Instant Download

Download your project material immediately after online payment.

Project File Details


3,000.00

100% Money Back Guarantee

File Type: MS Word (DOC) & PDF
File Size: 1,178KB
Number of Pages:231

ABSTRACT

The debate about whether economic and social rights can be or should be adjudicated and enforced by
courts or other bodies in Nigeria has been on-going since the 1960s when the rights in the Universal
Declaration of Human Rights (UDHR) were divided into two separate covenants. One contained
economic, social and cultural rights; while civil and political rights were set out in the other. In the light
of this, can it cogently be argued that the International Covenant on Economic, Social and Cultural Rights
(ICESCR) articulates real rights, or does it merely set forth hortatory goals, programmatic objectives or
utopian ideals? Is it ‘soft law?’ Is it helpful to see human rights in the form of “generations” – the so
called first, second and third generations? How can rights (or obligations) that depend on the availability
of scarce or unpredictable resources in fact be rights (or obligations) in any meaningful sense? How does
one calculate the ‘maximum extent of available resources?’ Can economic and social rights ever be fully
achieved? How can they best be enforced? These are some of the questions that arise whenever one
brings up the vexed issue of justiciability of economic and social rights in Nigeria and their place in
human rights discourse. Though Nigeria has been a party to the International Covenant on Economic,
Social and Cultural Rights since 1986, she is yet to adopt justiciable constitutional guarantee for the
promotion of economic and social rights. Nigeria, like India followed the bifurcated approach of
justiciability to the International Covenant by placing classical rights and liberties in Chapter IV of the
1999 Constitution of Nigeria (as amended), while economic and social rights are recognized under
Chapter II of the Constitution as Fundamental Objectives and Directive Principles of State Policy. Since
economic and social rights are classified under the Fundamental Objectives and Directive Principles of
State Policy, they are thus regarded as mere ideas towards which the states are expected to aim, since
their enforcement are subject to the availability of resources. As a result of this, it is argued in Nigeria’s
constitutional jurisprudence that Chapter II of the Constitution is non-justiciable and Nigerians cannot
sue to protect these rights in any court in the country by virtue of section 6(6)(c) of the 1999
Constitution. This paper in its first section deals with the general introduction. This is followed by an
over view of the different generations of human rights; as well as the development of economic and
social rights through international instruments. The work in its third section graphically addresses the
general debates over the justiciability of economic and social rights and the state of socio-economic
rights in Nigeria and in the section following gives a comparative analysis of the state of economic and
social rights in some jurisdictions. In its last section, it argues the case for their progressive realization
and asserts unequivocally, that adjudication is desirable in Nigeria and that adjudication is already taking
place (to varying degrees) in many courts throughout the world.

TABLE OF CONTENTS

Title Page……………………………………………………………………………… i
Certification ………………………………………………………………………… ii
Dedication……………………………………………………………………………. iii
Acknowledgements………………………………………………………………….. iv
Abstract………………………………………………………………………………… v
Table of Contents……………………………………………………………………. vi
Table of Cases ………………………………………………………………………. viii
Table of Statutes ……………………………………………………………………. xiv
Table of Abbreviations…………………………………………………..…………. xxiv
Glossary……………………………………………………………………………… xxvi
CHAPTER ONE
GENERAL INTRODUCTION
1.1.Background of the Study…………………………………………………… 1
1.2. Statement of the Problem…………………………………………………… 3
1.3. Research Questions…………………………………………………….…… 4
9
1.4.Objective of the Study……………………………………………………… 5
1.5.Methodology………………………………………………………………… 6
1.6.Organization of the Study…………………………………………………… 6
1.7. Definition of Terms…………………………………………………….…… 7
1.7.1. Economic and Social Rights………………………………………………… 7
1.7.2. Justiciability…………………………………………………………..……… 8
1.8.Doctrines of Justiciability…………………………………………………… 9
1.8.1. The Doctrine of Political Question……………………………….………… 9
1.8.2. The Doctrine of Standing…………………………………………………… 15
1.8.3. The Mootness Doctrine……………………………………………………… 25
1.8.4. The Ripeness Doctrine……………………………………………………… 25
1.8.5. Advisory Opinions………………………………………………………..… 26
1.9. Literature Review ……………………………………………………..…… 26
CHAPTER TWO
GENERATIONS OF HUMAN RIGHTS AND THE DEVELOPMENT OF ECONOMIC
AND SOCIAL RIGHTS THROUGH INTERNATIONAL INSTRUMENTS
2.1 Different Generations of Human Rights…………………………………… 32
2.1.1 First Generation Human Rights………………………………………….… 32
2.1.2 Second Generation Human Rights………………………………………… 34
2.1.3 Third Generation Human Rights…………………………………………… 36
2.2 Characteristics of the Three Generations of Rights……………………..… 38
2.3 Views in favour of Indivisibility and Inter-relatedness of Rights……….… 40
2.4 The Justiciable Provisions of The Constitution of the Federal Republic of
Nigeria 1999 (as amended). …………………………………………..…… 42
2.5.The Development of Economic and Social Rights through International
Instruments………………………………………………………….……… 43
2.5.1. The Universal Declaration of Human Rights……………………….……… 44
2.5.2. The International Covenant on Economic, Social and Cultural Rights ………. 48
2.5.3. The Institutional Mechanism for the Implementation and Enforcement
of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 50
2.5.4. The International Covenant on Civil and Political Rights…………………….. 52
2.6.Other International Treaties on Human Rights that Recognize
Socio –Economic Rights ……………………………………….……………… 53
2.7.Protection and Enforcement of Economic, Social and Cultural Rights under
the European Human Rights System. ………………………………………….. 55
2.7.1. Rights Under the Revised European Social Charter (1961)…………………… 57
2.7.2. The Institutional Mechanism for the Implementation and Enforcement
of Economic, Social and Cultural Rights under the European Social Charter…… 60
10
2.7.3. Protection and Enforcement of Economic, Social and Cultural Rights under
the American Convention on Human Rights……………………………………. 63
2.7.4. Protection and Enforcement of Economic, Social and Cultural Rights under
the African Charter on Human and Peoples’ Rights. …………………………… 65
CHAPTER THREE
GENERAL DEBATES OVER THE JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS AND THE STATE OF
SOCIO-ECONOMIC RIGHTS IN NIGERIA
3.1. The Question of Justiciablity of Economic and Social Rights……………………… 68
3.1.1. Legitimacy Concerns Regarding the Judicial Enforcement of Economic
and Social Rights………………………………………………………………… 70
3.1.2. Democratic Legitimacy…………………………………………………………… 71
3.1.3. Separation of Powers …………………………………………………………… 74
3.2. Institutional Capacity of Courts to Adjudicate Economic and Social Rights…… 84
3.3. The Positive/Negative Divide Between Civil and Political Rights and Economic
and Social Rights ……………………………………………………………… 92
3.4. Resource Dependent Economic and Social Rights versus Costless Civil
and Political Rights…………………………………………………………… 93
3.5. Vague Economic and Social Rights versus Precise Civil and Political Rights…… 94
3.6. The state of Economic and Social Rights in Nigeria ………………………………. 95
3.6.1. A Case Study of Economic and Social Rights Recognition in Nigeria…………. 104
3.6.2. Controversy Surrounding the Fundamental Objectives and Directive
Principles of State Policy ……………………………………………………… 109
3.6.3. Contents of the Fundamental Objectives and Directive Principles of State Policy.. 120
3.6.4. The Essence and Significance of the Fundamental Objectives and Directive
Principles of State Policy ……………………………………………………….. 127
3.7. Relationship Between Fundamental Rights and Fundamental Objectives
and Directive Principles of State Policy …………………………………………. 131
CHAPTER FOUR
COMPARATIVE ANALYSIS OF OTHER JURISDICTIONS
4.1. A Case Study of the State of Economic and Social Rights in Some Jurisdictions.. 137
4.1.1. South-Africa………………………………………………………………………. 138
4.1.2. Ghana……………………………………………………………………….……. 156
11
4.1.3. Zambia ……………………………………………………………………….……. 163
4.1.4. United Kingdom…………………………………………………………….……. 166
4.1.5. India……………………………………………………………………….……. 168
4.1.6. Argentina ………………………………………………………………….……. 170
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1. Conclusion………………………………………………………………………. 173
5.2. Recommendations………………………………………………………………. 179
Bibliography………………………………………………………………………….….. 183

CHAPTER ONE

GENERAL INTRODUCTION
1.1. Background of the Study
The debate about the justiciability of economic and social rights in Nigeria is an old and
well-worn one. The appraisal of the arguments against making socio- economic rights
justiciable and the analysis of jurisprudence determine that concerns about the
justiciability of economic and social rights are generally ill-conceived and run contrary to
experience.1 Indeed, critics of justiciability have relied on overly simplistic division of
the rights in the Universal Declaration of Human Rights into two separate covenants. One
contained economic, social and cultural rights, while civil and political rights were set out
in the other. Though both set of rights were affirmed to be indivisible and interdependent,
commentators have often distinguished between the two categories of rights by asserting
that economic and social rights are not justiciable.2 Worse still, economic and social
rights are classified under Chapter II of the 1999 Constitution of Nigeria (as amended), as
Fundamental Objectives and Directive Principles of State Policy and as such, these rights
have been rendered non-justiciable by section 6(6) (c) of the 1999 Constitution. Also,
critics of justiciability have relied on incorrect assumptions about the nature of the
relationship between the judiciary and the legislative or executive branches of
government, when economic and social rights are adjudicated.
To the contrary, the ways in which civil and political rights and socio-economic
rights are inter-twined and interact with one another make it impossible to declare the
1. K .T. Fyanka, “The Justiciability of Social Rights: Myth or Reality?” Human Rights Review, An International
Human Rights Journal, vol. I, No. 1, (2010), pp. 433 – 464 at p. 462.
2. Ibid.
41
latter category non-justiciable without undermining protections of both categories of
rights.3 These rights, otherwise called second generation rights are bedeviled often by the
absence of legal framework to implement the provisions in the international covenants
and national constitutions.4 Apart from the legal framework, there appears the negating
influence by the international formulators of those rights where the extent of enjoyment
of those rights, is dependent on resource availability.5 Little wonder therefore, that many
national constitutions have the provision made almost nebulous as to grant them the
backing of a legal redress much as often as enjoyed by the first generation rights,
comprising civil and political rights. The attempt is to make economic, social and cultural
rights a lame provision in many national constitutions of government, much as political
party manifestoes.
However, evidence demonstrates that in recent years, an increasing number of
countries have included economic and social rights in their constitutions. In addition,
some domestic courts and regional bodies routinely adjudicate and rule upon socioeconomic
rights claims. For example, economic and social rights are litigated directly and
indirectly before regional bodies, including the African Commission of Human Rights,
the inter-American Court of Human Rights, European Committee of Social Rights, the
European Court of Human Rights, the African Court of Human Rights and other
international bodies.
3. Ibid.
4. Fyanka, loc. cit., p. 463.
5. Ibid.
42
1.2. Statement of the Problem
Three important factors impede effective promotion and protection of economic and social rights
in most domestic jurisdictions, in particular, common law jurisdictions such as Nigeria.6 The
first, arising from the classification of rights in international law into 3 generations, is the wide
conception that economic and social rights, unlike civil and political rights are not justiciable.
Closely following this reasoning is yet a wider conception that the provisions of ‘Fundamental
Objectives and Directive Principles of State Policy’ contained in Chapter II of the 1999
Constitution of Nigeria are economic and social rights provisions and therefore, are by section
6(6)(c) of the said Constitution, non-justiciable.7 The third factor is the provision of the very
international treaty that codified economic and social rights (the International Covenant on
Economic, Social and Cultural Rights) to the effect that economic and social rights should be
realized or implemented progressively.
The justification for this is said to be that economic and social rights require financial and
material resources and that international law or the municipal legislature would not impose
obligations with financial implication on the executive government. Each government should
therefore fashion out how it would realize the economic and social rights based on resources
available to it.8 It is worthy of note here that not all economic and social rights require resources
for instance: labour rights, rights to free economic activity, and so on.9
6. E. C. Obiagwu, Promoting Economic, Social and Cultural Rights Using Domestic Legal Mechanisms, (Enugu:
Fourth Dimension Publishing Co. Ltd., 2003), p. 163.
7. Ibid.
8. Ibid.
9. Ibid.
43
The United Nations through its Commission on Human Rights (now Human Rights
Council) voted in favour of non-justiciability of economic and social rights.10 The Nigerian
Constitution Drafting Committee had also advanced the argument that if the objectives and
directive principles were made enforceable, it would lead to constant confrontation between the
executive and the legislature on the one hand, and the judiciary on the other hand. To make the
judiciary the arbiters over such matters is only a short step towards building up against them the
charge of usurping the functions of the executive and the legislature.11 It has similarly been
contended that it will be tantamount to asking Judges to make political value judgments if they
have to decide whether governmental actions and omissions are in line with the objectives and
the directives.12 It is argued that if the courts are granted power to determine the priorities of
government in all circumstances, that would amount to determining the plan of action for the
executive.13 Justiciability, it is also contended, will lead to multiplicity of actions which the
courts lack the capacity to cope with.14 This dissertation shall give an in-depth exposition on all
these problems that have been enumerated above.
1.3. Research Questions
In the course of this academic inquiry, certain imperative research questions come to mind
amongst which are:
10. K. M. Danladi, “An Overview of Protection and Enforcement of Economic, Social and Cultural Rights Under
International Regional Legal Regimes Convention”, An International Human Rights Journal, vol. I., No. 1,
(2010), pp. 323-432 at p. 340.
11. Report of the Constitution Drafting Committee containing the Draft Constitution vol. 1, (Lagos: Federal Ministry
of Information, 1976), p. vii.
12 . O. N. Ogbu, “The Significance And Essence of the Fundamental Objectives And Directive
Principles of State Policy”, Unizik Law Journal, vol. 5, No. 1, (2005), pp. 276-296 at p. 278.
13 . Ibid.
14 . Ibid.
44
a) Does the International Covenant on Economic, Social and Cultural Rights (ICESCR)
articulate real rights, or does it merely set forth hortatory goals, programmatic objectives or
utopian ideals?
b) Can economic, social and cultural rights ever be fully achieved?
c) How can they best be enforced?
d) Are economic, social and cultural rights soft laws?
e) Should human rights be classified into generations?
f) Are all human rights universal, interdependent, inter-related and indivisible?
g) Will justiciability of economic and social rights lead to multiplicity of actions which the
courts lack the capacity to cope with?
h) Will justiciability of economic and social rights be tantamount to asking judges to make
political value judgements?
i) Why are economic and social issues called ‘rights?’
j) What are the challenges to the enforcement of economic and social rights?
k) Where should we place human rights in the development discourse?
l) How does one calculate the ‘maximum extent of available resources?’
m) Should there be progressive realization of economic, social and cultural rights?
1.4. Objective of the Study
The objective of this study is to show that despite the controversies surrounding the question of
justiciability of economic and social rights in Nigeria, progressive realization of these rights is
practicable and that adjudication is seriously urged in Nigeria, as this is already taking place in
various jurisdictions of the world.
45
1.5. Methodology
A doctrinal approach is adopted. This involves both library and desk research. To this end, the
study relied on primary source materials like observations by learned commentators. A detailed
and comprehensive review of secondary source materials like case laws, statutes, conventions,
treaties, textbooks, journals, articles, periodicals, conference papers, legal news, law reviews, the
internet and other legal literature has been made. The collation and analysis of foreign and local
decided cases form part of the methods adopted in this work. Also, the methodology adopted in
this dissertation is descriptive, analytical, critical and comparative. It is descriptive and
analytical because the work described and analyzed the present state of socio-economic rights in
Nigeria, as well as some other selected jurisdictions. To ensure that the analysis undertaken in
this research work goes a step beyond the descriptive level, a critical approach has been adopted.
In order to bring out best practices and also to lay down the general theoretical and philosophical
background of this study, effort has been made to compare the position of the law in Nigeria with
those of other jurisdictions like South Africa, Ghana, Zambia, United Kingdom, India and
Argentina. Thus, the relevant and basic laws and institutional practices of the countries under
review will be analyzed in this dissertation. Existing scholarly writings and jurisprudence will be
used in giving this comparative analysis.
1.6. Organization of the Study
This dissertation revolves around the vexed issue of the justiciability of economic and social
rights in Nigeria. It is divided into 5 chapters with clearly designated headings and sub-headings.
Chapter one is the general introduction. Chapter two borders on the generations of human rights,
as well as the development of economic and social rights through international instruments.
Chapter three addresses the general debates over the justiciability of economic and social rights
46
and the state of socio-economic rights in Nigeria. Chapter four is a comparative analysis of other
jurisdictions. The paper is concluded with a summary of the findings followed by
recommendations on what can be done to ensure the progressive realization of these rights in
Nigeria.
1.7. Definition of Terms
1.7.1. Economic and Social Rights
They are those rights that protect the necessities of life or that provide for the foundations of an
adequate quality of life.15 The necessities of life encompasses at a minimum, rights to adequate
nutrition, housing, health and education.16 All of these rights provide foundations upon which
human development can occur and human freedom flourish.17
Economic and social rights may also be defined as claims against the State to have
certain basic social and economic needs of life satisfied.18 These social claims have also been
defined by Sen as basic entitlements.19 Sen argues that people are entitled in the prevailing
system of institutional rights, to adequate means for survival. Entitlements are the totality of
things a person can have by virtue of her rights, which in turn depends on the legitimized process
of acquiring goods under the relevant system.20 The concept of basic human needs involves
drawing a list of foundational human needs of both physiological as well as social import. In
addition, such basic social rights should be conceptualized in terms of an entitlement both to be
equal as humans and to be equal as members of society. Indeed, there is extensive literature that
15 . Fyanka, loc. cit.,note 1, p. 435.
16 . International Covenant on Economic, Social and Cultural Rights (ICESCR) entered into force on 3 January 1976,
G.A. Res. 2200 A (XXI), U.N. Doc. A/6316 (1966), 933 UNTS 3.
17 . Ibid.
18 . L. M. Keller, The Indivisibility of Economic and Political Rights, A Review of Development as Freedom, (New
York: Knopf Publishing Co. Ltd., 1999), p. 366.
19 . A. Sen, Development as Freedom, (New York: Random House Publishing Co. Ltd., 1999), at p. 435.
20 . Ibid.
47
views these rights as part and parcel of universal human entitlement.21 According to Vance, “let
me define what we mean by Human Rights”. There is the right to the fulfillment of such vital
needs as food, shelter, health care and education. We recognize that the fulfillment of this right
will depend, in part, upon the stage of a nation’s economic development. But we also know that
this right can be violated by a Government’s action or inaction for example, through corrupt
official processes which divert resources to the elite at the expense of the needy, or through
indifference to the plight of the poor.22
Inspite of this noble objective, there is on-going debate about the justiciability, that is,
adjudication and enforcement of economic and social rights. Proponents exist on both sides of
the debate. To understand the nature of this discourse, we shall hereunder analyze the concept of
justiciability.
1.7.2. Justiciability
This has been defined as “the quality or state of being appropriate or suitable for review by a
court”.23 Arambulo remarks that the term ‘justiciability’, is generally understood to refer to a
right’s faculty to be subjected to the scrutiny of a court of law or another (quasi-judicial) entity.
A right is said to be justiciable when a judge can consider this right in a concrete set of
circumstances and when this consideration can result in the further determination of this right’s
significance.24
21 . M. H. Good, “Freedom From Want: The Failure of United States courts to Protect Subsistence Rights”, (1984), 6
Hum. Rts. Q. p. 335.
22 . C. R. Vance, “Human Rights Policy, a major 1977 Statement on Human Rights Policy” by the Carter
Administration’s Secretary of State, (1977) transcript available in the Office of Media Services, Bureau of Public
Affairs Department of State quoted in Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy
(2nd edn., Washington DC: University Press, 1980), p. 5.
23 . Ibid.
24 . K. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural
Rights (Oxford: William Collins Sons & Co. Ltd., 1999), p. 55.
48
Scott and Macklem submits, by the term, ‘justiciability’, we mean in broad outline, “the
extent to which a matter is suitable for judicial determination…this refers to the ability to
judicially determine whether or not a person’s right has been violated or whether the state has
failed to meet a constitutionally recognized obligation to respect, protect or fulfill a person’s
right”.25 Scott and Macklem remark further that, justiciability is a deceptive term because its
legalistic tone can covey the impression that what is or is not justiciable inheres in the judicial
function and that it is written in stone. Infact, the reverse is true: not only is justiciability
variable from context to context, but its context varies over time, justiciability is a contingent and
fluid notion dependent on various assumptions concerning the role of the judiciary in a given
place at a given time as well as on its changing character and evolving capability.26 According to
another authority, “concepts of justiciability have been developed to identify appropriate
occasions for judicial action… The central concepts are often elaborated into more specific
categories of justiciability namely: advisory opinions, feigned and collusive cases, standing,
ripeness, mootness, political questions and administrative questions”.27 This paper will progress
with the review of the doctrines of justiciability that are generally applied by the courts.
1.8. Doctrines of Justiciability
1.8.1. The Doctrine of Political Question
The claim that a political question is ‘non-justiciable’ leads to the result by which the court does
not see itself as authorized to intervene in the issue brought before it. In essence, since the
25 . S. C. Macklem, “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South-African
Constitution”, University of Pennsylvania Law Review, vol. 142, No. 1, (1993), p. 17.
26 . Ibid.
27 . C. A. Wright, et al., Federal Practice and Procedure No. 3529 (2nd edn., London: Oriel Computer Services Ltd.,
1984), pp. 278-279.
49
political nature of the question renders it non-justiciable, the court is inexorably led to refuse to
adjudicate on it, for in its view it lacks jurisdiction.28
The political question doctrine has been used in Nigeria over a long period of time, as
will be illustrated by a plethora of judicial authorities. In 1983, in Onuoha v. Okafor,29 the
Supreme Court laid down two principles by which to determine political questions, based on the
principles developed by the US Supreme Court.30 The court in that case interpreted the
provisions of the 1979 Constitution of the Federal Republic of Nigeria modeled after the United
States Constitution. The Supreme Court in this case defined the political question doctrine in
Nigeria as consisting of two principles: (i) one is that the lack of a satisfactory criterion for
judicial determination of a political question is one of the dominant considerations in
determining whether a question falls within the category of political questions. (ii) the other is
the appropriateness of attributing finality to the action of the political department and political
parties under the Nigerian Constitution and system of government.
However, before the 1979 Constitution was adopted, Nigerian courts applied a political
question doctrine although not recognizing or classifying it as such. For example, in the First
Republic, the Supreme Court held in Attorney General Eastern Nigeria v. Attorney General of
the Federation31 that the determination of the margin of error in a census is a political matter.
The judicial powers under the 1979 and 1999 Constitution are defined by section 6 (6) (b)
as extending to “all matters between persons or between government or authority and any person
28 . S. Navot, Political Questions In The Court: Is “Judicial Self-Restraint” A Better Alternative than a “Non-
Justiciable” Approach?, VII World Congress of the International Association of Constitutional Law Rethinking
the Boundaries of Constitutional Law Workshop: Judicial Review of Political Sensitive Question, p. 22 .
29 . (1983) NSCC 494.
30 . The Court relied on Baker v. Carr (1962) 369 US 186 217.
31 . (1964) All NLR 218.
50
in Nigeria and to all actions and proceedings relating thereto, for the determination of any
question as to the civil rights and obligations of that person”. This provision seems to
contemplate unlimited or full judicial review by the courts. How then did the Nigerian courts
interprete it? Nigerian constitutional interpretation in the Second Republic between 1979 and
1983 can be classified into two different periods.32 The first period saw the Nigerian courts assert
that it is their duty within the constitutional scheme to say what the law is.33 In the second period,
represented by the case of Onuoha,34 the original attitude changed and the courts retreated to the
view that they had a limited judicial review role. In the first period, the Nigerian Supreme Court
asserted that under section 6 (6) (b), judicial powers extended to all matters. For example, if by
this endowment the judiciary encroached on the legislative domain, it was permitted to do so
irrespective of the fact that the incursion breached the concept of separation of powers and even
if the matter was political. This was the decision of the court per Fatayi – Williams CJN in the
case of Alegbe v. Oloyo.35 It is this attitude that led the Supreme Court to resist the political
question doctrine in Attorney-General of Bendel State v. Attorney-General of the Federation,36
where the Supreme Court held that it had jurisdiction to determine how the legislature exercised
its law making powers.
The Nigerian courts have applied the political question doctrine in a host of decided cases
as shall be discussed in this paper. In the case of Balarabe Musa v. Auta Hamzat37 the Court of
Appeal held that the impeachment of the Kaduna State Governor pursuant to section 170 of the
32 . E. Nwauche, Is the End Near for The Political Question Doctrine in Nigeria?, (2007) vol. 10 Pulp, p. 1.
33 . Ibid.
34 . Above note 29.
35 . (1983) NSCC 315.
36 . (1982) 10 SC 1.
37 . (1982) 3 NCLR 229.
51
1979 Constitution is a political question and that, in addition, a constitutional provision ousting
judicial review of impeachment was binding on the court. Accordingly, the courts would not
engage in any type of review.
In Asogwa v. Chukwu,38 the speaker of the Enugu State House of Assembly had been
removed by a two-thirds majority, which, it was alleged, was not properly constituted as a
suspended member of the House voted for the removal. Whether the member was suspended or
not became the bone of contention. The Court of Appeal held that the status of the suspended
member was an internal affair of the legislature and presumed that he had been recalled to the
House since he had voted. Accordingly, it refused to review the decision.
In Ekpenkhio v. Egbadon39 Ogundare JCA stated that the right to a fair hearing of an
impeached speaker of the Edo State House of Assembly was not relevant, since by statute law
and the Constitution, the impeachment was not justiciable since it bordered on a political
question issue.
In Attorney-General of the Federation v. Attorney-General of Abia State,40 as a response
to a preliminary objection that the determination of the seaward boundary of a littoral state
within the Federal Republic of Nigeria raised a political question and should be resolved by
legislative and executive action, Uwais CJN (for the rest of the Court) stated that a combination
of sections 232 (1) and 6 (1) of the 1999 Constitution show that the Supreme Court ‘has the
jurisdiction to interprete all provisions of the Constitution whether on appeal or in exercise of its
original jurisdiction’. Clearly, the Supreme Court had changed course.
38 . (2004) FWLR (Pt. 189) 1204.
39 . [1993] 7 NWLR (Pt. 308) 717.
40 . (2001) FWLR (Pt. 64) 202.
52
In Abaribe v. The Speaker Abia State House of Assembly,41 section 188 (10) of the 1999
Constitution dealing with the impeachment of a Deputy Governor of a State was in issue. The
Court of Appeal held that the provisions of section 188 (10) were absolute and that the
impeachment provisions were a political matter which the Constitution wisely left to the
legislature since it enables the people to remove who they elected.
In Attorney-General of the Federation v. Attorney-General of Imo state42 and Attorney –
General Ondo State v. Attorney- General of the Federation,43 where compilation of the register
of voters was in issue, the Supreme Court declined jurisdiction on grounds that the matters
bordered on a political question and did not present a legal dispute.
In the recent case of Alhaji Sani Aminu Dutsima v. PDP and Anor.44 the plaintiff, Alhaji
Sani Aminu brought this action against the Peoples’ Democratic Party (PDP) and its National
Chairman, Dr. Okwesilieze Nwodo before the Abuja High Court after the PDP had refused to
implement the zoning arrangement as contained in Article 7.2 (c) of the Party’s Constitution. He
contended amongst others, that the National Chairman of the Party had championed the violation
of the Party’s Constitution, in order to pave way for President Jonathan who is a Southerner to
contest for the president of the country on the platform of the Party contrary to the provision of
Article 7.2 (c) of the Party’s Constitution on zoning. In his ruling, delivered on 2 December
2010, Justice Lawal Hassan Gunmi, held that although Article 7.2 (c) of the PDP Constitution
2009 (as amended) recognized the principles of zoning and rotation of party and elective offices,
41 . (2000) FWLR (Pt. 9) 1558.
42 . (1982) 12 SC 147.
43 . (1983) 2 SCNLR 269.
44 . (Unreported) Suit No: FCT/HC/CV/2425/10, a judgement delivered on 2 December 2010 available at
http://allafrica.com/stories/20102300 (last accessed 21 April 2012).
53
but the power to nominate and sponsor candidates to an election is vested in a political
party and the exercise of this right is the domestic affair of the party. The court in dismissing
the case further held that the provision of the Party’s Constitution sought to be enforced in court
dwelt on a political question that was non-justiciable.
It appears our courts are resting on the issue of the doctrine of political question. This is
because the researcher having waded through the law reports was unable to find any recent
decision on the matter.
The doctrine of political question has also been applied by courts in other jurisdictions. In
the United States in the case of Baker v. Carr,45 the court in determining whether a dispute
constitutes a non-justiciable political question, relied on these tests namely,
(a) a textually demonstrable constitutional commitment of the issue to a co-ordinate political
department; or (b) a lack of judicially discoverable and manageable standards for resolving it; or
(c) the impossibility of deciding without an initial policy determination of a kind clearly for nonjusticiable
discretion (d) the impossibility of a court undertaking independent resolution without
expressing lack of the respect due to co-ordinate branches of government or (e) an unusual need
for unquestioning adherence to a political decision already made; or (f) the potentiality of
embarrassment from multifarious pronouncements by various departments on one question.
English law demonstrates the principle of the lack of jurisdiction for the courts to
adjudicate issues relating to Parliamentary proceedings; that courts have no jurisdiction to
preside over the decisions of the Parliament. Thus, in the case of Bradlaugh v. Gosset 46 the
English Court held that statutes regulating Parliamentary proceedings are not subject to judicial
supervision.
45 . (1962) 369 US 186 217.
46 . (1884) 12 QB 271.
54
According to Zemach, “The Parliament and its members have exclusive authority to
interprete the internal rules of the Parliament at its own discretion, and the courts will not
interfere even if the MPs ignore their own guidelines for internal proceedings. The Parliament’s
right to make the final decision on all matter is one of its absolute privileges”.47
Furthermore, in the case of Nixon v. United States48 the court held that responsibility for
determining the requirements of an impeachment trial was ‘textually demonstrably committed’
to the Senate, not the judiciary. The decision in Gilligan v. Morgan49 on the doctrine of political
question is instructive. The case arose from an incident in which members of the Ohio National
Guard killed a number of civilians at Kent State University. Members of the Kent State Student
Government sought an injunction ordering changes in the Guard’s supervision and organization.
However, the court invoked the political question doctrine. Indeed, the court found all of the
Baker v. Carr criteria to be satisfied. Although it emphasized the absence of judicially
manageable standards. It noted that it is difficult to conceive of an area of governmental activity
in which the courts have less competence.
We shall hereunder give an in-depth exposition on the doctrine of standing otherwise
known as locus standi.
1.8.2. The Doctrine of Standing
This is otherwise known as “Locus Standi”. Standing focuses on whether a plaintiff is the right
person to bring an action before the court. This is what makes standing jurisdictional, that is, the
inquiry is not about the existence of a wrong, but whether the court can respond at the request of
the plaintiff. Locus Standi is an issue which goes to jurisdiction and could be raised at any stage
47 . Y. S. Zemach, Political Questions in the Courts, (Detroit :Wayne State University Press, 1976), p. 45.
48 . (1993) 506 US 224, 229, 236.
49 . (1973) 413 US I.
55
even for the first time at the Supreme Court.50 The standing doctrine has three components
namely: whether the plaintiff alleges an ‘Injury in fact’, whether that alleged injury ‘fairly can be
traced to the challenged action’, and finally, whether a favourable ruling would probably end the
injury.51 In the case of Friends of the Earth v. Laidlaw Environmental Services52 the court held
that the doctrine of standing rests on three requirements. These are that a plaintiff must show that
(1) he has suffered an ‘injury in fact’ that is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favourable
decision.
In determining the issue of locus standi, judicial powers are involved and the matters in
which the judicial powers can be exercised are by the provisions of section 6(6) (b) of the 1999
Constitution expressly stated to extend to all matters between persons or between government or
authority and any person in Nigeria for the determination of any question as to the civil rights
and obligations of that person. Consequently, it was held in Thomas v. Olufosoye53 that a
plaintiff, who has not raised any question as to his civil rights and obligations, has no locus
standi, since he has not disclosed any right alleged to have been infringed and calling for
redress.54
50 . Oredoyin v. Arowolo [1989] 4 NWLR (Pt. 114) 172.
51 . Valley Forge Christian Coll. v. Arms. United for Separation of Church and State, (1982) 454
US 464, 472.
52 . (2000) 528 US 167, 180 – 181.
53 . [1986] 2 SC 325.
54 . See E. O. Ezike, “Liabilities for Environmental Pollution Damage in Nigeria”, (2010) vol. 28 JPPL, pp. 65 – 88
at p. 80.
56
The fundamental aspect of locus standi is that it focuses on the party seeking to get his
complaint before the court and not on the issues he wishes to have adjudicated.55 The locus
clasicus in Nigeria on the law of locus standi is the case of Adesanya v. The President.56 In this
case, Senator Abraham Adesanya who was a lawyer and prominent politician had sought a
declaration and injunction that the appointment of Justice Victor Ovie – whiskey as the
Chairman of the Federal Electoral Commission (FEDECO) in 1980 by Alhaji Shehu Shagari (the
then President of Nigeria) was unconstitutional. Under section 141 of the 1979 Constitution, the
President was empowered to appoint the Chairman of FEDECO, after consultation with the
Council of State and subject to the confirmation of the Senate. The appointment was made on 3
June 1980 by the presidency and it was confirmed on 17 July 1980 by the Senate. Expressing his
reservation over the appointment and confirmation by the Senate, Adesanya proceeded to the
Lagos High Court, where the declaration he sought was granted, but the injunctions were
refused. The trial judge had held that the appointee was not qualified, which made the
President’s action of appointing Victor Ovie-Whiskey unconstitutional. The President appealed
to the then Federal Court of Appeal where the appellate court raised suo moto the issue of
Adesanya’s locus standi and invited the submissions from the parties on it. The then Attorney-
General for the Federation, Chief Richard Akinjide who represented the respondent, submitted
that the appellant had no personal interest in the matter and so had no locus standi to bring the
action, where the relief sought by him would confer no tangible benefit on him. But Adesanya’s
lawyer, Chief Gani Fawehinmi, contended that he had locus standi to bring the action. After
these submissions, the appellant’s lawyer invoked the provisions of section 259 (3) of the 1979
Constitution and the question of Adesanya’s locus standi was accordingly referred to the Supreme
Court.
55 . Per Obaseki JSC, Ibid., at p.350.
56 . (1981) SC 112 at p. 120.
57
The leading judgement was delivered by the Chief Justice of Nigeria, Justice Atanda Fatayi-
Williams. The Supreme Court unanimously held that Adesanya had no locus standi to bring the
action because he had not shown that the appointment and subsequent confirmation by the Senate of
Justice Ovie – Whiskey as FEDECO boss had affected his civil rights and obligations.
The position of the law during the Second Republic, therefore, was that an applicant
challenging infractions of the Constitution, must show that he had a right that had been infringed by
such infractions, or if the alleged infraction affected the applicant in common with the general public,
that he had suffered injury over and above that suffered by the public at large. Adesanya’s case had
shown that in interpreting the 1979 Constitution, there were restrictions on a person’s ability to
challenge infractions of the Constitution.
In the case of Festus Keyamo v. House of Assembly, Lagos state,57 a Lagos based lawyer and
human rights activist instituted a suit (vide an originating summons) challenging the constitutionality
of the setting up of a panel by the Lagos State House of Assembly, to probe the Governor over
allegations pertaining to the crime of forgery. The Court of Appeal upheld the ruling of the Lagos
High Court to the effect that the plaintiff lacked the locus standi to institute the action.
The Supreme Court, however, in Akilu v. Fawehinmi58 ruled that with respect to seeking to
enforce the criminal laws of the land, everybody is “the other’s keeper” and in that garb, has standing
to sue.
It is worthy of note that the Supreme Court made a welcome departure from its stance in
the Abraham Adesanya’s case59 in Fawehinmi v. Akilu.60 We are of the view that it is only the
new trend in the Chief Gani Fawehinmi’s case that can save our jurisprudence from the shackles
of its colonial heritage as far as the concept of locus standi in Nigeria is concerned.
57 . (2000) 12 NWCR p. 196.
58 . [1989] 2 NWLR (Pt. 102) 122 at p. 193.
59 . Above note 56.
60 . Above note 58.
58
In Re Ijelu & ors. v. L. S. D. P. C,61 the court held that a plaintiff or litigant who says he
has locus standi must show that such special interest he lays claim to, has been adversely
affected by the act or omission which he seeks to challenge.
This was also the decision of the court in the case of K. Line Inc. v. K. R. Int. (Nig.) Ltd62
where the court held that for a plaintiff to have locus standi, he must show some special interest
which he lays claim to.
In the case of Fawehinmi v. President Federal Republic of Nigeria,63 it was held that it
would be wrong to slam the door of the courts against complaints on executive excesses and
unconditionality under the guise of lack of locus standi.64
In PPA v. Saraki,65 the Court of Appeal on the issue of determination of locus standi in
an election petition held as follows: “A Court is bound by the averments in an election petition
and must limit itself to them in determining whether a petitioner has locus standi to bring the
petition”.66
In the case of Ugwunze v. Adeleke67 which was an appeal against the judgement of the High
Court which granted the respondents’ claim for a declaration of statutory right of occupancy. The
Court of Appeal in a unanimous decision allowed the appeal. The Court on the issue of how
locus standi is determined held that:
The first way to determine whether a plaintiff has the necessary
capacity to institute an action is to examine the statement of
61 . [1992] 9 NWLR (Pt. 226) 414.
62 . [1993] 5 NWLR (Pt. 292) 159 at p. 176.
63 . [2007] 14 NWLR (Pt. 1054) 275 at p. 342 paras. D – E.
64 . See E. O. Ezike, “Remediating Environmental Pollution Damages in Nigeria: Need to Adopt the Principle of
Absolute Liability”, (2011) vol. 3, No. 1. NJPNREL, pp. 1 – 30 at p. 28.
65 . [2007] 17 NWLR (Pt. 1064) 453.
66 . Ibid., at p. 493 para. G.
67 . [2008] 2 NWLR (Pt. 1070) 148.
59
claim, to see if it has any enforceable connection with the
subject-matter. There must be a nexus between the plaintiff and
the disclosed cause of action concerning his rights or obligations,
which have been breached or threatened to be violated.68
In Iteogu v. LPDC,69 the Supreme Court per Chukwuma-Eneh JSC held to the effect that
where a community retains the professional services of a legal practitioner to act on its
behalf via a power of attorney, a member of the said community who has disclosed
sufficient interest pursuant to the terms of the said power of attorney has locus standi to
file a claim against the donee legal practitioner for breach of fiduciary duties.
In the case of Enilolobo v. INEC & 2 Ors.,70 the Court per Fasanmi JCA on the
issue of when a candidate in an election will have locus standi to present election petition
held that once a petitioner pleads such as the appellant in the instant appeal that he was a
candidate at an election and also pleaded his score, he has the locus standi to present the
election petition.
In Sunday Adegbite Taiwo v. Serah Adegboro & Anor.,71 the Supreme Court held
as follows: “the rule relating to locus standi developed primarily to protect the courts
from being used as a playground by professional litigants, meddlesome interlopers and
busy bodies who really have no real state or interest in the subject matter of a suit”.
In Carew v. Oguntokun,72 the Supreme Court per Mukhtar JSC stated thus:
68 . Ibid. at p. 172 paras. C – D.
69 . (2009) 12 SC (Pt. 1) 1 at p. 24 lines 15 – 25.
70 . (2010) 49 WRN 155 at p. 177 line 40.
71 . [2011] 11 NWLR (Pt. 1259) 562 at p. 579 paras. F – G. See also Ajayi v. Adebiyi [ 2012] 11 NWLR (Pt.1310) 137
SC at p.182 paras. C-D.
72 . [2011] 5 NWLR (Pt. 1240) 376 at p. 400 paras. C – E. See also Ladejobi v. Oguntayo [2004] 18 NWLR (Pt. 904)
149 at 150 referred to in the judgement.
60
“… in determining whether a plaintiff has a legal interest or locus standi to
institute an action, the locus standi of the party must be viewed against his competence or
right to institute an action in a court of law to seek redress, reliefs or assertion of a right
that can be enforced by law”.
In Onuekwusi v. Registered Trustees of the Christ Methodist Zion Church,73 the
Supreme Court per Muhammad JSC stated as follows: “a court will lose jurisdiction if a
party has no locus standi”.
Also, in the case of Saulawa v. Kabir,74 the Court per Okoro JCA stated as
follows: “In ascertaining whether or not a plaintiff in an action has locus standi, the
pleadings or the statement of claim or petition must disclose a cause of action vested in
the plaintiff or petitioner and the rights and obligations of the plaintiff or petitioner which
had been violated”.
Furthermore, in the case of Nze Jeremiah Osigwelem v. INEC & 2Ors.,75 which
was an appeal against the judgement of the Election Petition Tribunal dismissing the
appellant’s petition on the ground that the appellant lacked the locus standi to bring the
petition and for failure to prove the petition. The Court of Appeal in a unanimous
decision dismissed the appeal.
On whom locus standi vests to institute election petition, the Court per Owoade
JCA stated as follows:
It is not in dispute that the petitioner was the candidate of ANPP
in the election being questioned and therefore prima facie has the
locus standi under the Electoral Act to present this petition.
73 . [2011] 6 NWLR (Pt. 1243) 341 at p. 361 para. G. See also the case of F.U.T. Yola v. A.S.U.U [2013] 1 NWLR
(Pt. 1335) 249 CA at pp. 275-276 paras. H-C.
74 . [2011] 2 NWLR (Pt. 1234) 417 at p. 441 para. E.
75 . [2011] 9 NWLR (Pt. 1253) 425 at p. 447 – 448 paras. D – E.
61
However, can he maintain the petition, if he does not stand to
benefit from the reliefs claimed? While under cross-examination
at the hearing of this petition, the petitioner admitted that he was
not the candidate that had the majority of lawful votes in the said
election. He was forthright by admitting also that he neither
came second nor third nor fourth in the election but his interest is
that justice should be done. While the Tribunal appreciates and
indeed applauds his altruistic disposition, the position of the law
which is binding on this Tribunal and which it is enjoined to
apply is that it is only the person who will benefit directly from
the relief being claimed and with particular reference to this
petition, it is the person who will have the benefit of being
declared the winner should this petition succeed that has locus
standi or the legal capacity to institute and maintain this petition
and not the present petitioner whose only interest in presenting
the petition is that justice be done. In deciding issue No. 1, one
cannot but agree with the conclusion of the lower Tribunal that
the petitioner/appellant does not have the locus standi to
maintain the petition.
However, it is important to note at this juncture that the Fundamental Rights Enforcement
Procedure Rules 2009 in paragraph 3 (e) of the Preamble to the Rules provides as follows:
The Court shall encourage and welcome public interest litigations in the
human rights field and no human rights case may be dismissed or struck
out for want of locus standi. In particular, human rights activists,
advocates, or group as well as any non-governmental organizations, may
62
institute human rights application on behalf of any potential applicant in
human rights litigation.
The Rule went ahead to enumerate that applicant may include any of the following:
(i) anyone acting in his own interest
(ii) anyone acting on behalf of another person
(iii) anyone acting as a member of, or in the interest of a group or class of persons;
(iv) anyone acting in the public interest, and;
(v) association acting in the interest of its members or other individuals or groups.
In other words, the Fundamental Rights Enforcement Procedure Rules 2009, has
relegated to the background, the requirement of locus standi in human rights proceedings. This
current trend must be applauded as it would definitely reduce gross human rights violations in
Nigeria to the barest minimum.
We shall then proceed to examine briefly the attitude of courts in other jurisdictions. In
most other jurisdictions, there is a distinction between the test of locus standi in private law cases
and public law cases. In private law cases, the court looks at the course of action to see if the
plaintiff has locus standi, while in public law cases, the test is the existence of sufficient
interest. Sufficient interest is normally given a liberal interpretation.
In England, following the liberal interpretation of sufficient interest, in the case of R. v.
Felixstowe J. J. Exparte Leigh,76 a Journalist successfully sought a declaration that the policy
adopted by the chair of the Justices of not revealing the names of sitting Magistrates for security
reasons was unlawful.
76 . (1987) QB. 583.
63
Also, in the case of R. v. Secretary of State for Foreign and Common Wealth Affairs
exparte Rees-Mogg77 a citizen because of his sincere concern for constitutional issues challenged
the ratification of a treaty and the court held that he had locus standi to institute the action.
Under the Gambian legal system, any citizen of the Gambia has locus standi to go to
court to challenge an unconstitutional act. That was the decision of the Supreme Court of the
Gambia in the case of United Democratic Party (UDP) & Ors. v. The Attorney- General of the
Gambia.78
Also in Ghana, any citizen of Ghana can bring an action for a declaration that an action is
unconstitutional. This was the decision of the court in Tuffuor v. Attorney General.79 Thus, one
does not have to show how the act affects him personally, once it involves the violation of a
constitutional provision, any person or organization can challenge the act.
The above two decisions in the Gambia and Ghana are in line with the opinion of Fatayi
Williams CJN (as he then was) in Adesanya’s case.80 The learned CJN opined that any Nigerian
citizen has a duty to see that he is governed in accordance with the Constitution. This simply
means that such a person can go to court to challenge an unconstitutional act.
In India, the Supreme Court has liberalized access to the courts through the concept of
public interest litigation. According to Justice Bhagwati, in Peoples Union for Democratic Rights
v. The Union of India81 “… public interest litigation should in fact be welcome as it would give
77 . (1994) QB. 552.
78 . (Unreported) suit No: S. C. C. S. No: 3 /2000, a judgement delivered on February 14, 2001.
79 . (1980) GLR 637.
80 . Above note 56.
81 . (1982) AIR (SC) 1473 at pp. 1477-1478.
64
an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of
the community whose welfare must be the concern of the State and the public authority….”
In South Africa, virtually any person can bring an action to protect a provision of the Bill
of Rights pursuant to section 38 of the 1996 Constitution of South Africa. This was the decision
of the constitutional court of South Africa in Ferreira v. Levin No and Ors.82 as well as
Vryenhoek and Ors. v. Powell No and Ors.83
1.8.3. The Mootness Doctrine
The mootness doctrine is to the effect that the case must present a current problem that is yet to
be resolved. In the case of Defunis v. Odegaard84 the court held that a student could not
challenge allegedly discriminatory law school admission procedures after he had already been
admitted to the law school and was about to graduate.
1.8.4. The Ripeness Doctrine
Court will only adjudicate cases that pass the ripeness test. That is, cases that present an actual
and substantial threat to individual rights or other constitutional provisions. In the case of Abbott
Laboratories v. Gardner85 Justice Harlan wrote:
that the basic rationale of ripeness doctrine is to prevent the courts
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies. He
added that the problem is best seen in a two fold aspect, requiring us to
evaluate both the fitness of the issues for judicial decision and the
hardship to the parties of withholding court’s consideration.86
82 . (1996) 1 SA 984 CC at p. 10.
83 . (1996) 1 BCLR 1 CC at p. 229.
84 . (1976) 426 US 26.
85 . (1967) 387 US 136, 148.
86 . Ibid., at p. 149.
65
1.8.5. Advisory Opinions
When the judicial branch is asked to give advice, subject to review by another branch or prior to
its having acted, courts occupy a subordinate posture. This is not acceptable to the judiciary. In
Hayburn’s case,87 it was held that for courts to issue opinions that could be revised and
controlled by the legislature and by an officer in the executive department would be radically
inconsistent with the independence of that judicial power which is vested in the courts. This is
why issues that may give rise to advisory opinions are not justiciable.
1.9. Literature Review
The debate about the justiciability of economic and social rights has been on-going for over five
decades, since the division of the rights in the Universal Declaration of Human Rights (UDHR)
into two separate covenants that is; the International Covenant on Civil and Political Rights
(ICCPR), as well as the International Covenant on Economic, Social and Cultural Rights
(ICESCR). These socio-economic rights, otherwise called second generation rights, it has been
argued are not justiciable. Proponents exist on both sides of the debate.
Many scholars have written on the question of justiciability of economic and social
rights. Fyanka pointed out that critics of justiciability of economic and social rights have failed to
advert their minds to the fact that the ways in which civil and political and socio-economic rights
are inter twined and interact with one another, makes it impossible to declare the latter category
non-justiciable, without undermining protections of both categories of rights.88 Keller defined
economic and social rights as claims against the State to have certain basic social and economic
needs of life satisfied.89 Sen argues that people are entitled in the prevailing system of
87 . (1792) 2 US (2 Dall.) 409, 411 – 413.
88 . Fyanka, loc. cit., note 1, p. 462.
89. Keller, op. cit., note 18, p. 366.
66
institutional rights, to adequate means for survival. Thus, to him socio-economic rights are
interwoven with the civil and political rights.90
Sob noted that there is need to differentiate the economic, social and cultural rights from
the other forms of human rights. Although there is often the trumpeted characteristic of all
human rights being universal, indivisible and interdependent, policy makers only pay lip-service
to this because they exist only on papers than in actual practice. All in all, he argues that
economic and social rights in the practical sense are not justiciable because there continues to be
a discrepancy in the treatment of civil and political rights vis-à-vis economic and social rights.91
Sob had failed to advert his mind to the fact that all human rights are universal, indivisible,
interdependent and inter-related. As such, these rights cannot be said to exist only on papers than
in actual practice because a lot of jurisdictions are now according socio-economic rights equal
status with civil and political rights. Obiagwu has asserted that the justification for the nonjusticiability
argument is said to be that economic and social rights require financial and material
resources and that international law or the municipal legislature would not impose obligations
with financial implication on the executive government. Finally, he argues that it is not all
economic and social rights that require resources for their implementation; for instance: labour
rights, rights to free economic activity and so on.92 Obiagwu had omitted to point out in his work
that some civil and political rights, for instance the right to vote still involves huge financial
commitment on the part of the government. Danladi has stated that the important yardstick in
implementation of these rights is not whether they are justiciable or not but rather the level of
commitment of various governments in giving effects to the rights. According to this writer, even
where the rights are justiciable, considering the nature of the rights, that is, they need long
90. Sen, op. cit., note 19, p. 435.
91. P. sob, “The Implementation Gap in the Economic, Social and Cultural Rights Field: A Critical Crossexamination
of the Agenda of the United Nations”, African year Book on International Law, vol. 15, (2007), pp. 23
– 24.
92. Obiagwu, op. cit., note 6, p. 163.
67
duration of time to be achieved where the contracting States are implementing them. However, if
the contracting State who considered them justiciable refused to implement or enforce them and
a person goes to court and gets a judgement directing the State to implement, but the State
refused to comply, the court cannot do anything apart from mere court pronouncement.93 Danladi
had however, refused to acknowledge the fact that the most important yardstick really should be
the justiciability of these rights and not necessarily the level of commitment of various
governments in giving effects to the rights. This is because once these rights are rendered
justiciable by the constitution of a country, the government of such a state will be duty bound to
give effect to such rights.
Ogbu on his own part has noted that it has been contended, that it will be tantamount to
asking judges to make political value judgements, if they have to decide whether governmental
actions and omissions are in line with the objectives and the directives. It will also lead to
multiplicity of actions which the courts lack the capacity to cope with.94 Ogbu did not realize that
court’s adjudication of economic and social rights cannot be tantamount to asking judges to
make political value judgements because these courts also have the powers to declare the laws
passed by the legislature unconstitutional. Also, justiciability of economic and social rights
cannot in any way or form lead to multiplicity of actions. Scott and Macklem have submitted that
the term, ‘justiciability’ is the extent to which a matter is suitable for judicial determination.95
Arambulo remarks that a right is said to be justiciable when a judge can consider this right in a
concrete set of circumstances and when this consideration can result in the further determination
of this right’s significance.96 Parker has observed that these socio-economic rights, otherwise
called the second generation rights developed through those who had a strong desire for the State
93. Danladi, loc. cit., note 10, p. 341.
94. Ogbu, loc. cit., note 12, p. 278.
95. Macklem, loc. cit., note 25, p. 17.
96. Arambulo, op. cit., note 24, p. 55.
68
to provide protection for its neediest inhabitants via providing relief to the less fortunate.97
Maheshwari pointed out that these groups of rights are fundamental claims to social equality.98
Foresythe has stated that economic and social rights require the affirmative action of government
for the implementation.99
Mower has stressed the fact that a State party which has ratified the ICESCR does not
assume the obligation of immediate implementation found in the civil and political covenant.100
Mower had however neglected the principle of universality, indivisibility and inter dependence
of all human rights. Vile writes that the courts adjudication of economic and social rights has
been asserted to be anti-democratic or counter-majoritarian in nature.101 Vile’s argument that the
court’s adjudication of economic and social rights has been asserted to be anti-democratic or
counter-majoritarian in nature cannot hold water. This is because there is need to ensure that the
rights of minorities or of politically powerless groups are not violated by majoritarian decision
making. According to Christiansen, viewing economic and social rights as ‘justiciable would
necessarily and impermissibly intrude on the province of the legislative branch’.102 Christiansen
did not in his work acknowledge that granting the legislature authority to review its own actions
for compliance with fundamental rights amounts to granting it a function that is generally
reserved to the judiciary and confers unchecked power to the elected branches of government in
critical areas of decision making. Nolan opines that the adjudication of economic and social
rights will require the courts to take over policy making from governments.103 Nolan’s line of
argument failed to address the fact that when economic and social rights are ruled upon by the
97. C. Parker, Human Rights Law, (Leicestershire: Upfront Publishing Ltd., 2002), p. 38.
98. A. Maheshwari, et. al., Understanding Human Rights, (8th edn., Mumbai: Vipul Prakashan Ltd., 2007), p. 22.
99. D. Foresythe, Human Rights in International Relations, (Cambridge: Cambridge University Press, 2000), p. 22.
100. A. G. Mower, “International Co-operation for Social Justice: Global and Regional Protection of Economic/Social
Rights”, (10 September 1985) available at http://InternationalHumanrights/socialjustice (last accessed 23 June
2012).
101. M. Vile, Constitutionalism and the Separation of Powers, (Oxford: Clarendon Press, 1967), p. 13.
102. C. E. Christiansen, “Legitimacy Arguments Concerning the Judicial Enforcement of Human Rights”, (2007) 38
Col. Hum. Rts. L. Rev., pp. 300-330 at p. 321.
103. A. Nolan, et. al., “The Justiciability of Social and Economic Rights: An Updated Appraisal”, (2007) 15 CHRGJ,
pp. 1-30 at p. 10.
69
courts, regard will definitely be had to the rights of the politically oppressed and marginalized
sections of the society. Neuborne has asserted that the judicial involvement in economic and
social rights claim will automatically result in a violation of the separation of powers doctrine.104
Neuborne omitted to state in his work that even though the separation of powers doctrine is a
significant doctrine, it must be applied consistently with other principles, such as the rule of law.
Courts must ensure that all rights are subject to effective remedy and that governments are not
exempted from the responsibility to uphold and respect rights. Gerard noted that if economic and
social rights are made justiciable and are vindicated by the courts, it will distort the traditional
balance of the separation of powers because more power will flow to the judiciary.105 Gerard
failed to observe in his work that there is need for judicial constraints on democratically elected
organs and the role of human rights in enhancing, rather than undermining democratic
governance. Horowitz stated that courts are incapable of adjudicating economic and social rights
claims competently because judges lack the necessary expertise, qualification or experience to
deal with socio-economic rights issues.106 Horowitz failed to advert his mind to the fact that the
courts are fully equipped to deal with socio-economic rights issues because it is often possible
for judges to delegate particular tasks where they deem it appropriate. Fuller argued that legal
adjudication cannot deal successfully with ‘polycentric’ situations.107 Fuller did not observe that
the judicial process may, in fact, be better suited to the consideration of competing needs or
rights of those who do not have access to political decision making processes.
Nwabueze, one of the prominent proponents of non-justiciability of economic and social
rights had taken the position that natural rights (some of the first generation human rights) are the
intrinsic attribute of human personality and are therefore more basic and fundamental to human
104. B. Neuborne, “Judicial Review and Separation of Powers in France and the United States”, (1982) vol. 57 New
York University Law Review, pp. 363 – 380 at p. 365.
105. H. Gerard, Human Rights, the Citizen and the State: South African and Irish Approaches, (Dublin: Roundhall
Sweet and Maxwell 2001), p. 8.
106. D. Horowitz, The Courts and Social Policy, (Washington DC: The Brookings Institute Ltd., 1997), p. 25.
107. L. Fuller, “The Forms and Limits of Adjudication”, Harvard Law Review, vol. 92 (1978), pp. 350-365 at p. 353.
70
existence than food, shelter, clothing etc.108 Nwabueze had erroneously not noted the fact that the
interwoven nature of civil and political rights, as well as, economic and social rights has made it
practically impossible to disassociate one from the other without undermining protections of
both categories of rights. Yakubu has observed that under international law, socio-economic
rights are considered as those rights whose enforcement are subject to the availability of
resources.109 Yakubu refused to point out in his work that some civil and political rights for
instance, the right to vote entails some resource implications on the government. Dalhatu has
aptly observed that civil and political rights can hardly be disassociated from economic and
social rights.110
Indeed, it could be gleaned from the view points of the various authors discussed above
that there are divergent views on the justiciability of economic and social rights.

GET THE FULL WORK

DISCLAIMER: All project works, files and documents posted on this website, projects.ng are the property/copyright of their respective owners. They are for research reference/guidance purposes only and the works are crowd-sourced. Please don’t submit someone’s work as your own to avoid plagiarism and its consequences. Most of the project works are provided by the schools' libraries to help in guiding students on their research. Use it as a guidance purpose only and not copy the work word for word (verbatim). If you see your work posted here, and you want it to be removed/credited, please call us on +2348157165603 or send us a mail together with the web address link to the work, to hello@projects.ng. We will reply to and honor every request. Please notice it may take up to 24 or 48 hours to process your request.