The Fundamental Objectives and
Directive Principles of State Policy are contained in Chapter II of the 1999 Constitution
(as amended). This Chapter encapsulates provisions covering the duties and
responsibilities of the legislature, executive and judicial organs of
government and authorities on one part, and the national ethics and duties of
citizens on the other part. There is a consensus since the inception of these
provisions in the 1979 Constitution till date that these provisions are
progressive and if adhered to, will advance the national wellbeing of Nigeria.
This has compelled questions on the justiciability of these progressive
provisions of the Constitution which is the gamut of this work.
Debate on the constitutional
interest and the justiciability of the Fundamental Objectives and Directive
Principles of State Policy dates back to the inception of these provisions in
the 1979 Constitution. In the report of the Constitution Drafting Committee,
the following was stated on these provisions in the Constitution:
By Fundamental Objectives, we
refer to the identification of the ultimate objectives of the Nation whilst
Directive Principle of State Policy indicates the paths which lead to those
objectives. Fundamental Objectives are ideals towards which the Nation is
expected to strive whilst Directive Principles lay down the policies which are
expected to be pursued in the efforts of the nation to realize the national
ideals (Report of the Constitution Drafting Committee, Vol. 1 P.V).
The debate was extensively on
whether the issues bothering on the Fundamental Objectives and Directive
Principles of State Policy should be included in the Constitution and if so,
what should be the permissive extent of its justiciability in the Court.
At the conclusion of the
debate with the production of a final draft of the Constitution, provisions of
the Fundamental Objective and Directive Principles of State Policy were made
non-justiciable. This was contained in Section 6 (6) (c) of the 1979
Constitution viz:
The judicial powers vested in accordance
with the foregoing provisions of the section 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 or as to whether any law or
judicial decision is in conformity with the Fundamental Objectives and
Directive Principles of State Policy set out in Chapter II of this
Constitution.
This provision is also
replicated in the 1999 Constitution.
In the case of Archbishop
Anthony Olubunmi Okogie (Trustee of Roman Catholic Schools) & Ors. v.
Attorney General of Lagos State (1981) 1, NCLR 218, the Court stated inter alia that issues relating to
Fundamental Objectives and Directive Principles of State Policy must conform to
and run as subsidiary to the fundamental rights and that the obligation of the
judiciary to observe the provisions of Chapter II or any other statute in such
a way that the provisions of the Chapter are observed, but that is subject to
the express provision of the Constitution. The Court stated further that the
arbiter for any breach of these provisions is the legislature itself or the
electorate.
Before discussing the
justiciability or otherwise of the Fundamental Objective and Directive
Principle of State Policy further, it is imperative to attempt an annotation of
the provisions contained therein. This
will facilitate a better understanding of the premise upon which the piece in
based.
Fundamental
Obligation of the Government
Section
13 of the 1999 Constitution (as amended) states that 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 provisions of this Chapter of the Constitution. Referring
to the report of Constitution Drafting Committee stated earlier, this Chapter
contains ideals towards which the nation is expected to strive and lay down the
policies which are expected to be pursued in the efforts of the nation to
realize the national ideals. In other words, the provisions of this Chapter
should guide the affairs and performances of the government as constituted by
the organs and authorities.
With the foregoing, it becomes
easy to measure the performance of the government by adherence to the
provisions of Chapter II of the Constitution. For the executive and authorities,
it will imply the measure of programmes, projects and policies on the content
of these provisions; for the legislatures, laws made and optimal functioning as
checks on the issues; and for the judiciary, interpreting and enforcing
compliance with the provisions.
The
Government and the People
Section
14 (1) states that The Federal Republic of Nigeria shall be a State based on
the principles of democracy and social justice. Democracy
has been referred to as a system of government in which people vote in elections
to choose the people who will govern them, Macmillan English Dictionary (2006).
Social justice may also be described as the fair and proper administration of
laws conforming to the natural laws that all persons, irrespective of ethnic
origin, gender, possession, race, religion, e.t.c., are to be treated equally
and without prejudice (www.businessdictionary.com). Democracy and social justice in this context
therefore mean a nation administered with respect to fairness and value of
every person’s choice.
Section
14 (2) (a) declares that sovereignty belongs to the people of Nigeria from whom
government through this Constitution derives all its powers and authority.
Sovereignty belonging to the people is the hallmark of democracy. This
provision establishes the strength of the people to elect representatives in
government and also recall such representatives when the people are of the
opinion that the representative is not acting in their interest. Nigeria is
still maturing in the practice of the people’s true sovereignty.
Section
14 (2) (b) declares that the security and welfare of the people shall be the
primary purpose of government. It goes without saying that
the ultimate responsibility of the government is to ensure the safety of and
wellbeing of the people.
Section
14 (2) (c) declares that the participation by the people in their government
shall be ensured in accordance with the provisions of this Constitution.
Section
14 (3) states that the composition of the Federation or any of its agencies and
the conduct of its affairs shall be carried out in such a manner as to reflect
the federal character of Nigeria and the need to promote national unity, and to
command national loyalty, thereby ensuring that shall be no predominance of any
persons from a few States or from ethnic or other sectional group in that
Government or in any of its agencies. Subsection (4) states that the composition of the Government of the
State, a Local Government Council, or any of the agencies of such Government or
Council or such agencies shall be carried out in such manner as to recognize
and the conduct of the affairs of the Government or Council the diversity of
the people within its area of authority and the need to promote a sense of belonging
and loyalty among all the peoples of the Federation.
The Federal Character here is
defined in Section 318 as the distinctive desire of the peoples of Nigeria to
promote national unity, foster national loyalty and give every citizen of
Nigeria a sense of belonging to the nation as expressed in section 14 (3) and
(4) of this Constitution. In view of the ethnic diversity of the nation, it
becomes necessary to ensure the representation of all in administration of
government but this is ultimately to foster national unity and loyalty. The
federal character principle has been more used for political interest than
national interest. There is need to adopt the spirit of the federal character
principle as well as the letter.
Political
Objectives
Section
15 (1) states that the motto of the Federal Republic of Nigeria shall be Unity
and Faith, Peace and Progress. Motto in this context may
mean the watchword of the nation to influence the laws, policies, programmes
and deeds of everyone.
Section
15 (2) states accordingly, national integration shall be actively encouraged,
whilst discrimination on the grounds of place of origin, sex, religion, status,
ethnic or linguistic association or ties shall be prohibited.
Subsection
(3) provides that for the purpose of promoting national integration, it shall
be the duty of the State to:
(a) provide adequate facilities for and
encourage free mobility of people, goods and services throughout the
Federation;
(b) secure full residence rights for every
citizen in all parts of the Federation;
(c) encourage inter-marriage among persons
from different places of origin, or of different religious, ethnic or
linguistic association or ties; and
(d) promote or encourage the formation of
associations that cut across ethnic, linguistic, religious or other sectional
barriers.
Subsection
(4) in the same manner states that the state shall foster a feeling of
belonging and of involvement among the various peoples of the Federation, to
the end that loyalty to the nation shall override sectional loyalties. The
provisions of Section 15 (2) - (4) focus on promoting national integration and
national consciousness over sectional loyalty.
Section
15 (5) states that the State shall abolish corrupt practices and abuse of
power. It may be said that it is in line with this provision that
the Independent and Corrupt Practices Commission (ICPC) and the Economic and
Financial Crimes Commission (EFCC) were established.
Economic
Objectives
Section 16 (1) provides that the State shall,
within the context of the ideals and objectives for which provisions are made
in this Constitution:
(a) harness the resources of the nation and
promote national prosperity and an efficient, a dynamic and self-reliant
economy every citizen on the basis of social justice and equality of status and
opportunity;
(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;
(c) without prejudice to its right to operate or
participate in areas of the economy, other than the major sectors of the
economy, manage and operate the major sectors of the economy;
(d) Without prejudice to the rights of any person
to participate in areas of the economy within the major sector of the economy,
protect the right of every citizen to engage in any economic activities outside
the major sectors of the economy.
According
to Section 16 (4) of the 1999 Constitution (as Amended), major sectors of the
economy shall be construed as a reference to such economic activities as may,
from time to time, be declared by a resolution of each House of the National
Assembly to be managed and operated exclusively by the Government of the
Federation; and until a resolution to the contrary is made by the National
Assembly, economic activities being operated exclusively by the Government of
the Federation on the date immediately preceding the day when this section
comes into force, whether directly or through the agencies of a statutory or
other corporation or company, shall be deemed to be major sectors of the
economy.
Subsection
(2) of Section 16 states that the State shall direct its policy towards
ensuring:
(a) the
promotion of a planned and balanced economic development;
(b) that the material resources of the nation are
harnessed and distributed as best as possible to serve the common good;
(c) that the economic system is not operated in
such a manner as to permit the concentration of wealth or the means of
production and exchange in the hands of few individuals or of a group; and
(d) that suitable and adequate shelter, suitable
and adequate food, reasonable national minimum wage, old age care and pensions,
and unemployment, sick benefits and welfare of the disabled are provided for
all citizens.
These provisions states
clearly the responsibilities of the Government to harness the nation’s
resources, achieve national prosperity, the welfare of the people and ensuring
equality of economic opportunities among all persons.
Section
16 (3) provides that a body shall be set up by an Act of the National Assembly
which shall have power:
(a) to review, from time to time, the
ownership and control of business enterprises operating in Nigeria and make
recommendations to the President on same; and
(b) to
administer any law for the regulation of the ownership and control of such
enterprises.
Social
Objectives
Section
17 (1) provides that the State social order is founded on ideals of Freedom,
Equality and Justice. Subsection (2) states, in furtherance of the social
order:
(a) every citizen shall have equality of
rights, obligations and opportunities before the law;
(b) the
sanctity of the human person shall be recognised and human dignity shall be
maintained and enhanced;
(c) governmental
actions shall be humane;
(d) exploitation
of human or natural resources in any form whatsoever for reasons, other
than the good of the community, shall be prevented; and
(e) The
independence, impartiality and integrity of courts of law, and easy
accessibility thereto shall be secured and maintained.
The foregoing presupposes that
the government shall ensure the preservation of an egalitarian society based on
the principles of equality, solidarity and placing value on human rights. Further
to this is access to justice devoid of partiality or influence.
Subsection
(3) states that 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 opportunity to
secure suitable employment;
(b) conditions of work are just and humane, and
that there are adequate facilities for leisure and social, religious and
cultural life;
(c) the
health, safety and welfare of all person in employment are safeguarded and not
endangered or abused;
(d) there are adequate medical and health
facilities for all persons;
(e) there is equal pay for equal work without
discrimination on account of sex, or on any other ground whatsoever;
(f) children,
young persons and the aged are protected against any exploitation whatsoever,
and against moral and material neglect;
(g) provision is made for public assistance in
deserving cases or other conditions of need; and
(h) the
evolution and promotion of family life is encouraged.
The provisions of subsection
(3) are the basic expectations of the people from the Government. However,
considering the non-justiciability clause contained in the Section 6 (6) (c),
the people cannot enforce these.
Educational Objectives
Section 18 (1) states that Government shall direct its policy towards ensuring that there are equal and adequate education opportunities at all levels.
Subsection (2) states that the Government shall promote science and technology.
Subsection (3) states that Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide:
(a) free compulsory and universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.
The provision of this section is dependent on practicability. Better still, availability of funds will always be the determining factor for providing education and promoting science and technology. However, the hope of the nation’s development is largely dependent on the quality of its education. This was the basis of the case of Okogie v. Attorney General of Lagos State.
Foreign Policy Objectives
Section 19 provides that the foreign policy objectives shall be
(a) promotion and protection of the national interest;
(b) promotion of African integration and support for African unity;
(c) promotion of international co-operation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestation;
(d) respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, meditation, conciliation, arbitration and adjudication; and
(e) promotion of a just world economic order.
It is general knowledge that no nation can exist in isolation. This is coupled with the fact that the world in now a global village. Hence, there is need to define modes of relating with the other nations. But it must always be noted that the national interest of the nation should rank higher at all times. A nation is not created for foreign policy but foreign policy for the nation.
Environmental Objectives
Section 20 provides that the State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.
The object of Section 20 is to protect the external surroundings of the people and ensure that they live in a safe and secure atmosphere free from danger to their health or other conveniences. See Attorney General, Lagos State v. Attorney General of Federation.
Directive on Nigerian Cultures
Section 21 provides that the State shall:
(a) protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and
(b) encourage development of technological and scientific studies which enhance cultural values.
Bearing in mind the fact that Nigeria is rich in ethnic diversity and culture, this provision becomes imperative, more so paragraph (b) states the need to harness technology to enhance our cultural values.
Obligation of the Mass Media
Section 22 states that the press, radio, television and other agencies of the mass media shall at all times be free to uphold to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.
The idea of freedom will not be complete in expression or observance without taking into consideration the role of the press (Dr. John Ademola Yakubu, Constitutional Law in Nigeria, 2003, 358). The media proves more likely to monitor and ensure the responsibility and accountability of the Government to the people.
National Ethics
Section 23 states that the national ethics shall be Discipline, Integrity, Dignity of Labour, Social Justice, Religious Tolerance, Self-reliance and Patriotism.
This may be described as the value system of the nation. Ethics in this context is to influence the thoughts and deeds of all the citizens of Nigeria.
Duties of the Citizens
Section 24 states that it shall be the duty of every citizen to-
(a) abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;
(b) help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national services as may be required;
(c) respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) render assistance to the appropriate and lawful agencies in the maintenance of law and order; and
(f) declare his income honestly to appropriate and lawful agencies and pay his tax promptly.
Worthy of note about these duties is that it applies to every citizen irrespective of position or class, whether anyone is in Government or not.
Justiciability and non-justiciability of the provisions
It has been said earlier from the report of the Constitution Drafting Committee that the Fundamental Objectives are ideals towards which the nation is expected to strive whilst Directive Principles lay down the policies which are expected to be pursued in the efforts of the nation to realize the national ideals. This is the argument for its inclusion in the Constitution. However the provisions cannot be enforced in the Court. Section 6 (6) (c) states that the powers of the Court shall not extend to these provisions.
The Court in Okogie v. Attorney General of Lagos State held that the arbiter for any breach of and the guardian of the Fundamental Objectives and Directive Principles of State Policy is the legislature itself or the electorate.
At this juncture, it is necessary to consider the role of the legislature and the people as arbiter for the breach and guardian of these provisions of the Constitution.
The legislature has often proved to be efficient arbiter in cases of abuse of power contained in Section 15 (5) of this Chapter. A relevant example is the face-off between the former Ogun State Governor, Gbenga Daniel and the State House of Assembly. When the former Governor proposed to raise N50 billion bond from the Capital Market, the House of Assembly members stood against it and passed a resolution against the proposal on the premise that the object of the bond was not in the interest of the State. The State legislature’s stand prevailed. That is quite laudable.
The question to ask is how can the electorate as stated by the Court in Okogie v. Attorney General of Lagos State function as an arbiter in a case where both the executive and the legislature have either failed to act in accordance with the provisions of this Chapter or they have colluded. For instance, Section 16 (1) (a) states that the State shall harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy. Nigeria as a country is rich in both human and mineral resources but 87% of the national income of the nation is from crude oil sale. The Government has refused to harness other resources of the nation. The agricultural sector is struggling for survival, the real sector is dead and the mining industry is in a moribund state. Both the executive and the legislative arms have responsibilities on these but have rather failed in this task over the years.
On account of the limitation contained in Section 6 (6) (c), the citizens cannot institute action on this, at least to ensure these arms of Government conform to the national ideals contained in the Fundamental Objective and Directive Principles of State Policy. The Court will rule that it is restrained under Section 6 (6) (c). The only option open to the electorates has been to wait till the end of the tenure of the Government as constituted. This is in view of the fact that Nigeria as a nation has not matured to use the power of the peoples’ sovereignty to address such situations. And if the next administration fails to act accordingly, the electorates still remain helpless.
Another provision worthy of note is Section 17 (3) (d) which states that the State shall direct policy towards ensuring that there is adequate medical and health facilities for all persons. On this, the electorates seem perpetually helpless. And the failure of the executive and the legislature to act accordingly cost the nation of lives of the people by avoidable illnesses and deaths.
With respect to the environmental objectives contained in Section 20, the people have suffered severally from environmental hazards which were as a result of neglect or refusal to implement laws and policies by the Government. The victims are not legally entitled to compensation save to beg for help from those in leadership.
It has been often argued that dearth of finance will justify the non-justiciability of this Chapter. However, the provisions of the Fundamental Objectives and Directive Principles of State Policy are basically about duties, guiding principles and responsibilities to achieve national development. So the excuse of lack of adequate finance should be untenable to make the provisions enforceable.
Making the Fundamental Objectives and Directive Principles of State Policy justiciable will ultimately make the Government more responsible to these national ideals. Access to compensation for the people who have suffered loss from the Government’s irresponsibility will also keep the Government working to conform to the national ideals. It should be noted that since the Court is not a Father Christmas, every case will be adjudicated upon on its merit and cases will be substantiated before compensation may be awarded.
Conclusion and Recommendation
The non-justiciability of the Fundamental Objectives and Directive Principles of State Policy has encouraged a nation saturated with laxity on all aspects of our national life. The poor state of the nation is largely owing to this. People in Government can choose to be irresponsible or misappropriate public funds knowing fully well that no one can make them responsible. If the executive and the legislature are in perfect harmony, redressing any anomaly becomes forgone.
It is necessary to give legal effect to every part of the Constitution. If the provisions have been considered worthy of Constitutional interest, it should also be considered worthy of being enforceable in the Court. It is therefore recommended that Section 6 (6) (c) of the Constitution should be expunged from the Constitution. This is the provision that constitutionally guarantees the irresponsibility of Government. It provides the excuse for any administration with misplacement of priority to ignore ensuring the control of 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 as provided by Section 16 (1) (b).
This will rescue the nation from the national quagmire of underdevelopment. Indeed, the enforceability of the Fundamental Objectives and Directive Principles of State Policy will be a giant stride towards the national development of Nigeria.
Olusola Akinyemi Esq.
President,
Joseph Initiative, Lagos.
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