The non-justiciability of The 1999 Nigerian constitution: a cause of maladministration in Nigeria

 The non-justiciability of The 1999 Nigerian constitution: a cause of maladministration in Nigeria

AKILU SAADU

Ahmadu Bello University Zaria

Nigeria is govern by many laws, including international laws or treaties but of all these laws ,the constitution is the  sole supreme law of the land . It is provision supersedes any other laws and is binding on every person, institution and authority within Nigeria. (See generally section 1 of the constitution). 

In today's world, since after second world war,the issue of human rights has been the central theme of discussion among national and  international government. Nigeria been a member of so many of these international bodies is not left behind in enacting similar laws in order to safeguard its citizenry from dehumanisation, abuse, and torture and to promote the humanely survival of Nigerian in dignity, respect and free from any maltreatment or violence.

Thus, under the 1999 constitution  like it's predecessors, there are two Chapters in the 1999 Constitution of Nigeria dedicated to human rights . These two chapters are: Chapter II and Chapter IV of the 1999 constitution. While the former is unenforceable and non-justiciable , the latter is justiciable and enforceable in the event of non-compliance, flagrant abuse or violence.  

Under chapter II of Nigerian constitution, these chapter is titled : fundamental objectives and Directives principles for state  policy. In other words it contains the Socio-economic and cultural rights of Nigerians. Socioeconomic right are those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing.  Socio-economic rights aim to ensure that everyone has access to resources, opportunities and services essential for an adequate and standard of living . Where as chapter IV provides for fundamental human rights which are called :civil and political rights. These rights are enforceable by virtue of the provision of section 45 of the constitution.

Undoubtedly, the provision under constitution is not strange or inconsistent with what obtains at the international level. For instance, the Universal Declaration on Human Rights (UDHR) recognizes the two sets of human rights.In the hierarchy of human rights, civil and political right have taken primacy being referred to as the “first generation rights” and the economic, social and cultural rights constitute the class of rights called the second generation rights.

These two chapters shade the lives and the future of the poor Nigerians. However, only rights under chapter IV can be claimed and enforced. Hence, the concerns of this writing is to discuss on the non-justiciability of chapter II as the cause of epileptic  economic development, the thrive of corruption and and general maladministration in Nigeria.

These fundamental principles as captured in chapter II were first in the Nigeria history provided in the 1979 Constitution. During the drafting of the 1979 constitution, the Constitution Drafting Committee (CDC) in its report defined the Fundamental Objectives and Directive Principles a"By fundamental objectives we refer to the identification of the ultimate objectives of the Nation whilst Directive Principles of State Policy indicates the paths which lead to these objectives. Fundamental Objectives are ideals towards which the nation is expected to strive whilst Directive Principles lay down the policies which are expected to be pursued in the efforts of the nation to realize the national ideals." A clear and meticulous perusal of section 13 of constitution will reveal the intention of the chapter and why the Constitutional draftsmen defined the fundamental objectives and directives principles as above. 

However as beautiful and useful the provisions may look to the reader the provision betrayed those that are defining or defined constitution as "organic law of the land". For section 6(6)(C) made the provision mere decoration and addditional of pages in the constitution.Or as put forward by  Stephen peter Okongala: It is a Greek gift  ( a gift given or favour done with a treacherous purpose. Similarly, the Collins Dictionary defines Greek gift as a gift given with the intention of tricking and causing harm to the recipient). Deceitfully , section 6 (6) (c) also contain an ouster clause which completely deny our Courts the requisite jurisdiction to entertain issues emanating from chapter II of the Constitution. Implicatively, this means all the rights enshrined in Chapter II cannot be challenged, Government cannot also be hold accountable for blatantly neglecting the Provisions of the chapter neither could they be call to order or  respect of provisions in the chapter.

This is indeed painful, retrogressive, challenging and cannot in any way foster economic growth nor effectively tackle the upsurge of insecurity and poverty in the country. Government gave us chapter II with a right hand and took it with a left hand by virtue of section 6 (6) (c) of the Constitution. . They only deluded Nigerians and left them to wallow in a penurious condition, precarious state  ; it is a constitutional deception made by constitutional draftsmen in order to let grunting people off the government neck.

Subsequently, of what significance will the entrenchment of the chapter be to dismayed and disgruntled Nigerians? That section 15(5) of the constitution provides that: the state shall abolish all corrupt practices and abuse of power . But ,despite these we counts many leaders with a horrid skeleton on their cupboards. However, nothing can a poor person does. He was allowed to be ruled by pilferer and Marauders. From 1979 to date how much has been unselflessly embezzled by the government officials and how much has been borrowed to invest in their pilfering marathon?

Section 16(2)(d) states that: government should directs its policies toward ensuring " suitable and adequate shelter, suitable and adequate food, reasonable national.minimum living wage , old age care and pensions, and unemployment, sick benefits and welfare of the disabled..." . This section embodies the focal area of Nigerians' problem today. Despite this provision under the constitution , the same constitution oust jurisdiction of the court to enquire on the non-performance of the government based on the chapter II. 

In Nigeria today, its beyond disputation that people are enjoying the painful beating of hunger and enduring the irrevengeable lashes of unemployment and economic constraints. But still you can not take government to court for it's failure to fulfill what it takes vow to observe and what Constitution mandate her to provides for the public by virtues of section 13 of the constitution. This is disheartening. How many people are living under the canopy of tree — without shelter ? What government does to assuage this deplored situation. Giving apology, right? The constitution justified the enforceability of right to life but , blatantly disregard right to food as an essential indispensable part of right to life, hence the need for it's justiciability before the courts. How many people died because of excruciating hunger in Nigeria?  Because of the elites-centric and unscrupulous policies of the government that push many people into the gutter of penury ? Many impoverished kids on our streets ,yet one can not approach court for redress . A real Greek gift, rights!!

How many old persons whom faithfully worked for the country are denied a stipend for the appreciation of their service ? But a man on the throne can divert billions for his family and self -benefits. The policies of Nigerian government are elites -centred not masses-centred. 

Similarly, section 18 exhortt government to ensure adequate and equal educational opportunities among Nigerians. Unhappily how many are giving the opportunity ? How many children are in rural areas without an education and how government treats unfairly public schools ? If government can be sued for not providing educational opportunities like in India, I think the issue of STRIKE would have been swept into the pool of  history . Any country that has its people educationally demotivated and undeveloped, that country is at the verge of failure. No science will change the dark fate of the country save investing in education. As sagaciously put by Malala YousufZhai, "... education is the only solution" to all the word's anomalies.

More recent is the flood in Borno state. It is under the constitution ,section 20 that government "shall protect and improve the environment and safeguard water, air and forest ..." Looking at the natural but avoidable disaster that recently pervaded Borno state is a testament to the fact that government is irresponsible, inactive and un- foresighted . Puting preventive measures for the Protection of environment from natural mishap is constitutional but , regrettably non-justiciable . Had it been government acted , the innocent lives of inestimable people would have been rescued. The shelter of victims would not have been destroyed; it would have save the businesses of poor men and women in markets. 

Constitution says one has "dignity of his human person" but striped him the power to enforce the inaction of government to provide him with employment. Where there is  unemployment , famish, poverty flourish creating a sweltering heat in the environment. 

In Nigeria the degree of unemployment is alarming and is daily increasing due to government unwillingness to take up its responsibilities and adhere to the objectives of its establishment . Government has failed because no one can take her to court and challenge why he was not employed after graduating from University or any established institution.

More over, the court which has been for ages recognized as the " last hope of common man" is now hopeless because of ouster clause against it's interpretational power .  Sixty four years now since independence of great Nigeria but  still there is no good things to tell apart from corruption, insecurity and the widening gap between elites and electorates. Nigeria needs to survive and retract it's step back to the first republic spot where it  was vowed that a  promised land will be born in 2020 . 

The vision that is stillborn because of selfish,bad governance and the inability of electorates to take their leaders to court over the  non-fulfilment of the beauteous provisions under chapter II of the constitution. Where is the hospitals to cure for our ailments? How many neurological wreckage cause by mosquitoes in Nigeria ? Does health provision  not a right that supposed to be enforced by the courts?. 

Arguably, same constitution  and other extant laws prohibit or made unlawful to commit suicide and euthanasia. But failed to make lawful and justiciable for a person to take government to court when he was denied access to quality healthcare. 

In as much as constitution as judicially acknowledged in the case of FRN v Osahon (2006)10 NWLR(pt 624)," is the embodiment of what people desire to be their guiding light", the chapter II of the 1999 constitution would  not be left insignificant on a piece of paper; the provision has to be ratified to meet the yearnings and aspiration of citizens. Else, government will keep becoming more unheeding, inattentive to the plights of the people and will continue to exploit the benefits of this section 6(6)(C) in order to shield their inaction, inattentiveness, and bad governance.

As opined by Olusegun Osoba in his minimum agenda for change: "in a new constitutional order, the fundamental rights and duties of citizens and the directives principles of state policies imposed on government MUST (emphasis mine) be fully justiciable in law, as this is the only way in which a citizens can hold their government to account when they fail their duties, assumed under oath,to their people.this will obviate the situation in which high government officials fail to provide for basic health facilities for their people , ostensibly lack of funds,but are able to find funds to treat themselves  abroad; or situations in which legislators and ministers take many millions of naira home every week ,but their governments are unable to pay worker's minimum wage of 18,000.00 naira a month " 

As dysfunctional or crippled as Nigeria will look , If  the legislators will take bold action and make this provisions justiciable just like in India and South Africa , the level of corruption which is the bane in the bone of Nigeria , will deplete, and Nigeria can rejuvenate economically, and politically.