Third World Approaches to International Law Conference
Capitalism and the Common Good
October 20-22, 2011
Knight Law Center, University of Oregon
TWAIL Working Paper No. 1
2011
1 Can Socioeconomic Rights Make the Nigerian State More Accountable?
Adedokun Ogunfolu
∗
Abstract
The Nigerian economy earned over $300 billion from oil revenues between 1982 and 2007, but
paradoxically, poverty is still the lot of most Nigerians. From 1991 to 2001 70% of Nigerians
lived on less than a dollar a day. The position today remains the same if not worse. Nigeria
ranked 142 in the 2010 Human Development Report with life expectancy at 48.4 years, and
gross national income (GNI) per capita of $2156(PPP2008$). Maternal mortality still ranks
amongst the worst in the world with 1,100 women losing their lives per 100, 000 live births.
Twenty five percent of gross domestic product is regularly lost to corruption. In spite of these
grim figures the Nigerian Constitution classifies socio-economic rights as being non-justiciable,
while civil and political rights are the only guaranteed and justiciable rights. The paper will
attempt to answer the following question: Can justiciable socioeconomic rights make the
Nigerian state more accountable and channel its resources to the efficient provision of
socioeconomic rights to jumpstart Nigeria’s development?
I. Introduction
The
legacy of military dictatorship for twenty eight years out of fifty years of independence
accentuated the creation of an unaccountable Nigerian state.1 The Nigerian economy earned over
$300 billion from oil revenues between 1982 and 2007, but paradoxically, poverty is still the lot
of most Nigerians. From 1991 to 2001 70% of Nigerians lived on less than a dollar a day.2 “The
widespread poverty is perhaps the clearest demonstration of the failure of governance in
Nigeria.”3 The position today remains the same if not worse. Nigeria ranked 142 in the 2010
*Human rights lecturer, Department of Business Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife,
Nigeria.
1
Jega, Attahiru M. ‘The Impact of Military Rule on Governance in Nigeria’, in Jega, Attahiru M; Wakili, Haruna
and Ahmad, Mustapha, (eds.), Democracy and Democratisation in Nigeria: 1999-2001, (Kano: The Centre for
Democratic Research and Training, Mambayya House, 2002), pp.28-45.
2
Human Development Report 2003, (New York: United Nations Development Program, 2003), p. 200
3
Obiagwu, Chinonye and Odinkalu, Chidi Anselm, ‘Nigeria: Combating Legacies of Colonialism and Militarism’,
in An-Na‘im Abdullahi Ahmed, (ed.), Human Rights Under African Constitutions: Realizing the Promise for
Ourselves, (Philadelphia: University of Pennsylvania Press, 2003), pp. 211-250 at p.241. It must noted that this work
is outdated with regard to its aspects on human rights training in Nigeria. Contrary to its claims, human rights have
2 Human Development Report with life expectancy at 48.4 and gross national income (GNI) per
capita of $2156(PPP2008$).4 Maternal mortality still ranks amongst the worst in the world with
1,100 women losing their lives per 100, 000 live births.5
Nigeria has a territorial size of 923,768 square kilometers almost twice the size of the
state of California and a population comprising of over 250 major ethnic nationalities and around
160 million people ,it is the eight most populous country in the world.6This study aims at
transcending the grim figures churned out in the past decade about the precarious nature of daily
life for most Nigerians. Nigeria’s legal regime provides for socioeconomic rights as nonjusticiable fundamental objectives and directive principles of state policy under Chapter two of
the 1999 Constitution of the Federal Republic of Nigeria.
In the SERAP v Nigeria and Universal Basic Education Commission7 decision of
November 2010, the Economic Commission of West African States (ECOWAS) Court of Justice
found Nigeria in violation of Article 17 of the African Child’s Right, Act (a Protocol to the
African Charter on Human and Peoples’ Rights-Banjul Charter-), Section 15 of the Nigerian
2003 Child’s Right Act and Section 2 of the 2004 Compulsory Free and Universal Basic
Education Act. The court then ordered the Nigerian government to make adequate arrangements
for compulsory and free education for every Nigerian child.8 The court dismissed Nigeria’s
objection that education is merely a prerogative of government policy under the non-justiciable
Chapter II provisions of the Constitution of the Federal Republic of Nigeria on Fundamental
Objectives and Directive Principles of State Policy.9
The suit was initiated by the Socio-Economic Rights and Accountability Project
(SERAP). The suit had been triggered by a petition filed by SERAP against the Universal Basic
Education Commission to the Independent Corrupt Practices and Other Related Offences
Commission (ICPC), which led to the recovery of N3.4 Billion Naira of public funds, meant for
been widely taught as a distinct course in some Nigerian Universities and I taught it from 1999 to 2008 at the
Obafemi Awolowo University. See page 40 for the incorrect claim.
4
Human Development Report 2010, (New York: United Nations Development Program, 2010), p.145
5
Ibid. at p. 158.
6
National Planning Commission, Annual Performance of the Nigerian Economy 2010, full text available at:
http://www.npc.gov.ng/vault/ECONOMY.pdf (accessed on 26 October 2011).
7
ECW/CCJ/APP/12/7.
8
ECOWAS Court orders Nigeria to provide free education for every child, Vanguard, Lagos, November 30, 2010,
http://www.vanguardngr.com/2010/11/ecowas-court-orders-nigeria-to-provide-free-education-for-every-child/
(accessed on April, 25, 2011).
9
Id.
3 education lodged in private accounts.10 On April 23, 2011, SERAP through its lawyer Femi
Falana, appealed to the Nigerian government to comply with the decision of the ECOWAS Court
of Justice to stem election violence in Nigeria involving children as actors due to the fact that
twelve million poor Nigerian children are presently without access to formal education.11
Can socioeconomic rights be employed in the transformation of the Nigerian economy
from a primary producer of oil and agricultural products to a developed manufacturing
economy? This research aims at freeing Nigeria from the inefficiencies of its economy caused by
the oil resource curse, and shift emphasis away from the destructive scramble for oil revenues to
the development of the manufacturing and agro-allied sectors, which have the potential of
generating greater income and prosperity for the average Nigerian as well as more tax revenues
than oil for socioeconomic goods.
II. Human Rights
Are human rights universal?12 Human requirements for gainful employment, wholesome
food, mental and physical health, shelter and clothing are natural needs just like breathing
oxygen to survive. The poor, the young, the elderly, physically and mentally challenged
individuals in any given society, are extremely vulnerable in meeting these basic needs. These
are some basic human needs or entitlements that are collectively called socio-economic rights
contained in the International Covenant on Economic, Social and Cultural Rights of 1966 which
came into force in 1976.13 Legislation is one of the means of actualizing these rights.14 It
behooves on the political and socio-economic arrangements in a particular society how these
10
ECOWAS Court orders Nigeria to provide free and compulsory education to every Nigerian child,
http://www.serap-nigeria.org/cover/ecowas-court-orders-nigeria-to-provide-free-and-compulsory-education-toevery-child/ (accessed on April, 25, 2011).
11
Obeying ECOWAS right to education judgment will stem election violence, says SERAP, http://www.serapnigeria.org/cover/obeying-ecowas-right-to-education-judgment-will-end-election-violence-says-serap/ (accessed on
April, 25, 2011).
12
Henrich, Dieter and Pacini, David S. ‘The Contexts of Autonomy: Some Presuppositions of the Comprehensibility
of Human Rights’, Daedalus, Vol. 112, No. 4, (Fall, 1983), pp. 255-277, at pp. 274-275; An-Na’im, Abdullahi A.
and Hammond, Jeffrey, ‘Cultural Transformation and Human Rights in African Societies’, in An-Na’im, Abdullahi
A. (ed.), Cultural Transformation and Human Rights in Africa, (New York: Zed Books Ltd, 2002), pp.13-37.
13
Full text available in Ramcharan, Bertrand, Judicial Protection of Economic, Social and Cultural Rights: Cases
and Materials, (Leiden/Boston: Martinus Nijhoff Publishers, 2005), pp.5-16.
14
Ibid. at p.22.
4 needs are met.15 Political actions empower the judiciary to adjudicate over what some viewed
previously as political matters.16 Are needs necessarily met through rights entitlements?17
Maurice Cranston heads the school of thought that believes civil and political moral liberties are
the real human rights, while socio-economic needs are merely ideals and aspirations.18 For him
classifying socio-economic needs as human rights “is to push all talk of human rights out of clear
realm of the morally compelling into the twilight world of utopian aspiration.”19 In modern
society basic education is required at the minimum to have a functional existence.
African countries have had an ambivalent relationship with human rights in their quest
for socio-economic development.20 The negative effects of colonialism and neo- colonialism
both different hues/shades of globalization greatly influenced the drafting process of an
autochthonous African Charter on Human and Peoples’ Rights.21 Are there other ways of
meeting basic human needs in society besides the rights entitlement path? Nigeria in her 1960
and 1963 Constitutions did not recognize basic needs. But the 1979 and 1999 Constitutions
recognize them as non-justiciable fundamental objectives and directive principles of state policy.
The case of Abraham Adesanya v. President on locus decided in 1981, by the Nigerian Supreme
Court, requires an individual to disclose an interest which is personal before such an individual
15
Reich, Robert B. Supercapitalism: The Transformation of Business, Democracy and Everyday Life, (New York:
Alfred Knopf, 2007), pp. 123-130; Unger, Roberto, False Necessity, (Cambridge: Cambridge University Press,
1987), pp. 508-510; Douzinas, Costas, The End of Human Rights, (Cambridge: Hart Publishing, 2000), p. 7.
16
Vignarajah, Krishanti, ‘The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the
Insular Cases’, The University of Chicago Law Review, Vol. 77, No. 2 (Spring 2010), pp. 781-845.
17
Goldewijk, Berma Klein and Fortman, Bas de Gaay, Where Needs Meet Rights: Economic, Social and Cultural
Rights in a New Perspective, (Geneva: WCC Publications, 1999), pp.45-54; Tushnet, Mark, Weak Courts, Strong
Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law, (Princeton: Princeton
University Press, 2008), particularly Chapter 8: Enforcing Social and Economic Rights, pp. 227-264; Schwartz,
Herman, ‘Do Economic and Social Rights Belong in a Constitution’, 10 Am. U. J. Int’l L. & Pol’y , (1994-1995),
pp. 1233-1244 and Economic and Social Rights, 8 Am. U. J. Int’l L. & Pol’y , (1992-1993), pp. 551-565; Sen,
Amartya, ‘Human Rights and Development’, in Andreassen, Bard and Marks, Stephen P. (ed.), Development as a
Human Right: Legal, Political and Economic Dimensions (2nd edn.), (Antwerp: Intersentia, 2003), pp. 3-11;
Liebenberg, Sandra, ‘Making a Difference: Human Rights and Development-Reflecting on the South African
Experience’, in Andreassen, Bard and Marks, Stephen P. (ed.), Development as a Human Right: Legal, Political and
Economic Dimensions (2nd edn.), (Antwerp: Intersentia, 2003), pp. 209-244.
18
Cranston, Maurice, ‘Human Rights, Real and Supposed’, in Raphael, D.D. Political Theory and the Rights of
Man, (Bloomington: Indiana University Press, 1967), pp. 43-53.
19
Ibid. at p. 52.
20
Baah, Richard Amoako, Human Rights in Africa: The Conflict of Implementation, (Lanham, Maryland:
University Press of America, Inc., 2000), at pp. 40-41 ; Weinstein, Warren, ‘Human Rights and Development in
Africa’, Daedalus, Vol. 112, No. 4. (Fall, 1983), pp. 171-196.
21
Mutua, Makau, ‘The Banjul Charter: The Case for an African Cultural Fingerprint’, in An-Na’im, Abdullahi A.
(ed.), Cultural Transformation and Human Rights in Africa, (New York: Zed Books Ltd, 2002), pp. 68-107.
5 can be granted locus standi in a court of law in Nigeria.22 The decision has effectively shut the
door against public interest litigation or class actions in Nigeria.23
Do universal human rights approximate to a foisting of Eurocentric domestic
jurisprudence of the West on the rest of the world? During World War II, President Franklin
Roosevelt of the United States of America delivered his 1944 state of the union address in the
aftermath of over a decade of socio-economic depression in his country and the horrors of an
ongoing war. In his “New Deal” he envisaged adding socio-economic rights to the American bill
of rights, which has remained unfulfilled today.24 But various educational, health and social
security programs exist at both state and federal levels in the United States.25 The courts have
even ruled against the exclusion of children of illegal immigrants from state funded education.26
In his 1944 address President Truman stated that: “We have come to a clear realization of the
fact that true individual freedom cannot exist without economic security and independence.
Necessitous men are not free men.” People who are hungry and out of job are the stuff of which
dictatorships are made. In our day these economic truths have become accepted as self-evident.
We have accepted, so to speak, a second Bill of Rights under which a new basis of security and
prosperity can be established for all regardless of station, race, or creed. Among these are:
The right to a useful and remunerative job in the industries or shops or farms or mines of the
Nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his
family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from
unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
22
[1981] 1 NCLR, 358.
Ogowewo, Tunde I. ‘Wrecking the Law: How Article III of the Constitution of the United States led to the
Discovery of a Law of Standing to Sue in Nigeria’, Brook. J. Int’l L. Vol. 26. (2000-2001), pp.527-590; Ogowewo,
Tunde I. ‘The Problem with Standing to Sue in Nigeria’, Journal of African Law, Vol. 39, No.1 (1995), pp. 1-18.
24
Tushnet, Mark, Taking the Constitution Away from the Courts, (Princeton, New Jersey: Princeton University
Press, 1999), pp. 169-172.
25
Sager, Lawrence G. Justice in Plainclothes: A Theory of American Constitutional Practice, (New Haven: Yale
University Press, 2004), pp. 95-102.
26
457 U.S. 202 (1982).
23
6 The right to adequate protection from the economic fears of old age, sickness, accident, and
unemployment;
The right to a good education. All of these rights spell security. And after this war is won we
must be prepared to move forward, in the implementation of these rights, to new goals of human
happiness and well-being.”27
III Socio-Economic Rights
On December 10, 1948, the General Assembly of the United Nations adopted the
Universal Declaration of Human Rights (UDHR). The UDHR contained both socio-economic
rights and civil and political rights. Maurice Cranston asserted that civil and political liberties are
justified as rights, but to classify socio-economic needs as rights would hinder “the effective
protection of what are correctly seen as human rights.”28 The UDHR “expressed the American
liberal tradition more faithfully than any other.”29 The contents of the proposed single human
rights covenant proved to be a divisive issue. Should its contents feature only the established
jurisprudence of civil and political rights embedded in existing national constitutions which were
predominantly Western according to the preferred wisdom of the Commission on Human Rights
or should the contents extend to socio-economic rights? The fifth session of the United Nations
General Assembly in 1950 by a majority decision declared that both set of rights should be in
one covenant, because they “are interconnected and interdependent.” 30It mandated the
Commission on Human Rights to reflect in the single covenant “a clear expression of economic,
social and cultural rights in a manner which relates them to civil and political freedoms
proclaimed by the draft covenant.”31
The Indian member of the Commission on Human Rights unsuccessfully tried in 1950, to
persuade the seventh session of the Commission on Human Rights to recommend to the UNGA
to change its decision of a sole covenant. The thirteenth session of the Economic and Social
Council of the United Nations held on August 29, 1951 in a proposal sponsored by India, a Latin
27
Woods, Jeanne M. and Lewis, Human Rights and the Global Marketplace: Economic, Social, and Cultural
Dimensions, (Ardsley, NY: Transnational Publishers, 2005), at pp. 76-77.
28
Cranston, Maurice, What are Human Rights? (London: The Bodley Head, 1973), p.65.
29
Ruggie, John, Gerard, ‘Human Rights and the Future of International Community, Daedalus, Vol. 112, No. 4,
(Fall, 1983), pp.93-110, at p.97.
30
Schwelb, Egon, ‘Some aspects of the International Covenants on Human Rights of December 1966’, in Eide,
Asbjörn and Schou, August,(eds.), International Protection of Human Rights: Proceedings of the Seventh Nobel
Symposium Oslo, September 25-27, 1967, (New York: Interscience Publishers, 1968), pp. 103-129, at p. 105
31
Ibid. at p. 105.
7 American country and three Western countries recommended that the UNGA should reconsider
its 1950 decision of a sole human rights covenant. At the sixth session of the UN in 1951,
Belgium, India, Lebanon and the United States at the third committee “proposed the drafting of
two Covenants.”32
From 1952 to 1966 abortive efforts were made at having a single covenant, but the delay
that would have occasioned; led to the grudging acceptance of two covenants both far advanced
in considerable laborious drafting.33 The reasons given for two conventions were that States
would have an option of being a party to either one or both of the covenants. Secondly civil and
political rights needed only legislation while socio, economic and cultural rights required costly
public and private intervention to be realized. Thirdly civil and political rights were of immediate
effect, while socio-economic rights demanded progressive realization. Lastly there was an
existing jurisprudence of civil and political rights in Western States, while socio, economic and
cultural rights were devoid of readymade jurisprudence for definite interpretation and precise
contours of meaning.34
Another factor was that the first set of existing national constitutions allegedly made
provisions for only civil and political rights, and only a few relatively recent constitutions like
the Irish and Indian Constitutions provided for socio-economic rights as non-justiciable goals
and directive principles of state policy. In short, socio-economic rights came after the first set of
civil and political rights and they were derogatively tagged as “second-class rights to CP
rights.”35 Nevertheless, the ICESCR is a treaty which binds States which have ratified or acceded
to it.36
In the developing world there is still a strong impression that the global corpus of human
rights is Eurocentric. “The basic human rights texts draw heavily from the American Bill of
Rights and the French Declaration of the Rights of Man. There is virtually no evidence to
suggest that they drew inspiration from Asian, Islamic, Buddhist, Hindu, African, or any other
32
Ibid. at p. 106.
Ibid. at p. 106.
34
Baderin, Mashood A. and McCorquodale, Robert, ‘The International Covenant on Economic, Social and Cultural
Rights: Forty Years of Development’, in Baderin, Mashood A. and McCorquodale, Robert, (eds.), Economic, Social
and Cultural Rights in Action, (Oxford: Oxford University Press, 2007), pp.3-24, at p.6.
35
Ibid. at p. 10.
36
Alston, Philip and Quinn Gerard, ‘The Nature and Scope of States Parties’ Obligations under the International
Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly, Vol.9, No. 2 (May, 1987), pp. 156229, at p. 160.
33
8 non-European traditions.”37 The United States ratified the ICCPR in 1992 and signed the
ICESCR on October 5, 1977 but had not ratified it up till 2011.38 It is pertinent to note that the
UDHR ended up with two covenants as opposed to one because of the cold war between the
United States led West which emphasized civil and political rights and the Soviet led East which
focused on socio-economic rights.39 “Much needs to be done to improve our understanding of
individual societies and cultures, particularly their interpretation of human dignity, and to find
ways in which their precepts can be applied creatively to legitimize and reinforce international
human rights standards within the context of given cultures.” 40
Both negative duties and positive duties are required in the realization of socio-economic
rights. Positive action is equally required to implement civil and political rights as well, despite
the dominant myth of negative restraint on the part of the Leviathan State from invasion of
individual liberties as the major requirement for their enforcement.41 For instance salaries of
Nigerian judges who earn an average of $100, 000 United States denominated, compare
relatively with their colleagues in the Western world. The April 2011 general elections in Nigeria
incurred over five hundred million United States dollars in expenses. Nigerian legislators at the
National Assembly award themselves a minimum of at least one million United States dollars per
annum each and committee members and respective chairpersons earn even greater allowances.42
37
Mutua, Makau, Human Rights: A Political and Cultural Critique,(Philadelphia: University of Pennsylvania Press,
2002), p. 154; Mutua, Makau, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’, Harvard
International Law Journal, Vol. 42, No.1, (Winter, 2001), pp. 201-245.
38
See full state of ratification of States parties as at May 18, 2011,
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en (accessed on
May 18, 2011).
39
Charlesworth, Hilary, Writing in Rights: Australia and the Protection of Human Rights, (Sydney: University of
New South Wales Press, 2002), p. 48.
40
An-Na‘im Abdullahi Ahmed and Deng, Francis M. ‘Introduction’, in An-Na‘im Abdullahi Ahmed and Deng,
Francis M. (eds.), Human Rights in Africa: Cross-Cultural Perspectives, (Washington D.C.: The Brookings
Institution, 1990), pp. 1-11 at p. 11.
41
Cranston, Maurice, ‘Are There Any Human Rights?’ Daedalus, Vol. 112, No. 4, Human Rights (Fall, 1983), pp.117, at p.13
42
[E]ach member of the House is entitled to about N28.9m official allocation per quarter. When salaries and other
perks are added, each law maker takes close to N15m per month.” Ameh, John, ‘Reps in rowdy session over
Bankole’s alleged N10bn loan’, The Punch, Lagos, 12 May 2011,
http://www.punchng.com/Articl.aspx?theartic=Art201105122581931 (accessed on May 12, 2011); “Each of the 360
members of the House is entitled to an official quarterly allocation of N28.9m. however they allegedly jacked up the
allocation to N42m in July 2010,.”Ameh, John, ‘Seized allowances : CBN orders banks not to bail out Reps’, The
Punch Lagos, 16 May, 2011, http://www.punchng.com/Articl.aspx?theartic=Art201105166551545, (accessed on
May 16, 2011).
9 New private jets were recently bought for the Nigerian President and some state governors also
had private jets paid for from the state coffers. 43
There are those who classify socio-economic rights like Cranston above as inferior to
civil and political rights. This school of thought believes that grouping socio-economic rights
with civil and political rights under a bill of rights in a constitution would render all rights
unenforceable thereby devaluing already protected civil and political rights. For this class of
thinkers the strategy should rather be to make socio-economic rights unenforceable and focus on
needs of vulnerable members of society that could be met by executive policies backed by
budgetary allocations in line with the separation of powers doctrine. The judiciary should not be
empowered to dabble into purely policy and budgetary considerations of the executive arm of
government whose budget has been passed by the legislative arm.44 This school of thought
assumes that the executive would be so need based inclined and accountable to the electorate. In
Nigeria such assumptions have been serially trumped by prebendal and venal political elites who
hemorrhage billions of dollars annually despite endemic poverty in the land.
No State is neutral and political arrangements in place are determined by the interests of
the dominant political elite which might not necessarily reflect the common weal.45 Infusing
positive duties into the matrix of the State’s arrangement is primarily a political decision.46
Empowering the courts to guide the infusion process is one of the diverse tools of realizing
socio-economic development in any given society.47 The courts can also innovatively ameliorate
poverty in society and empower the downtrodden to access the justice system through “taking
suffering seriously”.48 “Taking suffering seriously” a term coined by Professor Upendra Baxi is
the Indian approach to public interest litigation developed by its former Chief Justice, Honorable
Justice P.N. Bhagwati.49 But Bhagwati “would prefer to call this enterprise as social action
43
Reuters, ‘UPDATE 1-Nigeria buys presidential jets, borrows to fund polls,’ August 11, 2010,
http://www.reuters.com/article/idUSLDE67A1TV20100811 (accessed on August 27 2010); Rivers State is a classic
example, as shown by: Human Rights Watch, Chop Fine: The Human Rights Impact of Local Government
Corruption and Mismanagement in Rivers State, Nigeria, New York, January 2007,
http://www.hrw.org/sites/default/files/reports/nigeria0107[1].pdf (accessed on January 7, 2012).
44
Osiatyński, Wictor, Human Rights and Their Limits, (Cambridge: Cambridge University Press, 2009,), pp. 105143.
45
Fredman, Sandra, Human Rights Transformed, (Oxford: Oxford University Press, 2009), pp. 18-23.
46
Ibid. at pp.65-91.
47
Ibid. pp.92-123.
48
Bhagwati, P.N. Public Interest Litigation, Lecture Delivered at the Nigerian Institute of Advanced Legal Studies
on April 21, 2010, at p.6.
49
Id.
10 litigation rather than Public Interest Litigation.” 50
This study enquires into how socio-economic rights can address the accountability deficit
of the Nigerian state. Does judicial enforcement of socio-economic rights matter in redressing
the accountability deficit of the Nigerian state?51
1. International Covenant on Economic, Social and Cultural Rights
January 3, 1976 was the day the 35th country ratified the International Covenant on
Economic, Social and Cultural Rights (ICESCR) which made the United Nations’ multilateral
treaty component of the 1948 Universal Declaration of Human Rights (UDHR) come into
force.52 Divisions still existed in 2006 when Article 14 of the Optional Protocol of the ICESCR
was being drafted with regard to the binding nature of extra territorial international assistance
and cooperation where countries do not possess the resources to meet the socio-economic needs
of its citizens. This was a throwback to the unresolved extra territorial international assistance
and cooperation implications of Articles 2(1), 11, 15, 22 and 23 of the ICESCR.53 Canada’s
reading of Article 14 extra territorial international assistance and cooperation was one of a nonlegal moral obligation. The interpretation of Article 14 of the Optional Protocol by the United
Kingdom, Netherlands, Spain and Sweden was: “that the State had the primary responsibility to
implement its obligations.”54
On the other hand, South Africa, India, Nigeria and the African team led by Egypt:
“emphasized again the legally binding character of international assistance and cooperation.”55 A
similar controversy surrounds the socio-economic provisions of Article 4 of the Convention on
the Rights of the Child which is a carbon copy of Article 2(1) of the ICESCR.56 The United
Nations Human Rights Council adopted the Optional Protocol to the ICESCR on 18 June 2008.57
The United Nations General Assembly adopted the Optional Protocol to the ICESCR on 10
50
Id.
Viljoen, Frans, ‘The Justiciability of Socio-economic and Cultural Rights: Experience and Problems’, in Donders,
Yvonne and Volodin, Vladimir, (eds.) Human Rights in Education, Science and Culture: Legal Development and
Challenges, (Ashgate and UNESCO Publishing, 2007), pp.53-110.
52
Craven, Mathew C.R. The International Covenant on Economic, Social, and Cultural Rights, (Oxford: Clarendon
Press, 1995), p.1.
53
Gondek, Michal, The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human
Rights Treaties, (Antwerp: Intersentia, 2009), pp.295-297.
54
Ibid. p. 331
55
Ibid. p. 332.
56
Ibid. p.297.
57
Resolution 8/2. http://www2.ohchr.org/english/bodies/cescr/ (accessed on April 23, 2011).
51
11 December 2008 and it was opened for signature in 2009.58 Nigeria acceded to the ICESCR on 29
July 1993, India on10 April 1979, while South Africa signed on 3 October 1994.59
2. The General Comments Jurisprudence of the ICESCR Committee
The Committee has essentially played the role of norm clarification and what to expect
from the socioeconomic rights provided for by the ICESCR. Alston a former chairman of the
Committee has made the point.60 A brief outlay of General Comment 3 dealing with the
minimum core concept will be done here. Essentially this was an interpretation of Article 2(1) of
the ICESCR which provides that:
“ Each State Party to the present Covenant undertakes to
take steps, individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative measures.”
In its
interpretation the Committee stated that from its decade long experience as at 1990, there was a
minimum core threshold a country must meet to fulfill the conditions of Article 2(1). “In order
for a State Party to be able to attribute its failure to meet at least its minimum core obligation to a
lack of available resources it must demonstrate that every effort has been made to use all
resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum
obligations.”61
In extra-territorial terms the Committee interpreted international obligations of States
parties to the ICESCR to mean:
“A final element of article 2(1), to which attention must be drawn, is that the undertaking given
by all States parties is ‘to take steps, individually and through international assistance and
cooperation, especially economic and technical…’. The Committee notes that the phrase ‘to the
maximum of its available resources’ was intended by the drafters of the Covenant to refer to both
the resources existing within a State and those available from the international community
58
59
Resolution A/RES/63/117
http://www2.ohchr.org/english/bodies/cescr/ (accessed on April 23, 2011).
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en (accessed on
12 April, 2011).
60
Alston, Philip, ‘The Committee on Economic, Social and Cultural Rights’, in Alston, Philip (ed.) The United
Nations and Human Rights: A Critical Appraisal, (Oxford: Clarendon Press, 1992), pp., 473-508 at pp.490-496.
61
Paragraph 10, reproduced in Eide, Asbjørn ; Krause, Catharina and Rosas, Allan, Economic, Social and Cultural
Rights, second (ed) (Dordrecht: Martinus Nijhoff Publishers, 2001), pp.618-621, at p.620
12 through international cooperation and assistance. Moreover, the essential role of such specific
provisions contained in articles 11, 15, 22 and 23. With respect to article 22 the Committee has
already drawn attention, in General Comment 2 (1990), (discussed in section 4.5 below) to some
of the opportunities and responsibilities that exist in international cooperation. Article 23 also
specifically identifies ‘the furnishing of technical assistance’ as well as other activities, as being
among the means of ‘international action for the achievement of the rights recognized…”.62
3. SERAC Decision of the African Commission on Human and Peoples’ Rights
The ascension of President Jimmy Carter of the United States into office in 1979
influenced the episodic human rights movement within the Organization of African Unity which
had members like Idi Amin Dada of Uganda, Francisco Marcias Nguema of Equatorial Guinea
and Jean Bokassa of Central African Republic.63 Bokassa in April 1979 led his troops to
massacre about a hundred school children who had defied his ban on the use of school uniforms.
The Franco-African summit May 1979 in Rwanda confirmed Bokassa’s involvement in the
massacre.64 This was the background for the 1979 OAU Summit in Monrovia Liberia, where
President William Tolbert gave a scathing “attack on Africa’s human rights record, and the
unwillingness of his colleagues to speak out against human rights transgressions.”65
The speech galvanized his colleagues to mandate the OAU Secretary General to set up a
panel of experts who drew up a charter of rights in Dakar, Senegal between 28 November and 8
December 1979. The African Charter on Human and Peoples’ Rights was eventually adopted on
19 January 1981 in Banjul, Gambia.66 This study will henceforth refer to the African Charter on
Human and Peoples’ Rights as the Banjul Charter. The Banjul Charter was enacted into law in
Nigeria in 1983 under the civilian administration of President Shagari and it came into force on
March 17, 1983.67 It contains civil and political rights68, right to property69 as well as socio-
62
Paragraph 13, full text available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En
(accessed on May 18, 2009).
63
Ojo, Olusola and Sesay, Amadu, ‘The O.A.U. and Human Rights Prospects for the 1980s and beyond’, Human
Rights Quarterly, Vol.8, No.1 (Feb., 1986), pp.89-103, at p.92.
64
Ibid. at p. 93.
65
Id.
66
Ibid. 94-95.
67
Chapter 10. Laws of Federation of Nigeria 1990.
68
Articles 2-13.
69
Article 14.
13 economic rights.70 Duties owed by the individual to the family, nation and African unity are also
well detailed.71 The Banjul Charter established the African Commission on Human and Peoples’
Rights (the Commission) to “promote human and peoples’ rights and ensure their protection in
Africa.”72
The Banjul Charter deviated from the ICESCR formula of progressive realization of
socio-economic rights. “The Charter does not make the ‘fulfillment’ of any of its provisions
dependent on ‘available resources’ or ‘progressive realization’.”73 In June 1998 a protocol to the
Banjul Charter was adopted by the member States of the OAU which established the African
Court on Human and Peoples’ Rights and it entered into force in January 2004.74 The OAU was
transformed into the African Union at Lome, Togo upon the adoption of the Constitutive Act of
the transformed body.75 Article 22 of the AU’s Constitutive Act established the Economic,
Social and Cultural Council.76 ECOSOCC was launched in March 2005, at Addis Ababa,
Ethiopia with then Nigerian President Olusegun Obasanjo appointed as its chair for two years.77
ECOSOCC has amongst its objectives the promotion of “good governance, democratic principles
and institutions, popular participation, human rights and freedoms as well as social justice.”78
The Social and Economic Rights Action Centre (SERAC) and the Centre for Economic
and Social Rights v. Nigeria79 decision of the Commission related to socio-economic rights
violations in Nigeria. The SERAC communication was received by the Commission on 14
March 1996 and it alleged that the Nigerian military leadership, the Nigerian National Petroleum
Corporation (NNPC) in a joint venture with Shell Petroleum Development Corporation (SPDC)
while carrying out oil drilling in the Niger Delta area of Nigeria had violated numerous
provisions of the Banjul Charter. These were the rights to life, environment, disposal of wealth
and natural resources as well as implicitly the rights to food and shelter.80
Nigeria transited to civilian rule on May 29, 1999. At the 28th ordinary session of the
70
Articles 15-24.
Articles 28-29.
72
Article 30.
73
Viljoen, Frans, International Human Rights Law in Africa, (Oxford: Oxford University Press, 2007), p.240.
74
http://www.african-court.org/en/court/history/ (accessed on May 18, 2011).
75
Murray, Rachel, Human Rights in Africa: From the OAU to the African Union, (Cambridge: Cambridge
University Press, 2004), p.31.
76
http://www.africa-union.org/root/au/AboutAu/Constitutive_Act_en.htm#Article22
77
http://www.africa-union.org/ECOSOC/home.htm
78
Article 2(5), see full text at: http://www.africa-union.org/ECOSOC/STATUTES-En.pdf
79
(2001) AHLR 60 (ACHPR 2001).
80
Ibid. Paragraphs 1-9.
71
14 Commission held in Cotonou, Benin from October 26 to November 2000, Nigeria submitted a
note verbale which admitted the allegations in the SERAC Communication.81 The note verbale
indicated that remedial actions were being taken by Nigeria which included the establishment of
the first ever Ministry of Environment, the enactment of the Niger Delta Development
Commission and the setting up of a Judicial Commission of Inquiry.82 In its method of analysis
the Commission evaluated the obligations of the Nigerian state on four levels of its duties to
respect, protect, promote and fulfill both civil and political rights and socio-economic rights.
“These obligations universally apply to all rights and entail a combination of negative and
positive duties.”83 The Commission subsequently found Nigeria in violation of Articles
2(protection from discrimination), 4(right to life), 14(right to property), 16(right to health),
18(1)(family life), 21(freedom over wealth and natural resources) and 24(environmental right)
provisions of the Banjul Charter.84 It then appealed “to the government of the Federal Republic
of Nigeria to ensure protection of the environment, health and livelihood of the people of
Ogoniland…” 85
It proceeded to recommend the cessation of military attacks, prosecution of security
officials involved in atrocities, compensation and resettlement of victims as well as
environmental and social impact assessments for future oil mining operations.86 Dinah Shelton
observed that the SERAC decision dependent on Nigeria’s compliance with the
recommendations could have “an impact on human rights law and practice well beyond Africa.87
The Social and Economic Rights Action Centre is Nigerian based and the Center for Economic
and Social Rights is New York based. For a SERAC commentator this point seems
commendable. “The added value of a strategy in which a national and international NGO work
together to formulate the complaint, each contributing from its particular field of knowledge and
expertise, should be underlined.”88 Most prominent Non-governmental organizations in Nigeria
81
Ibid. Paragraph 30
Id.
83
Ibid. paragraph 44.
84
Paragraph 70.
85
Paragraph 71.
86
Id.
87
Shelton, Dinah, ‘Decision Regarding Communication 155/96 (Social and Economic Rights Action Centre/Center
for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1, AJIL, Vol.96, No.4(Oct., 2002), pp.
937-942 at p. 942.
88
Coomans, Fons, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’, The
International and Comparative Law Quarterly, Vol.52, No.3 (Jul., 2003), pp. 749-760, at p.760.
82
15 receive foreign funding and there is a general concern in civil society about “he who pays the
piper dictates the tune” of NGO objectives.89 Nigerian courts and lawyers utilized the civil
liberties provisions of the Banjul Charter to effectively cushion the repressive decrees under
military rule from 1983 to 1999. But the Nigerian Supreme Court in 2001 held that the Banjul
Charter’s enabling Act could equally be repealed by another Act of the legislature and more
importantly it ruled that the Nigerian Constitution is superior to the Banjul Charter.90
The United Nations Environmental Programme (UNEP) in August 2011 confirmed the
callous violations of socio-economic rights by the Nigerian state and its joint venture partner
Shell Petroleum Development Company (SPDC) in Ogoni land. UNEP’s Environmental
Assessment of Ogoniland confirmed that government regulatory agencies had conflicting
interpretations of the 1992 Environmental Guidelines and Standards for the Petroleum Industries
in Nigeria. 91 The agencies were the Directorate for Petroleum Industries (DPR) and the National
Oil Spill Detection and Response Agency (NOSDRA). This incompetence on the part of DPR
and NOSDRA enabled oil companies to abort remedial procedures for oil spills before the
elimination of contamination making it impossible for humans, flora and fauna to survive.
NOSDRA was also in its five years of existence dependent on the logistics of the oil companies
it was supposed to monitor and shockingly it also lacked the technical personnel. The study
concluded “that the control, maintenance and decommissioning of oilfield infrastructure in
Ogoniland are inadequate. Industry best practices and SPDC’s own procedures have not been
applied, thereby creating public safety issues.”92
In 2003 a Federal High Court ruled that the Federal Government was mandated by
Article 16(2) of the Banjul Charter to provide medical care to four prisoners who were HIV
positive.93 Justice Olufawo of a Lagos State High Court did not allow a HIV positive nurse to
appear in person, to challenge her dismissal by a private hospital, based on her HIV status;
because the defense had successfully argued an application requesting expert opinion to
89
Smith, B.C. Good Governance and Development, (New York, Palgrave Macmillan, 2007). at pp.280-286
Sanni Abacha v Gani Fawehinmi [2001]1CHR, 20 at 42;
91
UNEP Environmental Impact Assessment of Ogoniland, http://www.unep.org/nigeria/ (accessed on 16 October
2011)
92
Ibid. at p.11.
9393
Festus Odafe & 3Others v. Attorney General of the Federation & 3 Others, Suit No. FHC/PH/CS/680/2003,
cited in Odinkanlu, Chidi Anselm, ‘The Impact of Economic and Social Rights in Nigeria: An Assessment of the
Legal Framework for Implementing Education and Health as Human Rights’, in Gauri, Varun and Brinks, Daniel M.
(eds.), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World,
(Cambridge: Cambridge University Press, 2008), pp. 183-223, at p. 213
90
16 determine whether HIV could be transmitted by the nurse’s presence in Court.94 The Court of
Appeal did not entertain an appeal of the ruling, because leave or permission of the Lagos High
Court had not been procedurally procured to trigger an appeal.95
An additional layer to the African human rights framework which complements the
African Commission on Human and Peoples’ Rights’ is the African Court for Human and
Peoples’ Rights. On June 10, 1998 its protocol of establishment was adopted and it came into
force on January 1, 2004.96 It has since commenced operations.
IV. The socio-economic strand of globalization
China and India in recent times have both increased their economic presence in Nigeria,
but Western capital still dominates the petroleum economy of Nigeria. Globalization in subSaharan Africa, especially in West Africa where Nigeria is located has benefited mainly
“European and Lebanese expatriates and local political elites.”97 This pattern was established
during British colonial rule when expatriate companies were favored to the detriment of
autochthonous entities. Companies like the United African Company, Barclays Bank, John Holt,
Paterson Zochonis, Union Trading Company, Compagnie Française Africaine (CFAO), Bank of
British West Africa, Société Compagnie Occidentale Africaine (SCOA) under the banner of
Association of West African Merchants, in 1949 controlled “about 66 per cent of Nigeria’s
imports and 70 per cent of her exports.”98 Colonialism was highly destructive of indigenous
enterprise and abolished centuries old indigenous accountability mechanisms which laid the
94
Georgina Amaefule v. Imperial Medical Centre & Dr. Alex Molokwu, unreported, Suit No. ID/1627/2000, ruling
delivered on 5 February, 2001, cited in Odinkanlu, Chidi Anselm, ‘The Impact of Economic and Social Rights in
Nigeria: An Assessment of the Legal Framework for Implementing Education and Health as Human Rights’, in
Gauri, Varun and Brinks, Daniel M. (eds.), Courting Social Justice: Judicial Enforcement of Social and Economic
Rights in the Developing World, (Cambridge: Cambridge University Press, 2008), pp. 183-223, at pp. 213-214.
95
Georgina Amaefule v. Imperial Medical Centre & Dr. Alex Molokwu, unreported, Suit No. CA/L/225/2001,
judgment delivered on 21 April, 2004, cited in Odinkanlu, Chidi Anselm, ‘The Impact of Economic and Social
Rights in Nigeria: An Assessment of the Legal Framework for Implementing Education and Health as Human
Rights’, in Gauri, Varun and Brinks, Daniel M. (eds.), Courting Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World, (Cambridge: Cambridge University Press, 2008), pp. 183-223, at p.
214.
96
Ndulo, Muna, ‘The African Commission and Court under the African Human Rights System’, in Akokpari, John
and Zimbler, Daniel Shea, (eds.), Africa’s Human Rights Architecture, (Auckland Park, South Africa: Fanele and
Centre for Conflict Resolution), pp. 182-203, at pp. 194-195.
97
Chua, Amy, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability,
(New York: Doubleday, 2003), at p. 110.
98
Awa, Eme O. Federal Government in Nigeria, (Berkeley and Los Angeles: University of California Press, 1964),
p. 83.
17 foundations for the creation of unaccountable British Frankenstein states in Africa. “Local
people were deprived of political and economic rights, while expatriate companies were given
monopoly powers and coercive control over labour. Indirect rule partially reinforced traditional
value systems and authority, but also reduced the accountability of traditional elites by
eliminating earlier forms of resistance and protest. Societies were not allowed to protect infant
industries, thus suppressing indigenous capitalist development…The result was dualism…and
blocked development.”99
Britain applied its colonial experience in Ireland to Africa. British colonial rule in Ireland
in the eighteenth and nineteenth centuries epitomized by the 1838 Poor Law Act of Ireland,
dispossessed the Irish of their land, and resulted in poverty worse than in contemporary subSaharan Africa. The watershed was the “Great Famine (1845-9), which resulted in widespread
death and emigration.”100 In the Irish capital, Dublin, a quarter of children born in 1899 died
before the age of one and diseases such as tuberculosis were widespread.101 The liberation of
Ireland from British rule resulted in prosperity for the Irish people and Dublin has become a
center for immigrants from all over the world seeking a better life, especially the Irish diaspora
in the Northern hemisphere.102
Contemporary global capital has employed human rights as a Trojan horse to hollow out
its socio-economic contents.103 “As large parts of the total corpus of human rights are sacrificed
to fit the market, so often are aspirations to greater equality and concrete commitments to
improving access to resources.”104 Effective local governance must be complemented by a
reform of the World Trade Organization (WTO), international trading regime, which is skewed
in favor of industrialized countries of the North. Textile and agricultural tariffs of the North
99
Brett, E.A. Reconstructing Development Theory: International Inequality, Institutional Reform and Social
Emancipation, (Basingstoke: Palgrave Macmillan, 2009), at p. 198.
100
Ferritter, Diarmaid, The Transformation of Ireland, (Woodstock & New York: The Overlook Press, 2005), at p.
30.
101
Ibid. at p. 32.
102
Gilmartin, Mary, ‘Dublin: An Emerging Gateway’, in Price, Marie and Benson-Short (eds.), Migrants to the
Metropolis: The Rise of Immigrant Gateway Cities, (Syracuse, New York: Syracuse University Press, 2008), pp.
226-254.
103
Rittich, Kerry, ‘Feminism After the State: The Rise of the Market and the Future of Women’s Rights’, in Merali,
Isfahan and Oosterveld, (eds.), Giving Meaning to Economic, Social and Cultural Rights, (Philadelphia: University
of Pennsylvania Press, 2001), pp. 95-108.
104
Ibid. at p. 102.
18 prevent access to developing economies, which is compounded by billions of dollars in subsidies
provided to agriculture in the West. In 2002, Oxfam calculated that an additional share of five
percent of world trade will generate $350billion increase in dignifying revenues for developing
countries, which is seven times the volume of their conditional aid receipts.105 IMF and World
Bank neo-liberal policies discussed below, force developing countries “to impose much lower
tariffs than those to which they are bound under the WTO.”106 Fair and equitable global trade
rules and not aid is the assured path to development.107
The preamble of the Marrakesh Agreement which established the World Trade
Organization states that:
“The Parties…Recognizing that their relations in the field of trade and economic endeavour
should be conducted with a view to raising standards of living , ensuring full employment and a
large and steadily growing volume of real income and effective demand, and expanding the
production of and trade in services, while allowing for the optimal use of the world’s resources
in accordance with the objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for means for doing so in a manner
consistent with their respective needs and concerns at different levels of economic
development.”108
Multinational corporations are domiciled in the thirty-four countries which make up the
Organisation for Economic Co-operation and Development (OECD).109 Multinational
corporations control and dictate the terms of the extractive industry in the developing world. The
OECD also collaborates with Brazil, China and India and the three countries have corporations
105
Joseph, Sarah, ‘Trade to Live or Live to Trade: The World Trade Organization, Development, and Poverty’, in
Baderin, Mashood A. and McCorquodale, Robert, (eds.), Economic, Social and Cultural Rights in Action, (Oxford:
Oxford University Press, 2007), pp.389-416, at p. 390.
106
Ibid. at p. 393.
107
Hancock, Graham, Lords of Poverty: The Power, Prestige, and Corruption of International Aid Business, (New
York: The Atlantic Monthly Press, 1989); Moyo, Dambisa, Dead Aid: Why Aid is not Working and How There is a
Better Way for Africa, (New York: Farrar Straus and Giroux, 2009); Wrong, Michela, It’s our Turn to Eat: The
Story of a Kenyan Whistle Blower, (New York: HarperCollins Publishers, 2009), pp. 266-267, 326-327; Mills,
Greg, Why Africa is Poor and what Africans can do about it, (Johannesburg, South Africa: Penguin Books,2010),
pp. 6-7; 249-333; 343.
108
Full text available at: http://www.wto.org/english/docs_e/legal_e/04-wto_e.htm (accessed on May 20, 2011).
109
http://www.oecd.org/document/25/0,3746,en_36734052_36761800_36999961_1_1_1_1,00.html (accessed on
May 21, 2011).
19 operating in several developing countries.110 Multinational firms bypass or contract out of the
local environmental and social regulatory regimes of developing countries, which they couple
with enforced arbitration in the Northern hemisphere.111 An examination of contracts involving
OECD companies reveals that: “nearly 90 contracts indicates that those signed with non-OECD
countries constrain the host state’s regulatory powers significantly more than those signed with
OECD countries-and country risk ratings alone do not seem to account for the variance.”112
Global corporations of the North remain virtually unaccountable for human rights abuses
committed in developing countries.113 The role of multinational oil companies in the violation of
human rights in Nigeria is well documented and Shell Oil Company is a metaphor of such
behavior.114The judicial murder of Kenule Saro-Wiwa a human rights activist by the Nigerian
military government on November 10 1995 brought to the fore Shell’s complicity in the massive
human rights violations in the Niger Delta area of Nigeria by the Nigerian state in the quest of oil
drilling.115 But writers who have focused on the social responsibility mantra adopted by Shell to
transform its anti-human rights badge of dishonor have failed to question the abdication of
responsibility by the Nigerian state towards its citizens affected by oil drilling.116
Multinational corporations exert huge leverage on developing countries and sterilize the
capacity of citizens to make their political leaders accountable.117 They also function as the
purveyors of social inequality, corrupting government officials weakening organized labor
110
OECD members and Partners:
http://www.oecd.org/document/25/0,3746,en_36734052_36761800_36999961_1_1_1_1,00.html (accessed on May
21, 2011).
111
Ruggie, John Gerard, ‘Protect, Respect, and Remedy: The UN Framework for Business and Human Rights’, in
Baderin, Mashood A. and Ssenyonjo, Manisuli, (eds.), International Human Rights Law: Six Decades after the
UDHR and Beyond, (Burlington: Ashgate Publishing Company, 2010), pp. 519-538, at p. 526.
112
Ibid. at p. 526.
113
Smith, Erin Foley, ‘Right to Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to
Victims of Corporate Human Rights Abuses’, Columbia Journal of Law and Social Problems, Vol. 44, No.2
(Winter, 2010), pp. 145-192.
114
Human Development Report 2000, (New York: United Nations Publications) p.58, The Power of Shame- a
weapon for human rights NGOs Box 3.1
115
Mendez, Errol and Mehmet, Ozay, Global Governance, Economy and Law: Waiting for justice, (London:
Routledge Taylor & Francis Group, 2003), at pp. 126-127.
116
Ibid. at p. 132.
117
Sassen, Saskia, ‘Economic Globalization and the Redrawing of Citizenship’, in Hernández-Truyol, Berta
Esperanza (ed), Moral Imperialism: A Critical Anthology, (New York: New York University Press, 2002), 135150.
20 through labor casualisation and are anathema to socio-economic rights.118 They have been aided
by the international financial institutions in the transformation of developing countries into what
Uppendra Baxi calls “Soft States.”119 Oil companies are renowned for corrupting governance in
developing countries and they have done so since the nineteenth century.120 Two American cases
will be analyzed below to demonstrate the corrosive effect of multinational oil corporations on
accountability of Nigerian political leaders.121 Nevertheless there are still apologists for the
multinational oil companies.122The oil industry is controlled by Western multinationals aided by
a supine and compromised Nigerian leadership in their refusal to transfer technology and
integrate it into Nigerian industry. 123
The Chinese National Offshore Oil Corporation in 2005 spent $2.27 billion to acquire
forty-five percent of an oil-for-gas Nigerian petroleum field. In 2006 the China Civil Engineering
and Construction Corporation displaced the World Bank to provide both the loan and materials
for $8.3 billion modernization of Nigerian railways which India had failed to achieve in previous
regimes. The Yar’Adua administration in 2007 suspended the railway deal and oil deals
118
Harrod, Jeffrey, ‘The New Politics of Economic and Social Human Rights,’ in Arts, Karin and Mihyo, Pascal
(eds.), Responding to the Human Rights Deficit: Essays in Honour of Bas de Gaay Fortman, (The Hague: Kluwer
Law International, 2003), 61-73 at pp.68-72.
119
Baxi, Upendra, The Future of Human Rights, (2nd. Ed.), (New Delhi: Oxford University Press, 2006), pp. 248252.
120
Levine, Steve, Oil and the Glory: The Pursuit of Empire and Fortune on the Caspian Sea, (New York: Random
House, 2007).
121
There is vast body of literature on this point and Thomas Pogge resource privilege has been the most convincing
explanation for the paradox of poverty in the midst of abundant oil revenues in Nigeria. Pogge, Thomas, ‘Severe
Poverty as a Human Rights Violation’, in Pogge, Thomas, (ed.), Freedom from Poverty as a Human Right, (Oxford:
Oxford University Press, 2007), 48-50. See also Karl, Terry Lynn, ‘Ensuring Fairness: The Case for a Transparent
Fiscal Social Contract’, In Humphreys, Macartan; Sachs, Jeffrey D. and Stiglitz, Joseph E. (eds.) Escaping the
Resource Curse, (New York: Columbia University Press, 2007), pp.256-285; Ibeanu, Okey and Luckham, Robin,
’Nigeria Political Violence, Governance and Corporate Responsibility in a Petro-State’, in Kaldor, Mary; Karl Terry
Lynn and Said, Yahia (eds.), Oil Wars, (London: Pluto Press), p.41-99; Ghazvinian, John, Untapped: The Scramble
for Africa’s Oil, (New York: Harcourt, 2007);
122
Shaxson, Nicholas, Poisoned Wells: The Dirty Politics of African Oil, (New York: Palgrave Macmillan, 2007), is
a very shallow understanding of the political economy of oil in Nigeria. He rendered a great disservice to unsung
activists and the generality of Nigerians, both young and old, that daily make sacrifices for a just and prosperous
Nigeria. His conclusion that Africa controls her oil industry and even influences the global oil industry is not borne
out by the “facts” he sketchily presents in his book. A nuanced critique of the book is offered by Ukeje, Charles,
Review of Nicholas Shakson, Poisoned Wells: The Dirty Politics of African Oil. New York: Palgrave Macmillan,
2007, in African Studies Review, Vol. 51, No. 1 (Apr., 2008), pp. 152-153.
123
Wheelwright, Ted, Oil & World Politics: From Rockefeller to the Gulf War, (Sydney: Left Book Club, 1991), p.
111.
21 involving China.124 Nigeria provides fifteen percent of India’s oil imports, second to Saudi
Arabia and under the Obasanjo administration (1999 to 2007) it lost out to China in the
acquisition of oil fields. Indian firms been bogged down by court cases including the two oil
fields initially awarded to Korean National Oil Company which were revoked in January 2009
and handed over to Oil and Natural Gas Corporation (India) ONGC Videsh Limited.125 “India
has attempted to distance itself from the resource diplomacy of the Chinese, which it presents as
having ‘exploitative designs’ on Africa. Quoting a high-level Indian military researcher, AfricaAsia Confidential notes that ‘unlike China, India is pursuing a more inclusive, people-oriented
policy in Africa where its historical connections and well placed Diaspora are incrementally
helping it expand its influence.”126
1. SEC v. Halliburton and KBR
Under United States Foreign Corrupt Practices Act (FCPA)127 proceedings on February 11, 2009,
Kellogg Brown and Root KBR entered guilty pleas to a five-count criminal information in a
federal court in Houston before U.S District Judge Keith P. Ellison and agreed to pay a $402
million criminal fine as part of a plea bargain agreement.128 This was the aftermath of KBR’s
orchestration of a $180million bribe dispensation scheme from 1995 to 2004 allegedly in favor
of Nigerian government officials, which led to the award to KBR of four engineering,
procurement and construction (EPC) contracts for the Bonny Nigerian $6 billion liquefied
natural gas.129 $150 million of the bribes were handled by an agent in Gibraltar and the balance
of $30 million by another agent in Tokyo. 130
KBR and its former parent company Halliburton also agreed to settle the civil aspect of
124
Obi, Cyril, ‘African oil in the energy security calculations of China and India’, in Cheru, Fantu and Obi, Cyril
(eds.), The rise of China and India in Africa: Challenges, opportunities and critical interventions, (London: Zed
Books, 2010), pp. 181-192, at pp. 185-186.
125
Ibid. at p. 188-189.
126
Ibid. at p. 189.
127
Anti-Bribery and Books & Records Provisions of The Foreign Corrupt Practices Act Current through Pub. L.
105-366 (November 10, 1998) UNITED STATES CODE TITLE 15. COMMERCE AND TRADE CHAPTER
2B—SECURITIES EXCHANGES §78m. Periodical and other reports,
http://www.usdoj.gov/criminal/fraud/docs/statute.html (Last visited May 30, 2011).
128
Kellogg Brown & Root LLC Pleads Guilty to Foreign Bribery Charges and Agrees to Pay $402 Million Criminal
Fine: Enforcement Actions by DOJ and SEC Result in Penalties of $579 Million for KBR’s Participation in a
Scheme to Bribe Nigerian Government Officials to Obtain Contracts, Department of Justice February 11, 2009,
http://www.usdoj.gov/opa/pr/2009/February/09-crm-112.html (Last visited May 30, 2011).
129
Id.
130
Id.
22 the suit filed by SEC relating to violation of anti-bribery provisions of the FCPA and both agreed
to pay $177 million in disgorgement of profits relating to books, records and internal control
violations which occurred during payment of the bribes. SEC Chairman Mary Schapiro stated
that: “FCPA violations have been and will continue to be dealt with severely by the SEC, and
other law enforcement agencies. Any company that seeks to put greed ahead of the law by
making illegal payments to win businesses should beware that we are working vigorously across
borders to detect and punish such illicit conduct.” 131 The sanctions above represent the second
largest fines ever paid by American firms since the inception of the FCPA in 1977.132 The former
CEO of the above companies, Albert Jack Stanley met with top Nigerian government officials
and their representatives at least four times.133 The payments were to be concealed through sham
contracts with an agent each in the United Kingdom and Japan.134
Nigerians have mounted pressure on the Nigerian government to release the names of its
officials involved in the bribery scheme and prosecute them.135 In response to these pressures the
Nigerian Attorney General made a request to the United States through a Mutual Legal
Assistance Treaty (MLAT).136 $150 million of the $180 million was discovered by American
investigators to be currently held in Swiss accounts upon enquiries made by Nigeria’s Attorney
General.137 OECD anti-bribery corruption proceedings in France involving the Halliburton case
above, led to the conviction, a 300,000 Euros fine and a three year imprisonment sentence of
Dan Etete, a former Nigerian oil minister under the Abacha dictatorship of the 1990s.138 Etete
expended fifteen million Euros bribery payment received from British Attorney Jeffrey Tesler,
(Abacha’s financial adviser) on purchase of properties in France from 1999 to 2000.139 Etete’s
131
Id.
U.S. Securities and Exchange Commission, Litigation Release No. 20897 / February 11, 2009,
http://www.sec.gov/litigation/litreleases/2009/lr20897.htm (Last visited May 30, 2011).
133
Id.
134
Id.
135
Ayo Olesin et al, Halliburton: Senate, others demand identity of Swiss account owners, Punch, Lagos, April 10,
2009, http://www.punch ng.com/Articl.aspx?theartic=Art200904091231893 (Last visited May 30, 2011).
136
A Request for legal assistance, The Nation, Lagos, March 30, 2009,
http://www.thenationonlineng.com/dynamicpage.asp?id=80765 (Last visited May 30, 2011).
137
Swiss hold ‘$150 m Nigeria bribes’, BBC News, http://news.bbc.co.uk/2/hi/africa/7991447.stm (Last visited April
10, 2009).
138
Hector Igbikiowubo, Money Laundering: French Court hands Dan Etete 3-yr jail term, Vanguard, Lagos,
November 7, 2007,
http://www.vanguardngr.com/index.php?option=com_content&task=view&id=1681&Itemid=42 (Last visited May
30, 2011).
139
Id.
132
23 French accomplice Richard Granier-Defferre was jailed for a year and fined 150,000 Euros.140
2. United States of America v. Siemens Aktiengesellschaft141
Siemens became listed in the United States in 2001 and became subject to the FCPA.
Siemens was the largest German engineering company with a global operation and prior to the
coming into operation of the OECD Convention against bribery in Germany on February 15,
1999142, Siemens regularly procured contracts all over the world including Nigeria through
bribery of government officials. Investigations into the bribery schemes of Siemens commenced
in September 2000 with regard to bribery payments made to a former Nigeria dictator143 who
stole billions of dollars of Nigeria’s crude oil earnings.
These investigations snowballed into concerted efforts by the American DOJ, SEC and
German authorities which resulted in the discovery of a $1.36 billion slush fund employed by
Siemens to bribe government officials globally in order to win contracts.144 According to Linda
Chatman Thomsen, Director of SEC’s Division of Enforcement, press statement:
“This pattern of bribery by Siemens was unprecedented in scale and geographic reach. The
corruption involved more than $1.4 billion in bribes to government officials in Asia, Africa,
Europe, the Middle East and the Americas…our success in bringing the company to justice is a
testament to the close, coordinated working relationship among the SEC, the U.S. Department of
Justice and other U.S. and international law enforcement, particularly the Office of the
Prosecutor General in Munich.” 145
Siemens agreed to pay a total of $1.6 billion in fines and disgorgement of profits in the United
States and Germany including $800 million in the United States, making it the largest combined
sanction in an FCPA case since the FCPA Act was enacted in 1977. 146
4.5. Global financial markets and socio-economic rights
140
Id.
The United States District Court for The District of Columbia Cr. No. 08.367.R16
http://www.usdoj.gov/opa/documents/siemens-ag-stmt-offense.pdf (Last visited May 30, 2011).
142
Id. at 8.
143
Id. at 9.
144
Department of Justice, Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act
Violations and Agree to Pay $450 Million in Combined Criminal Fines: Coordinated Enforcement Actions by DOJ,
SEC and German Authorities Result in Penalties of $1.6 Billion, December 15, 2008,
http://www.usdoj.gov/opa/pr/2008/December/08-crm-1105.html (Last visited May 30, 2011).
145
Id.
146
Id.
141
24 The global financial markets also impact negatively on socio-economic rights in the
developing world especially sub-Saharan Africa. International financial institutions have derided
socio-economic rights.147 “An important part of the story is a set of deeply interwined changes to
labour market rules and institutions and social policy…in the reform agendas of the international
economic and financial institutions during the last ten years.”148 These reform agendas were built
upon the OECD 1994 report entitled the ‘Jobs Study’ and a series of annual reports from the
World Bank called ‘Doing Business.149 Developing countries have surrendered fiscal sovereignty
and responsibility to the World Bank, the International Monetary Fund and private financiers.150
The campaign has been that countries should hands off “the regulation of financial transactions,
international trade, global environment, and international migration.” 151
Washington ephemeral consensus sums up the economic conquest by the West of the
developing world.152 The attributes of these financial multilateral institutions reinforce the
argument that multilateral actions can be wrong. “Indeed in international law circles, an
enthusiasm for multilateralism brings a suspension of judgment.”153 Jacqueline Best has done a
wonderful analysis of this liberalization phenomenon of the abdication of fiscal sovereignty to
the global financial market. She traced the catalyst to President Jimmy Carter’s appointment in
1979 of liberalizing Paul Volcker as head of the Federal Reserve Board who tamed inflation in
America.154 Neoclassical economists’ anathema to politics then proceeded to trump Keynesian
147
Rittich, Kerry, ‘Social Rights and Social Policy: Transformations on the International Landscape’, in Barak-Erez,
Daphne and Gross, Aeyal, M. (eds.), Exploring Social Rights: Between Theory and Practice (Hart Publishing:
Oxford and Portland, Oregon, 2007), 107-134, at p.115.
148
Ibid. at p. 121.
149
Ibid. at pp. 122-124.
150
Shalakany, Amr, ‘I Heard It All before: Egyptian Tales of Law and Development’, Third World Quarterly,
Vol.27, No.5 (2006), pp.833-853; Orford, Anne, ‘Globalization and the Right to Development’, in Alston, Philip,
(ed.), Peoples’ Rights,(Oxford: Oxford University Press, 2001),pp.127-184, at pp.147-157.
151
Shah, Anwar, ‘Fostering fiscally responsive and accountable governance: lessons from decentralization’, in,
Piccioto, Robert and Wiesner, Eduardo, ‘Evaluation & Development,: The Institutional Dimension (New
Brunswick: Transaction Publishers for the World Bank, 1998), pp.83-96 at p.84.
152
Naím, Moisés, ‘Washington Consensus or Washington Confusion?’, Foreign Policy, No.118 (Spring, 2000),
pp.86-103.
153
Wedgwood, Ruth, ‘The Evolution of United Nations Peacekeeping’, 28 Cornell Int’l L.J. (1995), 631-643, at
p.631.
154
“First it is only by removing the boundaries created by states and their governments that the economy will reach a
global equilibrium (thus separating politics from economics). Second, the newly freed global market will then work
to curb the interference of government by punishing inappropriate behavior (thus subordinating politics to
economics). The process of liberalizing global capital movements is thus seen as a means to the end of replacing the
ambiguity of politics with the certainty, efficiency and stability of a free market system.” Best, Jacqueline, The
25 economists who had accommodated state sovereignty.155 This is a throwback to the 1920s laissez
faire American foreign policy in Latin America.156
Neoclassical economists mask their cultural project of wealth creation for the few and the
impoverishment of the many through a false ideology of free markets where everyone can
become rich.157 “Capitalism has always been plagued by socio-economic inequality and the lack
of protection against poverty and destitution.”158 The capacity building efforts of the World Bank
aimed at achieving good governance have been so removed from local realities in certain
instances. This resulted in its project on accounting and management in Tanzania occasioning in
greater corruption within the local councils in Tanzania. The World Bank simply suspended the
program after opening the Pandora box.159
The African State was mandated to privatize health care and education, which increased
illiteracy, the disease burden and accelerated poverty levels.160 But Western countries, the
laboratories of these policies, continued to finance public health and primary education in Europe
and North America.161 Hypocritically, “Washington Consensus” turned a blind eye to increased
defense spending on Western arms imports by African States against the background of falling
demand for Western arms.162 “The poorest 40 percent of the world population has less than 10
percent of the vote in the IMF and accounts for exactly 10 percent of world income. On the other
Limits of Transparency: Ambiguity and the History of International Finance, (Ithaca and London: Cornell
University Press, 2005), p.27.
155
“Yet to achieve this tidy synthesis, they had sacrificed Keynes’ intersubjective insights, relying solely on their
theory’s ability to find technical solutions.” Best, Jacqueline, ‘Hollowing out Keynesian Norms: How the Search for
a Technical Fix Undermined the Bretton Woods Regime’, in Rugge, John Gerard (ed.), Embedding Global Markets:
An Enduring Challenge, (Aldershot: Ashgate, 2008), pp.47-69, at p.57.
156
Helleiner, Eric, ‘The culture of money doctoring: American financial advising in Latin America during the
1940s’, in Best, Jacqueline and Peterson, Matthew (eds.), Cultural Political Economy, (London: Routledge, 2010),
pp. 91-109.
157
Blaney, David L. and Inayatullah, Naeem, ‘Undressing the wound of wealth’, in Best, Jacqueline and Peterson,
Matthew (eds.), Cultural Political Economy, (London: Routledge, 2010), pp. 29-44.
158
Fortman, Bas de Gaay and Goldewijk, Berma Klein, God and the Goods: Global Economy in a Civilizational
Perspective, (Geneva: WCC Publications, 1997), p.10.
159
Kullenberg, Laura, Comments on Shah, Anwar, ‘Fostering fiscally responsive and accountable governance:
lessons from decentralization’, in, Piccioto, Robert and Wiesner, Eduardo, ‘Evaluation & Development,: The
Institutional Dimension (New Brunswick: Transaction Publishers for the World Bank, 1998), pp.102-106, at 104.
160
Adejumobi, Said, ‘Economic Globalization, Market Reforms and Social Welfare Services in West Africa’, in
Aina, Tade Akin; Chachage, Chachage Seithy and Annan-Yao, Elisabeth (eds.), (Dakar: Council for the
Development of Social Science Research in Africa, 2004), pp. 23-42.
161
Ibid. at p. 40.
162
Ibid. at p. 40.
26 hand, 10 percent of the world population living in the richest countries has 43 percent of the IMF
vote and controls 40 percent of world income.”163
The structural adjustment programs (SAPs)
of the “Washington Consensus Troika” in the 1980s and 1990s decimated African economies
and led to the emigration of highly skilled professionals from Nigeria to majorly, Britain and the
United States of America. These were individuals, some of whom had Western passports had
made Nigeria home. Lives were destroyed and families were permanently put asunder by
economic policies emptied of socio-economic consequences. The sapping experiment with
peoples’ lives by SAPs in the 1980s “is now widely regarded as a failure.”164
Group thinking in the 80s and 90s was the mantra of Washington Consensus and there
was no alternative way to neo-liberal economics in its parody of there is no alternative (TINA)
philosophy of Margaret Thatcher, the former British Prime Minister. Group thinking as a
philosophy abhors self-criticism165 and for Washington Consensus it equated with market
fundamentalism. But SAP policies destroyed lives, inflicted mass poverty and caused millions of
death and mass emigration to the Western world from Africa by its highly skilled workforce.
This is akin to the dark sides of medical practice in the United States wherein thousand die from
medical error yearly.166 In a 1989 World Bank publication: “For example, 10,000 highly trained
Nigerians are reported to be working in the United States.”167
In a way the Nigerian experience is similar to the Mexican family experience under
NAFTA. Mexican workers were rendered unemployed in Mexico by NAFTA implementation
enabled by the full coercive strength of the Mexican fiscal policies and unemployed Mexican
163
Milanovic, Branko, Worlds apart: measuring international and global inequality (Princeton: Princeton University
Press, 2005), at p. 150.
164
Kinley, David, Civilising Globalisation: Human Rights and the Global Economy, (Cambridge: Cambridge
University Press, 2009), p. 97.
165
Schulz, Kathryn, Being Wrong: Adventures in the Margin of Error, (New York: ECCO, HarperCollins, 2010),
pp. 152-153.
166
“According to the Institute of Medicine, between 690,000 and 748,000 patients are affected by medical errors in
the United States every year, and between 44,000 and 98,000 die from them.” Ibid. at p. 300.
167
The World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth, (Washington, D.C.: The World Bank,
1989), p. 56.
27 workers sought jobs in the United States of America. This was antithetical to the promise of a
NAFTA creating more jobs in industries that Mexico supposedly had comparative advantages.168
Another fundamental area of globalization are debt servicing obligations which represent
transfer of resources from the poor South to the rich North. Interest payments have exceeded the
amount of principal loans contracted for. These debt payments exceeded forty-three billion
dollars in 1988.169 “This single fact, and the related circumstances, throws a sharp light on the
imbalance in the world economy that renders it virtually impossible for governments to take
significant steps toward meeting basic needs of their populations and fulfilling the proclaimed
rights of the Covenant.”170 President Obasanjo of Nigeria illegally paid the Paris Club
$12.4billion on 21 April 2006 without legislative approval. 171 He subsequently sought the
passage of a retroactive Supplementary Appropriation Bill of 2006 of 1.6 trillion Naira in local
currency.172
The United Nations Committee on Economic, Social and Cultural Rights in its General
Comment No. 2 of 1990 which interpreted Article 22 of the ICESCR on international technical
assistance measures stated that:
“A
matter which has been of particular concern to the Committee in the examination of the reports
of States parties is the adverse impact of the debt burden and of the relevant adjustment measures
on the enjoyment of economic, social and cultural rights in many countries. The Committee
recognizes that adjustment programmes will often be unavoidable and that these will frequently
involve a major element of austerity. Under such circumstances, however, endeavours to protect
the most basic economic, social and cultural rights become more, rather than less, urgent. States
parties to the Covenant, as well as the relevant United Nations agencies, should thus make a
particular effort to ensure that such protection is, to the maximum extent possible, built-in to
programmes and policies designed to promote adjustment. Such an approach, which is
168
Thomas, Chantal, ‘Labour Migration as an Unintended Consequence of Globalization in Mexico’ in Blackett,
Adelle and Lévesque, Christian, Social Regionalism in the Global Economy, (New York: Routledge Taylor&
Francis Group, 2011), pp. 273-289.
169
Schachter, Oscar, International Law in Theory and Practice, (Dordrecht: Martinus Nijhoff Publishers, 1991), 355.
170
Ibid. at p.355.
171
Club de Paris , Paris Club agrees on a comprehensive treatment of Nigeria’s debt, 20 October, 2005,
http://www.clubdeparis.org/sections/communication/archives2005/nigeria9937/viewLanguage/en/downloadFile/PDF/prnigeria201005.pdf (accessed on May 19, 2011).
172
Ogunfolu, A.O. ‘Recent Legal Developments in Nigeria’, University of Botswana Law Journal, (December 2006),
pp.145-156, at p.152.
28 sometimes referred to as ‘adjustment with a human face’ or as promoting ‘the human dimension
of development’ requires that the goal of protecting the rights of the poor and vulnerable should
become a basic objective of economic adjustment. Similarly, international measures to deal with
the debt crisis should take full account of the need to protect economic and cultural rights
through, inter alia, international cooperation. In many situations, this might point to the need for
major debt relief initiatives.” 173
V. Socio-economic rights in Nigeria.
At Nigerian independence on October 1, 1960, the political parties and their leaders were in a
hurry to build schools174, roads, hospitals, industrialize the economy all that Britain the former
colonial power refused to do.175 By the time Britain left, only the University of Ibadan existed as
a college of the University of London. This was at best an attempt to check American influence
in its colonies.176Obafemi Awolowo in his thoughts on the Nigerian constitution177 placed great
premium on education and health care which he implemented during his tenure as the first
indigenous Premier of Western Nigeria with funds from taxes and cocoa exports. He stated that
“the rights to education and health are among the fundamental rights which each family
regarded-and properly so- as inalienable.”178
173
Paragraph 9, full text available at:
http://www.unhchr.ch/tbs/doc.nsf/0/3659aaf3d47b9f35c12563ed005263b9?Opendocument (accessed on May 18,
2011).
174
Asiwaju, A.I. ‘Ashby Reviewed: A Review of Nigeria’s Educational Growth, 1961-1971’, African Studies
Review, Vol. 15, No.1 (Apr. , 1972), pp.1-16; Krieger, Milton, ‘African Policy Linking Education and
Development: Standard Criticisms and a New Departure’, International Review of Education, Vol.34, No.3, (1988),
pp.293-311, at p.296; Krieger, Milton, ‘Education and Development in Western Nigeria: The Legacy of S.O.
Awokoya, 1952-1985’, The International Journal of African Historical Studies, Vol.20, No.4 (1987), pp. 647-667.
175
“All the same it remains true that many ex-colonial states have failed to deliver on the agenda of human rights,
including social and economic rights. This shows the failure of decolonisation, as signifying a complex
configuration of global politics of domination and the ethical incoherence of the postcolonial ruling classes and
power elites. By the term ‘failed decolonisation’ I refer to this complex of causative factors. Indubitably, the
normative impoverishment of global human rights discourse also plays a decisive role.” Baxi, Upendra, ‘Failed
Decolonisation and the Future of Social Rights: Some Preliminary Reflections’, in Barak-Erez, Daphne and Gross,
Aeyal, M. (eds.), (Hart Publishing: Oxford and Portland, Oregon, 2007), pp. 41-55, at p.49
176
Nwauwa, Apollos O. ‘The British Establishment of Universities in Tropical Africa, 1920-1948: A Reaction
against the Spread of ‘Radical’ American Influence’, Cahiers d’Études Africaines, Vol.33, Cahier 130 (1993),
pp.247-274.
177
Awolowo, Obafemi, Thoughts on the Nigerian Constitution, (Ibadan: Oxford University Press, 1966), at pp. 106152.
178
Awolowo, Obafemi, The People’s Republic, (Ibadan: Oxford University Press, 1968), at p.316.
29 Awolowo was the foremost Nigerian exponent of the right to free education at all levels
in Nigeria.179 In his words as the Nigerian finance minister: “The issue of free education is about
the most controversial subject in Nigeria today. Perhaps the main cause of this controversy is that
I happen to be the chief advocate of education at all levels.”180 He was also unrepentant about
both the provision of clean pipe-borne water and a minimum national wage to create a wellnourished citizenry in order to prevent ill-health.181 Awolowo believed that the provision of
health care and education were among the key requirements an underdeveloped country needed
to secure economic freedom to become prosperous.182 “Health facilities do not consist in the
provisions of hospitals alone. They embrace the whole compass of preventive medical facilities,
good food, good water, decent housing and a clean and wholesome environment.”183
In 1967 F.R.A. Williams, the Cambridge trained foremost Nigerian constitutional lawyer,
was concerned with civil and political rights protection and the separation of the executive and
legislative arms of government under a future Nigerian constitution as opposed to the fused
parliamentary legislative and executive model practiced in Nigeria from 1960 to 1966.184 He was
equally concerned with the stealing of public funds by political elites through the award of
inflated contracts on the condition that contractors would donate part of the surplus to their
political parties.185 Corruption was the reason young army officers aborted the first republic. The
only mention Williams made of education in constitutional law was in relation to educating
members of the electorate to enable them elect qualitative leadership.186 Williams belonged to
the conservative generation of British trained lawyers who have dominated Nigerian legal
practice and politics for close to a century during colonial and post-colonial periods. The
paradigmatic shift that occurred in 1978 after twelve years of military rule was the emergence of
a military ruling class that decreed/spawned the 1979 Constitution of the Federal Republic of
179
Awolowo, Obafemi, The Strategy and Tactics of the People’s Republic of Nigeria, (London: Macmillan and Co.
Ltd, 1970) 47-57.
180
Ibid. at p.47.
181
Ibid. at p.58-62.
182
Awolowo, Obafemi, The Path to Economic Freedom in Developing Countries, a lecture delivered at the
University of Lagos, Lagos, Nigeria on 15 March, 1968, at p.9.
183
Awolowo, Obafemi, The Problems of Africa: The Need for Ideological Reappraisal, (London: Macmillan, 1977),
at p.68.
184
Williams, F.R.A. ‘Fundamental Rights and the Prospect for Democracy in Nigeria’, University of Pennsylvania
Law Review, Vol. 115, No.7 (May, 1967), pp.1073-1090.
185
Ibid. at p. 1086-1087.
186
Ibid. at p. 1088-1089.
30 Nigeria modeled upon the American presidential system of government as opposed to the British
model of parliamentary government operated from 1960 to 1966 in the first republic.
1975 was the year Brigadiers Mohammed, Obasanjo and Danjuma seized power from
General Gowon who had declared that the problem of Nigeria was not money, but how to spend
oil revenues. Gowon had on October 1, 1974 reneged on his promise to establish democratic rule
in 1976.187 The military class had in the years preceding the 1979 transition to civil rule under
General Olusegun Obasanjo, established a close relationship with the United States of America.
In 1978 Nigeria incurred $10 million in training its army officers in the United States.188 The
United States recently made a gift of an old warship to the Nigerian Navy to secure the oil rich
Niger Delta.189 The 1979 constitution also looked to India in introducing fundamental objectives
and directive principles of state policy, a euphemism for non-justiciable socio-economic
rights.190
The lack of a benefit of a “veil of ignorance”191 or better put lack of altruism which led
the Nigerian civilian ruling class in 1978 to abandon the socio-economic development impetus of
the 1960 to 1966 first republic will be examined briefly. 192 There were Nigerians during the
Constitutional debates of 1978 that birthed the 1979 Constitution who felt that a constitution that
guaranteed civil and political rights devoid of socio-economic rights did not meet the yearning
and aspiration of the average Nigerian. According to Bade Onimode and E. Osagie:
“It has
187
Collins, P. Dixon, M. Williams, G. ‘Nigeria: Capitalism and the Coup’, Review of African Political Economy,
No. 4 (Nov., 1975), pp.95-98.
188
“Lieutenant T.Y. Danjuma, just retired as Chief of Army Staff and indispensable in insuring the smooth
handover, stated the likely continuity of that relationship: ‘America has the largest English-speaking army in the
world. We value the training we get there highly, and we will continue to subscribe to it for a very long time to
come’-and the non-military impact (oil and gas) will also continue thereby.” Herskovits, Jean, ‘Democracy in
Nigeria’, Foreign Affairs, Vol. 58, No.2 (Winter, 1979), pp. 314-335, at p. 334. Twenty years later in 1999, General
Obasanjo appointed General Danjuma as his defence minister under the present civilian dispensation.
189
Adedoja, Tokunbo, ‘Nigeria renames US Warship NNS Thunder F90’, ThisDay, Lagos, 14 May 2011,
http://www.thisdayonline.com/ (accessed on May 14, 2011).
190
Akande, Jadesola, The Constitution of the Federal Republic of Nigeria, (London: Sweet § Maxwell, 1982), 13.
191
“The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The
aim is to use the notion of pure procedural justice as a basis of theory. Somehow we must nullify the effects of
specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their
own advantage. Now in order to do this I assume that the parties are situated behind a veil of ignorance. They do not
know how the various alternatives will affect their own particular case and they are obliged to evaluate principles
solely on the basis of general considerations.” Rawls, John, A Theory of Justice,(Cambridge: Harvard University
Press, 1971), at pp.136-137.
192
There were exceptional figures like the American educated Nnamdi Azikwe, Aminu Kano and the seminal
thinker, Jeremiah Obafemi Awolowo who fervently believed that socio-economic rights were the graven of a truly
equitable and just constitutional arrangement.
31 even been argued that if the state may not be able to provide free education at all levels, right to a
job, shelter and free medical care, these should not be justiciable rights. But surely in the past,
freedom of expression, the press, assembly, etc were justiciable even when the majority of our
population was submerged in a ‘culture of silence’ through illiteracy which denied them freedom
of expression in official English, when the press was officially gagged and peaceful assembly
denied.”193
On the other hand was the pro-establishment camp allied with the Nigerian Constitutional
Drafting Committee (CDC), appointed by the military junta. The CDC was headed by F.R.A.
Williams and its views on socio-economic rights in its report submitted to the junta in 1976 were
that:
“By their nature, they are rights which can only come into existence after the government has
provided facilities for them. Thus if there are facilities for education or medical services one can
speak of the ‘right’ to such facilities. On the other hand, it will be ludicrous to refer to the ‘right’
to education or health where no facilities exist. If one has in mind the right of an individual to
insist on the provision of these facilities then it is a ‘right’ which depends on the availability of
resources and in the final analysis one is really referring to the obligation or duty of the
government to provide the facilities. This is why majority of the members of the Committee feel
that it is better and more realistic to make provision for economic and social rights in the portion
of the Constitution dealing with fundamental objectives and directive principles rather than in the
section dealing with fundamental rights. Most of the fundamental rights are in a sense, natural
rights vested in every individual and to which he is entitled without any obligation or duty on the
part of the government to provide facilities for their enjoyment. Thus, the rights to freedom of
expression or to liberty of a person are rights which do not depend upon the provision of any
facilities by the government. Moreover, all fundamental rights are, in the final analysis, rights
which impose limitations on executive, legislative or judicial powers of government and are
accordingly justiciable. By contrast, economic and social ‘rights’ are different. They do not
impose any limitations on governmental powers. They impose obligations of a kind which are
not justifiable. To insist that that the right to freedom of expression is the same kind of ‘right’ as
193
Eze, Osita, Human Rights in Africa: Some Selected Problems, (Lagos: Macmillan Publishers, 1984), at p. 32.
32 the ‘right’ to free medical facilities and can be treated alike in a constitutional document is, the
majority of us feel, basically unsound.”194
The great biases majority of the CDC members harbored against socio-economic rights
are apparent in their lexicon. Note that with socio-economic rights the CDC tags them not
justifiable as opposed to civil and political rights which are justiciable (and justified). One of the
earliest influential books on constitutional law in Nigeria did not even mention socio-economic
rights.195 It might have been due to the fact that they were not even considered during the
constitutional conferences where the concern was about ethnic minorities196 and religious
minorities197 which influenced the inclusion of Chapter III provisions on only civil and political
rights in the 1960 independence constitution. The above narrative reinforces Karl Klare’s
position that: “For present purposes it is enough to note that the very existence of this debate
shows that rights discourse is socially constructed, that conceptions of rights are embedded
within and framed by particular political and social visions.”198
More importantly Henry Shue reinforces the point made earlier, that civil and political
rights also demand positive action on the part of the State. According to Shue:
“But such protection against the deprivation of subsistence is in all major respects like
protection against deprivations of physical security or of other rights that are placed on the
negative side of the conventional negative/positive dichotomy. I believe the whole notion that
there is a morally significant dichotomy between negative and positive rights is intellectually
bankrupt.”199
According to the foremost Nigerian professor of constitutional law, Benjamin Obi
Nwabueze, in his book published in 1964, socio-economic rights were like Bentham fantasies on
utopian stilts: “To include in a Constitution a supposedly enforceable guarantee of social and
194
Id.
Odumosu, Oluwole Idowu, The Nigerian Constitution: History and Development, (London: Sweet § Maxwell,
1963).
196
Ibid. at pp. 242-250.
197
Parkinson, Charles O.H. Bills of Rights and Decolonization: The emergence of domestic human rights
instruments in Britain’s overseas territories, (Oxford: Oxford University Press, 2007) at p. 139.
198
Klare, Karl E. ‘Legal Theory and Democratic Reconstruction: Reflections on 1989’, 25 U .Brit. Colum. L. Rev.
Vol. pp.69-103, at p. 97.
199
Shue, Henry, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy, (Princeton, New Jersey: Princeton
University Press, 1980), p.51.
195
33 economic rights is to employ a constitutional bill of rights for a purpose which it is inappropriate.
Such a guarantee is ineffective because it cannot be judicially enforced. With the best will in the
world, a state may find it beyond its power to provide work for all its subjects, and it would be
silly to compel it by means of a judicial order to do so in these circumstances; at best it may be
able to provide meagre unemployment allowances. The ineffectiveness of a constitutional bill of
rights for this purpose would even be more marked in relation to underdeveloped countries
where the material means to provide these benefits are almost non-existent. The solution to the
inadequate social welfare services in these countries lies not in legal guarantees but in economic
development through industrialization.”200
The chicken has come home to roost for cynics of socio-economic rights, because the
non-justiciability of socio-economic rights has rendered the disbursement of government
revenues in Nigeria opaque and unaccountable. This has led to mind boggling venality on the
part of the custodians of oil and tax revenues. Professor Nwabueze has lamented in recent times
about the monumental corruption proclivities of the Nigerian ruling class, which has proved a
huge barrier to the realization of socio-economic rights. This explains why poverty is endemic in
Nigeria and the social security provisions remain illusory under the social objectives of the
directive principles of the 1999 Constitution.201
1. Nigerian socio-economic jurisprudence
Judicial powers are vested in the courts by Section 6 of the 1999 Constitution of the Federal202
Republic of Nigeria, which in the same breath makes enforcement of socio-economic rights nonjusticiable. The judicial arm of government has acquitted itself creditably in the fifty years of
Nigeria’s independence and this study aims to learn how it can become relevant in the realization
of socio-economic rights in Nigeria.203 The legislative arm of government in Nigeria has been
200
Nwabueze, B.O. Constitutional Law of the Nigerian Republic, (London: Butterworths, 1964), at p. 408.
Akande, Jadesola, Introduction to the Constitution of the Federal Republic of Nigeria, (Lagos: MIJ Professional
Publishers, 2000), 59-60.
202
How truly federal is Nigeria? That is another contentious field entirely which also kicks into the accountability
deficit equation of an immensely powerful centre headed by an imperial president immune from criminal
prosecution while in office.
203
“The progressive aspect of legislative justice shows itself much more often in statutes, Acts of the legislature,
than in case law, judgments of the higher courts. That is to be expected, as a consequence of the different political
functions of the legislature and the judiciary. Politicians are elected to the legislature in order to express the will of
the people, and one of their main tasks is to enact laws serving that purpose. Judges are appointed to apply the law,
fairly and efficiently, not to change it. But from time to time there are good reasons for judges to change the law.
The legislature is too preoccupied with the multifarious business of politics to make all the changes that are needed
201
34 supine in being a check on the venality of the executive arm of government and has rather been
more interested in the perks of a “full time job” of legislating for their personal welfare. There
have been a few exceptions at the state level. In Ogun State in 2010, the state assembly stood up
to a tyrannical governor and demanded fiscal accountability. The governor simply deployed
policemen to lock up the chambers of the state assembly and reopened it for some minutes in
cohort with nine members in a house of over twenty legislators to impeach the speaker of the
house and passed the state budget into law. A brief examination of some decisions of the courts
will be done here.
The Exclusive Legislative List under the 1979 Constitution of the Federal Republic of
Nigeria conferred powers on the federal government to establish and regulate authorities “to
promote and enforce the observance of the fundamental objectives and directives principles
contained in the Constitution.204 This same provision was drafted into the 1999 Constitution as
item 60(a) under the Exclusive Legislative List. In furtherance of the corruption eradication goals
of Section 15(5) of the fundamental objectives and directive principles of state policy, the
Corrupt Practices and Other Related Offences Act was enacted and it came into force on June 13,
2000. In an action filed at the Supreme Court by the Ondo State government which challenged
the legality of some provisions of the Act, Justice Uwaifo stated that:
“As to the non-justiciability of the Fundamental Objectives and Directive Principles of State
Policy in Chapter II of our Constitution, section 6 (6) (c) says so. While they remain mere
declarations, they cannot be enforced by legal process but would be seen as a failure of duty and
responsibility of State organs if they acted in clear disregard of them, the nature of the
consequences of which having to depend on the aspect of the infringement and in some cases the
to iron out injustices (unfairness) in the law as it has developed over the years. When judges take on this task, they
are sometimes a bit like legislators in reflecting general opinion of the day-but on broad moral principles, not on any
and every contentious issue…Take as an example the celebrated case of Brown v. Board of Education in
1954…in…England…Lord Denning…said in (Davis v. Johnson [1979] AC 264, at 274)… that, while the law of the
nineteenth century had attached great importance to rights of property, there had more recently been a change of
course: ‘Social justice requires that personal rights should, in a proper case, be given priority over rights of
property.’ In 1989 Lord Emslie, the Lord Justice-General of Scotland, changed the criminal law of that country by
ruling that a husband could be guilty of rape against his wife. His examples prompted a Member of Parliament to
propose that a similar change be made to English law by statute; it was in fact made in 1991 by the Court of Appeal
in a judgement (sic) delivered by Lord Lane, the Lord Chief Justice, as was then confirmed by the House of Lords in
its judicial capacity.” Raphael, D,D. Concepts of Justice, (Oxford: Clarendon Press, 2001), pp.3-4.
204
Item 59(a).
35 political will of those in power to redress the situation. But the Directive Principles (or some of
them) can be made justiciable by legislation.”205
The Nigerian jurisprudence on socio-economic rights in the past, have mainly arisen out of
adjudication upon civil and political rights which are justiciable, due to the fact that socioeconomic rights are not justiciable courtesy of Section 6(6)(c) of the Constitution of the Federal
Republic of Nigeria 1999, which states that:
6.-(6) The judicial powers vested in accordance with the foregoing provisions of this
section-… (c) shall not, except as otherwise provided by this Constitution, extend to any
issue or question as to whether 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 and Directive
Principles of State Policy set out in Chapter II of this Constitution.
The above provision was a carbon copy of a similar provision in the Nigerian 1979 Constitution.
The few decisions of the courts dealing with directive principles will examined here and they
were mainly decided under the 1979 Constitution. In a Lagos High Court decision of 18 July,
1980, Justice Agoro observed that:
“In any event, it seems to me that the Directive Principles of State Policy in Chapter II of the
Constitution have to conform to and run as subsidiary to the Fundamental Rights under Chapter
IV of the Constitution. If there is no infringement of any Fundamental Right there can be no
objection to the State acting in accordance with the directive principles set out in Chapter II
subject of course to the legislative and executive powers conferred on the State. See the Indian
case of State of Madras v Champakam (1951) SCR 525.” 206
In a subsequent Lagos High Court decision of 22 August, 1980 the same verdict was
reached that Chapter IV fundamental human rights provisions were superior to Chapter II
provisions.207 The Court of Appeal on 22 July, 1991 for the first time categorized Fundamental
Objectives and Directive Principles of State Policy as rights but devoid of enforcement.
According to the President of the Court of Appeal, Justice Nasir:
205
Attorney General of Ondo State v Attorney General of the Federation and Attorneys-General of 35 States,
(2002), 9 NWLR (pt. 772), 222, at 382.
206
Archbishop A.O. Okogie v The Attorney-General of Lagos State[1981] 1NCLR, 218 at 232
207
Adewole and others v Governor of Lagos State and others, [1981] 1 NCLR, 262, at 282-287.
36 “It is common ground that citizens and aliens alike enjoy legal rights popularly called civil
rights which are ordinarily enforceable and justiciable in our courts. Out of the civil rights some
have been chosen and elevated to the level of Fundamental Rights and are protected and
enforced under the Constitution…There are other rights which may pertain to a person which are
neither fundamental nor justiciable in the courts. These may include rights given by the
Constitution as under the Fundamental Objectives and Directive Principles of State Policy under
Chapter II of the Constitution.”208
Civil liberties have been employed by the judicial system to incorporate medical
treatment of prisoners under the custody of prison authorities in Nigeria. A good example is the
case of four mentally ill prisoners incarcerated at the notorious Kirikiri maximum security
prison, in Lagos, who were held to have had their personal dignity violated and were ordered to
be transferred to a psychiatry hospital by a Federal High Court in compliance with sections 7 and
8 of the Prisons Act.209
VI. Making Socio-Economic Rights Justiciable In Nigeria
The 1999 Constitution of the Federal Republic of Nigeria is almost identical to the 1979
Constitution and were both drafted by military juntas of close affinity. The 1976 Constituent
Assembly heavily controlled by the military troika of generals Obasanjo, Yar’Adua and
Danjuma, which drafted the 1979 Constitution; “ defined political power as ‘the opportunity to
acquire riches and prestige, to be in a position to hand out benefits in the form of jobs, contracts,
gifts of money etc to relations and political allies.”210 The army handed power to civilians in
208
Uzouku and others v Ezeonu II and others (1991) 6 NWLR (pt. 200), 708 at 761.
Ishmael Azubuike & 3 Others v. Attorney-General of the Federation & 3 Others, unreported Suit No.
FHC/PH/CS/679/2003, Justice R.O. Nwodo, Port Harcourt Division, judgment delivered on 23 February, 2004,
cited in Odinkanlu, Chidi Anselm, ‘The Impact of Economic and Social Rights in Nigeria: An Assessment of the
Legal Framework for Implementing Education and Health as Human Rights’, in Gauri, Varun and Brinks, Daniel M.
(eds.), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World,
(Cambridge: Cambridge University Press, 2008), pp. 183-223 at p. 214.
210
Bayart, Jean-Francois, The State in Africa: Politics of the Belly, (London and New York: Longman, 1993), at p.
xvii.
209
37 1979 and reclaimed power in 1983.211 Chapter two of the 1999 Constitution contains the answers
to Nigeria’s development paradox and a chance to recapture the development momentum of the
early 1960s. But Nigeria has been unfortunate with leadership from 1966 till date and even the
leadership at the helm of the central government in the early sixties was intolerant of
opposition.212 Billions of dollars of petroleum exports earned from 1966 to date have not been
used to improve the traditional agricultural sector, its export potentials, and invest in the
manufacturing sector. 213
In 1961 the United States of America gave Nigeria $225 million to fund education, water
supply and roads. “Three new universities, Ahmadu Bello in the north, the University of Nigeria
at Nsukka in the east, and Ife in the west were started at that time in collaboration with American
land-grant colleges on which they were modeled, including Kansas State, Michigan State, and
Colorado.”214 This was a positive moment for American aid. Countries like Botswana and the
Western Regional Government in Nigeria in its early years under Awolowo, with effective
political leadership that supported agriculture, utilized aid expatriates on their autochthonous
terms and encouraged entrepreneurship succeeded.215
But there was a flipside at the onset of aid undermining the capacity of recipient
countries to function effectively.216 By 1988 there were over 1700 aid organizations worldwide
211
Othman, Shehu, ‘Classes, Crises and Coup: The Demise of Shagari’s Regime, African Affairs, Vol. 83, No. 333(
Oct. , 1984), at pp. 441-461.
212
“One important feature noted in virtually all the administrations in Nigeria during this period is the quest for
power for the sole purpose of enriching government functionaries, their families, and their close associates, to the
detriment of national economic growth. Nigeria has suffered from a lack of leaders genuinely interested in public
welfare and the development of the national economy; it is therefore not surprising that the policies, programs, and
projects they pursued failed to support a sustainable development of the economy. Almost all the administrations in
Nigeria during this sub-period were unsuccessful because they failed to effect changes in the basic structure of the
economy…” Iyoha, Milton A. and Oriakhi, Dickson E. ‘Explaining African Economic Growth Performance: the
case of Nigeria’, in Ndulu, Benno J. et al (eds.), The Political Economy of Economic Growth in Africa, 1960-2000,
Volume 2, Country Case Studies, (Cambridge: Cambridge University Press, 2008), pp. 621-659, at p. 656
213
“ With crude oil becoming the dominant product in Nigeria’s exports, political elites and their administrations
failed to harness the receipts from oil for a proper diversification of the export base of the economy. Instead they
engaged in capital flight and massive importation of consumer goods, to the detriment of the balance of payments
position. Ethnic affiliations and nepotism acted over time to constrain the growth process: the majority of leaders
directed their attention to the diversion of state resources-public investments, infrastructure improvements, public
sector employment-to the regions that constituted their political base. This phenomenon is central to the political
instability that has been a permanent feature in Nigeria since the 1960s, with dire consequences, including the
discouragement of foreign investment and encouragement of capital flight and brain drain.” Ibid. at p. 657.
214
Whitaker, Jennifer Seymour, How Can Africa Survive? (New York: Harper& Row Publishers, 1988), p. 65.
215
Ibid. at pp. 79-80
216
“One major obstacle to effective coordination of donor efforts was built into the process at its earliest stages by
the parliament of all Western countries- through the “tying” of aid to exports. A hefty chunk of U.S. bilateral
assistance to Africa always goes for equipment imported from the United States and the salaries of U.S. aid
38 engaged in “appalling waste in competing and duplicative programs…With each of them looking
to make a mark of some sort, the problems of coordination resemble those of the great
Crusades.”217 Aid partners have always been in the driver’s seat with the Nigerian government as
the passenger sterilized from contributing to the aid agenda. “The most acute Western myopia
about how thing worked was in the failure to recognize that African women produce most of
Africa’s food.”218 In 2003, the Global Society Yearbook of the London School of Economics
identified a worldwide figure of 59, 000 international NGOs with more than fifty of them present
in Nigeria.219 This explosion in the number of NGOs has compounded the problems of
duplicated and conflicting programs. 220 “Aid objectives must be more nuanced to remedy its
drawbacks.221
Nigeria can do without foreign aid, if its oil revenues are judiciously managed. “The
promotion of NGOs leads to an erosion of official administrative capacity and institutional
capacity, a reinforcement of the power of elites, particularly at the local level, or of certain
factions, and sometimes a stronger ethnic character in the destination of flows of finance from
personnel. The share of British, French, and German aid tied to recipients’ purchase of their exports is much higher.
As a result, African procurement policies have often focused on the supply side rather than on end use, assembling a
hodgepodge of vehicles and machines that did not work well in local conditions or could not be serviced easily. An
adequate inventory of spare parts for, say, tube wells in Tanzania would include items from 16 countries. In the
upshot, shared goals for long-term development lost a lot of their credibility for Africans and much of their reality
for donors. Surveying this graveyard of mostly good intentions, some observers were happy to conclude that in
Africa aid did more harm than good: if Africans weren’t so hooked on international welfare payments they would
have pulled up their socks and turned things around. This conviction numbed concern about the fact that aid levels
were falling anyway. Conveniently, aid bore the brunt of donors’ frustration at their inability to solve-sometimes
even to understand-very basic problems in the countries they were trying to assist. The equation, however, was not
so simple. In fact, a number of aid programs succeeded: without them African countries would have been decidedly
worse off. Clearly, the foundations laid for African university education right after Independence bore fruit in a
generation of African trained professionals. Twenty years later Nigeria’s universities teemed with students.” Ibid.
at pp. 76-77.
217
Ibid. at p. 210.
218
Ibid. at p. 209.
219
Riddell, Roger C. Does Foreign Aid Really Work, (Oxford: Oxford University Press, 2007), at p. 54.
220
Ibid. at pp. 399-400.
221
“The aid business-donor agencies, international financial institutions, thousands of NGOs, an army of
consultants, and more-are all supposed to be working to reduce poverty in Africa. This is partly about transferring
money from the rich world to poor countries, but also about the spread of ideas and values. Much of the aid industry
is driven by greed,, self-interest, or geostrategic concerns, but there is also a strong streak of humanitarianism
involved. Especially after the fall of the Berlin Wall and the dissipation of Cold War reasons for maintaining aid
programs in Africa, the aid business rediscovered its purpose in poverty reduction. The latest manifestation of this is
the Millennium Development Goals, a series of targets the development community has pledged to meet by
2015…In general, there are two broad, and not mutually exclusive, strategies for combating poverty: boosting
growth and delivering services directly to the poor.” Moss, Todd J. and Goldstein, ’Poverty and Development’, in
Moss, Todd J. African Development: Making Sense of the Issues and Actors, ( Boulder and London: Lynne Rienner
Publishers, 2007), pp.163-185 at p.173.
39 abroad.”222 Research and development is a vital path to Nigeria’s prosperity.223 The various
nationalities that make up Nigeria had for centuries before British colonial rule engaged in
commerce, grew their own food, crafted their tools and had effective autochthonous governance
structures. These capacities were eroded first with forcible conversion of food crop acreage by
the colonial power to cash crops to fund empire. Coffee, tea, cocoa, rubber, and especially cotton
and tobacco leached African soil creating famine in the long-run, while the dependency on
imported pesticide and fertilizer was established. African ecology of fragile soil was thereby
fundamentally destroyed to produce famine in later years.
Colonial marketing boards made a huge profit from the cheap labor of coerced African
farmers who had become locked into tax cum money structure of colonialism. The indigenous
system of surplus food production was brutally attacked.224 “Colonialism shattered this
system.”225 Despite the fact that Argentina, Colombia and South Africa provided the Nigerian
military junta with examples of transformative constitutions containing justiciable socioeconomic rights, it decreed into existence the 1999 constitution that only provided for justiciable
civil and political rights with socio-economic rights as fundamental objectives and directive
principles of state policy. This was a continuation of the military’s opposition to socio-economic
rights demonstrated when it decreed a similar 1979 constitution into existence on similar terms.
The 1950 Indian Constitution had similar provisions under Chapter IV entitled ‘Directive
Principles of State Policy.226 Article 37 of the Indian Constitution states that: “The provisions
contained in this part shall not be enforceable by any court, but the principles therein laid down
are nevertheless fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws”.227 On the other hand South Africa’s 1996
Constitution made socio-economic rights justiciable, and her people have benefited from the
222
Hibou, Bèatrice, ‘The ‘Social Capital’ of the State as an Agent of Deception or the Ruses of Economic
Intelligence’ in Bayart, Jean-Franҫoise; Ellis, Stephen and Hibou Bèatrice, (eds.), The Criminalization of the State in
Africa, (Oxford and Bloomington: The International African Institute in association with James Currey & Indiana
University Press, 1999), pp. 69-113, at p. 99.
223
Schabas, William A. ‘The Study of the Right to Enjoy the Benefits of Scientific and Technological Progress’, in
Donders, Yvonne and Volodin, Vladimir (eds.), Human Rights in Education, Science and Culture: Legal
Development and Challenges, (Hampshire and Paris: Ashgate and UNESCO Publishing, 2007) at pp. 273-307.
224
Ibid. at pp. 126-166.
225
Ibid. at p. 128.
226
Reproduced in Coomans, Fons, (ed.), Justiciability of Economic and Social Rights: Experiences from Domestic
Systems, (Antwerpen-Oxford: Intersentia, 2006), pp. 420-421.
227
Ibid. at p. 420.
40 jurisprudence of its Constitutional Court on socio-economic rights. “South Africa’s courts have
taken an account of the fact that the justiciability of socio-economic rights is never an ‘either-or’
question, but always only a matter of degree.”228
Argentina recognized socio-economic rights under its 1949 Constitution which was
abrogated in 1955 when President Peron was deposed in the coup d’état of 1955, but the 1853
Constitution was resurrected and in 1957 infused with socio-economic rights relating to the
rights of workers supported with social insurance and modeled on ‘industrial democracy’.229 The
watershed moment was in 1994 when the two major political parties in Argentina amended the
1853 Constitution which allowed President Menem an extra term in office, based on the
condition that the Convention for the Elimination of all Forms of Discrimination against Women,
the Conventions on the Rights of the Universal Declaration of Human Rights, the American
Convention on Human Rights were granted constitutional hierarchy and added to the existing
Bill of Rights in the 1853.230 Argentina operates a monist constitution which makes international
treaties she is a party to automatically operative in domestic courts and Section 75 § 22 of the
Argentine Constitution grants international treaties a higher status than domestic enactments.231
Court decisions in Argentina from the 1940s have been enforcing labor rights.232
The Argentine courts have also enforced social security rights for over forty years.233
Health rights came under the jurisdiction of the Argentine courts from the 1990s and her
“Supreme Court has held that the right to health creates positive-and not only negativeobligations for the state.”234 The creation of the post of the Ombudsperson twenty years ago in
Argentina at the federal and provincial levels has facilitated the enforcement of socio-economic
rights, and they have “locus standi to initiate legal actions in cases of alleged collective
violations of fundamental rights.”235
228
Brand, Danie, ‘Socio-Economic Rights and Courts in South Africa: Justiciability on a Sliding Scale’, in
Coomans, Fons, (ed.), Justiciability of Economic and Social Rights: Experiences from Domestic Systems,
(Antwerpen-Oxford: Intersentia, 2006), pp. 207-236 at p. 207.
229
Courtis, Christian, ‘Socio-Economic Rights Before the Courts in Argentina’, in Coomans, Fons, (ed.),
Justiciability of Economic and Social Rights: Experiences from Domestic Systems, (Antwerpen-Oxford:
Intersentia, 2006), pp. 309-353, at pp. 310-311.
230
Ibid. at p. 312.
231
Ibid. at p. 314.
232
Ibid. at pp. 317-320.
233
Ibid. at pp. 320-323.
234
Ibid. at p. 324.
235
Ibid. at p. 313.
41 Colombia is another example, her 1886 Constitution had a frugal bill of rights without
justiciable socio-economic rights, but change came with the 1991 Constitution formulated by the
Constituent Assembly of 1991. The Constituent Assembly had over forty percent of its members
who did not belong to the parties that had dominated Columbia for over a century, namely the
Conservative and Liberal parties.236 Members of the Constituent Assembly who had never been
in power were political parties of former guerilla fighters, a leftist party, parties representing
students, children and Christians who were not Catholics and indigenous parties. They mobilized
a consensual approach in the deliberations of the Assembly to formulate a constitution to expand
democracy in order “to confront a generalised state of political corruption and violence.”237
As a result:
“In that framework, it is not surprising that the ideological orientations of the 1991 Constitution
were radically different from the former Constitution, and included the incorporation of a rich
charter of rights accompanied by new and effective judicial mechanisms for their protection, the
broadening of participation mechanisms, and the imposition of equality duties and social justice
upon the state. The 1991 Constitution’s objective was to introduce a new model of society and to
transform Colombia’s reality. It is, using Teitel’s word, a ‘forward looking’ rather than
‘backward looking’ (Teitel: Yale Law Journal 2007) Constitution.”238
The 1991 Colombian Constitution contains civil and political rights, socio-economic
rights, third generation or collective rights and it makes international treaties including the ILO
Conventions legally binding; and all these rights cannot be suspended during a state of
emergency. A special organ, the Constitutional Court was also created to interpret and apply the
provisions of the 1991 Constitution. The 1991 Colombian Constitution “also designed a special
constitutional procedure for constitutional claims that makes access to constitutional justice
much easier and not so costly. This certainly favours some kind of judicial activism regarding
human rights, which had less legal grounding in the former constitution.”239
Comparative constitutional law has proved that courts’ political influence increase when
236
Yepes, Rodrigo Uprimny, ‘Should Courts Enforce Social Rights? The Experience of the Colombian
Constitutional Court’, in Coomans, Fons, (ed.), Justiciability of Economic and Social Rights: Experiences from
Domestic Systems, (Antwerpen-Oxford: Intersentia, 2006), pp. 355-388 at pp. 356-357.
237
Ibid. at p. 357.
238
Ibid. at p. 358.
239
Ibid. at p. 358.
42 access to court is simplified.240 “Constitutional justice can become an important instrument for
democratic progress, only if we think of it as part of broader social struggles. The
accomplishment of the emancipation promises made by the 1991 Constitution is too serious a
matter to leave it only to judges: citizens’ participation is indispensable for the realization of
democracy.”241 Power, prosperity and poverty are inextricably woven factors in the politicaleconomic and socioeconomic permutations of any society’s tapestry.242 Political power and
economic power shapes the constitutional arrangements in societies.243
This paper is about remedying the accountability deficit of the Nigerian government to
utilize oil and tax resources efficiently to generate economic development and reduction of
poverty. This is what Botswana has been able to achieve with revenues from diamonds.244 India
has also partially reduced poverty.245 Education, research and development have been recognized
as crucial drivers for South Africa’s development.246 The above cases are in tandem with the
goals of the Commission on Growth and Development launched in April 2006 by twenty-two
individuals mainly from the developing world with links to academia, the public and private
sectors. The Commission is funded by Australia, Sweden, the Netherlands and the United
Kingdom, the World Bank as well as the William and Flora Hewlett Foundation.247
The Commission in 2008 released a report entitled: ‘The Growth Report: Strategies for
Sustained Growth and Inclusive Development’ The Report recognized the primacy of health,
240
Ibid. at p. 360.
Ibid. at pp. 387-388.
242
Galbraith, John Kenneth, ‘Power and Organization’, in Lukes Steven (ed.) Power, (New York: New York
University Press, 1986), at pp. 211-228.
243
Russell, Bertrand, ‘The Forms of Power’, in Lukes Steven (ed.) Power, (New York: New York University Press,
1986) pp. 19-27; Weber, Max, ‘Domination by Economic Power and by Authority’, in Lukes Steven (ed.) Power,
(New York: New York University Press, 1986), at pp. 28-36.
244
Maipose, Gervase S. ‘Policy and Institutional Dynamics of Sustained Development in Botswana’, Working
Paper, No. 35, (Washington, D.C.: The International Bank for Reconstruction and Development / The World Bank
On Behalf of the Commission on Growth and Economic Development, 2008),
http://www.growthcommission.org/storage/cgdev/documents/gcwp035web.pdf, (accessed on June 15, 2011).
245
Ahmed, Sadiq and Varshney, Ashutosh, ‘Battles Half Won: The Political Economy of India’s Growth and
Economic Policy since Independence’, Working Paper, No. 15, (Washington, D.C.: The International Bank for
Reconstruction and Development / The World Bank On Behalf of the Commission on Growth and Economic
Development, 2008), http://www.growthcommission.org/storage/cgdev/documents/gcwp015web.pdf (accessed on
June 15, 2011).
246
Faulkner, David and Loewald, Christopher, ‘Policy Change and Economic Growth: A Case Study of South
Africa’, Working Paper, No. 41, (Washington, D.C.: The International Bank for Reconstruction and Development /
The World Bank On Behalf of the Commission on Growth and Economic Development, 2008),
http://www.growthcommission.org/storage/cgdev/documents/gcwp041web.pdf (accessed on June 15, 2011).
247
http://www.growthcommission.org/index.php?option=com_content&task=view&id=13&Itemid=58 (accessed on
June 15, 2011).
241
43 education and poverty reduction as both drivers and ultimate goals of economic growth.248 The
Commission’s Working Paper on Nigeria also focused on these socio-economic factors.249 The
Commission’s Working Paper on health also recognized the importance of this socio-economic
good as a key development driver.250 Institutions are also fundamental to the development
process.251 In spite of $400 billion of oil revenues from 1965 to 2005, Nigeria ranks third behind
China and India in the total number of the world’s poor earning less than a dollar per day.252
Education and health are essential foundations for rapid economic development.253
The ruling elite in societies determine the trajectory of social arrangements. Quasieconomic liberals who dominate the socio-political terrain in Nigeria have been greatly
influenced by western liberalism but Nigerian laissez-faire oligarchs dominant since 1966 have
no understanding that economic liberalism does not equate with callous laissez-faire. Karl
Polanyi went to great lengths in his seminal work, ‘The Great Transformation’ to explain the
difference.254 Simply put, the coercive law of the state was employed to establish the conditions
for a market based economy through labor law and anti-trust legislation.255 These were used to
248
http://cgd.s3.amazonaws.com/GrowthReportComplete.pdf (accessed on June 15, 2011).
Iyoha, Milton A. ‘Leadership, Policy Making, and Economic Growth in African Countries: The Case of Nigeria’,
Working Paper, No. 17, (Washington, D.C.: The International Bank for Reconstruction and Development / The
World Bank On Behalf of the Commission on Growth and Economic Development, 2008),
http://www.growthcommission.org/storage/cgdev/documents/gcwp017web.pdf (accessed on June 15, 2011).
250
Behrman, Jere R. ‘Early Life Nutrition and Subsequent Education, Health, Wage, and Intergenerational Effects’,
Working Paper, No. 33, (Washington, D.C.: The International Bank for Reconstruction and Development / The
World Bank On Behalf of the Commission on Growth and Economic Development, 2008),
http://www.growthcommission.org/storage/cgdev/documents/gcwp033web.pdf, (accessed on June 15, 2011).
251
Acemoglu, Daron and Robinson, James, ‘ Working Paper, No. 10, (Washington, D.C.: The International Bank for
Reconstruction and Development / The World Bank On Behalf of the Commission on Growth and Economic
Development, 2008), http://www.growthcommission.org/storage/cgdev/documents/gcwp010web.pdf, (accessed on
June 15, 2011).
249
252
Ibid. at p. 171.
Ibid. at p. 275.
254
Polanyi, Karl, The Great Transformation, (Boston: Beacon Press Paperback Edition, 1957).
255
Ibid. at p. 148, “It is highly significant that in either case consistent liberals from Lloyd George and Theodore
Roosevelt to Thurman Arnold and Walter Lippmann subordinated laissez-faire to the demand for a free competitive
market; they pressed for regulations and restrictions, for penal laws and compulsion, arguing as any “collectivist”
would that the freedom of contract was being “abused” by trade unions, or corporations, whichever it was.
Theoretically, laissez-faire or freedom of contract implied the freedom of workers to withhold their labor either
individually or jointly, if they so decided; it implied also the freedom of businessmen to concert on selling prices
irrespective of the wishes of the consumers. But in practice such freedom conflicted with the institution of a selfregulating market, and in such a conflict the self-regulating market was invariably accorded precedence. In other
words, if the needs of a self-regulating market proved incompatible with the demands of laissez-faire, the economic
liberal turned against laissez-faire and preferred-as any antiliberal would have done- the so-called collectivist
methods of regulation and restriction. Trade union law as well as antitrust legislation sprang from this attitude.”
253
44 establish “the preconditions of a self-regulating market”256 and defang the excesses of a laissezfaire economy ridden with cartels and monopolists.
Conclusion
The United Nations Millennium Development Goals for 2015 are to eradicate extreme
poverty and hunger; achieve universal primary education; promote gender equality and empower
women; reduce child mortality; improve maternal health; combat HIV/AIDS, malaria and other
diseases; ensure environmental sustainability and lastly to develop a global partnership for
development.257 The eight goals are all in sync with chapter two of the 1999 Constitution of the
Federal Republic of Nigeria except that they are mere palliatives and only address symptoms of
Nigeria’s deindustrialization by the World Bank and IMF structural adjustments programs
alluded to earlier. UNICEF in its 2010 annual report recognized the importance of qualitative
education and healthcare for children as the basis for a prosperous society.258 UNESCO has
recognized the importance of early childhood care and education as over ten and a half million
children under the age of five die yearly from preventable diseases.259
The United Nations Educational, Scientific and Cultural Organization (UNESCO) has
256
Ibid. at p. 149. “Strictly, economic liberalism is the organizing principle of a society in which industry is based
on the institution of a self-regulating market. True, once such a system is approximately achieved, less intervention
of one type is needed. However, this is far from saying that market system and intervention are mutually exclusive
terms. For as long as that system is not established, economic liberals must and will unhesitatingly call for the
intervention of the state in order to establish it. The economic liberal can, therefore, without any inconsistency call
upon the state to use the force of law; he can even appeal to the violent forces of civil war to set up the preconditions
of a self-regulating market. In America the South appealed to the arguments of lasses-faire to justify slavery; the
North appealed to the intervention of arms to establish a free labor market. The accusation of interventionism on the
part of liberal writers is thus an empty slogan, implying the denunciation of one and the same set of actions
according to whether they happen to approve of them or not. The only principle economic liberals can maintain
without inconsistency is that of the self-regulating market, whether it involves them in interventions or not.”
257
United Nations Millennium Development Goals, full text available at:
http://www.beta.undp.org/undp/en/home/mdgoverview.html (accessed on June 21, 2011); United Nations
Development Programme, Unlocking Progress : MDG acceleration on the road to 2015, (New York: UNDP,
September 2010), full text available at:
http://www.beta.undp.org/content/dam/aplaws/publication/en/publications/MDG/unlocking-progress-maf-lessonsfrom-pilot-countries/UnlockingProgress_MAF%20Lessons%20from%20Pilot_Countries_September%202010.pdf
(accessed on June 21, 2011).
258
UNICEF 2010 Annual Report (New York: UNICEF, June 2011) full text available at:
http://www.unicef.org/publications/files/UNICEF_Annual_Report_2010_EN_052711.pdf (accessed on June 21,
2011).
259
UNESCO, Early Childhood Care and Education
(ECCE),http://www.unesco.org/new/en/education/themes/strengthening-education-systems/early-childhood/
(accessed on June 21, 2011).
45 demonstrated that early childhood education is sine qua non for a sustainable society.260
Secondary education or high school is equally vital for adolescents and teenagers to attain their
full potentials in life.261 The curriculum or contents of secondary education is now recognized as
vital in equipping the young ones with skills, that will make them effective and successful
members of a knowledge based society in a globalized world.262 South Africa has been
transforming the contours of its secondary education landscape to address endemic poverty and
exclusion wrought by the years of apartheid, especially students with special needs.263 Nigeria
can learn from this South African experience.
At the May 16-17, 2011 UNESCO conference on global rankings of Universities, the
UNESCO Director-General, Irina Bokova, pleaded for a nuanced balance in the rankings system.
She observed that rankings focused more on quantitative criteria as opposed to qualitative
criteria.264 “As a public good and a strategic imperative for all levels of education and as the
basis for research, innovation and creativity, higher education must be a matter of responsibility
and economic support of all governments. As emphasised in the Universal Declaration of Human
Rights, ‘higher education shall be equally accessible to all on the basis of merit’ (Article 26,
paragraph l)”.265 Higher education is at the heart of economic development.266 Economic growth
must be reflected in the real sector of the Nigerian economy as oil and gas revenues export based
growth has never trickled down to the masses in Nigeria.267 More importantly Nigeria must
260
Kaga, Yoshie and Samuelsson, Ingrid Pramling (eds.), The Contribution of Early Childhood Education to a
Sustainable Society, (Paris: UNESCO, 2008), full text available at:
http://unesdoc.unesco.org/images/0015/001593/159355e.pdf
261
UNESCO, Secondary Education, http://www.unesco.org/new/en/education/themes/strengthening-educationsystems/secondary-education/ (accessed on June 21, 2011).
262
Gauthier, Roger-Franҫois, The Content of Secondary Education Around the World: Present Position and
Strategic Choices, (Paris: UNESCO, 2006), full text available at:
http://unesdoc.unesco.org/images/0014/001475/147570e.pdf (accessed on June 21, 2011).
263
Muthukrishna, Nithi MuthiNithi, South Africa: inclusive education policy and practice, in Magrab, Phyllis R.
(ed.), Towards inclusive practices in secondary education, (Paris: UNESCO, 2003), at pp. 43-53.
264
UNESCO Director-General pleads for balance in university rankings, May 16, 2011,
http://www.unesco.org/new/en/education/themes/strengthening-education-systems/higher-education/singleview/news/unesco_director_general_pleads_for_balance_in_university_rankings/ (accessed on June 21, 2011).
265
2009 World Conference on Higher Education: The New Dynamics of Higher Education and Research for Social
Change and Development (Paris: UNESCO, July 5-8, 2009),
http://unesdoc.unesco.org/images/0018/001832/183277e.pdf (accessed on June 21, 2011).
266
Altbach, Philip G; Reisberg, Liz and Rumbley, Laura E. Trends in Global Higher Education: Tracking an
Academic Revolution, A Report Prepared for the UNESCO 2009 World Conference on Higher Education, (Paris,
UNESCO, 2009), at p. 68.
267
“At the same time, not all growth is the same when it comes to reducing poverty. For instance, an increase in
GDP from offshore oil production may or may not filter down to the poor (via taxation and royalties through the
budget to public services for people.). The experience of such growth benefitting the poor in Africa is fairly dismal.”
46 practice what the West has done to develop and not follow sheepishly, exotic neo-liberal
economic policies not applied domestically in the North and exported to the Southern
hemisphere.
The Federal Reserve Bank Act of the United States originally enacted on December 23,
1913 states that its cardinal goal is to pursue full employment. 268 This is in sharp contrast to the
Washington Consensus shock therapy of massive lay off of millions of workers in the South.
“While the theories of economists recommending minimal or no government intervention are
exported to, or even imposed on, the rest of the world, in practice, the United States spends
billions of dollars on advanced research…gives tariff protection and subsidies to the world’s
biggest farmers and a host of industries…In the 1820s, a member of the US House of
Representatives remarked that the theories of David Ricardo like so many English products,
seemed to be produced exclusively for export markets. ‘Don’t do like the English tell you to do,
do as the English do’ thus became a nineteenth-century dictum for economic policy making.
Therefore, the conflict between the two different types of economic theory-in reality, between
theory and praxis-also involves important dimensions of politics and power.”269
Moss, Todd J. and Goldstein, ’Poverty and Development’, in Moss, Todd J. African Development: Making Sense of
the Issues and Actors, ( Boulder and London: Lynne Rienner Publishers, 2007), pp.163-185 at p.173.
268
Section 2 A 12 USC 225a, http://www.federalreserve.gov/aboutthefed/section2a.htm (accessed on 19 October
2011).
269
Jomo, K.S. and Reinert, Erik S. ‘Introduction’, in Jomo, K.S. and Reinert, Erik S., (eds.), The Origins of
Development Economics: How Schools of Economic Thought Have Addressed Development, (New Delhi: Tulika
Books, 2005), pp. vii-xxii, at pp. vii-ix.