PRIORITISING DEVELOPMENT IN STATE POLICY
3.2 Development as Human Right
Human rights speak the same language as human development. What international human rights law has been championing through the International Bill of Human Rights2is the enrichment of the lives and freedoms of people. For instance, Article 55 (a) of the UN Charter enjoins the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development.” Similarly, Article 25 of the UDHR guarantees for everyone “the right to a standard of living adequate for the health and well- being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” ICESCR also guarantees the right to health, housing and education among others for everyone (Articles 11, 12 & 13). These are the concerns of development as well.
Development as a whole became a human right with the Declaration on the Right to Development3which the United Nations General Assembly passed in 1986. In its preamble, the Declaration recognised that development is a comprehensive economic, social, cultural and political process aiming at the improvement of the well-being of people based on their active participation therein and in the fair distribution of benefits resulting therefrom. It also invoked the UN Charter, the UDHR, the ICCPR and the ICESCR and other international instruments relevant to development in declaring the right to development. The Declaration clearly provides that “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, in which all human rights and fundamental freedoms can be fully realized” (Article 1).
2Meaning a total of the United Nations Charter; the Universal Declaration of Human Rights
(UDHR), General Assembly Resolution 217, U.N. Doc. A/810 (1948) at 71; the International Covenant on Civil and Political Rights (ICCPR), General Assembly Resolution 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966); and the International Covenant on Economic, Social and Cultural Rights (ICESCR), General Assembly Resolution 2200, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966).
The Declaration also places a duty upon states to create national and international conditions favourable to the realisation of the right (Articles 3 & 4) calling for taking measures at national level in order to ensure equal access for all people to basic resources, education, health services, food, housing, employment and the fair distribution of income (Article 8). It also declares that all human rights and fundamental freedoms are indivisible and interdependent and therefore equal attention should be given to their implementation (Article 6 [2]). It is germane to state that though the right to development has been welcomed as a giant step worth developing (Baxi 1998), it is not without criticisms. Donnelly (1985) for instance does not see it as a human right. He argues that at best, International Human Rights law “treat development as a goal rather than a right” (ibid: 483).
The linkage between human rights and development got fortified at the turn of the millennium. According to UNDP (2000), human rights and human development share a common vision and a common purpose; the former as intrinsic part of the latter and the latter a means to realising the former. Human rights are seen as both instrumental to, and constitutive of development. For instance, the freedom of expression requires some measure of social facility in the form of education and health. Similarly, freedom from poverty could remove the shackles of disease and illiteracy. Development requires individual agency and individual capability is in turn greatly influenced by surrounding social factors. Expanding freedom therefore is both the primary end and the principal means of development (Sen 1999).
Domestic human rights laws especially in developing countries have greatly been influenced by the International Human Rights law. For Nigeria in particular, the substance of the UDHR civil and political rights later concretised in ICCPR4 found expression early enough under the 1960 Independence Constitution.5Since then, subsequent Constitutions have maintained them.6And
4The ICCPR came into force since 23 March 1976.
5Chapter III of the Constitution contained the right to life; freedom from inhuman treatment,
slavery and forced labour; right to personal liberty; right to fair hearing; right to private and family life; freedom of conscience; of expression; of assembly and association; of movement; from discrimination; and from compulsory acquisition of property. They are covered between
ever since, the rights have been justiciable.7However, socio-economic rights of the UDHR such as the rights to adequate standard of living, health8 and education9(later translated into the ICESCR)10did not receive similar treatment. They did not find mention in the Constitution until 1979. Even then, they are not provided unequivocally as ‘rights’. They are put as “Fundamental Objectives and Directive Principles of State Policy”.
Notwithstanding their aspirational nature, it can be argued that the effect of the provisions is to create rights in favour of the citizens. From a jurisprudential point of view, duty presupposes right except where such duty is an absolute one.11To the extent therefore that the socio-economic variables are state duties, they are citizens’ rights. And they are indeed state duties as stated by the 1999 Constitution: “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the [fundamental objectives and directive principles of state policy] provisions of … [the] Constitution” (s. 13).12
Not surprisingly, the liberal rule of law focuses exclusively on civil and political rights as they affect the liberal agenda. Under it, Babangida and Obasanjo administrations for instance which followed liberal legal reforms could be hailed as upholders of rule of law despite their ‘unequal’ attention to socio-economic rights. And a military dictatorship, like the Abacha regime, would be labelled violator of human rights13 in general terms notwithstanding the significant
sections 17 and 30. Their inclusion was mainly to allay the fears of minorities as recommended by Sir Henry Willink’s Commission which was appointed to enquire into those fears and means of allaying them.
6
See Chapters III of the 1963 and IV of the 1979 and 1999 Constitutions respectively.
7Ss. 31 (1); 32 (1); 42 (1); & 46 (1) of the 1960, 1963, 1979 and 1999 Constitutions respectively. 8Article 25 of the UDHR
9Article 26 of the UDHR 10
Articles 11, 12 and 13 of ICESCR provide for the right to adequate standard of living, health, education respectively.
11Duty and right or claim are jural correlatives. But certain duties are absolute. For instance,
although a judge has a duty to try a suspect, that suspect does not have the right to be tried. Yet the state can be said to have such right against the duty-holding judge. See Dias (1985: 23-27).
12Same as 1979 Constitution.
13The Abacha regime was notorious for trampling civil and political rights. For instance it was
tough on labour organisations, NGOs such as National Democratic Coalition (NADECO) and Movement for the Survival of the Ogoni People (MOSOP). It was the conviction by a Tribunal and subsequent execution of Ken Saro-Wiwa and 8 other Ogoni leaders by the regime that led to
attention it paid to human development through programmes such as the Petroleum Trust Fund (PTF).14 Suffice it to say, civil and political rights are relevant to development. For instance, freedom of expression and the press (s. 39 [1] & [2]) affords citizens the opportunity of being watchdog to government. Through it, people could call government to account in the event of failure to discharge its developmental duties or in case of abuse of rule of law. However, for this right to be meaningful, information on the activities of government should readily be available to citizens. Law on freedom of information in Nigeria has been in the pipeline since the time of President Obasanjo. It is hoped that when it materialises, things would improve.15
It may be argued that socio-economic rights seem to be more in tandem with human development for their provision of the right to adequate standard of living, right to health and right to education among others. For the purpose of this study, socio-economic rights count and are non-negotiable. In fact, development should primarily be defined by their standards and then secondarily by the standard of other rights (grub first!!).16 What does the Nigerian Constitution say on these socio-economic rights? The starting point shall of course be the declaration of the Constitution that “the security and welfare of the people shall be the primary purpose of government” (s. 14 [2] [b]). Accordingly:17
- The state shall –
the suspension of Nigeria from the Commonwealth in 1995. See
http://www.thecommonwealth.org/Internal/34493/140633/timeline/for instance.
14
The PTF headed by former Head of State, General Muhammadu Buhari, did creditably well in several areas of human development such as providing educational equipment, water, health facilities, roads, etc. during the Abacha regime. Seehttp://www.highbeam.com/doc/1G1- 20812410.htmlfor instance.
15
It appears that a law on freedom of information is unpopular with the government. A Freedom of Information Bill was initiated during President Obasanjo’s tenure. President Yar’Adua is now in his second year in office and it has not yet become law. When it is passed by the National Assembly, the President is required to signify his assent or that he withholds assent to passed Bills within 30 days. The legislature can make it law by passing it again with 2/3 majority if he signifies withholding assent (see s. 58 (1), (2), (3), (4) and (5) of the 1999 Constitution).
16This is not suggesting that civil and political rights should be traded off for socio-economic
rights. I recognise that this is a controversial area.
17
Except s. 16 (1) (a) of the 1999 Constitution which is new, all other provisions were contained in the 1979 Constitution with same wordings under same section numbering.
(a) “harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy” (s. 16 [1] [a]); and
(b) “control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity” (s. 16 [1] [b]);
- The State shall direct its policy towards ensuring that –
a) the material resources of the community are harnessed and distributed as best as possible to serve the common good (s. 16 [2] [b]);
b) suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment and sick benefits are provided for all citizens (s. 16 [2] [d]);
c) all citizens have the opportunity of securing adequate means of livelihood (s. 17 [3] [a]);
d) there are adequate medical and health facilities for all persons (s. 17 [3] [d]);
e) there are equal and adequate educational opportunities at all levels (s. 18 [1]);
f) government strives to eradicate illiteracy by providing, as and when practicable, free, compulsory and universal primary education; free secondary education; free university education; and free adult literacy programme (s. 18 [3] [a], [b], [c] & [d]).
Promising as they appear, the above socio-economic rights are made non- justiciable under the Constitution. Judicial powers conferred on the courts do not
extend to any issue or question as to whether any act or omission or as to whether any law or any judicial decision is in conformity with the rights (s. 6 [6] [c]).18This is in contrast to the South African position where socio-economic rights are justiciable.19 Suffice it to say, enforceability of rights helps in the building of rule of law. In fact, rule of law in England is traceable to the definition and enforcement of individual rights by courts. Such defined and enforced rights are the source, rather than the result of English constitutional law (Dicey 1959: 203).
As it stands, civil and political rights and socio-economic rights are two sets of rights in the Constitution distinguishable in terms of enforceability. The former are negative rights (as they mainly protect the individual from the state) called “fundamental human rights” while the latter are positive rights (because they require the state to take developmental measures) simply called “human rights”. This distinction was recognised by the courts as could be seen in the case of
Uzoukwu v. Ezeonu II20where the court stated that:
There is a clear distinction between “Fundamental Human Rights” and “Human Rights”… Fundamental rights … are fundamental because they have been guaranteed by the fundamental law of the country, that is, the Constitution. There are certain rights pertaining to a person, which are neither fundamental nor justiciable in the courts. These may include, for instance, rights given by the Constitution under the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the Constitution of the Federal Republic of Nigeria, 1979.
The bifurcated approach to human rights under the Constitution can hardly be justified.21 The traditional justification that implementation of fundamental
18It is the same section 6 (6) (c) in the 1979 Constitution.
19Chapter 2 on Bill of Rights in the Constitution of the Republic of South Africa 1996 (as
amended in 2003) contains both civil and political and socio-economic rights. S. 26 guarantees the right to access to adequate housing; s. 27 guarantees right to access to health care services (including reproductive health care), sufficient food and water, and social security; s. 29 guarantees the right to basic (including adult basic) education, and to further education as reasonably and progressively made available and accessible by the state. By virtue of s. 38, all the rights are justiciable. Bilchitz (2007) covers the enforcement of these rights nicely.
20(1991) 6 NWLR Part 200, 708 CA.
21The Vienna Declaration of the World Conference on Human Rights states that “All Human
Rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights in a fair and equal manner, on the same footing and with the same emphasis”
human rights is costless while that of human rights is costly is not always plausible. Implementation of the former requires institutional structures the running of which entails costs as well. In any case, with the adequate oil resources, Nigeria cannot feign impecuniosity as to leave implementation of socio-economic rights merely aspirational. In the face of the startling paradox of want in the midst of plenty, enforceability of socio-economic rights would go a long way in righting some wrongs. Had they been enforceable over the years, the paradox would perhaps have been lessened. The enforceability of civil and political rights not only enriched the substance of the rights, but also enhanced the enjoyment of those rights at least to those privileged to enjoy them. It is a privilege to enjoy the rights because it implies ones reasonable standard of living. As rightly pointed out by Justice Bhagwatti in Minerva Cotton Mills,22 civil and political rights will be meaningless to people shackled by poverty, disease and illiteracy:
To the large majority of people who are living in almost subhuman existence, in conditions of abject poverty and for whom life is one long, unbroken story of want and destitution, notions of individual freedom and liberties, though representing some of the most cherished values of a free society, would sound as empty words bandied about in the drawing rooms of the rich and well to do, and the only solution for making these rights meaningful to them was to remake the material conditions and usher in a new social order where socio-economic justice will inform all institutions of public life, so that the preconditions of fundamental liberties for all may be secured.
While a constitutional amendment is desired to elevate the socio-economic rights to enforceable rights, such amendment is not absolutely necessary in order to reap the benefits of those rights. Courts could interpret relevant enforceable civil and political rights to include relevant socio-economic rights. For instance, the right to life could be interpreted to include the right to health. Similarly, the right to dignity of human person could be interpreted to mean the right to adequate standard of living. There is evidence of this judicial activism from India for instance and Nigeria could borrow leaf. In the case ofTellis v. Bombay Council,23the court expanded the meaning of the right to life to cover the right
22
(1980) AIR S.C. cited in Ipaye (2001)
to means of livelihood. Similarly, in Mohini Jain v. State of Karnataka,24the Supreme Court considered that the right to education is included in the idea of the right to life since there cannot be a meaningful and successful life without education in this modern age. It therefore declared invalid a state law which permitted medical colleges to charge high admission fees.
The need for such judicial activism in Nigeria is fortified by the fact that the African Charter on Human and People’s Rights which contains similar socio- economic rights25has been domesticated in the country.26More so, the Charter did not bifurcate between civil and political rights on one hand and socio- economic rights on the other hand. It declared categorically in its preamble that the former cannot be dissociated from the latter and that the satisfaction of the latter is a guarantee for the enjoyment of the former. Interestingly, the Nigerian Supreme Court in the case of Gani Fawehinmi v. General Sani Abacha27has held that want of procedural rules of enforcement under the Charter cannot be a bar to its local invocation28 nor can a domestic law free a country from its international obligation such as obligations assumed by ratification of international human rights instruments.
Although enforceability of a right is important to its enjoyment, the quality of being a right cannot be said to be dependent upon that enforceability. Otherwise, several human rights such as the right to development would lose their status of being human rights. Thus development as human right under the Constitutions shows that development has acquired an important position in state policy.
24(1992) A.I.R. 1858, 1864 (App 6) Sup. C.J. cited in Ipaye (2001)
25For instance, Article 16 of the Charter provides for the right to health; Article 17 recognises
the right to education; and Article 22 imposes a duty on the state to ensure the right to development.
26It is domesticated under the African Charter on Human and People’s Right (Ratification and
Enforcement) Act, Chapter 10, Vol. 1, Laws of the Federation of Nigeria 1990.
27
(1996) 9 NWLR, Part 475, Page 710.