There are schools of thought that believe that the extant 1999 constitution, which provides the legal pedestal on which this democratic dispensation stands, is incurably defective, utterly irredeemable and thus deserving of being wholly cast aside and another constitution crafted de novo. Those who are of this persuasion advocate a thorough going root and branch restructuring of the Nigerian polity even though there are as many conceptions of what a restructured Nigeria should like as there are believers in the idea. In a way, they are like Mr. Omoyele Sowore and his #RevolutionNow fellow travelers who seek to arouse Nigerians to revolutionary action without giving any clear idea of their vision of a post-revolutionary Nigeria.
Sowore seeks to utilize the constitution’s guarantee of the individual’s human rights, including the rights to free speech, movement and association to mobilize Nigerians to overthrow the same constitution. For, that in essence is what a revolution means. On their part, the proponents of restructuring want the state organs, parties and individuals that are the products and beneficiaries of the extant constitutional structure to, as it were, pull the rug from under their own feet by effecting radical constitutional changes that transcend the purview of the periodic incremental and perfunctory amendments that the constitution provides for. This can, of course, only be achieved through a referendum, which the constitution makes no provision for!
The realistic thing to do, therefore, is to work within the framework of the constitution to continuously nudge Nigeria slowly but steadily in the direction of increasingly deepening the practice of democracy and adherence to the rule of law , strengthening the federal elements of the constitution and actualizing its immense potentials to help enhance the socio-economic wellbeing of the Nigerian people. In this regard, for instance, Chapter II of the 1999 constitution, which states what are the ‘Fundamental Objectives and Directive Principles of State Policy’ makes extensive provisions for promoting and protecting the socio-economic rights of Nigerians. The provisions of this chapter as well as its near revolutionary socio-economic, political and legal potentials have been exhaustively examined by radical human rights lawyer, Mr. Femi Falana (SAN), in his book titled ‘Nigerian Law on Socioeconomic Rights’published in 2017.
According to Mr. Falana in his prefatory comments to the book, “The provisions of the Fundamental Objectives cover socio-economic rights such as the right to security and welfare, right to political participation, right to education, right to health, right to environment, right to secure adequate means of livelihhod including suitable and adequate shelter, suitable and adequate food, reasonable minimum living wages, old age care and pensions, unemployment or sick benefits and welfare of the disabled and other vulnerable people”. In over 300 pages and across twelve chapters, Mr. Falana explicates and critiques the various laws, agencies and programmes that have been enacted, established and initiated towards the realization of these objectives in the last two decades.
Is it that members of the Nigerian ruling class love Nigerians so much that such lofty and ennobling welfare provisions were enshrined in the constitution? Not necessarily. True, Falana writes that this section clearly states that “In order to guarantee national prosperity the state is obligated to promote a planned and balanced economic development and harness the resources of the nation”. He, however, points out, and this is the crux of the matter, that “…the ruling class has ensured that while civil and political rights guaranteed in chapter 4 of the constitution, are justiciable, the jurisdiction of the courts is completely ousted with respect to the enforcement of socio-economic rights. This idea of non-justiciability has limited the access of victims of socio economic rights abuse to effective remedies”.
The far-reaching welfarist provisions of chapter II of the Nigerian Constitution is a very deft and calculating but deceptive response of the Nigerian ruling class to the revolutionary pressures generated by the country’s persistently deepening crises of poverty, inequality and underdevelopment despite her enormous but grossly inequitably distributed wealth. It is a form of what Claude Ake describes as ‘defensive radicalism’. In their important book, ‘The Rise and Fall of Nigeria’s Second Republic- 1979-1984’, Professors Julius Ihnovbere and Toyin Falola, referring to this same welfarist provision in the 1979 Constitution, write that “The welfarist provisions in the constitution are fake and illusory; they are more like promises which political parties are not obliged to keep. None of the provisions is justiciable, no citizen can challenge the state in any court of law for its refusal to implement any of the provisions”.
Yet, through the relentless efforts of progressive lawyers and the pronouncements of courageous jurists, Mr. Falana demonstrates, through several cited cases that more sections of Chapter II of the constitution are increasingly being made justiciable even though there is still a long road of struggle ahead to traverse in this regard. For example, he cites the case of Olafisoye v. Federal Republic of Nigeria (2005) in which Justice Niki Tobi of the Supreme Court ruled that “…the non-justiciability of Section 6(6)c of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words ‘except as otherwise provided by this Constitution. This means that if the constitution otherwise provides in another section which makes a section of Chapter II justiciable, it will be so interpreted by the court”.
Again, Falana points out that Nigerian courts have gradually but substantially changed their stance over time on locus standi, a stance which had previously obstructed the promotion of the fundamental rights of the Nigerian people through public interest litigation. For instance, in his ruling in the case of Femi Falana v. Attorney-General of the Federation (2014), in which the plaintiff challenged the scrapping of the Peoples’ Bank by the Federal Government, Justice J. Idris of the Federal High Court held that “…a tax payer such as the applicant herein has the locus standi to approach the court to enforce the law and ensure that his tax money is utilized by the government frugally or prudently…This action in my view falls under those actions in which the Applicant is vested with locus standi to institute this action to compel the government to discharge its duty conferred by the laws of the Federation of Nigeria”.
Another factor that has broadened the horizon of the enforcement of socio-economic rights in Nigeria is the country’s being a signatory to several international treaties and agreements one of which, for instance, is the African Charter on Human and Peoples Rights. Thus, Falana quotes the Supreme Court in Ogugua v. The State (1994) as holding that “Since the Charter has become part of our domestic laws, the enforcement of its provisions like all our laws fall within the judicial powers of the court as provided by the constitution and all other laws relating thereto. It is apparent from the foregoing that the human and peoples’ rights of the African Charter are enforceable by the several High Courts depending on the circumstances of each case and in accordance with the rules, practice and procedure of each court”.
Of course, while continuing to explore every opportunity to expand the socio-economic rights of the people through the legal process, Mr. Falana is under no illusion that the struggle for the socio-economic emancipation of the Nigerian people can be achieved on the legal terrain alone since, in his words, “It should, however, be pointed out that judicial pronouncements in favour of social justice can be conveniently ignored by a government that is administered by an army of neo-liberal ideologues who are committed to the defence of market fundamentalism” and that “To reclaim the welfare state from its obstinate opponents in government, the Nigerian people have to be mobilized to ensure compliance with the various welfare laws and intensify the campaign for the full justiciability of the provisions of the socioeconomic rights set out in Chapter 2 of the Constitution”.
Sowore’s not unimpressive outing in the last election in which he contested for the country’s presidency, despite his fragile political structure and lean resources, shows that radical and progressive young political actors can make an impact on the political scene if they summon the requisite will, focus and discipline towards the attainment of their objectives. It should, however, not be about personal ambition and bloated egos but about settling down to the hard work of joining others to build viable, grassroots based political organizations that can effectively enlighten and mobilize the vast majority of Nigeria’s suffering masses to become a potent electoral force. 2023 is just around the corner. Every minute that Sowore spends in an utterly avoidable detention, he is recklessly squandering valuable revolutionary time in which he should be busy on the field working with like minds to enlighten, mobilize and organize the Nigerian people for self-emancipation in the next electoral cycle.