Critique of socio-economic rights provisions under chapter two of the Nigerian Constitution and their justiciability

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. The unfortunate wanton abuse and violation of human rights at the domestic level by governments of the state parties were not addressed, as such issues are the remit of nationals; until it culminated to genocide, crimes against humanity, crimes against peace and war crimes which received an international attention at Nuremberg and Tokyo trials of the Nazis war generals and the subsequent punishment of the defeated countries' officials. From this point, individuals became subject of international law with the subsequent declaration of human rights in 1948. Charged with the peace and security; promotion of human dignity and economic wellbeing of the world, the UN established Economic and Social Council [(ECOSOC) in article 7 of UN Charter 1945] with the responsibility to initiate studies and to report on international level socioeconomic matters. Invariably, article 68 of UN Charter empowered The Council to set up commissions for promotion of human rights. Subsequently, Human Rights Commission (HRC) was established and headed for the first time by Ms. Elizabeth Roosevelt (the wife of then president Franklin Roosevelt of America). The Commission prepared the Universal Declaration of Human Rights (Universal Declaration or UDHR), 10 December 1948 which was a declaratory standard of human rights promotion and protection expected of the state parties and not legal binding document. An international legal binding instrument was sought for; in 1966, HRC created International Covenant on Economic, Social, and Cultural Rights (CESCR) with the twin document, International Covenant on Civil and Political Rights (CCPR) which form the International Bill of Rights together with Universal Declaration. 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 socioeconomic rights and juxtaposes it with Nigeria's dismal and reluctant attitude towards implementation and enforcement of ESC rights. The work proceeded to prove that socioeconomic 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