The pungent diatribes of some well-meaning lawyers and academicians on the non-justiciability of chapter II of the 1999 Constitution of the Federal Republic of Nigeria (hence to be called the Constitution) might, on the face of it, seem like quixotic striving, since most of its provisions are even more idealistic and fantastical than the imagination of the most profligate of Nigerians can stretch it. For instance, when a government which is yet tottering on its feet from the turbulence of corruption pledges in all solemnity to ‘provide free university education’; and as if that is not enough blunder, to ensure that ‘suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and provisions and unemployment, sick benefits and welfare of the disabled are provided for all citizens’ (emphasis added), one is almost sure of the perhaps deliberate blunder, and one easily understands why the chapter is non-justiciable.
Chapter II: the Romance of non-Justiciability
As it is, however, there are certain pivotal provisions in Chapter II of the Constitution which defy reason as to why they are made non-justiciable. Among these, let us consider Section 14(2). It provides as follows:
It is hereby, accordingly, declared that –
Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
The security and welfare of the people shall be the primary purpose of government; and
The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution
This subsection of the Constitution is noble, the very plinth of modern democracy. This implies, inter alia, the active participation of the people in their own government. This subsection even makes so bold as to confer sovereignty on the people!
However, the nobility of this laudable subsection dwindles when one considers that by virtue of section 6(6)(c), the provisions therein are not justiciable. The implication of this is that although the sovereignty of the people is expressly provided for in the constitution, it can by no means be enforced. At best, the people may raise their voice to the government and hope that they are heard – and experience has shown how rarely they are ever heard – but that in itself is nothing to enthuse over, when one considers that even without this provision, the people can still come under the auspices of section 35 of the Constitution to air their view, and whether they are heard or not is a different issue. So it would seem that the precious section 14(2) is, in practice, useless.
Bold as this assertion may seem, section 14(2) would still be harmless if it were merely useless; but as it is, it has a more inimical implication. It provides, inter alia, that ‘the security and welfare of the people shall be the primary purpose of government’ (emphasis added). ‘Primary purpose’ presupposes something of importance, something elemental and most essential. The comfort one derives from the wordings of this subsection is that the legislators were at least aware of the importance of security in the life of the people. After all, without security, the Right to Life – the most basic of all rights – would be nothing but expensive surplusage in the Constitution. (It will be seen that even this seemingly careless afterthought, that the right to life might after all not be guaranteed, is even impliedly canvassed in the Constitution, all because of section 6(6)(c) as it has a bearing on section 14(2)(b))! Ponder on this question posed by Tayo Oyetibo (SAN): Do our government officials think about the security and welfare of Nigerians at all, which is the primary reason for their being in government?
But however one may blame the drafters of the Constitution, it seems that there is much wisdom in making section 14(2)(b) –as well as other germane provisions in chapter II – non-justiciable, at least for the sake of the government for whom the chunk of the Constitution is aimed at benefiting. Even a most careless look at the security system in Nigeria will quickly reveal the verity of this assertion. Take but two degenerate areas of security lapse in Nigeria which are obvious even to the blind. One, the practical lack of response by the Nigerian police force in times of crime and emergency; and two, the reckless destruction of lives by known terrorist sect, especially in the northern Nigeria, for which government has been using as gambit for its political game. The reader is enjoined to check out the staggering statistics of those whose lives have been forfeited in just the last two years because of the lapse in the area of security. The motive behind the Boko Haram’s incessant carnage is not one for discussion here, suffice it that its havoc is apparent to all, and the clamant message it sends to the world is, ‘We have no government that cares!’ If the mandate of the people is not enough to ensure their security even in its crudest form in the face of terrorist sects such as Boko Haram, then section 14(2) is a national hypocrisy, a constitutional blunder.
Here lies the wisdom in this intricate affair of non-justiciability: supposing that the stand of the Constitution with respect to Section 14(2)(b) were different, i.e. justiciable, how many Governors would have been sued by the Attorney Generals of their respective states, and the Chief among them, the President of the republic? Would this not have led to so much an accumulation of lisses that the Court of Appeal and Supreme Court would literally have nothing else deliberating upon but having endless sessions for each act of security breach? But alas, the magical section 6(6)(c) has extended its paw to heal all this. The idealist and the philosopher and the academician may go on rambling that in the earliest formation of governments, the aim of the people had been to surrender their rights in order to be protected, and now protection is denied them. ‘Human Rights’ lawyers may go on polemicizing and ‘equiting’ in law courts – if locus standi allows them to stand – but for all that, the sagacity of section 6(6)(c) is unreachable. For as long as it remains in the Constitution, the masses may go on crying for the protection they may never have.
Of course, this is admittedly overstating the matter, for non-justiciability does not even remotely imply impossibility, much less illegality. And one may argue that the government are prepared to protect the people even when an action cannot be brought against it for not performing. Even the least appreciative of citizen would acknowledge the bold steps already taken by government to combat terrorism in the country by declaring state of emergency in some northern states as a way of addressing the issue of insecurity. While we pray that the outcome of government’s efforts in combating terrorism in Nigeria is positive, we cannot turn our eyes so blind as not to know that where security is secondary in the national budget, a constitutional provision such as ‘Nigeria is one indivisible and indissoluble sovereign state’ is nothing short of hypocrisy and glaring fallacy. While ‘every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof’, only one without regard for his life would venture northward for residence. For how long will Nigeria remain ‘one indivisible and indissoluble sovereign state’ with so much problems developing within due to the schisms resulting from the insecurity of life and property in its various municipalities? Section 33(2)(a) is indeed a fitting proviso where every citizen has become his own police as our society gradually ‘devolves’ into primitiveness. Ours has become the proverbial clan of crabs where each crab must take care of its own burrow.
Just in the closing provision of the infamous chapter II, there is a list of sublime provisions. Section 24 outlines the duties of the citizen. These duties, if abided by the citizens, would forge a strong bond of patriotism in the citizenry. But how many Nigerians feel strongly for each other to ‘live in unity and harmony and in the spirit of common brotherhood’? Who is ready to make ‘positive and useful contribution to the advancement … of the community where he resides’, when he is not sure that it would be his for the residing tomorrow? And who is so reckless as to ‘render assistance to appropriate and lawful agencies in the maintenance of law and order’ when he is not sure that the authority he is informing is not the very root of the crime he is reporting? And which citizen wants to ‘declare his income honestly’ when the ‘ogas at the top’ have shown that there is much to gain in silence or falsehood with regards to income declaration? It is just as well that the citizens should be saddled with these duties – it makes no difference to anybody since the section is, after all, non-justiciable.
However, the crux of the infamy of chapter II of the Constitution is section 24(a) which provides, inter alia, that ‘it shall be the duty of every citizen to abide by this constitution’. This seeming patriotic and magnanimous provision of the Constitution may turn out to be its undoing, when one pauses to consider that it is unenforceable – or at least should be unenforceable by virtue of section 6(6)(c). By implication, the duty to abide by the Constitution is mere flowery caveat since no action can be brought against the citizen for default. Pause for a moment, dear reader, and reflect: what is the aim of a constitution which its abidance is not to be enforced, although it makes a bold proclamation in its pristine section that ‘its provisions shall have binding force on all authorities and persons’ (emphasis added)? Or maybe government can enforce section 24(a) to the exclusion of all others? Would this not amount to ‘executive lawlessness’ and the usurping of the interpretative powers of the judiciary? – which surely the courts in their ‘judicial activism’ would not allow. Since the individual cannot singly enforce any provision in chapter II, it logically follows that government can neither enforce it as well. If Nigerian Constitution is to be followed, and the ideal of equal footing of the people and government before it is to be observed, it is humbly submitted that section 24(a) is a miry provision, capable of sinking principalities.
It is laudable that government policies are not merely contained in some obscure and untraceable conventions but are entrenched in the Constitution where every citizen may see it and point accusing fingers at defaulters when they are not implemented, but the subsumption of crucial provisions under a non-justiciable chapter has defeated rather than aided the cause of justice. Nothing short of amendment – or even total redraft – will remedy the harm wrought by such provisions, for though the ‘law is what the judges say that it is’, there is a limit to what the courts can interpret into a given provision; no amount of judicial acumen can transform the judiciary to the legislature for the sake of righting statutory errors.
No constitution is perfect, no matter how carefully drafted; but where the imperfection is glaring, it is only fitting that it should be amended – after all, the society itself is evolving, and so should its laws. While the view canvassed here is an inchoate one, devoid of authority and likely rooted on mistaken premises, it is yet worth taking note of. It is trite iterated that Nigeria has had too many constitutions, yet we cannot afford to refuse amendment merely because we do not want to have more constitutions. The sovereign national conference, if eventually convened, should address issues like this.