THE UNJUSTICIABLE IS THE FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY AS ENSHRINED UNDER CHAPTER 2 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
Strictly speaking, Fundamental objectives are sections of a National Constitution, which prescribed the ultimate social, environmental, educational, and economic cum cultural goals of the government. These are identified aims, goals or objectives a state hopes to achieve in order to uplift the living standard of its citizens. Directive principles of state policy on the other hand are the presumed strategies for achieving the fundamental objectives.[1]
The art of governance that directs government to ensure as a matter of state policy the fulfillment of identified fundamental objectives is a culture that pervades the constitutions of most emerging democracies. An examination of the constitutions of Nigeria shows arrays of fundamental objectives as a common feature. For instance, chapter 2 of the 1999 Constitution of Nigeria[1] contain series of provisions bearing on fundamental objectives such as political objectives[2] economic objectives[3], social objective[4], educational objectives[5], foreign policy objectives[6], and environmental objective[7] of the Nigerian government.
Political participation of the people in the governance of their country is important because it ensures that the conduct of government is carried out in a manner that reflects the character of the state in question. Moreover, it guarantees the security and welfare of the people, promotes national unity, discourage the pre-dominance of persons from a particular group from dominating government, its agencies or the political space.[8]
The social objectives are contained in section 17 of the 1999 constitution. They are anchored on a social order based on the idea of freedom, unity and justice. The objectives recognize the sanctity of human person and his dignity hence, they urge government to imbibe humane governmental action, which exploit human and natural resources for the good of the citizens as a fundamental objectives and directives principles of state policy.
However, the classification of human right as civil and political rights or economic, social and cultural rights gave rise to further classification of human rights into generations, positive and negative rights. This differentiation gave impetus to discrimination for instance, enforceable human rights and non-enforceable human rights under some legal jurisdiction. Thus, in jurisdictions such as Nigeria, the enforceable political and civil rights provisions are enshrined in the fundamental human rights chapter of the constitution while the non-enforceable human rights provisions, which are largely social, environmental, cultural, educational and economic rights, are housed as a chapter under the fundamental objectives and directive principles of state policy. This was judicially confirmed in the Nigerian case of Attorney General of Borno State & Ors. v. Rev. JJ Adamu & Ors[9]. In that case, the court held that by virtue of section 6(6) (c) of the 1979 constitution (which is impari materia with section 6(6) (c) of the 1999 constitution of Nigeria), the determination of whether or not any authority or person is in breach of the provision of Chapter II dealing with fundamental objectives has been excluded. This calls for concern and raises the question whether non-enforceability of fundamental objectives is a beneficial wrongdoing or a democratic demagoguery?[10] In view of the foregoing, it is rather obvious that chapter II of the Constitution is non-justiciable, but there are ways by which Chapter II of the constitution can be made justiciable and these are contained in the very section 6 (6) (c) that made chapter II of the Constitution non-justiciable.
Thus, in the case of Federal Republic of Nigeria V. Aneche & 3 ors,[11] Niki Tobi (JSC) observed as follows:
In my humble view section 6 (6) (c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words “except as otherwise provides by this Constitution. This mean that if the Constitution otherwise provides in another section, which makes a section or sections of Chapter II justiciable, it will be so interpreted by the courts.”
There are two ways by which the provision of the Chapter Two of the constitution can be made justiciable in the light of the exception contained in section 6 (6) (c) of the Constitution:
- First, where the constitution in its justiciable sections directed that a particular section of Chapter II of the Constitution shall be complied with in carrying out the provisions of that section of the Constitution. For example, Section 147(3) of the Constitution provides that “any appointment under sub-section (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this constitution.”
- The second way is where the Constitution in its justiciable sections empowers the National Assembly to implement the provisions of the Chapter II of the Constitution via legislation. One example of this is items 60 of the Exclusive Legislative List under Part 1 of the Second Schedule to CFRN, 1999 that empowers the National Assembly to make laws with respect to “the establishment and regulation of authorities for the Federation or any part thereof… to promote and enforce the observance of the Fundamental Objectives and Directive Principle contained in this Constitution….”[12]
Commenting on the above item 60 (a), Justice Mohammed L. Uwais, CJN (as he then was), observed that “item 60 of the Exclusive Legislative List of the Constitution of the Federal Republish of Nigeria specifically empowers the National Assembly to establish and regulate authorities for the Federation to promote and enforce the observance of the Fundamental Objectives and Directive Principles, and to prescribe minimum standards of education at all levels, amongst others. The breathtaking possibilities created by this provision have sadly been obscured and negated by non-observance. This is definitely one avenue that could be meaningfully exploited by our legislature to assure the betterment of the lives of the masses of Nigeria….”[13]
Moreover, Obilade stated that “it is clear therefore, that although section 15 (5) of the Constitution is, in general not justiciable, as soon as the National Assembly exercises its power under section 4 of the Constitution with respect to item 60 (a) of the Exclusive Legislative List, the provisions of section 15(5) of the Constitution becomes justiciable.”[14]
REFERENCES
[1] Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative experiences of justiciability
[2] As amended in 2011.
[3] See, section 15 of the 1999 constitution of Nigeria.
[4] See, section 16, ibid
[5] See, section 17, ibid
[6] See section 18, ibid
[7] See, section 19, ibid
[8] See, section 20, ibid.
[9] Odike, E. A., Faga, H. P., & Nwakpu, I. W. (2016). Incorporation of Fundamental Objectives and Directive Principles of State Policy in the Constitutions of Emerging Democracies: A Beneficial Wrongdoing or a Democratic Demagoguery? Beijing Law Review, 7, 267-277 http://dx.doi.org/10.4236/blr.2016.74025
[10] (1998) 1 NWLR (pt. 427) 681-687.
[11] Odike, E. A. et al, op.cit. 9
[12] (2004) I SCM P. 36 at 78.
[13] G.N. Okeke and C. Okeke, The Justiciability of the Non-Justiciable Constitutional PoLicy of Governance in Nigeria, IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 7, Issue 6 (Jan. – Feb. 2013), PP 09-14 e-ISSN: 2279-0837, p-ISSN: 2279-0845. www.Iosrjournals.Org
[14] M.L Uwais „Fundamental Objectives and Directive Principles of State Policy: Possibility and prospect” in C.C. Nweze, ed, Justice in the Judicial Process (Essay in Honour of Honourable Justice Eugene Uba Ezonu, JCA, Chapter 5, at P. 179.)
[15] A.O. Obilade, “Contemporary issues in the Administration of Justice: Essay in Honour of Justice Atinuke Ige, P. 127.
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