Comparative Analysis of Justiciability of Economic and Social Rights in Nigeria
Comparative Analysis of Justiciability of Economic and Social Rights in Nigeria.
ABSTRACT
The debate about whether economic and social rights can be or should be adjudicated and enforced by courts or other bodies in Nigeria has been on-going since the 1960s when the rights in the Universal Declaration of Human Rights (UDHR) were divided into two separate covenants.
One contained economic, social and cultural rights; while civil and political rights were set out in the other.
In the light of this, can it cogently be argued that the International Covenant on Economic, Social and Cultural Rights (ICESCR) articulates real rights, or does it merely set forth hortatory goals, programmatic objectives or utopian ideals? Is it ‘soft law?’
Is it helpful to see human rights in the form of “generations” – the so called first, second and third generations? How can rights (or obligations) that depend on the availability of scarce or unpredictable resources in fact be rights (or obligations) in any meaningful sense?
How does one calculate the ‘maximum extent of available resources?’ Can economic and social rights ever be fully achieved? How can they best be enforced?
These are some of the questions that arise whenever one brings up the vexed issue of justiciability of economic and social rights in Nigeria and their place in human rights discourse.
Though Nigeria has been a party to the International Covenant on Economic, Social and Cultural Rights since 1986, she is yet to adopt justiciable constitutional guarantee for the promotion of economic and social rights.
Nigeria, like India followed the bifurcated approach of justiciability to the International Covenant by placing classical rights and liberties in Chapter IV of the 1999 Constitution of Nigeria (as amended), while economic and social rights are recognized under Chapter II of the Constitution as Fundamental Objectives and Directive Principles of State Policy.
Since economic and social rights are classified under the Fundamental Objectives and Directive Principles of State Policy, they are thus regarded as mere ideas towards which the states are expected to aim, since their enforcement are subject to the availability of resources.
As a result of this, it is argued in Nigeria’s constitutional jurisprudence that Chapter II of the Constitution is non-justiciable and Nigerians cannot sue to protect these rights in any court in the country by virtue of section 6(6)(c) of the 1999 Constitution.
This paper in its first section deals with the general introduction. This is followed by an over view of the different generations of human rights; as well as the development of economic and social rights through international instruments.
The work in its third section graphically addresses the general debates over the justiciability of economic and social rights and the state of socio-economic rights in Nigeria and in the section following gives a comparative analysis of the state of economic and social rights in some jurisdictions.
In its last section, it argues the case for their progressive realization and asserts unequivocally, that adjudication is desirable in Nigeria and that adjudication is already taking place (to varying degrees) in many courts throughout the world.
TABLE OF CONTENTS
Title Page……………………………………………………………………………… i
Certification ………………………………………………………………………… ii
Dedication……………………………………………………………………………. iii
Acknowledgements………………………………………………………………….. iv
Abstract………………………………………………………………………………… v
Table of Contents……………………………………………………………………. vi
Table of Cases ………………………………………………………………………. viii
Table of Statutes ……………………………………………………………………. xiv
Table of Abbreviations…………………………………………………..…………. xxiv
Glossary……………………………………………………………………………… xxvi
CHAPTER ONE GENERAL INTRODUCTION
1.1.Background of the Study…………………………………………………… 1
1.2. Statement of the Problem…………………………………………………… 3
1.3. Research Questions…………………………………………………….…… 4
1.4.Objective of the Study……………………………………………………… 5
1.5.Methodology………………………………………………………………… 6
1.6.Organization of the Study…………………………………………………… 6
1.7. Definition of Terms…………………………………………………….…… 7
1.7.1. Economic and Social Rights………………………………………………… 7
1.7.2. Justiciability…………………………………………………………..……… 8
1.8.Doctrines of Justiciability…………………………………………………… 9
1.8.1. The Doctrine of Political Question……………………………….………… 9
1.8.2. The Doctrine of Standing…………………………………………………… 15
1.8.3. The Mootness Doctrine……………………………………………………… 25
1.8.4. The Ripeness Doctrine……………………………………………………… 25
1.8.5. Advisory Opinions………………………………………………………..… 26
1.9. Literature Review ……………………………………………………..…… 26
CHAPTER TWO
GENERATIONS OF HUMAN RIGHTS AND THE DEVELOPMENT OF ECONOMIC AND SOCIAL RIGHTS THROUGH INTERNATIONAL INSTRUMENTS
2.1 Different Generations of Human Rights…………………………………… 32
2.1.1 First Generation Human Rights………………………………………….… 32
2.1.2 Second Generation Human Rights………………………………………… 34
2.1.3 Third Generation Human Rights…………………………………………… 36
2.2 Characteristics of the Three Generations of Rights……………………..… 38
2.3 Views in favour of Indivisibility and Inter-relatedness of Rights……….… 40
2.4 The Justiciable Provisions of The Constitution of the Federal Republic of Nigeria 1999 (as amended). …… 42
2.5.The Development of Economic and Social Rights through International Instruments…………… 43
2.5.1. The Universal Declaration of Human Rights……………………….……… 44
2.5.2. The International Covenant on Economic, Social and Cultural Rights ………. 48
2.5.3. The Institutional Mechanism for the Implementation and Enforcement of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 50
2.5.4. The International Covenant on Civil and Political Rights…………………….. 52
2.6.Other International Treaties on Human Rights that Recognize Socio –Economic Rights …… 53
2.7.Protection and Enforcement of Economic, Social and Cultural Rights under
the European Human Rights System. ………………………………………….. 55
2.7.1. Rights Under the Revised European Social Charter (1961)…………………… 57
2.7.2. The Institutional Mechanism for the Implementation and Enforcement of Economic, Social and Cultural Rights under the European Social Charter…… 60
2.7.3. Protection and Enforcement of Economic, Social and Cultural Rights under the American Convention on Human Rights…………………. 63
2.7.4. Protection and Enforcement of Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights. …………………………… 65
CHAPTER THREE
GENERAL DEBATES OVER THE JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS AND THE STATE OF SOCIO-ECONOMIC RIGHTS IN NIGERIA
3.1. The Question of Justiciablity of Economic and Social Rights……………………… 68
3.1.1. Legitimacy Concerns Regarding the Judicial Enforcement of Economic and Social Rights………… 70
3.1.2. Democratic Legitimacy…………………………………………………………… 71
3.1.3. Separation of Powers …………………………………………………………… 74
3.2. Institutional Capacity of Courts to Adjudicate Economic and Social Rights…… 84
3.3. The Positive/Negative Divide Between Civil and Political Rights and Economic and Social Rights …… 92
3.4. Resource Dependent Economic and Social Rights versus Costless Civil and Political Rights……… 93
3.5. Vague Economic and Social Rights versus Precise Civil and Political Rights…… 94
3.6. The state of Economic and Social Rights in Nigeria ………………………………. 95
3.6.1. A Case Study of Economic and Social Rights Recognition in Nigeria…………. 104
3.6.2. Controversy Surrounding the Fundamental Objectives and Directive Principles of State Policy …… 109
3.6.3. Contents of the Fundamental Objectives and Directive Principles of State Policy.. 120
3.6.4. The Essence and Significance of the Fundamental Objectives and Directive Principles of State Policy 127
3.7. Relationship Between Fundamental Rights and Fundamental Objectives and Directive Principles of State Policy …. 131
CHAPTER FOUR COMPARATIVE ANALYSIS OF OTHER JURISDICTIONS
4.1. A Case Study of the State of Economic and Social Rights in Some Jurisdictions.. 137
4.1.1. South-Africa………………………………………………………………………. 138
4.1.2. Ghana……………………………………………………………………….……. 156
4.1.3. Zambia ……………………………………………………………………….……. 163
4.1.4. United Kingdom…………………………………………………………….……. 166
4.1.5. India……………………………………………………………………….……. 168
4.1.6. Argentina ………………………………………………………………….……. 170
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1. Conclusion………………………………………………………………………. 173
5.2. Recommendations………………………………………………………………. 179
Bibliography………………………………………………………………………….….. 183
INTRODUCTION
1.1. Background of the Study
The debate about the justiciability of economic and social rights in Nigeria is an old and well-worn one.
The appraisal of the arguments against making socio- economic rights justiciable and the analysis of jurisprudence determine that concerns about the justiciability of economic and social rights are generally ill-conceived and run contrary to experience.
Indeed, critics of justiciability have relied on overly simplistic division of the rights in the Universal Declaration of Human Rights into two separate covenants. One contained economic, social and cultural rights, while civil and political rights were set out in the other.
Though both set of rights were affirmed to be indivisible and interdependent, commentators have often distinguished between the two categories of rights by asserting that economic and social rights are not justiciable.
Worse still, economic and social rights are classified under Chapter II of the 1999 Constitution of Nigeria (as amended), as Fundamental Objectives and Directive Principles of State Policy and as such, these rights have been rendered non-justiciable by section 6(6) (c) of the 1999 Constitution.
Also, critics of justiciability have relied on incorrect assumptions about the nature of the relationship between the judiciary and the legislative or executive branches of government, when economic and social rights are adjudicated.
BIBLIOGRAPHY
Arambulo, K., Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, (Oxford: William Collins Sons & Co. Ltd., 1999).
Azinge, E., et.al., Justiciability and Constitutionalism: An Economic Analysis of Law, (Lagos: NIALS, 2010).
Buergenthal, T., International Human Rights in a Nutshell, (U.S.A: St. Paul Minn West Publishing Co., 1995).
Elde, A., et. al., The Universal Declaration of Human Rights: A Commentary, (Norway: Scandinavian University Press, 2002).
Feldman, D., et. al., Civil Liberties and Human Rights in England and Wales, (New York: Oxford University Press Int., 1993).
Foresythe, D., Human Rights in International Relations, (Cambridge: Cambridge University Press, 2000).
Gerard, H., Human Rights, the Citizen and the State: South African and Irish Approaches, (Dublin: Roundhall Sweet & Maxwell 2001).
