Authored By: Tamunokubia Tonye Milicent
Rivers State University
ABSTRACT
Chapter II of the Constitution of the Federal Republic of Nigeria 1999 contains the Fundamental Objectives and Directive Principles of State Policy, setting out constitutional goals concerning the security and welfare of the people, economic prosperity, social justice, health and education. Although section 13 imposes a constitutional duty upon governmental organs and authorities to observe and apply these objectives, section 6(6)(c) substantially restricts their direct judicial enforcement. This article examines the constitutional basis and rationale for the non-justiciability of Chapter II and questions whether its provisions should therefore be regarded as mere “ideals without sanctions.” Through an examination of Nigerian authorities, including Archbishop Okubunmi Okogie v Attorney-General of Lagos State, Attorney-General of Ondo State v Attorney-General of the Federation and Abacha v Fawehinmi, the article demonstrates that Chapter II, although not ordinarily directly enforceable, is not entirely devoid of legal significance. It argues that legislative implementation, enforceable fundamental rights and domesticated international instruments can give practical effect to its objectives. Drawing from the South African approach to socioeconomic rights, the article proposes a measured reform that would strengthen governmental accountability while preserving the constitutional boundaries between the judiciary and the political branches of government.
Keywords: Chapter II; Fundamental Objectives and Directive Principles; non-justiciability; section 6(6)(c); section 13; constitutional accountability; socioeconomic rights; Nigeria.
INTRODUCTION
The Constitution of the Federal Republic of Nigeria 1999 establishes, in Chapter II, the Fundamental Objectives and Directive Principles of State Policy. These provisions embody the constitutional aspirations of the Nigerian State, including the promotion of the security and welfare of the people, economic prosperity, social justice, human dignity, health and adequate educational opportunities.[1] Section 13 further provides that it is the duty and responsibility of all organs of government, authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of Chapter II.[2]
Yet, despite the constitutional language imposing this duty, Chapter II is generally regarded as non-justiciable. Section 6(6)(c) restricts the judicial power of the courts from determining whether an act or omission is in conformity with the Fundamental Objectives and Directive Principles of State Policy.[3]
This creates a striking constitutional tension. The Constitution imposes an obligation upon government while substantially denying the individual a direct judicial remedy for its breach. It is this tension that has led commentators, including Professor A.T. Oyewo,to characterise the objectives as “ideals without sanctions” and, notwithstanding their binding language, as potentially “sterile” or unproductive laws.[4]
This article argues that the non-justiciability of Chapter II is defensible from the perspectives of separation of powers, institutional competence, resource allocation and democratic accountability. Nevertheless, treating Chapter II as entirely devoid of legal consequence would be inaccurate. Nigerian jurisprudence demonstrates that its objectives can acquire enforceable effect through legislation, may operate alongside enforceable fundamental rights, and may be reinforced through domesticated international instruments. The appropriate reform is therefore not unrestricted judicial enforcement, but a measured approach that preserves institutional boundaries while strengthening governmental accountability.
THE CONSTITUTIONAL FRAMEWORK
Chapter II contains the Fundamental Objectives and Directive Principles of State Policy. These provisions establish broad goals to guide the Nigerian State.
Section 14(2)(b), for instance, provides that the security and welfare of the people shall be the primary purpose of government. Section 16 addresses economic objectives, including the management of the national economy in a manner calculated to promote the welfare, freedom and prosperity of citizens and prevent the concentration of wealth in a few hands. Section 17 establishes social objectives founded upon ideals including freedom, equality, justice and human dignity, while also addressing health, safety and welfare. Section 18 addresses educational objectives, including the eradication of illiteracy and the provision of equal and adequate educational opportunities.
These provisions therefore demonstrate that Chapter II is not merely concerned with abstract political ideals. It addresses matters that directly affect the daily lives of citizens.
Section 13 reinforces their importance by imposing a constitutional duty upon government institutions and persons exercising governmental powers to conform to, observe and apply them.
However, the constitutional architecture creates a limitation on judicial enforcement. Section 6(6)(c) prevents the judicial power from being invoked to determine whether an act or omission of an individual or governmental authority is in conformity with the Fundamental Objectives and Directive Principles.
The result is a distinction between constitutional obligation and judicial enforceability. Chapter II may impose a constitutional responsibility upon government without creating a corresponding cause of action enabling every citizen to compel its fulfilment.
This is the foundation of the description of Chapter II as “ideals without sanctions.”
WHY IS CHAPTER II NON-JUSTICIABLE?
The non-justiciability of Chapter II can be defended on several constitutional and institutional grounds.
Separation of powers
The Constitution distributes governmental powers among the legislature, executive and judiciary. The legislature makes laws, the executive administers government and implements policy, while the judiciary adjudicates legal disputes.[5]
Many Chapter II objectives require broad policy decisions. The provision concerning education, for example, does not prescribe the precise number of schools that must be constructed, the amount that must be allocated to education, or the particular educational policy the government must adopt.
Similarly, economic and social objectives require choices between competing public priorities.
If courts were empowered to enforce every Chapter II objective directly, they could be required to determine the content of national education, healthcare, housing or economic policy. This could move the judiciary beyond interpretation and adjudication into policy formulation. Judicial restraint is therefore capable of being justified as a means of preserving the constitutional roles of the political branches.
Institutional competence
Courts are structured primarily to resolve concrete legal disputes. National socioeconomic planning, by contrast, requires economic data, administrative expertise, technical research and long-term policy planning.
Consider a hypothetical claim requiring the government to provide “adequate healthcare.” Before granting such an order, a court might have to determine what constitutes adequacy, how resources should be distributed, which diseases should receive priority, how many hospitals are required and how the programme should be funded.
These questions are not purely legal.
Institutional competence therefore provides a justification for allowing elected institutions to determine broad socioeconomic priorities while permitting courts to intervene where a clear legal or constitutional right is infringed.
Resource allocation
Many Chapter II objectives require substantial public expenditure.
Education, healthcare, social welfare and economic development cannot be achieved without the allocation of public resources. Courts ordinarily lack the constitutional mandate to determine the government’s entire budgetary priorities.
If a court orders government to spend a particular amount on one constitutional objective, that decision may necessarily affect spending on other objectives.
Non-justiciability therefore protects a sphere in which elected institutions can balance competing demands against limited public resources.
Democratic accountability
There is also a democratic argument for restraint. Members of the legislature and executive are politically accountable for their policy choices. Citizens can judge those choices during elections. Judges, on the other hand, are not elected to formulate national socioeconomic policy
The argument is consequently that major decisions concerning taxation, spending and redistribution should ordinarily remain with institutions that possess democratic accountability.
Vagueness and aspirational language
Some Chapter II provisions employ broad terms such as “national prosperity,” “adequate means of livelihood” and “adequate educational opportunities.” Such expressions communicate constitutional objectives but do not always provide precise legal standards against which judicial compliance can easily be measured.
This is another reason why the Constitution may have deliberately placed many of these objectives outside ordinary judicial enforcement. Nevertheless, these arguments establish why non-justiciability may be justified; they do not establish that it is necessarily the best arrangement.
ARCHBISHOP OKOGIE V ATTORNEY-GENERAL OF LAGOS STATE: NON-JUSTICIABILITY DOES NOT MEAN CONSTITUTIONAL IRRELEVANCE
The decision in Archbishop Olubunmi Okogie v Attorney-General of Lagos State is important because it demonstrates the relationship between Chapter II and enforceable fundamental rights.[6]The case concerned a Lagos State Government policy aimed at abolishing private primary schools. The government sought to justify its educational policy by reference to the educational objectives contained in Chapter II of the 1979 Constitution.[7]
The Court of Appeal nevertheless recognised that the government’s implementation of policy could not be permitted to violate an independently enforceable fundamental right.[8]
The significance of Okogie to the present discussion is therefore not that it made Chapter II directly enforceable. It did not. Rather, it demonstrates that the non-justiciability of Chapter II does not give government an unrestricted licence to violate other constitutional provisions.
The distinction is crucial: A citizen cannot ordinarily enforce a Chapter II objective merely because government has failed to fulfil it; however, government cannot rely upon a Chapter II objective as a justification for violating an independently enforceable fundamental right.
Thus, Chapter II cannot simply be dismissed as legally irrelevant.
ATTORNEY-GENERAL OF ONDO STATE V ATTORNEY-GENERAL OF THE FEDERATION: LEGISLATIVE IMPLEMENTATION
The Supreme Court’s decision in Attorney-General of Ondo State v Attorney-General of the Federation is perhaps the strongest authority for the proposition that Chapter II can have indirect legal effect.[9]
The case concerned the constitutionality of the Corrupt Practices and Other Related Offences Act 2000, which established the Independent Corrupt Practices and Other Related Offences Commission.[10]
Ondo State challenged the competence of the National Assembly to enact the legislation and its application throughout the Federation. The Supreme Court upheld the legislation substantially, declaring sections 26(3) and 35 unconstitutional while maintaining the validity of the remaining provisions. [11]
The significance of the case to Chapter II lies particularly in section 15(5), which provides that the State shall abolish all corrupt practices and abuse of power.[12]
The Supreme Court recognised the constitutional significance of the objective and upheld the National Assembly’s capacity to enact legislation giving practical effect to the fight against corruption. The reported decision records the Court’s conclusion that, apart from the provisions struck down, the Act was valid and applicable throughout the Federation.[13]
The case therefore demonstrates an important constitutional mechanism:
Chapter II objective → legislative implementation → enforceable statutory obligations.
The Chapter II provision itself remains non-justiciable. However, once the legislature translates the constitutional objective into legislation, the resulting statutory provisions can be interpreted and enforced by the courts.
This significantly undermines any suggestion that Chapter II is completely “sterile.”
It is better described as indirectly legally productive.
ABACHA V FAWEHINMI:DOMESTICATED INTERNATIONAL LAW
A second route through which socioeconomic interests may receive judicial protection is the domestication of international instruments.
Section 12 of the Constitution provides, in substance, that a treaty between Nigeria and another country does not have the force of law in Nigeria until enacted into law by the National Assembly.[14]
The Supreme Court’s decision in Abacha v Fawehinmi is therefore significant. The case involved the detention of Chief Gani Fawehinmi and the question of the legal status of the African Charter on Human and Peoples’ Rights in Nigeria.[15]
The Supreme Court recognised that the African Charter, having been incorporated into Nigerian law, formed part of Nigerian municipal law and could be relied upon in Nigerian courts. The case is reported as (2000) 6 NWLR (Pt 660) 228.
The relevance to Chapter II must, however, be expressed carefully.
Abacha did not make Chapter II enforceable. Rather, it demonstrates that where an international human-rights instrument addressing matters similar to those contemplated by Chapter II has been domesticated, the rights contained in that instrument may be enforced because they have become Nigerian law, independently of Chapter II.
Thus:The legal enforceability comes from the domesticated instrument, not from the non-justiciable Chapter II provision itself.
This distinction is essential.
INEC V BALARABE MUSA: NON-JUSTICIABILITY IS NOT JUDICIAL ABDICATION
Independent National Electoral Commission v Balarabe Musa is not primarily a Chapter II case and should therefore not be presented as one.
Its relevance is broader.
The case concerned INEC’s guidelines for registration of political parties. The Supreme Court held that political-party regulation must derive from the Constitution itself or from valid legislative authority and that INEC could not impose requirements inconsistent with the constitutional framework. The judgment expressly emphasised constitutional supremacy and that governmental powers ultimately derive from the Constitution. [16]
The significance for this article is the distinction between judicial restraint and judicial abdication. Judicial restraint means that courts recognise the legitimate sphere of the political branches. It does not mean that courts must remain silent when a governmental authority exceeds constitutional limits.
Consequently: Chapter II’s non-justiciability does not place all government action beyond judicial review. Where government action violates a fundamental right or another enforceable constitutional provision, the courts retain their constitutional role.
THE CASE AGAINST NON-JUSTICIABILITY
The arguments supporting non-justiciability are substantial. However, they do not resolve the central problem.
Section 13 describes Chapter II as a constitutional duty[17]. The Constitution therefore tells government what it ought to pursue, while section 6(6)(c) limits the individual’s ability to ask a court to compel compliance.[18]
This creates an accountability gap.
If a government persistently fails to pursue adequate educational opportunities, healthcare or socioeconomic welfare, the citizen may have no direct cause of action founded solely upon the relevant Chapter II provision.
This is the force behind the criticism that Chapter II contains “ideals without sanctions.”The difficulty is particularly significant because socioeconomic interests are closely connected with other constitutional values. For example, education can affect equality and human dignity. Health can affect the enjoyment of life and personal liberty. Economic deprivation can affect the practical enjoyment of political and civil rights.
Consequently, the artificial separation between “justiciable rights” and “non-justiciable objectives” may sometimes obscure the reality that rights operate together.The question is therefore not merely whether Chapter II should be enforced exactly like Chapter IV.
The deeper question is:
How can constitutional objectives produce meaningful governmental accountability without requiring courts to assume the functions of elected institutions?
COMPARATIVE PERSPECTIVE: SOUTH AFRICA
South Africa provides a particularly useful comparative example because its Constitution expressly recognises socioeconomic rights and permits judicial enforcement of those rights.[19]
The South African Constitutional Court developed a reasonableness approach, particularly in cases such as Government of the Republic of South Africa v Grootboom and Minister of Health v Treatment Action Campaign.[20]
The significance of the South African model is not that Nigerian courts can simply adopt South African constitutional doctrine.They cannot. The Nigerian Constitution has its own text and structure.
The value of the comparison lies in demonstrating that judicial enforcement need not necessarily mean judicial management of government programmes. Under a reasonableness approach, the court can ask whether the government has adopted reasonable measures directed towards fulfilling its constitutional obligations, while leaving considerable room for the political branches to determine the precise content and implementation of policy.
This provides an alternative between two extremes:
Extreme
Complete non-justiciability.
Extreme
Courts directly dictating government policy and expenditure. A reasonableness-based model potentially occupies the middle ground.
THE APPROPRIATE REFORM FOR NIGERIA.
First: Maintain complete non-justiciability
This would preserve the present constitutional arrangement. Its advantage is institutional stability. Its weakness is that citizens remain dependent principally upon political accountability for the fulfilment of many constitutional socioeconomic objectives.
Second: Make all of Chapter II directly justiciable
This would provide citizens with stronger judicial remedies.However, it could create serious problems involving separation of powers, judicial competence and resource allocation. It would also require careful constitutional consideration because courts cannot simply disregard section 6(6)(c).
Third: A measured approach
Nigeria could retain the distinction between Chapter II and Chapter IV while strengthening mechanisms through which selected Chapter II objectives acquire legal force.
This could occur through:
- Targeted legislation implementing specific Chapter II objectives;
- Greater use of existing fundamental rights where Chapter II interests overlap with enforceable rights;
- Continued use of domesticated international instruments where they provide independent legal rights;
- In the longer term, constitutional amendment to make carefully selected socioeconomic objectives justiciable; and
- Consideration of a limited reasonableness-based judicial review model for selected objectives.
The final proposal is particularly important.The court should not be asked to determine:“How many hospitals must the government build?”Rather, the question could be: “Has government taken reasonable, lawful and demonstrable measures towards achieving the constitutionally recognised objective?”
Such a model would allow judicial accountability without transforming the judiciary into a super-legislature.
Testing the Reform Against the Counterarguments
Counterargument 1: It will violate separation of powers.
This objection has considerable force. However, a limited reasonableness review does not necessarily require courts to formulate government policy. The court reviews the reasonableness and legality of governmental action, while leaving the choice of policy to the political branches.
Counterargument 2: Courts will interfere with public finances.
The answer is that judicial review should take available resources into account rather than impose unlimited financial obligations.The objective would not be immediate perfection but reasonable governmental action towards constitutional objectives.
Counterargument 3: Chapter II contains vague language.
The solution is therefore not necessarily to make every provision justiciable. Nigeria could begin with objectives capable of being expressed through measurable statutory standards, such as particular aspects of education, healthcare or environmental protection.
Counterargument 4: The framers deliberately excluded judicial enforcement.
A Nigerian court cannot simply rewrite section 6(6)(c). Consequently, direct constitutional reform of Chapter II ultimately requires constitutional amendment. However, this does not prevent the National Assembly from continuing to enact legislation that gives practical effect to Chapter II, as demonstrated by A-G Ondo[21]. Nor does it prevent courts from enforcing independent rights and laws that legitimately intersect with Chapter II.
CONCLUSION
Chapter II of the 1999 Constitution occupies an unusual position within Nigerian constitutional law. It contains some of the most important promises made by the Constitution to the Nigerian people: security and welfare, economic prosperity, social justice, human dignity, health and education. Section 13 reinforces their constitutional importance by imposing a duty upon governmental organs and authorities to observe and apply them. Yet section 6(6)(c) substantially removes the ordinary judicial remedy for direct enforcement.
The resulting position explains why Chapter II has been criticised as containing “ideals without sanctions.” Nevertheless, it would be incorrect to regard the provisions as legally sterile.
Nigeria’s constitutional jurisprudence demonstrates otherwise. In Attorney-General of Ondo State v Attorney-General of the Federation, the Supreme Court recognised the capacity of legislation to give concrete legal effect to a Chapter II objective. In Okogie, the courts demonstrated that Chapter II cannot be used to defeat independently enforceable constitutional rights. Abacha v Fawehinmi further demonstrates how domesticated international instruments can provide an independent municipal basis for judicial enforcement. Finally, INEC v Balarabe Musa illustrates that judicial restraint does not amount to judicial abdication: governmental institutions remain subject to constitutional limitations.
The appropriate response, therefore, is neither to leave Chapter II entirely dependent upon political will nor to transform the judiciary into the manager of Nigeria’s socioeconomic policy. Nigeria should pursue a measured constitutional evolution. Legislative implementation of Chapter II should be strengthened; existing fundamental rights should continue to protect interests that overlap with Chapter II; domesticated international human-rights obligations should remain available where applicable; and, where constitutionally permissible, carefully selected socioeconomic objectives could ultimately become subject to limited judicial review.
A carefully designed reasonableness approach offers a possible middle ground. It would allow courts to ask whether government has taken reasonable steps towards fulfilling constitutional objectives without dictating the precise policies or expenditure that government must adopt.
The fundamental issue is therefore not simply whether Chapter II is justiciable or non-justiciable. The more important question is whether a constitutional democracy can preserve the legitimate discretion of elected institutions while ensuring that constitutional promises do not become entirely dependent upon political will. Nigeria’s future constitutional development should seek to close that accountability gap without destroying the separation of powers that protects constitutional government itself.
BIBLIOGRAPHY
Primary Sources
Constitution and Legislation
- 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.
- Corrupt Practices and Other Related Offences Act 2000.
Cases
- Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228.
- Attorney-General of Ondo State v Attorney-General of the Federation (2002) 9 NWLR (Pt 772) 222.
- Archbishop Okubunmi Okogie v Attorney-General of Lagos State (1981) 2 NCLR 350.
- Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
- Independent National Electoral Commission v Balarabe Musa (2003) 3 NWLR (Pt 806) 72.
- Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC).
[1] Constitution of the Federal Republic of Nigeria 1999 (as amended), Chapter II
[2]Ibid, s 13.
[3]Ibid, s 6(6)(c).
[4] A.T. Oyewo, Constitutional Law II Course Guide & Materials (discussing Chapter II, Fundamental Objectives and Directive Principles of State Policy, ss 13–24).
[5]Constitution of the Federal Republic of Nigeria 1999 (as amended), ss 4–6.
[6] Archbishop Okubunmi Okogie v Attorney-General of Lagos State (1981) 2 NCLR 350.
[7] Ibid.
[8] Ibid.
[9] Attorney-General of Ondo State v Attorney-General of the Federation (2002) 9 NWLR (Pt 772) 222.
[10] Ibid.
[11] Ibid.
[12] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 15(5).
[13] Attorney-General of Ondo State v Attorney-General of the Federation (2002) 9 NWLR (Pt 772) 222.
[14] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 12(1).
[15] Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228.
[16] ndependent National Electoral Commission v Balarabe Musa (2003) 3 NWLR (Pt 806) 72.
[17] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 13.
[18]Ibid., s 6(6)(c).
[19] Constitution of the Republic of South Africa 1996, ss 26 and 27.
[20] Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC); Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC).
[21] Attorney-General of Ondo State v Attorney-General of the Federation (2002) 9 NWLR (Pt 772) 222.
