Comparative Analysis of Justifiability of Economic and Social Rights in Nigeria

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.