Economic, Social and Cultural Rights under the 1999 Constitution of the Federal Republic of Nigeria and the enforceability problem

Author: Olika Daniel Godson
Student (LLB) Faculty of Law, University of Lagos

The 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the “Constitution”) provides for economic, social and cultural rights in rather grand and lofty terms in form of the Fundamental Objectives and Directive Principles of State Policy in Chapter II of the Constitution. These rights are however denied enforceability under the Constitution as it prefers to see them as goals and objectives which the Government is to strive to attain. This denial of enforceability of these rights contained in this Chapter of the Constitution poses a major problem to human rights activism in the Country, as the specific rights contained in that Chapter of the Constitution are worthy of enforcement in this age and time. Some of those rights include; cultural, labour, economic, political, environmental and educational rights. It therefore comes, now and again, to the fore that some of these rights are not being enforced in the country. This article attempts to analyse the enforceability problem and address some strategies for enforcement.

The Constitution in Section 6(6)(c) provides expressly that no action shall be instituted in any court of law in the country as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with Chapter II of the Constitution which provides for these rights. This express denial of enforceability is non-contestable as the supremacy clause of the Constitution is to the effect that all its provisions are supreme and any law which is inconsistent with it shall be null and void to the extent of its inconsistency. There are a plethora of judicial decisions by the Supreme Court (Apex Court) buttressing the Constitution’s supremacy and reiterating the position of the Constitution stated above that the rights contained in Chapter II are unenforceable.

The Nigerian Courts have however artfully devised strategies for enforcement without breaching express constitutional provisions. The most interesting strategy is that adopted by the Court in Archbishop Okogie v. Attorney General of Lagos State (1981) 2 NCLR 625 HC with respect to educational rights in the Constitution. The Court recognized the enforceability problem of all rights contained in Chapter II of the Constitution and goes on to state that by virtue of Section 13 of the Constitution, it shall be the duty and responsibility of all organs of government and of all the authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of Chapter II of the Constitution. The effect of that provision is that without prejudice to Section 6(6)(c) of the Constitution, the Government still has the duty to observe and apply the Economic, Social and Cultural rights in the Constitution. The Court in that case, recommended legislation as a way of giving life to those rights. i.e. the rights can be legislated upon thus making them enforceable. This strategy was further explained and elucidated upon in the case of Attorney General of Ondo State v. Attorney General of the Federation (2002) 27 WRN 1 SC where the Supreme Court stated that the Federal Government and State Government have legislative powers over some matters spelt out in Chapter II and thus have constitutional powers to make them enforceable by Legislation. See also; Bamidele Aturu v. Minister of Petroleum Resources and Others.

Another strategy that can be utilised to make these rights enforceable is to apply similar provisions in the African Charter on Human and Peoples Rights (“African Charter”). Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules of 2009 makes rights contained in the African Charter which has been ratified by virtue of Section 12(1) of the 1999 Constitution, as the “African Charter Act”, as well as the rights contained in Chapter IV enforceable and applicable by the Courts. Thus, economic, social and cultural rights contained in the African Charter Act which is a federal legislation can be enforced by the Courts. In Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria [2001] AHRLR 60 (ACHPR 2001) the African Commission held that environmental rights are applicable and enforceable in Nigeria by virtue of Article 24 of the African Charter since it had been incorporated in Nigeria. Thus, by virtue of this decision as well as the provision of the FREP rules, economic, social and cultural rights contained in the African Charter can enjoy enforceability in Nigeria.

Environmental rights seem to be the most actively litigated economic, social and cultural right in Nigeria. Thus, by virtue of the decision in Jonah Gbemre v. Shell Petroleum Development Company (2005) AHRLR 151 (NgHC 2005) environmental rights, and by extension all rights in Chapter II can be made enforceable by the liberal interpretation of the fundamental rights contained in Chapter IV of the Constitution. The express denial of enforceability can therefore be bypassed by adopting these strategies.

About the Author:
Olika Daniel Godson is currently an LLB student at the Faculty of Law, University of Lagos. He is the Director of Research II of The Mooting Society,  Faculty of Law, University of Lagos. His research interests are; Constitutional Law, International Human Rights Law, Intellectual Property Law and Petroleum Law