By Prof Mike Ozekhome SAN
INTRODUCTION
Right to Development
The right to development is an inalienable human right affirmed by the United Nations Declaration on the Right to Development (1986). It asserts that every individual and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realized (“Right to development” – history and UN Declaration (1986) (Wikipedia, Nnamdi Azikiwe University Journals, Serap Nigeria, Unilag Law Review, Gravitas Review)). Regionally, this right is embedded in Article 22 of the African Charter on Human and Peoples’ Rights, to which Nigeria is a signatory (Article 22, African Charter on Human and Peoples’ Rights (recognized by Nigeria) (Wikipedia)).
Public Interest Litigation (PIL)
Public Interest Litigation in Nigeria refers to legal actions brought not by directly affected individuals, but by public spirited citizens or civil society organizations to protect collective rights or public goods. The scope for PIL broadened significantly with Centre for Oil Pollution Watch v. NNPC (2018), where the Supreme Court expanded locus standi doctrine—allowing NGOs to sue on behalf of affected communities even absent direct injury (Centre for Oil Pollution Watch v. NNPC (2013–2018); locus standi liberalisation by Supreme Court (Nigerian Law Forum, Unilag Law Review)).
Rule of Law
The rule of law encompasses principles such as equality before the law, accountability, separation of powers, transparency, and judicial independence. In Nigeria, public interest litigation is often seen as both reinforcing and challenging this principle by promoting access to justice but also raising concerns about judicial overreach and institutional balance (IP/Law commentary and doctrinal analysis of COPW decision (Nigerian Journals Online)).
Significance in Nigeria’s Socio Political Context
Nigeria is marked by severe socio-economic inequality, inadequate service delivery, environmental degradation, pervasive corruption, and impunity among authorities. In such a context, the right to development becomes critical as a framework for citizens’ demands for basic needs—education, health, sanitation, environment. Public interest litigation emerges as a vehicle for marginalized groups to assert these rights, elevate the rule of law, and press the state toward accountability, despite structural and constitutional limitations.
Thesis Statement
This essay contends that although the right to development remains non justiciable under Nigeria’s domestic Constitution, it is incrementally enforced through public interest litigation grounded in international and regional law. Case law from both Nigerian courts and the ECOWAS Court demonstrates how PIL helps to bolster the rule of law—yet institutional obstacles, weak enforcement, and constitutional constraints continue to limit its transformative potential.
The Right to Development in the Nigerian Context
Origin and Definition under International Law
The right to development was formally recognized by the United Nations in December 1986. Its Preamble frames development as “a comprehensive economic, social, cultural and political process” aimed at improving well being through inclusive participation and equitable benefit sharing. The African Charter (Article 22) further affirms this right as legally binding for member states, including Nigeria.
Constitutional Silence: Implicit vs. Explicit Recognition
While Nigeria ratified the African Charter and incorporated it domestically through the African Charter Act (2004), its 1999 Constitution does not explicitly guarantee the right to development. Instead, Chapter II sets out non justiciable Directive Principles of State Policy, which are aspirational statements rather than enforceable rights.
Socio Economic Rights in Chapter II of the 1999 Constitution
Chapter II outlines goals such as provision of education, health, housing, and social welfare. However, Section 6(6)(c) explicitly removes jurisdiction of courts over these principles, rendering them unenforceable in litigation.
Justifiability, Debate and Attempts at Enforcement
Despite constitutional limitations, litigants have tried to enforce socio economic rights through clever reliance on international obligations and fundamental rights provisions. The ECOWAS Court, empowered by treaties Nigeria ratified, has been pivotal in bypassing domestic procedural constraints by directly enforcing rights under the African Charter (Justiciability via ECOWAS Court and reliance on African Charter despite domestic silence uncaccoalition.org+3worldcourts.com+3Serap Nigeria+3).
Role of ECOWAS Court Decisions
In SERAP v. Nigeria & UBEC (2010), the ECOWAS Community Court ruled that Nigeria’s failure to provide free and compulsory basic education violated Articles 17 and especially Article 22 of the African Charter, regardless of the domestic non justiciability of educational goals. The Court dismissed Nigeria’s objection that the issue fell under Nigeria’s Chapter II—and reaffirmed its authority to enforce African Charter rights even where municipal law does not confer such rights.
Public Interest Litigation (PIL) as a Tool for Enforcing the Right to Development
Evolution of PIL: From Restrictive Locus Standi to Liberal Interpretation
Historically, Nigerian courts required plaintiffs to demonstrate direct personal injury to have standing. For instance, in the environmental case filed by Centre for Oil Pollution Watch, both the Federal High Court and Court of Appeal dismissed the suit due to lack of locus standi. But in 2018, the Supreme Court overturned those decisions, liberalizing standing rules to allow NGOs to sue for environmental harm on behalf of affected communities (Ibid).
Landmark Cases Using PIL
• Centre for Oil Pollution Watch v. NNPC (2018) became a landmark PIL ruling. The Supreme Court acknowledged environmental degradation as a public interest issue and permitted an NGO to seek remedies on behalf of impacted communities, recognizing the right to life and a healthy environment within Section 33 and Section 20 of the Constitution (ibid).
• SERAP’s action at ECOWAS Court used PIL to demand free basic education. The Court not only recognized the right to education under the African Charter but issued binding orders for the Nigerian government to implement free, compulsory education, underscoring PIL’s potential in enforcing development rights.
PIL and Access to Justice for Marginalized Groups
The liberalization of locus standi enables NGOs and advocacy groups to represent communities otherwise unable to afford litigation. This expansion improves access to justice, especially for rural or marginalized Nigerians facing environmental hazards or educational deprivation.
The Nigerian Judiciary’s Attitude toward Socio-Economic Rights Claims
While constitutional restrictions persist, judicial activism via PIL and international law has gradually induced a more receptive adjudication of socio economic rights. Nonetheless, courts remain constrained; executive non-compliance and weak enforcement mechanisms often undermine the effectiveness of PIL rulings.
Rule of Law: Interplay with Right to Development and PIL
Defining the Rule of Law (Dicey, Constitutionalism, Judicial Independence)
The rule of law, as articulated by A.V. Dicey, has three central tenets: the absolute supremacy of law (no one is punished except for breach of law), equality before the law, and the predominance of legal precedents over discretionary authority. Modern constitutionalism expands this understanding by insisting the state must be bound by law, that individual rights are protected through fair legal procedures, and that courts operate independently in interpreting and enforcing those laws. Judicial independence thus becomes pivotal: judges must be able to decide cases impartially, without undue influence from the executive or legislative branches.
Does PIL Promote or Undermine the Rule of Law?
PIL undoubtedly strengthens several dimensions of the rule of law: it democratizes access to justice, holds government institutions accountable, and enforces compliance with legal and constitutional norms. By broadening locus standi, PIL empowers civil society and marginalized communities to seek remedies—even when formal constitutional channels are blocked. However, critics argue that PIL may lead to judicial activism, where courts make policy decisions or governance choices best left to elected bodies. Such scenarios raise questions about institutional balance and the separation of powers.
Weak Enforcement of Judgments & Executive Non Compliance (Dasuki case)
The Dasuki case underscores the fragility of judicial authority when the executive refuses to comply with court or regional tribunal orders. In 2016, the ECOWAS Court ruled that Col. Sambo Dasuki’s re-arrest and continued detention—despite bail granted by multiple Nigerian courts—was arbitrary, unlawful, and a clear mockery of the rule of law, ordering his immediate release and payment of ₦15 million in damages. Yet successive Nigerian governments ignored these rulings. Multiple Federal High Court judges reaffirmed his bail, but the State Security Service (SSS) refused to release him for several years. In 2024, even the ECOWAS Court itself dismissed Dasuki’s enforcement action, citing procedural technicalities and lack of jurisdiction to compel enforcement, effectively illustrating how executive impunity erodes the rule of law. (SERAP v. Nigeria ECOWAS Court judgment on education – right to development (SERAP / ECOWAS judgments summaries).
Tensions Between Populist Litigation and Strict Legalism
PIL can sometimes generate tension between populist demand for justice and strict adherence to procedural legalism. On one hand, it serves the people by bringing rights-based litigation when formal channels are blocked. On the other, it exposes the judiciary to accusations of overreach or policymaking under legal guise. The Dasuki case reflects how popular sentiment around arbitrary detention can drive litigation, yet harsh procedural rules and political reluctance can frustrate enforcement, leaving legal victories hollow.
CASE STUDIES / EXAMPLES
SERAP v. Federal Government (Mismanagement of Education Budget)
Through public interest litigation, the Socio-Economic Rights and Accountability Project (SERAP) challenged the federal government over education fund mismanagement. They petitioned the ECOWAS Court, which held that Nigeria’s failure to provide free and compulsory basic education constituted a breach of the African Charter’s Article 22. The Court ordered systemic reform but enforcement remains partial due to domestic non-compliance and political inertia.
Ken Saro-Wiwa’s Legacy & the Ogoni Nine: Environment as Development Right
The struggle of Ken Saro-Wiwa and the Ogoni activists underscored environmental exploitation and lack of economic inclusion as key issues of the right to development. Their execution in 1995 galvanized international condemnation and modern Nigerian environmental litigation. The case establishes the link between environmental justice, community development, and public interest legal action against multinational extractive actors—paving the way for later PILs such as COPW v. NNPC. (To be continued).
THOUGHT FOR THE WEEK
“Sustainable development is the pathway to the future we want for all. It offers a framework to generate economic growth, achieve social justice, exercise environmental stewardship and strengthen governance” – Ban Ki-moon.
Other Articles
