PROCEEDINGS OF THE 32ND ANNUAL CONFERENCE OF THE NIGERIAN
ASSOCIATION OF LAW TEACHERS
at the
NIGERIAN INSTITUTE OF ADVANCED LEGAL STUDIES University of Lagos Campus,
Lagos.
10 - 13 May, 1994
Theme:
LAW AND THE NIGERIAN POLITY
Table of Contents
Part I:
Addresses
We!come Address by the President, Nigerian Association of Law Teachers, Prof. M. A.
Ajomo, Director-General,
Nigerian Institute of Advanced Legal Studies ....................................................iii"
Chairman's Address - The Chief Justice of Nigeria,
Hon. Justice Mohammed Bello, GCON......................................................... vii
Keynote Address - Hon. Attorney-General of the Federation and
Minister of Justice, Dr. Olu Onagoruwa ........................................................... ix
Part II: Crisis in the Financial Sector: Legal Perspectives, Lanre Fagboghun,
Lagos State University .......................... .., ..."...........,. ... ..,............, ,... ,.... ,.. 1
Dynamics of Social and Economic Rights in Nigeria - M.I. Said,
I. Saka Ismael, M. Rufai
Usman Dan Fodio
University, Sokoto ................................................... , ............... , ....., ..... ... ...., 19
Dynamics of Social and Economic Rights in Nigeria II, J.N. Aduba,
D.C.J. Dakas and O. Gye Wadeo, University of Jos, Jos ...............................29
The Military and Constitutionalism, A. A. Borokini,
Ondo State University, Ado-Ekiti ......................................................................45
Politics of the Nigerian Judiciary, Ademola O. Popoola,
Obafemi Awolowo University, He-Ife ................................................................56
Regulation and Deregulation: Which Way Nigeria? Olawale Ajai and Bolaji
Owasanoye, Nigerian Institute of Advanced Legal Studies... 88
Part III
Minutes of32nd Annual General Meeting and text of Cornrnunique110
Constitution of the Nigerian Association of Law Teachers .............................123
DYNAMIC OF SOCIAL AND ECONOMIC RIGHTS IN NIGERIA"
By
M.L Said, 1. Saka Ismael, M. Rufai
(Usman Danfodio University, Sokoto)
Introduction
This paper to discusses the dynamic of social and economic rights in Nigeria .the
relevance of this paper will be seen in the light of the fact that in any given society there
are supposed to be duti~S and obligations imposed on the subjects in order to ensure
effective, proper control and implementation of policies for happiness and good
governance. Correspondingly, the state owes its subjects a duty to guarantee for them
such things as are necessarily imperative for human existence and to also ensure and
guarantee them the basic things needed to make their lives comfortable, if only a virile
and decent society should exist.
It is also the aim of this paper to make a close survey of the Nigerian situation
while analysing the concept of right within the spheres of social and economic
constituencies, to see what are these right and whether or not they have been
protected especially in view of the re-current changes taking place within the political
atmosphere of this great nation.
Concept of Right
By the term right, here one has in mind "an interest recognised and protected by the
law, respect for which is a duty, and disregard of which is wrong."l Right could be
moral (natural) or legal, and so governed by distinct set of rules and regulations.
Within these broad decisions of right emerge various rights such as political rights,
economic right, social rights, civil rights etc. Therefore, though the topic envisages
only social and economic rights, others, as a matter of necessity would be touched
upon. This is because all the rights overlap, and so one may not really exist in
isolation of other rights.
The term right in sometimes confused as being synonym to other like terms such
as privilege. While right pre-supposes an imposed duty or obligation the disregard of
which may give rise to a legal wrong punishable and or enforceable by action,
privilege on the other hand pre-supposes ability to do certain things the breach of
which may not give rise to enforceability through legal action.
Right therefore on another premise suggests a just claim. Hence, when someone
is said to be in possession of right, he is acknowledged to be entitled to a just claim
under the law.
Man by virtue of his creation and his being human, is entitled to rights equivalent to
rights of other men. Therefore, these rights are universal in nature.
1. P.J. Fitzgerald, Salmond on Jurisprudence, p. 219.
For without these rights in a broadest sense, man is only reduced to the position of "
slave to his society. These rights are therefore innate: they are inherent in man by virtue
of his being a social animal.
Rights however are not a new phenomenon. Accordhg tC' ~hilosophers of the
olden days like Thomas Paine, John Locke, Baron de Montesquieu to mention a few
"every individual within a society possesses certain rights which are inherent and
which cannot be wantonly taken away and for which man is beholden to no human
authority. That the major reason for individuals coming together to form a government
is to enable these right to be protected and fostered. Social contract to which is
traceable the origin of society itself is based on the concept of natural law to the
effect that certain principles of justice are natural, that is rational and unalterable and
that the rights coffered by natural law are something to which every human being is
entitled by virtue of the fact of being human and rational.,,2
Brief Historical Antecedents of Right in Nigeria
The clamour for human rights observes one scholar, dates back to the period before
independence. In 1948, the United Nations Declaration for Human Rights was
adopted by the United Nations General Assembly which set a standard as to the
moral standard for people of all races and beliefs all over the world... Hence it has
been noted that the constitutional guarantees of freedom were first adopted in Nigeria
in 1959 due to the recommendation of the Willink Commission on minorities.
The assertion above is not suggestive of the fact that human rights did not exist in
Nigeria before this time, rather it is suggested that it was the first attempt to put into
writing the concept of fundamental rights by the colonialist in Nigeria.
The Nigeria 1960 independence and subsequent constitutions have all made
similar provisions in respect of fundamental rights. The provisions have remained
virtually the same in substance except for minor deviations?
Social and Economic rights in Nigeria are mostly governed by the provisions of the
Constitutions under chapters II and chapter IV of the 1979 and 1989 Constitutions.
The previous constitutions were however silent on these aspects.
The rationale for incorporating chapter II into 1979 and 1989 Constitutions had
been succinctly emphasised in the report of Constitution Drafting Committee (CDC)
thus
"Government in developing countries have tended to be pre-occupied with
power and its material pre-requisite with scant regard for political ideas as to
how society can be organised and ruled to the best advantage
of all."
2. Individual rights under the 1989 Constitution. p. 1 Edited by M.A Ajomo & Bolaji
Owasanoye. 3. Foreg. The right against "inhuman treatment" in 1960 and 1963
Constitutions has been changed to
read "Right to Dignity of human person" in the 1979 and 1989 Constitutions.
This rationale is of special relevance to the Nigeria policy whose cardinal '. features are
"heterogeneity of the society, the increasing gap between rich and poor, the glowing
cleavage between the social grouping all of which combined to confuse the nation and
bedevil the march to orderly progress.,,4
With the inclusion of the fundamental objectives in the constitution, they (FO) appear
less of a political slogan, investing them with the quality of constitutionally albeit nonjustiable norm and thereby making it easier for political leaders, and all public
functionaries to establish and show the desired identification with them.
For the purpose of this paper, social and economic rights may include: the right to work,
the right to just conditions of work, the right to fair renumeration, the right to an
adequate standard of living, the right to organise, form and join trade unions, the right to
collective bargaining, the right to equal pay for equal work, the right to social security,
the right to property, the right to education, the right to enjoy the benefit of scientific
progress.5
Social Rights
In Nigeria, a cosmetic attempt has been made in both the 1979 and 1989
Constitutions by entrenching certain social and economic right of the citizens in form
of social and economic objectives. Though the provisions of chapters II of the 1979
and 1989 Constitutions are in pari material, the 1989 constitution has additional
provisions but it is still not safe to rely on 1989 constitution for this paper. This is
because the latter was never allowed to breath the air of life as a result of acts of
selfishness, greed and self-aggrandizement of our political elites whose conducts
invite power-thirsty military officers to interfere with the country's smooth political
process. (See A-G Anambra State and Ors. v. Federal A-G and Ors. where the
Supreme Court held that it lacks constitutional original jurisdiction to entertain the
claims of the plaintiffs which they seek to invoke (the original jurisdiction of Supreme
Court) since the 1989 Constitution is not enforce.) To really appreciate these right, a
resort to chapter II and chapter IV of the 1979 Constitution will be material here.
Under chapter II the Constitution that and declares the state social order is founded
on ideals of freedom, equality and justice and in furtherance of the social order, the
state shall guarantee to every citizen equal rights, obligations and opportunities
before the law.7 The state is also enjoined to ensure equality of rights to all citizens,
maintain the sanctity and dignity of human person, not to be exploitative and above
all to secure and provide
4. CDC Report Vol. 1 p. 5.
5. O.c. Eze: Human Rights in Africa (Some Selected
Problems) pp. 5-6.
6. (1993) 7 S.C.N.J. (Park II) 247.
7. S.17(1) 1979 Constitution.
for easy accessibility to the courts while maintaining their integrity and. impartiality.S "
Furthermore a duty is imposed on the state to direct its policies towards ensuring that:
(a) All citizen without discrimination on any ground whatsoever have opportunities
to
secure adequate means of livelihood as well as adequate opportunities to secure
suitable employment.9
(b) Conditions of work are just and humane and that there are adequate facilities for
leisure and for social, religious and cultural life. 10
(c) The health, safety and welfare of all ~erson in employment are safeguarded and not
endangered or abused.
(d) There are adequate medical and health care facilities for all persons. 12
(e) There is equal pay for equal work without discrimination on account of sex,
any other ground whatsoeveL13
or
on
(f) Children, young persons and the aged are protected against any exploitation
whatsoever, and against moral and material neglect,14 and
(g) Provision is made for public assistance in deserving cases or other conditions of
need. 15
And under chapter IV of the 1979 Constitution the rights stipulated therein
included right to fair hearing, right to freedom of thought, conscience and Religion, right
to freedom of expression and the press, right to peaceful assembly and association,
right to freedom of movement and right to freedom from discrimination.
Economic Rights
Ideally, the state exist for the general welfare of the people. Therefore, all its
economic policies must be premised on this basic facts. And because it controls and
manages the key sectors of the economy, this maximum welfare of the citizenry must
always be reflected in its policies.
Distribution of resources should be on equal basis amongst the component tribes
of the state. Similarly, as a matter of necessity, essential means of production must be
spread evenly among the citizenry. Individual participation in the growth
8. S.17(2).
9. S.17(3)(a). 10. S.
17(3)(b).
11. S.17(3)(c). 12.
S.17(3)(d).
13.
S.17(3)(e).
14.
S.17(3)(f).
15.
S.17(3)(g).
of the economy should be encouraged. Each citizen should have right to engage in
any lawful economic activity of his choice without any hinderance. Private ownership
should be protected but however not policies that allow means of production and
wealth to be concentrated in the hands of few individuals.
In return for being loyal to the state, citizens should be guaranteed right of
protection of their lives and their properties by the state. They should be guaranteed
basic things needed for a minimum standard of living namely, health, food, shelter,
clothing and other basic necessities of life. With these goals in mind, the Constitution
Drafting Committee incorporated some provisions into the 1979 Constitution that
empowers the state to "manage and control the national economy in such a manner as
to secure maximum welfare, freedom and happiness
of every Nigerian citizen, on the basis of social justice and equality of status and
opportunity. 16 And to protect the right of every citizen to engage in any economic
activities outside the major sectors of the economy. 17
A duty is also imposed on the state to direct its policies towards ensuring that
the material resources of the community are harnessed and distributed equitably
and judiciously to serve the common good of all the people.I8 Policies shall also not
be directed in such a manner as to permit the concentration of wealth or means of
production and exchange in the hands of few individuals or group of individuals. 19
Furthermore, the state has inherent duty to provide "Suitable and adequate
shelter, food, water supply reasonable national minimum wage, old age care and
pensions, unemployment and sick benefit and welfare for all the disabled are
provided for all citizens.,,20
Except for the rights under chapter IV where one can take legal action wherever
violated, the right under sections 16 and 17 are not justiciable in courts. In fact the
constitution itself has ousted the jurisdiction of courts to review cases of breach of
right under chapter II except as otherwise provided by the Constitution.
Section 6(6)(c) of the Constitution is to the effect that "the judicial powers invested
in accordance with the foregoing provisions of this section shall not, except as
otherwise provided by this Constitution extend to any act or omission by any
authority or person or as to whether any law or any judicial decision is in conformity
with the fundamental objectives."
16.
S.16(1)(a).
17.
S,16(1)(b)(c).
18.
S.16(2)(b). 19. S.16(2)( c).
20. S. 16(2)( d).
The courts have obediently followed this provision and so come to the ,
conclusion that the obJectives are no more than ideals towards which the nation
was expected to aim at. 1
Thus in the case of Badejo v. Federal Ministry of Education22 the
applicant/appellant, suing through the next friend, brought an application under the
fundamental right enforcement procedure rules (1979) on 29 September, 1988. She
had by the discriminatory conduct of the respondents been deprived of her right and
chance to be considered for admission into Federal Governments Colleges by the
acts of exclusion from the interview on the ground of her state of origin while others
who are less qualified were invited for interview and were considered on the ground
of their state of origin. Her application was dismissed by Hon. Justice Akinloye of the
Lagos High Court. On appeal to the Court of Appeal, the appeal was allowed and at
the same time the action was struck out.
Also in respect of equality of rights, obligations and opportunities before the law
the case of Chief Gani Fawehinmi v. Col. HaliluAkilu & Anor.23 is helpful.
Non-Justiciability and Nigerian Courts
Though, there are a handful of cases that succeed such as Shugaba v. Ministry of
Internal Affairs.24 However, with the greatest respect to our courts, it has been a
common attitude of Nigerian courts in cases touching on enforcement of social or
economic rights to dismiss or strike them out on ground of non-justiciability or that
the applicant/litigants lacks locus standi. As a result of this, most unconstitutional
governmental acts go unchallenged because of absence of a conventional plaintiff.
It is however to be noted that, the fact that these fundamental objectives are not
justiciable does not mean that the courts should adopt a lukewarm attitude when
interpreting constitutional provisions in respect of these rights. These objectives and
directives should affect the thinking of judges as to whether or not a particular
constitutional provision ought to or is capable of being interpreted differently.
Like the Indian Courts, it is high time Nigerian courts started adopting judicial
activism in the process of interpretation. These methods adopted by the Indian
courts have the effect of converting some of these rights into justiciable ones. In any
civilised society it is the duty of the courts to interpret the constitutional provisions
liberally in order to give effect to the provisions which are likely to foster social and
economic rights and liberties of the subjects.
It is the considered opinion of the writers of this paper that issues of such
magnitude as fundamental objectives should have been made justiciable because
21. Okogie & Ors. v. A-G of Lagos State (1981) 1 NCLR 218.
22. (1990) 4 NWLR (Part 143) 354. 23.
(1990) 10 Sc. 1.
24. (1981) NCLR. H 59.
"their importance as a conceptual framework on which the specific, detailed' provisions
of the constitution are premised has already been highlighted. They are the beacon to
guide the government in steering the ship of state. Could it then be that they represent
such vital interest generally of a politico-economic nature, that their cognisance by the
courts in forbidden. To say that they are not justiciable or non-enforceable merely
reduces them to empty platitudes and hollow admonition which should have no place in
the constitution which is basically a legal document whose provisions must ipso facto he
justiciable and legally enforceable."
Recently however, Nigerian Courts have started adopting a more liberal approach in
interpreting constitutional provision in Archbishop Okogie's25 case where the Court of
Appeal applying section 36 of the Constitution, upheld the rights of private citizens to
run private schools in Lagos and the condemnation of the Lagos State Government
policy to abolish private schools. Nasir, PCA followed and approved the Indian Supreme
Court in State af Madras v. Champakan26 where it was said "The Chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or
Executive act or order except to the extent provided in the apRropriate Article.
In the case of Adewale v. Jakande27 the court while construing the effect of economic
objectives under section 16 of the Constitution upheld the right of every citizen to
engage in any economic activities outside major sector... and it seems to the courts,
that the running, managing and operation of private schools would be reasonably
construed as being activities concerned directly with the production, distribution and
exchange of wealth and within the scope of "economic activities" referred to in section
16.
Fundamental Rights and the Nigerian Experience
Under this sub-heading, a close and brief look would be given on the responses and
impacts of Nigerian government dating from the time of Second Republic through the
successive military regimes to the present day.
The 1979 Constitution first came into effect in 1979 when the incumbent military regime
relinquished power over to a democratic second republic – headed by Shehu Shagari.
However, due to the developing nature of our society and the political immaturity that
characterised the minds of our political elites coupled with lack of zeal and commitment
to the ideals of social justice, the constitutional provisions under Chapter II and IV
suffered a lot of havoc in the hands of leaders and politicians. There were a lot of cases
involving abuse of liberties and due constitutional processes. The judiciary became
almost akin to a toothless dog that can only bark but cannot bite. Infringement upon
social economic and other
25. Supra.
26. 1951 (SCR) 252.
27. 19811 NCLR, 262.
fundamental right became prevalent. Individual rights could be trampled upon '. over a
minor political squabble.
Corruption deprivation and acts of economic sabotage become so rampant. As a result
of all these social inequalities and abuses economic crunch and indiscipline the military
once again had to seize power from the civilian in December 1983.
With emergence of military and a committed leadership under Buhari and
Idiagbon things began to take shape and issues began to change for the better, like any
other military regime in the world, Buhari's regime occasioned a fundamental
degradation and derailment from the rule of law under the constitution. The constitution
whose provisions are supposed to be supreme over all laws lost its supremacy in favour
of military decrees that have less respect for fundamental rights.
With the promulgation of Decree Nos. 2 and 4 of 1984 whose objectives,
according to the government were to restore land ensure security and complement
governments economic policies were arbitrarily used. The two cases of Tunde
Thompson and Nduka Irabor are at this juncture material.
Courts were substituted with tribunals that were empowered to try persons
accused of causing social political and economic adversity of the nation. These
tribunals were headed by military officers and were not bound by rules and procedure
governing the ordinary courts, rights of appeals from the verdict of these tribunals were
denied. Decrees relating to social and economic activities were promulgated. For
example Decrees No. 11 and 17 of 1984 prescribes death penalty and 21 years
imprisonment for offence relating to counterfeiting of currency, illegal export and import
etc.
The above and many other things coupled with the public outcry prompted selfish
military personnels to stage a palace coup which brought into being the regime of
General Babangida. This regime came under the pretence of upholding the citizens
fundamental human rights and as a result abolished Decree No.4 of 1984, amended
many other decrees and released many detainees. However, no sooner had this
government began to consolidate itself then it began to manifest its clear negative
motives.
Babangida regime has fundamental rights, social justice, economic recovery as
principal considerations underlining its actions. In the aspects of social and economic
justice, Decree NO.7 of 1976 provided for payment of taxes on certain goods and
services by manufacturers and suppliers. The administration also set up such things as
MAMSER, DFRRI, NDE, FEM, SAP, Revenue fiscal commission to mention a few.
With all these policies and objectives, Babangida regime was a total failure due
to lack of sincerity and of low level commitment of those steering the ship of the nation
at the top. Rampant and prevalent cases of abuses of fundamental rights and abuse of
legal due processes were recorded in this regime more than ever
before, death blows were mounted on the democratic and political structures and '.
processes like the cancellation and annulment of August 1992 primaries, June 1993
election, to mention a few, embezzlement, bribery and corruption became
institutionalised. in fact, there was a total breakdown of law and order which also
necessitated the military president to step down reluctantly in August 1993.
The life span of the transitional government was so short that no significant
development happened. It may here be acknowledged that Shonekan's transitional
government though unpopular and weak had tried to bring back things to normalcy.
The present military regime is more or less and offshoot of the former military
regime, their policies, objectives, and method of policy execution and
implementation are essentially the same. The regime may likely not make any
significant impact on the social, political and economic spheres of Nigeria and
Nigerians.
Conclusion
From the foregoing it is clear that in order to be protected, right must be clearly and
emphatically defined in such a way that it imposes an unequivocal obligation on the
state to cater for the social and economic rights of the citizenry. To do anything
short of this would create a vacuum that will afford leaders the
opportunity to exploit their subjects and to also undermine the strong political,
social, cultural, and economic basis of the society.
It is only when duties, obligations and rights are clearly set out in a defined
manner and when pursued vigorously by those steering the mantle of leadership
that the socio-economic structure and all the rights envisaged in the directive
principles and the related section of the fundamental rights of the constitution
would be meaningful.
At this juncture we suggest that first and foremost the relevant section(s) of the
constitution (s.6(6)(c)) should be amended in such a way that the whole of chapter
II of the Constitution shall be justiciable and access to court should be of paramount
importance especially in respect of chapters II and IV. Because these objectives are
so fundamental to national integration, national unity and national stability. If it is the
duty of the state to conform to, to observe and apply fundamental objectives, then
the courts must be competent to declare whether the obligation had been duly
discharged. On this, the reasoning of Eso JSC in A-G of Bendel State v. A-G of the
Federation & Ors.28 where he said of floodgates in constitutional issues if this is
what judicial actives on imports, let there be a floodgate. The constitution can only
be tested in courts and it is access to the courts for such test that will give
satisfaction to the people for whom the Constitution is made."
28. (1981) 10 Sc. 1 at pg. 190-191
Our courts should not only be accessible, they should be bold enough to give '.radical,
active and pragmatic judgment in order to uphold justice as mere accessibility without
some touch of activism boils down to nothing.
The manner of appointment and funding of judiciary and its personnel should be
revisited. Conditions of service of the judges should be improved and courts should be
more equipped to ensure even and speedy dispensation of justice