COMPARATIVE ANALYSIS OF JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA
CHAPTER ONE
GENERAL 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.
To the contrary, the ways in which civil and political rights and socio-economic rights are inter-twined and interact with one another make it impossible to declare the latter category non-justiciable without undermining protections of both categories of rights. These rights, otherwise called second generation rights are bedeviled often by the absence of legal framework to implement the provisions in the international covenants and national constitutions. Apart from the legal framework, there appears the negating influence by the international formulators of those rights where the extent of enjoyment of those rights, is dependent on resource availability. Little wonder therefore, that many national constitutions have the provision made almost nebulous as to grant them the backing of a legal redress much as often as enjoyed by the first generation rights, comprising civil and political rights. The attempt is to make economic, social and cultural rights a lame provision in many national constitutions of government, much as political party manifestoes.
However, evidence demonstrates that in recent years, an increasing number of countries have included economic and social rights in their constitutions. In addition, some domestic courts and regional bodies routinely adjudicate and rule upon socioeconomic rights claims. For example, economic and social rights are litigated directly and indirectly before regional bodies, including the African Commission of Human Rights, the inter-American Court of Human Rights, European Committee of Social Rights, the European Court of Human Rights, the African Court of Human Rights and other
international bodies.
1.2. Statement of the Problem
Three important factors impede effective promotion and protection of economic and social rights in most domestic jurisdictions, in particular, common law jurisdictions such as Nigeria. The first, arising from the classification of rights in international law into 3 generations, is the wide conception that economic and social rights, unlike civil and political rights are not justiciable. Closely following this reasoning is yet a wider conception that the provisions of ‘Fundamental Objectives and Directive Principles of State Policy’ contained in Chapter II of the 1999
Constitution of Nigeria are economic and social rights provisions and therefore, are by section 6(6)(c) of the said Constitution, non-justiciable. The third factor is the provision of the very international treaty that codified economic and social rights (the International Covenant on Economic, Social and Cultural Rights) to the effect that economic and social rights should be realized or implemented progressively.
The justification for this is said to be that economic and social rights require financial and material resources and that international law or the municipal legislature would not impose obligations with financial implication on the executive government. Each government should therefore fashion out how it would realize the economic and social rights based on resources available to it.8 It is worthy of note here that not all economic and social rights require resources for instance: labour rights, rights to free economic activity, and so on.