CAN SOCIOECONOMIC RIGHTS AMELIORATE THE ACCOUNTABILITY DEFICIT OF THE NIGERIAN STATE? A dissertation presented by Ogunfolu Adedokun Olatokunbo to Cornell University Law School, in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the subject of Law Cornell University Ithaca, NY August 2013 © 2013 Ogunfolu Adedokun Olatokunbo All rights reserved. CAN SOCIOECONOMIC RIGHTS AMELIORATE THE ACCOUNTABILITY DEFICIT OF THE NIGERIAN STATE? Ogunfolu Adedokun Olatokunbo, J.S.D. Cornell University, 2013 Can justiciable socioeconomic rights assist in the formulation of government policies and programs that are accountable to Nigerian citizens? This dissertation has tried to answer the question by establishing that mechanisms of accountability such as the rule of law and separation of powers have been enacted into the Nigerian Constitution. But the government’s socioeconomic policies have not been accountable, as reflected in my content analysis of Nigeria’s health-care and education sectors. I show that the sole exception was the Social and Economic Rights Action Centre (SERAC) decision of the African Commission on Human and Peoples’ Rights. But Nigeria has subsequently argued that socioeconomic rights are nonjusticiable, and they are merely Fundamental Objectives and Directive Principles of State Policy under its Constitution. I analyzed cases from the U.S. States of Kentucky, New Jersey, and New York, whose constitutions provide for free public education for children, and prove that courts have the capacity to adjudicate upon socioeconomic policies of governments in the area of education and make such policies accountable to constitutional mandates. I evaluated the jurisprudence from India, where socioeconomic rights are nonjusticiable directive principles of state policy, but her Supreme Court has expanded the right to life to encompass directive principles of health care and education. But it is very instructive that India, in 2002, opted for a constitutional amendment to transform the nonjusticiable provision on primary education of the Directive Principles of State Policy into a justiciable fundamental human rights provision under its Constitution. The South African Constitutional Court, in interpreting its Constitution, wherein socioeconomic rights are justiciable has formulated a reasonableness test doctrine in evaluating the seriousness/effectiveness of the various programs that the South African government had designed to implement socioeconomic rights. I then conclude that existing mechanisms of accountability in Nigeria can be complemented by constitutionally enforceable socioeconomic rights. The same principles formulated by the Nigerian judiciary in striking down unconstitutional legislation or in securing civil and political rights are applicable to judicial adjudication over socioeconomic rights. A constitutional amendment to make socioeconomic rights justiciable will ameliorate Nigeria’s public governance accountability deficit. BIOGRAPHICAL SKETCH Adedokun (abundance of crowns) was conceived in the United Kingdom, hence Olatokunbo (wealth from across the ocean), and born in Lagos, Nigeria, to Kolawole and Adebisi Ogunfolu, both royal natives of Porogun Quarters in cosmopolitan Ijebu-Ode Kingdom in South West Nigeria, about 100 kilometers to the Atlantic Ocean. In Nigeria, Adedokun acquired his primary education at Polytechnic Staff School Ibadan, secondary education at Federal Government College Odogbolu, and legal education at Obafemi Awolowo University, Ile-Ife (formerly University of Ife). In 2008-2009, Adedokun was awarded both the Cornell University Law School Graduate Fellowship and Cornell University Institute for African Development Fellowship, to fund a Master of Laws (LL.M.) Program at Cornell University Law School. Adedokun was away in Nigeria from 2009 to 2010, to conduct fieldwork and teach human rights law and international humanitarian law at Obafemi Awolowo University. He resumed at Cornell in 2010, for his Doctor of the Science of Law Program (J.S.D.) under the guidance of his Committee chair, Professor Chantal Thomas, and other committee members, Professors Muna Ndulo and Robert Hockett, to conduct research into how justiciable socioeconomic rights can ameliorate the accountability deficit of public governance in Nigeria. In the last phase of his J.S.D. program, Adedokun and his wife Olabisi were both blessed with the most wonderful gift of all, their first child. iii Dedicated to my father, Kolawole Abiodun Ogunfolu (1927-1997), and my brother Kemi Ogunfolu (July 28, 1963-July 5, 1983) iv ACKNOWLEDGMENTS I thank my parents, Kolawole Abiodun Ogunfolu and Adebisi Adunni Ogunfolu (née Agbabiaka), for their love and huge investments in my progress. My wife and my siblings are greatly appreciated. My utmost gratitude extends to my committee chair, Professor Chantal Thomas and other committee members, Professors Muna Ndulo and Robert Hockett. I appreciate the intellectual support and warmth of Professors Mitchel Lasser and John J. Barceló III. The warmth and kindness of Dean Charles Cramton, Professor Larry Bush, Dawne Peacock, Virginia Star, Patricia Hall, Karen D. Wilson, Anne Lukingbeal, and Gail Howser sustained me. The Cornell University Library was incredibly efficient in sourcing physical and digital materials for my research. I made great friends at Cornell University Law Library; these friends made my research work a lot easier than they can imagine. Some of them are, Patricia Court, who was one of my referees for my doctorate degree application; Thomas Mills, Brian Eden, Jane S. Drumheller, Laura Robert, Nancy J. Moore, and Carol Clune. The Cadmus family in Ithaca has been wonderful to me. Juan Lube of the computer lab was very helpful with my computer issues, particularly when my Toshiba laptop crashed. Jackie Sayegh and Evangeline Ray of the Institute for African Development, Cornell University, made Ithaca pleasant for me. My appreciation extends to my teachers at Polytechnic Staff School Ibadan, Federal Government College Odogbolu, and Obafemi Awolowo University Ile-Ife, all in Nigeria. I appreciate my four referees for my LL.M. application to Cornell Law School in 2008, Professors Margaret Okorodudu- Fubara; K.A. Ako-Nai, former dean of the law faculty and former deputy vice-chancellor, respectively, at Obafemi Awolowo University, as well as Michelo Hansungule and Martin Nsibirwa, both of the Centre for Human Rights at the University of Pretoria, South Africa. I appreciate my Nigerian academic mentors, Niyi Fasanmi, Dr. Oladipo Fashina, Dr. Sola Kasim, v Professors Margaret Okorodudu-Fubara, K.A. Ako-Nai, Roger Makanjuola, Adebayo Lamikanra, L. Oladipo Salami, and Yunusa K. Salami. My former students at Obafemi Awolowo University enriched and challenged my mind with their various intellectual engagements. A few of them are Dayo Fagbemi, Adebowale Eboda, Yinka Fadeyibi, Elimma Ezeani, Dafe Akpeneye, Funmilayo Akinosi, Temi Kusamotu, Adetoun Teslimat Adebanjo, Precious Erimiatoe, Funso Fatunla, Ronke Nedd, Bukola Ayanbule, Olufunke Olaogun, Oludamilola Adejumo, Ola Faro, Maria Usang Assim, Tomi Adewoye, Bimbo Odeleye, and Jennifer Ganiyu. I am very grateful for the support and interviews granted to me by a retired justice of Nigeria’s Court of Appeal, Honorable Albert Gbadebo Oduyemi, in February 2012, in Ijebu-Ode, Nigeria. Senior partner of Libra Law Office, Lagos, Mrs. Hairat Aderinsola Balogun (OON), her partners, Osahon Idemudia, Afolabi Balogun and former counsel in chambers, Honorable Wasiu Animahun, presently a Lagos State High Court Judge, warmly introduced me into legal practice. Deaconess Osinibi and Pa J.T. Okuneye and their children supported my wife and mum during my Ithaca sojourn. I appreciate the editorial services of Emily Johnson. Laura Glenn did most of the editorial work at a kind discount. The kind financial support of Cornell University Law School Graduate Fellowship, 2010-2012, and Berger International Legal Studies Program Fellowship, 2012-2013, made my dream of acquiring the Doctor of the Science of Law (J.S.D.) degree from Cornell University Law School a reality. I am very grateful to Cornell University for enriching my intellectual life, and the warmth of the Ithaca community will always be treasured. My ultimate thanks are reserved for the almighty God for his immeasurable blessings. vi TABLE OF CONTENTS Biographical Sketch ……………………………………………………………………………iii Acknowledgments……………………………………………………………………………….v INTRODUCTION Introduction……………………………………………………………………….…...1 Subject of the Dissertation.……………………………………………………………1 Research Question……………………………………………………….....................9 Scope of the Dissertation………………………………………………………….…...9 Research Methodology………………………………………………………..............11 Arrangement of the Dissertation………..…………………………………………......13 CHAPTER ONE: MECHANISMS OF ACCOUNTABILITY ADOPTED IN NIGERIA 1.0. Introduction………………………………………………………………………….....18 1.1. Accountability in Public Governance…………………………………………………..18 1.2. Rule of Law……………………………………………………………………………..27 1.3. Separation of Powers…………………………………………………………………....35 1.4. International and Domestic Bills of Rights……………………………………………...36 1.5. Human Rights Commission……………………………………………………………...37 1.6. Transparency in Governance…………………………………………………………….40 1.7. Freedom of the Press…………………………………………………………………….41 1.8. Fiscal Measures of Attaining Accountability in the Expenditure of Public Funds in Nigeria…………………………………………………………………………42 vii 1.8.1. The Fiscal Responsibility Act,