Contemporary and emerging

human rights issues

 

Advancing Juridical Innovations on The Justiciability of Economic, Social and Cultural Rights in Nascent Democracies: The Case of Nigeria

 

By Udu, Eseni Azu, Ph.D (Nigeria), Ph.D (Unizik), Senior Lecturer in the Faculty of Law of Ebonyi State University, Abakaliki – Nigeria, and currently on Sabbatical Leave Appointment at the College of Law, Afe Babalola University, Ado-Ekiti, Nigeria. P.O. Box 1397, Abakaliki, Ebonyi State, Nigeria. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

Economic, social and cultural (ESC) rights constitute a branch of human rights that deal on socio-economic needs of the people. They are concerned with the welfare and worth of the human person. Together with civil and political rights, economic, social and cultural rights constitute part of an integral, interrelated, interdependent, and indivisible international human rights corpus. This article is aimed at projecting innovative ways other than the institutionalized procedure, by which ESC rights may be enforced at the national courts. It was found that economic, social and cultural rights suffered great inhibition in their enforcement. This is as a result of the ouster clause provision in section 6(6)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which oust the jurisdiction of the court from entertaining enforcement proceedings with respect to ESC rights embodied in the fundamental objectives and directive principles of state policy as enshrined in chapter two of the Constitution . It is therefore, recommended that the courts in Nigeria as well as other emerging and nascent democracies should employ creative and innovative approaches in determining the ESC rights of individuals. The courts need to be more progressive in the interpretation of human right norms with a view to advancing economic, social and cultural rights. If there is no creative or innovative approach in the dispensation ESC rights related cases, even when there is constitutional protection of economic, social and cultural rights, same could still be undermined under the pretext of lean national resources. The judiciary in nascent democracies needs to pluck a leaf from the experiences of India and South African where the courts have apparently displayed boldness, courage and pro-activeness in enforcing ESC rights.

 

Keywords: Juridical, Innovations, Justiciability, Rights, Economic, Social, Cultural, Nascent and Democracies.

 

 

Introduction

 

Economic, social and cultural (ESC) rights are egalitarian in nature and are recognised and embedded in the international bills of human rights such as the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. These species of right also referred to as second generation rights are those economic, social and cultural rights that attained recognition in the twentieth century with the advent of socialism. Although there is jurisprudential debate and scepticism on the part of some western states as to the human rights character of second generation human rights, the Universal Declaration on Human Rights catalogues rights within both generations (first and second generation of rights) as human rights.[1] The International Covenants on Civil and Political Rights and the Economic, Social and Cultural Rights impose legal obligation in respect of the generations of rights. Moreover, the premise underlying all United Nations human rights text is that civil and political rights and economic, social and cultural rights are of equal priority, with the realization of the two groups of rights being interdependent.[2] They encompass the right to property, right to work under equitable and satisfactory conditions and to receive equal pay for equal work, right to good health, right to education and right to participation in the cultural life of the community in which one resides and the protection of the traditional values recognized by the community. They also include the right to family life, the protection of the child and the aged and to non-discrimination against women.[3] Nonetheless, these are made non-justiciable in most countries of the world. The constitutions of these countries do incorporate them, but however bar the courts from entertaining matters regarding any breach of these rights.[4] Even at the international level, economic, social and cultural rights are made to be progressively achieved. By this, discretion is given to states to decide when and how to implement these essential rights.[5]

 

In Nigeria, economic, social and cultural rights forms part of fundamental objective and directive principles of state policy contained in chapter II of the 1999 constitution.[6] The Nigerian constitution entrenched the economic, social and cultural rights but at the same time makes them non-justiciable notwithstanding the deserving need to make them enforceable like their counterparts (fundamental rights) as provided in chapter IV of the same constitution. The courts can, notwithstanding the forgoing arrangement in our constitution, employ innovative way as modern reality dictates to enforce ESC rights. It is the duty of Nigerian courts in interpreting the fundamental human rights provisions of chapter IV of the constitution to give effect to the provision of fundamental objectives and directive principles of chapter II because without the realization of socio-economic rights, civil and political rights are meaningless. [7] Government that is not aimed at providing for the citizens the basic necessities of life as contained in the aforementioned chapter II has failed to fulfil the obligation of good governance.[8] Even though the rights contained in chapter II are deemed non justiciable, there are still guidelines as to what the courts should do when confronted with the problem of interpretation of economic, social and cultural rights. It is left for our judges, in their power of interpretation, to give decisions that will effectively enforce economic, social and cultural rights. This article shall, therefore, appraise the innovative ways the courts in nascent democracies such as Nigeria could employ to enforce ESC rights.

 

 

The Enforcement of Economic, Social and Cultural Rights through Progressive Interpretation

 

The court can go beyond the letters to activate the spirit of the law by giving a utilitarian interpretation of law in determining the ESC rights of the people. The Indian Supreme Court has taken a lead in this dimension; thereby achieving the indirect justiciability of socio-economic rights. Accordingly, it is not worthy that in India, socio-economic rights are included among the ‘directive principles’ of the constitution. However, just like in Nigeria, ESC rights are expressly stated to be non-justiciable in India.[9] No matter the non-judicial activity in that regard, the Indian Supreme Court rather used the explicit non-justiciable directive principles to justify its broad interpretation of the right to life. In the case of Mohini Jain v State of Karnataka[10], the Supreme Court of India was faced with the interpretation of right to education. Although the right to education is one of the non-justiciable directive principles of the Indian constitution, the Indian Supreme Court declared invalid a state law which permitted medical college to charge expensive admission fees that in effect discriminated against the poor applicants. Accordingly, the court held that the right to education is essential to the right to life which is a compendious expression for all those rights which the court must enforce because they are basic to the dignified enjoyment of life. Toeing a similar reasoning, the Indian Supreme Court, in Coralie v Union Territory of Delhi,[11] gave a broad interpretation to the right to life to include non-justiciable directive principles. Thus, the court opined that the right to life includes the right to live with human dignity and all that goes along with it, to wit: the bare necessities of life such as adequate nutrition, clothing and shelter over the head. It is therefore following that although social and economic rights are not legally enforceable by virtue of constitutional provision of non-justiciability, courts can and have actively read these rights into fundamental rights thereby making them judicially enforceable. For example, the ‘right to life’ in Article 21 of Indian Constitution entails free legal aid, right to live with dignity, right to education, right to bar fetters and hand cuffing in prison, right to work, freedom from torture, etc. Indian judges have been sensitive in constantly innovating on the side of the poor. However, in applying this liberal approach to enforce economic, social and cultural rights, the judge should do so with caution because, even when he is free, he is still not wholly free as his discretion must be exercised within the confines the relevant law. He is therefore not at liberty to innovate at pleasure.[12] By this progressive and beneficial interpretation, governments could be held accountable for violations of socio-economic rights. In this vein, Anosike and Nicardozo opined as follows:

 

Justiciability will develop… in the field of human rights; bottom up through fragmentary incursion in the areas docked behind the proverbial unwillingness of governments to concede ways, … and holding governments accountable for a violation of economic, social and cultural rights existed and can be used as basis for further development of justiciability.[13]

 

Unarguably, advancement has been made on the enforcement of economic, social and cultural rights in Nigeria by the enactment of the 2009 Fundamental Rights (Enforcement and Procedure) Rules. The overriding objectives of these rules are thus:

 

(a)   Chapter IV of the Constitution of the Federal Republic of Nigeria as well as the African Charter shall be expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.

(b)   The court shall, for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form part of larger documents like constitutions. Such bills include:

(i)    The African Charter on Human and Peoples Rights and other instruments (including protocols) in the African regional human rights system.

(ii)   The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system.

(c)   The court may make consequential orders as may be just and expedient for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms.

(d)   The court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.

(e)   The court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:

(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 class of persons;

(iv) Anyone acting in the public interest, and

(v)   Association acting in the interest of its members or other individuals or groups.

 

(f)    The court shall pursue the speedy and efficient enforcement and realization of human rights in a manner calculated to advance Nigerian democracy, good governance, human rights and culture.

(g)   Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.[14]

 

Enforcement of Economic, Social and Cultural Rights through Judicial Activism by Judges

 

Judicial activism can be an instrument for the realization of economic, social and cultural rights. It is a phenomenon whereby a judge allows the spirit of times, the wishes of the people, precedent and interest of justice to influence his judicial decision more heavily than the law itself. In other words, it means giving life to our laws. The ideology of judicial activism, which is an antithesis to the ideology of restraint, emerged in the twentieth century as a corollary to the evolution of written constitution guaranteeing fundamental rights and freedoms. Arguably, the major defect inherent in judicial restraint is that it conceals the real nature of the judicial process by turning a judge into a formalist. A judicial activist in this respect is that profound thinker on the bench, ever humble and accommodating of contrary views. He is highly learned and possesses a capacity for deep reflection with special instinct for what is just.[15] The net effect of the ideology of activism, therefore, is a conception of law which transcends mere rules. It concedes the fact that the judge cannot ignore the law so enacted; however, it is an essential attribute of judicial function to develop and, if necessary, change it. [16] The raison d’etre of this creative role is to reconcile the rules to the wider objectives of justice. Thus, activist judges in jurisdictions such as India and South Africa no longer give themselves to these restraints obtainable in the common law regime particularly the nascent democracies.

 

Taking a look at the Nigerian experiment, our democracy has not remained the same as there has been a remarkable change especially in the way our judiciary has fared. The attitude of the court has gradually improved from that of fear, dogma and passivity to boldness, creativity and activism respectively, because of the development in our legal framework and jurisprudence. The judiciary has been impressive since the inception of the fourth republic and has been extolled for the landmark judgments delivered across the nation especially with regards to economic, social and cultural rights. The case of Attorney General of Ondo State v Attorney General of the Federation &ors[17] is one of the cases that heralded the presence of judicial activism in the fourth republic. The courts in Nigeria tend to hold that chapter II of the Constitution titled ‘fundamental objectives and directive principles of state policy, which embodies economic, social and cultural rights, is justiciable in instances where statutes based on actualizing ESC rights are challenged. In the instant case, the Ondo State Government, relying on Federalism principle, challenged the constitutionality of the enactment of the Corrupt Practices and other Related Offences Act under which the Independent Corrupt Practices and other Related Offences Commission was established to fight corruption throughout the country, including through prosecution of alleged offenders. The Nigerian Supreme Court taking a cue from the Indian jurisprudence justified the enactment of the Act on the Fundamental Objectives and Directive Principles of State Policy thus:

 

Every effort is made from the Indian perspective to ensure that the Directive Principle is not a dead letter. What is necessary is to see that they are observed as much as practicable so as to give cognizance to the general tendency of the Directives. It is necessary therefore to say that our situation is of peculiar significance. We do not need to seek uncertain ways of giving effect to the Directive Principles in chapter II of our constitution. The Constitution itself has placed the entire chapter II under the exclusive legislative list. By this, it simply means that all the Directive Principles need not remain mere or pious declarations. It is for the Executive and the National Assembly, working together; to give expression to any one of them through appropriate enactment as occasion may demand.

 

Similarly in AG Lagos State v AG Federation[18]the Supreme Court held that the National Assembly was competent to enact the Federal Environmental Protection Agency Act for the protection of the environment, in furtherance of chapter II just as the competence of the federal government in enacting the Corrupt Practices and Other Related Offences Act, in relation to section 15(5) under chapter II, was upheld in the case of AG Ondo v AG Federation.

 

In the same vein, notwithstanding that the Directive Principles of State Policy is deemed non-justiciable, the African Charter has rightly noted that ‘civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.[19] The paper argues that since economic, social and cultural rights are enshrined in the African Charter, they are enforceable by Nigerian courts. Accordingly, in Odafe & ors v Attorney General of the Federation,[20]the socio-economic rights of prison inmates to medical care was upheld by the Federal High Court. The court further held that the Nigerian government has incorporated the African Charter on Human and Peoples' Right Act, Cap A10 as part of the law of this country.

 

Toeing the same line, the Court of Appeal in Ubani v Director, SSS,[21]held that the African Charter which entrenched the socio-economic rights of persons is applicable in Nigeria. Courts in Nigeria are therefore enjoined, in any dispute concerning socio-economic rights such as the right to medical attention, to evaluate state policies and give judgment consistent with the constitution. There is no gainsaying that the economic cost of embarking on medical provision is quite high. However, as rightly held in Odafe & ors v Attorney General of the Federation, [22]the statutes have to be complied with and the state has a responsibility to all the inmates in prison, regardless of the offence involved.[23] There is plethora of cases where the courts have decided in favour of the enforcement of economic, social and cultural rights. The jurisprudence of the foregoing cases indicates a significant judicial activism in the interpretation of the constitution to give effect to the economic, social and cultural rights of Nigerians. This development has brought significant transformations as there is increasing willingness of the citizenry to seek judicial avenues to enforce their ESC rights rather than resorting to self-help. It has also, to a laudable extent, contributed in the maintenance of social harmony and tranquillity in the Nigerian society. Undoubtedly, the Nigerian courts have gradually moved away from the regime where adjudicatory power was characterised by a constant adherence to technicalities and strict interpretation of the provisions of statutes even in the face apparent display of injustice. The courts are becoming more innovative in their interpretative role to give effect to the enforcement of economic, social and cultural rights rather than following stereotyped precedents that would diminish the enjoyment of the economic, social and cultural rights. Thus, with judicial activism, the court cannot be helpless where existing rules are unsatisfactory.[24] Accordingly, Justice Chukwudifu Oputa, former Justice of the Nigerian Supreme Court made the following submission:

 

The law will have little relevance if it refuses to address the social issues of the day. Legislature makes laws in the abstract but the court deals with the day to day problems of litigants and attempt to use the laws to solve these problems in such a way as to produce justice. The courts should be able to make vocal and audible the ideas and concepts enshrined in our constitution, giving those ideas fuller life, expanding them to never areas in keeping with the onward match of society…. Economic, social and cultural rights can be enforced through judicial activism as has been shown in India. This approach adopted by some judges in India shows clearly how theories of reason, ableness and public purpose have been utilized to give life to Directive Principles.[25]

 

Thus, where, for instance, a person’s right to employment was violated, the court is disposed to reason that the individual’s right to earn a living had also been tampered with and consequently, his right to life, which is a fundamental human right, has been emasculated. Accordingly, in Bandhua Mukti Mocha case 1983, the Indian Supreme Court put the burden of proof on the respondent in the case, stating that it would treat every case of forced labour as a case of bonded labour unless proven otherwise by the employer.

 

In Nigeria, it is instructive that courts could effectively take a cue from the ideology of activism the Indian Supreme court to ensure that the provisions of chapter II of the 1999 Constitution dealing with economic, social and cultural rights are enforced. It is the ultimate responsibility of our judges, as the interpreters of the law and the constitution to ensure the development and enforcement of these rights. The judiciary therefore has the sacred responsibility to recognize the provisions of economic, social and cultural rights as part of the duties of states, and use these rights as beacons by relying on them when determining the validity of restrictions, if any, placed on enforceable rights.[26] Thus, economic, social and cultural rights could be enforced through the progressive utilization of fundamental human rights.

 

 

Judicial Remedies Vis-a-Vis Budget Allocation

 

Judicial remedy is an order granted by the court as the means of enforcing ones right. It is an order usually made against a defendant upon a petition by a person whose rights has been or is likely and even about to be violated. The remedy may be legal or equitable relief. It may be given by way of injunction or damages. Sometimes, judicial remedies may be by way of declaratory judgment or by executory judgment. Budget allocation is, on the other part, a designation or apportionment or the statement of government estimated revenue and expense for specific projects or purposes. It is the sum of money allocated by the government for specific programmes usually in a year. Under the Nigerian jurisdiction, judicial remedy may come to play where there is ultra vires arising from the side of government (executive or legislature) whereby the Appropriation Act laid down that the particular money should be used for the particular project and same is diverted to another. The value of right is strengthened by the remedies available for its violation. It is trite law that where there is right, there is remedy for its violation (ubi jus, ibi remedium). Accordingly, without the principle of ubi jus ibi remedium, the provisions for human rights are empty promises. Citing Diplock L.J. Okpara noted that ‘the sacred pledges, the sublime commitment rights, our objective of freedom, liberty, equality and justice for all will mean nothing to the ordinary citizens of our country if they cannot enforce the breaches of these guaranteed rights by effective judicial processes.’ Thus, despite the deemed non-justiciability of economic, social and cultural rights, they are recognized rights under our constitution and the executive is under obligation to take steps, at least, through budget allocation to ensure that these rights are enjoyed by the citizens. In Nigeria, section 13 of the 1999 constitution provides thus:

 

It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provision of this chapter of this constitution.

 

Against the backdrop of the foregoing provision of the constitution, courts could ensure progressive realization of economic, social and cultural rights by using the Budget Analysis procedure since the Appropriation Act is a law to be complied with. Courts can therefore entertain complaints of policy failure which has been adequately taken care of in the budget. In essence, budgetary allocations for education, health, security and social welfare can be litigated upon if the executive fails to implement them accordingly. Litigation based on failure of government to comply with budgetary provisions is one of the ways to remedy the violations of economic, social and cultural rights. Undoubtedly, the mere laying down of polices has been shown to fail in securing economic and social justice for the people. Thus, this procedure has emanated as an alternative, but feasible method, derived essentially to ensure that government adheres to its constitutional duties of protecting the rights of its citizens. It is difficult to conceive of any public policy that can be carried out without money and without being subjected to budgetary processes at the development, review and implementation stages.[27]

 

In order to determine the extent to which a state has effectively and prudently allocated its financial obligations towards the fulfilment of its constitutionally imposed obligations, it would be necessary to examine the budget of government, which is its action plan. In this wise, a person can approach the courts for order of mandamus or order for declaration and injunction enforce government’s obedience to the constitution. In jurisdictions such as the Philippines, recent development in the field of socio-economic rights shows that budget analyses over a period of five to ten years are being utilized to invoke the court’s jurisdiction to make declarations as to whether or not a state has complied with its constitutional obligations with respect to the protection of ESC rights. The budget analysis approach is therefore, a novel and practical tool devised for assessing national budgets to determine whether the state had complied with or violated its socio-economic obligations within a specified period of time. Odili and Uwais further opined thus:

 

…the judicious management of resources and mobilization of manpower in Nigeria would go a long way to ameliorate suffering and ensure social justice to the poor and the under-privileged. It is imperative, in our circumstances, where evidence abounds that uncontrolled power, and an arbitrary and unguided decision-making process have led to our present day state of affairs. There is near total collapse of our educational system, massive unemployment, decay in our environment and poor state of health facilities.[28]

 

The foregoing pitiful scenario, against the background of revelations of massive corruption and otiose looting of state funds by government officials and their cohorts, makes any argument about the insufficiency or unavailability of government resources, untenable, in today’s Nigeria. The paper therefore maintains that if the judiciary develops our human rights jurisprudence in furtherance of its constitutional obligations to protecting, in particular, the ESC rights, it would have ultimately contributed enormously to the enhancement of good governance and the welfare of Nigerian people. It is submitted that it is high time the legislature amends the 1999 Constitution of Nigeria by ensuring that, at the very minimum, the justiciable dimensions in ‘unenforceable’ rights in chapter II of the Constitution of the Federal Republic of Nigeria are elevated to fundamental constitutional guarantees as justiciable rights. The judicial remedies for violation of economic, social and cultural rights vis-a-vis budgetary allocation are as follows:

 

 

(i) Order of Mandamus: Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. In the case of Amasike v Registrar General CAC,[29]the Court of Appeal stated that mandamus is a high prerogative writ which has to secure the performance of a public duty in the performance of which the applicant therefore has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessary, is imposed by statute but is neglected or refused to be done after due demand. Therefore, under the Appropriation Act, the citizens should be vigilant in ensuring that the budget allocations to education, health, security, etc are fully implemented or executed. The budget embodies the legal rights, and the citizens can compel the executive to implement same through writ of mandamus. Implementation of budget by the executive is a public duty and any neglect or refusal to perform this function should be remedied by mandamus.

 

(ii) Declaratory Orders: Declaratory order merely proclaims the existence of legal relationship but contains no specific order to be carried out by or enforced against the defendant.[30] Its purpose is essentially to seek an equitable relief in which the plaintiff prays the court for the exercise of its discretionary jurisdiction to declare in his favour an existing state of affairs in law as may be discerned from the averments in the statement of claim.[31] The citizens, through aggressive public interest litigation, should approach the court for the interpretation of the preamble of our constitution where it states inter alia: ‘…PROVIDE for a constitution for the purpose of promoting the good governance and welfare of all persons, of freedom, equality and justice….’ More so, section 13 of the 1999 constitution also provides that it shall be the duty and responsibility of all organs of government and all authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of chapter II of the constitution. In addition, section 224 of the 1999 constitution provides that the programme as well as the aims and objective of a political party shall conform to the provisions of chapter II of this constitution. Moreover, item 60(a) of the Exclusive Legislative List gives the National Assembly the power to establish and regulate authorities for the promotion and enforcement of the observance of the objectives and principles in chapter II.[32] The paper therefore argues that the foregoing provisions confer on Nigerian citizens legal rights over chapter II, and impose corresponding duty on the government to implement them. Accordingly, Courts can, when properly approached, declare that the citizens of Nigeria are entitled to economic, social and cultural rights as contained in chapter II of the 1999 Constitution. It is therefore submitted that any budgetary allocation that does not reflect the educational, health and employment realities in the country can be declared to be invalid in line with the spirit of the constitution itself as clearly enunciated by the foregoing discourse.

 

(iii) Injunction: Injunction is an equitable remedy issued at the discretion of the court, and unlike a declaration, an injunction has a sanction attached to the order to be enforced, if necessary, by imprisonment, fine or any other sanction at the disposal of the court. In other jurisdictions, where the economic, social and cultural rights are made enforceable by the court, the court normally grant mandatory injunction compelling the government to do an act which will ensure the guarantee of such right. In the Argentine landmark case of Viceconte Mariela Cecila v. Argentinian Ministry of Health and Social Welfare,[33]titled ‘argentine haemorrhagic fever and the lack of the vaccine’, the plaintiff and the national ombudsmen requested the court to order the government of Argentina to take protective measures against the above disease, to produce the candid-1 vaccine and to rehabilitate those environments where the disease was breading. The World Health Organization (WHO) has approved over 95 % supply of effective measure against this disease.

 

In September 1996, the Centro de Estudios Legates v Sociates (CEL) initiated a class action - an Amparo action - asking the state to complete the construction of its own laboratory. On November 8, same year the plaintiffs filed an Amparo action praying for protection of the right to health of the people by forcing the state to manufacture vaccine drug. On June 2, 1998 the Appeal Court upheld the action and held that the state should manufacture the said vaccine and to comply strictly without delays with the schedule that is being designed by the Ministry of Health. The lower court ordered the executive branch to fulfil the obligation and set up a new deadline which was disregarded. The lower court further ordered for allocation of fund to the corresponding budget line item. The fund should not be available for another thing other than for the purpose of enforcing the decision. The state government appealed, wherein the Court of Appeal further observed that individuals could bring complaint on right to health due to the constitutional interpretation of international treaties,[34] and further held that the state had delayed the order of the lower court on December 2001. The Appeal Court finally ordered the executive branch to inform it whether the annual budget bill to be sent to the parliament for approval included an appropriation for expense to be incurred in the manufacturing of candid 1 vaccine. According to the court, the government of Argentina was legally obliged to intervene for the provision of health care when the individual and private sector could not do so. The court in its numerous findings found that the government unreasonably refused to fulfil its obligation to produce the vaccine and made the Health Minister and that of economy personally liable for its production. The latter had control over the release of budgeted fund.[35]

 

The foregoing cases show the importance of judges in controlling the allocation and implementation of budget line items. The collective actions demanding protection of social rights, the implementation of public policies with the corresponding budget appropriation is at stake. This could be so under the state where the matter touching on economic, social and cultural rights could be redressed by the court. In the Nigerian situation, even without these rights categorically made justiciable before the courts, the court has within its disposals laid myriad of foundations to make an order compelling the government to comply with their commitments to appropriation laws which contain a statement showing her estimated revenue and expenses in the financial year. Hence, the budget list embodies provisions of both tangible and intangible items that facilitate the realization of economic, social and cultural rights. 

 

It is instructive that all lawyers, judges and public-spirited individuals should join hands to ensure that economic, social and cultural rights are achieved in Nigeria especially now that issues of locus standi in the enforcement of human rights has been solved through the 2009 Enforcement Rules, which permits public interest litigation. No doubt the argument will perpetually remain that court primarily has limited role to play in issues touching on how the government spends her money. No doubt courts cannot wake up to interfere with the function legally placed upon the executive and legislature. Of course, there is no doubt budget allocation falls within the spheres of the traditional duties of the executive and legislative branches of government. Agreeably also, the estimated analysis on how the government revenue and expenses to be made usually in a year lies solely on the executive and agencies of government which could also be regarded as the executive branches and subsequently submit same to legislature for approval. However, the courts can interfere if the executive defaults in complying with the stipulations of the budget so made by them and approved by the legislature, especially as those stipulations have socio-economic implications affecting the rights of citizens. 

 

 

Emulating the Jurisprudential Experience of other Jurisdictions: South Africa and India

 

The jurisprudence of the South African Constitutional Court with regards to social and economic rights has been set initially in the trial of reasonableness review in the case of Soobramaney v Minister of Health[36]and Minister of Health v Treatment Action Campaign[37] wherein the proposed issue preoccupying the Constitutional Court is whether the policy chosen by the state can reasonably be expected to deliver the right in question. The court became quickly known in Soobramoney case for the framework of its inquiry into the reasonableness of state policy, for a limited fund being available for dialysis treatment, which the court found not within the ambit of right to emergency treatment. The court later denied Mr. Soobramoney the right to treatment.[38] Accordingly, ‘a court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authority whose responsibility is to deal with such matters. To the highest court in the land it had power to adjudicate on socio-economic rights because the constitution conferred such power on them. On the same case, Hon. Justice Yacoob stated the reasonableness can be evaluated at the level of legislative programming and its implementation:

 

That legislative measure is not likely to be the constitution compliant. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and legislative measures will invariably have to be supported by appropriate, well directed policy, and programme implemented by the executive and must be implemented.

 

The Hon. Justice of the Constitutional Court went further to explain thus:

 

Reasonableness could also be understood in the context of Bill of Rights as a whole. The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded the basic needs. A society must seek to ensure that the bare necessities of life are provided to all if it is to be a society based on human dignity, equality and freedom. To be reasonable measure cannot be taken out of account the degree and extent of denial of the right they endeavor to realize. Those whose needs are the most urgent and whose ability to enjoy all right therefore is most in peril and must not be ignored by measure aimed at achieving the realization of the rights. It may not be sufficient to achieve the test of reasonableness to show that the measures are capable of achieving a statistical advancement in realization of the rights. Furthermore, the constitution requires that everyone must be treated with care and concern. If the measure though statistically successful, fail to respond to needs of those most desperate they may not pass the test.

 

However, notwithstanding the above laudable development of the South Africa to make economic, social and cultural rights enforceable before the court of law; the country is not a signatory to the International Covenant on Economic Social and Cultural Rights. In India, interestingly, the jurisprudence of economic, social and cultural rights is inextricably linked to the forms of legal action, various terms as public interest litigation and social action litigation together with the outstanding role played by the Supreme Court of India. Suffice it to state that this form of legal action is characterized by non-adversary approach, the participation of amicus curiae, the appointment of expert and monitoring committee by court and issues of detailed intern order by Supreme Court and High courts. It is this liberalized legal climate that conditioned the innovative posture assumed by the Indian courts in enforcing ESC rights

 

Economic, social and cultural rights have been defined in judicial interpretation of rights to life guarantee.[39] The jurisprudence of human rights in India has expanded ordinary notion of right to life to enable the court in public interest litigation to overcome objections on the ground of justiciability of economic, social and cultural rights to adjudicating enforceability of same before the court of law. Thus, in Olga Tellis v Bombay Municipal Corporation (BMC),[40] the Supreme Court of India held as follows:

 

An important facet of right to life is right to livelihood because no one can live without the livelihood. If right to live is not treated as part of the constitutional right to life, the easiest way of depriving a person of his right to life is to deprive him of right to livelihood to the point of abrogation.

 

The court went on to hold that under Bombay Municipal Corporation Act (BMC), eviction of pavement dwellers was valid under articles 14 and 19 of the constitution and subsequently declared that eviction could be done only when the alternative arrangement with respect to their accommodation have been made. The court further facilitated the emergency of environmental jurisprudence by holding that the rights to clean water, environment, and pollution free atmosphere have gained the status of inalienable human right and fundamental right to the citizens of India. This marked a great forward leap in the effort of the Indian judiciary in advancing ESC rights enforcement.[41]

 

A similar development was emphasized in the case of LK Koolwal v. State of Rajasthan[42] where the Rajasthan High Court recognized the right to healthy and clean environment. Hence, the court held that the municipality had a statutory duty to remove the dirty filth etc from the city within a period of six months and clear the city of dirt with immediate effect. A committee was constituted to inspect the implementation of this judgment in order to ensure full and effective compliance. Furthermore, the proactive role played by Indian courts is exemplified in the Municipal Council Ratlam v Vardichand and ors[43] where the Supreme Court held that right to life of a person could be affected by environmental pollution; and that right to breathe fresh air and sanitary conditions are essential for proper enjoyment of this right. The Supreme Court, in addition, directed the construction of a number of public latrines; provision of water supply, construction of drains and to provide the basic amenities to the public to improve the condition of living among the citizenry.  The apex court of India has been able to evolve authoritative guidelines to ensure the availability of bare minimum rations through the public distribution system of those below the poverty line. In this way, the Indian court advanced the enforcement of the right to food to keep hunger at bay.

 

The complexity involved in giving substance to ESC rights is demonstrated by what the Covenant on ESC rights has held to constitute the right to housing.[44] Thus, the right to housing includes the following rules and entitlement: measure that gives security of tenure in variety  of  forms of those lacking protection, policies that ensure that percentage of housing related to cost is commensurate with income level, availability of building materials, adoption against the forced eviction, provision of access to natural and common resources, safe drinking water, energy, sanitation and washing facilities, means of  food storage, refuse disposal, site drainage,[45]etc. It is clinically settled that the enforcement of economic, social and cultural rights in India and South Africa has reached a laudable height unlike the situation in Nigeria and most nascent democracies.

 

The essential elements that condition the enforcement of ESC rights, to wit: justiciability, reasonableness test, monitoring, supervisions, etc employed by those courts have not been internalized by Nigerian courts. India, in particular, has come up with significant innovative approaches to circumvent some of the inherent difficulties posed by the traditional procedural mechanism to the protection of economic, social and cultural rights within its jurisdiction. Nigeria and, indeed, other nascent democracies can follow suit. It is only in some subtle cases where the Nigeria judiciary held that the right to development, economic, social and cultural rights could be implemented because those rights are enshrined in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A10, LFN 2010 as illustrated in Odafe and ors v.  A.G. Federation.[46] It is our position, that those rules employed by the foregoing foreign jurisdictions while dealing with matters touching on economic, social and cultural rights should as well be welcome if Nigerian judges would use their discretionary power to invigorate the hope of individuals in actualizing ESC rights.

 

 

Conclusion and Recommendations

 

The ultimate concern of every responsible government is the welfare of society. We have reached a stage in the history of human development where the comfort and dignified living of all persons should be the priority of the government. The success or failure of every government is now measured by the extent to which it provides and ensures economic and social development of the governed. It is therefore embarrassing to hear that in Nigeria, a vast population still sleep under the gutter, dies for lack of food and insufficient or lack of medical facilities. Flowing from the above, this paper maintains that in order to enhance the protection and justiciability of more economic, social and cultural rights, both the government and the entire citizenry must be involved.

 

The paper argues that the time is now ripe for developing economies as well as nascent democracies such as Nigeria to legislate on more economic, social and cultural rights. Unarguably, the test for the realization of ESC rights is progressive realization within available resources. The discovery and consequent recovery of tremendous amount of looted money by the Nigerian government reveals that if properly harnessed and appropriated, we have sufficient resources to serve the ESC needs of the people of this country. Interestingly, the process of amending the constitution had been initiated by the government and the justiciability of more economic, social and cultural rights such as food, water, housing, etc. should be taken into account as part of the process.

 

Granted that there are already in place some ESC rights being realized especially with the enactment of the Africa Charter on Human and People’s Rights (Ratification and Enforcement) Act, the Compulsory, Free and Universal Basic Education Act (2004), the Health Insurance Act, 2014, etc., more should be done in the area of education, agriculture, ICT, environment, poverty eradication, health and housing. It is therefore, recommended that the judiciary needs to be more progressive in the interpretation of human right norms with a view to advancing economic, social and cultural rights. If there is no creative or innovative approach in the dispensation ESC rights related cases, even when there is constitutional protection of economic, social and cultural rights, same could still be undermined under the pretext of lean national resources. The judiciary in nascent democracies needs to pluck a leaf from those of India and South African which are bold and pro-active. Amongst other nations, India has come up with a shrewd approach to circumvent some of the inherent difficulties posed by the traditional procedural mechanism to the protection of economic, social and cultural rights.

 

 

 

 

Bibliography

 

Articles:

Abikan, A,I, and Ishoia, A.S.,(eds.), ‘Nigerian Judiciary: Contemporary Issues in Administration

of Justice’, Essays in Honour of Hon. Justice Ayo Salam, (llorin: NBA Ilorin 2013) p. 357, (footnote 16).

Okpara, O., ‘Judicial Remedies for Fundamental Human Rights Violation in Nigeria’, Ebonyi

State University Law Journal, Vol. l, No.l (2005) p. 58, (footnote 27).

 

Books and Chapters in Books:

Anosike, K. and Ncardozo, B., I Rest My Case: A Biography of Hon. Justice Umaru Kaigo,

(Abuja: The Regent, 2007) p. 103, (footnote 13).

Haris, D.J., Case and Materials on International Law, (London: Sweet and Maxwell Limited,

2004), pp. 655-656 (footnote 6).

Mensah, H.H., (ed), A Colossus of Legislative Government Juridicat, Papers in Honour of Rt.

Hon. Eugene Odo (Enugu: Rocana Nigeria Limited, 2012) pp. 11-12, (footnote 24).

Nweze, C.C., ‘Justice in the Judicial Process’, in Oputa, C. (ed.), Essay in Honour of

Honourable Justice Eugene Ubaezonu, JCA, (Enugu:  Forth Dimension Publishing Co. Ltd, 2002) p. 14, (footnotes 9 and 24).

Okpara, O., Human Rights Law and Practice in Nigeria, Vol.I, 2nd Edition (Abakaliki:

Problem Int. (Nig) 2007). p. 20, (footnote 31).

Udu, E.A., Human Rights in Africa, (Lagos: Mbeyi &Associates (Nig) Ltd, 2011) pp. 61 and 70,

(footnote 3).

     

Cases:

Amasike v Registrar General CAC [2006] 3 N.W.L.R. (Pt. 968) 462 CA, (footnote 29).

Attorney General of Cross River State v Attorney General of the Federation (2012) 16 N.W.L.R.

(Pt. 327) 425, (footnote 32).

Attorney General of Lagos State v Attorney General of the Federation 18. (2003) 12 N.W.L.R.(Pt 833) p.

321 (footnote 18).

Attorney General of Ondo State v Attorney General of the Federation & ors (2002) 27 WRN

1, (footnote 17).

Carolie v. Union Territory of Delhi AIR 1999 (Sup. Ct. 1964 (App.6), (footnote 11).

LK Koolwal v State of Rajasthan AIR (1988) Raj. 2, ((footnote 42).

Minister of Health v Treatment Action Campaign, 2002 (5) 8A 721 (CC), (footnote 37).

Mohini Jain v State of Karnataka (1992) AIR SC 1858, (footnote 10).

Municipal Council Ratlam v Vardichand and ors AIR (1980) SC 1622, (footnote 43).

Odafe &ors v Attorney General of the Federation (2004) AHRLR 205 at 211; (2005) CHR

309 at 323-324, (footnotes 20 and 46).

Olga Tellis v Bombay Municipal Corporation (BMC) [1985] 3 SCC 545, (footnote 40).

Ponder Judical de la Naction, Case NO 31.777/96, 2nd June, 1998, (footnote 33).

Soobramaney v Minister of Health Kwa2wu-Natal, 1998 (1) 8A 765 (CC), (footnote 36).

Ubani v Director, SSS (1999) 11 N.W.L.R. (pt. 129) p. 21, (footnotes 21 and 46 ).

 

Constitutions:

Constitution of the Federal Republic of Nigeria 1999 (as amended), sections 6(6)(c) and

13, chapter II (footnotes 4,7 and 8).

Indian Constitution, Part IV, (footnote 7).

 

Statutes:

Bombay Municipal Corporation Act, article 21, (footnote 39).

Fundamental Rights (Enforcement and Procedure) Rules 2009, the preambular

paragraphs, (footnote 14).

 

International Treaties and Conventions:

African Charter on Human and Peoples' Rights, the preamble (footnote 19).

American Declaration on the Rights and Duties of Man, Article xi, (footnote 34).

International Covenant on Civil and Political Rights (ICCPR), article 3, (footnote 2).

International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 2, 11

and 16, (footnotes 2, 44 and 5 respectively).

Universal Declaration of Human Rights (UDHR), articles 1-27, (footnotes 1 and 34).

 

Websites:

Kupal, B.K., ‘Development in India Relating to Environmental Justice’, available at:

www.unep.org/dpdi/sympesion/Documents/country, accessed on 5th January, 2019, (footnote 41).



[1] Universal Declaration of Human Rights (UDHR), articles 1-27.

[2] International Covenant on Civil and Political Rights (ICCPR), article 3; International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 2 and 16.

[3] Udu, E.A., Human Rights in Africa, (Lagos: Mbeyi &Associates (Nig) Ltd, 2011) pp. 61 and 70.

[4] Constitution of the Federal Republic of Nigeria 1999 (as amended), section 6(6)(c).

[5] International Covenant on Economic, Social and Cultural Rights, article 2.

[6] Haris, D.J., Case and Materials on International Law, (London: Sweet and Maxwell Limited, 2004) pp 655-656.

[7] Chapter II of the Constitution of the Federal Republic of Nigeria is a similitude of Part IV (Directive Principles of State Policy) of the Indian Constitution. 

[8] Constitution of the Federal Republic of Nigeria 1999 (as amended), section 13.

[9] Nweze, C.C., ‘Justice in the Judicial Process’, in Oputa, C. (ed.), Essay in Honour of Honourable Justice Eugene Ubaezonu, JCA, (Enugu:  Forth Dimension Publishing Co. Ltd, 2002) p. 14.

[10] (1992) AIR SC 1858.

[11] AIR 1999( Sup. Ct. 1964 (App.6).

[12] AIR (1981) sup. Ct. 746 (APP.5).

[13] Anosike, K. and Ncardozo, B., I Rest My Case: A Biography of Hon. Justice Umaru Kaigo, (Abuja: The Regent, 2007) p. 103.

[14] See the preambular paragraphs of the 2009 Fundamental Rights (Enforcement and Procedure) Rules.

[15]Anosike, K. and Ncardozo, B., I Rest My Case: A Biography of Hon. Justice Umaru Kaigo,ibid.,(footnote 13) p. 14.

[16] Abikan, A,I, and Ishoia, A.S., eds., ‘Nigerian Judiciary: Contemporary Issues in Administration of Justice’, Essays in Honour of Hon. Justice Ayo Salam, (llorin: NBA Ilorin 2013) p. 357.

[17](2002) 27 WRN 1.

[18](2003) 12 N.W.L.R.(Pt 833) p. 321.

[19]The Preamble to the African Charter on Human and Peoples' Rights.

[20] (2004) AHRLR 205 at 211; (2005) CHR 309 at 323-324.

[21] (1999)1 N.W.L.R. (pt. 129) p. 21.

[22] (2004) AHRLR 205 at 211.

[23] As in the instant case where the state has wronged the applicants by not arraigning them for trial before a competent court within a reasonable time but rather leaving them in custody for not less than two years suffering from illness. The prison inmates could not help themselves even if they wanted to because they were detained and could not consult a doctor.

[24]The literature of judicial behaviorism has posited two principal ideologies in the analysis of judicial behavior. They are the ideologies of ‘judicial restraint’ and ‘judicial activism’. Ideology of judicial restraint traces its root to a caveat  in sir Francis Bacon’s essay titled ‘Of Judicature’ where he wrote that ‘judges ought to remember that their office is indicere, and not insdare’, i.e. to interpret law and not to make law or give law. The premise of the ideology of judicial restraint is the application of the law as it is. Hence, the role of the judge is merely declaratory as the saying goes: judicium est quasi juris dicturn, which means that judgment, is the declaration of law. It is thus referred to as the declaratory or phonographic theory of the judicial function. The judge is merely concerned with legal justice, social justice not being within the province of his function. Accordingly, the question of developing, modifying or altering the law to meet socio-economic problems is meta judicial. Advocates of restraint thus react with great hostility to anything which can be regarded as politicization of the judicial process; or any attempt to suggest that moral, social or economic factors should play a part in decision making. The law is sufficient unto itself and the judge’s task is to apply it in accordance with its own internal logic. See Mensah, H.H., (ed), A Colossus of Legislative Government Juridicat, Papers in Honour of Rt. Hon. Eugene Odo (Enugu: Rocana Nigeria Limited, 2012) pp. 11-12.     

[25] Nweze, C.C., ‘Justice in the Judicial Process’, in Oputa, C. (ed.), Essay in Honour of Honourable Justice Eugene Ubaezonu, JCA, op.cit; (footnote 9) p. 16. 

[26] Nweze, C.C., ‘Justice in the Judicial Process’, in Oputa, C. (ed.), Essay in Honour of Honourable Justice Eugene Ubaezonu, JCA, ibid, (footnote 24) p. 18.

[27] Okpara, O., ‘Judicial Remedies for Fundamental Human Rights Violation in Nigeria’, Ebonyi State University Law Journal, Vol.l, No.l (2005) p. 58.

[28] Nweze, C.C., ‘Justice in Judicial Process’, Essays in Honour of Justice Engene Ubaezonu, JCA, op. cit. (footnote 24) p. 188.

[29] [2006] 3 N.W.L.R. (Pt. 968) 462 CA.

[30] Nweze, C.C., ‘Justice in Judicial Process’, Essays in Honour of Justice Engene Ubaezonu, JCA, op. cit. (footnote 24) p. 190.

[31] Okpara, O., Human Rights Law and Practice in Nigeria, Vol.I. 2nd Edition (Abakaliki: Problem Int. (Nig) 2007). p. 20.

[32]AG Cross River State v AG Federation (2012) 16 N.W.L.R. (Pt. 327) 425.

[33]Ponder Judical de la Naction, Case NO 31.777/96, 2nd June, 1998.

[34] The American declaration on the rights and duties of man (Article xi) DIDHR (Article 25); ICESCR (Article 12 indicate the duty to prevent, control and great epidemic and epidemic disease(Article 12)(2)(c).

[35] The court cited evidence from the government that: (a) fever was epidemic and endemic disease, (b) Canid-1Vaccine was the most effective protection against the disease, (c) both World Health Organisation and Ministry of Health had previously endorsed canid-1,(d) the stock of canid-1 was inefficient, and that the disease was inductively to Argentina, thereby making her commercial transaction unattractive.

[36] Kwa2wu-Natal, 1998 (1) 8A 765 (CC).

[37] 2002 (5) 8A 721 (CC).

[38] In this case Mrs. Soobramoney, her children and other affected persons moved from their home which had flooded during winter rain onto land earmarked for low cost housing. They were evicted from this land when the matter went to court who find in their favour at the High Court. The state appealed to constitutional court who explained the ambit of inquiry with the standard of reasonableness of state policy and set aside the decision of the lower court.

[39] Bombay Municipal Corporation Act, article 21.

[40] [1985] 3 SCC 545.

[41]Kupal, B.K., ‘Development in India Relating to Environmental Justice’, available at: www.unep.org/dpdi/sympesion/Documents/country, accessed on 5th January, 2019.

[42] AIR (1988) Raj. 2.

[43] AIR (1980) SC 1622.

[44] International Covenant on Economic, Social and Cultural Rights, article 11.

[45] UN Committee on ECSCR, Comment 4, 1991, paragraph 8.

[46] [2004] AHRLR 205 at 211; (2005) CHR at 325-24; Ubani v SSS Director (1999) 11N.W.L.R. (Pt 129) p. 21.