Monday, August 22, 2011
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Sunday, August 7, 2011
THE DOCTRINE OF LEGITIMATE EXPECTATION
THE DOCTRINE OF LEGITIMATE EXPECTATION
INTRODUCTION.
In Nigeria the bedrock of the doctrine of legitimate expectation is embedded in Chapter 2, of the 1999 Constitution of the Federal Republic Of Nigeria(CFRN). This chapter titled ‘Fundamental objectives and directive principle of state policy’ covers the following subject matter, Sovereignty, Political Objectives, Economic objectives, social objectives, educational objectives, foreign policy objectives, environmental objectives, directive on Nigeria Cultures, obligation of mass media, National ethics and duties of the citizen. I shall be addressing each of these objectives as it relates to the doctrine of legitimate expectations here in Nigeria. It must be noted that it is a mandatory 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 promotions of Chapter 2 of the constitution. See section 13 of the 1999 CFRN.
This seminar paper shall cover the following areas:
1. Meaning of legitimate expectation.
2. Emerging principles
3. History of legitimate expectation.
4. Legitimate expectation in English law.
5. Doctrine of legitimate expectation in Nigeria
a. Fundamental obligation of the Government
b. The government and the people
c. Political objectives
d. Economic objectives.
e. Educational objectives
f. Foreign policy objectives.
g. Environmental objectives.
h. Directive on Nigerian culture
i. Obligation of mass media
j. National ethics
k. Duties of the citizen.
6. Justification of this doctrine in Nigeria Vis a Vis Economic, Social, and Cultural Rights.
7. Criticism
8. conclusion
MEANING OF DOCTRINE OF LEGITIMATE EXPECTATION.
In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise. It is well established that if a public body has led an individual to believe that he will have a particular procedural right, over and above that generally required by the principles of fairness and natural justice, then he is said to have procedural legitimate expectations that can be protected.
Emerging Principles.
In procedural terms, a person is entitled to a fair hearing before a decision is taken if he or she has a legitimate expectation of being heard. But the fact that a person is entitled to make representations does not, of itself, constrain public bodies which, subject to a duty not to abuse their power, are entitled to change their policies to reflect changed circumstances even though this may involve reneging on previous undertakings. If there is a substantive limitation on this right to make changes, it lies in a test of fairness where the public bodies are equivalent to a breach of contract or there have been representations that might have supported an estoppel and so caused legitimate expectations to arise. It is, of course, difficult to prove such a legitimate expectation unless fairly specific representations as to policies affecting future conduct have been made. The form of generalised understandings that ordinary citizens might have will not be sufficient for this purpose. And, even if there are legitimate expectations, there is no absolute right to have those expectations met. Fairness may require no more than a hearing or consultation before any change is finally decided and, if the citizen's expectation is real, the courts might require the public body to identify an overriding public interest to trump the particular expectation.
This supplements the Wednesbury approach but it may not be advancing judicial review very far since, even in cases where an estoppel might otherwise have arisen, it will be difficult to convince a court that going back on a specific representation relied on to produce detriment will be unreasonable, unfair or irrational.
The idea of legitimate expectation has received sufficient mention both academically and in case law so as to effectively merit being referred to as the doctrine of legitimate expectation. Legitimate expectation has been said to be a new category of fairness, with the dicta of Bingham MR is Ex Parte Unilever stating ' the categories of unfairness are not closed, and precedent should act as a guide not a cage' thus the principle idea behind it, is that once a public authority makes a promise, it effectively amounts to a contract and to go back upon it is thus a breach and unfair for a public authority to do so, with Legitimate expectation thus being the public law equivalent to the doctrine of estoppel. The case of R v North and East Devon Health Authority, Ex parte Coughlan (2000) showed that legitimate expectation is recognized in cases where the relevant authority had made an unequivocal promise to provide the pensioner with a home for life on which she subsequently relied on that promise and sold her house. Thus the court specifically made reference to the parallel with contract and the doctrine of estoppel. The clearest mention of the doctrine of legitimate expectation comes from the Dicta of Laws LJ in the case of R (Nadarajah) v Secretary of State for the Home Department (2005) in which he stated that 'the principle of good administration required public authorities to be held to their promises would be undermined if the law did not insist that any failure of refusal to comply is effectively justified as a proportionate measure in the circumstances' with proportionality depending on the interests being balanced on each case. the important thing to note from Laws LJ dicta is that he is effectively recognizing the doctrine of estoppel as a legitimate grievance on its own.
Reference to legitimate expectation is also made in the early and famous GCHQ case by Lord Frasier who briefly sums up the courts decision in O'Reilly v Mackman in regard to legitimate expectation as being 'Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or the existence of a regular practice which the claimant can reasonably expect to continue.[1]
History of Legitimate expectation
The concept of legitimate expectation was born in Schmidt v. Secretary of State for Home Affairs[i] The Home Office had a policy of allowing “alien” students to study at “recognised educational institutions”. On that basis, a number of alien students had been granted study permits, for limited periods, to study at the Hubbard College of Scientology with other English students. Subsequently, however, the government announced a change to that policy due to concerns about Scientology (“Scientology is a pseudo-philosophical cult … [and] is socially harmful”, no longer recognising the Scientology colleges as educational institutions for the foreign nationals. Consequently, applications for renewal of study permits were declined. Two American students challenged the refusal to extend the study permits, importantly without any hearing.
Ultimately their claim was unsuccessful and was struck out. The majority of the Court of Appeal concluded that their claim must fail, first, because the foreign nationals were only entitled to remain in the country by licence of the Crown and, secondly, because they could have no legitimate expectation of renewal because their study permits were granted. However, it was the first occasion on which the concept of “legitimate expectation” appeared in legal lexicon.[ii]
Lord Denning mentioned the concept in his discussion of the notion of procedural fairness. The House of Lords in Ridge v. Baldwin had recently affirmed that administrative bodies may be bound to give a person who is affected by their decision an opportunity to make representations prior to the decision, such as if the decision would deprive the person of some right or interest. Lord Denning went one step further. He said the duty depended “on whether the person had some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say”.[iii] However, the students had neither the requisite right or expectation. The discretionary decision was otherwise lawful. If, though, the Home Office had tried to withdraw the permits prior to their expiry, Lord Denning would have been prepared to require the Home Office give the students an opportunity to make submissions on the issue. With Lord Denning’s brief obiter comments, legitimate expectation as a public law concept was born.[iv]At that stage, though, the concept was very narrow – limited to a right to make submissions, and perhaps only in circumstances where the permit or licence was withdrawn before expiry.
It is important to bear in mind the state of the evolution of the doctrine of procedural fairness at the time of the Schmidt decision. At that time, the obligation of procedural fairness only arose if a decision affected vested rights or interest, not “privileges” that had not yet vested, such as licences.[v] The extension into the protection of non-vested privileges, where they could be classified as a legitimate expectation, was therefore significant. The doctrine of legitimate expectation was developed further and matured into one of the cornerstones of judicial review; Lord Diplock endorsed legitimate expectation as an element of procedural (im)propriety in his famous tripartite test in C.C.S.U. [vi] At the same time, the fairness doctrine continued to develop too, to some extent, taking over from legitimate expectation. As Woolf & Jowell noted: “The duty to act fairly also extended the scope of the hearing to situations where a “privilege” rather than a “right” was in issue.” [vii]The legitimate expectation doctrine, however, continued to grow beyond the mere right-privilege distinction and beyond the scope simply of the obligation to act fairly.
During its development though, the question of whether the doctrine protected substantive expectations was controversial. That controversy continues today. One of my central arguments is that the protection of substantive expectations through the doctrine of legitimate expectation is analogous to the doctrine of public law estoppel.[viii] Although the terminology may differ, similar conceptual issues and practical considerations arise. The two doctrines have been intricately intertwined during their development.
‘Legitimate expectations’ in English law
The ‘protection of legitimate expectations’ is not a doctrine of English private law. It is, however, a doctrine which is presently under development in public law. It is well established that if a public body has led an individual to believe that he will have a particular procedural right, over and above that generally required by the principles of fairness and natural justice, then he is said to have procedural legitimate expectations that can be protected.[ix] In recent years it has also become accepted that if a public body has led an individual to believe that he will receive a substantive benefit, then he may have substantive legitimate expectations that can sometimes be protected, although this area is not yet settled and presents some difficulties of principle.[x]Even if the public body’s representations are within its power to make, the enforcement of the expectations created by them may fetter the public body’s discretion contrary to its proper functions in public law; although against that there is an argument about fairness of treatment of the particular individual.[xi] The protection of expectations raised by reliance on a representation made outside the power of the public body is even more problematic, because it might be held to be allowing the public body to exercise powers which were not authorised by Parliament.
There are close similarities between the public law doctrine of legitimate expectations and the private law doctrine of estoppel. The paradigm case of each doctrine involves a clear and unambiguous promise, undertaking or representation (in words or conduct) by one party which creates in the other an expectation or belief, and the justification for allowing the representee to hold the representor to his representation is that he has relied on it. However, there are significant differences, which make these separate doctrines no more than analogies. For example, in the public law context the courts have held that the justifications for enforcing the legitimate expectations may be a broader principle of fairness, and the prevention of the abuse of power by public bodies, and so they might not require detrimental reliance of the kind that would be required under the private law doctrine of estoppel.[xii] And, more generally, remedies awarded against public bodies must take into account different considerations from those in a purely private law case, such as the interests of the general public which the public body exists to promote, and the hierarchy of individual rights protected by the Human Rights Act 1998.[xiii]Most recently, Lord Hoffmann said that the public law doctrine is sufficiently well established to be recognised as quite independent of estoppel: ‘public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet’.[xiv]
(d) Underlying general principles
The discussion above has shown that the English courts have declined to unite the public law doctrine of legitimate expectations with the private law doctrine of estoppel; and that (so far, at least) they have also declined to draw out a general principle from the different forms of estoppel that can itself be applied directly and independently in private law. But there are certainly some general principles that can be identified in these several doctrines, which can then be seen in operation in, or underlying, other specific rules or doctrines of English contract law. Lord Hoffmann’s statement in the previous paragraph referred to absorption into public law of the ‘moral values which underlie the private law concept of estoppel’. And it has been noted above that one link between estoppels (although not yet fully developed in English law) is that they bind the individual on the ground that it would be unconscionable for him to deny what he has represented or agreed. This ‘unconscionability’ arises from a combination of his representation and the reliance on it by the representee. And it is the reliance that crystallizes the right in the representee: this is what makes it inequitable for the representor to go back on that which he has led the representee to believe. These core notions of the creation of expectations, and the law’s intervention to protect the expectations by virtue of the other party’s acting on the basis that they will be fulfilled, can be seen to underlie other rules that operate within the English law of contract.
DOCTRINE OF LEGITIMATE EXPECTATION IN NIGERIA.
In Nigeria the bedrock of the doctrine of legitimate expectation is embedded in Chapter 2, of the 1999 Constitution of the Federal Republic Of Nigeria(CFRN). This chapter titled ‘Fundamental objectives and directive principle of state policy’ covers the following subject matter, Sovereignty, Political Objectives, Economic objectives, social objectives, educational objectives, foreign policy objectives, environmental objectives, directive on Nigeria Cultures, obligation of mass media, National ethics and duties of the citizen. I shall be addressing each of this objectives as it relates to the doctrine of legitimate expectations here in Nigeria. It must be noted that it a mandatory 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 promotions of Chapter 2 of the constitution. See section 13 of the 1999 CFRN.
Nigeria operates a democratic system of government, which is Government in which all adult citizens share through their elected representatives. Government which encourages and allows rights of citizenship such as freedom of speech, religion, opinion and association, the assertion of the rule of law, majority rule, accompanied by respect for rights of minorities. Treatment of each other by citizens as equals and absence of class feeling.[2] There are three tiers of government the executive, the legislature and the judiciary. Each arm of Government is independent, and it is the legitimate expectation of every citizen in Nigeria that these organs of Government have been established to served its people.
The main question which must, therefore be posed is: have the constitutions since independent been fashioned democratically ie by a process which has involved actively a majority of the people? And perhaps as a corollary, have the provisions of the constitution enshrined the principles of democracy? Answers would be proffered to this questions later course of this paper work.[3]
Presently it is difficult to say for certain who is serving who, as the general populace seem to be living in abject poverty while those elected to serve the people, live the affluent life. Section 14 of the 199 CFRN, clearly states that the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice and 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 the Constitution.
The need to check discrimination of people based on tribe and religion especially in Government agencies is protected by section 14(3) which states as follows : ‘The composition of the Government of the Federation of any of its agencies and its conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that Government in any of its agencies’.
Also the composition of Government of a State, local Government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.
Political Objective
Section 15 of the 1999 CFRN provides that ‘ The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress’. Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.
The responsibility and duty of promoting national integration, lies with each State of the federation. It is therefore the responsibility of each state to do the following:
(a) provide adequate facilities for and encourage free mobility of people, goods, and services through out the Federation;
(b) secure full residence rights for every citizen in all parts of the Federation;
(c) encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic, association or ties; and
(d) promote or encourage the formation of association that cut across the ethnic, linguistic, religious or other sectional barriers.
It is also the responsibility of the state to foster a felling of belonging and of involvement among the various peoples of the Federation, to the end that loyalty to the nation shall override sectional loyalties.
The State shall abolish all corrupt practices and abuse of power. To this end i wish to commend the Economic & Financial Fraud commission for its various activities around the country ensuring that politicians who have embezzled Government funds to not go scot free. The recent arrest and arraignment of Demeji Bankole, the former speaker Federal House of Representative, is an attestation to the fact that Government is not relenting on its stands to fight against crime, in Government offices. However EFCC is not a state body, one would expect that based on the provisions of section 15(5) of the 1999 CFRN, that each state should have a body to check the excesses of its leaders at the state, level. The situation where we have four former Governors who flew out of the country on the eve of their handing over ceremony is quite appalling.
Economic Objectives.
Any country that yarns for development must have a striving economy. Government has a major role to play with regards the development of any nation. Thus Section 16(1)a-c of CFRN provides that, the State shall, harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy, control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity.
Without prejudice to its right to operate or participate in areas of the economy, other than the major sectors of the economy, manage of every citizen to engage in any economic activities outside the major sectors of the economy. Also without prejudice to the right areas of any person to participate in areas of economy within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy. See sec 16(1)c,d 1999 CFRN.
It shall be the responsibility of the State to direct its policies towards ensuring, the promotion of a planned and balanced economic development and that the material resources of the nation are harnessed and distributed as best as possible to serve the common good of everyone.
The state shall also ensure that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens. See Section16(2) 1999 CFRN
A body shall be set up as an Act of the National Assembly which shall have power. This body shall have power to review, from time to time, the ownership and control of business enterprises operating in Nigeria and make recommendations to the President on same; and to administer any law for the regulation of the ownership and control of such enterprises.
The term major sectors of the economy as mentioned above shall be construed as a reference of such economic activities as may, from time to time, be declared by a resolution of each House of Assembly to be managed and operated exclusively by the Government of the Federation; and until a resolution to the contrary is made by the National Assembly, economic activities being operated exclusively by the Government of the Federation on the date immediately preceding the day when this section comes into force, whether directory of through agencies of a statutory or other corporation or company, shall be deemed to be major sectors of the company; also note that ‘economic activities’ includes activity directly concerned with the production, distribution and exchange of wealth or of goods and services; and the word ‘participate’ includes the rendering of services and supplying of goods. See Section 16(4) 1999 CFRN.
In which case, attainment of economic self –determination is not just a pious hope but also a demand of the Directive Principles of state policy under the constitution. It may be added that both the federal and state,( and to some extent) local governments have individual and collective constitutional responsibility to achieve economic self –determination or fiscal autonomy. Of course, there is the tendency on the part of the lawyers and non- lawyers alike to laugh off the entire contents of chapter 2 of the constitution on the supposition that they are not justifiable. It is elementary that states are honour bound to observe constitutional conventions and more importantly, we seem to conveniently forget that item 60 of the exclusive Legislative list provides for
‘ the establishment and regulation of authourities for the federation or any party thereof,
a) to promote and enforce the observance of the fundamental objectives and Directives Principles contained in this Constitution’
Equally , the international Convention on economic, social and cultural rights provides in its Article 1for economic self –determination on the part of all people.[4]
To these effect sections 162-168 of the 1999 constitution provides for the collection and disbursement of certain revenue at the federal level Section 163(2) in particular provides:
‘the president , upon the receipt of advice from the revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the federal Account and in determining the formula, the national Assembly shall take into account, the allocation principles especially those of population, equality of states, internal revenue generation, landmass, terrain as well as population density.
Furthermore, revenue Mobilization, Allocation and fiscal commission Act 1989 empowers the commission to:
a. Monitor the accrual to, and disbursement of, revenue from the federation Account;
b. Review, from time to time, the revenue allocation formula and principles in operation to ensure conformity with changing reality[5]
Social Objectives
The 1999 constitution of the Federal Republic Of Nigeria(CFRN) provides in Section 17(1) that the State social order is founded on ideas of Freedom, Equality and Justice.
In furtherance of the social order every citizen shall have equality of rights, obligations and opportunities before the laws and the sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced. Governmental actions shall be humane; and exploitation of human and natural recourses in any form whatsoever for reasons , other than the good of the community, shall be prevented and the independence, impracticality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.
The State shall direct its policy towards ensuring that all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. It is equally important that conditions of work are just, and humane, and that there are adequate facilities for leisure and for social, religious and cultural life. The health, safety and welfare of all persons in employment are safeguarded and not endangered or abused. There must be adequate medical and health facilities for all persons and provision for equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever. The Government must also ensure that children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect, also provision must be made for public assistance in deserving cases or other conditions of need. See Section 17(3) 1999CFRN
Educational Objectives.
it is the legitimate expectation from people that Government shall direct its policies towards ensuring that there are equal rights and adequate educational opportunities at all levels. In this regard Government shall promote science and technology strive to eradicate illiteracy; and to this end. Government shall as and when practicable provide-
(a) free, compulsory and universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme. Please see Section 18, 1999 CFRN
FOREIGN POLICY OBJECTIVES
The foreign policy objectives shall be;
(a) promotion and protection of the national interest;
(b) promotion of African integration and support for the African unity;
(c) promotion of international co-operation for the consolidation of universal peace and mutual respects among all nations and elimination of discrimination in all its manifestations;
(d) respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication; and
(e) promotion of just world economic order.
Environmental Objectives.
The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria. See Section 20, 1999 CFRN. The crisis in Niger Delta leaves one wondering if much has been done by Government to safeguard the water, in those areas. We have large cases of water pollution, even with the establishment of NDDC, not much can be said to have been done to elevate the high rate of poverty in these areas.
Directive on Nigerian Cultures.
it is prerogative that Government helps to protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provide in chapter 2 of the 1999 CFRN and encourage development of technological scientific studies which enhance cultural values.
Obligation of the Press.
The press, radio, television and other agencies of the mass media shall at all times be fee to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the Government to the people.
Duties of the Citizen.
so much has been said about the legitimate expectation of the government, i feel its necessary to throw so light on the legitimate expectations of the citizen from Government. It shall be the duty of every citizen to-abide by this Constitution, respect to its ideas and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities. A citizen must help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required.
A citizen shall respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood. He shall make positive and useful contributions to the advancement, progress and well-being of the community where he resides and render assistant to appropriate and lawful agencies in the maintenance of law and order. Finally every citizen must declare his income honestly to appropriate and lawful agencies and pay his tax promptly. See Section 24, 1999 CFRN.
JUSTIFICATION OF THIS DOCTRINE IN NIGERIA VIS AVIS ECONOMIC, SOCIAL AND CULTURAL RIGHTS.
The fundamental rights guaranteed by the constitution are limited to political and civil rights. While the infringement of any of such rights can be challenged in the appropriate High Court the economic, social and cultural rights which are covered under the Fundamental Objectives and Directives Principles of the state Policy contained in Chapter 2, of the 1999 Constitution are not justicable.[6] In Archibishop Olubunmi Okogie Vs The lagos State (1881) 2 NCLR 337 at 350 the court of appeal had cause to interpret a similar provision in the 1979 constitution when it held:
‘The fundamental objectives identify the ultimate objectives of the Nation and the Directive Principles lay down the policies which are expected to be pursued in the efforts of the nation to realize the national ideals. While Section13 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 cahpter11, section 6(6)(c) of the same constitution makes it clear that no court has jurisdiction to pronounce any decision as to whether any organ of 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 Section 2 of the constitution justiciable’
Even though the rights contained in chapter II are not justiciable they contain guidelines as to what the courts should do when confronted with the problem of interpretation of the constitution. See Damisha Vs Speaker, House of Assembly, Benue State(1983)4NCLR 625. However, the justiciability of the Fundamental Objectives and Directive Principles of the state policy cannot be questioned where the legislature has made a specific law for their enforcement.[7] Attorney-General of Ondo State Vs Attorney –General of the Federation & others (2002) 9NWLR(PT722)222;(2002)27 WRN;(2002)6S.C(PT1);(2002) FWLR(PT11)1972.
In view of the inexplicable reluctance of the state to comply with the provisions of chapter II of the constitution the time has come for Nigerian Courts to borrow a leaf from India where an activist judiciary has compelled the government to enforce certain aspects of the directive principles of the state policy. The resort to affirmative actions to promote economic, social and cultural rights was acknowledged by frontline jurist when he said.[8]
‘these three categories of human rights depend fundamentally on the right to life and personal liberty which is core human right. The right to life is now confirmed merely to physical existence but it includes also the right to live with basic necessities of life such as food, health, education, shelter etc....These human rights fall within the category of social and economic rights and they can be realized only by affirmative action on the part of the state and if the state fails to carry out its constitutional or legal obligations in enforcement of these human rights, it may have to be compelled to do so by an activist judiciary. We in India have done so, be compelling affirmative state action in cases where a state was under a constitutional or legal right to do so( Inaugural Address by the Hon. Justice P.N Bhagwatt; former chief Justice of India and Convenor of the Judicial Colloquim in Bangalore, 24-26, February 1988 in Developing Human Rights Jurisprudence, a commonwealth Secretariat publication, 1988 P.XX11-XX111).
CRITISIM.
The intention of Chapter II of our constitution is good, but the practicability and the enforcement of the principles contained therein is fuzzy. Emphasis is placed on the state, which means that so much is expected from the state, yet so little or nothing at all is done to bring Chapter II to life. Section 14(2)a, provides that sovereignty belongs to the people, but the reality on ground is that Sovereignty belongs to those elected to the various political offices. Only those in power, are enjoying the National Cake. Political office is viewed as cake sharing device. The issue of free education at primary, secondary and tertiary institutions, appears to be an abandoned issue. Citizens are compelled to pay school fees for their wards at all levels. Government must also reduce its focus on crude oil, to boost the economy there is need for Government at the both state and federal Level to resurrect our cocoa, rubber, timber, coal , groundnut industry.
CONCLUSION/ THE WAY OUT.
To some the way out is by dividing the country into two or three parts. But my view is that even if Nigeria is divided into 36 countries the problem would still persist. Its on this ground that i wish to align myself with the suggestion proffered by Femi Falana, in his reference to India as mentioned above, that these human rights fall within the category of social and economic rights and they can be realized only by affirmative action on the part of the state and if the state fails to carry out its constitutional or legal obligations in enforcement of these human rights, it may have to be compelled to do so by an activist judiciary. The judiciary , which includes lawyers should stand up in unity and insist that the state, Government must provide its people with all that is expected of it.
[1]. http://en.wikipedia.org/wiki/Legitimate_expectation
[2] Oxford English Dictionary
[3] Constitutional Reform and Federalism in Nigeria: by Ajasin Foundation Annual Colloquim, pub: Ajasin Foundation, pg 20.
[4] Constitutional Reform and Federalism in Nigeria: by Ajasin Foundation Annual Colloquim, pub: Ajasin Foundation, pg 44.
[5] Constitutional Reform and Federalism in Nigeria: by Ajasin Foundation Annual Colloquim, pub: Ajasin Foundation, pg 45.
[6] Femi Falana: Fundamental Rights Enforcement, 1st Edition, 2004, pg9
[7] Femi Falana: Fundamental Rights Enforcement, 1st Edition, 2004, pg9
[8] Femi Falana: Fundamental Rights Enforcement, 1st Edition, 2004, pg10
END NOTES!
[i] [1969] 1 All E.R. 904 [Schmidt]
[iii] Lord Denning himself claims responsibility for the creation of the term. In a letter to Forsyth, he said he was “sure it came out of my own head and not from any continental or other source”, see Christopher Forsyth, “The Provenance and protection of legitimate expectations” (1988) C.L.J 238 at 241.
[v] Lord Denning reiterated his embryonic comments in his dissenting judgment in Breen v. Amalgamated Engineering Union [1971] 2 Q.B.175. He would have been prepared to require a trade union allow one of its members a hearing prior to the union deciding on whether to endorse – or rather, decline to endorse – his election as a shop steward.
[vi] See P.P Craig, Administrative Law, 4th ed. (London: Sweet & Max``well, 1999) at 408 [Craig, Administrative Law].
[viii] S.A. de Smith, Judicial Review of Administrative Action, 5th ed. by Lord Woolf, J. Jowell & A.P. Le Sueur (London: Sweet & Maxwell, 1995) at para. 7-039 [de Smith].
[x] P. Craig, Administrative Law, above, ch 19. The leading case which accepts a (defined) principle of substantive legitimate expectations is R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.
[xi] R v Ministry of Agriculture Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 at 731
REFERENCES.
1. 1999 Constitution of the Federal Republic of Nigeria.
2. Constitution Reform and Federalism In Nigeria, by Ajasin Foundation Annual Colloquim, published by Ajasin Foundation 2003.
3. Femi Falana: Fundamental Rights Enforcement, 1st Edition, 2004
4. Oxford English Dictionary
6. http://Freelawprojectsadministrative law-doctrine of legitimate expectancy.url
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