By Prof Mike Ozekhome SAN

INTRODUCTION

The inaugural part of this piece was necessarily foundational: it defined ‘human rights’; ‘economic social and cultural rights’ and also reviewed historical assault on economic rights by military juntas in Nigeria. Today we continue same theme after which we shall delve into social and cultural rights and equally examine their justiciability. Enjoy.

ASSAULT ON ECONOMIC RIGHTS BY MILITARY JUNTAS (continues)

The opaque commercialization and privatization of economic policies that were originally introduced by successive military regimes in Nigeria were later to be fully and absolutely incorporated and implemented in the scheme of things by the Obasanjo administration from 1999-2007. For example, the Obasanjo administration illegally privatized NNPC, NITEL, NEPA, Federal Hotels, strategic public institutions and other public corporations, without necessarily following due process as is required under a constitutional democracy. This privatization and commercialization exercise was done with the ulterior motive of satisfying the whims and caprices of a certain cabal of politicians at the expense of the vast majority of the masses. The commanding heights of our National economy were privatized to friends, relations, school mates, surrogates and lackeys of Government officials and their compradors.

SOCIAL RIGHTS

These include right to quality education, right to security of employment, access to free medical care, right to drink clean pipe-borne water, right to electricity, right to information, right to good roads, right to good shelter and clothing, etc. These are also known as basic social amenities, which are necessarily incidental to decent and reasonable existence. We are already in the 21st century where a serious global campaign is on going for mass literacy. This campaign for good and qualitative education is predicated on the well known truism that education leads to development in all its ramifications.

Has the Nigerian Government done enough in the area of fundamentals of the importance of education? The answer in good conscience is a capital “No”. Since the days of “Ali-must-go protests (1978), education has suffered tremendously as a result of its commercialization, thus making it an exclusive preserve of the rich. The then National union of Nigerian Students (NUNS), under the leadership of late Mr. Segun Oni demonstrated its abhorrence for this and strenuously protested against the commercialization of education by the then Commissioner for Education, Amadu Ali. Unfortunately, however, this noble struggle of Nigeria Students led to indiscriminate shooting, maiming and killing of innocent and harmless students who were essentially the sons and daughters of the poor. All Federal Universities were promptly closed down following the mass protests. These tragedies occurred during the inglorious days of the military dictatorship of Obasanjo. That was perhaps the first time when Nigerian students signposted their determination to assert their inalienable right to education. Till date, education is still in shambles as all successive military and civilian Administrations have done little or nothing to improve it. While the children of the rich and people in Government attend Ivy league schools both locally and in foreign countries, the mass majority of children of the poor receive half-baked education in half completed buildings, without writing or learning materials.

In fact, since the evolution of Nigeria as a country and indeed since the attainment of political independence, no government has sincerely attempted the convocation of an Education Summit where all stakeholders are permitted to contribute intellectually to the production of a blue print for sustainable quality education that will meet our yearnings and aspirations as a rapidly developing African Country. It is an indisputable fact that without quality education, life will be of no avail and consequently, development will be retarded.

Another epochal struggle of the later National Association of Nigerian Students (NANS), for improved living standard and conditions in tertiary institutions was the 1990 agitation for the provision of the most basic needs on campuses, essentials such as pipe – borne water, electricity and laboratory equipment just to enhance quality education. The response of the then Babangida Military Junita was a far cry from the legitimate demands of the students. Between March/April, 1990, the Federal Government decided to take an IMF loan of $120m for the Federal Universities and this unilateral and retrogressive decision triggered off violent protests and agitation from the academic community. The National Association of Nigerian Students (NANS) and Academic Staff Union of Universities (ASUU), actively protested against the decision to take loan from the world Bank, essentially because the conditionalities attached thereto would worsen the already crisis – ridden educational situation in the country. Not less than three Federal Universities were closed down following the massive protests that greeted the decision to take the said IMF loan. Some students of the Obafemi Awolowo University, Ile – Ife, were arrested and arraigned before an Ile – Ife Magistrate Court for charges of conduct likely to cause a breach of the peace. The then Education Minister, Prof. Babs Aliyu Fafunwa, while trying to justify the essence of the loan stated that it was meant for the restoration of the universities, but this explanation was not acceptable to Nigerian Students as well as the Academic Staff Union of Universities, who that knew the loan would further deny Nigerians a right of access to the already collapsed educational system. All these were the by-products of SAP, an anti-people program that was initiated by General Babangida’s Military regime.

CULTURAL RIGHTS

Culture has been defined by Bairamian J. in Lewis vs. Bankole, as a mirror of accepted usage. It is a way of life of people, which has gained acceptance among them over the years. The great sage, Chief Obafemi Awolowo of blessed memory, once said that:

“Culture is the tap root of every society and if culture decays, that society will have to develop parasitic features for it to continue to exist”.

Cultural heritage has many aspects. For example, cultural songs and dance, cultural foods, cultural traditional marriage, cultural dresses and festivals. Nigerian’s multi-ethnic groups presuppose the existence of cultural pluralism. This means that as there are many different ethnic groups, so also there are different and diverse cultures in Nigeria. It is therefore necessary to preserve and promote cultural rights among the various ethnic Nationalities in Nigeria, so as to enable Nigerians participate actively in their cultural life. This would also foster our philosophy of national integration and diversity. An examination of the Nigerian Society in the pre-colonial era will reveal how well preserved, promoted and respected our cultural heritage was by all the paramount traditional rulers of the time. For example, the Benin Empire during the reign of Oba Overamwen Nogbaisi earned continental applause as a result of the Oba’s dedication and commitment to the promotion and preservation of the Benin cultural heritage. The Oyo Empire under the Alaafin of Oyo was also feared and respected by all and sundry for its commitment to the preservation of their cultural heritage. The Hausa/Fulani struggled for decades for the preservation and promotion of their cultural heritage. This was copiously acknowledged by all British Colonial Administrators in Nigeria during the colonial era.

JUSTICEABILITY OR OTHERWISE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Chapter II of the 1999 Constitution of the Federal Republic of Nigeria, 1999, as amended made copious provisions for Fundamental Objectives and Directive Principles of State Policy. Sections 13 – 24 of the constitution are basically on such all important issues and matters like fundamental obligations of the Government, the Government and the people, politics, economic, social, educational, foreign policy, environmental objectives, directives on Nigerian culture, obligations of mass media, National ethnic and duties of the citizens. Section 16 (1) – (4) of the constitution deals essentially with economic objectives, while section 17 (1) – (3) deals with social objectives; and section 21 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides for directives of Nigerian culture.

A cursory look at the Constitution of the Federal Republic of Nigeria, 1999, as altered, quickly reveals that the Government, gave these rights and privileges with the left hand, and took them back with the right hand. This is akin to the proverbial Greek gift. It is submitted with respect that, the non-justificiability of the Fundamental Objectives and Directive Principles of State Policy under the 1999 Constitution appears to be a conspiracy by the state and its preferred minions to deny the Nigerian citizens, particularly the masses, the enjoyment of their well deserved wealth by many public officers and Government functionaries. A careful consideration of the diary of looting in Nigeria will reveal how public officers in connivance with elected political office holders have embezzled and mismanaged public funds meant for provision of infrastructural facilities and other developmental projects. But since the 1999 constitution as imposed by themselves and their military collaborators has prohibited any person from challenging or seeking to enforce the Fundamental Objectives and Directive Principles of State Policy, the looting or siphoning of public funds will continue with impunity and the perpetrators will always find an escape route. The average Nigerian continues to wallow in abject penury. The recent revelations of looted billions of naira constitute and eye – opener to this tragedy.

We must encourage and promote the enforcement of all the Fundamental Objectives and Directives Principles of State Policy as they are meant to enhance the living standard of all and sundry.

THOUGHT FOR THE WEEK

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others”. – Jonathan Sacks.

By Prof Mike Ozekhome SAN

INTRODUCTION

Generally speaking, economic, social and cultural rights are part and parcel of inalienable human rights with which man is naturally endowed upon birth. In a responsible and ideal society, all the human rights including economic, social and cultural rights are recognized, respected, guaranteed, enforced, implemented and even prompted by all and sundry, the state inclusive. These rights which have been universally recognized are otherwise known as ECOSOC RIGHTS.

However, before discussing in detail, economic, social and cultural rights which constitute the gravamen of this write-up, it is pertinent to deal with terminological issues by attempting to know the meaning of a ‘Right’. What is a “Right”?

DEFINITION OF TERMS

“Right” is a versatile term meaning correct, suitable, or morally proper, as well as indicating the direction opposite to left, or a legal/moral entitlement. It signifies accuracy.
According to Osbornes Law Dictionary of current English, a Right is defined as:

“An interest recognized and protected by the law, respect for which is a duty and disregard of which is wrong”

This definition is on all fours with that of Black’s Law Dictionary (8th Edition, page 1347) which defines ‘Right’ as:

“That which is proper under the law, morality or ethics. Right also means to know right from wrong, something that is due to a person by just claim, legal guarantee, or moral principle-the right of liberty. A power, privilege, of immunity secured to a person by law -the right to depose of one’s estate. A legally enforceable claim that another will do or will not do a given act; the violation of which is a wrong-, a breach of duty infringes one’s right. The interest, claim or ownership that one has in tangible or intangible property-a debtor’s rights in collateral-publishing rights. The privilege of corporate shareholders to purchase newly issued securities in amounts proportionate to their holdings. The negotiable certificate granting such a privilege to a corporate shareholder”

A legal scholar, John Chipman Gray, in his book “The Nature and Sources of law, page 8-9 (2d ed. 1921)”, opines that:

“Right is a correlative to duty; where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights, corresponding to them do not come within the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighbor, but he has no right to our love”.

Ordinarily, right means power of free action. It refers, inter alia, to the economic, social and cultural advantages or benefits to which man has a just claim morally, legally and ethically. It is different and distinct from a privilege. From the above definitions only a right recognized and protected by law can be considered as a right; Otherwise, it is just a privilege.

WHAT THEN ARE HUMAN RIGHTS

Human rights strictly speaking are those sets of rights referred to as inalienable, which are also specifically and particularly recognized and protected by law. Every human being is naturally endowed with and is entitled to the enjoyment of such rights except by due process of law. They are human because they are fundamental.

Another legal scholar, M. Cranston in his book titled: “Human Rights: Real and Supposed quoted in D/D, Rapheal (ed) Political Theory and the Rights of man (1967) Bloomington, Indian University Press page 52”. Opined that:

“A human right is something of which no one may be deprived without a great affront to justice. These are certain deeds, which should never be done, certain freedoms, which should never be invaded, something’s which are supremely sacred”.

One of the most distinguished jurists ever produced by Nigeria, Kayode Eso JSC, re-affirmed the importance of human rights in RANSOME KUTI V. A-G OF THE FEDERATION (1985) 2 NWLR (Pt. 6) 211, 230, in the following words:

“it is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence… and what has been done by our constitutions…. is to have these rights enshrined in the constitution so that the rights could be “immutable” to the extent of the “non immutability” of the constitution itself”.

From the above definitions of human rights, it is obvious that those rights that are termed fundamental human rights and which are specifically codified in our statutes particularly Chapter IV of the Constitution of Federal Republic of Nigeria, 1999, as amended, are not only recognized and protected, but are also enforceable in law courts.

WHAT ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS?

These are simply rights that enable man to have a reasonable and decent standard of living in the society. In accordance with the provisions of Chapter II of the Constitution of the Federal Republic of Nigeria, 1999, as amended, every citizen in Nigeria shall be afforded the opportunity to develop his full potentials economically, socially and culturally to the utmost of his ability. Unfortunately, however, the contrary is the case as these rights are not in any enforceable in a court of law. This informs the reason why some countries of the world have codified some fundamental laws regarding the implementation and enforcement of economic, social and cultural rights in their grundnorm, the constitution. The right to a decent living is unarguably a corollary to the right to life. To be saddled with less than decent living standard is to demote human beings to the base level of animals.

ECONOMIC RIGHTS

An Economic right is nothing but the right of man to be gainfully employed in order to share a decent and adequate standard of living in the society. The state is enjoined to ensure the provision of job opportunities to all persons without discrimination on grounds of belief, religion, gender, political and ethnic affiliations. In this respect, it is expected that the Government should provide an enabling economic environment to improve on the living conditions of the citizens. Without this, life, as in the Hobbesian state of nature, would be “short, nasty and brutish”.

ASSAULT ON ECONOMIC RIGHTS BY MILITARY JUNTAS

Unfortunately, the economic rights of many Nigerian citizens have been seriously undermined by successive military and civilian Administrations (See Annual Report on Human Rights in Nigeria, 1990-Civil Liberty Organisation (CLO).). In the locust days of the General Ibrahim Babangida administration, the nationally acclaimed maximum dictator, and self-styled “evil genius”, the Nigerian economy was badly managed and terribly crises-ridden, thus subjecting poor Nigerian citizens to squalor and abject penury. It was during the tenure of this military junta that subsidy in petroleum products was removed and left to the vagaries of international market forces. Nigerians were living from hand to mouth; both the employed and unemployed. Inflation geometrically increased and consequently the poor living conditions of Nigerian citizens became aggravated. All the civil liberties organizations, Student Unions and the Nigerian Labour Congress massively mobilized Nigerians to protest against the military Government policy of removing oil subsidy. This did not in any way deter him. In fact, the protests led to the arrest and incarceration of many human rights and pro-democracy activities. Many died in the struggle.

When the Babangida regime eventually responded to the economic crisis in Nigeria with the introduction of the Structural Adjustment Program (SAP), the implementation of which rather aggravated the living conditions of a vast majority of the citizens who were then living below poverty line, he went scot free. The United Nations Development Project (UNDP) Report on Human Development better captured this sorry state to which Nigerians were subjected by the Ibrahim Babangida regime in its report which scored Nigeria 0.322 out of a maximum Human Development Index of (HD10 1.0). That report automatically placed our country last in terms of citizen’s access to resources needed for a decent standard of living, literally levels and average life expectancy in a given country. The value of Naira also experienced a monumental decline or downward slide vis-à-vis the dollar and other international currencies under the Second Tier Foreign Exchange Market (SFEM).

Another negative effect of SAP to Nigerians was the massive loss of employment as many Nigerian workers of various levels were laid off. It was reliably reported that not less than 10, 000 junior workers of Julius Berger Construction Company in the Federal Capital Territory, Abuja (FCT), were unlawfully dismissed simply because they embarked on a strike action to demand for better working conditions. This further worsened the alarming abject poverty in the country.

With the advent of Democracy in Nigeria in 1999, (one would have expected an aggressive and radical transformation of the economy in such a way that adequate job opportunities would be created to quickly arrest the alarming hunger and poverty that had ravaged the Nigerian masses). Unfortunately, the civilian administration of Chief Olusegun Obasanjo did nothing practical to ameliorate the deplorable living conditions in Nigeria. Instead, his administration introduced social and economic policies that were not only strangulating in nature, but exclusively impoverished the Nigerian masses who started living like “walking corpses”, as Ayi Kwei Ama once posited, in his book, “The Beautiful Ones Are Not Yet Born”. (To be continued).

THOUGHT FOR THE WEEK

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual”. (Thomas Jefferson).

By Prof Mike Ozekhome SAN

INTRODUCTION

In our last discourse on this series, we examined the procedure for enforcement of fundamental rights, including applications for leave; as well as the substantive application itself and the reactions that follow. Today, we shall continues from where we stopped with the substantive application itself and the reactions thereto and later x-ray the applications to squash proceedings; applications for production and/or release of persons restrained; orders for bail, production and access to medication. Please read on.

SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS (Continues)

In the case of LAWRENCE OLUSEGUN ADEYEMO V. C.O.P, OYO STATE ([2021] LPELR-56272(CA)), the applicant requested the court for a writ of habeas corpus under order 2 of the fundamental Rights (Enforcement Procedure) rules 1979 which provision enjoined the applicant to serve all parties who are or might be interested in the proceedings. Although the affected party had put up appearance, but raised a preliminary objection to the application for non-compliance with the statutory conditions. Babalakin. J. (as he then was) struck out the application on the ground that order 2(1)(4) is mandatory whether the application is for mandamus, certiorari, or habeas corpus.

However the Supreme Court in recent times in respect of the fundamental rights enforcements has favourably leaned towards the equitable principle of “Ubi Jus Ubi remedium”, therefore looking more at the substance rather than the form. Hence the liberalization of the procedure for the enforcement of fundamental rights as exposed in the case of ABACHA V. FAWEHINMI ((2000) 6 NWLR (Pt. 660) 228) and UBI UJONG INAH & ORS V. MARCUS UKOI ((2001) (CA) 41981.

APPLICATION TO QUASH ANY PROCEEDINGS

Sometimes it may be necessary for an applicant by way of certiorari to apply to the court for an order that such proceedings be removed from a particular court or tribunal to another court for the purpose of being quashed for lack of power and/or jurisdiction to entertain such proceedings or make such order.

However, an applicant shall not be able to question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of his application (Motion or summons), he has served a certified copy (CTC) thereof together with a Copy of the application on the Attorney-General of the Federation or of the State in which the applicant is being heard (as the case may be).

The court in granting an application seeking to quash proceedings, shall direct that the order, proceedings, conviction or the records of an inquisition be quashed forthwith upon being removed into the court hearing the application.

APPLICATION FOR PRODUCTION AND/OR RELEASE OF PERSON RESTRAINED

By virtue of Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, where an applicant complains of wrongful or unlawful detention, the court or judge to whom the application is made ex-parte may make an order forthwith for his release from such detention.

The court may also direct that an originating summons (as in form 2) be issued or that an application therefore be made by notice of motion (as in form 3). The court may also as it deem fit adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.

ORDER FOR BAIL, PRODUCTION, AND ACCESS TO MEDICATION

Pursuant to order 4 of the bail application, the court upon application may grant to the detainee reliefs including bail, production of the detainee, access to mediation etc.

The court may grant bail at ex-parte stage, pending the substantive application. Where an applicant complains of wrongful or unlawful detention, the court may subject to its discretion order that the person restrained be produced in court. And where such order is so made, it shall constitute a sufficient warrant to any superintendent of a prison, police officer in charge of a police station, police officer in charge of the complainant or any other person responsible for his detention, to produce or ensure the production of the person so restrained or detained in court.

For the purpose of enforcing a person’s fundamental rights, no matter where a detainee is kept he can be allowed access to his personal physician or medically prescribed drugs.

It suffices to note here, that once an order has been made by the court pursuant to the Enforcement Rules, and for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the constitution, such order must be complied with. Failure to obey or comply with any order so made by the court under these rules will incur proceedings for the committal of the party disobeying such an order.

CONCLUSION

Without any controversy, the idea of human rights and personal liberties has become firm and secured. The universality and immutability of human rights are now globally accepted. Consequently, any nation that slacks or shyies away from the diligent protection and enforcement of human rights stand the precarious risk of being shunned by decent and civilised nations. The United Nations seems to have captured the importance and primacy of the issue of human rights and its protection when it poignantly stated as follows:

“Human Rights and fundamental freedoms are the birth right of all human beings, their protection and promotion is the first responsibility of Government” (Universal Declaration of Human Rights (UDHR).

It is the duty of every Government everywhere and every courts of law in every jurisdiction to promote, protect, uphold, and ensure enforcement of fundamental Human rights at all times, because these rights encapsulate the very essence of man.

The end.

THOUGHTS FOR THE WEEK

“Human rights, of course, must include the right to religious freedom, understood as the expression of a dimension that is at once individual and communitarian – a vision that brings out the unity of the person while clearly distinguishing between the dimension of the citizen and that of the believer”. – Pope Benedict XVI.

“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home”. – Martin Luther King III

“Human rights are not only violated by terrorism, repression or assassination, but also by unfair economic structures that creates huge inequalities”. – Pope Francis.