COMPARATIVE ANALYSIS OF JUSTIFIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA

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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. 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 dissertation will be making comparative analysis of two legal systems comprising India and Nigeria as common law countries and as an emerging economy, although India is well ahead of Nigeria right now and both countries’ Constitutions made socio-economic rights Directive Principle of State Policy (DPSP). The study enunciates the definition and historical development of human rights from the inception of UN and delves into the challenges in the two countries chosen as samples of the research, and considers the virile attitude of India’s judicial authority towards a liberal interpretation of socio- economic rights and juxtaposes it with Nigeria’s dismal and reluctant attitude towards implementation and enforcement of ESC rights. 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

General Introduction

1.0  Background

The debate about the justifiability 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 justifiability of economic and social rights are generally ill-conceived and run contrary to experience.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