versão On-line ISSN 1609-073X
Afr. hum. rights law j. vol.10 no.1 Pretoria 2010
Associate Legal Officer, Africa Programme, Open Society Justice Initiative, Abuja, Nigeria; Solicitor and Advocate of the Supreme Court of Nigeria
The article explores ways of overcoming challenges in the effective implementation of economic, social and cultural rights in Nigeria. It begins with a brief review of the legal architecture of economic, social and cultural rights. It examines challenges to implementing these rights, such as locus standi, justiciability and the doctrine of dualism. Finally, it identifies the opportunities provided by Nigeria's current constitutional review process; the debate on access to information legislation; legislative action; and citizens' education, empowerment and mobilisation.
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* LLB (Lagos State), LLM (Globalisation and Human Rights) (Maastricht); email@example.com. This article is based on a paper presented at the Seminar on International Law in Domestic Courts organised by the International Law in Domestic Courts (ILDC) project of the Centre for Human Rights, University of Pretoria, and Nigerian Bar Association, Yenogoa Branch in Yenogoa, Bayelsa State, Nigeria, on 18 September 2009. I would like to thank the two anonymous reviewers appointed by this journal for their painstaking review of the draft and useful suggestions. The views expressed here are personal to the author and do not necessarily represent the opinions or policies of the Open Society Institute (OSI) or any of its associated foundations and programmes. 1
1 In the sense of having to be 'realised gradually', being of a 'more political nature' and 'not capable of judicial enforcement'. See A Eide 'Economic, social and cultural rights as human rights' in A Eide & A Rosas (eds) Economic, social and cultural rights: A textbook (2001) 3. See also D Bilchitz 'Towards a reasonable approach to the minimum core obligation: Laying the foundations for the future socio-economic rights jurisprudence' (2003) 19 South African Journal on Human Rights 1.
2 Indeed, art 2 of ICESCR urges states to 'progressively realise' these rights.
3 Exceptions are the right to free and compulsory primary education and the principle of non-discrimination. See J Cottrell & Y Ghai 'The role of the courts in implementing economic, social and cultural rights' in Y Ghai & J Cottrell (eds) Economic, social and cultural rights in practice - The role of judges in implementing economic, social and cultural rights (2004) 61.
4 For background on the factors responsible for the existing gap, see S Ibe 'Beyond the rhetoric: Transcending justiciability in the enforcement of socio-economic rights in Nigeria' unpublished LLM dissertation, Maastricht University, Netherlands, 2006 (on file with author); RKM Smith Textbook on international human rights (2003); Eide (n 1 above); HJ Steiner & P Alston International human rights in context (2000); MCR Craven The International Covenant on Economic, Social and Cultural Rights: A perspective on its development (1995).
5 It is not. I provide the basis for this conclusion in sec 2 of the article.
6 Examples include the right to an adequate standard of living (art 25); the right to property (art 17); the right to work (art 23); and the right to social security (arts 22 & 25).
7 By Resolution 543 (VI) of 5 February 1952, the Commission on Human Rights divided the rights contained in the Universal Declaration into what would become two separate covenants, ICESCR and the International Covenant on Civil and Political Rights (ICCPR), in part because economic, social and cultural rights were perceived as general principles for governments in the management of public affairs while civil and political rights were considered enforceable. See Ibe (n 4 above) 6.
8 The Optional Protocol to ICESCR, adopted on 10 December 2008, rectified this. Unlike ICESCR, ICCPR was adopted with an Optional Protocol establishing the procedure for individual complaints in 1966. See L Chenwi 'Correcting the historical asymmetry between rights: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (2009) 9 African Human Rights Law Journal 23-51.
9 CA Odinkalu 'Implementing economic, social and cultural rights under the African Charter on Human and Peoples' Rights' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights - The system in practice 1986-2000 (2002) 178218 186.
10 Civil and political rights are subject to claw-back clauses. See Ibe (n 4 above) 13.
11 Art 2 of ICESCR enunciates the 'progressive realisation' principle, which the ESCR Committee has described as 'a recognition of the fact that full realisation of all economic, social and cultural rights will generally not be able to be achieved in a short period of time'. See General Comment 3 on the Nature of State Parties' Obligations under ICESCR, para 9.
12 Unfortunately, the Charter does not mention such ICESCR rights as the right to social security, an adequate standard of living (art 11(1)), freedom from hunger (art 11(2)) or the right to strike (art 8(1)(d)). Although the African Charter specifically provides for economic, social and cultural rights and recognises them as justiciable rights, state parties to the Charter have yet to realise these rights, either within domestic legal systems or at the regional level.
13 F Morka 'Economic, social and cultural rights and democracy: Establishing causality and mutuality' in HURILAWS Enforcing economic, social and cultural rights in Nigeria - Rhetoric or reality? (2005) 85 88.
14 See Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) 15 Netherlands Quarterly of Human Rights 244.
15 See S Ibe 'Beyond justiciability: Realising the promise of socio-economic rights in Nigeria' (2007) 7 African Human Rights Law Journal 225 228.
16 See African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act ch A9, Laws of the Federation of Nigeria, 2004 which domesticates the Charter in accordance with sec 12 of the 1999 Constitution. Sec 1 of the Act provides that '[t] he provisions of the Charter shall have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria'. See also the decision in Fawehinmi v Abacha (2000) 6 NWLR Part 660, 228 confirming that the Charter is part of Nigerian law.
17 Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria & Universal Basic Education Commission, Suit ECW/CCJ/ APP/08/08, ruling of 27 October 2009 (on file with author).
18 n 17 above, para 19.
19 The term was first used in the 1979 Constitution. Justice Mamman Nasir described fundamental objectives as identifying 'the ultimate objectives of the nation' and the Directive Principles as laying down the 'policies which are expected to be pursued in the efforts of the nation to realise the national ideals' (see Archbishop Okogie v The Attorney-General of Lagos State (1981) 2 NCLR 350).
20 O Agbakoba & U Emelonye Test of progressive realisation of economic, social and cultural rights in Nigeria (1990-1999 Budget Analysis) (2001) 1-2.
21 J Akande Introduction to the Constitution of Nigeria (2000) 52.
22 Sec 13.
23 Consequently, some have argued that economic, social and cultural rights are not justiciable. See E Durojaye 'Litigating the right to health in Nigeria: Challenges and prospects' paper presented at the Conference on International Law and Human Rights Litigation in Africa organised by the Centre for Human Rights, University of Pretoria, South Africa, and the Amsterdam Centre for International Law, University of Amsterdam, Netherlands, 14-15 August 2009, University of Lagos, Nigeria 11-12; F Falana Fundamental rights enforcement (2004) 9.
24 (1981) 2 NCLR 350. The facts and key pronouncements are excerpted from Ibe (n 15 above) 241-242.
25 Indeed, the decision liberalises access to primary education by providing the platform for establishing privately-owned primary schools in Lagos State.
26 See also Uzoukwu v Ezeonu II (1991) 6 NWLR Part 200.
27 In Federal Republic of Nigeria v Alhaji Mika Anache & Others (2004) 14 WRN 1-90 61, Justice Niki Tobi explained that 'the non-justiciability of section 6(6)(c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words "except as otherwise provided by this Constitution". This means that if the Constitution otherwise provides in another section, which makes a section or sections of Chapter II justiciable, it will be so interpreted by the courts.'
28 (2002) 27 WRN 1-231.
29 Sec 15(5) provides: 'The state shall abolish all corrupt practices and abuse of power.' It is embedded in ch II of the 1999 Constitution.
30 n 28 above, 160 paras 40-48. In the Anache case (n 27 above), Tobi J emphasised that item 60(a) is one of the items that the National Assembly is vested with legislative power ... by item 60(a), the National Assembly is empowered to establish and regulate authorities to "promote and enforce the observance of the provisions of chapter 2 of the Constitution"' (63).
31 It is crucial to observe that India's adoption of the DPSP was defined by its historical and social context as well as international developments at the time of its drafting, which predated the general trend towards decolonisation. Things have since changed. Eg, the Vienna Declaration of 1993 expressly affirms the current trend towards universality, indivisibility, interdependence and interrelatedness of all rights.
32 See also Francis Coralie Mullin v Union Territory of Delhi (1981) 1 SCC 608, where the Supreme Court held that the right to life guaranteed under art 21 of the Indian Constitution includes the right to live with human dignity and all that goes along with it.
33 Courts are enjoined to grant bail in special circumstances, including cases where refusal of the application will put the applicant's health in serious jeopardy. See eg the case of Fawehinmi v The State (1990) 1 NWLR Part 127 486. In Mohammed Abacha v State (2002) 5 NWLR Part 761 638 653 para E, Ayoola J confirmed that '[w]hatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as special circumstance'.
34 See Berende v Usman (2005) 14 NWLR Part 944 1 16 paras D-E, quoting the decision in Alhaji Gombe v PW (Nigeria) Ltd (1995) 6 NWLR Part 402 402. In Thomas & Others v Olufosoye (1986) 1 NWLR Part 18 669, Ademola JCA, referring to the locus classicus on the issue of locus standi in Nigeria, Senator Abraham Adesanya v The President of Nigeria (2002) WRN Vol 44 80, said: '[I]t is also the law ... that, to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself and which interest [sic] injury is over and above that of the general public.'
35 As above. See also Senator Abraham Adesanya v President of the Federal Republic of Nigeria (n 34 above); Fawehinmi v Col Akilu (1987) 4 NWLR Part 67 797.
36 Niki Tobi J in Pam v Mohammed (2008) 40 Weekly Reports of Nigeria 67 123.
37 See Olagunju v Yahaya (1998) 3 NWLR Part 542 501.
38 See n 34 above.
39 See Fawehinmi v President, Federal Republic of Nigeria (2007) 14 NWLR Part 1054 275 and Okechukwu v Etukokwu (1998) 8 NWLR Part 562 513.
40 (2000) 10 NWLR Part 675 315.
41 The Court of Appeal in Fawehinmi v President, Federal Republic of Nigeria (n 39 above) and Supreme Court in Owodunni v Registered Trustees of the Celestial Church & Others (n 40 above) applied the 'over and above' principle.
42 See Olufosoye (n 34 above).
43 Essentially the Rules of Court.
44 Interestingly, the ECOWAS Court relied on this in the SERAP case to hold that 'in public interest litigation, the plaintiff need not show that he has suffered any personal injury or has a special interest that needs to be protected to have standing. Plaintiff must establish that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable.' See the SERAP case (n 17 above) 16.
45 Explaining the goal of public interest litigation, the Indian Supreme Court in Peoples Union for Democratic Rights (PUDR) v Union of India (1983) 1 SCR 456 http://www.scribd.com/doc/17037501/PUDR (accessed 2 October 2009) held that it was to 'promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed'.
46 Fundamental Rights (Enforcement Procedure) Rules 2009 (on file with author), which took effect on 1 December 2009.
47 Sec 3(e) lists the following as possible applicants in a human rights case: (i) anyone acting in his own interest; (ii) anyone acting on behalf of another person; (iii) anyone acting as a member of, or in the interest of, a group or a class of persons; (iv) anyone acting in the public interest; (v) associations acting in the interest of its members or other individual groups.
48 Eg, Lester and An-Na'im restate the core arguments in the justiciability debate in Ghai & Cottrell (n 3 above). Lester believes that 'for reasons of democratic legitimacy, crucial resource allocation decisions are better left in the hands of the legislature and the executive, rather than being determined by an unelected judiciary' and that judicial intervention should take place only 'where there exists a clear and comprehensive dereliction of duty on the part of the two "democratic" branches of government'. For his part, An-Na'im thinks that 'if human rights are to be universal in a genuinely inclusive sense, they must include ESCR and that cannot be without judicial supervision of the performance of normal political and administrative process in this regard'. See L Lester of Herne Hill QC & C O'Cinneide 'The effective protection of socio-economic rights' in Ghai & Cottrell (n 3 above) 17-22 and AA An-Na'im 'To affirm the full human rights standing of economic, social and cultural rights' in Ghai & Cottrell (n 3 above) 7-16.
49 See An-Na'im (n 48 above).
50 A Chapman & S Russell (eds) Core obligations: Building a framework for economic, social and cultural rights (2002) 5.
51 Para 9, General Comment 3 on 'The Nature of States Parties' Obligations' (5th session, 1990). See http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ 94bdbaf59b43a424c12563ed0052b664?Opendocument (accessed 31 March 2010).
52 General Comment 3 (n 51 above) para 10.
53 As above.
54 Minister of Health & Others v Treatment Action Campaign & Others 2002 5 SA 721 (CC) (7AC case). See http://www.law-lib.utoronto.ca/Diana/TAC_case_study/MinisterofhealthvTACconst.court.pdf (accessed 2 April 2010).
55 TAC case (n 54 above) 24.
56 See M Dixon & R McCorquodale Cases and materials on international law (2003) 109, quoting A Cassese International law (2001) 168-171 180. See also ME Adjami 'African courts, international law and comparative case law: Chimera or emerging human rights jurisprudence?' (2002) 24 Michigan Journal of International Law 103. For Brownlie, dualism 'points to the essential difference of international law and municipal law, consisting primarily in the fact that the two systems regulate different subject matter'. See I Brownlie Principles of public international law (1998) 31-32.
57 See The Registered Trustees of National Association of Community Health Practitioners of Nigeria & Others v Medical and Health Workers Union of Nigeria (2008) 37 WRN 1.
58 Sylvester Onu J 53 lines 30-35. He also referred to the decision of Ogundare J in Abacha v Fawehinmi SC 45/1997 http://www.nigeria-law.org/General%20Sanni%20Abacha%20&%20Ors%20%20V%20%20Chief %20Gani%20Fawehinmi.htm (accessed 22 October 2009), wherein he echoed the provisions of sec 12 that 'an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly'.
59 See art 27 of the Vienna Convention on the Law of Treaties, 1969, referring to justification for failure to perform a treaty.
60 n 58 above.
61 n 58 above, 4.
62 See judgment of O Achike J in Abacha v Fawehinmi (n 58 above) 20. See also Oshevire v British Caledonian Airways (1990) 7 NWLR Part 163 489 and Ibidapo v Lufthansa Airlines (1997) 4 NWLR Part 498 124.
63 Sec 9 of the 1999 Constitution invests the National Assembly with this mandate.
64 Cap E12, Laws of the Federation 2004. The Act sets out general principles, procedure and methods to enable the prior consideration of environmental impact assessment on certain public or private projects. Sec 2(1) provides: 'The public or private sector of the economy shall not undertake or embark on or authorise projects or activities without prior consideration, at an early stage, of their environmental effects.' The Act enjoins the relevant agency responsible for the environment to 'give an opportunity to government agencies, members of the public, experts in any relevant discipline and interested groups to make comment on the environmental impact assessment of the activity' before it gives a decision on any activity to which an EIA has been produced (sec 7). Furthermore, the Act mandates the agency to publish its decision in a manner that members of the public can be notified (sec 9(3)). These sections provide a veritable opportunity to challenge a denial of access to government-held information and should be explored to broaden existing interventions.
65 See SC Agbakwa 'Reclaiming humanity: Economic, social and cultural rights as the cornerstone of African human rights' (2002) 5 Yale Human Rights and Development Law Journal 177.
66 Peoples' Union v Union of India (n 45 above).