Justiciability Of Chapter Two Of The 1999 Constitution: Pragmatic Measures For Government Accountability Being A Discussion Paper By Chief Tony Ojukwu
JUSTICIABILITY OF CHAPTER TWO OF THE 1999 CONSTITUTION: PRAGMATIC MEASURES FOR GOVERNMENT ACCOUNTABILITY BEING A DISCUSSION PAPER BY CHIEF TONY OJUKWU, SAN, EXECUTIVE SECRETARY, NATIONAL HUMAN RIGHTS COMMISSION AT NBA SECTION ON PUBLIC INTEREST AND DEVELOPMENT LAW (SPIDEL) TOWN HALL MEETING HELD AT MARRIOT HOTEL IKEJA LAGOS MONDAY 28 FEB, 2022.
The Constitution of every nation defines the relationship between the government and the people; it also outlines inter-governmental powers and obligations and provides the basis upon which the citizens can hold successive governments and institutions accountable to a set of national ideals and aspirations. All these and many more have been interwoven into the Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the 1999 Constitution).
The drafters of the 1999 Constitution following previous traditions, included a Chapter II which is entitled ‘Fundamental Objectives and Directive Principles of State policy.’ The provisions of this chapter can be divided into four: obligations, objectives, aspirations and human rights. For the purposes of this paper, I will endeavour to highlight these 4 pillars but essentially focusing on the accountability measures which the provisions contain.
However, in a more popular sense, chapter 2 contains human rights that fall into the domain of economic, social, cultural and development rights. These were crafted in the form of objectives and are different from the rights provided for in Chapter 4 of the Constitution, titled ‘Fundamental Rights’. These fundamental rights, as they are so called, are those rights which are justiciable in Nigeria by virtue of the constitution in the sense that the Courts could be asked to award damages and compensation for infringements of these rights, while the former were declared non-justiciable by virtue of Section 6(6)(c) which states as follows:
“The judicial power vested in accordance with the foregoing provisions of this section shall not, except as otherwise provide by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this constitution’’.
The above constitutional ouster clause has become a major conundrum in human rights adjudication, policy implementation and to a large extent, a stumbling block in reaping the fruits of our constitutional democracy.
One wonders the mindset of the drafters of the Constitution when they also went ahead to make the obligations of government non-justiciable. Why would the governed not be able to demand some accountability from government by virtue of the social contract that exists between the governed and the rulers?! Is the right for elected rulers in a democratic system to live up to their campaign promises by providing for the security and welfare of its citizens not fundamental?! It is through this lens that we must begin to examine the socio-economic rights as spelt out in Chapter II viz a viz it’s justiciability. In the next section of my paper, I attempt to provide a four-pronged approach to accountability under chapter 2 of the 1999 Constitution.
2.0 CHAPTER 2 OF THE CONSTITUTION AS A TOOL FOR ACCOUNTABILITY IN GOVERNANCE
Chapter 2 of the 1999 Constitution provides the legal, policy, programmatic and institutional frameworks through which government at all levels could be held accountable for the provision of participatory, democratic, just and equitable governance.
In discussing the role of Chapter 2 of the Constitution in ensuring accountability in line with the four pillars of obligations, objectives, aspiration and human rights which I have already identified, please permit me to further adopt a four-pronged approach to the accountability measures provided in chapter 2 as follows:
- Constitutional Tripartite Accountability:
Section 13 of the 1999 Constitution makes a major foundational proclamation of accountability for the three arms of government as follows:
“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 Chapter of this Constitution.”
- Legislative Accountability
- Making laws for the order and good governance of Nigeria – section 4 of the Constitution
- Making laws and setting up institutions to advance the economic objectives in accordance with section 16(3)(4) of the Constitution.
- Making laws and performing legislative oversight to ensure the performance of the obligations and, duties and attainment of the objectives and aspirations included in chapter 2.
- Executive Accountability: The executive no doubt takes a huge share in the accountability measure to ensure the implementation of chapter 2.
- Security and welfare – section 14(2)(b) provides that “the security and welfare of the people shall be the primary purpose of government”
- Achievement of the economic, political, educational, social, environmental objectives of government though its institutions, budgeting, policies and programmes. This is also in line with the tripartite obligations in international human rights to promote, protect and fulfil.
- Judicial Accountability
- Constructive interpretation of laws enacted by the national and state assemblies to give effect to the objectives, obligations and aspirations in chapter 2 of the 1999 Constitution.
- Liberal interpretation of the following principle in order to give effect to the foundations of the Chapter:
- The principles of democracy and social justice – section 14(1)(2)(c),
- The principles equity and national integration and cohesion – sections 14 and 15
- Federal Character: The federal character principles has become a major corner stone of our democracy. The principle has been implemented through legislative and institutional framework. It is also one of the provisions of chapter 2 that have embedded accountability in terms of governance
- Section 14(3) – enjoins government to promote national unity, and also to command national loyalty, “ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.”
- Subsection (4) enjoins governments at state and local levels to ensure “diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.”
- Section 15 enjoins government to promote national integration and loyalty through non-discrimination, geographical mobility and social cohesion.
- Accountability through the Mass Media:
Section 22 of the 1999 Constitution provides that the Nigerian media shall “at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.” It is worthy to note that the mass media as a sector, profession and a collation of platforms is the only agency mentioned in the constitution and appropriated with a sacred duty of accountability.
- Citizens’ Accountability:
A major part of the Chapter 2 that often gets ignored is the duties of citizens to the nation. Like most modern constitutions, the chapter recognises the role of citizens in governance as a cornerstone to participatory democracy. Section 14(2)(c) provides that “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.”
3.0 GENERAL ARGUMENTS FOR NON JUSTICEABILITY AND JUSTICEABILITY OF CHAPTER 2 RIGHTS.
The arguments and reasons for non-justiciability of economic and social right as strong and convincing as they may be, it is gratifying to state that most if not all of these reasons have been substantially rebutted and there are a lot of valid reasons advanced by scholars and institutions why socio-economic rights should be made judicially enforceable.
- Socio-economic rights are said to be positive rights requiring the state to expend resources to provide the remedy, whereas civil and political rights are negative rights which simply require the state to refrain from unjust interference with individual liberty. On the negative (just duty of state to refrain) and positive (duty of state to fulfil) rights and duties argument which cast duty on the state to act or take action, it is important to state that the enforcement of political and civil rights also requires resource expenditure and requires the state to take action towards realizing them. Thus the states duty is not only just to respect it by noninterference it must also fulfill these rights. For example, it is argued, the right to property, is meaningless without an institutional system that will involve the police force and other law enforcement agents to prevent trespassing, and a legal structure to punish it if it happens. Thus, every right whether civil and political, or economic and social can give rise to positive and negative obligations. It is therefore better to focus on the nature of the obligation created by a particular right.
- It has been argued that judicial review of socio-economic rights may not necessarily require the determination of a particular level of expenditure or the exact method of spending the resources. A judgment can simply consist of merely pointing out where violation has occurred and then instruct, that it should be remedied in whichever way the authority deems most appropriate, or simply that an appropriate inquiry should be instigated, thus a court can issue an injunctive order requiring the state to abstain from destroying or contaminating food sources of its citizens and this does not involve resources expenditure.
- It has further been argued that even where expenditure is involved, for remedial actions, judges are very sensitive to their constitutional duties within the state and will not unreasonably authorize large sums of money to be spent unless it is absolutely necessary, knowing that resources are not limitless. Judges are not insensitive or unreasonable in the performance of their duties, they are there to solve problems and not to create conflict between the state and its citizens. Thus, in the South Africa case of Soobramoney v. Minister of Health, Kwazulu-Natal, (1997 8 BCLR 1023 (SE), which involved the application of section 27(3) of the South African Constitution which provides that “no one may be refused emergency medical treatment.”
- The argument that, elevating socio-economic right to the status of legal enforceability will erode the principle of separation of powers, have also been debunked. Ellen Wiles describes this argument as purely based on distrust for the judges and contended that even in civil and political rights judges are also involved in policy making. He cited the American case of Brown v. Board of Education (1954, 347 U.S. 483 at 495), which was responsible for condemning the policy of segregation of blacks in the American educational system and described same as radical and progressive.
- Making socio-economic right enforceable will promote democracy and enhance the enforcement of civil and political rights. Socio-economic rights are essential to the provision of necessary resources in order to live a minimally decent life within the society. If there are any rights that should be protected and enforced then they should be the socio-economic rights. Socio-economic rights can be considered as components of a commitment to individual freedom and as a means of enabling civil and political rights to exist. Without being literate for instance, there is not much use for a right to freedom of speech, and without housing there is not much use for a right to privacy. They are important means to achieve a just form of democracy and it will be illogical to make only civil and political rights legally enforceable.
- It has been argued that the poor cannot access justice to enforce their socio-economic rights and therefore should not be made legally enforceable. This argument as plausible as it is, it has also been suggested that public interest litigation and legal aid can be deployed to ensure access to justice as obtainable in India and other jurisdictions. The court can in this context, be less legalistic as to issues like locus standi, and adopt procedural flexibility.
- The argument as to vagueness and indeterminacy has also been dismissed as untenable because this same argument was also made against enforceability of civil and political rights before their development through practice and scholarship. Some economic, social and cultural rights are very clear and precise and more precise than political and civil rights. The Committee on Economic, Social and Cultural Rights have issued General Comments which illustrate the clear and precise nature of socio-economic rights. For example, article 3 of ICESCR, states that “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” Case laws have been developed in some jurisdictions like South Africa and India to demonstrate the coherence in the application of socioeconomic rights to domestic jurisdictions.
- The argument that economic and social rights are not capable of immediate implementation appears also be an over statement, because there are a lot of socio-economic rights that are capable of instant realization. The Committee on Economic, Social and Cultural Rights in their General Comment No. 3 dealing with nature of state parties obligation has argued that the right to fair and equal remuneration for equal work between men and women under article 7(a)(1), non-discrimination under article 3, right to form trade Union of one choice and right to trade union activities under article 8, right to protection and assistance of children and young persons from exploitation, and their right not to be employed in works harmful to their health and moral development under article 10(3), right to primary education, right of parents or guardian to choose schools for their children, right to establish and manage educational institutions under article 13(2)(a), (3) & (4) are all capable of immediate application by judicial and other organs in many national legal systems.
- The argument of institutional incompetence or complexity of adjudication have been dismissed on the ground that, firstly, there are some aspects of socio-economic rights that cannot be said to present complex problems for the court e.g. arbitrary eviction; secondly judges are trained to be able to analyze and evaluate different types of legal cases involving extensive volumes of complex evidence, therefore, it will be unfair to accuse judges of incompetence in socio-economic rights.
The foregoing demolishes the argument put forward for non-justiciability of socio-economic. It is argued that the non-justiciability argument based on the division of human rights into civil and political rights on the one hand and economic and social rights on the other appears to be not only political but artificial and unnecessary, more so when it has been declared that human rights are interdependent, indivisible and interrelated and that the realization of socioeconomic rights will be necessary for the actualization of civil and political rights. Both civil rights and socio-economic rights give rise to a cluster of obligations: the primary duty whereby the state should not interfere with individual activity (respect); the secondary duty whereby the state should protect individuals against other individuals (protect); and the tertiary duty to facilitate or provide for individual (fulfil). These are known as the duties to respect, protect and fulfil.
4.0. JUDICIAL ATTITUDE TO FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY.
The discussion on the attitude or response of the courts to the justiciability of the Directive Principles of State Policy will be subject to two premises or assumptions:
(a) The constitution which is the grundnorm provides expressly that the provisions of chapter II are not justiciable,
(b) The provisions are new and therefore the courts are still in the process of learning to appreciate the purport of its adoption into the constitution.
Against the background of the above propositions, the attitude of the Nigerian judiciary in the justiciability of Directive Principles of State Policy have been that of unprecedented caution and subtle passivity. The first case that has to do with the application or interpretation of chapter II under the 1979 constitution which of course is similar to chapter II of the 1999 constitution was the case of Archbishop Anthony Olubunmi Okogie v. Attorney General of Lagos State (1981) 2 NCLR 350. The plaintiff challenged circular of the Lagos State Government which purported to abolish private schools in the state on the ground that they were implementing some provision of chapter II. Certain questions were referred to the court of Appeal for consideration which border on sections 16, the economic objectives, 18 the educational objectives, 36 which has do with right to freedom of expression. The court of Appeal in its judgment declared inter alia that although section 13 makes it a duty and responsibility of all organs of government including the judiciary to conform to and apply the provisions of chapter II, Section 6(6)(c) of the same constitution makes 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 fundamental objectives and directive principles of state policy. The court maintained that it is clear that section 13 has not made chapter II justiciable. Thus, by this judgment it is a settled proposition that the courts have no jurisdiction to entertain matters relating to the provisions of chapter II of the constitution.
In A. G. Ondo v. A. G. Federation (2002) 9 NWLR (Pt 772) 222, the Supreme Court held that courts cannot enforce any of the provisions of Chapter II of the constitution until the National Assembly has enacted specific laws to legislate on the provisions of Section 15(5) which has to do with directive principles relating to combating corruption. According to the apex Court, those objectives and principles that serve as the constitutional policy of governance remain mere declarations that cannot be enforced by legal process but would only be seen as a failure of duty and responsibility of state organs if they acted in clear disregard of them.
This position has been adopted by the courts in some other decided cases such as Attorney General of Lagos State v. Attorney General of the Federation & ors. (2003) 15 NWLR (Pt. 842) 113, the Supreme Court upheld the competence of the National Assembly to make laws relating to environmental matter in furtherance to section 20 of the 1999 constitution – which is a directive principle.
In Odofe & Others V. AG Federation, the Court decided on the socio-economic rights of prison inmates to medicare based on the provisions of the ACHPR. It was further held in Ubani V. Director SS that the state has a responsibility to all the inmates in the prison regardless of the offence.
5.0 PRAGMATIC MEASURES FOR GOVERNMENT ACCOUNTABILITY
Without prejudice to the attitude of the courts in the interpretation of the provisions of chapter II with respect to its non-justiciability, it is worthy of note that the provisions of section 6(6)(c) of the constitution is not total. Justice Niki Tobi had this to say in the case of Federal Republic of Nigeria v. Anache & ors. In Re Olafisoye, (2003) 15 NWLR (Pt. 842) 113. “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 provided in another section, which makes a section or sections of chapter II justiciable it will be so interpreted by the courts.” The court was therefore of the view that chapter II could be justiciable under certain circumstances namely:
- Where the constitution makes another provision on any of the subjects in the chapter which, being outside the chapter is justiciable;
- 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 cannot by any law oust the jurisdiction of the court. The above is also in the light of item 60(a) of the Exclusive Legislative List which empowers the National Assembly to make laws for the establishment and regulation of authorities to promote and enforce the provisions of chapter II. Thus section 6(6)(c) is subject to the legislative powers of the National Assembly with respect to enforcing the provisions of chapter II of the constitution. The National Assembly has taken steps to enact the Universal Basic Education Act, The National Health Act, the National Health Insurance Act, The National Primary Healthcare Development Agency, the Tertiary Education Fund Act, etc, which are all Acts of the NASS making chapter 2 rights enforceable in one way or the other far beyond the provisions of section 6(6)(c) of the 1999 constitution
- Chapter II could be justiciable if its breach also constitutes a breach of chapter IV i.e. the fundamental rights or any other provision of the constitution that is justiciable on its own, then the chapter becomes justiciable also by way of what is called indirect justiciability.
- Chapter II could be indirectly justiciable by invoking the provisions of African Charter on Human and Peoples Rights, which has been domesticated making the said charter part and parcel of Nigerians domestic laws. The charter guaranteed some socio-economic rights similar to the ones contained in chapter II of the 1999 constitution like equal pay for equal work, the right to health, right to education family rights, right to economic, social and cultural development right to satisfactory environment etc. These rights are made justiciable before the African Commission on Human and Peoples Right.
In Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights v. Nigeria, 2001 AHRLR60 Communication No. 155/96/2001, the African Commission on Human and Peoples Rights held Nigeria liable for the violation of the rights to freedom from discrimination, right to health, right to life, right to property, right to housing, right to food, right of people to freely dispose of their wealth and resources and the right to safe environment, provided under Articles, 16, 18, 4, 24 of the African charter on Human and peoples Right (1981). The charter did not differentiate between civil and political rights and economic, social and cultural rights, and by article 45 of the charter all the rights enumerated therein are justiciable. Nigeria having signed, ratified and domesticated the charter is under obligation to respect, promote, protect and fulfil these rights.
Also in Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. President Federal Republic of Nigeria and Universal Basic Education Commission, Suit No. ECW/CCJ/APP/08/08 ruling delivered on 27th October, 2009, the Economic Community of West African States Court of Justice held that the rights guaranteed by the African charter on Human and Peoples Rights are justiciable before the court, and further held that every Nigerian has a right to education which can be enforced before the court, as guaranteed by the African Charter on Human and Peoples Right. The charter therefore could be used as another normative basis for justiciability of Directive Principles especially with respect to those economic, social and cultural rights that are replicated in both the constitution and the chapter, after all, the state parties are under obligation to respect, protect and fulfil all the rights in the charter whether they are civil, political, economic, social cultural or group rights.
In Oronto Douglas v. Shell Petroleum Development Company Ltd. (1999) 2 NWLR (Part 591) 466, the court of Appeal upheld the justiciability of an action brought pursuant to article 24 of the African charter on Human and Peoples Rights (Ratification and Enforcement) Act.
(e) The National Human Rights Commission Act 1995 as amended by the NHRC Act 2010 provides in section 5(a) that the Commission shall “The Commission shall-
“(a) deal with all matters relating to the promotion and protection of human rights guaranteed by the Constitution- of the Federal Republic of Nigeria, the United Nations Charter and the Universal Declaration on Human Rights, the International Convention on Civil and Political Rights, the International Convention on the Elimination of all forms of Racial Discrimination, the International Convention on Economic, Social and Cultural Rights, the Convention on the Elimination of all forms of Discrimination Against Women, the Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights and other International and Regional Instruments on human rights to which Nigeria is a party,”
Under section 22(1) of the NHRC Act 2010, an award or recommendation, made by the Commission shall be recognized as binding and subject to this section and this Act shall, upon application in writing to the court, be enforced by the Court.
In the practical application of the above two provisions, the Commission is authorised by its statute to use the provisions of the African Charter and the International Covenant on Economic, Social and Cultural Rights to resolve complaints before it and such decisions by the Commission are recognized as binding. The Commission has been doing so and made binding awards and decisions.
From the foregoing, despite the justiciability debate, Chapter 2 is not a redundant chapter, it is the chapter that gives life and meaning to the fundamental rights and entire constitution. The chapter also is not entirely non-justiciable as we have noted. Thus, in realizing the efficacy of chapter II, it will need a sincere and responsible executive and legislature, a pragmatic judiciary and a virile and active civil society and an enlightened citizenry.
From a general point of view, we have looked at the legal adjudication of Directive Principles of state policy. We have also considered the argument generally put forward for and against the judicial enforcement of socio-economic rights which is principally the embodiment of Directive Principles of State Policy. It can be observed that the Nigerian Judiciary is a little too cautious in the legal enforcement of Directive Principle, this no doubt could be likened to the relatively infant nature of constitutional democracy and the consequent adoption of directive principles in the constitution. However, there are windows to pragmatically hold policymakers accountable despite the draw backs of section 6(6)(c) of the Constitution.
The Nigerian judiciary is with due respect enjoined to adopt some of the pro-active approaches taken by the judiciary in other jurisdictions like India and South Africa in her creative effort towards enhancing the enforceability of Directive Principles. These approaches include the following:
- The declaration of the indivisibility of the fundamental rights on the one hand and the Directive Principles of State Policy on the other;
- The assertion of the doctrine of substantive due process as permeating the entire chapter 4 of the 1999 Constitution similar to part III of the Indian Constitution comprising the fundamental rights. Thus, in order to pass judicial scrutiny, an executive, quasi-judicial or legislative action would have to satisfy the “just” “fair” and “reasonable” test;
- The expansion of the scope and content of the fundamental right to life as encompassing the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms;
- The innovation of Public Interest Litigation (PIL) as a tool to achieve social objectives by enabling easy access to courts for those disadvantaged socially and economically: a conscious attempt made to relax the rules of standing and procedure and free litigants from the strangle hold of formal law and lawyering;
- Courts should be emphatic in stating the consequences of disobedience to orders or non-implementation of judgements/rulings;
- Courts should normally explain the legal basis for its intervention. This is to ensure that they are still within the limits of justiciability.
- Courts’ intervention should be invoked in cases of failure by statutory and constitutional authorities to perform their functions or take care of these problems. The Directive Principle of State Policy is like a beneficial or social welfare legislation, therefore, the Nigerian Courts must interpret it to achieve that benefit for which it is inserted in the constitution. The courts must adopt a very liberal construction and ensure that every doubt is resolved in favour of the citizens for whose benefits the chapter was introduced. The court therefore need to be liberal, innovative, dynamic and pragmatic in the interpretation of the provisions of chapter II.
I hope this will provide my colleagues some elaborate background to discuss this very interesting topic.
Chief Tony Ojukwu, SAN.
National Human Rights Commission.