By Ayobami T. Durodola, Esq.
1.0 INTRODUCTION
The Constitution of the Federal Republic of Nigeria as amended[1] is the supreme legal document in Nigeria, one that provides for the rights and obligations of the citizens and equally provides for the duties of the Government. The prosperity and economic well-being of Nigerians are presumably determined by the government in accordance with the provision of the Constitution and despite the lofty promises of equality, and economic prosperity contained in the Constitution of Nigeria, the government of Nigeria continues to act in defiance of the Constitution, continues to impoverish Nigerians as a result of the impossibility of Nigerians to seek to readdress. This is why the fraud in the 1999 Constitution of Nigeria must be exposed and the question of the enforceability of Chapter Two[2] must be amplified till the Chapter becomes enforceable. In the spirit of asking questions, we must ask ourselves the following questions;
While it need not be said that the answer to the above question is hidden in the enforceability of Chapter II of the Constitution[4], this article seeks to show that Nigeria is ripe for the enforceability of her fundamental objectives and that enforceability of the Fundamental Objectives remains the pathway to an organized and prosperous Nigeria.
2.0 JUSTICIABILITY, THE FRAUD AND CHAPTER TWO OF THE 1999 CONSTITUTION
The Black’s Law Dictionary[5] defines Justiciability as the capacity to enforce a right before a tribunal. Non-justiciability on the other hand has been described as a situation where a matter falls outside the conditions and purposes that circumscribe judicial actions. An action can equally be deemed non-justiciable where it is lacking in rules or objective standards upon which a judicial determination may be based. Put differently, a matter or action which is of such nature makes it inherently unsuitable or incapable of judicial enforcement. An issue becomes justiciable if the rights asserted by the plaintiff are capable of being judicially molded or that the duty asserted can be judicially identified and its breach judicially determined. Having examined the meaning of justiciability and non-justiciability within the legal periscope, it is safe to say that an issue is non-justiciable when its subject-matter is inappropriate for judicial determination.
Fraud is aptly defined by the Black’s Law Dictionary as all multifarious means that human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. The above definition perfectly describes how the political class pulled the legs of the citizens of Nigeria through the provisions of Chapter 2 only to stab the citizens at the back by the non-justiciability clause earlier deposited in Section 6(6)(C) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
The ruling class is advantaged by this non-justiciability clause because Section 6(6)(C) takes away the ability and power of the citizens to make the government accountable for the promises in Chapter 2 which indeed is the basic dividend of democracy.
Despite the fact that the rights and duties enclosed in Chapter two of the Constitution[6] are lofty and promising, they are such that form the foundation of a prosperous Nigeria that we crave for yet, the ouster clause in Section 6(6) (C) which states that; “…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” transforms those sweet savoury promises into a poisonous and tasteless promise as it has become what an average Nigerian cannot enforce or enjoy.
The ouster clause has now made those assurances of equality and prosperity an inappropriate subject matter for judicial determination, what a sharp contrast.
In the words of learned silk, Foluke Solanke (SAN) “……And yet I believe that the provisions in Chapter II are the soul and spirit of the Constitution[7].” The implication of the above excerpt as quoted signifies the death of the provisions of Chapter II by virtue of its non-justiciability is also tantamount to the death of the Constitution because where the soul and spirit of a person is inoperative, such person is dead. She states further that “…..Non-justiciability of Chapter II is not resident in Chapter II, rather it is hidden maliciously in Chapter I (one) of the Constitution, particularly Section 6 (6) (c). The opening phrase of the Constitution, says “We the people………Do hereby make, enact and give ourselves the following constitution[8]……”The question therefore is would a Nigerian gladly agree that as beautiful and lofty the provisions of Chapter II is, it will not be Non-justiciable.
Chapter 2 houses the benefits and fruits of Democracy and the question are would Nigerians gladly reject these fruits? The non-justiciability of Chapter 2, put succinctly, amounts to fraud on the part of the drafters of the Constitution and deprivation of the manifold benefits of democracy.
The absurdity and asininity of the non-justiciability of Chapter II are revealed by the words of Section 14 (2) (a)
“…Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its power and authority…”
What then is the essence of eyes that cannot see, legs that cannot walk, and a mouth that cannot talk? The effect of the above-cited section is that Nigerians reserve the power in all situations and it is from them that government derive all its powers; coming from this perspective, the question that begs for an urgent answer is how come the grantor of power (Nigerians) cannot challenge the government (who is an ordinary trustee of power) where it fails to carry out its responsibilities and obligations as imposed in Chapter II[9]? This again shows that the non-justiciability clause as imposed in Section 6 (6) (c) of the Constitution is absurd and unacceptable.
This absurdity is further made lucid by the existence of the maxim Ubi Jus, Ubi Remedium which means where there is a law/right, there is the remedy. The law and rights are clearly resident in Chapter II of the Constitution of the Federal Republic of Nigeria, and the duties imposed on the government by the provisions of Chapter II of the Constitution crystalizes into rights for the enjoyment of the citizens. The failure of the government to carry out these duties amounts to a violation of the rights of the citizens which ordinarily should give room for remedy, but the non-justiciability of Chapter II of the constitution takes away remedy from the citizens.
Again, this is unacceptably absurd. Since there is a law in Chapter 2 of the 1999 Constitution, there must be a remedy through the Court on the law; therefore making Section 6 (6) (c) of the Constitution a bizarre section, a Judas amongst twelve and a complete betrayal of democratic principles. It is unacceptable, particularly in the eye of the maxim Ubi Jus, Ubiremedium. The ray of hope that comes with the enforceability of Section 14 (2) (b) of the Constitution states as follows “… the security and welfare of the people shall be the primary purpose of government…”
This particular Section makes security the basic and prime purpose of government; yet there continue to be cases of wanton destruction of properties, the surge in kidnapping and acts of terrorism. In the face of this hydra-headed monster that has now turned Nigeria into its permanent headquarters, the government continues to offer our sympathy and lip service. It is therefore my candid opinion that; if the government is made to pay damages to each victim that lost their lives to the government’s nonchalant attitude towards insecurity through the enforceability of Chapter two (2), the government will sit up and proffer a lasting solution to the menace of insecurity.
Section 15 (3) (a) of the Constitution stipulates that the government should “… provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation …” Currently, the transport system in Nigeria is ruined and it is safe to say that the Federal Government has failed to prioritize transportation and this is why the transport sector in Nigeria has been dominated largely by the private sector. One may argue that the domination by the private sector is good for economic expansion but then, it has brought untold hardship to Nigerians as the cost of transportation is not regulated by the government and the lack of transport infrastructure makes the situation deplorable.
While the facts visible within our transport sector shows that the government has been nonchalant about the provision of adequate mobility, I also have a strong conviction that the enforceability of Section 15 (3) (a) will put the government at all level on its feet and equally bring to its consciousness that mobility of people, goods and services should be optimum and free where possible as provided in the Constitution.
Section 16[10] on the whole gives Nigerians a right to prosperity, equal distribution of wealth, equality of status, happiness, non-monopolization of the economy, provision of adequate shelter, suitable and reasonable minimum wage, old-age care, pension and employee benefits. Sadly, despite the fact that all these rights are preserved in the grundnorm[11] without any ambiguity. Pensioners protest before benefits are paid while some State governments do not pay at all, a lot of Nigerians have no shelter and in fact, find under overhead bridges very cosy. Nigerian youth still pay through their noses to acquire education and end up unemployed without any unemployment benefit.
Sadly, the vast majority of Nigerians still live in poverty despite the promise of prosperity entrenched in the Constitution of the land. Government officials and public office holders at all levels have been indicted to the tune of billions of naira which means that the government can pay these benefits but has deliberately refused to pay. This means that if Section 16[12] becomes enforceable today, remedies granted by the Court to unpaid pensioners, shelter-less Nigerians, unemployed youths and members of the Civil Service who have been denied reasonable national minimum wage, will have access to a quality lifestyle and equally live above the poverty line, therefore, making the right to happiness will become accessible to all.
Section 17 (3) (d) mandates the government to provide ‘… adequate medical and health facilities for all persons …’ this we know is possible where the government has the will. But unfortunately, our health system is currently in a state of comatose and failure to resuscitate the same will lead to a total collapse, put succinctly, death. The fact that we have no hospital in Nigeria that can cater for our political office holders such that they continually seek medical shelter abroad shows how vulnerable the members of the middle and lower class are: apart from facing serious economic hardship, they are equally denied the right to good medical and health facility.
The million-dollar question is; would this deplorable state of our healthcare remain the same where section 17 becomes enforceable? Will the government continue to neglect the health sector when it has the consciousness that for every injury and death recorded as a result of the government’s failure to provide quality healthcare services, damages would be paid?
Section 18 (3) (a) &(c)[13] makes provision for mandatory provision for ‘free, compulsory and universal primary education and free university education and despite this, we have the highest number of out-of-school children in the Sub-Sahara Africa[14], our state-owned university is becoming unaffordable day by day for an average Nigerian and strike has now formed part of our academic calendar that no student can graduate from a government university without experiencing the time-wasting clog of strike on his/her academic wheel. Again, what will it cost our government to make university education free?
Increased budget for the sake of education, yet the government will not and the citizens of Nigeria have no way of seeking redress against this grave injustice.
Section 20[15] mandates the government to “… protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria ..; yet the people of Ogoni and other oil-producing communities continue to lose their life and source of livelihood to water and air pollution, water pollution from oil spillage and air pollution from gas flaring. It is a known fact that there are legislations already that prohibit oil spillage but the government has failed to enforce the same, therefore, leaving the occupants of the oil-producing communities at the mercy of the oil explorers. Again, the government has deliberately betrayed her responsibility because there is no repercussion for such betrayal.
We must therefore come to the agreement that the very essence of the Directive Principle is to fix certain social and economic deficits so as to bring about rapid and sustainable development while a non-violent revolution is also kept bay.
It is equally safe to say that the Directive Principle seeks to fulfil the basic needs of the common man and without the full implementation of the directive principle, equality, good governance and welfare state as contemplated by the Constitution will be impossible.
2.1 ENFORCEABILITY EXAMINED
Enforcement has campaigned by this article is on the part of the Judiciary. By virtue of the wordings of Chapter II of the Constitution, the executive can enforce all the provisions as stated in the Chapter and it is only logical that where the executive continues to show a lackadaisical and lacklustre attitude towards the provisions, the Court should be a go-to place for all Nigerian citizens for the purpose of compelling enforcement on the part of the executive.
We must take notice that Section 188(10) of the Constitution of the Federal Republic of Nigeria ousters the power of the Court to entertain matters relating to Section 188 (removal of Governor or Deputy Governor from the office) but in the famous case of Inakoju v. Adeleke[16], the Supreme Court in a bid to enthrone justice, rejected manifest absurdity and prevented legislative rascality on the part of the legislators, the Supreme Court hanged the ouster clause in abeyance, considered the position of equity and justice and therefore jettisoned the ouster clause to enthrone justice. This is once in a lifetime act of judicial activism which has since become a precedent in our legal system. The question then is when will the Court demonstrate this act of judicial activism on the JUSTICIABILITY of
Chapter II of the Constitution particularly in the face of unbearable hardship that has become the characteristic of Governance in Nigeria?
The language of the Constitution all through Chapter II is SHALL, a mandatory language. The Supreme Court in the case of Nwankwo v. Yar’adua[17] maintained that “The term SHALL is a word of command and denotes obligation, giving no room to discretion. The above was also followed in the case of F.G.N v. Zebra Energy Ltd (2002) 18 NWLR (Pt. 784) 162. The position of the Supreme Court above shows that shall as used in Chapter II imposes a mandatory obligation on the Government. A further look at the judgment however posits that ‘shall’ may be merely permissive or directory, where it been construed in a mandatory sense, will bestow no right or benefit to anyone. In this instant case, where ‘shall’ is construed as mandatory, it will herald the much anticipated economic and social development Nigerians crave, bring social amenities to the doorstep of Nigerians and finally give a chance to all Nigerians to take a bite from the National Cake which is an end product of democratic rule, equity and justice.
It, therefore, follows that the refusal of the Government to vigorously enforce the provision
of Chapter II amounts to a grave violation which now takes us to the question “How do Nigerians remedy this violation and legalized injustice? The answer is not far-fetched, the remedy is resident only in our courts and this once again leads us to the maxim Ubi Jus, UbiRemedium. Again the constitution should not be a toothless bulldog, it barks and bites through the Court and the continued existence of Section 6(6) (c)[18] will make Chapter II remain a toothless bulldog.
2.2 THE PROPOSED PROCEDURE FOR ENFORCEMENT
Nigerians must come together to jointly demand that the National Assembly through a Constitutional amendment process expunge completely Section 6(6) (c) from our Constitution. The moment this is done, Chapter II of the Constitution automatically receives the breath of life and therefore becomes enforceable. While I am not unaware of the attendant challenges that may follow the enforceability and justiciability of Chapter II which includes; the courts being inundated with a legion of cases of the enforcement of some rights contained in Chapter II, the Government of the day has to respond to floods of action from the citizens which may equally distract the attention of government from optimum performance, the need to expend the available resources on the prosecution of these multifold of actions, court congestion and needless court-actions emanating from fame-seeking Nigerians. All the above-highlighted challenges are such which can be tamed and subdued through existing principles of law.
The first of these principles is the principle of Res judicata. For a specific period of time which will be fixed based on the discretion of the Court, a decision of the Court on any of the sections in Chapter II shall be binding.
This means if an action is brought to enforce the right to free university education as contained in Section 18(3) (c), the decision of the Court in that action will stand for subsequent actions on Section 18(3) (c) within the jurisdiction of that Court. So the moment any other person brings an action to enforce Section 18(3) (c), the Government raises a P.O[19] based on Res judicata and the Court in turn declines jurisdiction immediately.
Another way to ameliorate the challenge of a legion of court actions is to stipulate in the constitution, preferably Chapter II that the rights can only be enforced through a class action. The section shall equally state a specific number of people as the benchmark expected to successfully form a class to be able to enforce any of the rights in Chapter II, preferably five thousand at least, to sign a petition online to challenge or enforce any of the rights. That way, nobody can suddenly wake up to approach the court for enforcement of Rights in Chapter II just for frivolity except he has the support of another four thousand nine hundred and nighty-nine people who share the same interest with him.
A section will also be created in Chapter II which shall state the available defences for the Government. One of such defences could be a lack of funds. In a situation where the government intends to rely on this defence, it must make bare to the Court and the Applicant the financial statement of the state showing all available funds of the state and how the same has been spent.
A defence of the existence of a similar project or similar program; this obtains where there exists a right or program similar to the one which the applicant seeks to enforce in court, which is also available for the Applicant to enjoy.
2.3 PROPOSED BENEFITS OF ENFORCEABILITY
2.4 RECOMMENDATION
3.0 CONCLUSION
Conclusively, the essence of fundamental objectives as contained in Chapter II of the Constitution is sky-high, put differently, immeasurable hence the need to move our country out of a state of motion without movement.
I find solace in the words of Justice Yacob in the case South Africa & Ors v. Grootboom& Ors, when he said “I am conscious that it is an extremely difficult task for the state to meet these obligations in the conditions that prevail in our country. This is recognized by the constitution, which expressly provides that the state is not obliged to go beyond available resources or to realize these rights immediately. I stress, however that despite all these qualifications, these are rights and the constitution obliges the State to give effect to them. This is an obligation that courts can, and in appropriate circumstances must enforce.” In days to come, we look forward to our legislative arm lifting the bars placed on Chapter II of the Constitution and where they do, we hope the Courts take the bull by the horn, and demonstrate judicial activism as demonstrated in Inakoju v. Adeleke
and resave our country from the fangs of social and economic retrogression.
Ayobami T. Durodola, Esq. Is currently an NYSC Associate at Yusuf O. Ali SAN &Co. He can be reached at: durodolatosin1234@gmail.com or via 09033134880 and 07031863481
Footnotes
[1] Constitution of the Federal Republic of Nigeria as amended.
[2] Ibid.
[3] https:/www.alijazeera.com/amp/economy/2020/5/forty-percent-of-nigerians-live-below-the-poverty-line-report
Op.cit.
[5] Brian A. Garner, editor in chief.
[6] Op.cit.
[7] Funke solanke “The 1999 Constitution, the empty promises in chapter II versus the obligation of the mass media: The 2002 Luminance Lecture”
[8] The preamble of the 1999 Constitution as amended.
[9] Op.cit
[10] Constitution of the Federal Republic of Nigeria, 1999 as Amended
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] The statement was made by the Minister of State, Education, Chukwumeka Nwajiuba during the inauguration of BETTER EDUCATION SERVICE DELIVERY FOR ALL.
[15] Constitution of the Federal Republic of Nigeria as amended.
[16] (2007) 4 NWLR (pt 1025) 423
[17] (2010) 12 NWLR (pt. 1209)SC
[18] Op.cit.
[19] Preliminary Objection
Source: DNLLEGALANDSTYLE
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