Fundamental Objectives and Directive Principles of State Policy

These rights are known as non-political rights and have been introduced in modern constitutions since World War I. In Spain, India and Nigeria for example, they are made non-justiciable. There has however been demand for recognition of justiciability, especially within third world countries.

According to the Constitutional Drafting Committee of the 1979 constitution, fundamental objectives are the identification of the ultimate objectives of the nation, and directive principles of State policy indicate the path which led to the objectives or the policies to be pursued to achieve those objectives.

NB: the issue of these rights came up in India for the first time under the Sepru Report of 1945 on constitutional development in India.

A cursory look at the provisions relating to the fundamental objectives and directive principles of state policy reveals the fact that it spams across political (S.15), economic (S.16), social (S.17), educational (S.18), foreign policy (S.19), environmental (S.20), cultural (S.21), mass media (S.22), ethical (S.23) objectives and duties of citizens. These rights are however made unenforceable by the provisions of S. 6(6)(c) of the 1999 Constitution.

S.16(2)(d) is especially are synonymous with the dignity of the human persons. Unfortunately, the central and the state governments seem oblivious of the plight of the people in this respect. For example, no matter the excuse of government, any wage that does not ensure adequate food, shelter and minimum standard of health is surely inimical to dignity and the very life.

The main problem with the inclusion of the fundamental objectives and directive principles of state policy in the constitution is the issue of its non-justiciability. Rather than make it justiciable, the Constitutional Drafting Committee included item 61(a) in the exclusive legislative list of the 1979 constitution [now item 60(a)] which provides for “the establishment and regulation of authorities for the federation or any part thereof- to promote and enforce the observance of the fundamental objectives and directive principles contained in this constitution.” See the case of AG Ondo State v AG Federation.

Worthy of note also, is the provision of S.13 of the 1999 constitution which states:

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 this constitution.

Per the court in Archbishop Okogie v Attorney General of Lagos State, this does not make the chapter justiciable. It however reinforces the provisions of item 60 of the exclusive legislative list.

What has generated much controversy about the fundamental objectives is that they cannot be enforced in the law courts. Section 6(6)(c) of the 1979 constitution of Nigeria made them non-justifiable. This non-justiciability has been justified by some schools of thought on various grounds. Arguing in support of the inclusion of non-justiciable objectives and directive principles in the constitution, Professor B.O. Nwabueze maintained that a constitution operating as law and imposing judicially enforceable restraints upon government should not abandon its other function as a source of legitimacy for those political concepts and governmental powers and relations that are by their very nature non-justiciable. Nor should it renounce its role in the affirmation of fundamental objectives and ideas or directive principles of government which serve to inform and inspire governmental actions along desirable lines.

The constitution drafting committee had also advanced the argument that if the objectives and directive principles were made enforceable it would lead to constant confrontation between the executive and the legislature on the one hand and the judiciary on the other hand. It has similarly been contended that it will be tantamount to asking judges to make political value judgments if they have to decide whether governmental actions and omissions are in line with the objectives and the directives. A somewhat extreme view was canvassed by Abiola Ojo who stated that most of the matters in the objectives and directive section belong to the area of party political manifests and therefore should have no place in the constitution let alone being justifiable.

It is respectively submitted that these views missed the point and cannot be supported. The objectives and directive principles are an attempt to incorporate social and economic rights into the constitution, since human rights is not static and the conception of the substance and scope of the term human rights has been and continues to be subject to change in pace with the evolution of society. Originally attention was mainly focused on civil and political rights. However, developments have steadily progressed towards an enlargement of the human rights concepts in which economic, social and cultural rights are also included.

The need to guarantee the provisions of chapter 2 of the constitution is of paramount importance in that chapter 4 cannot be of meaningful effect to the Nigerian people. For instance, of what relevance is the right to privacy to a Nigerian who lives under a fly-over or what dignity has such a person?

One cannot but agree with late Chief Obafemi Awolowo that “social objectives constitute the raison d’tre, the bedrock and indeed the original legitimacy of the state. It is the entrenchment of the objectives that forms the cornerstone to the constitution Nigerians cannot afford to leave anything as fundamental as the social objectives to what will amount to party political discretion which sometimes can be whimsical and capricious”.

The contention of the constitution drafting committee that the enforcement of the fundamental objectives and directive principles will lead to frequent fiction between the executive and the judiciary is a contention that does not hold water. If the courts have powers of review of legislative and executive acts including the power to declare a law passed by the legislature unconstitutional, why is it only its interpretative power in respect of the objectives and the directive principles that will lead to confrontation with other arms of government? The constitution did not expressly state that the directive principles are unenforceable. It is fortunate that the African charter on human and peoples’ rights which has not only been ratified by Nigeria but has formed part of her municipal law contains enforceable provisions on social and economic rights. Recourse can therefore be made to the chapter for the enforcement of these rights.

It is however to be noted that some of the contents of the chapter on fundamental objectives and directive principles are mere statement of the basic principles of a democratic government and therefore could not in any case be elevated to enforceable rights. These provisions are the political, economic and social blue print and inbuilt manifests in the Nigeria constitution to be pursued by the government and the people of Nigeria to ensure an ideal nation. However as important as these objectives are; they are not justifiable, and so cannot confer right of actions, nor remedy in court, except the action is, also founded on another provision of the constitution which confers rights of action and remedy.

Application of international treaties

Generally, when a treaty is incorporated within a legal system the judges and administrators can then apply them. The method of incorporation varies from place to place. There are two types: Legislative incorporation and Automatic incorporation.

By legislative incorporation, the treaty also has to be re-enacted by the national legislature after ratification, to become effective within the legal system. See S.12 of the 1999 constitution. Through the automatic incorporation system however, the treaty becomes effective within the national legal system once it is ratified. Once a treaty becomes national law, it can be invoked before the courts.

There is usually a presumption that a statute will not be interpreted so as to violate rule of international law. See the dictum of Uwaifo JSC in the case of Abacha v Fawehinmi. The same case also states that however, where a statute deliberately amends or is made inconsistent with a rule of international law, the state would prevail.