ABSTRACT
Human rights became a global issue after the atrocity and barbaric genocide unleashed on over six million Jews, Sinti, and Romani (Gypsies), homosexuals, persons with disabilities and the ‘Negro’ (blacks) during the second world war by Nazis regime of Germany. Initially, individuals’ rights were not the subject of international law, because the norm of the international law is to regulate relationship amongst member states as sovereign nations; thus, United Nations [(UN) founded in 1945] were reluctant to interfere in state parties’ affairs. The unfortunate wanton abuse and violation of human rights at the domestic level by governments of the state parties were not addressed, as such issues are the remit of nationals; until it culminated to genocide, crimes against humanity, crimes against peace and war crimes which received an international attention at Nuremberg and Tokyo trials of the Nazis war generals and the subsequent punishment of the defeated countries’ officials. From this point, individuals became subject of international law with the subsequent declaration of human rights in 1948. An international legal binding instrument was sought for; in 1966, HRC created International Covenant on Economic, Social, and Cultural Rights (CESCR) with the twin document, International Covenant on Civil and Political Rights (CCPR) which form the International Bill of Rights together with Universal Declaration. CESCR and CCPR are meant to be complimentary and indivisible but due to western bloc politics and cold war; western scholars privileged civil and political rights above economic, social, and cultural rights; arguing that CPR is expressed in clear language and does not place an obligation on government for their implementation: Whereas ESC rights depends on government to perform their obligations to guarantee them and is expressed in vague language which renders it unenforceable. They maintain that socio-economic rights are political aspirations/goals or directive objectives of state policies which can only be realized progressively and not of immediate actualization or enforcement. This poor attitude towards socio-economic rights led so many countries of the world including Nigeria to treat ESCR as fundamental objectives of government policy to be progressively realized. In Nigeria jurisdiction, the issue of locus standi, was a clog on the wheel of litigating socio-economic rights; however, this issue has been put to rest by the Chief Justice of Nigeria who made a new rule of court in section 3(e) of Fundamental Rights (Enforcement Procedure) Rules 2009, which provides that no human rights case should be struck out or dismissed on the grounds of want of locus standi. The work proceeded to prove that socio- economic rights can be justiciable in Nigeria, if the judicial attitude in administration of justice can positively change to that of enforcement driving. It drew lessons from Indian system and what could be emulated from their integral approach and public interest litigation, because the world attitude towards ESC rights has revamped towards enforceability and concludes with recommendations.
CHAPTER ONE
INTRODUCTION
• Background of study
Rights generally are very controversial and the subject of intense jurisprudential debate.1 However, Black’s law dictionary defined rights to include “that which is proper under law, morality, or ethics; something that is due to a person by just claims, legal guarantee, or moral principle; a power, privilege, immunity…”2 The term is said to be claim or demand,3 an interest,4 or simply the favorable enjoyed by a person in law.
Narrowing rights down to humans, human rights denotes a special kind of moral claim5 that all may invoke. Human rights are those rights which are inalienable and inherent in human beings that make us member of Homo sapiens family and when denied of it will lead to break down of law and order in society. Put differently, Jack Donelly defined human rights as ‘the rights that one has simply as a human being,’6 ‘without any supplementary condition being required.’7 And these rights have been classified or divided into three generations/divisions, namely: First generation which are civil and political rights; second generation are economic, social and cultural rights (ESC rights);8 and third generation are solidarity/collective rights9 which are inalienable claims or entitlements necessary for life as a human being.10
Human rights being all inclusive encapsulates socio-economic rights (i.e. economic, social, and cultural rights). Committee on Economic, Social and Cultural Rights defined human rights, especially General Comment 17; as fundamental, inalienable, and universal entitlements which belongs to persons and, under certain circumstances, group of persons and communities. Human rights are fundamental as they are inherent to human person.11 The term “socio-economic rights” refer to right “whose purpose is to assure that human beings have the ability
to obtain and maintain a minimum decent standard of living consistent with human dignity.12 These rights which are principally the rights to education, health care, food, work, social security, water, highest attainable living standard and shelter, give rise to the perception that they are programmatic and that their realization more often requires resources allocation (or at least greater allocation) than other rights.13 Given their legal (or juridical) nature, “justiciability of rights is central to international human rights law: ‘Juridical’ rights serve as authoritative sources of claims, aimed at holding violator-states accountable…”14
More vital to these is the 12 July 1993 Vienna Declaration and Programme of Action which represents an attempt at global consensus, that human rights “are the birthright of all human beings,” and that all human rights are universal, indivisible, interdependent and interrelated.”15
Socio-economic rights as contained in chapter 11 of Nigerian Constitution 1999 were made non-justiciable by S.6 (6) (c), which provides that, judicial powers:
“shall not, except as otherwise provided by this Constitution,16 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 judicial decision is in conformity with the fundamental objectives and Directive Principles of state policy set out in chapter 11 of this Constitution.”
This study will delve into critical examination of the seeming non-justiciability of Chapter II of Nigeria Constitution and the dismal political attitude of progressive realization of socio-economic rights according to maximum available resources,17 which invariably encouraged siphoning of public funds, dilapidated infrastructures, and serious setback in the standard of living of the citizens. The wanton limitation of economic, social, and cultural rights has led to misappropriation of public funds by successive governments living behind trails of poverty in a country with immense natural resources; richly endowed with vast land and mineral resources.
However, the same section 6(6)(c) also stated “except as otherwise provided by this Constitution,” which connotes that the courts are empowered in item 60 (a), second schedule of the Exclusive Legislative List to enforce Fundamental Objectives and Directive Principles of State Policy, if legislatures enact laws and create institutions to this effect.18 It is axiomatic from this provision that vibrant judicial attitude towards interpreting socio- economic rights into civil and political rights, will make chapter 11 of the Nigerian Constitution justiciable like their Indian counterpart who developed virile judicial approach to the enforcement of Economic, Social and Cultural Rights.
Also, the mini study examines the strict interpretation of the common law procedural practice of locus standi by the courts in Nigeria, and advocates for relaxing of this rule to pave way for public interest litigation. The mini study explores the possibility of the Nigerian courts learning from the way and manner in which the courts in India (which has similar limitation as our constitution) have been able to deal with the non-justiciability of socio-economic rights through creative and innovative thinking.
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Item Type: Project Material | Size: 49 pages | Chapters: 1-5
Format: MS Word | Delivery: Within 30Mins.
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