By Femi Falana
Part four of this piece published yesterday concluded with reference to the laws enacted under section 20 of the Constitution pertaining to Right to Environment.
The locus standi of a non-state actors to enforce the fundamental right of people in the oil-producing community was upheld by the Supreme Court in the case of Centre Oil Pollution Watch v. Nigerian National Petroleum Corporation, Kekere-Ekun (JSC) held that sections 20 and 33 of the 1999 Constitution as well as Article 24 of the African Charter on Human and Peoples’ Rights recognise the fundamental rights of the citizenry to a clean and healthy environment to sustain life.
Section 21- Preservation of Nigerian Cultures: The State shall protect, preserve and promote Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and encourage development of technological and scientific studies which enhance cultural values.
The Courts have struck down customary practices which discriminate against women and girls on the basis of culture. For instance, in Ukeje v Ukeje, the Supreme Court annulled the practice of denying female children any share in the estate of their fathers.
See also Mojekwu v Mojekwu.
Section 22- Duty of Mass Media to promote public accountability and transparency: The mass media are obligated to promote public accountability of the Government to the people. To ensure that the duty is effectively carried out the National Assembly has enacted the Freedom of Information Act to make information available to citizens by public authorities. In SERAP v Attorney-General.
Section 23.- Defence of The National Ethics: The national ethics shall be discipline, integrity, dignity of labour, social, justice, religious tolerance, self-reliance and patriotism. Under the National Honours Act the President is empowered by warrant to make provision for the award of titles of honour, decorations and dignities to deserving persons.
Section 24: Duty of Citizens: Every citizen is under a legal obligation to respect the dignity of other citizens; make positive and useful contribution to the advancement, progress and well-being of the community where he resides; render assistance to appropriate and lawful agencies in the maintenance of law and order; and declare his income honestly to appropriate and lawful agencies and pay his tax promptly.
The Supreme Court held in Fajemirokun v CCB that it is the duty of every citizen to report crimes to the police and other law enforcement agencies. In Dododo Sanni v EFCC, the Court of Appeal held that citizens have a legal duty to report cases of corruption. But corruption cannot be dealt with without challenging the political economy of the post-colonial capitalist states in Africa and this is also the view of Article 21 of the African Charter on Human and Peoples’ Right.
Therefore, states must strive to comply with Article 21 of the African Charter for the enjoyment of socioeconomic rights by the masses.
However, the duty of citizens to render assistance includes exposing corruption by reporting allegation of corrupt practices.
Enforcement of Socio-economic Rights: No doubt, Nigeria does not embrace the positive constitutionalisation of socioe-conomic rights; majority of them have been made justiciable through legislation and domestication of international human rights treaties and conventions.
While the ECOWAS Court does not hesitate to enforce provisions of the African Charter and other relevant human rights instruments, domestic courts have continued to hold on to the theory that fundamental objectives are not justiciable. Having regard to the state of human rights law regime in Nigeria it is submitted that there are seven ways of enforcing socioeconomic rights in line with binding judicial authorities and existing laws made pursuant to the provisions of chapter 2 of the Constitution.
First, victims of socioeconomic rights abuse may petition and seek redress in the National Human Rights Commission. The Commission has been vested with the power to apply all international human rights treaties that have been ratified by Nigeria. Second, in view of the interconnectedness between some fundamental objectives and fundamental objectives it is submitted that socioeconomic rights may be enforced via chapter 4 of the Constitution. For instance, the right to freedom of movement and from discrimination as well as the right to dignity of the human person and right to health may be enforced under the fundamental rights enshrined in Chapter 4 of the Constitution.
The fundamental objectives entrenched in the Indian Constitution are similar to provisions of Chapter 2 of the Nigerian Constitution. Even though they are also not justiciable the Indian judiciary has, through judicial activism, upheld the socioeconomic rights of the people. In Paschim Banga Khet Mazdoor Samity & Others v State of West Bengal & Another, the Supreme Court of India held: Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life, is, thus, of paramount importance. The government hospitals run by the state and the medical officers employed therein are duty- bound to extend medical assistance for preserving human life. Failure on these part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21 of the Constitution.
Third, the breach of the provisions of certain laws that have been enacted pursuant to chapter 2 may be challenged in a competent court. See the Attorney-General of Ondo State v Attorney-General of the Federation. In the case of Bamidele Aturu v Minister of Petroleum Resources & Ors, the court held in support of the Price Control Act, Adamu Bello, J., held that: “By enacting the Price Control Act and the Petroleum Products, the National Assembly working in tandem with the government has made the Economic Objectives in section 16 (1) (b) of the Constitution in chapter 11 justiciable. The enactment is to secure the economic objectives of the state to control the national economy in such a manner as to secure maximum welfare, freedom and happiness of every citizen of Nigeria.”
Thus, in Femi Falana v Attorney-General of the Federation, Idris J. (as he then was, now JCA) granted the reliefs sought by the Claimant and ordered the Federal Government to reestablish the Peoples Bank since its abolition was carried out in contravention of the provisions of the Peoples Bank. Similarly, in LEPAD v Minister of Education the Federal High Court held that every Nigerian child is entitled to free and compulsory education by virtue of the Compulsory, Free Basic Education Act.
Fourth, by virtue of the Fundamental Rights (Enforcement Procedure) Rules 2009 the socio-economic rights entrenched in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004 may be enforced in a High Court in the State where a breach has occurred.
The Rules have enjoined all Courts to apply the Universal Declarations of Human Rights and other instruments [including protocols] in the United Nations Human Rights system and the African Charter on Human and Peoples’ Rights and other instruments [including protocols] in the African regional human rights system in the enforcement of the fundamental rights enshrined in Chapter IV of the 1999 Constitution courts.
In Abacha v Fawehinmi[29] the Supreme Court held that all arms of government must obey and enforce provisions of the African Charter pursuant to the Ratification Act, save the provisions are suspended or repealed by a later statute. In the leading judgment of the court, Ogundare J.S.C. rightly held that if there is a conflict between the African Charter Act and another statute, “its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not intend to breach an international obligation.”
In Joseph Odafe and Ors v. Attorney General of the Federation and Ors[30]the Court held that the State had a duty to protect the physical health and mental health of inmates of prisons in Nigeria. Fifth, the violation of the socio-economic rights of the Nigerian people may be challenged in the Court of Justice of the Economic Community of West African States in Abuja, Nigeria. Being a member state of the regional economic union the Government of Nigeria is bound by Article 15 of the Revised Treaty of the Ecowas to comply with the decisions of the Community Court.
The Ecowas Court has resisted the moves by Nigeria to cite the provisions of the Constitution to frustrate the enforcement of socio-economic rights. In SERAP v. Federal Republic of Nigeria and Universal Basic Education Commission[31],the Applicant sought to enforce right of every Nigerian child to education.
The defendant argued that the Court lacked jurisdiction to hear the case because it dealt with domestic laws and policy which are not within the subject matter jurisdiction of the Court. It was further contended by the defendant that the educational objective in the Constitution of Nigeria is non-justiciable and that SERAP lacked locus standi to institute the case as it was not directly affected by the laws sought to be enforced.
The Court dismissed all of the objections and upheld the right of every Nigerian to education in accordance with article 17 of the African Charter. In the celebrated case of SERAP v Nigeria & Ors[32], the ECOWAS Court held that the “violation of the right to adequate standard of living, including the right to food, to work, to health, to water, to life and human dignity, to a clean and health environment; and to economic and social development.”
Sixth, victims of socioeconomic rights in Nigeria are entitled to file complaints before in the African Commission on Human and Peoples Rights in Banjul, The Gambia. Under the defunct military junta in Nigeria, the Commission provided legal succor for many victims of human rights abuse. See the cases of SERAC v Federal Republic of Nigeria[33]. Civil Liberties Organisation v Nigeria, Constitutional Rights Project v Nigeria[34]. Under the current human rights jurisprudence in Africa, victims of socio-economic rights abuse may file cases before the African Court on Human and Peoples Rights in Arusha, Tanzania, However, aggrieved individuals and Non Governmental Organisations in Nigeria are not competent to approach the African Court on Human and Peoples Rights since the Federal Government has not complied with Article 34 (6) of the Protocol for the Establishment of the Court.
Hence, the cases of Femi Falana v African Union[35] and SERAP v Nigeria[36], were struck out by the African Court on account of lack of jurisdictional competence. In the same vein, the Court declined to entertain the application of SERAP for advisory opinion on corruption in Nigeria.
Seventh, by virtue of section 254C (1) (f) and (h) of the 1999 Constitution, as amended, the National Industrial has been vested with the judicial power to apply and interpret all conventions of the International Labour Organisation ratified by Nigeria. In several cases, the Court has upheld the socio-economic rights of many Nigerian workers based on the ILO Conventions. Based on the Constitutional amendment Nigerian workers have been urged to “take advantage of the revolutionary constitutional amendment to enforce their rights guaranteed by the Constitution, African Charter on Human and Peoples Rights, Universal Declaration of Human Rights, International Covenant on civil and political rights as well as International Covenant on social, economic and cultural rights.”
Frustration of enforcement of socio-economic rights by High Court Judges: It is pertinent to note that the Judiciary has begun to play a more constructive role in promoting human rights and public accountability in Nigeria as seen in the case Fiicharles Organ& Ors. v. Nigeria Liquefied Natural Gas Ltd[37] where it was stated that all organs of government and all authorities and powers are to strictly conform to, observe and apply the provisions of the Constitution, most especially in Chapter 2.
But in spite of the clear and unambiguous position of the Supreme Court on locust standi a number of judges in the High Court have continued to strike out cases on socio-economic rights and other public interest cases. As if that is not enough, heavy fines are imposed on the claimants for dragging the Government to Court to account for official impunity. It is submitted that such decisions constitute judicial misconduct as they fly in the face of the judgment of the Supreme Court in case of Gani Fawehinmi v Col Halilu Akilu[38] where the decision of the apex court in the case of Abraham Adesanya v The President[39] was consigned to the dustbin of history.
In jettisoning the anachronistic doctrine of locus standi in Fawehinmi v The President[40], Aboki JCA (as he then was, now JSC) made it abundantly clear that illegal actions of the Government would be left unchallenged if a concerned citizen like the Appellant was chased out of the temple of justice on the grounds that only the Attorney-General could sue the Government of which he is a part.
For the avoidance of doubt, the Supreme Court held in Centre for Oil Pollution Watch v NNPC[41] that the appellant had locus standi to enforce the right of an oil producing community to environment as the rule of locus standi has given way to public interest litigation in Nigeria. In view of the undeniable fact that the appellate have jettisoned the doctrine of locus standi it is submitted that all courts are duty bound to desist from striking out public interest cases for want of locus standi.
In Ganiat Amope Dilly v Inspector-General of Police & Ors[42] the Court of Appeal held that by the combined effect of the Constitution, African Charter and the Universal Declaration of Human Rights the right of a dead person to life can be litigated upon in court by family members under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Augie J.C.A (as she then was) stated that “The right to life of a dead person can be litigated in the court. Failure to address such violations will create a monstrous situation where infractions will continue unabated and without redress thereby reducing such fundamental right to chasing shadows or holding the wind. And definitely, it will be contrary to the constitutionally guaranteed right to life, the African Charter on Human Rights and United Nations Universal Declaration of Human Rights, 1948 too. No court should be part of such retrogressive jurisprudence of human rights.”
In spite of the abolition of locus standi in public interest cases Judges of the Federal High Court and many state high courts have a penchant for dismissing cases pertaining to socioeconomic rights. It is high time the judges involved were made to apply the relevant decisions of the appellate courts in line with the doctrine of stare decisis.Otherwise, such Judges should be reported to the National Judicial Council for deliberately ignoring judicial authorities that are binding on them. In Monday Ubani & Anor v The Senate & Ors[43] two plaintiffs, Monday Ubani, had filed a suit to challenge the constitutionality of the jumbo-sized pay said to be collected by the members of the National Assembly.
The Plaintiffs had relied on the interview of Shehu Sani, a former member of the Nigerian Senate representing Kaduna Central Senatorial District, where he had in March 2018, revealed that each senator received the sum of N13.5 million monthly as running cost, in addition to N750,000 monthly consolidated salary and allowances.
In their argument before the court, the two chambers of the National Assembly had filed a defence denying its members ever collecting such jumbo-sized pay, but failed to disclose to the court how much members earn. On its part, the National Assembly Service Commission filed a defence, denying being responsible for the mouthwatering pay being taken by the members of the National Assembly.
They equally contended that the plaintiffs lacked the locus standi (the legal right) to institute the action against them, contending that the plaintiffs had no cause of action against them.They urged the court to strike out the suit.
However, delivering judgment on the matter, the judge, Chuba Obiozor J. dismissed the preliminary objections of the 3rd and 4th defendants. The judge said the plaintiffs were properly clothed with the right to institute the legal action, citing the Supreme Court case of Centre for Oil Pollution Watch v. NNPC.
The court held that public spirited individuals (taxpayers) had sufficient interest in ensuring that public authorities submitted to the rule of law and that no public authority had power to arbitrarily or with impunity break the law or general statute. He therefore declared that the 3rd, 4th and 5th defendants (the Senate, the House of Representatives and the National Assembly service Commission) “have no power, close or semblance of power and cannot determine, direct, command and/or instruct the 2nd defendant (RMAFC)) or any person howsoever, to make, determine and/or fix the salaries, wages, remuneration, running cost or allowances of the 3rd and 4th defendants. as only RMAFC can fix salaries of public officers’ The RMAFC (2nd defendant) is the only body responsible for determining the salaries, remuneration and/or allowances of the National assembly or political office holders, the court ruled.
“In line with Section 32 (b)(d) of part 1 of third schedule of the Constitutional of the Federal Republic of Nigeria, 1999 as amended, the 2nd defendant was ordered to embark on a downward review and fix the salaries, remuneration or allowances of the 3rd and 4th defendants to reflect the economic realities in the country.
The judge said that “since the members of the National Assembly has denied collecting the jumbo remunerations and allowances, the EFCC should look at their books and if it is found that they truly collect such amount of money, they should be prosecuted.” A similar suit filed by the Socio-economic and Accountability Project (SERAP) was assigned to the same judge. Earlier in the proceedings the Judge had ruled that SERAP would abide by the decision reached in the Ubani’s case.
In view of the fact that the Government has disregarded many cases in which the socio-economic rights of citizens have been upheld it is no longer sufficient to campaign for the justiciability of the provisions of chapter 2 of the Constitution. I am therefore compelled to call on the Nigerian Bar Association and the human rights community to wage a serious campaign against disobedience of court orders.
As far as I am concerned, the Attorney-General who disobeys a court order should be penalised by the Legal Practitioners Disciplinary Committee. Judges should invoke the powers of contempt to deal with officials who treat court orders with disdain. Conclusion: The paper has questioned the notion that socio-economic rights are not enforceable in the courts.
Having offered a detailed account of judicial decisions and laws enacted by the National Assembly for the promotion of the socio-economic rights it is hoped that lawyers are armed with the vital skills and tools to enforce fundamental rights of the Nigerian people. In particular, lawyers should be prepared to enforce the socio-economic rights of the people guaranteed by laws made pursuant to Chapter two of the Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.
It is high time the debate on socio-economic rights was moved from desirability to enforcement. The Nigerian courts should borrow from the reasoning of Yakoob, J., in Government of the Republic of South Africa v. Grootboom[44], where he held that: Socioeconomic rights must all be read together in the setting of the Constitution as a whole. The State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing.
Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the State has met its obligations in terms of them.
*Falana, a Senior Advocate of Nigeria, wrote from Lagos.
VANGUARD
