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