic rights of the citizenry have been incorporated into the Fundamental rights. Therefore, while Section 27(1), as part of the Country’s ‘Bill of Rights’, provides that ‘Everyone has the right to have access to-’ health care services, sufficient food and water, and social security, Section 27(2) provides that ‘The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.’
It would be of utmost benefit to the state, in line with this issue, if this feat can be achieved in Nigeria. But even now, the legal system of the country can be fashioned to produce outstanding and sustainable development for the country by radical judicial activism, on both the parts of the bar and the bench.
The time is now. We should not stay under the shade of unavailability of resources, but press on to achieve the justiciability of our Socio-economic rights.
God bless Nigeria.
Inioluwa Olaposi is a Law student at Obafemi Awolowo Universities, Ile-Ife, Nigeria. Before LawHub NG, he started publishing law-related posts on his former multi-niche website.