Authored By: Adebayo Mo-precious Adewunmi
Federal University Oye Ekiti
Abstract.
Nigeria’s Constitution is like a promise written boldly. Yet these promises seem to be behind a closed legal door that citizens cannot open.
This article examines the gap between constitutional obligation and judicial power, and give a rise to ask a simple question: “what is the value of a promise if no one can demand its fulfilment This article argues that non-justiciability drains Chapter II of practical meaning and concludes that making these objectives enforceable is important.
Introduction.
The 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended) is created to protect the fundamental human rights of citizens, and guide how government exercise power. Most Nigerians are aware that the constitution protects citizens right like right to life, right to freedom of speech, liberty, education, religion etc. The constitution does not only guarantee fundamental Human right stated in Chapter IV (section 33-46) but also includes how the government should govern the state and protect the welfare of citizens.
Chapter II of the constitution of the Federal Republic of Nigeria – Fundamental Objectives and Directive Principles of State Policy, clearly expresses socio-economic and political goals of the Nigerian government. Some of these obligations covers areas like the environment, education, healthcare, housing. Section 13 of the constitution mandates that all organs of government – executive, legislative, judiciary, are bound with the duty to conform to and apply the provisions of Chapter II.
However, Nigerian courts have uniformly held that Chapter II is non-justiciable. That is, these obligation cannot be enforced in court. Under section 6(6)(c), citizens are left with no judicial resort when these objectives are ignored or not adequately implemented. The courts do not therefore have power to hear or determines cases where the government did not comply with Chapter II. That means, where the government do not endeavor to provide quality education, housing and other objectives, citizens can not go to court to demand for accountability.
This paradox gives a rise for an important question regarding the enforceability of constitutional obligations and the coherence of Nigeria’s legal order in her legal system. How can constitutional obligation of government truly exist without them being enforceable? It brings about a serious constitutional issue. How can government impose duties but not remedies?
The non-justiciability of Chapter II undermines constitutional supremacy, popular sovereignty, democracy and the principle of accountability. It question the principle of democracy “government for the people”. The central government and the state government seem not to be mindful of the situation of the people.
Scholars such as B. O. Nwabueze, Sagay, and Eze have critiqued this tension, emphasizing that a Constitution which allows governmental duties to exist without enforceable remedies becomes a mere political manifesto rather than a binding legal instrument.
This article argues that the current framework is not sustainable and examines the problems caused by the gap between section 13 obligations and non-justiciability, recommending reform to align constitutional ideals with enforceable legal mechanisms.
Fundamental Objectives: Nature and Purpose.
Chapter II of the 1999 Constitution reflects the vision and value of the Nigerian constitutional order upon which the state is meant to operate. Unlike Chapter IV, which provides for civil and political rights to be enforceable, Chapter II explains socio-economic, political, environmental, educational and moral objectives that are expected of the Nigerian government. Section 13 reinforces this by mandating compliance by all organs of government. The objectives and principles enumerated in Chapter II are the fundamental objectives and principles on which Nigeria as a nation is to be built. The provisions are intended to direct state action towards improving the living condition of every person and social justice in the country. That is, government and its agencies are not without a guide and direction on what is to be done to make life better and develop Nigeria. These objectives and principles are to be pursued actively in order to maintain a just and happy nation. Scholars such as Nwabueze highlight that Chapter II embodies the social contract between the state and its citizens.
The provision touches obligations across many areas. The fundamental objectives and directive principles of state policy reveals the fact that it spans across political, economic, social, educational, foreign policy, environmental, cultural, mass media, ethical objectives and duties of citizen. The establishment of these rights are required for meaningful citizenship. These rights are however made unenforceable by the provision of section 6(6)(c) which state “…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 any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;”
Relevant laws have tried to put Chapter II in operation, including African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Compulsory, Free Universal Basic Education Act 2004, implementing the right to education, Child’s Rights Act, 2003, which protects children’s rights and National Health Act, 2014 aiming to provide accessible healthcare. These laws demonstrate Nigeria’s commitment to socio-economic development, but their implementation is still a big issue because why will a constitution that recognize the need for obligation not enforce them? That only means that the compliance depends on political will instead of enforceable constitutional obligation.
In Okogie v. Lagos State, the court held that Chapter II provisions are non-justiciable. The Supreme Court’s decision in A.G. Ondo State v. A.G. Federation emphasized that enforcing socio-economic rights is a policy matter only for the executive and legislature, and the judiciary is not included. However, some courts have taken full advantage of the African Charter to make decisions on socio-economic rights, like in Odofe v. AG Federation ECOWAS court used Article 16: right to health of African Charter, when it ruled that Nigeria had violated rights. In SERAC v. Nigeria, the ECOWAS Court held Nigeria liable for violating socio-economic rights too.
Making Chapter II justiciable could promote good governance and accountability. The need to guarantee the provisions of chapter 2 of the constitution is very important if not, chapter 4 cannot be meaningful to the Nigerian people. For instance, the right to privacy is not relevant to a Nigerian who lives under a fly-over. Scholars argue that courts should adopt a more progressive interpretation, considering international human rights standards
Courts have consistently upheld non-justiciability. In Archbishop Anthony Okogie v Attorney-General of Lagos State, the Supreme Court have largely refused to enforce Chapter II provisions on education, citing section 6(6)(c) as expected. In Adewole v Jakande, the Court of Appeal rejected claims to compel the government for housing provision. Chapter II is prioritized merely in text rather than for constitutional purpose, and this weakens the standard of Chapter II. Scholars such as Sagay and Eze argue for a proper interpretation that aligns with the Constitution’s social justice objectives. An important truth is that political freedom only means very little if people are poor, ill, not educated or homeless.
Implications of Non-Justiciability.
Non-justiciability can be defined as the inability of an issue to be evaluated and resolved by the courts. It leaves citizens to be unable to seek judicial remedies when fundamental objectives such as education, healthcare, and housing are not met. The non-justiciability of Chapter II (Fundamental Objectives and Directive Principle of State Policy) in Nigeria’s Constitution means courts can’t enforce these provision. Many citizens will be deprived of basic services, which reduces civil and political rights that is to be enjoyed. It even promotes inequality. Wealthier persons might find it easy to secure shelter, education, healthcare etc through other means, but it won’t be easy for the poorer citizens. The ability to hold government accountable is limited for citizens.
By separating government obligations from judicial review, non-justiciability weakens accountability, and leaves political processes ineffective. This contradicts the rule of law principle, one of the basic principle in a constitutional government. Without justiciability, citizens can’t seek court action if government objectives are not enforced. Nigerian courts have consistently ruled relying on the position of section 6(6)(c) to reject cases based on Chapter II. It weakens accountability and leaves socio-economic rights vulnerable to be neglected. It basically limits government accountability.
Justitiability in countries like South Africa, India, and some international views emphasize potential direction for Nigeria. Indian demonstrates that directive principles can be merged with enforceable rights. India courts expanded justitiability through interpretation. In Kesavananda Bharati v State of Kerala, the Supreme Court emphasized constitutional coherence, where directive principle was expanded. In Olga Tellis v Bombay Municipal Corporation, the Court recognised the right to livelihood as part of the right to life, indirectly enforcing directive principles. It can also be emulated in Nigeria. The Court interpreted right to life to broadly include socio-economic needs. These cases illustrate that justiciability does not need to be restricted.
South Africa also guarantees socio-economic rights adjudicated. In South Africa, socio-economic rights are justiciable (e.g., housing in Constitution). In Government of the Republic of South Africa v Grootboom, the Court mandated reasonable government programme for housing. Right to housing was affirmed. In Minister of Health v Treatment Action Campaign, the Court ordered provision of anti-retroviral drugs, demonstrating that enforceability and separation of powers is possible. Right to healthcare was upheld and that’s how it should be.
Although under the African Charter on Human and Peoples’ Rights, domesticated in Nigeria, socio-economic rights are enforceable. In Abacha v Fawehinmi, the Supreme Court recognised the Charter’s domestic enforceability. The ECOWAS Court in SERAP v FRN held Nigeria accountable for failing to provide basic education, disregarding domestic non-justiciability. This shows moral and legal inconsistency that the reforms must address. Making socio-economic rights enforceable boosts accountability and citizen welfare. When citizens can’t seek court action if government ignores objectives it affects citizens redress in court and weakens rule of law. The effect of this is troubling because government policy is written but citizens have no legal means to enforce them. This causes the constitutional order in Nigeria to be one sided.
Can democracy truly function where basic necessity of the people are left to discretion?
Arguments for Justiciability.
Making Chapter II justiciable rests on constitutional supremacy, popular sovereignty, accountability, judicial interpretation, and scholarly opinion. Section 1 provides for constitutional supremacy “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria”. It becomes difficult to say there’s supremacy where enforcement of constitutional provisions are denied. Enforceability would cause the government to be accountable for socio-economic rights and this matches Nigeria constitutional goal for citizen well-being since that is the purpose of Chapter 2.
Section 13 mandates compliance with Chapter II, yet section 6(6)(c) renders enforcement impossible. This contradiction does not uphold both law and democracy. Generally , where a law is breached there are provisions for penalty, but that has not been the case. India, South Africa, and ECOWAS jurisprudence confirm the feasibility of enforcement without overstepping separation of powers. Courts could simply ask these questions: has the government acted in good faith? or if the government has made reasonable effort already. Limited form of judicial review won‘t actually violate separation of power. Courts could be made to check government actions that are against Chapter II Objectives. This will enhance accountability which aligns with the principle of Checks and Balance promoting good governance. Making Chapter II justiciable does not mean the judiciary are now making government policy. Justitialibity will promotes procedural responsiveness and transparency.
UN ICESCR emphasizes obligations for socio-economic rights. Legal scholars consistently advocate that enforceability of Chapter II will make constitution credible and socio-economic rights restored. Rule of law and citizens right protection surely support justiciability.
Suggestions and Way Forward.
It is necessary to sort out contradicting constitutional provisions and ensure good and reasonable governance in Nigeria. To bridge this gap, reforms are required including constitutional amendment, legislative reforms, judicial interpretation and harmony with international obligations. Where Section 6(6)(c) is amended, Chapter II may be operational with enforceable standards that can be evaluated or measured at the end of the day.
Nigeria may harmonize her domestic constitutional framework with international human right obligation. African Charter on Human and People’s Rights for instance is domesticated in Nigeria and enforces socio-economic right. In SERAP v FRN and UBEC, the court held Article 17 Africa Charter; right to education, justiciable regardless of the classification in Nigeria constitution. Courts can integrate Chapter II objectives through purposeful interpretation.
Alignment of domestic laws with international Human right law reforms justiciabilty. Laws should be interpreted to protect socio-economic. The legislative may contribute significantly to enforcement of law. The legislature could enable statutes that translate Chapter II objective into enforceable right.
Courts should adopt determined interpretation to guide statutory and administrative actions, on comparative and regional jurisprudence. Civil society advocacy and public awareness are crucial to sustain pressure for reform.
Conclusion.
Making Chapter II justiciable is not merely a legal reform but will turn constitutional promises into realities. The non justiciciability actually shows that there is a very deep flaw in Nigeria.
Fundamental objective will remain theory and not in practice if court are still not permitted to preside over such matters. Some other countries have demonstrated that enforcing socio-economic rights are possible. Reform, whether through amendment, legislation, or judicial interpretation is essential. Until Chapter II is made enforceable, Nigeria’s fundamental objectives remain fundamental in name but unenforceable in actual practice.
Bibliography.
Abacha v. Fawehinmi, (2000) 6 N.W.L.R. (Pt. 660) 228 (S.C.).
Adewole v. Jakande, (1981) 1 N.C.L.R. 262 (C.A.).
Archbishop Anthony Okogie v. Attorney-General of Lagos State, (1981) 2 N.C.L.R. 337 (S.C.).
Attorney-General of Ondo State v. Attorney-General of the Federation, (2002) 9 N.W.L.R. (Pt. 772) 222 (S.C.).
Government of the Republic of S. Afr. v. Grootboom, 2001 (1) S.A. 46 (CC).
Minister of Health v. Treatment Action Campaign (No. 2), 2002 (5) S.A. 721 (CC).
Olga Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C
Registered Trustees of the Socio-Economic Rights & Accountability Project (SERAP) v. Fed. Republic of Nig., ECW/CCJ/JUD/23/22 (ECOWAS Ct. J. 2022).
SERAP v. Fed. Republic of Nig. & Universal Basic Educ. Comm’n (UBEC), ECW/CCJ/JUD/18/12 (ECOWAS Ct. J. 2012).
SERAP v. Fed. Republic of Nig. (Nigeria Broadcasting Code Case), ECW/CCJ/JUD/09/20 (ECOWAS Ct. J. 2020).
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (1999) (as amended).
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria (2004).
Universal Basic Education Act (2004).
African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217.
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
BEN NWABUEZE, SOCIAL JUSTICE IN THE NIGERIAN CONSTITUTION (Spectrum Law Publ’g 2010).
ITSE SAGAY, NIGERIA: FEDERALISM, THE CONSTITUTION AND RESOURCE CONTROL (Malthouse Press 2001).
Ese Malami, The Nigerian constitutional law (Princeton & ASSOCIATES) Publishing Co. Ltd.
EZE, HUMAN RIGHTS IN AFRICA: SOME SELECTED PROBLEMS (Macmillan 1984).
T. LADAN, INTRODUCTION TO NIGERIAN CONSTITUTIONAL LAW (Ahmadu Bello Univ. Press 2012).
Ben O. Nwabueze, The Judicial Enforcement of Fundamental Objectives and Directive Principles of State Policy, 1 NIGERIAN CURRENT L. REV. 1 (1993).
Itse Sagay, Fundamental Objectives and Directive Principles of State Policy: A Critique, 2 J. CONST. L. 45 (1988).
A. Obilade, The Justiciability of Directive Principles under Nigerian Constitutional Law, 3 UNIV. IFE L. J. 1 (1979).
Okeke, Socio-Economic Rights and the Nigerian Constitution, 6 NNAMDI AZIKIWE UNIV. L. J. 87 (2015).
ECOWAS Court of Justice, Judgments of the Court, <https://www.courtecowas.org> (last visited Dec. 20, 2025).
Socio-Economic Rights & Accountability Project (SERAP), <https://serap-nigeria.org> (last visited Dec. 20, 2025).
Office of the United Nations High Commissioner for Human Rights, International Covenant on Economic, Social and Cultural Rights, <https://www.ohchr.org> (last visited Dec. 20, 2025).
LawPavilion, Nigerian Weekly Law Reports, <https://lawpavilion.com> (last visited Dec. 20, 2025).
