A CRITIQUE OF THE DRAFTING STYLE OF CHAPTER II OF THE 1999 CONSTITUTION OF NIGERIA: THE INDIAN EXAMPLE

ABSTRACT

Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended) made provisions on the Fundamental Objectives and Directive Principles of State Policy. The said provisions are the Nigerian effort to incorporate into the Constitution the social, economic and cultural rights as have been clearly defined by the United Nations and incorporated as a Covenant. Unfortunately, a provision outside Chapter II of the Constitution swept away the enjoyment and possible realization of the United Nations’ socio-economic rights by taking away the judicial powers of the courts from considering any questions or issues as to whether or not any of the provisions in Chapter II have been conformed with, observed or applied to. Although there are arguments (which are legally supportable) that the powers of the courts to consider the provisions of Chapter II of the Constitution are not entirely ousted; but the ouster clause, viewed along the entire provisions in Chapter II of the Constitution, is considered in this work as fallacious and inelegant in terms of its drafting style. The style by which the relevant provisions of the Constitution are framed becomes even more critical when compared with the Indian Constitution with respect to the social, economic and cultural rights drafted in Part IV of the Indian Constitution as Directive Principles of State Policy. This work is intended to awake the consciousness of the Nigerian Government to the negative legal effect of the framing of the Constitution in a way which has made the realization of the social, economic and cultural rights difficult (if not impossible); and the need to review the said ouster clause, as well as most of the provisions of Chapter II to bring good effect to the Nigerian citizens. The above argument is put up in reliance on the Indian Constitution (and few other constitutions) which, although made the Directive Principles on the social, economic and cultural rights unenforceable, did not entirely and expressly oust the jurisdiction of the Indian courts to consider matters arising under Part IV of her Constitution.

Keywords: Fundamental Objectives, Directive Principles, State Policy, non-justiciablilty, drafting style, social, economic and cultural rights, Constitution.

1. INTRODUCTION

The provisions set out in Chapter II of the 1999 Constitution as the Fundamental Objectives and Directive Principles of State Policyⁱ as drafted by the Constitution Drafting Committee (CDC) can be said to be policy directives which should guide the organs and authorities in Nigeria to the realization of such objectives considered as fundamental. The Chapter summarises the philosophical basis for the institution of the Nigerian Government which are in line with the economic, social and cultural rights as adopted by the United Nations General Assembly in the Universal Declaration of Human Rights of 1948. The said rights which were transformed as an instrument have been adopted by State parties in the form of the International Covenant on Economic, Social and Cultural Rights. They include the right to social security, the right to work, the right to an adequate standard of living, the right to education, the right to benefits of science and culture, the right to work and to just and favourable working conditions, the right to join trade unions and take collective labour action, the right to the protection of the family including mothers and children, the right to food and housing, the right to health, the right to education , the right to participate in cultural life, the right of ethnic, religious or linguistic groups to engage in their culture, practice their religion and use their language etc.ⁱⁱ

Although the scope and extent to which the above rights may be conferred by any constitution may seem challenging to the drafters of such constitution, it is very fundamental to consider each and every clause inserted into the draft constitution (including any provisions that will have effect on the rights sought to be conferred) and its political, social, economic or cultural effect so as not to create a constitution that may produce awkward results or one which, rather than assure the realization of the common good, will be made so technical or sweeping in nature that the intent for which it is made is, at the long run defeated. The drafting of laws or constitutions to provide for economic, social and cultural rights requires special attention so as to give such rights as precise as possible, a normative content.ⁱⁱⁱ

Today rights contained in most contemporary constitutions ‘are usually set to be directly applicable in the procedural framework established by the constitution itself;^iv but “in order to make this possible, the right need to be articulated in such a way that they could be self-executing.^v This means that for a constitution to be self-executing, a provision of the constitution articulating the rights should identify the rights holder and his or her legal entitlements, and, if need be, determine the limitations of the right and the basic ways of its implementation.^vi In other words, the relevant provisions of the constitution need to have a clear normative content which will make the rights articulated in the constitution applicable even when there is no ordinary legislation enabling the rights holder to claim his or her rights.^vii

Much as it can be stated that the rights embedded in Chapter IV of the Nigerian Constitution have the above United Nations principles for an ideal rights in a constitution, same cannot be said of the supposed socio-economic rights under Chapter II of the same Constitution. Thus, a question that will always come to mind when considering Chapter II of the Constitution is this: Are the rights intended to be recognized really entrenched in Chapter II of the Constitution? The answer is evidently in the negative. The said provisions under Chapter II can, at best, be said to be economic, social and cultural objectives rather than rights. This is because the said supposed rights are not self-executing and do not have any normative content^viii; as the justiciability and enforceability of all rights largely depend on the way such rights have been framed and articulated, and whether their normative content is clear enough.^ix But this cannot be said of the supposed rights created in Chapter II of the Nigerian Constitution.

What could be the reason that informed the drafters of the Constitution to adopt the non-justiciability stand to the Fundamental Objectives and Directive Principles as set out in Chapter II of the 1999 Constitution? The CDC might have given its reasons to frame Chapter II of the Constitution as it did, but it is considered in this work that the Constitution does not necessarily recognize the economic, social and cultural rights as declared by the United Nations and signed by the member Nations; and that there has not been any room for the judiciary to be able to consider the provisions in Chapter II so as to give it a human face as a result of the ouster clause in section 6(6)(c) of the Constitution. This is in sharp contradiction with the Indian Constitution which makes room for the judicial interpretations of the social, economic and cultural rights contained in Part IV of their Constitution as Directive Principles of State Policy. This paper attempts to criticize the drafting style used in framing Chapter II of the Nigerian Constitution as not been elegant enough to capture the United Nations’ goal of seeing that the social, economic and cultural rights are very fundamental for the realization of the civil and political rights which are captured in Chapter IV of the Nigerian Constitution as Fundamental Rights. After considering the Fundamental Objectives and Directive Principles of State Policy under Chapter II of the Constitution, the paper goes further to consider the obstacle to the realization of the rights which is seen as a lacuna that needs to be filled if those rights could be realizable in Nigeria. The paper also dismisses the notion that the ouster clause under consideration does not entirely take away the judicial powers to consider matters under Chapter II and also compares the Nigeria Constitution with the Indian Constitution to justify its argument that the drafting style used in the Nigerian Constitution has not produced the desired result in sharp contrast with the Indian experience and example. Finally, this work concluded by giving recommendation on the way forward.

2. THE NATURE AND CONCEPT OF THE FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY IN CHAPTER II OF THE CONSTITUTION

The Fundamental Objectives and Directive Principles of State Policy first came into the Nigerian constitutional framework in the 1979 Constitution, when the provisions were incorporated in Chapter II of the said Constitution from sections 13 to 22. The incorporation of the fundamental objectives and directive principles in the Nigerian Constitution is the Nigeria’s own reaction to the emerging and developing human rights recognized by the international community as both the second and third generation rights. The category of the second generation rights which include the economic, social and cultural rights is predicated on the assertion that the attainment of a certain level of social and economic standard of living is a necessary condition for the enjoyment of the negative rights.^x The said economic, social and cultural rights^xi are couched in positive terms and are thus called positive rights. The third generation of rights which came into prominence as a result of the global inter-dependence also require international co-operation for their realization. This is as a result of the concern shown by the international community for the protection of the environment particularly against the heavy environmental pollutions resulting from modern industrialization which poses a serious threat to a healthy environment and which supported the contention that there can be a human right to a clean and healthy environment.

All the emerging global human rights concerns as recognized by the international community culminated in the framing of the provisions in Chapter II of the 1979 Constitution in name of the Fundamental Objectives and Directive Principles of State Policy. The 1999 Constitution also retained the provisions on the fundamental objectives and directive principles as Chapter II with the only additions being sections on the environmental objectives and the duties of citizen provided as sections 20 and 24 respectively.^xii Thus, Chapter II of the 1999 Constitution which can be said to have accommodated the economic, social and cultural rights are ‘framed in terms of state duties instead of individual entitlements together with other principles and objectives that are not directly related to economic, social and cultural rights.^xiii

During the drafting of the 1979 Constitution, the Constitution Drafting Committee (CDC), in its Report^xiv defined fundamental objectives and directive principles as follows:

“By Fundamental Objectives we refer to the identification of the ultimate objectives of the Nation whilst Directive Principles of State Policy indicates the paths which lead to those objectives. Fundamental Objectives are ideals towards which the Nation is expected to strive whilst Directive Principles lay down the policies which are expected to be pursued in the efforts of the nation to realize the national ideals.”

The rationale, according to the CDC, for the inclusion of the fundamental objectives and directive principles in Chapter II of the 1979 Constitution is that:

“Governments in developing countries have tended to be pre-occupied with power and its material prerequisites with scant regard for political ideals as to how society can be organized and ruled to the best advantage of all.”xv

According to Okerexvi, “the rationale is of special relevance to the Nigerian polity whose cardinal features are ‘heterogeneity of the society, the increasing gap between the rich and the poor, the growing cleavage between the social groupings, all of which combine to confuse the nation and bedevil the concerted march to orderly progress.” It can therefore be said that the intendment of the incorporation of the Fundamental Objectives and Directive Principles of State Policy in the Constitution was to reduce the increasing gap between the rich and the poor. Whether or not this ultimate objectives have been realized for about forty years of the introduction of the economic, social and cultural rights still remains seriously in doubt, no thanks to the drafting style in the framing of the Constitution which expressly took away the powers of the judiciary from adjudicating on any of the provisions in Chapter II of the Constitution and by necessary implication, any individual rights that might have arisen from any of the provisions of the economic, social and cultural rights incorporated into the Nigerian Constitution.

The CDC chose to integrate the Fundamental Objectives and Directive Principles of State Policy into the instrument which is the fountain of the Nigerian political existence because:

“As a charter of government and the fundamental law of the land, the Constitution should make it clear that powers are bestowed upon the organs and institutions of government, not for the personal aggrandizement of those who wield them from time to time, but for the welfare and advancement of society as a whole.”xvii

Unfortunately, despite the huge steps taken by the country to facilitate the enjoyment of the right to life and all other civil and political rights by the initiation of the Fundamental Objectives and Directive Principles of State Policy, its objects have not been realized and may not be realized except the country, following the footstep of India, has created some level of judicial checks on the conformity, observance and application of the provisions of Chapter II of the 1999 Constitution, even if it is with some level limitations as to the rights conferred and the procedure for its implementation.

3. FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES IN CHAPTER II OF THE 1999 CONSTITUTION

The 1999 Constitution of the Federal Republic of Nigeria, just like the 1979 Constitution, provides in Chapter II of the Constitution what are termed the Fundamental Objectives and Directive Principles of State Policy. In the said Chapter II of the Constitution which is made up of sections 13 to 24, the drafters of the Constitution formulated and constitutionalized what they considered as the ultimate objectives of the Nation and the policies if when formulated, will lead to the actualization of those objectives. Section 13 provides for the fundamental obligations of all the organs and authorities of the Government to conform to, observe and apply the provisions as contained in Chapter II of the Constitution. Section 14 recognises that Nigerian is a State based on democracy and social justice and that sovereignty belongs to the people from whom government derives all its powers and authority.^xviii The section further asserts that the security and welfare of the people shall be the ultimate purpose of government^xix and provides that the composition of the Government in Nigeria and the conduct of its affairs shall reflect the federal character in such a way as to prevent the predominance of people from few states or ethnic or sectional groups.^xx

Section 15 of the 1999 Constitution provides for what can be called Nigeria’s political objectives. The section provides for the encouragement of national integration without any element of discrimination^xxi and to achieve the said integration, the State shall encourage free mobility of people, goods and services; secure full residents rights for every citizen; encourage inter-marriage; and promote and encourage the formation of associations across ethnic, linguistic or religious lines.^xxii Section 15 of the Constitution finally provides for the fostering of a feeling of belongingness among the citizens which will assure national loyalty over sectional loyalties;^xxiii and declares that the State shall abolish all corrupt practices and abuse of power.^xxiv

Under section 16 which provides for what the Constitution called the economic objectives, it is provided that the State shall within the context of the ideals and objectives, harness the resources of the nation; control the national economy as to secure maximum welfare, freedom and happiness for all on the basis of social justice and equality; operate or participate in other areas of the economy outside the major sectors; and protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.^xxv The section further provides that the State shall direct its policy to achieve a planned and balanced economy geared towards equitable distribution of the material resources for the common good without the concentration of wealth or means of production in the hands of few. ^xxvi Section 16 further provides for a policy directive that will ensure suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, sick benefits and welfare of the disabled.^xxvii

Section 17 on the social objectives provides for the State’s desire for a social order to be founded on freedom, equality and justice.^xxviii In pursuance of the social order, the Constitution provides that every citizen shall have equality of rights, obligations and opportunities; for the recognition and maintenance of the sanctity of the human person and human dignity; a humane government devoid of exploitation of human or natural resources.^xxix Section 17 further provides that the State shall direct its policy to ensure adequate means of livelihood and adequate employment opportunity;^xxx just and humane conditions of work;^xxxi the safeguard of the health, safety and welfare of workers;^xxxii adequate medical and health facilities;^xxxiii equal pay for equal work without discrimination;^xxxiv protection of children, young persons and the aged against exploitation;^xxxv provision for public assistance in deserving cases;^xxxvi and for the promotion and encouragement of family life.^xxxvii

Section 18 provides for the direction of Government policy to ensure equal and adequate educational opportunities, promotion of science and technology and strive to eradicate illiteracy by providing free education at all level as and when practicable.^xxxviii Section 19 makes provision for foreign policy objectives which includes the promotion and protection of the national interest; promotion of African integration and support for African unity; promotion of international co-operation for the consolidation of universal peace and mutual respect among all nations; respect for international law and treaty obligations; and for the promotion of a just world economic order.

Section 20 provides that the State shall protect and improve the environment and safeguard the water, air, land, forest and wild life. Section 21 provides for the protection, preservation and promotion of Nigerian cultures that enhances human dignity which are consistent with the objectives in Chapter II; and for the encouragement and development of scientific and technological studies that promote cultural values. Section 22 provides for the obligation of the mass media to uphold the fundamental objectives in Chapter II; while section 23 provides for what are termed the national ethics which are discipline, integrity, dignity of labour, social justice, religious tolerance, self-reliance and patriotism. Finally, section 24 provides for the duties of the citizens which include abiding by the Constitution and respect for the institutions and legitimate authorities as well as the national symbols; defend the country; respect and accommodate each other; contribute positively in the community; assist in the maintenance of law and order; and honestly declare his or her interest and pay prompt tax.

Some objectives under Chapter II no doubt also formed part of the provisions of Chapter IV of the Constitution which are drafted as the Fundamental Rights. Some of these objectives include the prohibition of discrimination;^xxxix encouragement of free mobility of people, goods and services throughout Nigeria and security of full residence rights;^xl promotion and encouragement of formation of associations that cuts across sectional barriers;^xli the sanctity of human person;^xlii and the recognition and maintenance of human dignity.^xliii

It must be stated that before the coming into force of the 1999 Constitution, there was a National Constitutional Conference in 1994 - 1995 in which a Conference Committee, set up by the then Abacha administration drafted another constitution in 1995. The draft 1995 Constitution elevated some rights from the Chapter II on fundamental objectives to Chapter IV on the fundamental rights. The rights so elevated were the rights to free and compulsory primary education and the right to free medical consultation at government expense. Unfortunately, the 1999 Constitution as promulgated omitted them.^xliv

4. THE INELEGANT DRAFTING STYLE OF CHAPTER TWO OF THE 1999 CONSTITUTION

As earlier submitted, the style of framing the constitutional provisions on the Fundamental Objective and Directive Principles of State Policy is inelegant in its structure. This is because apart from the fact that some of the provisions do not actually confer any rights, particularly the economic and social rights, there is no legal framework structured and put in place to influence and ensure the compliance of the duties therein imposed.^xlv

4.1 NO STRUCTURE FOR IMPLEMENTATION

There is no unanimity of opinion on the correct interpretation of section 13 vis-à-vis the implementation of Chapter II.^xlvi Inegbedion^xlvii cited Nwabueze’s position that “these provisions are ‘political questions’ and that even though they are legal, the duty imposed is peculiarly political in nature, and their observance depends upon ‘the fidelity of the executive and legislative action and ultimately, on the vigilance of the people in exercising their political rights’.^xlviii Nwabueze argued that there is no inconsistency in a command being legal and yet not judicially enforceable, as judicial enforcement is not an inexorable criterion of ‘lawness’.^xlix Justice Nasir while interpreting section 13 of the Constitution^l held that the obligation of the organs of government, including the judiciary, to observe the provisions of Chapter II of the Constitution is limited to interpreting the general provisions of the Constitution or any other statute in such a way that the provisions of the Chapter are observed, but that this is subject to the express provisions of the Constitution.^li Inegbedion cited Azinge^lii (who has a contrary view) as asserting that Nigerian judges have shown little imagination in the interpretation and application of the concept of justiciability; contending that the Indian judges have been more imaginative in their application of this concept in the Indian Constitution and attributed this to lack of judicial courage by the Nigerian judges. Nevertheless, judicial courage, according to Inegbedion, has been anchored on the ground that once the courts hand their judgments, it is the headache of the executive arm to decide what to do with them. The courts should not, like a dog which, when faced with an intimidating situation, pulls in its tail between the two hinds in surrender.^liii In support of Azinge’s contention, Kachukuwu and Ozekhome^liv had argued previously that it is a moot point to justify the clause on the ground that attempts by the judiciary to enforce fundamental objectives will lead to conflict between the various arms of government as there is nothing to suggest this will happen, and so the reasons are altogether non-sequitur.^lv

Because the Constitution failed to provide the legal framework for the implementation of Chapter II, nothing spurs the government to abide by the fundamental objectives and the directive principles as listed in the Chapter. For instance, section 14(3) of the Constitution on federal character, together with its attendant provision in section 147(3) is only a mirage since apart from the constitutional obligation of appointing at least one minister from each state of the Federation, nothing in the Constitution can compel the President to reflect the said federal character aspiration on all other federal appointments into the other federal government institutions, organs, agencies and parastatals; since nothing was put in place to measure the rate of conformity, observance and application of the fundamental objectives and directive principles to federal character.

Similarly, the provision in section 17(2)(e) on easy accessibility to court remains laughable when one considers the effect of section 6(6)(c) on the entire provisions of Chapter II of the Constitution which latter section has made the provision of section 13 a mere words of a political nature. The inelegant drafting style used in making Chapter II of the Nigerian Constitution non-justiciable and unenforceable has been criticized as leaving the directive principles as mere ideal, an utopia, the arrival of which the citizens have to pray and hope for.^lvi Another writer has described the non-justiciability approach to Chapter II as “a draw-back to the appropriation of the dreams’ set out in chapter II”.^lvii No doubt, as has been argued, “the provision of section 6(6)(c) makes a caricature of the obligations imposed by section 13 of the constitution for the organs of government to observe the provisions of chapter II.”^lviii It has been further argued that “the non-justiciability of the Directive Principles of State Policy has serious socio-economic consequences which include human insecurity, corruption deprivation, impunity and lack of accountability”.^lix The argument can further be extended to the prevailing national challenges facing the country today such as kidnapping, insecurity, suicide cases, rituals for money, cybercrimes, political, social and economic instabilities, etc. All can be traced to the harsh economic realities of the nation caused by non-realisation of the socio-economic rights that ought to supplement and complement the fundamental rights. Section 6(6)(c) of the Constitution makes a mockery of the whole provisions and casts a serious doubt on the sincerity of the Government to apply the said provisions in the governance of the people.^lx

It may be said that the non-justiciability drafting style or approach adopted by the CDC may be for some reasons like the impossibility of acquiring the much needed resources to meet the demands for which the positive rights under chapter two of the constitution may impose; or that the economic, social and cultural rights can be more realized when they are put in the realm of policy to be actualized by the government; or that the economic and social rights ‘are by nature, open-ended and indeterminate and that there is lack of conceptual clarity about them,’ for example, which treatments should be included in the right to an adequate minimum standard of health care? ‘How are judges to decide when such rights have been violated?’;^lxi or that providing remedies to such rights might be difficult and incapable of immediate implementation; or because the poor cannot afford bringing the cases to court; or it will make the courts to delve into policy decisions which are functions of the other organs of government.^lxii

Despite the above arguments in support of the non-justiciability approach to Chapter II, it has been contended that as far as the approach is concerned, to make meaningful impact to the Nigerian society using the fundamental objectives and directive principles as a policy guide, any Nigerian leader should be a ‘philosopher king of Plato’s image,^lxiii so as to be able to give life to Chapter two without any monitoring of its conformity, observance and application by a separate body such as the judiciary.

2. OUSTER CLAUSE: BETWEEN THE NIGERIAN AND INDIAN CONSTITUTION

Section 6(6)(c) of the 1999 Constitution (as amended) which is an ouster clause to the provisions in Chapter II of the Constitution provides that:

“The judicial powers vested in accordance with the foregoing provisions of this section:

1. …
2. …
3. Shall not, except as otherwise provided by this 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 this Constitution.”

Comparing the above provision with the India Constitution on the same directive principles, Article 37 of their Constitution provides that:

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Between the above two constitutional provisions which affect the entire provisions of the two country’s directive principles, there is a sharp contrast as regards the way and manner the two provisions are drafted, and this may have been responsible for the outcome of the level of progress recorded by each country in the realization of the individual State’s directive principles. While section 6(6)(c) of the Nigerian Constitution made the provisions of Chapter II non-justiciable^lxiv and unenforceable,^lxv section 37 of the Indian Constitution made Part IV of the Indian Constitution on the Directive Principles of State Policy only unenforceable. The resultant effect is that while the Nigeria courts have not made any significant progress in the realization of the fundamental objectives and directive principles, the India courts have made tremendous progress in expanding the scope of the socio-economic rights by their progressive approach applied to the interpretation of Part IV of their Constitution which is assisted by the drafting style of their ouster clause to Part IV of their Constitution.

According to Kothari,^lxvi the Indian Constitution does not merely provide the apparatus for governance, but it is also forward looking in envisioning what social and economic transformation India would undergo. In this sense, the vision of the drafters was very similar to what the new South African Constitution is imagined to be – a transformation constitution. The Indian Constitution aimed at not only achieving political independence from colonial rule but it also resolved to establish a new social order based on social, economic and political justice.”^lxvii Although the social and economic rights could not be made enforceable until actions were taken by the State to bring about changes in the economy, the Directive Principles, nevertheless, imposed an obligation upon the State to strive to fulfill the principles.^lxviii According to Kothari, Ambedkar^lxix insisted on the use of the word ‘strive’ in Article 38, which seeks to promote the welfare of the people, and ensure social, economic and political justice as being intended to push the government even when there are circumstances which prevent the Government in giving effect to the Directive Principles, to strive to fulfill them, even under hard and unpropitious circumstances.^lxx Kothari stated that such insightful thinking of the framers of the Indian Constitution was futuristic since it falls in line with the ‘progressive realization of rights’ language of the International Covenant for Economic Social and Cultural Rights.^lxxi

As demonstrated by the United Nations,^lxxii the justiciability and enforceability of all rights largely depend on the way such rights have been articulated and whether their normative content is clear enough. The United Nations stated that before some rights are drafted into the constitution, it is essential to determine what sort of legal effect is to be achieved and whether the planned provision of the constitution should primarily address the individual or the State.^lxxiii It suggested that it is better to articulate such rights to capture the individual, so that on the basis of such constitutional provision, the individual can effectively claim his or her rights before the judicial body;^lxxiv but this can only become possible if there is no sweeping provision preventing the courts from adjudicating on the level of compliance or otherwise of the said provisions. Even when the constitution is drafted not to confer individual rights, the framing of the constitution should be well articulated to impose a legal duty on the State with a clear normative content.^lxxv This will ensure that the State can be held accountable for failing to implement the relevant constitutional provision.

In South Africa for instance, their Constitutional Court^lxxvi held in its judgment that the question is not whether the socio-economic rights are justiciable under their Constitution, but how to enforce them in a given case. The Court acknowledged that it is a difficult issue which nevertheless, must be carefully explored on a case by case basis. The United Nations has advised member nations to formulate a policy principle or guideline which the State will be compelled to abide by in order to achieve a given policy objective.^lxxvii Such provisions may be employed in interpreting the laws regulating human rights questions. It is therefore vital to set out individual rights with a specific legal content that can be asserted in the courts or any other judicial body.^lxxviii

The attitude of the Nigerian judiciary regarding Chapter II of the Constitution has been “that of unprecedented caution and subtle passivity.^lxxix To be fair to the Nigerian courts, their passive attitude is not unconnected to the inelegant drafting style of the ouster clause of section 6(6)(c) which to a large extent left the courts with a little scope of maneuver in trying to give life and meaning to the purpose of Chapter II of the Constitution. Thus in the case of Okogie v Attorney General of Lagos State,^lxxx the court held that section (6)(6)(c) of the Constitution ensures that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. Similarly In the case of Attorney General of Ondo State v. Attorney General of the Federation^lxxxi, the Supreme Court held, among others, that courts cannot enforce any of the provisions of Chapter II of the Constitution until the National Assembly has enacted specific laws for their enforcement. That is the effect of the style used in drafting of the Constitution as it pertains to Chapter II.

The Indian Constitution has adopted the approach of indivisibility of the fundamental rights on the one hand and the rights conferred under the Directive Principles provisions on the other hand. It shall not be forgotten that Article 37 of the Indian Constitution provides that the provisions of Part IV of the Indian Constitution which relates to Directive Principles of State Policy shall (only) not be enforceable by any court; and not that the judicial powers vested in their court shall not extend to Part IV. There is a distinction between the restrictive clauses of the two Constitutions. The legal effect is that while the Indian courts have progressively interpreted many of provisions of Part IV of their Constitution to meet the justice of individual cases,^lxxxii the Nigerian courts cannot do the same because the judicial powers are not permitted to extend to the provisions of Chapter II except there are other provisions of the Constitution that cover any part of Chapter II or to the extent that the National Assembly has enacted a law that relates to any provision in Chapter II.^lxxxiii

The innovative interpretation of Part IV of the Indian Constitution and the jurisprudence employed in resolving the conflict between the Directive Principles and Fundamental Rights under their Constitution is traceable to the style of framing of Article 37 which, though made the provisions of Part IV not enforceable by any courts in India, nevertheless, does not expressly take away the judicial powers of the Indian courts to entertain questions and issues arising from Part IV of the Constitution. The Indian courts have adopted the doctrine of harmonious construction to help in achieving the ideals provided for in Part IV as Directive Principles of State Policy. The doctrine of harmonious construction as a new technique of interpretation was introduced in Hanif Quareshi Mohd. v State of Bihar,^lxxxiv where the (Indian) court, after invalidating a ban on the slaughter of all cattle on the ground that it consisted an unreasonable restriction on the right to carry on a butcher’s business as guaranteed by Article 19(1)(g),^lxxxv notwithstanding the Directive Principle under Article 41,^lxxxvi nevertheless, held that the courts must not entirely ignore the Directive Principles and that the principle of harmonious construction should be adopted to give effect to both the Fundamental Rights and Directive Principles as much as possible.^lxxxvii

As has been understood, despite the provision of Article 37 of the Indian Constitution, both the Indian Legislature and the Judiciary are disposed to give meaningful effect to the provisions of Part IV of the Constitution on the Directive Principles of State Policy as can be seen from this discuss. According to Katkuri,^lxxxviii the directive principles, during the first sixteen years of the operation of the Indian Constitution, were considered subordinate to the fundamental rights. At that time, the Indian courts held that a number of laws enacted by the Parliament to implement the Directive Principles violated the Fundamental Rights. During this period, the conflict between the Fundamental Rights and Directive Principles were rooted on the ground that, while the Fundamental Rights are enforceable by the courts, the Directive Principles are not made enforceable.^lxxxix Thus an attempt to abridge the Fundamental Rights in order to implement the Directive Principles failed in the case of Golaknath v State of Punjab^xc when the Indian Supreme Court held that Parliament could not curtail any of the Fundamental Rights in the Constitution.^xci Since then, there has been a perceptible change in the Indian judicial attitude on the question; and the Indian Supreme Court has been reaffirming that both the Fundamental Rights and the Directive Principles must be interpreted harmoniously, thus laying the foundation for the principle that socio-economic rights are complimentary, interdependent and indivisible with the civil and political rights.^xcii

In the case of Kesavananda Bharati v State of Kerala,^xciii the Indian Supreme Court held that there is no disharmony between the Directive Principles and the Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare state which is envisaged in the Preamble of the Constitution.^xciv Similarly, in the case of Unnikrishnan JP v State of Andhra Pradesh,^xcv a case relating to right to education, the Indian Supreme Court held that the provisions of Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) are supplementary and complementary to each other and not exclusionary of each other; and that the fundamental rights are but a means to achieve the goal indicated in Part IV.^xcvi In a public interest litigation filed by the Peoples Union for Civil Liberties (PUCL) v Union of India & Ors,^xcvii a case where starvation deaths had occurred in the state of Rajasthan, despite excess grain being kept for official times of famine, the Petitioner while arguing that there is a right to food, anchored it as being derived from the right to life. The Indian Supreme Court, in its landmark judgment, found that the right to life was imperiled by lack of food. The Court expressed serious concern about the increasing number of starvation deaths and food insecurity despite overflowing food in storehouses across the country. The Court ordered that the Famine Code for grain allocation of food be implemented for three months.

From the above narrative, it is clear that the Indian courts through their innovative and progressive approach, which is assisted by the drafting style used in framing the ouster clause to Part IV of their Constitution, have expanded the meaning and effect of the right to life as guaranteed in Article 21 to include within it so many other social and economic rights as provided for in Part IV of their Constitution. This is not the position in Nigeria, as the Nigerian courts have continuously insisted that no question or issue under Chapter II can be a subject of litigation unless it has been provided elsewhere in the Constitution or to the extent to which it has been enacted by the National Assembly in the exercise of its legislative powers under Item 60(a).

2. THE FALLACY OF THE EXCEPTION CLAUSE TO SECTION 6(6)(C) OF THE CONSTITUTION

There has been some support both by lawyers, writers and the courts that section 6(6)(c) does not render Chapter II totally unenforceable by the opening clause of the section. In the case of Federal Republic of Nigeria v Aneche & 3 Ors, ^xcviii Niki Tobi (JSC) observed as follows:

“In my humble view 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 provides by this Constitution”. This mean that if the Constitution otherwise provides in another section, which makes a section or sections of Chapter II jsuticiable, it will be so interpreted by the courts.”

Even though, on the face of it, and through judicial interpretations, there can be said to be a leeway provided by the opening clause to section 6(6)(c), this is not entirely true because whenever the provisions of Chapter II are being considered, it is the provision made elsewhere in the Constitution or in the other enactment that becomes the subject of a justiciable claim and not Chapter II of the Constitution. One may then wonder the essence of the opening clause of section 6(6)(c) of the Constitution to the justiciability of the provisions of the fundamental objectives and directive principles when, with or without the provisions on the fundamental objectives and directive principles of state policy in Chapter II, any other provision in the Constitution or any other law enacted by the National Assembly are enforceable and justiciable on their own and not on the strength of Chapter II. On the contrary, without such other provision already made in the Constitution or such other law duly enacted, the fundamental objective and directive principles remain nothing but a toothless bulldog. Thus making Chapter II utopic and something that is only whimsical and capricious to the executive and the legislature.

Bringing this down to the African Charter on Human and Peoples’ Rights which has been domesticated in Nigeria and which arguments have been made to the effect that the rights conferred under this Charter are enforceable, since the Charter has been domesticated and has formed part of Nigerian law.^xcix This remains true only to the extent that the rights contained in the Charter remains enforceable under the Nigerian Constitution since if such rights are those falling under the provisions on the fundamental objectives and directive principles, such rights under the Charter still becomes non-justiciable as such rights will immediately be subjected to the supremacy test of section 1(3) of the Constitution and will be rendered inconsistent with the Constitution, and therefore non-justiciable.

Consequently, if a section of the Constitution or any enactment is read together with any provision in Chapter II, what is being made justiciable is that other provision of the Constitution or such other enactment and not the provisions of Chapter II on the fundamental objectives and directive principles of state policy. It is therefore correct to say that the argument that provisions of Chapter II can be made justiciable in certain situation is fallacious and non sequitur. It is therefore not out of place to say that the words “except as otherwise provides by this Constitution” as used in section 6(6)(c) of the Constitution has not improved the drafting technique employed by the drafters or made any of the provisions of Chapter II justiciable.

5. CONCLUSION

As can be understood from this write-up, the drafters of the Constitution made the attainment of the economic, social and cultural rights which have been drafted into the Nigerian Constitution in Chapter II, dreams that faze away upon one’s awakening. If there can be provisions in the constitution that seek to advance the realization of the socio-economic rights, it is important to frame such provisions with enough normative content that will confer such rights to the citizens rather than wait for a further legislation to expand the scope of such rights in order to enhance their goals. It is therefore fundamental that a constitution which articulates the economic, social and cultural rights should be coherent enough in terms of its legal language without any contradiction^c for it to become effective and realizable. The legal effect of the framing of section 6(6)(c) in the manner it is framed is that the duty imposed by section 13 for the conformity, observance and application of the fundamental objectives and directive principles are mere admonitions without any legal framework for their enforcement, and this gives room to excuses and dereliction of duty. This is because section 6(6)(c) is sweeping in character and reduces the essence and ideology of Chapter II. There is need to redraft the ouster clause in the Constitution and some of the provisions in Chapter II which do not meet the criteria of the economic, social and cultural rights so that such rights are not merely obligatory against the government, but also their realization made compellable against the government, even if with serious limitations to their implementation.

According to the CDC, one of reasons why the socio-economic rights under the Chapter Two of the Constitution are made non-justiciable is that “by their nature, they are rights which can only come into existence after the Government has provided facilities for them. Thus, if there are facilities for education or medical services, one can speak of the ‘right’ to such facilities. On the other hand, it will be ludicrous to refer to the ‘right’ to education or health where no facilities exist”.^ci This argument is unsupportable, considering the effect of the ouster clause created by section 6(6)(c) as framed in the Constitution since even if there exist facilities for education or medical services or any other step made to meet the socio-economic rights, no individual can be able to assert such rights and no court can consider any issue emerging therefrom.

It has been argued by Okere^cii that if recourse to traditional courts presided over by professional lawyers was rejected by the CDC, a special tribunal could have been established to be designated Constitutional Court or Constitution Council which will be charged with looking into such area of rights as created under Chapter II of the Constitution to be charged with the appraisal of cases resulting from the economic, social and cultural rights as created in the Constitution. This is recommendable. Further still, it can be even more meaningful to make these rights justiciable and enforceable by adding them up to Chapter IV of the Constitution under Fundamental Rights, even if with restrictions and derogations as made in section 45 of the Constitution; or allowing the courts to give even declaratory judgments which when made, though may not be enforceable against the government, will definitely go ^ciiia long way in putting pressure on the government to take steps to make policies that will ensure the realization of the provisions of Chapter II.

There is therefore need for constitutional amendment in this regard if the realization of the philosophy and aspirations contained in Chapter II is anything to go by. This becomes imperative since it is the only way to achieving economic and social justice intended by the creation of the fundamental objectives and directive principles of state policy under Chapter II. India for instance, has had series of constitutional amendment which is why they have gone to achieving the goals set out as directive principles of state policy in Part III of her Constitution. Nothing stops us from tapping from the Indian experience in order to bring to the citizens the real meaning of socio-economic justice.

Author: Chijioke Marcel Nwoye Esq.

Chijioke holds a Bachelor of Laws Degree from Enugu State University of Science and Technology, Enugu in 2011 where he emerged as the best graduating student with a Second Class Honours, Upper Division. Chijioke has acquired great experience in litigation and brings with him a wealth of experience in legal practice. He is a competent solicitor as well as a formidable advocate and has a passionate drive for litigation and dispute resolution. Chijioke has handled matters both at the High Courts, National Industrial Court, and the Appellate Courts. He has particular experience in debt recovery, election petitions conveyancing, corporate practices, banking and financial law, labour law, legal research, legal writings and commercial disputes of diverse natures. Chijioke is tough and analytical in his approach to legal issues and brings his good knowledge of the law to bear in all cases he is involved in as well as giving out sound legal opinion. When it comes to service delivery to clients, he is passionate, dedicated and committed to working for the clients’ best interests. He is currently the managing partner at Martex Solicitors and Legal Consults and also an associate at Chief Solo Akuma SAN and Associates. Chijioke is currently running a master's degree programme at the National Institute of Legislative and Democratic Studies, where he hopes to obtain an LL.M. degree in Legislative Drafting this 2020.

Cell: +234-07030534464

LinkedIn: Chijioke Nwoye

Email: mcnwoye@yahoo.com; chijinwoye@gmail.com

Citations:

i This was introduced in Nigeria under the 1979 Constitution

ii See The International Covenant on Economic, Social and Cultural Rights (ICESCR).

iii An international or constitutional norm is directly applicable if there is no need for implementing legislation enabling such a norm to be applied by a court or administrative body. See Human Rights and Constitution Making, United Nations Human Rights Office of the High Commissioner, New York and Geneva, 2018, p 37

iv Ibid, p 36

v Ibid, a norm is self-executing if its normative content is sufficiently clear to be applied by a court or an administrative organ, p 37

vi Ibid, p 37

vii ibid

viii This is as a result of section 6(6)(c) of the Constitution which removed the provisions under Chapter 2 from any judicial consideration and interpretation.

ix United Nations Human Rights Office, op cit. p 38.

x Osita Nnamani Ogbu, Human Rights Law and Practice in Nigeria: An Introduction, (Enugu: CIDJAP Publishers, 1999), p 17.

xi Like most of the provisions in Chapter 2 of the Constitution.

xii The 1999 Constitution also expanded the scope on the directive on Nigerian cultures.

xiii See Linus Nwauzi “Justiciability of Fundamental Objectives and Directive Principles of State Policy: Under the 1999 Nigerian Constitution”, International Journal of Law (2017) Vol. 3 Issue 5, pages 29-37 at … available at https://doi.org/10.1093/iclqaj/32.1.214 (accessed on 8^th May, 2019)

xiv Report of the Constitution Drafting Committee (Report), Vol. 1, p. v. (Federal Ministry of Lagos, 1976)

xv Ibid.

xvi Obinna Okere, “Fundamental Objectives and Directive Principles of State Policy under the Nigerian Constitution”, The International and Comparative Law Quarterly (Jan. 1983) Vol. 32, No. 1, pages 214-228 at 214, available at https://doi.org/10.1093/iclqaj/32.1.214 (assessed on 13^th May, 2019).

xvii Report, Vol. 1 p. v-vi.

xviii See section 14(1) and (2)(a) of the 1999 Constitution.

xix See section 14(2)(b).

xx Section 14(3)

xxi Section 15(2)

xxii Section 15(3)

xxiii Section 15(4)

xxiv Section 15(5)

xxv Section 16(1)

xxvi Section 16(2)

xxvii Section 16(2)(d)

xxviii Section 17(1)

xxix Section 17(2)

xxx Section 17(3)(a)

xxxi Section 17(3)(b)

xxxii Section 17(3)(c)

xxxiii Section 17(3)(d)

xxxiv Section 17(e)

xxxv Section 17(3)(f)

xxxvi Section 17(3)(g)

xxxvii Section 17(3)(h)

xxxviii The primary school education, in addition to being free, shall be compulsory and universal.

xxxix Cf section 15(2) and section 42

xl Cf section 15(3)(a)(b) and section 41

xli Cf section 15(3)(d) and 40

xlii Cf section 17(2)(b) and section 33

xliii Cf section 17(2)(b) and section 34

xliv See Ogbu, op. cit. p 79

xlv Section 6(6)(c) of the Constitution has already insulated the entire provisions in Chapter 2 from any type of judicial consideration

xlvi Nathaniel A. Inegbedion, “Constitutional Implementation: The Nigerian Experience” in ‘The Implementation of Modern African Constitutions: Challenges and Prospects’, Pretoria University Law Press, 2016, pp 25-54

xlvii Ibid, p. 40

xlviii Inegbedion, op. cit. p 40, citing B. O. Nwabueze, “The Presidential Constitution of Nigeria”, London, C. Hurst & Co. (1982), p 11.

xlix Nwabueze, ibid.

l In the case of Archbishop Okogie v Attorney General of Lagos State (1980) NCLR 337

li The above dictum is simply difficult to understand

lii Inegbedion, op. cit., p 40, E. Azinge, “Living Oracles of the Law and the Fallacy of Human Divination”, Paper delivered at the 6^th Justice Idigbe Memorial Lecture on 20 June 2008 at Akin Deko Auditorium, University of Benin, Benin City, Nigeria.

liii Ibid, p 41, citing A. Emiola & N. A. Inegbedion, “Are Military Decrees Really Sacrosanct?” Nigerian Current Law Review (1996) … 289-311

liv Ibid, 41, citing E. I. Kachikwu & M. A. A. Ozekhome, “Extending the Frontiers of Constitutionalism. Should a Constitution Contain only Legal Rules” 3 NJLR (1998) 100

lv Ibid

lvi Nwauzi, op. cit. p 33, citing Adeoye Akinsanya, “Fundamental Objectives and Directive Principles of State Policy in Nigerian Constitution”, 46(2) Pakistan Horizon (1993), pp 23-41, available at http://www.jstor.org/stable/41393424

lvii Ibid, citing G. N. Okeke, “Fundamental Objectives and Directive Principles of State Policy: A Viable Anti-Corruption Tool in Nigeria”, 175-184, available at https://www.ajol.info/index.php/naujilj/article/view/82400

lviii Ibid, citing Dalas C.J. Dakas, “Judicial Reform of the Legal Framework for Human Rights Litigation in Nigeria: Novelties and Perplexities” in Azinge Epiphany and Dakas CJ Dakas (eds), Judicial Reforms and Transformstion in Nigeria, pp 334-354, (NIALS, Lagos, Nigeria, 2012).

lix Ibid, quoting S. Ibe, “Beyond Justiciability: Realizing the Promise of Socio-Economic Rights in Nigeria”

lx The result is that the organs and agencies of government have not taken any steps, as a matter of constitutional responsibility, towards fulfilling the provisions of Chapter II of the Constitution, despite the injunction to do so under section 13. See Inegbedion, op. cit. pp 41-42

lxi Nwauzi, op. cit. p 17, citing Ellen Wiles, “Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in Nigerian Law, 22(1) American University International Law Review 35-64 (2006)

lxii The CDC referred the judges as mere professional lawyers and Ellen Wiles described the said argument as purely based on distrust for the judges and contended that even in civil and political rights, judges are also involved in policy making.

lxiii Okere, op. cit. p 217

lxiv Not proper for judicial determination, Black’s Law Dictionary, 8^th Ed., p 1081

lxv Valid but incapable of being enforced. Ibid, p 1563

lxvi Jayna Kothari, Social Rights and the Indian Constitution, Electronic Law Journals, LGD 2004(2), available at https://warwick.ac.uk/fac/soc/law/elj/lgd/2004_2/kothari/ (accessed 7^th May, 2019)

lxvii Ibid.

lxviii Ibid,

lxix In the Indian Constituent Debate (n8) 495, Ibid

lxx Ibid

lxxi Ibid

lxxii Human Rights and Constitution Making, op cit. p 38

lxxiii Ibid. p 39

lxxiv Cf Article 53 of the 1996 Constitution of Ukraine which provides that “Citizens have the right to obtain free higher education in state and communal educational establishment on a competent basis.” and section 18(3) of the Nigerian Constitution which provides that “Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide” free education…

lxxv See Article 13 of the 1990 Constitution of Benin provides that “The State shall provide for the education of the youth by public schools. Primary education shall be obligatory. The State shall assure progressively free public education.” Human Rights and Constitution Making, op. cit. 39

lxxvi In a case of Government of the Republic of South and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC).

lxxvii Human Rights and Constitution Making, op. cit. pp 39-40, see also Article 21 of the Chinese Constitution 1982 which provides that “The State develops medical and health services, promotes modern and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state enterprises and undertaking and neighbourhood organisations, and promotes sanitation activities of a mass character, all to protect the people’s health.”

lxxviii Ibid, p

lxxix Ibe, cited by Nwauzi, op cit. p 34

lxxx (1981) 2 NCLR 350

lxxxi (2002) 9 NWLR (Pt. 772) 222

lxxxii Provisions under the Chapter two can be said to be dynamic in nature.

lxxxiii See Item 60(a) of the Second Schedule of the 1999 Constitution which provides that, as part of the exclusive legislative list, “the establishment and regulation of authorities for the Federation or any part thereof – to promote and enforce the observance of the Fundamental Objectives and Directive Principles” contained in the Constitution.

lxxxiv MH. Qureshi v State of Bihar, AIR 1958 SC 731.

lxxxv Article 19(1)(g) provides for a fundamental right to practise any profession, or to carry on any occupation, trade or business.

lxxxvi Article 41 provides for the right to work, to education and to public assistance in certain cases.

lxxxvii See Srinivas Katkuri, “Role of Directive Principles towards Welfare of the State and Social Development in India”. International Journal of Law, Vol. 4, Issue 1, January, 2018, pp 56-60 available at http://www.lawjournals.org/archives/2018/vol4/issue1/4-1-38 (accessed on 13^th of May, 2019)

lxxxviii Ibid

lxxxix Ibid

xc  (1967 AIR 1643, 1967 SCR (2) 762)

xci Katkuri, op. cit.

xcii Ibid

xciii (1973) 4 SCC 225

xciv Kothari, op. cit.

xcv AIR 1993 SC 2178

xcvi Kothari, op. cit.

xcvii Writ Petition (Civil) No. 196/2001

xcviii (2004) 1 SCM 36 at 78

xcix For instance, in the case of Abacha v Fawehinmi, the Supreme Court held that since the African Charter on Human and Peoples’ Rights have been domesticated by the Ratification and Enforcement Act, the rights so created becomes binding and enforceable in courts.

c Like in the case of section 13[and the entire Chapter 2] and 6(6)(c) of the Nigerian Constitution)

ci Report, Vol 1, p.xv

cii Okere, op. cit.

ciii