Justiciability Of Economic, Social And Cultural Rights In Nigeria: A Panacea To Bad Governance

324 views | Chinemerem Nnawuihe | November 3, 2020

The events of the past few days across Nigeria, have been most worrisome. There has been massive looting, arson, violence, brigandage and general unrest in most parts of the country.

The direct cause are the events that took place on Tuesday, October 20, 2020, at the Lekki Toll Gate, Lagos State which jolted the whole world. It was the climax of several days of #EndSARS protests.

To say that the current events which unfolded therefrom were unforeseen would be fallacious. They did not just happen; it was the natural result of several years of bad governance, corruption, mismanagement of public funds, manifest injustice, inequality, systemic and institutionalized poverty etc.

Successive governments have either paid lip service or failed to address the issues of employment, social security, physical infrastructure, good, affordable and accessible health care, education etc. They are neither considered as rights nor regarded as duties and obligations owed the citizens of Nigeria by the government.

There is a total disconnect between the citizens and the government. Under the military, it was understandable but under our current (civilian) democratic experiment, it is inexcusable. It may be argued, however, that our electoral system is terribly flawed and therefore, most of the people who occupy the seat of governance are not elected by the people but were rigged into office. As a result, they owe no allegiance to the people and are therefore not duty-bound to provide any social amenities and “dividends of democracy” to the citizens of Nigeria.

Chapter II of the 1999 Constitution (as amended), has made provision for what is known as, “Fundamental Objectives and Directive Principles of State Policy”. Internationally, they are recognised and referred to as Economic, Social and Cultural Rights (ECOSOC or ESC Rights). Some of these rights include:

  1. The Right to work.
  2. The Right to safe, healthy, decent, just and satisfactory working condition.
  3. The Right to equal pay for work.
  4. The Right to organise, form and join trade unions.
  5. The Right of children and young persons to protection.
  6. The Right to protection of health.
  7. The Right to education.
  8. The Right to social security.
  9. The Right to social and medical assistance.
  10. The Right to adequate nutrition.

The International Covenant Of Economic, Social and Cultural Rights (ICESCR) has defined these rights as: “rights that protect the necessities of life by providing the foundation upon which human development can occur and human freedom can flourish“.

Under the Nigerian Constitution, the above rights are non-justiciable; that is, they cannot be enforced in the law courts. As the name suggests, they are mere principles and objectives and are not considered as rights; they do not have any binding status under the Constitution.

Section 6(6)(C) of the Constitution provides that, “…….shall not 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“.

What this means, in essence, is that, ECOSOC rights are not rights in Nigeria. They are merely advisory and have no force of law for the judicial powers vested by the Constitution. It will be a misnomer to call any of them a right when it does not confer any claim on the citizen and no corresponding duty on the state. It is, therefore, non-“fundamental”, non-justiciable and unenforceable.

However, the only rights that are recognised and guaranteed by the Constitution are a body of rights known as “Fundamental Rights” (globally recognised as Civil and Political Rights) which are provided under Chapter IV of the Constitution. If there is any infringement or an abuse of any of these rights, the victim has a right to seek redress in a court of law to enforce his/her rights.

Permit me to say that, Human rights are interdependent, interrelated and indivisible. Therefore, there is no justification for the discriminatory enforcement of human rights under our Constitution. No right is more fundamental than the other; to insist that one is more fundamental than the other is a misconception. None of these rights exist in a watertight compartment; they are interconnected.

The ECOSOC rights add meaning to the “Fundamental Rights” provided under Chapter IV – they cannot be enjoyed if the ECOSOC rights in Chapter II are not given a binding status and made enforceable. The denial of the ECOSOC rights will militate against the full enjoyment of the “Fundamental Rights”.

For example, if the government does not ensure the provision of adequate health care then, the right to life cannot be guaranteed. If the government fails to improve our road infrastructure, there would be avoidable accidents on our roads which will lead to loss of lives. This would mean that, the right to life has been inadvertently denied some citizens of this country. For a man who has no food to eat, the right to fair hearing guaranteed under Section 36 of the Constitution has no meaning – it is worthless.

The African Charter on Human and Peoples’ Rights which Nigeria ratified and domesticated as part of its municipal law makes no distinction between civil and political rights and ECOSOC rights. The Charter gives equal priority and importance to both sets of rights.

Nigeria is also a state party to the ICESCR (see full meaning above) and as a state party, it has an obligation to ensure the realisation and implementation of ECOSOC rights.

If our leaders over the years were altruistic and patriotic, there would not be any debate on the justiciability or non-justiciability of the provisions of Chapter II of the Constitution; but unfortunately, what we have had are selfish, corrupt, inept, nepotic, clannish, ethnocentric, visionless etc leaders.

Corruption is at the root of the non-justiciability of the ECOSOC rights in Nigeria. There is a wilful denial of these basic rights because if they are sufficiently provided, there won’t be any money to embezzle or mismanage. If there is no corruption, there will be adequate budgetary provisions for the implementation of these rights for every fiscal year.

If we are desirous of moving forward as a nation and we are sincere to right the wrongs of the past then, we must as a matter of urgency make Part II of the Constitution justiciable, “fundamental”, enforceable and binding. Necessary amendments must be made to the current Constitution (which is not democratic but a military-foisted document) to bring in provisions that will benefit all the citizens of Nigeria and not the piecemeal approach to amendment adopted every four years by members of the National Assembly to make amendments that will favour only the political class.

A Joint Committee for the amendment of the Constitution has been set up at the National Assembly; the justiciability of Part II of the Constitution should be their utmost priority as a long term solution to future protests and violence occasioned by bad governance.

Government at all levels must be held accountable for the realisation of the ECOSOC rights by making them enforceable and putting in place concrete steps for its implementation. This will ensure human and social security as well as forestalling the type of mass action that broke out across the country in the form of looting of “CACOVID PALLIATIVE” materials, government establishments, private businesses etc. It will stop the marginalisation (percieved or real) of any part of this country, there will be no agitation for “resource control” arising therefrom. It would stimulate rapid growth and development of the country; mutual distrust between government and citizens will be eliminated.

If we fail to do the needful by effecting the necessary amendments to the Constitution in order to elevate the status of ECOSOC rights and making them justiciable, then the essence of government would be defeated and no citizen of Nigeria should be expected to devote his/her body, soul and spirit to the peace, progress and unity of this country. Without the justiciability of the ECOSOC rights, Nigerians will be denied the basic necessities of life. It will be tantamount to legalising the wilful deprivation of basic amenities, facilities and necessities from citizens by the Nigerian government. Simply put, no meaningful development can occur if the ECOSOC rights do not have a binding status under our Constitution.

The non-justiciability of the ECOSOC rights is the reason why Nigeria is currently the “poverty headquarters” of the world. There is extreme or absolute poverty in Nigeria and the reason for this would be found in the definition of absolute poverty by the United Nations Declaration of Human Rights. It defines absolute poverty as:

a condition characterised by severe deprivation of basic human needs, including food, safe drinking water, sanitation facilities, health, shelter, education and information“.

The UN Declaration further specified that, poverty depended not only on income but also on access to social services.

We must take all necessary steps to end bad governance. #EndBadGovernance

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