Constitution amendment and citizens’ expectations (2) – Dr.Muiz Banire SAN

Let me start by stating that the fundamental objectives are like the advertised manifesto of the government at all levels in Nigeria. They are promises made to the citizens by the state.

The only significant difference in this case is that the promises made are entrenched in a fundamental document known as the grundnorm by lawyers.

The grundnorm is the supreme law or the document against which all other rules and regulations that govern us are tested.

It is a binding document on all authorities and citizens. In some instances, those entitlements contained in the fundamental objectives as I would prefer to describe them for now, are often universally classified as socio-economic rights as opposed to civil and political rights.

To the extent that they are often seen to be unenforceable, they are not regarded as ‘rights’ properly so-called. The reason often alluded to for the unenforceability of those obligations is that they are not only nebulous but are incapable of performance or observance due to budgetary and resource constraint.

In Nigeria of today, the latter reason is not acceptable in the face of the various wastages and profligacy that are going on in the country. Have you recently come across the convoy of a governor and at times some ministers and other executives?

Have you seen that of the leadership of the National Assembly? Imagine the cost of acquisition, fueling and maintenance of the fleet. When last did you hear ‘Your Excellency’ on a local flight and even international flights these days? Our ‘rulers’ now fly private jets regularly all over the place.

Again, contemplate the cost of these frequent travels up and down? Since when have we been talking about reducing the cost of governance, particularly through the reduction of the parastatals and agencies of government?

From the President Olusegun Obasanjo regime till date, nothing has happened. How rational is it then to contend that there are no resources to meet the obligations created under the fundamental objectives? Civil and political rights are captured largely in Chapter IV of the same Nigerian Constitution and includes: right to life; right to dignity of human person; right to personal liberty; right to fair hearing; right to private and family life; right to freedom of thought, conscience and religion; right to freedom of expression at the press; right to peaceful assembly and association; right to freedom of movement; right to freedom from discrimination; right to acquire and own immovable property anywhere in Nigeria.

Except where the law permits derogation from these latter rights, they are enforceable in any court of law in Nigeria. The question that may be asked, therefore, is, Why the segregation between the two sets of obligations?

As often advocated internationally, the two sets of rights are indivisible, interrelated and interdependent.

There is hardly any way you can enforce one without the other. A good illustration is the right to life which is enforceable while the right to food or water is not enforceable.

Can a man survive without food and water? Here lies the incongruity in the provisions. Another example is the right to privacy which is enforceable.

Can this exist without provision of shelter? We can continue to replicate this to demonstrate the interconnectivity of both obligations, which inevitably ought to render both sets of rights enforceable.

This then lends credence to the agitation and struggle for the recognition of those obligations under the fundamental principles as enforceable rights. Is there any need creating a thing but not to benefit the people?

It is just like holding food before a hungry man and telling him the purpose is for him to know and appreciate the value of food but he is not entitled to consume it notwithstanding the state of his hunger.

Creating lofty goals in a constitution which no governmental apparatus has an obligation to fulfil does not present society as being sane.

This brings me to the crux of this engagement which is the pragmatic ways of recognizing and enforcing these obligations created under the fundamental objectives contained in Chapter II of the Constitution.

Historically, the challenge with the enforcement of these obligations used to be the standing to sue, meaning the right to approach the court to seek remedy in respect of the obligations created under the fundamental objectives. One can refer to the case of Badejo v. Federal Minister of Education [1990] 4 NWLR (Pt. 143) p. 254 as decided by the Court of Appeal and the same case as reported in [1996] 8 NWLR (Pt. 464) p. 15 as decided by the Supreme Court in which right to education could not be enforced notwithstanding that the complainant in that case may have a grievance.

However, progressively this is being relaxed, recognized and expanded. Courts are gradually recognizing the right to litigate in respect of the provisions under Chapter II with the progressive relaxation of the rule of locus standi.

Following progressive decisions of foreign courts, particularly India, in the treatment of locus standi, has assisted our courts tremendously. There are now authorities for this proposition locally which I do not intend to bore you with. Hence, the major hurdle is being progressively crossed.

Become a partner with USA companies, promote their offers and get paid in US Dollars weekly, Nigerians are earning about $465 weekly. Click here to see how you too can get paid .

Therefore, as a citizen, the fear of being queried as to your business in court is being allayed and the tendency that you can be regarded as a meddlesome interloper is gradually diminishing. The remnant is therefore the culpability of the state in the event of the breach of the obligations created under the chapter. As hinted earlier, the misconception has been that a citizen cannot initiate a claim under the fundamental objectives due to the unjusticiable nature. This is the indoctrination fed to the citizens even lawyers, as law students, during constitutional law classes as undergraduates, and in which comfortable number of lawyers grew up to imbibe.

Thus, this explains the passive nature of most lawyers and citizens in matters that bother on the obligations created under the fundamental objectives. So, the preliminary solution to the justiciability of those obligations is the recognition of the need to purge the citizens of this misgiving. We all need to certainly unlearn this aspect of our knowledge. The route is basically through education and enlightenment of the citizens, particularly the lawyers who are required to be innovative in finding solutions where seem to be impossible or unavailable. This is where the media as an institution comes in. The good news is that this obligation of the media is equally recognized under the fundamental objectives. The media is expected not only to engage in the enlightenment of the citizens on the imports of the fundamental objectives but to hold the State accountable to the obligations created therein. Consequently, men of the fourth estate of the realm must therefore wake up to this responsibility and discharge same accordingly. Once this perception of non-justiciability is erased, a milestone would have been achieved.

Again, pending the amendment of the proviso to the said Section 6 of the Constitution that is the impediment to the realization of the fundamental objectives, several devices have come up to navigate the terrain successfully. In other words, there seems to be multiple alternatives employable towards enforcing the provisions and making them justiciable. At the said town hall meeting alluded to earlier, several of such options were interrogated. My intention is to analyse and present the plausible ones for our education and utilization in the realisation of those obligations. The very first way is to adopt the international treaties as the basis of the claims in court.

By virtue of Section 12 of the Constitution, those treaties, upon ratification, form part and parcel of Nigerian laws and, hence, claims can be brought under them. In fact, most of the obligations created under the fundamental objectives in our Constitution are recognized as fundamental human rights that are enforceable under the treaties. An apt example is the African Charter of Human and Peoples Rights, which is part of the Nigerian law now by virtue of the Ratification and Enforcement Act passed pursuant thereto and as further recognized by the apex court in Nigeria.

The mode of presentation of claims also matters in the navigation of these murky terrain. Litigants, particularly as represented by lawyers, must couch their claims in a manner devoid of challenging the provisions but proceed by way of seeking remedy.

The principle of law remains where there is a wrong, there is always a remedy. As an offshoot to the foregoing, petitions on the obligations could be filed with the National Human Rights Commission, a body which is under obligation to enforce all human rights legislations, both local and international. The Commission, unlike the courts, is under obligation to entertain all complaints on both the violation of the civil and political rights as well as that of social and economic rights. Furthermore, actions could be commenced via the instrumentality of the Fundamental Human Rights Enforcement Procedure Rules.

International Human Rights Courts such as the Economic Community of West African States Courts (ECOWAS) could be approached. However, approaching the international courts, at times, requires exhaustion of domestic remedies under the principle otherwise known as “margin of appreciation”. The good news is that Nigerians are already exploring the avenue and patronizing the ECOWAS Court regularly with a body of jurisprudence developing fast from that court. These international Courts recognize those obligations as socio-economic rights that are enforceable. It has also been suggested that the exploration of the various treaties under the International Labour Organization is a potent tool. Another basis upon which action could be founded is contained in Scheduled 2, Item 60 on the Exclusive Legislative List through which the establishment of and regulation of authorities to promote and enforce the observance of the fundamental objectives is provided for.

This has been variously done as in the establishment of the Universal Basic Education Board, the creation of the Economic and Financial Crimes Commission and the Independent Corrupt Practices Commission. The way to then actualize an obligation under the Chapter II provisions, at least at the federal level, is to sue for the establishment of such authority geared towards the realization of the fundamental objectives. An Act of the National Assembly often serves this purpose and this is where the National Assembly can equally discharge their duty. The legislators can sponsor bills towards setting up relevant authorities for the purpose of realizing the obligations. As contained in the introductory remarks, the obligation to observe, conform to and apply the fundamental objectives equally devolves on the judiciary.

It is in this regard that the aggregation of opinion will seem to be that the judiciary needs to be proactive and liberal in the determination of cases brought under the fundamental objectives. This is expected to be through judicial activism. Even in the construction of the inhibiting provision, liberal construction is expected to be applied, considering mainly the philosophy behind the fundamental objectives. Although there has been some progress made in this regard, a lot still desires to be done. A perfect example in this regard lies in the interpretation of similar provisions in countries such as South Africa and India. European Courts’ decisions are no exception to this. At all times, it is expected that the judiciary will further this objective in its decisions.

As for the legislature, our expectation, which is already dimmed, is that Section 6 (6) c that is the source of the impairment of the efficacy of the fundamental principles ought to be deleted from the Constitution. Since the National Assembly has failed in this present exercise, the expectation will be that in the nearest future, the deletion of that proviso be made in order to elevate the fundamental objectives provisions into rights that are capable of enforcement like the counterparts elsewhere. Finally, several obligations are foisted on the citizens too, for example, tax payment but which are more honoured in the breach than observance. This is not unexpected as the State itself is failing in its own. All one can then urge is that the citizens should wake up to participate actively in the election of credible leaders that will uphold the fundamental objectives. With responsible leadership, the various constraints might even become nugatory as the compelling need to observe, conform to and apply the objectives will not require any form of judicial coercion or intervention. Now is the time for the electorate to act!