Appraising the Justiciability Question of Chapter II of the 1999 Constitution of Nigeria

By Michael Ojimba

INTRODUCTION:

Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as “The Constitution” or “CFRN”) contains the Fundamental Objective and Directive Principles of State Policy. The rationale for this provision is that government in developing countries tend to be preoccupied with little, maybe no regard for political ideals as to how society can be organized and ruled to the best advantage of all.[1] Inspite of this however, the overwhelming majority of Nigerians have argued that social and economic rights are elusive in the constitution. It has been observed that the Nigerian government has persistently promoted civil and political rights and given little or no regard to social and economic rights. Chapter II of the Constitution, spanning from sections 13-24, is non-justiciable by virtue of section 6(6)(c) of the same Constitution. Examination of the implications of such non-justiceability show that citizens cannot obtain redress from the courts if denied their socio-economic, developmental and other rights provided for in this chapter of the constitution. It is therefore a formidable impediment to socio-economic development. Again, the continuation of non-justiceability of Chapter II CFRN may result to lack of development and non-accountability by the Executive and Legislative arms of government, without any hope of a successful judicial challenge. How unfortunate.

The natural freedom and equality of humans has been famously argued by a number of early and late Enlightenment thinkers including Thomas Hobbes, John Locke, Jean Jacques Rousseau, Kant and Hegel, Karl Marx, the more recent of them all. In the late 18^th century, the idea of the naturalness of human rights including political rights was stated in a number of political documents, such, as is represented in our Constitution as in the case of Nigeria. The preamble to the constitution of Nigeria reads thus:

“We the people of the Federal Republic of Nigeria HAVING firmly and solemnly resolved:

 To LIVE in unity and harmony as one indivisible, indissoluble Nation under God dedicated to the promotion of the inter-African solidarity, world peace, international cooperation and understanding:

 AND TO PROVIDE for a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice and for the purpose of consolidating the unity of our people:

 DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES THE following Constitution:-”

As can be seen in the above, the notion of the naturalness of human freedom and equality is clearly stated. People are naturally entitled to be at liberty, to have property, to be secure, and to be free of oppression. In addition, people are their sovereign authority, at least, existing as a Nation. If we ask what any of these rights entail, what are their limits and how they support or conflict with one another, we are left with few answers.

For example, let us take the relationship among liberty, equality and property. The preamble to the Constitution of Nigeria as replicated above, states inter alia that; the purpose of the Constitution is to promote the good government and welfare of all persons in Nigeria on the principles of Freedom, Equality and Justice and for the purpose of consolidating the unity of our people (the Nigerian people.) The 1999 Constitution of the Federal Republic of Nigeria (as amended) in sections 35, 43 and 44 makes provision for right to personal liberty, right to own moveable and immoveable property among other rights embedded in the Constitution. Inquisition drives one’s mind to ask: Is the holding of property equal? If the holding is equal, does it increase or decrease liberty? Does the limitation of liberty interpreted to mean “whatever does not injure another” include injury to economic well-being or only to physical well-being for which one may be prosecuted? How can Justice be done in all of these cases? We must remember, Justice must not only be done but must be manifestly seen to be done.

This example of conflict between these rights were perceived by Pierre-Sylvian Marechal in his ‘Manifesto of the Equals’ written in 1976:[2]

“Equality! First need of nature, first demand of man, and chief bond of all legitimate society! … Always and everywhere poor humanity, in the hands of more or less adroit cannibals is the tool of every ambition, the pasture of every tyranny. Always and everywhere, men were lulled by fine phrases; never and nowhere did they receive the fulfilment of the promise. From time immemorial we have been hypocritically told: Men are equal; and from time immemorial the insolent with the most degrading and most monstrous inequality has weighed down the human race. Since civilized society began, this finest possession of humanity has been unanimously recognized, yet not once realized; equality was only a fair and sterile function of the law. To-day when it is more loudly claimed, we are answered: Silence, wretches! Real equality is but a chimera: be content with the constitutional equality: you are all equal before the law. …what more do you want? What more do we want? Legislators, governors, rich proprietors, listen in your turn. ”

In the above quote, Marechal mentions that equality is only to be considered equality before the law, which means that people will have the law applied to them equally. Thus, all people will have, for example, the right to legal action or the right to express their opinion publicly. Same is guaranteed under the Nigerian constitution in sections 38 and 39 respectively.[3] This equality of trial and public expression as it is, does not take into consideration the differences in means to exercise these equal rights. Certain people will be more effective in advocating for their desires through the courts because they have or can hire more or better lawyers. Alternatively, people will have a greater chance of expressing their opinions publicly because they can afford to take out ads in publications, start universities and research foundations to support their opinions. What of those that do not have the means? All people have the right to legal action and public expression within this understanding, but they do not have the same substantive equality to utilize these rights. A view of a recent Nigerian movie “Citation”[4] would aid a proper and better distillation of understanding the above.

With the recognition of social and economic rights under the 1999 Constitution, there is yet a growing concern about poverty, widespread unemployment, deterioration of the living conditions of the greater majority of the people and widening majority of the people and widening inequality between the rich and the poor.[5] The prevalence of these vices in the society is a pointer to the fact that the chapter two of the 1999 constitution, containing social and economic rights is a toothless bulldog that cannot bite, better put, a proverbial fig tree that cannot produce fruits. This article, therefore, examines the provisions of the Fundamental Objectives and Directive Principles of State Policy in Nigeria, the significance of the indivisibility and interdependency of rights, the evils of the non-justiciability of socio-economic rights and makes a case for the enforcement.

NATURE AND IMPORTANCE OF CHAPTER II OF THE CONSTITUTION

The opening provisions of this chapter leave no one in doubt as to the intendment of all of its provisions which basically relate to duties of the three arms of government to ensure conformity, observation and application of this chapter which is aptly referred to as the socio-economic or living provisions of the CFRN 1999. These policies are expected to be pursued in the efforts of the nation to realize the national ideals.[6] Section 13 of the Constitution provides thus:

“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 constitution.”

Subsequent provisions within the said chapter II maintain that: The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice. While section 14(2)(a) provides that, sovereignty belongs to the people of Nigeria from who government through this Constitution derives all its powers and authority, section 14(2)(b) provides that the security and welfare of the people shall be the primary purpose of government. Section 15 provides for the Political Objectives. Sections 16 provides for Economic Objectives, 17 for Social Objectives, 18 for Education Objectives, 19 for Foreign Policy and 20 for Environmental Objectives.[7] It must be noted that Sections 16, 17, 18 were very elaborate on the rights of the citizens to economic and social justice predicated on economic empowerment, equality before the law, governance, peace and security. These objectives above are humbly submitted to be the duties the government owe the entire citizenry to enhance and realize socioeconomic rights. It is clear that the objectives highlighted above are indispensable for the enhancement of the lives and comfort of citizens in any country. Section 21 further provides for the directives on Nigerian cultures. Section 22 provides for the obligation of the mass media. National ethics is the provision of Section 23. As the African adage goes, the most important masquerade dances from the rear. Same way, Section 24, the last provision in the socio-economic chapter, provides for the duties of the citizens. Truly, these provisions are attractive and interesting as they are needed to make the “Nigeria of our dream” become reality. Sadly and regrettably, however, the provisions in the chapter are anything but justiciable. They are neither justiciable nor enforceable. The Constitution already declares the provisions in Chapter II to be non-justiciable, as provided for in section 6(6)(c) of the same Constitution. The provision is as follows:

“The judicial powers vested in accordance with foregoing provisions of the section shall not, except as provided by this Constitution, extend to any issue or question as to whether to any act or mission 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 the State Policy set out Chapter 2 of the Constitution”

The same provision has been given a judicial character as established in the case of Archbishop Anthony Okogie v. AG Lagos State[8] where it was held that:

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

The provisions of Section 6(6)(c) of the Constitution is clashing with the provision of Section 13 which obligates all organs of government (including the judiciary) to conform to, observe and apply the provisions of the fundamental objectives and directive principles of state policy. This clash apparently brings about open contradiction in the Constitution on a matter of collective concern; social and economic rights.

NON JUSTICIABILITY OF CHAPTER II OF THE CONSTITUTION; A FIG TREE

We have been left with some effects of the non-justiciability of Chapter II of the Constitution. It has made the Nigerian government become lazy, ineffective and irresponsive towards the realization of the second generation rights; the first, being the civil and political rights. It has been observed that the non-justiciability of these rights is an attempt by the ruling class to blindfold the unsuspecting citizens of Nigeria. Since the rights are mere obligatory on the part of government, it is taken with levity and the realization of these rights is technically defeated. If these rights had been justiciable, it would have made the government more upright and alive in their duties of enhancing and conforming with the provisions of socio-economic rights contained in Chapter II.

Truly, the level of importance one places on an obligation is different from that which one places on a “mandatory duty”. The less importance of an obligation is observed to be the reason why government has been treating socio-economic rights with utmost disregard and levity as the Constitution itself makes those rights look less-important by making them non-justiciable. The non-justiciability of socio-economic rights in the Constitution has therefore affected the overall psyche of Nigeria’s development as the importance of socio-economic rights on the prosperity of a nation can never be overemphasized.

The non-justiciability of the chapter has made socio-economic rights under the Nigerian law more of a toothless bulldog that cannot bite that has no biting prowess. The non-justiciability has been an excuse for successive government when faced with the question of poor economic and social welfare of the people. 

JUSTICIABILITY OF CHAPTER II OF THE CONSTITUTION

It is trite in law that to every rule, there are exceptions. Thus, the rule that that the provisions of Chapter II are not justiciable, established above, is also subject to some few exceptions. The first is provided for under item 60(a) of the Second Schedule, 1999 Constitution, which empowers the National Assembly to make laws for the establishment and regulations of authorities “to promote and enforce the observance of the Fundamental Objectives and Directive Principle”. Commenting on the above item 60(a), Justice Mohammed L. Uwais, CJN (as he then was), observed that:

“Item 60 of the Exclusive Legislative List of the Constitution of the Federal Republish of Nigeria specifically empowers the National Assembly to establish and regulate authorities for the Federation to promote and enforce the observance of the Fundamental Objectives and Directive Principles, and to prescribe minimum standards of education at all levels, amongst others. The breathtaking possibilities created by this provision have sadly been obscured and negated by non-observance. This is definitely one avenue that could be meaningfully exploited by our legislature to assure the betterment of the lives of the masses of Nigeria”.[9]

Thus, one veritable way to bring about enforcement and proper enjoyment of social and economic rights guaranteed under Chapter II is by enacting a specific law or establishing an authority for the purpose of enforcement. For instance, while Section 16 of the 1999 Constitution provides for economic objectives, the National Assembly enacted the Economic Financial Crimes Commission Act. This Act later established the Economic Financial Crimes Commission (EFCC), which has been seeing to the realization of the economic objectives; a provision in chapter II. Also, section 15(1)(2) that emphasizes unity, faith, peace and progress, complements S 42(1) that provides for freedom from discrimination. The said section 15(2) of the Constitution is reproduced below viz:

“Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.”

In the same vein, section 42(1) provides that no person being a Citizen of Nigeria shall be discriminated against on the basis of his community, ethnic group, Place of origin, sex, religious or political opinions.[10] In effect, the Constitution emphasizes that “what is good for the goose is also good for the gander.”

Section 15(2) and (3) for the purpose(s) of National integration also, complement right to personal liberty;[11] right to private and family life;[12] right to peaceful assembly and association;[13] and right to freedom of movement.[14] In an attempt to abolish all corrupt practices and abuse of power, section 15(5) complements section 4 of the Constitution in this regard.[15] Section 15(5) provides that:

“The State shall abolish all corrupt practices and abuse of power.”

See particularly Niki Tobi’s dictum in Olafisoye v. FRN.[16] In this case, the Court held that although S 15(5) is not justiciable, as soon as the National Assembly exercise power under S 4 of the CFRN with respect to the items thereunder, the section can be made justiciable. You can see also, AG Ondo v. AGF[17] where the SC also held that the National Assembly could through the provisions of S 4(2) of the CFRN which gives it power to make laws for peace, order and good government of any part of Nigeria legislate on matters within Chapter 2 of the CFRN.

Section 17(1) provides for freedom, equality and justice, and this complements section 36 of the Constitution on fair hearing. Section 17(2) and (3) complements section 42 of the Constitution on freedom from discrimination. In like manner, section 19[18] which provides for foreign policy objectives complements section 12 of the Constitution.[19] Section 20 on environmental objectives can be made enforceable by statutes such as NESREA Act.[20]

Suffice to say that another cream exception to the non-justiciability rule comes about when any part of Chapter II is referred to or incorporated in any justiciable provisions of the Constitution. This point brings to play the concept of interdependency and interrelatedness of rights (civil and political rights, and social and economic rights). The Vienna Declaration adopted by World Conference on Human Rights in 1993, puts it rightly thus: “All human rights are universal, indivisible, interdependent and interrelated.” The socio-economic rights can be equally enjoyed and guaranteed in situations where Fundamental Rights provisions are interpreted hand in hand with the Fundamental Objectives provisions.

Essentially, provisions can be made justiciable where:

1. The Constitution makes another provision on any of the subjects in  the  chapter  which are  outside  Chapter II. Hence, the sections outside Chapter II that complement justiciable sections in the Constitution identified above.
2. Also, where the  National  Assembly  makes  any  legislation making any of the subjects of the chapter the subject of such  an  Act  and  thus  justiciable,  since  the  National Assembly is endowed with such powers to make those laws as exemplified in relevant sections above. Hence, the example of S 15(5) and the EFCC Act and ICPC Act; and NESREA Act for section 20 that emphasizes environmental policy.

It is worthy to note that the government of Nigeria has made little legislation to ensure that, the provisions in chapter II relating to the obligations of government towards the citizens are adequately guaranteed. However, plethora of legislations have been enacted to ensure that the duties of the citizens espoused in the chapter are complied with and failure to comply with such duties attracts nothing other than sanction. How funny and laughable. For instance, Section 24(f) of the Constitution provides that

“It shall be the duty of every citizen to declare his income honestly to appropriate and lawful agencies and paying his tax promptly”.[21]

In this regard, the National Assembly enacted the Personal Income Tax Act.[22] Section 94-101 of the Act provides for offences and penalties under the Act. Therefore, one could be punished in relation to offences arising from a “duty” imposed by a non-justiciable part of the constitution.[23] The argument above shows clearly that the enactments made pursuant to chapter II by the government of Nigeria overtime, have been biased and one-sided; favouring the leaders alone at the expense of the citizens.

The exception of legislative enactment came up for determination in the case of Olafisoye v. Federal Republic of Nigeria.[24] The issue was whether the combined effect of Sections 4(2), 15(5), item 60(a) and 67 and 68 in Part 1 of the Second Schedule and Section 2(a) of the 1999 Constitution confers powers on the National Assembly to make laws for the peace, order and good governance of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices; an item under Chapter II. Resolving the issue, the Supreme Court held, per Niki Tobi, JSC, thus:

“The non justiciability of 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.”

Further, the Nigerian Court should be liberal and developmentally minded in interpreting and enforcing the provisions of Chapter II of the Constitution, for the overall advancement of the Nigerian State. This can be done by following in the thread and pattern of justice that borders on fundamental objectives in other Nations of the world. For instance, the Indian courts have tried to enforce provisions of fundamental objectives and directive principles of state policy in their Constitution. In UPSE Board v. Harri Shankar,[25]the Indian Supreme Court held that though the courts cannot enforce the observance of the principles, they are bound to evolve, affirm and modify the principles of interpretation which will aid the aims set out in the directive principles as contained in the Constitution.

In the Indian case of Moluni Jani v. State of Karanataka[26] the Indian SC held the right to education to be an integral part of the right to life hence, making the directive principles in this stance, enforceable. See also Hashiwar v. Madhya Pradesh[27]

In The Government of the Republic of South Africa and Others v Grootboom and Others,[28]the Constitutional Court of South Africa held that the issue of whether socio-economic rights are justiciable at all in South Africa is put beyond question by the text of the Constitution. That their interconnectedness needs to be taken into account in interpreting the socio-economic rights and in particular in determining whether the State has met its obligations in terms of them.

In this case, the court did not interpret the right to adequate housing as an obligation of the state to provide housing for everyone, but required special deliberative attention of the State to those whose minimal needs are not being met. By this decision, the Court enforced a non-justiciable provision.

Flowing from the above, it is imperative to categorically state that Nigerian courts should exercise their powers of expansive and integrative interpretation of matters contained in Chapter II. This position finds support by Lord Denning MR in Parker v Parker (1970) AC 777 that:

“If we do not do something just because it has never been done before, the law will  not develop while the rest of the world moves ahead. This would be bad for both. The Courts must further adopt the concept of the Realist school of thought that “what the courts say and nothing more pretentious are what is meant by the law”

Nigeria Courts must rise up to the occasion just like their Indian and South African counterparts, among other Nations, and relying on Denning’s dictum as to how the Realist  School perceive what law is.

CONCLUSION

Any provision of the Constitution especially as relating to economic and social rights, good governance, that is not justiciable is undesirous in the present human right implementation. It is suggested that Chapter II of the CFRN 1999 should be amended and made justiciable per se and section 6(6)(c) repealed. Such will guarantee all categories of rights as well as accord Nigerian citizens ideal constitutional rights and make the Nigerian government accountable to the people in accordance with the CFRN 1999. This will ensure good governance and sustainable development which is the goal of any democratic government. In the end justiciability of chapter II of the CFRN 1999 will remove the ouster clause in the CFRN which strictly speaking is an aberration. Suffice it to state that study has shown the indivisibility and interrelatedness of social and economic rights on one hand, and civil and political rights on the other hand.  Thus the full realization of the civil and political rights without the infrastructure and framework to fully enjoy the social and economic rights is impossible.

Thus, it is strongly submitted that to ensure the total guarantee and enjoyment of social and economic rights in Nigeria, the government must take the business of governance very serious in such a way that their activities will be more transparent and the country’s resources be well managed. For a proper realization of socio-economic rights, the legislature must take good advantage of the exception to the non-justiciability rule, by enacting more enabling laws. The judiciary should equally bring more life to justice by fervent judicial activism, bringing about the realization of socio-economic rights. Judges should no longer see themselves as civil servants, perhaps because of their experience in the Ministry, and become legally radical in the dispensation of justice. It should be emphasized that unless the socio-economic rights envisaged in the Fundamental Objectives and Directive Principles of State Policy have been properly protected and guaranteed, the Fundamental Rights guaranteed in the Constitution cannot be realized owing to the indivisibility and interdependency of rights.

For Nigeria to develop, socio-economic rights must be fully guaranteed and made justiciable. It is therefore, humbly submitted that all efforts to bring about the full enjoyment of these rights, espoused in this article, should be put in place for the country to witness its needed development. 

RECOMMENDATIONS

The following recommendations, are made, as it touches the category of persons referred to in Chapter II of the Constitution Viz:

1. The Executive

• • Must as a matter of urgent necessity embark on processes of making chapter II of the constitution, justiciable by presenting Executive Bill to that effect.
  • Demonstrate the political and conscious will to observe the provisions of Chapter II of the said constitution, as if it were justiciable per se.
  • Remove immunity clause in the CFRN 1999 for purposes of taking seriously the issue of accountability and to stem the overt (endemic) corruption in Nigeria. This will accord with the spirit of leadership by example.
  • Instituting mechanism for annual subjection of the executive arm to assessment or corruption. This will encourage easy legislation of provisions of Chapter II into justiciable constitutional provisions.

2. The Legislature

• • Must wake up from its legislative slumber.
  • To, of immediate importance and urgency commence repeal of section 6(6)(c) of the CFRN 1999.
  • Make chapter II fundamental by domestication of legal instruments such as International covenant on Economic, Social and Cultural Rights (ICESCR) 1966.
  • Amend other provisions of the CFRN 1999 to give sharp teeth on its chapter II.
  • Establishment of a Constitutional Court so as to develop human rights (rights) jurisprudence.

3 The Judiciary

• • Judicial Activism is a desirable approach to remove any form of ouster clause in a democratic setting, and guard its jurisdiction jealously.
  • To borrow examples of recovery of Courts’ like India, South Africa, Uganda and Botswana and in consonance with the 1998 judicial colloquium in Bangalure, India.
  • To carry out its duty of checking the Legislative and the Executive, and refuse to be the lame duck among the three arms of government.

4 The Citizens

• • To be bold to challenge infringement of the rights provided in chapter II of the CFRN 1999 even by Public Interest Litigation (PIL).
  • To systematically lay claim to their socio-economic rights as provided in Chapter II CFRN 1999.

5. Role of Lawyers

• • To aggressively engage in Public Interest Litigation (PIL) as one of the mechanisms to encourage legislation on justiciability of Chapter II CFRN 1999.

Michael is a legal practitioner based in Abuja. He can be reached via email on: ojimba14@gmail.com; and on social media using the following handles: Twitter: @Honojimba; Instagram: @ojimbizzle; Facebook: @Ojimba Michael; Whatsapp: 07059356051; Hotline: 08140456366

Footnotes

[1] See Report of Constitutional Drafting Committee 1978: Ministry of Information, Vol. P.V

[2] The Declaration of Independence and Declaration of the Rights of Man and of the Citizen, August 26, 1789.

[3] Constitution of the Federal Republic of Nigeria (1999) (as amended)

[4] Citation, 2020. It is a Nigerian movie that highlights the injustice done to a female Masters student by an alluring lecturer. The student was able to get Justice, among other reasons, because of the available resources she had access to.

[5] See Yemi Akinseye-George, ‘Social and Economic Rights and the Sustenance of Democracy in Nigeria’

[6] Report of the Constitutional Drafting Committee, Vol 1, Page V

[7] Constitution of the Federal Republic of Nigeria (1999) (as amended)

[8] (1981) 2 NCLR 337 at 350

[9] M.L Uwais „Fundamental Objectives and Directive Principles of State Policy: Possibility and prospect” in C.C. Nweze, ed, Justice in the Judicial Process (Essay in Honour of Honourable Justice Eugene Uba Ezonu, JCA, Chapter 5, at P. 179.)

[10] See section 42(1) Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[11] See section 35 Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[12] See section 37 Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[13] See section 40 Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[14] See section 41 Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[15] See section 4 Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[16] (2005) 51 WRN 62

[17] (2002) 27 WRN 1 SC

[18] Particularly, see section 19(a) Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[19] See section 12(1) Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[20] National Environmental Standards and Regulation Enforcement Agency (NESREA) Act, 2018

[21] Section 24(f) Constitution of the Federal Republic of Nigeria, (1999) (as amended)

[22] As amended by Act No. 20 2011

[23] See Shell Petroleum Development Company of Nigeria Limited v. Federal Board of Inland Revenue (1996) LPELR-SC.87/1994

[24] (2005) 51 WRN 62

[25] AIR (1951) SC 474

[26] AIR (1992) SC 1856 at P. 864

[27] AIR (1951) SC 474

[28] 2000 (11) BCLR 1169 (CC)