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.

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.
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