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CHAPTER ONE
GENERAL INTRODUCTION
1.1. Background of the Study
The debate about the justiciability of economic and social rights in Nigeria is an old and well-worn one. The appraisal of the arguments against making socio- economic rights justiciable and the analysis of jurisprudence determine that concerns about the justiciability of economic and social rights are generally ill-conceived and run contrary to experience. Indeed, critics of justiciability have relied on overly simplistic division of the rights in the Universal Declaration of Human Rights into two separate covenants. One contained economic, social and cultural rights, while civil and political rights were set out in the other. Though both set of rights were affirmed to be indivisible and interdependent, commentators have often distinguished between the two categories of rights by asserting that economic and social rights are not justiciable. Worse still, economic and social rights are classified under Chapter II of the 1999 Constitution of Nigeria (as amended), as Fundamental Objectives and Directive Principles of State Policy and as such, these rights have been rendered non-justiciable by section 6(6) (c) of the 1999 Constitution. Also, critics of justiciability have relied on incorrect assumptions about the nature of the relationship between the judiciary and the legislative or executive branches of government, when economic and social rights are adjudicated.
To the contrary, the ways in which civil and political rights and socio-economic rights are inter-twined and interact with one another make it impossible to declare the latter category non-justiciable without undermining protections of both categories of rights. These rights, otherwise called second generation rights are bedeviled often by the absence of legal framework to implement the provisions in the international covenants and national constitutions. Apart from the legal framework, there appears the negating influence by the international formulators of those rights where the extent of enjoyment of those rights, is dependent on resource availability. Little wonder therefore, that many national constitutions have the provision made almost nebulous as to grant them the backing of a legal redress much as often as enjoyed by the first generation rights, comprising civil and political rights. The attempt is to make economic, social and cultural rights a lame provision in many national constitutions of government, much as political party manifestoes.
However, evidence demonstrates that in recent years, an increasing number of countries have included economic and social rights in their constitutions. In addition, some domestic courts and regional bodies routinely adjudicate and rule upon socioeconomic rights claims. For example, economic and social rights are litigated directly and indirectly before regional bodies, including the African Commission of Human Rights, the inter-American Court of Human Rights, European Committee of Social Rights, the European Court of Human Rights, the African Court of Human Rights and other
international bodies.
1.2. Statement of the Problem
Three important factors impede effective promotion and protection of economic and social rights in most domestic jurisdictions, in particular, common law jurisdictions such as Nigeria. The first, arising from the classification of rights in international law into 3 generations, is the wide conception that economic and social rights, unlike civil and political rights are not justiciable.
Closely following this reasoning is yet a wider conception that the provisions of ‘Fundamental
Objectives and Directive Principles of State Policy’ contained in Chapter II of the 1999
Constitution of Nigeria are economic and social rights provisions and therefore, are by section 6(6)(c) of the said Constitution, non-justiciable. The third factor is the provision of the very international treaty that codified economic and social rights (the International Covenant on Economic, Social and Cultural Rights) to the effect that economic and social rights should be realized or implemented progressively.
The justification for this is said to be that economic and social rights require financial and material resources and that international law or the municipal legislature would not impose obligations with financial implication on the executive government. Each government should therefore fashion out how it would realize the economic and social rights based on resources available to it.8 It is worthy of note here that not all economic and social rights require resources for instance: labour rights, rights to free economic activity, and so on.
The United Nations through its Commission on Human Rights (now Human Rights Council) voted in favour of non-justiciability of economic and social rights. The Nigerian Constitution Drafting Committee had also advanced the argument that if the objectives and directive principles were made enforceable, it would lead to constant confrontation between the executive and the legislature on the one hand, and the judiciary on the other hand. To make the judiciary the arbiters over such matters is only a short step towards building up against them the charge of usurping the functions of the executive and the legislature. It has similarly been contended that it will be tantamount to asking Judges to make political value judgments if they have to decide whether governmental actions and omissions are in line with the objectives and the directives. It is argued that if the courts are granted power to determine the priorities of government in all circumstances, that would amount to determining the plan of action for the executive. Justiciability, it is also contended, will lead to multiplicity of actions which the courts lack the capacity to cope with. This dissertation shall give an in-depth exposition on all these problems that have been enumerated above.
1.3. Research Questions
In the course of this academic inquiry, certain imperative research questions come to mind amongst which are:
a) Does the International Covenant on Economic, Social and Cultural Rights (ICESCR) articulate real rights, or does it merely set forth hortatory goals, programmatic objectives or utopian ideals?
b) Can economic, social and cultural rights ever be fully achieved?
c) How can they best be enforced?
d) Are economic, social and cultural rights soft laws?
e) Should human rights be classified into generations?
f) Are all human rights universal, interdependent, inter-related and indivisible?
g) Will justiciability of economic and social rights lead to multiplicity of actions which the courts lack the capacity to cope with?
h) Will justiciability of economic and social rights be tantamount to asking judges to make political value judgements?
i) Why are economic and social issues called ‘rights?’
j) What are the challenges to the enforcement of economic and social rights?
k) Where should we place human rights in the development discourse?
l) How does one calculate the ‘maximum extent of available resources?’
m) Should there be progressive realization of economic, social and cultural rights?
1.4. Objective of the Study
The objective of this study is to show that despite the controversies surrounding the question of justiciability of economic and social rights in Nigeria, progressive realization of these rights is practicable and that adjudication is seriously urged in Nigeria, as this is already taking place in various jurisdictions of the world.
1.5. Methodology
A doctrinal approach is adopted. This involves both library and desk research. To this end, the study relied on primary source materials like observations by learned commentators. A detailed and comprehensive review of secondary source materials like case laws, statutes, conventions, treaties, textbooks, journals, articles, periodicals, conference papers, legal news, law reviews, the internet and other legal literature has been made. The collation and analysis of foreign and local decided cases form part of the methods adopted in this work. Also, the methodology adopted in this dissertation is descriptive, analytical, critical and comparative.