Ekpa Stanley Ekpa
Beyond the statistics of economic growth and GDP, millions of Nigerians live under life threatening conditions that demand urgent improvements in their well-being and living conditions – these people are part of “we the people” that have surrendered our absolute freedom and natural rights for self-help to an organized civil society and government for constitutional protection under our constitutional democracy. These people, mostly, as victims of underdevelopment, have a right to development – the right to development according to the Declaration on the Right to Development, is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, which all human rights, development and fundamental freedoms can be fully realized.
Although the right to development is not designated a fundamental human right under Chapter IV of the constitution, with the disruptive caveat of Section 6 (6) (c) of the constitution against the justiciability of chapter II of the constitution, the Fundamental Rights (Enforcement) Procedure Rules of 2009 made by the Chief Justice of Nigeria pursuant to the powers conferred on him by the Constitution, unequivocally declares and provides that all the rights enshrined under the African Charter on Human and Peoples’ Rights (as domesticated by Nigeria) are fundamental rights enforceable by virtue of the said Rules in a manner similar to all the fundamental rights enshrined under chapter IV of the constitution. My concern, therefore, is on individual and communities right to development and corresponding state responsibilities and not the obligations of international cooperation.
Times are changing and so is the life of law and social dynamics. Whereas in Nigeria, there are still constitutional constraints and political ineptness combining to constitute bottlenecks in legitimizing and institutionalizing the right to development, it is trite that it is only when people have equal access and enforcible right to quality education, good health care, housing and environment, stable power and water supply, job opportunities and functional social security that they can fully, fairly and uncompromisingly participate in building their societies and productively utilize their full potentials. It is instructive that in India and some African countries, their citizens can now obtain redress from the courts if denied their developmental, human and socio-economic rights in the constitution. Relying on the provisions of the African Charter on Human and People Rights, some African countries like Uganda’s constitution (as amended 2005), and South Africa have expunged the the categorization of human rights by making socio-economic rights justiciable. Section 39 of the Ugandan Constitution provides for rights to healthy environment while section. 40 provides for economic rights to gainful employment. In Bharati V. State of Kerala (1973) 4 SCC 225, Hegede and Mukherjea JJ’s judgment helped in the declassification of the fundamentality of human rights by making the provisions of India’s Constitution on State Policy Directives justiciable.
To achieve the Nigerian Dream of “Diversity in Inclusive Prosperity”, Nigeria as a legally bound signatory party to the African Charter on Human and Peoples’ Rights, must make justiciable all right to development, enforcing socio-economic rights and inclusive social justice. Whoever wins the 2019 presidential election owns Nigerians a duty of the century by transmitting an Executive Bill for an amendment of the provision of Section 6 (6) (c), making the provisions of Chapter II justiciable, and the provisions of Section 308 of the Constitution in removing the Immunity Clause; empowering Nigerians to leverage such public interest laws like Section 53 of the Fiscal Responsibility Act 2007 and other provisions of the Freedom of Information Act to demand for their right to development. Upon the receipt of such bill, the National Assembly must swiftly amend the aforementioned sections of the Constitution as the bill will propose.
Our judiciary must follow similar path of judicial activism as seen in Lord Denning MR’s reasoning in Parker V. Parker (1970) AC 777 when he held that “ if we do not do something just because it has never been done before, the law will not develop while the rest of the world moves ahead. This will would be bad for both. The Courts must further adopt the concept of the Realist School of thought that “what the courts say and nothing more pretentious are what is meant by the law”. Our Courts must rise up to the clarion call of judicial progressivism by following the footsteps already set by the courts in Odofe & Ors. V. AG Federation where the court’s ratio decidendi was based on the provisions of the African Charter on Human and Peoples Right on the rights of prison inmates to medical care; and the commendable decision of the ECOWAS Community Court in SERPA V. FGN, where the court’s decision was based on Article 17 of the African Charter. Our courts must adopt a liberal posture in interpreting the provisions of Chapter II of the constitution in order for Nigeria to make significant progress.
Nigerians must also begin to lay claim to their right to development and other socio-economic rights through public interest litigation, holding public awareness sessions to enlighten uninformed citizens of their right to development, and by aggressively ensuring that public servants are accountable to the people.
As a universal and inalienable right, the classified right to life is worthless without a right to quality health care and clean environment, right to human dignity is nothing without right to quality education and equal opportunities, right to personal liberty is a slavery without right to human development, a man’s right to his civil rights are useless in a society where rule of law is a concept rather than a culture, the citizens right of privacy is denied the moment our government fails to protect us, our entitlement to freedom of thought, conscience and religion is constrained when our socio-economic rights are denied, and worse still, we can hardly speak when we are both materially and mentally impoverished.
The Nigerian Dream of “Diversity in Inclusive Prosperity” as a sacred national value and philosophy based on even development and social justice – inclusive process of growth, and equal opportunities for all is achievable only when we boldly democratize access to development.
Ekpa, Snr., Development Lawyer and Editor-in-Chief, Nigerian Corruption Cases Law Report, writes from Abuja, via email@example.com
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