FUNDAMENTAL RIGHTS AND FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY: ISSUES AND POSSIBILITIES FOR JUSTIFIABILITY



INTRODUCTION
Human rights being the basic guarantees which individuals enjoy simply because they are human beings are enshrined in chapter IV of the constitution[1] as fundamental rights. While some of these human rights are codified in chapter II of the constitution and tagged as fundamental objectives and directive principles of state policy. The rights proclaimed in the former chapter are justiciable and those in the latter are mere aspirations for the government to direct its policies towards realization of the noble ideals and succinctly they are non justiciable. However, these rights together they are intended to carryout the objectives set out in the preamble of the constitution and to establish an egalitarian social order informed with political, social and economic justice and ensuring the dignity of the individual.[2]

            In view of this fact, this paper intends to look into the provision of fundamental rights and fundamental objectives and directive principles of state policy and the obligation involved in the observance of these rights. International instruments as the basis for human rights, the African Charter on Human and Peoples’ Rights and its applicability in Nigeria would be considered. The paper would also examine the nexus and interdependence of classes of rights as mutually complementary. A reflection on the constitutional provisions relating to justiciability or otherwise of the categories of rights would be made. Finally, the paper will end with conclusion and recommendations.

1.1.      Fundamental Rights in the Constitution         
            Chapter IV of the constitution is dedicated to the Fundamental Rights. These Rights consist of right to life,[3] right to dignity of human person,[4] right to personal liberty,5 right to fair hearing,6 right to private and family life,7 right to freedom of thought, conscience and religion,8 right to freedom of expression and the press,9 right to peaceful assembly and association,10 right to freedom of movement,11 right to freedom from discrimianiton,12 and right to acquire and own immovable property anywhere in Nigeria.13 The compulsory acquisition of property, movable or immovable shall be followed by the payment of compensation. Section 45 provides for restrictions and derogations from certain rights.14 These rights formed the bulk of the rights which are protected and made justiciable in Nigeria and by many, if not all national constitutions.15
            The fundamental rights belong to civil and political rights class, they are aimed at securing the liberty of the individual from the arbitrary actions of the state and they are categorized as the first generation rights. This categorization is based on the period the rights emerged or were recognized.16 Generally, the civil and political rights are conceived more in negative (freedom from) than in positive (right to) terms. They favour the abstention of government from the affairs of the individual or abstention of government from the affair of intervention of government.17
            However, not all the first generation rights correspond completely to the idea of “negative” as oppose to “positive” rights.  The right to life and the right to freedom of association for instance require some positive actions on the part of government to ensure their realization. What is constant in this first generation conception is the notion of liberty, a shield that safeguards the individual alone and in association with others, against the abuse and misuse of political authority.18               

1.2.      Fundamental objectives and directive principles of state     policy             in the constitution
            An important symbolic and ideological innovation in Nigerian constitution since 1979 is the introduction of fundamental objectives and directive principles of state policy.19 The rational for the provisions is that governments in developing countries have tended to be preoccupied with power and its material perquisites with scant regard for political ideals as to how society can be organized and ruled to the best advantage of all.20 The fundamental objectives and directive principles of state policy is contained in chapter II of the constitution.
            The chapter begins by saying that it shall be the duty and reasonability of all organs of government, and all authorities and persons, exercising legislative, executive or judicial powers to confirm to, observe and apply the provisions of the chapter.21 
            The chapter further made provision for the government and the people,22 political objectives,23 economic ojectives,24 social objectives,25educational objectives,26 foreign policy objectives,27 environmental objectives,28 directions on Nigerian cultures,29 obligation of the mass media,30 National ethics31 and duties of the citizen.32 
            These rights are classified under the, economic, social and cultural rights and they are recognized as the second generation rights. The rights entail positive obligations on government to provide the living conditions without which the negative rights cannot be enjoyed.33 Therefore, the second generation calls for definite action, forward planning and expenditure of resources to make its enjoyment possible. It gives substance to the first generation of rights, and social justice is indeed impossible if the second generation of rights is not available.34        
            Therefore, the two generations of right involve two types of obligations for their enforceability and realization, viz the negative obligation not to violate the guaranteed rights. The  positive obligation to take some actions for example to adopt legislation to provide medical care by building hospitals and medical centres or to adopt measures to give effect to them.35 In terms of education, government is enjoined to ensure equal opportunity on education matters and also promote literacy among the people. To achieve this goal, government is enjoined to provide free and compulsory universal primary education and free education at all levels as soon as practicable.36 The directive in this context is to government and not private citizens.37
            Consequently, in situations where an apparent conflict has arisen between chapter two and chapter four, the tendency has been for the courts to elevate the provisions of fundamental rights over and above those directive principles38.
            In Okogie v. A.G Lagos state39 it was decided that the provision of fundamental objectives and directive principles could not, nor was it intended in any way to minimize or abrogate the enjoyment of the right of freedom of expression.       

2.1  Civil and Political Rights and Economic, Social and Cultural Rights in International Instruments

            The rights contained in chapter II and IV of the constitution and indeed in pari materia with the provisions of international Bills of Rights and some regional instruments. The international Bill of Rights are the universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Right (ICCPR) and its optional protocols,40 and international covenant on economic, Social and Cultural Rights.41 Other instruments include International Covenant on the Elimination of all Forms of Racial Discrimination, Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and Convention on the Rights of the Child.42  There are many regional instruments dealing with human rights, however within the Nigerian context, the African Charter on Human and Peoples’ Right43 is the relevant instrument.     
            In the International Bills of Rights, human rights are looked at as civil and political rights and economic, social and cultural rights though this paper will not examine the content of the laws but the provisions of the Laws are similar in content but the arrangement of the rights in articles vary from one instrument to another. The laws have been ratified by Nigeria and have become legally binding, however not yet domesticated.44 The African charter has been ratified and domesticated45by Nigeria and therefore it has form part of our national laws.
2.2.      Enforceability of the African Charter in Nigeria     
            The rights contained in the African Charter are categorized into individual and peoples rights. Individual rights are rights that belong to a person as a human being such as right to life, right not to be tortured or detained unlawfully in prison or by the police, right to justice and fair trial, right to religion, right to speak freely on any issue and right to be a member of any organization, Union or political party.46 The rights of peoples are these rights of peoples or citizens of a nation, state, members of a country, group or tribe such rights are right to be governed and to choose who will govern them, right to a good economy, right to be paid for work done and right to promote  the positive aspects of their tradition and culture.47
            The question of enforceability of the African Charter is not in issue since it has become part of the national Laws but the controversy is centred on the relationship of the African Charter to Nigeria municipal law.48  In Fawehimi v. Abacha49 it was enunciated that the provisions of the African Charter are in a class of their own and do not fall within the classification of the hierarchy of laws in Nigeria in order of superiority and that the African Charter by the process of incorporation, and its historical and international character assumes a status of a law that equally like chapter 4 regulates the freedom of liberty of a Nigerian. On the applicability of the African charter, in Ajayi v. A.G. federation50 it was stressed that rights provided under the African Charter can be applied in like manner as  those provided under chapter 4 of the 1979 constitution of Nigeria.51

3.1.      Interdependence of Civil and Political Rights and Economic, Social         and Cultural Rights
            Human rights concept is not static. The substance and scope of human rights has been and continues to be subject to change in pace with the evolution of the society.52 Initially, attention was mainly focused on civil and political rights but with development and progress, economic, social and cultural rights are embraced into the concept of human rights. These social and economic rights premised on the fact that the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is difficult if not impossible.53        
            As a corollary to enjoyment of civil and political rights, the African Charter in its preamble states that henceforth essential to pay particular attention to the right to development and that civil and political rights can not be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.54 Similarly, the 1993 Vienna Declaration on Human Rights State that all human rights are universal, indivisible and interdependent and interrelated55. Julius Nyerere in his words said: what freedom has a subsistence farmer? He scratches a bare living from the soil provided the rain did not fail; his children work at his side without schooling, medical care or even good feeding. Certainly he has the freedom to vote and to speak but these are meaningless.56
            Thus, the full enjoyment of civil and political rights largely depends on the availability of social and economic rights. Ogbu remarks that right to property is only relevant to a person who has property; right to privacy means nothing to a person who can not afford the cost of medicine during sickness; and of what significance is right to personal dignity to a person who lives under the bridge?57 Ibdiapo –obe also observed that the rights (social and economic rights) are to be equated with political right and thus enforceable.58 The interrelatedness and interdependence of the classes of rights is the rational for some Human rights advocates objecting the prioritization of certain rights. Worthy of note is that these rights together, not individually they form the core to the constitution and together not individually they constitute its true conscience.59            

4.1       The Issues of Justiciability
            Justiciable means proper to be examined in court of justice and it depends on whether there is a right or obligation known to the law to be protected or enforced.60
Therefore, the question of justiciability of chapter IV of the constitution i.e. the fundamental rights is not in issue. The constitution provides that any person who alleges that any of the provisions of chapter IV has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in the state for redress.61 This provision covers cases not only of actual violations but also cases of anticipated breach of right.62 Therefore, the question of justiciability lies in the enforcement of chapter II of the constitution.
            The provision of section 6(6)(c) of the constitution renders the objectives and directive principles non-justiciable. It provided that judicial powers shall not, except as otherwise provided by the 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 the constitution.
            This provision has therefore completely insulates the directives and objectives from judicial review.63 However, section 13 of the constitution imposes responsiblilty on all organs of government and all authorities and persons exercising legislative, executive or judicial powers to confirm to, observe and apply the provisions of the objectives and directive principles. Obviously there is contradiction between sections 13 and 6(6)(c) this apparent contradiction could only mean that the spirit of the objectives and directive  principles could inspire  and inform judicial interpretations while action to enforce the objectives and directive principles per se are not maintainable.64
            Another provision of the constitution, item 60 of the exclusive legislative list provides for the establishment and regulation of authorities for the federation or any part thereof to protect and enforce the observance of fundamental objectives and directive principles contained in the constitution.65
            This provision has to be reconciled with section 6(6)(c). Umozurike resolved the controversy and that if, and when, such authority is set up, it may be enforced through persuasion, education, enlightenment etc but not through the judicial process. The two provisions are therefore not contradictory but rather the constitution seeks to make economic, social and cultural rights available to the extent possible without attaching a legal obligation thereto.66  

4.2.      The practice in other jurisdiction

            With the established interdependence and indivisibility of human rights, it is imperative that the interpretation of the provisions of the constitution be made as a whole  in order to relate and give effect  to chapter II  of  the constitution as practiced in some jurisdictions. Take the instance of the Indian case of Mohini Jain v. State of Karnataka.67 Where it was held that right to life necessarily includes right to means of livelihood as well as other rights that make enjoyment of the right to life meaningful.68The Supreme Court of India further held in Olga Tellis  v Bombay Municipal Corporation69 that an important facet of right to life is the right to livelihood. If the right to livelihood is not treated as part of the Constitutional right to life, the easiest way of depriving a person of his life would be to deprive him of his means of livelihood.
            Similarly, a Spanish court also opined that were environmental pollution may affect individuals’ well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely is a breach of right to respect  for private life.70 There is a significant case of Philippine that worth mentioning. In Minors Oposa v. Factoran71the Philippine Supreme Court ruled that the State should stop providing logging licenses in order to protect the health of present and future generations. The decision was based on the rights to health and ecology. In the same vein, the Colombian Supreme Court ruled in a case that concerned the terminal illness of an AIDS patient, that State was required by the right to help in Colombian Constitution to provide special protection when the lack of economic resources prevents a person from decreasing the suffering, discrimination and incurable illness.72
             Another approach is the position in Republican constitution of Ghana where a clause mandates government to report to parliament at least once a year on steps taken to ensure the realizations of the policy objectives.73 Thus, since it has been practicable in other places, it is possible in Nigeria that cognisability and implementation of the provisions of chapter II should be imperative, notwithstanding their non justiciability74        

CONCLUSION    
The classification of human rights to civil and political rights and economic, social and cultural rights are not meant to give superiority or prioritize one over the other, together they are to be enjoyed. The rights guaranteed in chapter IV are enjoyable to the fullest when the rights in chapter II are respected and fulfilled. the international instrument that  form the basis for the two rights and the African charter further strengthen the rights, particularly  with the domestication  of the Charter in Nigeria and the judicial authorities for its applicability. Interrelatedness and interdependence of human rights are stressed by human rights instruments and the question of justiciability at municipal level always posed problem, to implementation of the objective and directive principles in Nigeria.
            Therefore, we recommend that the National Assembly should in amendment of the constitution include or make social and economic rights (fundamental objectives and Directive principles of state policy) justiciable by transferring them to fundamental rights so that we can hold the government accountable for failure to put the resources allocated for realization of these rights into effective use, unless the continued retention of chapter II remains meaningless; or in the alternative  the ouster clause in section  6(6)(c) of the constitution be expunged. We further suggest on the other hand that a clause similar to that of Ghana be entrenched in the constitution to mandate the government (executive) to be reporting annually to the National Assembly on the effort and steps taken towards realization of the objectives and directive principles.


* Alhaji Umar Alkali, Magaji Chiroma & Abdulrashid Lawn Haruna, Lecturers, Faculty of Law, University of Maiduguri, Bornu State, Nigeria.
[1] The Constitution Federal Republic of Nigeria 1999 (hereinafter referred to as “The Constitution.”)
[2] Uwais M. Fundamental Objectives and Directive Principles of State Policy: Possibilities and Prospects. In Okpara O. (ed) Human Rights (Law and Practice in Nigeria). Chenglo Limited, Enugu (2005) vol I p282   
[3] Section 33 of the Constitution
[4] Section 34, ibid
5 Section 35, ibid
6 Section 36, ibid
7 Section 37, ibid
8 Section 38, ibid
9 Section 39, ibid
10 Section 40, ibid
11 Section 41, ibid
12 Section 42, ibid
13 Section 43, ibid
14 Umozurike U.O The African Charter and National Laws: The Issue of Supremacy. In Nwefe C.C. et al
(eds). Current Themes in the Domestication of Human Right Norms Fourth Dimension Publishing co.     Ltd, Enugu (2003) p31 
15 Ladan  M.T. Should all Categories of Human Right be Justiciable? In Ladon M.T. (ed) Law, Human
    Rights and  the Administration of Justice in Nigeria. Ahmadu Bello University Press, Zaria (2001)p69   
16 Ogbu O.N. Human Right  Law and Practice in Nigeria: An Introduction. Cidjap Publishers, Enugu (1999) Pp15-16
17 Ladan M.T , Op. cit, note 15
18 Ogbu O.N. Op. cit, note 16
19Alemika E.E.O. Fundamental Objectives and Directive Principles of State Policy Within the Framework of a Liberal Economy. In Ayua I.A. et al (eds) Nigeria Issues  in the 1999 Constitution. Nigerian Institute of Advanced Legal Studies, Lagos (2000) p198    
20 Akande J.O Fundamental Objectives and Directive Principles of State Policy Within the Framework of a Liberal Economy: A Note. In Ayua I.A. et al (eds) Nigeria Issues in the 1999 Constitution. Nigerian Institute  of Advanced Legal Studies, Lagos (2000) P.221 
21 Section 13 of the Constitution
22 Section 14, ibid
23 Section 15, ibid
24 Section 16, ibid
25 Section 17, ibid
26 Section 18, ibid
27 Section 19, ibid
28 Section 20, ibid
29 Section 21, ibid
30 Section 22, ibid
31 Section 23, ibid
32 Section 24, ibid
33 Ogbu O.N., Op. cit, note 16, p17
34 Umozurike U.O. The African Charter on Human and Peoples’ Rights. Martinus Nijhoff Publishers,
   London (1997) P46
35  Nwabueze B. Constitutional Democracy in Africa. Spectrum Books Limited, Ibadan (2003) vol.2 p69 
36 Omotesho A.O and Bawa A. Issues on Constitutional Law Bold Technology and Systems (Nig) Ltd
    (2001)p38
37 Smith I.O. The Constitution Federal Republic of Nigeria Annotated. Sambak Graphic Reproductions ltd,
    Lagos (1999) P.39 see also Archbishop Anthony Ohbunmi Okogie & ors V.A.G. Lagos  State (1981) 2
    NCLR p.337
38 Uwais M. Op. cit, note 2,, p283
39  (1981) 2 NCLR p.337
40 The first Optional Protocol  allows individuals to submit complaints to the Human Rights committee in the event of violation while the second Optional Protocol aimed at the abolition of death penalty. See also Ogbu O.N Human Rights Law and Practice in Nigeria: An Introduction, Cidjap Publishers, Enugu (1999)p43     
41 Ogbu O.N., Op. cit, note 16, p38
42 Ladan M.T.  Introduction to International Human Rights and Humanitarian Laws.  Ahmadu Bello University Press,  Zaria (1999) PP54-55  
44 ICCPR and ICESCR have been ratified by Nigeria in 1993 but non of the Optional Protocols was ratified. 
45 African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act Cap 10 Laws of  the Federation  of Nigeria 1990 
46 Ige T and Lewis O. Human Right Made Easy. Legal Research and Resource Development Centre, Lagos (1995) pp27-28
47 Ibid
48 Ogbu O.N., Op. cit, note 16, p61
49 (1998) HRLRA p549
50 (1998) HRLR P378
51 See also Ogugu V. State (1998) I HRLRA 169 and Farhewumi v. Abacha (supra)
52 Ogbu O.N., Op. cit,  note 16, p69
53 Ibid
54 the provision is part of the preamble  to African Charter on Human and Peoples’ Rights (Ratification and Enforcement ) Act Cap 10 Law of the Federation of Nigeria 1990  
55 Ladan M.T. Op. cit, note 15, pg 67
56 Ogbu O.N., op cit, note 16, p20
57 Ibid see also Deo Singh Tomer V State of Bihar (1988) AIR Sc  1782 where it was held that the right to
    life includes the right to live in dignity so a persons’ right to adequate housing was deemed  intrinsic to 
    his right to life.   
58 Ibiddapo –obe A. Essays on Human Rights Law in Nigeria. Concept Publications Limited, Lagos (2005)
    p72.
59 Uwais M. Op. cit, note 2,, p283
60 Ladan M.T. Op. cit, note 14, p.71. see also Adamu v. Borno  State (1996) 8 [NWLR] 203
61 Section  46 of the Constitution
62 Okogie v. A.G. Lagos State (1981) I NCLR 218. it was agreed  that Section  46(1) permits a plaintiff to commence proceedings if he fears that his right is likely to get trampled upon. See also Omotesho A  et al. Issues on Constitutional Law. Bold  Technology and Systems (Nig) Ltd (2001) p58 
63 Omotesho A. Op. cit, note 36, p38
64 Ogbu O.N. Op. cit note 16, p80
65 See Second Schedule, Part I of the Constitution. 
66 Umozurike U.O., Op. cit note 14, p32
67A.I.R (1992) SC 1858
68 See also Deo Singh  Tomer v. State of Bihar (supra)
69 A.I.R. (1968) SC 180
70 Ladan M.T. Op. cit, note 14, p89
71 (1993) Supreme Court of Philippine, G.R NO. 101083
72 Ladan M.T. Op cit, note 14, p84
73 Omotesho A. Op. cit, note 36, p39
74 Uwais M. Op. cit, note 2, p286
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