No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 06 April 2016
The major objective of this article is to examine the extent to which the human rights jurisprudence of the Nigerian appellate courts has been sensitive and / or receptive to the socio-economic and political claims of Nigeria's large population of the poor and marginalized. In particular, the article considers: the extent to which Nigerian human rights jurisprudence has either facilitated or hindered the efforts of the poor to ameliorate their own poverty; the kinds of conceptual apparatuses and analyses utilized by the Nigerian courts in examining the issues brought before it that concerned the specific conditions of the poor; and the key biases that are embedded in and shape Nigeria's jurisprudential orientation. The line of cases analysed in the article indicate that the Nigerian appellate courts, as elsewhere, possess great capacity, for good or ill, to impact public policy in the field of poverty reduction.
1 See TW Pogge World Poverty and Human Rights (2002, Polity Press); Baxi, U “Voices of suffering and the future of human rights” (1998) 8 Transnational Law and Contemporary Problems 125Google Scholar, describing (at 128) the poor as the “deprived, disadvantaged, and dispossessed”.
2 U Baxi The Future of Human Rights (2006, Oxford University Press); Fudge, J and Glasbeek, H “The politics of rights: A politics with little class” (1992) 1 Social and Legal Studies 46CrossRefGoogle Scholar; Fudge, J “What do we mean by law and social transformation?” (1990) 5 Canadian Journal of Law and Society 47CrossRefGoogle Scholar; Rajagopal, B “Pro-human rights but anti-poor? A critical evaluation of the Indian Supreme Court from a social movement perspective” (2007) 18 Human Rights Review 157CrossRefGoogle Scholar; Sarat, A “‘…The law is all over’: Power, resistance and the legal consciousness of the welfare poor” (1990) 2 Yale Journal of Law and Human Rights 343Google Scholar.
3 See for example PJ Williams “Alchemical notes: Reconstructing ideals from deconstructed rights” in R Delgado and J Stefancic (eds) Critical Race Theory: The Cutting Edge (2000, Temple University Press) 84.
4 For example, see O Okafor The African Human Rights System, Activist Forces and International Institutions (2007, Cambridge University Press).
5 Kennedy, D “The international human rights movement: Part of the problem?” (2002) 15 Harvard Human Rights Journal 101Google Scholar.
6 Baxi The Future of Human Rights, above at note 2 at 132. See also id “Market fundamentalism: Business ethics at the altar of human rights” (2005) 5 Human Rights Law Review 1CrossRefGoogle Scholar.
7 The authors are grateful to the anonymous reviewer for highlighting these aspects of Kennedy's argument.
8 Okafor, O “Assessing Baxi's thesis on an emergent trade-related market friendly human rights paradigm: Evidence from Nigerian labour-led struggles” (2007) 1 Law, Social Justice and Global Development JournalGoogle Scholar, available at: <http://www.go.warwick.ac.uk/elj/lgd/2007_1/okafor> (last accessed 6 December 2015).
9 Costa, F Doz “Poverty and human rights: From rhetoric to legal obligations: A critical account of conceptual frameworks” (2008) 9 Sur – International Journal on Human Rights 81Google Scholar at 83.
10 See Pogge World Poverty, above at note 1; R Alsop (ed) Power, Rights and Poverty: Concepts and Connections (2005, World Bank); D Narayan and P Petesch (eds) Voices of the Poor: From Many Lands (2002, World Bank); and CM Robb Can the Poor Influence Policy? (2002, World Bank and International Monetary Fund).
11 Jackman, M “Constitutional contact with the disparities in the world: Poverty as a prohibited ground of discrimination under the Canadian Charter and human rights law” (1994) 2 Review of Constitutional Studies 76Google Scholar at 77.
12 Okafor, OC “Poverty, agency and resistance in the future of international law: An African perspective” (2006) 27 Third World Quarterly 799CrossRefGoogle Scholar at 800.
13 See for example arts 11 (right to food), 12 (right to health) and 14 (right to education) of the International Covenant on Economic Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). See also the Constitution of Kenya 2010, sec 43.
14 Sen, A “Human rights and capabilities” (2005) 6 Journal of Human Development 151CrossRefGoogle Scholar; A Sen Resources, Values and Development (1997, Harvard University Press) at 307.
15 Doz Costa “Poverty and human rights”, above at note 9 at 84.
16 Sen “Human rights”, above at note 14 at 153.
17 Id at 154; see also D Banik (ed) Rights and Legal Empowerment in Eradicating Poverty (2008, Ashgate).
18 J Dreze and A Sen India: Development and Participation (2002, Oxford University Press), cited in P Vizard Poverty and Human Rights: Sen's Capability Perspective Explored (2006, Oxford University Press) at 3.
19 A Donald and E Mottershaw “Poverty, inequality and human rights: Do human rights make a difference?” (2009), available at: <http://aaps.org.ar/pdf/donald_mottershaw.pdf> (last accessed 11 February 2016), defining poverty to encompass “not only a low income but also other forms of deprivation and a loss of dignity and respect”. See also D Chong Freedom from Poverty: NGOs and Human Rights Praxis (2010, University of Pennsylvania Press); I Khan The Unheard of Truth: Poverty and Human Rights (2009, WW Norton & Co).
20 Doz Costa “Poverty and human rights”, above at note 9 at 84.
21 Ibid.
22 Crenshaw, K “Demarginalizing the intersection of race and sex: Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics” (1989) The University of Chicago Legal Forum 139Google Scholar.
23 Id at 140.
24 Ozo-Eson, PI “Law, women and health in Nigeria” (2008) Journal of International Women's Studies 285Google Scholar. See also Eboiyehi, F, Bankole, A and Eromosele, A “Work, women, employment and feminization of poverty in Nigeria” (2006) 4 Gender and Behavior 642Google Scholar; Jiggins, J “How poor women earn income in sub-Saharan Africa and what works against them” (1989) 17 World Development 953CrossRefGoogle Scholar; Aniekwu, N “Gender and human rights dimensions of HIV / AIDS in Nigeria” (2002) 6 African Journal of Reproductive Health 30CrossRefGoogle Scholar; Ugwu, D “Socio-economic impact of HIV / AIDS on farm women in Nigeria: Evidence from Enugu State” (2009) 6 World Applied Sciences Journal 1617Google Scholar.
25 See Doz Costa “Poverty and human rights”, above at note 9 at 81; Vizard Poverty and Human Rights, above at note 18; A Sengupta “Poverty eradication and human rights” in T Pogge (ed) Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007, Oxford University Press) 323.
26 Arbour, L “Using human rights to reduce poverty” (2006) Development Outreach 1Google Scholar.
27 Porter, B “Judging poverty: Using international human rights law to refine the scope of charter rights” (2000) 15 Journal of Law and Social Policy 117Google Scholar, stating (at 123): “Cold war rhetoric and an aggressive campaign by the US against the recognition of social and economic rights led to a separation of what was originally a unified conception of rights in the Universal Declaration of Human Rights into two separate Covenants … Both Covenants affirm in their preambles, the interdependence of civil, political, economic, social and cultural rights and there is no explicit differentiation in either covenant with respect to whether the rights they contain are amenable to adjudication. Nevertheless, the two sets of rights were often distinguished in the first years of the Covenants on the basis that social and economic rights were somehow not amenable to adjudication, findings of violations or effective legal remedies.” See also Ewing, KD “Constitutional reform and human rights: Unfinished business?” (2001) 5 Education Law Review 297Google Scholar at 305; Bueren, G Van “Combating child poverty: Human rights approaches” (1999) 21 Human Rights Quarterly 680CrossRefGoogle Scholar at 683; Kirkup, A and Evans, T “The myth of western opposition to economic, social and cultural rights? A reply to Whelan and Donnelly” (2009) 31 Human Rights Quarterly 221CrossRefGoogle Scholar; Nickel, JW “Rethinking indivisibility: Towards a theory of supporting relations between human rights” (2008) 30 Human Rights Quarterly 984CrossRefGoogle Scholar; Dallmayr, F “‘Asian values’ and global human rights” (2002) 52 Philosophy East and West 173CrossRefGoogle Scholar; Okafor, O and Ugochukwu, B “Have the norms and jurisprudence of the African human rights system been pro-poor?” (2011) 11 The African Human Rights Law Journal 396Google Scholar; Udombana, N “Between promise and performance: Revisiting states’ obligations under the African Human Rights Charter” (2004) 40 Stanford Journal of International Law 105Google Scholar.
28 Pillay, A “Courts, variable standards of review and resource allocation: Developing a model for the enforcement of social and economic rights” (2007) European Human Rights Law Review 618Google Scholar; Steinberg, C “Can reasonableness protect the poor? A review of South Africa's socio-economic rights jurisprudence” (2006) 123 South African Law Journal 265Google Scholar; Bilchitz, D “Towards a reasonable approach to the minimum core obligation: Laying the foundations for the future socio-economic rights jurisprudence” (2003) 19 South African Journal on Human Rights 1Google Scholar.
29 The Constitution, chap II; Ibe, S “Implementing economic, social and cultural rights in Nigeria: Challenges and opportunities” (2010) 10 African Human Rights Law Journal 197Google Scholar; Ibe, S “Beyond justiciability: Realising the promise of socio-economic rights in Nigeria” (2007) 7 African Human Rights Law Journal 225Google Scholar; Olowu, D “Human rights and the avoidance of domestic implementation: The phenomenon of non-justiciable constitutional guarantees” (2006) 69 Saskatchewan Law Review 56Google Scholar; Ebeku, KSA “Constitutional right to a healthy environment and human rights approaches to environmental protection in Nigeria: Gbemre v Shell revisited” (2007) 16 Review of European Community and International Environmental Law 312CrossRefGoogle Scholar.
30 Scott, C “The interdependence and permeability of human rights norms: Toward a partial fusion of the international covenants on human rights” (1989) 27 Osgoode Hall Law Journal 769Google Scholar.
31 See for example Okogie (Trustees of Roman Catholic Schools) and Others v Attorney General, Lagos State [1981] 2 NCLR 337 [Ng Ct App]. In this case, filed under the equivalent section of the 1979 Constitution, the Court of Appeal held: “While section 13 of the Constitution makes it a duty and responsibility of the judiciary among other organs of government, to conform to and apply the provisions of Chapter II, section 6(6)(c) of the same Constitution makes it clear that no court has jurisdiction to pronounce on any decision as to whether any organ of the government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. It is clear therefore that section 13 has not made Chapter II of the Constitution justiciable. I am of the opinion that the obligation of the judiciary to observe the provisions of Chapter II is limited to interpreting the general provisions of the Constitution or any other statute in such a way that the provisions of the Chapter are observed, but this is subject to the express provisions of the Constitution.”
32 [2004] 4 NWLR (pt 864) 580 [Ng Sup Ct].
33 Id at 659, paras D–E.
34 Id at 664, paras F–H.
35 The Constitution, sec 16(2)(d).
36 Id, sec 17(3)(d).
37 Id, sec 18(1).
38 Id, sec 20. See generally Amechi, EP “Litigating right to healthy environment in Nigeria: An examination of the impacts of the Fundamental Rights (Enforcement Procedure) Rules 2009, in ensuring access to justice for victims of environmental degradation” (2010) 6 Law, Environment and Development Journal 320Google Scholar; Olowu “Human rights”, above at note 29; Ebeku “Constitutional right”, above at note 29 at 312.
39 See Victor Ndoma-Egbe v Chukwuogor and Others (2004) 6 NWLR (pt 869) 382 at 433.
40 Kennedy “The international human rights movement”, above at note 5 at 118.
41 Ibid.
42 Ibid.
43 See for example NeJaime, D “Winning through losing” (2011) 96 Iowa Law Review 941Google Scholar; GN Rosenberg The Hollow Hope: Can Courts Bring About Social Change? (2008, The University of Chicago Press); Klarman, MJ “Rethinking the civil rights and civil liberties revolutions” (1996) 80 Virginia Law Review 7CrossRefGoogle Scholar.
44 This could derive from art 27 of the Vienna Convention on the Law of Treaties 1969, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), which states: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. See also Nwapi, C “International treaties in Nigerian and Canadian courts” (2011) 19 African Journal of International and Comparative Law 38CrossRefGoogle Scholar; Maluwa, T “The incorporation of international law and its interpretation in municipal legal systems in Africa: An exploratory survey” (1998) 23 South African Yearbook of International Law 45Google Scholar.
45 Okafor “Assessing Baxi's thesis”, above at note 8.
46 Id at 4.
47 [2003] 13 NWLR (pt 837) 382.
48 Nwagbara, E “The story of the structural adjustment programme in Nigeria from the perspective of the organized labour” (2011) 1 Australian Journal of Business and Management Research 30Google Scholar; Tajudeen, AB “Privatization of public enterprises in Nigeria: Valuation issues and problems” (2004) 5 Journal of Business Economics and Management 193Google Scholar; Tuman, JP “Organized labor under military rule: The Nigerian labor movement, 1985–1992” (1994) 29 Studies in Comparative International Development 26CrossRefGoogle Scholar at 29; Britwum, AO and Martens, P “The challenge of globalization, labor market restructuring and union democracy in Ghana” (2008) 10 African Studies Quarterly 1Google Scholar.
49 See S Kikeri Privatization and Labor: What Happens to Workers When Governments Divest? (1998, World Bank) at 3.
50 Okafor “Assessing Baxi's thesis”, above at note 8 at 4.
51 [2001] 6 NWLR (pt 710) 543.
52 Id at 562, paras C–D.
53 See the Constitution, sec 42(1)(a).
54 Id, sec 42(1)(b).
55 Id, sec 42(3).
56 Okemgbo, C, Omideyi, A and Odimegwu, C “Prevalence, patterns and correlates of domestic violence in selected Igbo communities of Imo State, Nigeria” (2002) 6 African Journal of Reproductive Health 101CrossRefGoogle ScholarPubMed; Merry, SE “Transnational human rights and local activism: Mapping the middle” (2008) 108 American Anthropologist 38CrossRefGoogle Scholar; Howard, R “Human rights and personal law: Women in sub-Saharan Africa” (1982) 12 Issue: A Journal of Opinion 45Google Scholar; Okeke, P “Reconfiguring tradition: Women's rights and social status in contemporary Nigeria” (2000) 47 Africa Today 49CrossRefGoogle Scholar.
57 Osaghae, E “Managing multiple minority problems in a divided society: The Nigerian experience” (1998) 36 Journal of Modern African Studies 1CrossRefGoogle Scholar; Ukiwo, U “Politics, ethno-religious conflicts and democratic consolidation in Nigeria” (2003) 41 Journal of Modern African Studies 115CrossRefGoogle Scholar at 125; Uzoma, RC “Religious pluralism, cultural differences and social stability in Nigeria” (2004) Brigham Young University Law Review 651Google Scholar; Zarifis, I “Rights of religious minorities in Nigeria” (2002) 10 Human Rights Brief 22Google Scholar; Ilesanmi, S “Constitutional treatment of religion and the politics of human rights in Nigeria” (2001) 100 African Affairs 529CrossRefGoogle Scholar.
58 Ludwig, F “Christian-Muslim relations in northern Nigeria since the introduction of Sharia in 1999” (2008) 76 Journal of the American Academy of Religion 602CrossRefGoogle Scholar.
59 Isumonah, VA “An issue overlooked in Nigeria's reforms: The continuation of government discriminatory practices” (2006) 10 African Sociological Review 116Google Scholar at 117.
60 Id at 120–21.
61 See for example Okeke “Reconfiguring tradition”, above at note 56; Ewelukwa, UU “Post-colonialism, gender, customary injustice: Widows in African societies” (2002) 24 Human Rights Quarterly 424CrossRefGoogle Scholar.
62 Mojekwu v Mojekwu [1997] 7 NWLR 283; Mojekwu and Others v Ejikeme and Others [2000] 5 NWLR 402; Mojekwu v Iwuchukwu [2004] 11 NWLR (pt 883) 196.
63 See N Nzegwu Family Matters: Feminist Concepts in African Philosophy of Culture (2006, State University of New York Press) at 115; B Ugochukwu (ed) Update on Human Rights Litigation in Nigeria (2003, Legal Defence Centre, Lagos) at 57; Oba, A “Broaching the limits of gender equality in Nigeria: Augustine Nwafor Mojekwu v Mrs Theresa Iwuchukwu” (2007) Indian Journal of International Law 289Google Scholar; Nwabueze, RN “Securing widows’ sepulchral rights through the Nigerian Constitution” (2010) 23 Harvard Human Rights Journal 141Google Scholar; Onuoha, RA “Discriminatory property inheritance under customary law in Nigeria: NGOs to the rescue” (2008) 10 International Journal of Not for Profit Law 79Google Scholar.
64 Mojekwu [2004], above at note 62 at 217, para D.
65 Id, para E.
66 Rajagopal “Pro-human rights”, above at note 2 at 165. This has also been described as “political jurisprudence”; see Shapiro, M “Political jurisprudence” (1963–64) 52 Kentucky Law Journal 294Google Scholar at 296: “The core of political jurisprudence is a vision of courts as political agencies and judges as political actors.”
67 Above at note 62.
68 See for example C Okojie “Gender and education as determinants of household poverty in Nigeria” (WIDER discussion article no 2002/37), available at: <http://www.econstor.eu/bitstream/10419/52915/1/34630590X.pdf> (last accessed 6 December 2015).
69 Ogwumike, F “An appraisal of poverty reduction strategies in Nigeria” (2002) 39 Central Bank of Nigeria Economic and Financial Review 1Google Scholar; Okoji, MA “Rural women and poverty in Akwa Ibom State, Nigeria” (2001) 25 Atlantis 62Google Scholar.
70 Aniekwu, N “Gender and human rights dimension of HIV/AIDS in Nigeria” (2002) 6 African Journal of Reproductive Health 30CrossRefGoogle Scholar. See also Ezumah, N “Gender issues in the prevention and control of STIs and HIV/AIDS: Lessons from Awka and Agulu, Anambra State, Nigeria” (2003) African Journal of Reproductive Health 89CrossRefGoogle Scholar.
71 See Abacha v Fawehinmi [2000] 4 NWLR (pt 660) 228. See also OC Okafor and U Ngwaba “Economic and social rights: A century of constitutional subordination in Nigeria” in E Azinge (ed) Nigeria: A Century of Constitutional Evolution 1914–2014 (2013, Nigerian Institute of Advanced Legal Studies Press), chap 23.
72 See Abacha v Fawehinmi, ibid.
73 Above at note 32.