By Stephen Peter Okangla
Introduction
The argument has been that the 1999 Constitution of the Federal Republic of Nigeria (as amended) 2011 is the product of the military and does not in reality command democratic principles and the interest of the larger Nigerian populace. This argument is further widened by the obvious usurpation of the Courts power to seat over issues, decisions, actions and inaction of Government from January 15th 1966 to the date of the commencement of the Constitution. This provision is clearly captured in section 6 (6) (d) of the Constitution. The implication of this is Courts by virtue of the above section cannot question arbitral decision during military regime. An essential chapter of the Constitution which tend to be people focused, fertile economic policy driven and embraces humane and responsible governance is chapter II of the Constitution. The writer holds the view that chapter II of the Constitution captures the best provisions in terms of socio-economic growth and welfare of the masses. There’s no doubt if the provisions of chapter II is consciously pursued and rightly implemented Nigeria and Nigerians would be the envy of the rest of the world.
Howbeit, the provisions of chapter II is not only metaphorically nonexistent but also denied any form judicial interpretation and enforcement. Chapter II of the Constitution captures the Fundamental Objectives and Directive Principles of State Policy. These fundamental principles as captured in chapter II were first in the Nigeria history provided in the 1979 Constitution. During the drafting of the 1979 constitution, the Constitution Drafting Committee (CDC) in its report defined the Fundamental Objectives and Directive Principles as: “By fundamental objectives we refer to the identification of the ultimate objectives of the Nation whilst Directive Principles of State Policy indicates the paths which lead to these objectives. Fundamental Objectives are ideals towards which the nation is expected to strive whilst Directive Principles lay down the policies which are expected to be pursued in the efforts of the nation to realize the national ideals.”[1] These fundamental objectives are the various socio-economic rights of citizens which the Government is expected to vigorously pursue and that is why the Writer is of the view that the provisions of the said Chapter is the best for its citizens and economic development centered provisions. This article aim to x-ray the provisions of chapter II of the Constitution, examine why it is a Greek gift, to buttress why it should be subjected to urgent legislative work and make constructive recommendations.
Provisions of Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 2011.
As stated earlier, chapter II of the constitution contains the best provisions in our constitution. The opening provisions of this chapter in examination basically relates to duties of the three arms of government to ensure conformity observation and application of this chapter which is aptly referred to socio-economic Provisions of the Constitution. The chapter summarizes the philosophical basis for the institution of the Nigerian Government which are in line with the economic, social and cultural rights as adopted by the United Nations General Assembly in the Universal Declaration of Human Rights of 1948. The rights which were transformed as an instrument have been adopted by state parties in the form of the international covenant on Economic, Social and Cultural Rights they include the right to social security, the right to work, the right to an adequate standard of living, the right to education, the right to benefit of science and culture, the right to just and favourable working conditions amongst others.[2]
Section 13 provides that: It shall be the duty and responsibility of all organs of government and of all authorities and Persons, exercising legislative, executive or judicial Powers to conform to, observe and apply the provisions of this constitution.
Section 14 (1) The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice. Section 14(2) (b) provides that security and welfare of the people shall be the primary purpose of government Section 14 (4) provides thus: The composition of government of a state, a local government council or any of the agencies and the conduct of the affairs of the government or council or such agencies shall be carried out in such manner as to recognize the diversity of the people. Section 15 (2) national integration shall be actively encouraged whilst discrimination on grounds of place of origin, sex, religion, status ethnic or linguistic associations or ties shall be prohibited.
Section 15 (3) provides that: For the purpose of promoting national integration, it shall be the duty of the state to: (a) Provide adequate facilities for and encourage free mobility of people, goods and services throughout the federation; (b) Secure full residence rights for every citizen in all parts of the federation (c) Encourage inter-marriage among persons from different places of origin, or of different religious, ethnic, or linguistic association. Section 15 (5) the state shall abolish all corrupt practices and abuse of power. All these relate to the political objectives of governance.
Section 16 (1) (a) provides as follows: harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy; Control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity. Section 16 (2) provides that: The State shall direct its policy towards ensuring; (a) The promotion of a planned and balanced economic development. (b) That the material resources of the nation are harnessed and distributed as best as possible to serve the common good; (c) That the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group and (d) That suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens. While section 17 on social order provides thus: Section 17 (1) the state social order is founded on ideals of freedom, Equality and Justice. Section 17 (2) In furtherance of the social order: (a) Every citizen shall have equality of rights, obligations and opportunities before the law.[3]
There is no doubt the strict pursue and adherence to the letters of chapter II of the Constitution would quell the fire burning in the country and help us as nation navigate path that would put us in rightful position in the world. The rationale according to the Constitution Drafting Committee for the incorporation of the fundamental objectives and Directive Principles in chapter II of the 1979 Constitution is that: “Government in developing countries have tended to be pre-occupied with power and it’s material prerequisite with scant regard for political ideals as to how society can be organized and ruled for the best advantage”[4] This chapter constitute very important Provisions which is relevant for peace and stability to thrive and for the general welfare of Nigerians. However, our undoing in as much as these objectives and principles are to Nigerians, is that the do not confer right of action, nor right to seek enforcement against the Government in the Court of law except the cause action is traceable to another chapter of the Constitution which confers similar right. The implication of this is, Government’s action cannot be challenged neither can they be hold accountable so far as such actions or inaction borders on Chapter II of the Constitution.
This is how important but meaningless the Provisions of chapter II are. A lawyer, Mack Ogbamosa while speaking at a two day Marketing Communication Summit organized by the Nigerian Institute of Public Relations (NIPR), Lagos State chapter opined that chapter II of the Constitution must be made justiciable to ensure public governance and reduce corruption and poverty.[5]
Why Chapter II of the Constitution is a Greek Gift.
The Webster Dictionary defines the term Greek gift as a gift given or favour done with a treacherous purpose. Similarly, the Collins Dictionary defines Greek gift as a gift given with the intention of tricking and causing harm to the recipient. In this article, it is the metaphorical meaning and not the literal meaning that is attached to Greek gift in order to convey the writer’s intention. As already established, chapter II of the Constitution contains goals, objectives and in fact mission which must be undertaken and complete by the government. Also, the chapter outlined paths which government must follow in order to accomplish the mission. However just as section 6 (6) (d) of the Constitution usurp the power of the Court in trying decisions of government from 15th January, 1966 to the commencement of the 1999 constitution, section 6 (6) (c) also contain an ouster clause which completely deny our Courts the requisite jurisdiction to entertain issues emanating from chapter II of the Constitution. Implicatively, this means all the rights enshrined in Chapter II cannot be challenged, Government cannot also be hold accountable for blatantly neglecting the Provisions of the chapter neither could they be call to order in respect of provisions in the chapter. This is indeed painful, retrogressive, challenging and cannot in any way foster economic growth nor effectively tackle the upsurge of insecurity and poverty in the country. The Government gave us chapter II with a right hand and took it with a left hand by virtue of section 6 (6) (c) of the Constitution. They only tricked us, they never meant well for us and that is why the writer opine that the gift of chapter II is tantamount to Greek gift. In India these rights are contained in part IV of the Indian Constitution, they are known as Directive Principles of State Policy. Although, these rights are not enforceable but there is no ouster clause denying Indian courts the jurisdiction to entertain matters arising therefrom. This position of the Indian Constitution is similar to those of many democratic societies including the Republic of Uganda where these rights are known as National Objectives and Directive Principles of State Policy.
From the forgoing, it is crystal clear and a notorious fact that subjecting the Provisions of chapter II of the Constitution to Court’s jurisdiction will help correct cases of misplaced priorities among political leaders and instill sanity in the country by the Provision of basic amenities for the masses. However, the outright usurpation of the Courts power to seat over issues emanating therefrom makes it a Greek gift which exist only in the realm of our utopian state.
Although, the Court through what seems to be judicial activism had at some point made several pronouncements on the justiciability and enforceability of the Provision of chapter II of the Constitution, still there is no automatic ticket to court’s jurisdiction going by the Provision of section 6 (6) (c) of the Constitution. In the case of OLASIFOYE V FEDERAL REPUBLIC OF NIGERIA[6] it was held that when section 15 (5) is read together with item 60 (a) of the second schedule, it can be justiciable. Also, it is the practice that the community reading of the Provision of the African Charter on Human and Peoples’ Right (AFCHPR) domesticated in Nigeria, chapter IV of the Constitution which borders on Human Rights having similar Provisions with chapter II can be employed to enforce the Provisions of chapter II of the Constitution.
Why Chapter II Should be Subject to Urgent Legislative Work.
It is a notorious fact that the current state of our country is nothing to write home about. With the rising cases and spreading of terrorism, banditry, arm robbery, violent agitations on one hand, and poverty holding sway on the other, Provisions of chapter II which captures people focused objectives and welfare should be moved quickly to chapter IV of the Constitution where it would command outright enforcement or better still the ouster clause should be repealed. If these is done, tension in the country would be greatly doused and funds will be channeled to implement policies and programs geared to lift the masses from poverty and improve their standard of living other than embarking on white elephant project. It is not disputable that the chunk of the vices and crimes crippling our economy today is the child of poverty and the effect of clueless policies of successive Government over the years. It is apt to point out at this point that these misplaced priorities and cluelessness which have given birth to joblessness, inflation, poverty, food insecurity, inequality, banditry and terrorism is what chapter II is designed to cure hence the legislative arm should work on it and make the provisions therein justiciable so it could serve its purpose.
Conclusion
It is apt to say that the Nigerian Constitution is supreme, it is the organic law as well as the grundnorm from which other laws originate and derives legality. Hence any provision of the constitution especially as relating to economic and social rights, good governance that is not justiciable is undesirous. As represented herein, chapter II of the constitution should be amended and make justiciable outrightly and section 6 (6) (c) repealed. Such will guarantee all categories of right as well as accord Nigerian citizens ideal constitutional rights and make good government of Nigeria accountable to the people in accordance with the CFRN 1999 (as amended) 2011.[7]
Making chapter II justiciable will in no doubt ensure good governance and sustainable development, reduce poverty, create employment opportunities, quell agitations, guarantee mass literacy and end violent extremism, arrest banditry and reduce hunger in Nigeria.
Recommendations
- The executive should as a matter of urgency commence the process of making chapter II of the constitution justiciable by presenting an Executive Bill to that effect.
- The legislature should also as a matter of importance and urgency commence repeal of section 6 (6) (c) of the CFRN 1999 (as amended) 2011.
- The judiciary as the custodian of the constitution should also keep burning the fire of judicial activism in a desirable approach to remove the ouster clause and guard its jurisdiction jealously.
- Nigerians and professional bodies such as the Nigerian Bar Association (NBA) should be bold to challenge infringement of the rights provided in chapter II of the Constitution even by Public Interest Litigation.
Stephen Peter Okangla is a pupil of law at the University of Maiduguri, Borno State. He has great penchant for Legal research, corporate practice, ADR, Constitutional law, Taxation, Oil and Gas, International Law, Human Rights, Litigation, Lecturing and Governance. He is open for training and mentoring. He can be reach via email: stephenokangla@gmail.com Phone/WhatsApp: 08132040369.
[1] Report of the Constitution Drafting Committee (Report), Vol. 1, p .v (Federal Ministry of Lagos, 1976)
[2] https://www.linkedin.com/pulse/critique-drafting-style-chapter-ii-1999-constitution-nigeria-nwoye <accessed 21 November, 2021.
[3] CFRN 1999 (Amended) 2011
[4] Report of the Constitution Drafting Committee (Report), Vol. 1, p .v (Federal Ministry of Lagos, 1976)
[5] https://guardiang/features/make-chapter-2-of-constitution-justiciable-says-lawyer/ <accessed 17th November, 2021.
[6] (2004) 4 NWLR (Pt. 804)
[7] Non-Justiciability of Chapter II as Impediment to Economic Rights and Development by Oguga V.C Ikpeze