Justiciability of Socio-Economic Rights
Justiciability refers to whether a right is considered legally enforceable by the justice system. In other words, it allows a person or a group of people to seek remedy to a violation of their rights through the courts.
Generally, Socio-Economic rights have been and continue to be litigated in courts around the world, according to the UN Human Rights Office of the High Commissioner. Much of Europe already embraces the justiciability of socio-economic rights. The European Social Charter covers the rights to housing, social protection, education, good working conditions, health, high-quality social services, the protection of migrant workers, and the protection against poverty and social exclusion.[4]
The United States is also renowned to have a long history of attending to social justice by enforcing socio-economic rights. For example, amid the Great Depression, President Franklin D. Roosevelt implemented the New Deal, whereby the government operationalized a host of policies and programs to bolster employment, revitalize housing, and combat poverty and hunger. Decades later, the Affordable Care Act[5] was passed to ameliorate the extreme inequalities experienced throughout the health care system. The importance of socio-economic rights and justice also finds foundational roots in American legislative policies, state constitutions, and judicial decisions.
For some African countries like South Africa, The Constitution of South Africa requires the state to take ‘reasonable measures to secure the progressive realization of guaranteed rights, although the Constitutional Court of South Africa has not endorsed the ‘minimum core’ principle. But, elements of prioritization for urgent needs have been incorporated into considerations of ‘reasonableness’. However, in Kenya, the 2010 Constitution takes a slightly different (and, in principle, more robust) approach. It places a burden of proof on the state to demonstrate, if it cannot deliver a guaranteed right because the necessary resources are unavailable.[6]
In Nigeria, the Constitution that provides for socio-economic rights in Chapter 2, has declared the same rights neither enforceable nor justiciable. This is provided for under Section 6(6)(c)[7] thus:
“The judicial powers vested in accordance with foregoing provisions of the section shall not, except as provided by this Constitution, extend to any issue or question as to whether to any act or mission by any authority or person or as to whether any law or any judicial decision conforms with the Fundamental Objectives and Directive Principles of the State Policy set out Chapter 2 of the Constitution.”
In interpreting this Section, the Court in Archbishop Anthony Okogie v. AG Lagos State[8], held that:
“While Section 13 of the Constitution makes it a duty and responsibility of the judiciary among other organs of government to conform to and apply the provisions of Chapter 11, section 6 (6) (c) of the same constitution make it clear that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. It is clear therefore that section 13 has not made chapter 11 of the Constitution justiciable. The above provision has therefore ousted the jurisdiction of our courts from hearing matters arising from the socio-economic provisions of the Constitution.”– Chapter 2.
It is noteworthy that the provisions of Section 6 (6) (c) of the Constitution are in contradiction with the provision of Section 13 which obligates all organs of government (including the judiciary) to conform to, observe and apply the provisions of the fundamental objectives and directive principles of state policy. This clash brings about an open contradiction in the Constitution on a matter of collective concern, that is socio-economic rights.
In painting a picture of how watered down, the provisions of Chapter 2 are, due to its non-justiciability, Professor Abiola Ojo[9], notes that the fundamental principles being mere guidelines and aspirations should have been relegated to the preamble of the constitution, or better still be left to the pages of political parties’ manifestoes rather than give the citizenry baseless and false hopes.