It
was Oliver Wendy Holmes of the Realist school of thought who opined that the
“LAW” is what the courts say it (law) is. The
prophecies of what the courts will do in fact, and nothing more pretensions,
are what I mean by law. This is the view of the American Realists. The
Aristolean model of democracy upholds the delineated boundaries which
constitutionally separate the three organs of government into distinct
departments with defined responsibilities and boundaries anchored on the
constitution, a welcomed idea which is also supported by other social thinkers
like Constant and Plato.
This
democratic model which is hinged on the tripartite stool of the legislature,
judiciary and the executive is an all inclusive form of governance. Under an
atmosphere of this nature, the electorates freely elect their leaders according
to their capacity and credibility, while the legislature makes the right law
for the smooth running of the state, the executive arm see to the day to day
execution of these laws and the judiciary stamps out obnoxious laws though the
process of judicial Surveillance anchored on the mechanism of judicial review.
But
it is somewhat amazing that under the 1999 constitution ECONOMIC and SOCIAL
rights are non-justifiable, the courts are not authorized to enquire into these
areas. A
posturing which is considered as offensive and anti-human even in the worst
despotic and tyrarnic constitutions.
It
is noteworthy that section 6 of the 1999 constitution conferred judicial powers
on the courts. So any legislature which interferes with the vesting of this
power by either entrusting such powers upon the legislature or by vesting it in
someone else not properly constituted to receive them, such legislature will be
unconstitutional, but section 6, subsection 6(c) is somewhat amazing “The
judicial powers vested in accordance with the forgoing provisions of this
section (referring mainly of section 6 which accords broad power on superior
courts of records) shall not except as otherwise provided by this constitution,
extend to any issue or question as to whether any law or any judicial decision
is in conformity with fundamental objectives and directive principles of state
policy set out in Chapter II of this constitution”.
Ever
since the constitution of the French 3rd Republic many Countries have copied
its style of incorporating into their constitutions, a charter of essentially
political nature, a body of fundamental principles to be backed not by legal
sanctions, but political sanctions and public opinions.
These
directive principles of State policy dealt with in Chapter II includes among
other things, ECONOMIC and SOCIAL objectives. An articulate scrutiny of section
6 subsection 6(c) shows that it is nothing but an ouster clause.
WHAT
A JUDICIAL TRAGEDY
Recently
the House of Representatives Adhoc Committee on constitutional review submitted
its report on the Peoples Public Sessions (PPS) though how public these sessions
where is better imaged than real. It
was in the celebrated case of MARBURY vs MADISON, the American Supreme Court
established that it is in the boarders of judicial department to assert what
the “LAW” is. Also
in the Indian case of THE STATE OF MADRAS vs CHAMPKAM, here the Court held that
“The Chapter of fundamental rights is sacrosanct and cannot be abridged by any
legislative or executive act or order.”
Thus
for the courts in Nigeria to be restricted from discharging such a fundamental
and onerous assignment as declaring that the ECONOMIC and SOCIAL rights of the
citizens as justifiable is unimaginable owing to the fact that these
two-pronged pillars guarantee the stability of any society. Until this
amendment is carried out, we will be left in an environment where the despotic
whims and caprices of members of the executive department hold sway. One
is the school of thoughts that believes that since the constitution is the
organic law of the land, thus a living document it should be constantly
nurtured and expounded via the agency of judicial scrutiny and review.
Again
the United States Supreme Court, declared in GIBBONS vs OGDEN that “the power
of congress to regulate commerce among the states is plenary complete in itself
may be exercised to its utmost extent and acknowledges no limitation.”
The
full significance of such legendry and landmark decisions should be brought to
bear on our judicial system. Man by nature has the perchance to cling to power
at the expense of others, hence the executive arm of government should not be
allowed with such flamboyant and superfluous power without the necessary
constitutional restrain. A meticulous observance of the geo-polity called
Nigeria, will review that the gap between the have and have-nuts is so wide a
gap, to say that the likes of the Dangotes, the Ubas and the Adenugas, control
all facet of the economy is a partial truth, because he that has money
(economic power) has all. The bible in Ecclesiastes chapter 10 verse 19b, says
that “money is the answer for everything”. The Igbos on their part says that
“Ego ji olu” (money determines the pace at which any work is done), a
juxtaposition of these realities with the non- justifiable nature of the
ECONOMIC and SOCIAL rights in our constitution, one will be left in realm of
confusion why such a fundamental tool needed for the advancement of our Economy
and for the sustenance of our nicest democracy should be lacking.
It
was the legal guru justice Learned Hand who opined that the spirit of liberty
is “the spirit which seeks to understand the minds of other men and women, the
spirit which weights their interest alongside its own with out bias”.
Thus,
this is a clarion call to the National Assembly to rise up to the challenge and
see to it that the non-justifiability clause of SOCIAL and ECONOMIC rights in
our constitution is stamped out in the ongoing constitutional review.
Therefore,
a level playground should be made available for all to carryout his or her
economic activity in an atmosphere devoid of TRIBAL, RELIGIOUS and SOCIAL
sentiment. NIGERIA,
a country of nearly about two hundred million people which qualifies her as the
largest black market in the world, thus she (Nigeria) is the sum total of the
wishes, aspirations, heartbeats and hopes of these numerous multitude which
should not be mortgaged or sacrificed to satisfy the wishes and wellbeing of
the few minority.
Though
this can only be done when the constitutional holdup (the non justifiability
clause) has been cleared off the way, for a man without a viable economic right
(means of livelihood) will by no means assert his social rights. Until these
twin-issues of both the SOCIAL and ECONOMIC rights are completely dealt with,
the constitutional review might be an exercise in futility.