COMPARATIVE ANALYSIS OF JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA

COMPARATIVE ANALYSIS OF JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA

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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]

 Scott and Macklem submits, by the term, ‘justiciability’, we mean in broad outline, “the extent to which a matter is suitable for judicial determination…this refers to the ability to judicially determine whether or not a person’s right has been violated or whether the state has failed to meet a constitutionally recognized obligation to respect, protect or fulfill a person’s  right”.[24] Scott and Macklem remark further that, justiciability is a deceptive term because its legalistic tone can covey the impression that what is or is not justiciable inheres in the judicial function and that it is written in stone.  Infact, the reverse is true: not only is justiciability variable from context to context, but its context varies over time, justiciability is a contingent and fluid notion dependent on various assumptions concerning the role of the judiciary in a given place at a given time as well as on its changing character and evolving capability.[25] According to another authority, “concepts of justiciability have been developed to identify appropriate occasions for judicial action… The central concepts are often elaborated into more specific categories of justiciability namely: advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions and administrative questions”.[26] This paper will progress with the review of the doctrines of justiciability that are generally applied by the courts.

1.8.       Doctrines of Justiciability 

1.8.1. The Doctrine of Political Question

The claim that a political question is ‘non-justiciable’ leads to the result by which the court does not see itself as authorized to intervene in the issue brought before it. In essence, since the


political nature of the question renders it non-justiciable, the court is inexorably led to refuse to adjudicate on it, for in its view it lacks jurisdiction.[27] 

The political question doctrine has been used in Nigeria over a long period of time, as will be illustrated by a plethora of judicial authorities. In 1983, in Onuoha v. Okafor,29 the Supreme Court laid down two principles by which to determine political questions, based on the principles developed by the US Supreme Court.[28] The court in that case interpreted the provisions of the 1979 Constitution of the Federal Republic of Nigeria modeled after the United

States Constitution. The Supreme Court in this case defined the political question doctrine in Nigeria as consisting of two principles: (i) one is that the lack of a satisfactory criterion for judicial determination of a political question is one of the dominant considerations in determining whether a question falls within the category of political questions. (ii) the other is the appropriateness of attributing finality to the action of the political department and political parties under the Nigerian Constitution and system of government.

However, before the 1979 Constitution was adopted, Nigerian courts applied a political question doctrine although not recognizing or classifying it as such. For example, in the First Republic, the Supreme Court held in Attorney General Eastern Nigeria v. Attorney General of the Federation[29] that the determination of the margin of error in a census is a political matter.

The judicial powers under the 1979 and 1999 Constitution are defined by section 6 (6) (b) as extending to “all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. This provision seems to contemplate unlimited or full judicial review by the courts. How then did the Nigerian courts interprete it? Nigerian constitutional interpretation in the Second Republic between 1979 and 1983 can be classified into two different periods.[30] The first period saw the Nigerian courts assert that it is their duty within the constitutional scheme to say what the law is.[31] In the second period, represented by the case of Onuoha,[32] the original attitude changed and the courts retreated to the view that they had a limited judicial review role. In the first period, the Nigerian Supreme Court asserted that under section 6 (6) (b), judicial powers extended to all matters. For example, if by this endowment the judiciary encroached on the legislative domain, it was permitted to do so irrespective of the fact that the incursion breached the concept of separation of powers and even if the matter was political. This was the decision of the court per Fatayi – Williams CJN in the case of Alegbe v. Oloyo.[33]  It is this attitude that led the Supreme Court to resist the political question doctrine in Attorney-General of Bendel State v. Attorney-General of the Federation,[34] where the Supreme Court held that it had jurisdiction to determine how the legislature exercised its law making powers.

The Nigerian courts have applied the political question doctrine in a host of decided cases as shall be discussed in this paper. In the case of Balarabe Musa v. Auta Hamzat[35]  the Court of Appeal held that the impeachment of the Kaduna State Governor pursuant to section 170 of the 1979 Constitution is a political question and that, in addition, a constitutional provision ousting judicial review of impeachment was binding on the court. Accordingly, the courts would not engage in any type of review.

In Asogwa v. Chukwu,[36] the speaker of the Enugu State House of Assembly had been removed by a two-thirds majority, which, it was alleged, was not properly constituted as a suspended member of the House voted for the removal. Whether the member was suspended or not became the bone of contention. The Court of Appeal held that the status of the suspended member was an internal affair of the legislature and presumed that he had been recalled to the House since he had voted. Accordingly, it refused to review the decision.

 In Ekpenkhio v. Egbadon[37]  Ogundare JCA stated that the right to a fair hearing of an impeached speaker of the Edo State House of Assembly was not relevant, since by statute law and the Constitution, the impeachment was not justiciable since it bordered on a political question issue.

In Attorney-General of the Federation v. Attorney-General of Abia State,[38] as a response to a preliminary objection that the determination of the seaward boundary of a littoral state within the Federal Republic of Nigeria raised a political question and should be resolved by legislative and executive action, Uwais CJN (for the rest of the Court) stated that a combination of sections 232 (1) and 6 (1) of the 1999 Constitution show that the Supreme Court ‘has the jurisdiction to interprete all provisions of the Constitution whether on appeal or in exercise of its original jurisdiction’. Clearly,


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