THE JUSTICIABILITY OR OTHERWISE OF THE PROVISIONS OF CHAPTER II OF THE CONSTITUTION BY IBRAHIM MUHAMMAD USMAN

It is worthy of note that the constitution of the Federal Republic of Nigeria has provided for the rights of individuals and went ahead to classify those rights into enforceable and non-enforceable ones, mention of this is made in the chapter four and chapter two respectively,  all the rights itemised in chapter four (Fundamental Human Rights), from section 33-46 of the 1999 constitution are enforceable and application is made when any of them is contravened in a High Court of a state as provided for under section 46 of the said constitution.

Chapter two on the other hand, provides for those non-enforceable rights known as 'The Fundamental Objectives and Directive Principle of State Policy', provided under section 13-24 of the constitution which got their way into our constitution from the Indian constitution based on the principles of Ghandism, through the Irish revolution which later metamorphosed into Socio Economic Rights provided by the United Nations, the rationale behind incorporation of this chapter is to make it a blueprint and a minimum standard for every government to take necessary step towards the actualisation of those rights, especially for developing nations like Nigeria and other African countries.

Similarly,  section 6(6)(b) of the 1999 constitution have it that the judicial powers shall extend between all matters between person and another, a person and an authority  or a person(s) and the government for the determination of any question as to the civil rights and obligations of that person, despite this novel provision, the constitution went ahead to limit the powers of court as stated earlier from entertaining any matter as to any act of commission or commission, relating to anything mentioned in the Chapter two of the constitution, hence the basis of this short piece in an attempt to look into the possibility of the enforceability of the chapter if at all there is.

 It is worthy of note that the provisions of section 6(6)(c) of the constitution is not total. Justice Niki Tobi had this to say in the case of Federal Republic of Nigeria v. Anache & ors. In Re Olafisoye (2004) ALL FWLR (Pt. 186) 1106 at 1153

 “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 the constitution otherwise provided in another section, which makes a section or sections of chapter II justiciable it will be so interpreted by the courts.” 

The court was therefore of the view that chapter II could be justiciable under certain circumstances namely:

 1. Where the constitution makes another provision on any of the subjects in the chapter which, being outside the chapter is justiciable; this is having the effect that the opening statement of the section reads as I quote " shall not as except otherwise provided...", meaning to say that If the constitution provide in another chapter, any provision which justifies any of the provisions of chapter two, or lends credence to it, it becomes justiciable, for example, section 147(3) of the constitution provides that;

"Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this Constitution"

and to this end , the court while interpreting this statement, have this to say that,

"The wordings of Section 147(1) and (3) are also crystal clear and simple. They specifically express the need for the reflection of Federal Character in the appointment of Ministers so that each State has at least one Minister who shall be an indigene of the State. The proviso to Section 147 (3) is very crucial. A searchlight must be pointed to the proviso so as to give the proper intendment of the framers of the constitutional provision. The purport of a proviso in any enactment is to qualify the intendment of the main section of the statute. In NDIC v. O'Silvawax Int'l (2006) 7 NWLR (Pt.980) 588 at 611, this Court, per Adekeye JCA, (as she then was) held thus - "A proviso in a provision of a law is a clause of exception or qualification and it speaks the last intention of a legislature in a statute." See (1) A.B.S.U. v. Otosi (2011) 1 NWLR (Pt.1229) 605. (2) Onugha v. Ezeigwe (2011) 13 NWLR (pt. 1263) 184. The proviso in Section 147(3) further qualifies and emphasizes the importance of the mandatory requirement that each State of the Federation must be represented in ministerial appointments by the President. The mandatoriness of the provision is obvious from the continuous use of the word "shall" in the enactment. It is trite that whenever the word "shall" is used in a statute and indeed the constitution, it presupposes a compulsory action/conduct or duty. It admits of no discretion whatsoever. See Agbiti v. Nigerian Navy (2011) 13 WRN, Kudambo v. Nigerian Navy (2014) 32 WRN 153, Agip (Nig.) Ltd. v. Agip Petroli Int'l (2010) 5 NWLR (Pt.1182) 348, John v. Igbo-Etiti L.G.A. (2013) 7 NWLR (Pt.1352) 1, Nwankwo v. Yar'Adua (2011) 13 NWLR (pt.1263) 81. The raison d'etre for this proviso is to promote national unity and sense of belonging by all Nigerians. … Section 147 of the Constitution brings to fore the intent of promoting social equilibrium in our society, by ensuring the balance in the composition of the governance of the Federation hence the issue of Federal character is engraved in our Constitution. Thus, failure of the President to comply with the provisions of Section 147(3) is tantamount to a derogation of the Constitution. … The clear, simple, ordinary grammatical interpretation of Section 147(1) and (3) of the Constitution is that the president must, mandatorily, appoint at least one Minister from each State of the Federation, who shall be an indigene of that State. … I am of the fervent view that the provisions of S.147(3) and its proviso are meant to create a happy egalitarian citizenry in this country as envisaged by the preamble to the constitution. The provisions are aimed at ensuring equal and fair participation of all states in the recognition of the diversity of the people of this country and the need to forge national unity, promote a sense of belonging among all the peoples in the Federation." [Panya v. President, FRN & Ors (2018) LPELR-44573(CA)].

2. Where the National Assembly makes any legislation making any of the subjects of the chapter the subject of such an Act and thus justiciable, since the National Assembly cannot by any law oust the jurisdiction of the court.

The above is also in the light of item 60(a) of the Exclusive Legislative List which empowers the National Assembly to make laws for the establishment and regulation of authorities to promote and enforce the provisions of chapter II. Thus section 6(6)(c) is subject to the legislative powers of the National Assembly with respect to enforcing the provisions of chapter II of the constitution. The National Assembly has invoked this powers and established the Economic and financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC) which are anti graft agency, mandated to fight corruption and make same a criminal offence, this is a justification of section 15(5) which is a provision under chapter two, it provides as follows:

"The State shall abolish all corrupt practices and abuse of power"

The court in the case of Federal Republic of Nigeria v. Anache & ors. In Re Olafisoye (supra) held that though, corruption is an item mentioned under section 15(5) of the constitution, by establishing agencies that fights against it which the legislature is empowered to do under item no 60(a) of the constitution,  it becomes enforceable.

Similarly, the right to education contained in section 18 and in the African charter on Human and People's Right which has been redomesticated/ratified in conformity with the provision of section 12 of the constitution is also enforceable, but to a certain  level/degree. The National Assembly has sometimes in 2004, enacted the Universal Basic Education Act under the President Olusegun Obasanjo regime.

Having been guided by the pronouncements of the Supreme Court in the case of A - G., Ondo State v. A - G., Fed. (2002) 9 NWLR (Pt. 772) 222, I hold that with the enactment by the National Assembly of the Compulsory, Free Universal Basic Education Act, 2004, the specific provisions covered by that Act have become justiciable or enforceable by the Courts" Uwaifo, J.S.C. further stated at page 391. (paragraphs F - H).

The court while quoting the dictum of justice Uwaifo J.S.C in LEDAP GTE & LTD V FEDERAL MINISTRY OF EDUCATION in suit number FHC/ABJ/CS/978/15, remarked as follows:

"As to the non-justiciability of the Fundamental Objectives and Directive Principles of State Policy in Chapter 11of our Constitution, Section 6 (c) says so (sic). While they remain mere declarations, they cannot be enforced by legal process but would be seen as a failure of duty and responsibility of state organs if they acted in clear disregard of them, the nature of the consequences of which having to depend on the aspect of the infringement and in some cases the political will of those in power to redress the situation. But the Directive Principles (or some of them) can be made justiciable by legislation. This is the ·point Chief Babalola seemed to have elaborated upon when he said that the Fundamental Objectives and Directive Principles had lain dormant in our Constitution since 1979 and that the Act was the first effort to activate just one aspect of them in order that there may be good and transparent government throughout the Federation of Nigeria.''

3- Through the instrument of international treaty ,  treaty is an international agreement entered between two or more countries with a view to bind them as parties signatory to it,  just as history has it that the provisions of chapter two of the constitution can be traceable to the novel provisions of the African Charter on Human and People's Right, now and Act which can be found in the Laws of the Federation of Nigeria 2004, its objectives is to ensure compliance with those provisions and to enjoy international application. But however,  for one to employ this as an instrument under the international law, one must exhaust all the local procedures which is referred in a more technical juristic sense as the doctrine of exhaustion of local remedies, meaning that one has to follow up and fight his case up to the apex court before employing the international instrument as the last option or alternative,  to this end, the international court of Human Rights remarked that they are rights that are enforceable in court.

These rights are made justiciable before the African Commission on Human and Peoples Right. In Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights v. Federal Republic of Nigeria 2001 AHRLR60, the African Commission on Human and Peoples Rights held Nigeria liable for the violation of the rights to freedom from discrimination, right to health, right to life, right to property, right to housing, right to food, right to people to freely dispose of their wealth and resources and the right to safe environment, provided under Articles, 16, 18, 4, 24 of the African charter on Human and peoples Right 1981. The charter did not differentiate between civil and political rights and economic, social and cultural rights, and by article 45 of the charter all the rights enumerated therein are justiciable. Nigeria having signed, ratified and domesticated the charter is under obligation to respect, promote, protect and fulfill these rights.

In Shell British Petroleum V Teibo (1996) 4 NWLR (pt. 445) 675, the plaintiffs sued for negligence and strict liability on oil spilage, the court found the company liable and order to pay compensation for their operations. The National Environmental Standards and Regulation Agency(NESREA), the Ferderal Environmental Protection Agency (FEPA) and the Environmental Protection Assessment Act are Federal legislations that were described as a new dawn in Environmental compliance and enforcement because of the effort to safeguard all aspects of the environment,  just like the provision of section 20 of the constitution which reads as follows:

"The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria"

In Oronto Douglas v. Shell Petroleum Development Company Ltd (1999) 2 NWLR (Part 591) 466, the court of Appeal upheld the justiciability of an action brought pursuant to article 24 of the African charter on Human and Peoples Rights (Ratification and Enforcement) Act. From the foregoing, despite the justiciability confusion, chapter II is not a redundant chapter, it is the chapter that gives life and meaning to the fundamental rights and entire constitution. The chapter also is not entirely non-justiciable as we have noted. Thus in realizing the efficacy of chapter II, it will need a sincere and responsible executive and legislature, a pragmatic judiciary and a verile and active civil society and an enlightened citizenry. It is not within the scope of this paper to discuss extra judicial means of enforcing the directive principles, surfices to observe that justiciability is not an end in itself, it is a means to an end, see also the cases of Amos v Shell B.P P.D.C Ltd  (1974) 4 ECSLR 48; NNPC V Sele (2004) ALL FWLR (pt. 223) 1859 AC.

 

In conclusion,  the wisdom in incorporating the novel provisions of the chapter two of the constitution which is the Fundamental Objectives and Directive Principle of State Policy is not farfetched,  one of the many reasons is to serve as a blueprint for every government to make sure that a step is taken towards actualisation of those socio economic rights, and enforcing same requires alot of resources and without which, its not possible. And incorporating section 6(6)(b) of the constitution which bars the courts from entertaining any matter within the realm of the chapter is a glory to both the government and its citizenry because it us aimed at avoiding confrontation between the government and the people, imagine right to Health, clean environment,  infrastructure is a collection of a straight-jacketed rights and breach of which is actionable, then the government will spend all its tenure going to court for the defence if its omissions for not providing the necessary means of good livelihood like potable water, access to medical care, electricity,  good road and others.

 

Ibrahim Muhammad Usman is a law student of year three at Bayero University kano. He can be contacted via imuhammadusman66@gmail.com, or 08145101965