The Constitution And The Courts: Section 315 (3) On Trial -By Gado Ageh Lot Esq.

To understand the laws is to understand the interpretations. In any given democratic Setting, the Judiciary has a vital role to play in stabilizing and catalyzing the other arms of government, and by extension, itself. This is because the fate of the masses lies in the Court. As a mother, her ears always open to the cries of the oppressed especially when the weather of the Executive and the Legislature seems unbearable. It is not a gainsaying that the citizens enjoyed little or no dividend of democracy in a Country like Nigeria in spite of the abundance of resources at her disposal. This is due to the fact that there are no viable laws or judicial pronouncements to address their yearning plights. Yet, the political class and those that are on the corridor of power enjoyed some kind of privileges and still swoop upon even the crumbs left for the masses or the electorates to their detriment. As if to say that there is a conspiracy among the three arms of government. The question is, are the Courts still the hope of the common man?

The Fundamental Rights as embodied in Chapter IV (Ss. 33-44) of the 1999 Constitution Federal Republic of Nigeria (as amended) are not absolute. Hence, they are subject to all manners of derogations and restrictions depending on, the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons in the society. In Mrs. Yetunde Ogungbesan & Ors v. Hon. Minister of Health and Social Services (1995) FHCLR 168 at 190, the applicants who are nurses sued the respondents in connection to their right to freedom of association. The Court in dismissing the said action held that since the applicants are engaged to provide essential services, their right to embark on industrial action was properly derogated upon by the Trade Disputes (Essential Services) Act (Cap.433) LFN, 1990, in the interest of public health. The question is, what is the essence of a water pot lacking in water? As noted by Oluyede and Alie Fundamental rights “… are full of limitations or exception clauses which are so far-reaching as to empty the guarantee of meaningful contents. Under the umbrella of these limitations, the guarantees are habitually whittled down in the interest of peace, order and good government or even abrogated during a period of emergency.” (P. A. Oluyede and D. O. Alie, Cases and Materials on Constitutional Law in Nigeria, second edition, University Press Plc. Ibadan, 2003, p.363

It is true to say that absolutism is self-destructiveness. However, right chained is life taken. To this end, privileges and substantial rights should be inherent in any enacted law; only then, can life be deemed livable. Thus, the Fundamental Rights donated by the Constitution are limited to civil and political rights. These rights when infringed upon are enforceable in the appropriate Courts. The economic, social and cultural rights that are enshrined in the Fundamental Objectives and Directive Principles of State Policy captured in Chapter II of the 1999 Constitution Federal Republic of Nigeria (as amended), it is said, are not justiciable. This was judicially noted in Arch Bishop Olubunmi Okogie v. The Lagos State (1981) 2 NCLR 337 at 350. It is injustice to the state of humanity to divorce Chapter IV of the 1999 Constitution from Chapter II of the same Constitution. A look at India where there had been in the rise judicial activism, “where it had been contended that the meaning of the word “life” include the right to live in fair and reasonable condition, right to rehabilitation after being released, right to livelihood by legal means and decent environment.” (J. Nnamdi Aduba, The Right to Life under the Nigerian Constitution: The Law, the Court and Reality, NIALS Press, Abuja, 2011, p.9).

Article 21 of India Constitution says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This seems almost similarly worded with section 33 (1) of the 1999 Constitution. In Maneka Ghandi v. Union of India (1978) ISCC 248 (India Supreme Court Judgment), where it was held that the right to life goes beyond the fundamental right to life. Thus, it was held that the right to life includes: the right to live with human dignity and all that goes along with it; namely- the bare necessity of life such as adequate food, nutrition, clothing and shelter over the head. In similar vein, the same Court made various pronouncements among which is “there is a close nexus between life and means of livelihood.” Thus, what makes life worthwhile must be deemed integral components of the right to life. Furthermore, it is noteworthy that right to life includes: education and the right to education flows directly from the right to life. (See Frannus v. Union Territory of Delhi A.I.R. 1981 SCC 7, UNNI Krishnan v. State of A.P.). Sadly, enough, “…virtually all important constitutional cases were decided in favour of the federal government. Not unexpectedly, the general public soon lost confidence in the judicial process and took the laws into their hands ….”(Femi Falana, Fundamental Rights Enforcement, first edition, legal publishing company Ltd, Ojodu, 2004, p.6)

Why is Chapter II still unenforceable? The answer will be quick to give by any jurist or judge. And That is, a Court of law is estopped to enforce or has no jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity or not with the Fundamental Objectives and Directive Principles of State Policy. (See S.6(6)(c) 1999 CFRN and Arch Bishop Olubunmi Okogie case supra). However, a look at Transitional Provisions and Savings carefully captured in Part III of the same Constitution says in section 315 (3) “Nothing in this constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-

• Any other existing law;
• A law of the House of Assembly;
• An Act of National Assembly; or
• Any provision of this constitution

It is a trite norm of interpretation that the latter section prevails over an earlier section. According Lord Denning in PARKER Vs PARKER (1954) 1 All ER 22 “…if we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goes on and this will be bad for both.” Therefore, a look at section 315 (3)(c) (d), the provision of section 6(6)(c) falls directly therein. And since there is a nexus between life and means of livelihood, thus, the Court shouldn’t be misled (but take a bold step) or envelop itself in fear cocoons as not to declare section 6(6)(c) invalid as it is in direct conflict with Chapter IV due to the fact that it unlawfully shields the government from its legal and moral duty of making life livable for the citizenry; as the provisions of Chapter IV cannot, shall not and will never be divorced or be in absolute independency in the absence of non-justiciability of Chapter II. To hold otherwise, is a legal deception tantamount to treating unequally equally or equally, unequally, and by extension, permitting the law thickest blanket over the fate of realities. Therefore, there is nothing whatsoever stopping the Court from enforcing the provisions of Chapter II. As noted by Femi Falana on page 9 of the same book (supra), “Even though the rights contained in Chapter II are not justiciable, they contained guidelines as to what the courts should do when confronted with the problem of interpretation”. With respect to the learned Silk, the courts have a vested authority to make such provisions justiciable by virtue of section 315 (3) not just only guidelines to the courts. Guidelines that are enveloped in the gamut of unenforceability and are in conflict with latter sections and ought to be married and are not but remain divorced, is tantamount to granting an access path full of thorns to an individual to walk upon barefooted. To this end, realizing the limitation of employing judicial activism to ensure enforcement of the Directive Principle of State Policy, South Africa as a State has specifically provided for the justiciability of socio-economic rights in her Constitution. This was judicially noted in the case of Government of the Republic of South Africa v. Grootboom (2001) 36 WRN 137 at 162-163, where the Court held as follows “Our Constitution entrenches both civil and political rights and social economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundation values of our society, are not the exclusive of those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights in Chapter 2. The realization of these rights is also the key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potentials. The right of access to adequate housing cannot be seen in isolation. There is a close relationship between it and the other socio-economic rights. Socio-economic rights must all be read together in the setting of the Constitution as a whole. The State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the state has met its obligations in terms of them.” To this end, a bill should be forwarded to the NASS to see to the amendment and enforcement of Chapter II or take cognizance the moment the Court makes it pronouncement as to the enforceability of the provisions therein. In amending the said section 6(6)(c), a provision should be enshrined admitting no exception or excuse by the Executive Arm in not carrying out the directives. So that in the event of any failure either by the President or Governor or such likes in meeting the said provisions, such a person should face the full wrath of the law.

Conclusively, it is the duty of any independent State to create an atmosphere where citizens of different faiths, caste and creeds live together in harmony and to see to it that the liberty, life, dignity and worth of her citizens are protected and are not endangered. Only then, rights can be said to have its real tangible effect on the common citizens. If in any circumstance the State is unable to so do, it has failed in its moral and legal duties towards her citizens in which she is called to protect. A morning crow to the three organs.

Gado, Ageh Lot Esq.
lotgado@gmail.com
08130667439