AN ANALYSIS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) VIS-À-VIS OCCUPATIONAL HAZARD
The Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution) is the grund norm of all laws in Nigeria. Specifically, Section 17 (3) of the Constitution is the law that basically provides for the protection of Nigerian workers in the workplace. It provides as follows:
(3) The State shall direct its policy towards ensuring that-
(a) All citizens without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunities to secure suitable employment;
(b) Conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
(c) The health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;
(d) There are adequate medical and health care facilities for all persons…
However, it is beyond doubt that as laudable as the above provisions of the Law are, they are not justiciable. This is by virtue of the provisions of Section 6 (6) (c) which provides as follows:
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; and…
The foregoing provision of the law, often times referred to as an “ouster clause,” has the implication of inhibiting the coming into life of these objectives and principles. Commenting on the foregoing, it has been noted that:
As a general rule, the principles and objectives of State policy are not justiciable in the court of law. Nothing done by any person or authority can be challenged in Court on the ground that it is not in conformity with the objectives and principles. They confer no enforceable obligations on the State. They are akin to moral, rather than legal, precepts. They are therefore usually drawn in flexible and general language as to accommodate different policies in changing circumstances.
Despite criticism that followed the creation of this law since 1976, including claims that it is “undemocratic and open to abuse,” Nigerian Courts have had no trouble concluding that Chapter II of the Constitution as a whole, which includes, among other sections of the law, Section 17 (3) under reference, is not subject to judicial review. The case of Archbishop Olubunmi Okogie v Attorney General of Lagos Statedrives home this point where the Court held 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.
However, the Courts have tacitly allowed the enforcement of Chapter II of the Constitution. In ORGAN & ORS V NIGERIA LIQUEFIED NATURAL GAS LTD & ANORwhere the Court of Appeal per SAULAWA J.C.A held as follows:
It is in doubt that the fundamental right of the appellants as cherishingly enshrined in the 1999 Constitution has been wantonly infringed upon by the 1st respondent with the tacit collaboration of the 2nd respondent. And it’s the duty and responsibility of all organs of Government, and of all authorities and persons, exercising legislative, executive or judicial powers, to strictly conform to, observe and apply the provisions of the Constitution, most especially under Chapter II i.e. regarding fundamental objectives and directive principles of State policy.
Most particularly, section 14 (1) of the Constitution provides unequivocally that the Federal Republic of Nigeria shall be a State predicated upon the principles of democracy and that the security and welfare of the people shall be the primary purpose of government: section 14 (1) (b) of the Constitution of the Federal Republic of Nigeria.
Undoubtedly, the refusal by the 1st respondent to pay the appellants their hard-earned entitlements is a typical example of the negation of the provision of section 14 (1) (b) of the Constitution.
It has been argued to a great degree of justification that the right to work in a safe and healthy environment is ancillary to the immutable right to life, which is enshrined in Section 33 (1) of the Constitution. For the avoidance of doubt, Section 33 (1) provides as follows:
Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
It can be argued that the right to life is linked inextricably to all the provisions of mankind that would foster human existence, including the right to work in a safe and healthy work environment. It has been argued also that:
The right to life presupposes the existence and availability to all of certain basic facilities such as food, health, shelter and education. The right to life to be maintained needs food which has to be produced by members of the society all of whom have the right to life. Thus, the right to life is linked to the right to work in order to obtain means of subsistence to procure food and shelter…the relationship of the right to life to human security should be obvious. If one constantly has to live with the fear that one’s life can be taken arbitrarily or summarily by one’s government, one cannot meaningfully participate in society. Therefore, without the respect for right to life, there cannot be an honest discussion of human security… (Underlining is mine for emphasis).
If the right to work in order to obtain means of subsistence can be likened to the right to life, then it is only logical to argue that it extends to the right to safety and health in the workplace. In JONAH GBENRE V S.P.D.C.N LTD, the right to life has been expanded. Such expansion can be seen in the case of MANEKA GHANDI V UNION OF INDIA,the right to life was expanded to include the right to live with human dignity and all that goes along with it, which includes the bare necessities of life such as adequate food, nutrition, clothing and shelter over the head. In FRANNUS V UNION TERRITORY OF DELHI, it was held that there exists a close nexus between life and means of livelihood, etc. If the protection of a worker from occupational health hazards can have a hiding under the right to life, it thus makes the right to protection of a worker from occupational health hazards sacrosanct.
The implication of the foregoing is that the right under Section 17 (3) of the Constitution, even though ordinarily unjustifiable, could find an avenue for justiciability under the right to life under Section 33 of the Constitution.
Item 17 (a) Part II of the Concurrent Legislative List, Second Schedule to the Constitution of the Federal Republic of Nigeria, vests power in the National Assembly to make laws for the Federation or any part thereof with respect to health, safety and welfare of persons employed to work in factories or other premises. Such laws made include the Factories Act, the Occupational Safety and Health Act, amongst others.