This article examines the general argument for and against the justiciability of socioeconomic rights that are embedded in the chapter 2 of the 1999 constitution of the Federal Republic of Nigeria, and also examines the reasons that influenced the makers of the Constitution to adopt the non-justiciability approach to the Directive Principles. Chapter II of the 1992 Nigerian Constitution spells out the fundamental objectives and Directive Principles of state policy which substantially entrench certain rights and benefits conventionally referred to under human rights regime as Economic, Social and Cultural rights. These human rights have been categorized into two – civil and political rights and economic social and cultural rights. The 1999 Constitution explicitly declared the directive principles of state policy as non-justiciable or unenforceable. One of the major reasons for the non-enforceability of the Directive Principles or Economic and Socio-Cultural rights is the argument of negative and positive rights. Another argument against the socio-economic rights in the justiciability conundrum are the twin issues of clarity and certainty. It is argued that the Economic, Social and Cultural rights “are by nature, open-ended and indeterminate, and that there is lack of conceptual clarity about them. There is also the argument made against the practicability of legal enforcement, to the effect “that cases involving socioeconomic rights are too complex for judges to analyze adequately, as the social and economic issues they raise tend to be embedded in a complex web of causes and effects. Another contention is that socio-economic rights should not be justiciable, as providing remedies will be problematic. It has also been argued that adjudicating on economic, social and cultural rights is not a proper or legitimate role of the courts as it will make them to delve into policy decisions which are the functions of other organs of government thereby violating the doctrine of separation of powers. Other scholars raise arguments to rebut that of the group that argue for the non-justiciability of the directive principles of state policy. The following are some of their arguments. On the negative and positive rights and duties argument it is argued that the enforcement of political and civil rights also requires resource expenditure and requires the state to take action towards realizing them. That is, the states duty is not only just to respect it by noninterference it must also fulfill these rights. The argument that, raising socio-economic rights to the status of legal enforceability will erode the principle of separation of powers, have also been debunked. Ellen Wiles describe this argument as purely based on distrust for the judges and contended that even in civil and political rights judges are also involved in policy making. Making socio-economic right enforceable will promote democracy and engender the enforcement of civil and political rights. Though the directive principles of state policy under the 1999 constitution as stated in chapter 2 the provision that makes it non-justiciable as stated in section 6 sub section 6 paragraph c of the constitution. This section provides a normative basis for the non-justiciability of directive principles under chapter 2 of the 1999 constitution. Before the promulgation of the 1999 constitution the 1979 constitution made mention of directive principles of state policy and it’s non-justiciability and this must have influenced the framers of the 1999 constitution. The adoption of the non-justiciability approach has been severely criticized by some writers. The attitude of the judiciary in response to the justiciability of the directive principles of state policy has been that of unprecedented caution and subtle passivity. This is hinged on the following; The constitution which is the grundnorm provides expressly that the provisions of chapter 2 are not justiciable. That the provisions are new and therefore the court is still in the process of learning to appreciate the purpose of its adoption into the constitution.
It is worthy of note that the even though provisions in chapter 2 of the 1999 Constitution of the federal republic of Nigeria makes there directive principles non-justiciable provisions in section 6 (6)(c) does not make it an absolute. However under certain circumstances chapter 2 of the constitution could be justiciable. These circumstances are where the constitution makes another provision on any of the subjects in chapter 2 which been outside the chapter is justiciable also where the national assembly makes any legislation making an any of the subjects all the chapter the subject of such an act and thus justiciable, sense the national assembly cannot buy any law oust the jurisdiction of the court. Also chapter 2 could be justiciable if it’s in breach of chapter 5 which talks about the fundamental human rights or any other provision of the constitution that is justiciable on its own. Further more Chapter 2 could indirectly be justiciable by invoking the provisions of the African charter on human and peoples rights which has been adopted in Nigeria.
Summary of: Nwauzi, L. (2017). Justiciability of fundamental objectives and directive principles of state policy: Under the 1999 nigerian constitution. International Journal of Law, 3(5), 29–37. https://www.academia.edu/download/57005204/2-6-19-684.pdf (Open Access Journal)