THE RIGHT TO FREE BASIC EDUCATION NOW ENFORCEABLE IN NIGERIA; AN ANALYSIS OF THE NUANCES OF THE COURT’S DECISION IN LEDAP V MIN OF EDUCATION 

​In what has been considered by many as a judgment long overdue, the Federal High Court sitting at Abuja finally held that basic education be litigious and enforceable in courts of Nigeria. Previously, the right to free basic education was non-justiciable i.e it couldnt be enforced in court. For ease of understanding, an adumbrated explanation of the former position would suffice. 

 Lawyers up until now, had come to appreciate the fact that the entitlement to free basic education, even though contained as a right in the constitution, cannot be redressed in court in the event of it’s infringement in Nigeria. Given this, for many years, the Nigerian government had refused or neglected to provide free basic education; its being provided for in the constitution, notwithstanding. 
The constitution of Nigeria being the fons et origo,  is the compendium of our fundamental laws and suchly, strives to reflect the weal and needs of the people by its law. The constitution drafters therefore, being not unaware of the trenchant place of Education in the polity thought to include free education as a  goverment duty and as a correlative individual right. Hence, Section 18(1) of the Constitution of Nigeria, 1999 perspicaciously provides that “The government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels”. More glaringly, is the content of Section 18(3) of the constitution provides that that “Government shall 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 and (c)  free adult illiteracy programme”

Now, the unversed in law, having a swipe at the provisions of law mentioned above may be in haste to conclude that the Nigerian Government owes an inimitable duty to eradicate poverty by providing substantive education as a basic right of every citizen after all, given the nation’s wealth and profligate expenditures, it is practicable enough that such an auspicious responsibility accrues to the government. This view is not reproachful; it is meritorious. But, it is worth the mention that the same constitution has on the other hand gagged the rights of every citizen in enforcing the objective to ensure equal and free education at all levels. In other words, while the constitution substantively provides for education as an entitlement of all Nigerians on one hand, it conversely provides that the provision of education by the government is not a “legal” obligation and a breach of it does not open the legal floodgate to citizens to ventilate thier grievance. Expatiating will help at this juncture. 

Section 18
 which provides for education as a core objective is contained in chapter 2 of the constitution tagged “Fundamental Objectives and Directive Principles of State Policy” and this chapter 2 of the constitution with all its copious provisions (including Section 18) is non -justiciable i.e it cannot be enforced in a court of law. The muscles of the above assertion is flexed in Section 6 (6) (c) of the Constitution of Nigeria 1999. While Section 6(1) vests judicial powers in our courts to entertain suits, Subsection 6 (c) circumscribes the courts from hearing any matter which involves the enforcement of a right contained in Chapter 2 of the constitution. What this section contemplates is that the judiciary has the power to hear any matter relating to the constitution but when it relates to any provision contained in chapter 2, the courts shall decline jurisdiction. Section 18 which galvanises citizens with the sublime belief that education shall be provided to citizens is in chapter 2; it cannot be enforced in courts in the event that the government refuses or derelicts from its duty to provide Education. In a nation hugely beset by profound immodesty,  inordinate avarice and a proclivity to siphon public funds, it is not infrequently the case that the funds designed to expedite free education is embezzled. Comparatively, In Countries such as South Africa which practise the principle of indivisibility, to the effect that fundamental objectives and fundamental rights are all enforceable, citizens can sue the government to enforce it in regular courts.
Until recently this has been the case in Nigeria. A sulky individual denied of Education cannot vent his spleen on the Government. He would only be making a silk purse out of a sow’s ear. He either sucks it up, cover his moustache in anguish or channel his grievances to some other palpable causal factors as an attempt to sue the government will wallop him into his waterloo.

 In a very recent judgment by the Federal High Court sitting at Abuja, in a suit by the Legal Defence and Assistance project against the Ministry of Education and the federal Government, the court held that federal and state governments had constitutional duties to provide adequate finding for the free education scheme. The court held that “By the combined effect of section 18(3)(a) of the 1999 Constitution and section 2 (1) of the Compulsory, Free Universal Basic Education Act, 2004, the right to free and compulsory primary education and free junior secondary education for all qualified Nigerian citizens are enforceable rights in Nigeria.”

While many have questioned the judgment in the light of section 6(6) (c) and Section 1(1) (3) of the constitution, there are valid reasons to be in tandem with this reformatory decision. The reasons are not farfetched and need not postrate on the corridors of sentiment. There are in fact, various legally sustainable arguments that justify the decision of the Court and gives credence to the temerity which the court has most pertinaciously expressed.  

The first sustainable argument is one easily ensuing at the very beckon of logic. Reasoning panoramically and considering that section 6(6) (c) makes only chapter two of the constitution non-justiciable and not the totality of substantive legislations in Nigeria, one may concede that educational rights may be procurable from other Nigerian legislations that provide for such entitlements tacitly, explicitly or expressly. This logic is priceless. It cannot be argued contrariwise that such an interpretation would incur the invocation of Section 1(3) of the Constitution since such legislations would not be acting contrary to the constitution where the constitution does not totally proscribe the possibility of educational rights or general social rights; but rather only makes the assurances in Chapter 2 non-justiciable while all along saying nil about any other legislations that subsequently act to create justiciable dimensions to rights in Chapter 2. 

For ease of understanding, we’ll mash up these various meaty propositions into sauce for the young, the legally unversed and the lay, reducing the argument to basic syllogism. 

The first premise is that Section 6(6)(c) only proscribes the justiciability of provisions under Chapter 2. The second premise is that general legislations, being outside the scope of the Chapter 2 of the CFRN are not in any way affected by the non-justiciability clause in Section 6(6)(c). Therefore, provisions in Legislations are not non-justiciable by reason of Section 6(6)(c). 

A close look at Section 6(6)(c), makes this point salient. Section 6(6)(c). Section 6(6)(c)  reads thusly:

“The judicial powers vested in accordance with the foregoing provisions of this section shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act of omission by any authority or person  or as to whether any law or judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution”. Drawing from this only the questions on provisions in chapter 2 are disallowed; a question on educational rights not levied on Section 18 of chapter 2 is allowed. Afterall, expressio unis est exclusion alterius (The express mention of one excludes all  others).

 Apparently, this fact has remained gapingly obvious since the inception of the constitution and most persons of interest, unknowing,  have taken to crying over supposed fatal jural injuries inflicted by Section 6(6)(c) in the stead of exploiting this wondrous chasm.

Now, having sorted our coins, it must be brought to fore that Section 2(1) of the Compulsory Free Universal Basic Education Act 2010 provides beauteously that “Every Government in Nigeria shall provide free, compulsory and universal basic education for every child  of primary and junior secondary school age”. Going by the above arguments then, this provision is as impervious to Section 6(6)(c) of the Grund norm as the Chimpanzee’s buttocks is to palm nuts, as the Tortoise’s shell is to harsh conditions; and can therefore be given license to fruition through the instrumentality of a suit. Suffice to say, that going by the above train of sense, the decision of the court is justified and maintainable on the one hand, given that it does not contradict the constitution in any way and given that the act which assures basic educational rights is fundamental and garnished with the overwhelming status of justiciable Law.

 Also, considering that Article 26 of the Universal Declaration on Human Rights, Article 11 and 17 of the African Charter on Human and People’s rights and Article 13 of the International Covenant on Economic, Social and Cultural rights make provisions for Educational rights encompassing entitlements to free and basic education and contemplating that all these instruments have been ratified by Nigeria and are applicable in Nigeria by virtue of Section 12 of  the Constitution and further accepting that Section 6(6)(c) does not in any way proscribe the judicial determination of the applicability of international instruments, it can be resolved that the decision of the court can be justified as being that educational rights as guaranteed by these instruments are justiciable and in any case, the decision of the court can afford legitimacy from these instruments. 

On the other hand, the decision of the Court can suffice on the altars of derived rights. If the constitution does not offer educational rights, it certainly ensures other substantive rights like the right to life and the right to the dignity of the human person e.t.c. Derived  rights are the consequence of a rather expansive interpretation of these rights to include the right to education and other necessities of life, and although the reinterpretation of these ensured rights to satisfy the pertinence of these other contingent human enjoyments is saddled with a glut of procedural and technical limitations, it is not logically incapacitated and at the very least it takes the mandate of ensuring this rights from the pockets of the legislature.

 The right to education can be derived from the right to life.  The right to life must not merely be a freedom from being unduly murdered or from having one’s head chopped off indiscriminately on the streets (Not that Nigeria ensures even this toddler aspect of this entirety). ‘Life’ according to the Black law dictionary may mean either “a state of the human in which organs are capable of performing their functions” or  a state of  “all personal enjoyment of the faculties”. Relying on the definitions above, a person cannot be said to have been properly guaranteed a right to life, if the life they are assured is below the most elementary contemporary standard.  They cannot be averred in such cases to have been given the means to properly access all their human faculties whereas their mental and intellectual  faculties are entirely starved and wherein they cannot properly maintain a comprehensive and prudent existence in contemporary society given such under-nourishment.  An assurance of a right to life that does not encompass the myrrh of education is merely an assurance of an entitlement to breathe and pump blood and no more; how underwhelming! A right to life must mean a right to appropriate standard of life, in consonance with contemporary parameters.  An entitlement to a right to life should reasonably encompass the enjoyment of all such basic contingencies as makes a worthwhile and standard life in contemporary times; one of these being education. This interpretation is most reasonable. The judicial culture of derived rights has been given the blessings of affirmation in a bee hive of cases. The Nigerian case of Gbemre v. Shell BP is a classic mention; wherein a right to clean environment was derived from the right to dignity of human person. 

Because the law is an instrument of social engineering, it is laudable that this decision was reached by the Court as it is coterminous with the relevant laws and ennobling to public policy. It is as titillating as it is invigorating that despite section 6(6)(c), when recourse is consequently made to our laws in the nearest future, the government can be steamrolled to perform a core duty of providing education at all levels. This is enheartening. Our citizens are now entitled to free basic education at the very least.

The laws in this work are reproduced as they are in their purest forms.  The writers do not pretend to state new laws herein; that would be presumptuous. After all, we do not appear to have the draft skill of Mackenzie Chalmers. In the light of limited knowledge, we’ve garnered the law in their different threads and weaved it into a logically applicable and readable whole. It is our submission and asseveration that this decision is stalwartly standing on firm legal grounds; a beauteous reform – the best thing since sliced bread. 
By

Vincent Okonkwo; and 

Destiny Ogedegbe 

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