THE LEEWAY TO THE JUSTICIABILITY OF CHAPTER II OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
1.0 Abstract It is now common saying among most citizens of Nigeria that the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria are not justiciable. The provisions of Chapter II, often referred to as the “red rights” in international jurisprudence, represent a set of rights designed to improve the standard of living for a country’s citizens. These rights are considered supplementary to the Fundamental Human Rights, with the aim of making life better for the populace
Read This : New Law Article
THE LEEWAY TO THE JUSTICIABILITY OF CHAPTER II OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
1.0 Abstract
It is now common saying among most citizens of Nigeria that the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria are not justiciable. The provisions of Chapter II, often referred to as the “red rights” in international jurisprudence, represent a set of rights designed to improve the standard of living for a country’s citizens. These rights are considered supplementary to the Fundamental Human Rights, with the aim of making life better for the populace. In fact, the rationale behind these rights was inspired by Part IV of the Indian Constitution, which contains provisions that ensure citizens enjoy a certain standard of living. However, by virtue of Section 6(6)(c) of the Constitution of the Federal Republic of Nigeria, the rights contained in Chapter II have been rendered unenforceable. This article seeks to provide a leeway (justification) for the relevance of Chapter II of the Constitution and utilizes a comparative analysis of Indian legal jurisprudence as a framework for Nigerians to enjoy the rights embedded in Chapter II of the Constitution of the Federal Republic of Nigeria, 1999.
Keywords: Blue Rights, Leeway, Justiciability and Jurisprudence
2.0 Introduction
By virtue of the extant provisions of Section 1 of the Constitution[1], the Constitution is the supreme law of the land, and any law, act or principle that goes contrary to the provisions of the Constitution will be marooned into the web of nullity[2]. In the same vein, the Constitution has provided some rights to be enjoyed by all citizens in Nigeria— these rights are known as Fundamental Objectives and Directive Principles of State Policy[3]— they are essentially enacted to enable the Citizens of Nigeria live a better life.
3.0 Examination of Chapter II of the Constitution[4]
Chapter II (Sections 13-24) of the Constitution contains certain objectives and policies that the government is meant to realize for the benefit of Nigerians. The provisions of Section 13, which is the opening section of the chapter, serve as a testament to this. It provides inter alia:
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.
In interpreting the above provisions, it means that the government is obligated to observe and apply the provisions of Chapter II to the letter, with the main objective being to benefit the citizens of Nigeria, as these provisions are citizen centric.
Section 14[5] further provides;
(2) It is hereby, accordingly, declared that-
(a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
(b) the security and welfare of the people shall be the primary purpose of government; and
(c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.
These provisions give citizens of Nigerians total sovereignty, and in fact, direct the government to prioritize the security and welfare of the people˗˗ Nigerians.
In addition to the above, Section 15(2) of the Constitution provides;
Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.
This section identifies the elimination of discrimination and makes it the government’s responsibility to see to the eradication of discrimination of whatsoever nature.
The Educational provisions of the Constitution—Section18(3)[6] provides;
Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide-
Free, compulsory and universal primary education;
Free secondary education;
free university education; and
Free adult literacy programme
In short, by the express interpretation of these provisions, they ensure that educational pursuits from the basic level to tertiary level are free and shall be the responsibility of the Government to ensure their realization.
Section 20[7] provides; ‘The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.’
Hence from the foregoing, it is express that the rights contained in Chapter II though supplementary to the Fundamental Human Rights, are basic and are essential for enjoying minimum standard of living for every citizen of Nigeria.
4.0 Non-justiciability of Chapter Two of the Constitution
It is imperative to state that despite the juicy rights and privileges stated in Chapter II of the Constitution, there is a clog to its enforceability. The community reading of the provisions of Section 6 and Section 6(6)(C) provide;
The judicial powers vested in accordance with the foregoing provisions of this section –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 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; and
Hence, by the literal interpretation of this provision, it presents the notion that the rights and enforceability of such is dead upon arrival— as the court has no jurisdiction to entertain matters bordering on such rights. This position was judicially approved in the case of A-G., Borno State v. Adamu[8], where the court held; By virtue of section 6(6)(c) of the 1979 Constitution the jurisdiction of the court in the determination of whether or not any authority or person is in breach of the provisions under Chapter II of the 1979 Constitution has been excluded.
5.0 Leeway for the Justiciability of the Provisions of Chapter Two of the Constitution
In legal Jurisprudence, legal thoughts are essential for the expansion of the depth of law — it is from this cue that the restrictive interpretation of Section 6(6)(c)[9] will not hold water. It is on the basis of the expansion of legal thoughts and Jurisprudence that this article identifies three leeway for the justiciability of the provisions of Chapter II of the Constitution.
Constitutional Provisions
The Constitution is the Alpha and Omega of the Nigerian Legal System.[10] The contextual and wider interpretation of Section 6(6)(c) of the Constitution provides for one of the leeway to the enforceability of Chapter Two of the Constitution by the inclusion of the phrase ‘…except as otherwise provided by this Constitution…’ This position has been given judicial ratification in the 2019 Supreme court case of Centre for Oil Pollution Watch v. N.N.P.C[11]. where the court held;
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 Two justiciable, it will be so interpreted by the courts.
In applying the above contextually, the provisions of Section 15(2)[12] will be made enforceable by the provisions of Section 42 of the Constitution[13] which provides for the fundamental rights from discrimination[14]
Legislation
Another avenue for the enforceability of Chapter II of the Constitution is where the legislature makes law that centers on a provision in Chapter II to making it justiciable. Thus, on the authority of Olafisoye v. Federal Republic of Nigeria[15], where the National Assembly makes law in view of the provisions of Chapter Two, a citizen of Nigeria can seek refuge under the Act to enforce their rights as outlined in the provisions of Chapter Two[16].
The enactments of Corrupt Practices and other Related Offenses Act[17] and the Economic Financial Crime Commission Act[18] are examples of laws that can aid the enforcement of the provisions of Section 15(5) of the Constitution[19].
International Legislation
The position of the law with respect to International laws is found in Section 12 of the Constitution.[20] Once an international law has been recognized, approved, and ratified in Nigeria, any citizen can bring an action based on the provisions of the international law, as it now has domestic flavor. It is on this premise, and in reliance on the provisions of the African Charter on Human and Peoples’ Rights[21], that Nigerians can invoke its provisions, along with those of other domesticated laws, to enforce their rights under Chapter II of the Constitution.
An exemplary provision is Article 11 of the African Charter, which guarantees the right to free education. This provision can be used to justify Section 18 of the Constitution of Nigeria[22], which is part of Chapter II, to enforce the right to free education.
6.0 Comparative Analysis of Justiciability of Chapter Two with Indian Legal Jurisprudence
In the Indian legal jurisprudence, the judiciary has worn the helmet of judicial activism and has graduated the Fudamental objectives and directive state policy to even fundamental rights. This position was expressed in Olga Tellis v. Bombay Municipal corporation[23], where the Supreme Court has held that ‘since the directive principles are fundamental in the governance of the country, they must be regarded as equally fundamental to the understanding and interpretation of the meaning and content of fundamental rights.’
In the same vein, the Indian Supreme court further held in Unnikrishnan v. state of Andhra Pradesh[24], ‘that the fundamental rights and directive principles are supplementary and complementary to each other, and not exclusionary of each other, and that the fundamental rights are a means to achieve the goal indicated in the directive principles.’
It is imperative to know that the Indian constitution though provides for the non-justiciability of the provisions of Part IV of their constitution˗˗their Fundamental objectives and Directive Principle˗˗as secondary and non-enforceable. [25] However, the India legal jurisprudence has moved from this darkness to light by judicial intervention and activism. Justice Bhagwati, a judicial activist sidestepped the provisions of Article 37[26] in the larger cause of promoting greater human dignity and distributive justice. In Francis Coralie Mullin v. Union Territory of Delhi[27], the Supreme Court was asked to rule on a narrow question: whether a detainee held in preventative detention had the right to meet with his lawyer and family. However, Justice Bhagwati took this as an opportunity to substantially enlarge the ambit of Article 21[28], which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the court’s judgement, Justice Bhagwati declared that the right to life and personal liberty protects a broader right to “live with human dignity.” He went on to state, “Article 21[29] cannot be restricted to mere animal existence.” Rather, “it must…include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.” The Court has since built on this judgment to enforce a number of new socio-economic rights within the “right to live with human dignity.” These include the rights to education, food, healthcare, shelter, and a decent livelihood.[30]
7.0 OUR TAKE
Nigerian legal jurisprudence is a vast, autonomous, and dynamic system. The need for both the legislature and the judiciary to rise to the occasion and actualize, realize, and defend the provisions of Chapter II of the Constitution is long overdue. Upon a critical assessment of developments in Indian jurisprudence, it becomes a wake-up call for our government to act in order to fulfill the intentions of the drafters of the Constitution. Importantly, the judiciary must adopt a more radical approach to cases concerning the enforceability of the provisions of Chapter II. By drawing inspiration from the exemplary radicalism of Indian justice, particularly the contributions of Justice Bhagwati, Nigerian justices must step up to ensure that the aspirations of the Constitution are realized. This will enable Nigerians to lead a better and more fulfilling lives in accordance with the true intent of the Constitution.
8.0 Conclusion
This paper has comprehensively examined the provisions of Chapter II of the constitution, the background leading to its enactment, the obstacles hindering its realization, and, importantly, the potential avenues for making its provisions justiciable. Additionally, this paper employs a comparative analysis of the Indian legal system as a model, offering recommendations for the Nigerian legal system. Lastly, this paper strongly recommends that the Nigerian judiciary rise to the occasion and ensure that the intentions of the drafters of the constitution are fulfilled, ultimately enabling Nigerians to live better lives in accordance with the letters of the constitution.
[1] Constitution of the Federal Republic of Nigeria, 1999.
[2] Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999. This position has been adopted by the court in the case of A.-G., Lagos State v. A.-G., Fed. (2004) 18 NWLR (Pt. 904) 1.
[3] These rights are contained in the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria, 1999
[4] n.1
[5] Section 14 of the Constitution of the Federal Republic of Nigeria, 1999.
[6] Constitution of the Federal Republic of Nigeria, 1999.
[7] Constitution of the Federal Republic of Nigeria, 1999.
[8] (1996) 1 NWLR (Pt. 427) 681
[9] Constitution of the Federal Republic of Nigeria, 1999
[10] A.- G., Lagos State v. EKO Hotels Ltd (2018)
[11] (2019) 5 NWLR (Pt. 1666) 518
[12] Constitution of the Federal Republic of Nigeria,1999
[13] Constitution of the Federal Republic of Nigeria,1999
[14] 1999. The case of Mojekwu v. Iwuchukwu (2004) 7 MJSC 161 (2004) 11 NWLR (Pt.883) 196, and Asima v. Atuanya (2008) 17 NWLR (Pt. 1117) 484
[15] (2005) 51 WRN 62
[16] Constitution of the Federal Republic of Nigeria, 1999
[17] 2000
[18] 2004
[19] 1999
[20] This provision of the law provides for the ratification and domestication of International treaty. This provision have also been given judicial approval in the case of Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228
[21] 1981
[22] 1999
[23] 1985
[24] 1993
[25] These provisions contain similar provisions with the Chapter II of the Nigerian Constitution.
[26] This provision states the unenforceability of Fundamental objectives and Directive state policy of the Indian constitution
[27] 1981
[28] Indian Constitution,1949
[29] Indian Constitution, 1949
[30] 1 See Unni Krishnan v State of AP, (1993) 1 S.C.R. 594; PUCL v Union of India, Writ Petition (Civil) No. 196 (2001); Paschim Banga Khet Mazdoor Samity v State of WB, (1996) 4 S.C.C. 37; Olga Tellis v Bombay Municipal Corporation, (1985) 2 S.C.R. Supp. 51.sion of my entire soul.
Read This : Traveling in Turkey
