USA Africa Dialogue Series - A theory to make socio-economic rights enforceable

A theory to make socio-economic rights enforceable  KAYODE KETEFE   Imagine a condition where every Nigerian has access to good and qualitative education, adequate means of livelihood, adequate opportunity to secure suitable employment, where conditions of work are just and humane and there are adequate facilities for leisure, social, religious and cultural life. Imagine a situation where the government provides adequate medical and health facilities for all persons; where there is equal pay for equal work without discrimination on account of sex, or any other ground whatsoever; where children, young persons and the aged are protected against any exploitation whatsoever and against moral and material neglect. The mere conception of such a paradisiacal existence may be difficult for many Nigerians giving our lifelong experience with comprehensive poverty and privation occasioned by protracted maladministration and corruption. Not many Nigerians also know that the conditions described above, utopian as they may seem, are not just delusive emanations of my imagination, but expressly provided for under Chapter Two of the 1999 Constitution. Actually, I have quoted from the chapter 17-18 of the Constitution which is just a part of the entire chapter tagged Fundamental Objectives and Directive Principles of State Policy. If the above conditions are provided for by the constitution which every President and Governor swore to uphold, why are Nigerians deprived of all these blessings by each successive government?"  (Even the Minister of Agriculture and Rural Development,  Mr. Akinwunmi Adesina  recently, said "Nigeria still has 13 million people suffering from hunger, and malnutrition is still high" Many Nigerians would regard the figure to have been understated.) The answer lies in Section 6 subsection 6 (c) of the constitution which renders contents of Chapter Two non-justiciable, as they say in the legal parlance. That is to say no Nigerian has the right to go to court to enforce them. Some stakeholders have been calling for the expulsion of section 6 (6) (c) from the constitution over the years with the resultant effect that the chapter shall become enforceable just like other parts of the constitution. The arguments which the proponents of anti-enforcement of the socio-economic rights have used the over years, almost ad nauseam, is that making such rights enforcement could lead to  institution of a deluge of cases which would weigh down the administration of justice machinery. But this argument could be countered by the proposition that a special fast track procedure could be fashioned out to make cases under the chapter timeously disposable. Conversely, the proponents of "enforceability theory" would scoff at the idea that the conditions painted in the constitution cannot be created.  They would readily point to billions of naira that had been and are being siphoned away from the national treasury by corrupt politicians with the emphasis that these could have been employed towards the ends of Chapter Two of the Constitution. Well, there may be some truth in the argument that wealth can only be created  and cannot be legislated into existence and therefore the Nigerians could not start to enjoy all those wonderful provisions of Chapter Two simply because they were inserted into the constitution; that there must be underlying economic realities that would make the dream feasible. Yes, but the pertinent question is "Is the government doing enough? Should the government say because it cannot make provisions on everything provided in that chapter, it should just ignore them altogether? My proposition on how to solve this problem is this: make "monumental breach" of the Chapter Two an impeachable offence. Under Section 143 of the 1999 constitution, impeachment proceedings may only be initiated against the president when he is adjudged guilty of "gross misconduct." What I am proposing is that the Constitution should be amended to provide that any president who is guilty of "monumental breach" of the socio-economic rights enshrined in Chapter Two should be liable to impeachment. This could mean the National Assembly would convene a special session at the end of every year to evaluate and assess the president's commitment to the implementation of the provisions of Chapter Two; if the president is adjudged to have been guilty of "monumental neglect" of the socio-economic right, then impeachment proceedings should be commenced against such president. A foolproof alternative mechanism should also be instituted to check situation where the lawmakers, out of cozy relationship, undeservedly give the president a pass mark. This could be by inserting provisions to the effect that after National Assembly's annual assessment, any of the registered human rights organisations could bring an action in court for a declaration that the president is guilty of monumental breach, whereupon the court, upon finding so, would remove the president and order fresh election within 90 days, during which the Senate President shall be Acting President. There should be a corollary provision that there could only one such a case every year from human right organisations. This would stem the fear of deluge of cases being anticipated if the rights are made enforceable as there would only be a single case in a year. The implementation of the suggestion here would at least put a stop to the present culture of monumental neglect of the socio-economic rights by the government.

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