ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’ Rabat, Morocco, 2-5 February 2011

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CONSTITUTIONAL INTERPRETATION AND THE NOTION OF UNENUMERATED RIGHTS:

CIRCUMVENTING THE EXCLUSION OF SOCIO-ECONOMIC RIGHTS IN AFRICA

’DEJO OLOWU

ABSTRACT

In every State where the rule of law and separation of powers are recognized as norms, it is the judicial organ of the State that bears the exclusive responsibility of interpreting the fundamental law of the land, by whatever name it is called. The judicial organs in diverse States have therefore evolved various approaches in carrying out this onerous responsibility. Experience shows, however, that in interpreting constitutions, particularly in matters implicating life, liberty, and livelihood, the courts in some jurisdictions have identified or recognized claims and entitlements which are often beyond the rights explicitly guaranteed in such constitutions, and some continue to do so, albeit with some degree of inconsistency. This essay acknowledges that the notion of unenumerated rights constitutes an affront to the more entrenched concepts of positivism and formalism and even challenges age-long ideas about the philosophical foundations of human rights. However, extrapolating from case law, juridical pronouncements and ongoing scholarly discourses on the idea of unenumerated rights from different jurisdictions around the world, this essay evaluates the potential of this path of judicial innovation in promoting democratic governance, social justice and human rights in general, and in particular, the genre of socio-economic rights in African States. While not oblivious of the broad range of arguments against the notion of unenumerated rights in general terms, this essay advocates vibrant intellectual engagement with its long- and short-term implications for qualitative judicialism, access to justice, and genuine democratic claims in Africa, and proffers some trajectories towards the formulation of proactive strategies.

I. INTRODUCTION

LL.B (Hons.), LL.M, Obafemi Awolowo University, Ile-Ife, Nigeria; LL.M Human Rights & Democratization in Africa, University of Pretoria, Pretoria, South Africa; PG Dip. Int’l Human Rights, Åbo Akademi University, Turku, Finland; JSD Cum Laude, University of Notre Dame, Notre Dame, Indiana, USA; Barrister & Solicitor (Nigeria); Research Professor of Law, North-West University (Mafikeng Campus), South Africa. Email: djolowu1@yahoo.co.uk

The very nature of a ‘constitutional state’ – cherished in law-ordered societies – is

intrinsically linked to the rule of law; requiring that all authority be subject to, and

constrained by law as opposed to the whims of one man, group, or party. However, it is

axiomatic that the notion of the rule of law demands vital institutional attributes for its

sustenance in any society. Among these are comprehensive laws, adequately equipped

and independently functioning judiciary, and trained law enforcement personnel.1 Since

the interpretation of the body of laws governing a state, and in particular, the Constitution

– the fundamental law of several states in the modern world – is traditionally the

responsibility of the judicial arm of government, it becomes inevitable that the existence

and sustenance of a virile judiciary, or the absence of such, will indicate a benchmark for

measuring a state’s commitment to the rule of law.

In the context of this essay, what is central is the impact of the technique of

constitutional interpretation on the normative development of human rights. A critical

review of judicial pronouncements and scholarly views demonstrates that it is no longer

novel, could be desirable, and may indeed be inevitable, for courts to interpret written

constitutions in such a way as to accommodate human rights norms that are not expressly

enumerated in codified bills of rights. This cannot but be an attractive trend for

constitutional discourses in African states where democratization, governance and human

rights encounter enormous implementation challenges. The questions to ask, therefore, is

whether the interpretative power of the courts will cover the expansion of the body of

rights recognized in written constitutions; whether African courts can adopt proactive

1 See Randy Barnett, Can Justice and the Rule of Law Be Reconciled?, 11 HARV. J. L. & PUB. POL’Y 597, 619-621 (1988); JEROME FRANK, LAW AND THE MODERN MIND 165-166 (1963); Rachel Kleinfeld, Competing Definitions of the Rule of Law: Implications for Practitioners, Carnegie Paper No. 55, Jan. 2005.

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techniques in constitutional interpretation to enhance human rights and democratic

culture; and whether this is a desirable path altogether.

An effort is made over the next few pages to examine the historical and

philosophical foundations of unenumerated rights within the framework of the judicial

function of constitutional interpretation; controversial and ‘grey areas’ in global

constitutional jurisprudence and scholarship; the impact and influences of this sort of

judicial functioning; and to evaluate the potential implications for constitutionalism and

constitutional adjudication in contemporary Africa.

II. CONSTITUTIONALISM: BULWARK OF HUMAN RIGHTS PROTECTION

Although recent empirical studies usually trace the roots of modern political systems

from the philosophical ideas of the Greek Republics all the way through eighteenth and

nineteenth century intellectual enquiries, it has never been an easy task delimiting the

historical details of law-ordered societies.2 The earlier political thoughts – the ideas of

Plato and Aristotle; the liberalism of Locke and Rousseau as advanced in later years by

Voltaire in France, the cautious empiricism of David Hume and Adam Smith, the

utilitarianism of Immanuel Kant and Jeremy Bentham as promoted by John Stuart Mill,

and the ideas of Thomas Jefferson and James Madison as evident in the Constitution and

the Bill of Rights of the United States (US) – were all products of human history.3

History had taught those philosophers and political thinkers that when it comes to the use 2 See generally RUSELL HARDIN, LIBERALISM, CONSTITUTIONALISM AND DEMOCRACY 41-81

(2003) (contending, after an analysis of the historical development of political and economic liberalism in the works of diverse thinkers, that “the welfarist core”, a metaphor for the guarantee of the “survival” of the individual under any form of government, was the centrifugal idea behind all their conceptions). See also Bruce Yandle, Sir Edward Coke and the Struggle for a New Constitutional Order, 4(2) CONST. POL. ECON. 263, 264 (1993) (evaluating the protracted political struggles against feudalism in England that culminated in the Magna Carta of 1215, and identifying same as the basis for the “constitutional entrepreneurship” that ensued in later times).

3 See A.E. Dick Howard, The Essence of Constitutionalism, in CONSTITUTIONALISM, AND HUMAN RIGHTS: AMERICA, POLAND, AND FRANCE 3-41 (Kenneth W. Thompson et al, eds., 1991); ALBERT P. BLAUSTEIN, CONSTITUTIONS OF THE WORLD 2-4 (1993).

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of power, those who possess excessive amount of personal ambition are often the most

influential and, invariably, most dangerous; necessitating, therefore, that limits to

governmental powers must be defined by law. Plausibly, therefore, this was where the

seeds of constitutionalism were sown.4

With the enduring debates on the latitude of governmental power and the

determination of the relationship between the government and the governed, the narrow

passage of compromise among liberal-welfarists, contractarian constitutionalists, strict

constructivists, realists, conventionalists, and minimalists alike, had largely been the need

for formalized set of restrictions on those officials who wield political power –

restrictions that must be founded on the rule of law.5 This ordering of a society and its

governmental powers through the dictates of law, and limiting those powers – the

conceptual basis of which lies in classical Western political thought – is what some

scholars have described as “old constitutionalism” or “generic constitutionalism.”6

Notwithstanding the fact that constitutionalism continues to imply different things

to different writers in different political contexts, certain notions have become its

4 For a broad array of divergent perspectives on the evolution of political theories and their impact on discourses on constitutionalism, democracy, and governance through the ages, see GEORGE CHARLES ROCHE III, LEGACY OF FREEDOM (1973); JUDITH A. SWANSON, THE PUBLIC AND THE PRIVATE IN ARISTOTLE’S POLITICAL PHILOSOPHY 95-131 (1992); SCOTT GORDON, CONTROLLING THE STATE: CONSTITUTIONALISM FROM ANCIENT ATHENS TO TODAY (1999) [hereinafter CONTROLLING THE STATE]; Williamson M. Evers, Social Contract: A Critique, 1(3) J. LIBERT. STUD. 185-194 (1977); David B. Suits, On Locke’s Argument for Government, 1(3) J. LIBERT. STUD. 195-203 (1977); Randy E. Barnett, Towards a Theory of Legal Naturalism, 2(2) J. LIBERT. STUD. 97 (1978); Suri Ratnapala, Eighteenth Century Evolutionary Thought and its Relevance in the Age of Legislation, 12(1) CONST. POL. ECON. 51-75 (2001); Geoffrey M. Hodgson, The Evolution of Institutions: An Agenda for Future Theoretical Research, 13(2) CONST. POL. ECON. 111-127 (2002); Adam Gifford, The Evolution of Social Contract, 13(4) CONST. POL. ECON. 361-379 (2002); Ariel L. Bendor, On Aristotelian Equality, the Fundamental Right to Equality, and Governmental Discretion, 8 REV. CONST. STUD. 1-19 (2003).

5 See HARDIN, supra note 2, at 80-81, 84; Noel B. Reynolds, The Ethical Foundations of Constitutional Order: A Conventionalist Perspective, 4(1) CONST. POL. ECON. 79-95 (1993).

6 See Stephen L. Elkin, Constitutionalism: Old and New, in A NEW CONSTITUTIONALISM: DESIGNING POLITICAL INSTITUTIONS FOR A GOOD SOCIETY 20-37 (Stephen L. Elkin et al, eds., 1993) [hereinafter A NEW CONSTITUTIONALISM]; Karol Edward Soltan, Generic Constitutionalism, in A NEW CONSTITUTIONALISM, 70-93.

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invariable parameters.7 In today’s legal parlance, constitutionalism implies governance

according to the rule of law, an important universal norm that negates arbitrary rule.8

Closely linked to this neo-liberal conception is the existence of a written constitution that

stipulates separation of governmental powers; checks and balances; judicial review;

accountable governance; and, of course, a bill of human rights.9

With the collapse of communism following the dramatic socio-economic and

political events of 1989, the ground had been laid for radical global policy reforms that

would assert the earlier day values of liberalism, free market economy and human rights

as opposed to the collectivist ideology of the defunct Eastern bloc.10 What became

obvious, however, in the process of supplanting the old ideological divide was the

realization of the inadequacy of merely ousting the old communist order as a guarantee

for sustainable reforms. The consensual path was the gradual ascendancy of a global

7 There has been a remarkable level of discussions among scholars about the elements of constitutionalism. While some contend that it requires a set of codified norms in written form, others have argued that the unwritten constitutional model of the United Kingdom dispenses with the necessity of a written constitution. Various reasons are usually canvassed by constitutionalists on these arguments. See e.g. Jed Rubenfeld, Legitimacy and Interpretation, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 214, 216 (Larry Alexander ed., 1998) (proposing that it is the rules of a text that a government “lays down and lives up to” that confers on it legitimate authority). Cf. Wil Waluchow, Constitutionalism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., 2004), athttp://plato.stanford.edu/entries/constitutionalism/ (last visited Jan. 14, 2011) (contending that “long standing social rules and conventions” can become “clear and precise, as well as more rigid and entrenched than written ones”). For other opinions, see R.W. CARSTEN, THE MEDIEVAL ANTECEDENTS OF CONSTITUTIONALISM 3-48 (1992); JANOS KIS, CONSTITUTIONAL DEMOCRACY 112, 119, 131 (2003).

8 Louis Henkin, Elements of Constitutionalism, 60 REV. INT’L COMM’N JUR. 11, 12 (1998).9 Id., at 12-15. See also Ernst-Ulrich Petersmann, Human Rights and International Economic Law

in the 21st Century: The Need to Clarify Their Interrelationships, 4(1) J. INT’L ECON. L. 3, 11-16 (2001) (demonstrating through historical analysis that from the Greek Republics to the guarantees of modern treaties, “the progressive and continuing evolution of constitutionalism has focused on the following eight core principles”, namely, “rule of law”; “limitation of governmental powers by checks and balances”; “democratic self-government”; “national constitutionalism”; “human rights”; “international constitutionalism”; “social justice”; and “cosmopolitan constitutional law.” But see MICHEL VILLEY, LE DROIT ET LES DROITS DE L'HOMME [RIGHT AND THE RIGHTS OF MAN] (1983) (challenging the philosophical justification for constitutionalizing human rights).

10 See Katharina Pistor, The Demand for Constitutional Law, 13(1) CONST. POL. ECON. 73, 81-84 (2002).

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culture of human rights and the rule of law, enhanced through the instrumentality of

constitutionalism.11

In the post-Cold War era, the ideals of democracy, rule of law and a culture of

human rights, rooted in constitutionalism, have become entrenched in the consciousness

of states.12 In the light of those tremendous changes that marked the end of the Cold War,

Fukuyama had exclaimed:

As mankind approaches the end of the millennium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of potentially universal validity: liberal democracy, the doctrine of individual freedom and popular sovereignty. Two hundred years after they first animated the French and American revolutions, the principles of liberty and equality have proven not just durable but resurgent.13

An enduring normative idea since the age of the earlier liberal thinkers has been

the overarching imperative of human rights protection and promotion through

constitutional provisions. Some scholars have argued that since individuals are

11 See, id., at 77-80.12 See generally Diamond Larry, Is the Third Wave Over?, 7(3) J. DEM. 20-37 (1996) (showing

that as at 1996, there were over one hundred democracies in the world, and that all but three of them – Great Britain, Israel and New Zealand – had no written constitutions even though he acknowledges their being “democratic”). While Great Britain is readily cited as a “democracy without constitutionalism”, one should be mindful of the great impact that the European regional human rights system has continued to have on its human rights profile. Sight must also not be lost of instances where nations without written constitutions have adopted distinct Bills of Rights through statutes. Glowing examples of this are the Human Rights Act, 1998 of the United Kingdom as well as the New Zealand Bill of Rights, 1990. See Shadrack B. O. Gutto, Current Concepts, Core Principles, Dimensions, Processes and Institutions of Democracy and the Inter-Relationship Between Democracy and Modern Human Rights, Seminar on the Interdependence Between Democracy and Human Rights, Geneva, Nov. 25-26, 2002, 7, available at http://www.unchr.ch.

13 Francis Fukuyama, The End of History?, THE NAT’L. INT., No. 16 (Summer 1989), at p. 3; Francis Fukuyama, Second Thoughts: The Last Man in a Bottle, THE NAT’L. INT., No. 56 (Summer 1999), at p. 16. The world-wide spread of constitutional democracy since the 1990s would seem relentless. From Latin America, across Africa, and to South East Asia, military and one-party dictatorships are being replaced almost everywhere by elected civilian regimes. Although the indices might depict the triumph of constitutional democracy, communist rule remains in modified form in Romania, Serbia (former Yugoslavia) and in some parts of the former Soviet Union. Its “purer” form endures in China, Cuba, Laos, North Korea, and Vietnam. For an insight into what has been described as the “challenge from within” to post-Communist triumph of constitutional democracy, see Alberto Calsamiglia, Constitutionalism and Democracy, in DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS 136-142 (Harold Hongju Koh et al, eds., 1999) [hereinafter DELIBERATIVE DEMOCRACY].

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themselves prone to abusing the liberties of others just as those who govern can abuse

their powers, human rights constitute the best safeguards for the defense of individual

liberties against tyranny.14 The desirability of including human rights provisions within

the body of a national constitution or as an appendage to it is an idea that has found

robust validation in ample scholarship. There is a contention that the inclusion of a bill of

rights in a constitution translates such rights into a device for “legitimacy…and political

stability” in pluralistic societies.15 Gavison also argues that “[t]he high visibility and

solemn nature of most constitutions help in making the commitment to human rights a

part of civil religion and civil-shared culture.”16 While critics of the constitutionalization

of human rights contend that the inclusion of a bill of rights is neither necessary nor

adequate to secure human rights protection,17 there is no denying the fact that the mere

existence of such explicit provisions are potent in building, institutionalizing, and

sustaining the processes that would ensure their promotion and protection as they gain

more popular and informed cognition.18

14 See Petersmann, supra note 9, at 10. See also Peter C. Ordeshook, Are ‘Western’ Constitutions Relevant to Anything Other than the Countries they Serve?, 13(1) CONST. POL. ECON. 3, 8-11 (2002) (contending that beyond being “universal necessity for coordination”, constitutions serve the purposes of balancing “countless alternative equilibra” in all societies).

15 Ordeshook, id., at 17.16 Ruth Gavison, What Belongs in a Constitution?, 13(1) CONST. POL. ECON. 89, 96 (2002)

(emphasis in the original).17 See e.g., Hanna Pitkin, Obligation and Consent – I, 59(4) AM. POL. SCI. REV. 990-991 (1965)

(dismissing constitutional rights as being mere “essays in advocacy” since they end up addressing political problems that might have become obscure with time); Thomas, M. Scanlon, Human Rights as a Neutral Concern, in HUMAN RIGHTS AND U.S. FOREIGN POLICY 83-92 (Peter G. Brown et al, eds., 1979) (contending that constitutional rights are not “fully available to articulation” and that “it is extremely difficult…to give a coherent statement of any of our familiar rights”, at 84).

18 See Gavison, supra note 16, id. See also Elaine Scarry, On Philosophy and Human Rights, in DELIBERATIVE DEMOCRACY, supra note 13, 71, 75-76 (demonstrating that the strength of the argument of the opponents of constitutionalization of human rights never lies in the “justness” or “unjustness” of their inclusion, but in the fear that “their inclusion will make the new country culturally indebted to the west or to the north”).

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As De Waal, Currie and Erasmus have argued, beyond strengthening the rule of

law, democratic accountability, separation of powers as well as checks and balances – all

fundamental principles of a constitutional order –

Bill of Rights overrides ordinary law and conduct inconsistent with it. In addition, subject to considerations of justiciability and constitutional jurisdiction, the Bill of Rights generates its own set of remedies…At the same time [it] contains a set of values that must be respected whenever ordinary law is interpreted, developed or applied. This form of application, which aims at creating harmony between the Bill of Rights and ordinary law, is termed the indirect application of the Bill of Rights.19

The 1787 Constitution of the US (together with the subsequent Bill of Rights,

1791)20 has been credited with the pride of being the first written constitution to have an

entrenched bill of rights.21 Today, numerous states across the world have written

constitutions with entrenched bills of rights, all African states inclusive except

Swaziland.

By virtue of its long history of juridical engagement with the interpretive

dynamics of a written constitution and constitutionalized rights, therefore, the influence

of the US judicial system understandably looms large, not the least in the common law

world. Whatever criticisms there may be against the stance of US courts in certain

19 JOHAN DE WAAL, IAIN CURRIE & GERHARD ERASMUS, THE BILL OF RIGHTS HANDBOOK 27 (4th ed. 2001) [hereinafter DE WAAL ET AL].

20 Constitution of the United States of America and Bill of Rights, reprinted in CONSTITUTIONS OF MODERN STATES: SELECTED TEXTS AND COMMENTARY 207-217 (Leslie Wolf-Phillips, 1968) [hereinafter CONSTITUTIONS OF MODERN STATES].

21 See BLAUSTEIN, supra note 3 at 4; Nadine Strossen, United States Ratification of the International Bill of Rights: A Fitting Celebration of the Bicentennial of the U.S. Bill of Rights , 24 U. TOL. L. REV. 203 (1992). See also Agust Thor Arnason, Constitutionalism: Popular Legitimacy of the State?, in THE WELFARE STATE AND CONSTITUTIONALISM IN THE NORDIC COUNTRIES 29, 44-45 (Martin Scheinin, ed., 2001) [THE WELFARE STATE AND CONSTITUTIONALISM] (asserting that “modern constitutionalism is…the child and the cradle of the independence struggle of the United States”). In his letter to President James Madison, urging the incorporation of a bill of rights in the U.S. Constitution, Thomas Jefferson had written, inter alia: “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference….” See Thomas Jefferson’s Letter to James Madison, Dec. 20, 1787, quoted in TIMOTHY A. AGUDA, THE JUDICIARY IN THE GOVERNMENT OF NIGERIA 41 (1983).

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cases,22 there can be no gainsaying the fact that their tradition of radical constitutional

interpretation impels intellectual scrutiny in a discourse of this nature.

III. CONSTITUTIONAL INTERPRETATION: COMPARATIVE TRADITIONS AND INFLUENCES

A constitution is central to a country’s legal system because it defines the principles on

which the system is based. It sets up the most important institutions of government, states

their principal powers and makes broad rules about how those powers are to be exercised.

In several countries, those principles and rules are written down in one documentary

piece and that document is called the constitution. Most modern democracies are thus

characterized by the existence of written constitutions which usually contain the profound

political and social values that determine the structures of governance and legal system.23

The presence of a written constitution has been described as naturally preferable as it

offers a realistic platform for the exercise of judicial review, and the assurance of

separation of powers, checks and balances, and the rule of law.24

It must be borne in mind from the onset that notwithstanding the codification of

the fundamental rules relating to powers, privileges, rights and liabilities in written

constitutions, their contents do not cease to create problems of interpretation for the

judiciary – the organ traditionally assigned the responsibility of constitutional and

judicial review in modern democracies.25 With the supremacy usually preserved by

22 For some robust critique of the US Supreme Court’s work in constitutional interpretation, see Alexander M. Bickel, The Supreme Court, 1960 Term – Forward the Passive Virtues, 75 HARV. L. REV. 40 (1961); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 134-135; 148 (1999); CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999); Gerard J. Clark, An Introduction to Constitutional Interpretation, Suffolk University Law School Faculty Publications, Paper 9, 2002, pp. 7-8.

23 Even though Israel, the United Kingdom, New Zealand and Swaziland do not have such single bodies of codified constitutions, they are nonetheless generally referred to as constitutional states..

24 Andrei Marmour, Constitutional Interpretation, University of Southern California Public Policy Research Paper No. 04-4 (2004), p. 2; JED RUBENFELD, REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW 145-150 (2005).

25 See Clark, An Introduction to Constitutional Interpretation, supra note 22, at 9.

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written constitutions over all other municipal laws; the futuristic and enduring values

entrenched; the rigid posture; their general, abstract, and yet far-reaching contents; and

the normativisation of high ethical values usually couched as bill of rights, all make

constitutional interpretation a distinctively problematic experience for judiciaries.26

While the legitimacy of the powers of judges and the courts to interpret the

Constitution has occupied the minds of many legal critics, it is the manner in which

judges and courts so interpret written constitutions that has generated more prolific

debate. Legal pundits have attempted value-neutral approaches to constitutional

interpretation, ranging from originalism, purposivism, objectivism, to liberal and strict

constructionism.27 To these have been added diverse other labels like grammatical or

literal interpretation, systematic or contextual interpretation, teleological interpretation,

historical interpretation, comparative interpretation, and many others.28 Much scholarly

effort has been devoted to these abstractions and it serves no purpose to revisit them

here.29 Suffice to say, however, that plausible as these approaches and labels might

appear, there remains the challenge of debunking the neutrality of those theories, of

exposing misleading criticisms, and of articulating effective and accessible methods of

interpretation to give full meaning to the guarantees contained in Constitutions.

26 Marmour, supra note 24, at 4.27 For various theories of constitutional interpretation identified in Anglo-American tradition, see

Lourens du Plessis, “Constitutional Interpretation”, at http://www.chr.up.ac.za/closa/chapters/CLoSA%20Ch%203%20Outline.pdf (last visited Jan. 14, 2011).

28 See Tom O’Connor, “The Jurisprudence of Constitutional Interpretation”, at http://faculty.ncwc.edu/TOConnor/410/410lect02.htm (last updated 10 March 2007).

29 For some readings on the subject of constitutional interpretation across diverse jurisdictions, see LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION (1991); Jeffrey Goldsworthy, Originalism in Constitutional Interpretation, 25 FED. L. REV. 1 (1997); Jeremy Kirk, Constitutional Interpretation and a Theory of Evolutionary Originalism, 27 FED. L. REV. 323 (1999); David Tucker, Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia, 21(4) SYDNEY L. REV. 567-596 (1999); KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 1-14 (1999); PETER HOGG, CONSTITUTIONAL LAW OF CANADA (2005).

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While there exist diverse quasi-judicial, non-judicial and inquisitorial bodies

within various national configurations that may implicate constitutional interpretation,30 it

is the role of the judiciary (or court system) that is of critical importance. The evaluation

of the role of the judiciary here should not be construed as a “tendency to judicialize

politics and politicize the judiciary.”31 Although it would be erroneous to confine the

subject of constitutional interpretation to the realm of “judicialism”,32 the very essence of

adjudication basically imports the concept of judicial review through which the ordinary

law courts exercise their supervisory functions in law ordered societies.33

A legal concept of great antiquity, judicial review has drawn the attention of

numerous exponents as well as critics. It has been the subject of vibrant debates within

divergent domestic jurisdictions and has been the focus of many scholarly treatises.34 The

historical origins, broader contexts and other fine details of this concept have been

adequately covered in a considerable number of works,35 and need not detain us here.

30 See Mark Tushnet, Constitutional Interpretation Outside the Courts, 37(3) J. INTERDISC. HIST. 415-422 (2007). See also Walter Murphy, Constitutional Interpretation as Constitutional Creation: The 1999-2000 Harry Eckstein Lecture, Centre for the Study of Democracy, University of California, 2000, p. 3 (listing “legislators”, “executive officials”, “police officers”, and “individual voters” as categories of interpreters of constitutions).

31 Peter Russell, The Political Purposes of the Canadian Charter of Rights and Freedoms, 61 CAN. B. REV. 30, 51-52 (1983).

32 See Jackbeth K. Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights, 6(4) INT’L J. HUM. RTS. 29, 36-37 (2002).

33 See Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J. 502 (2006); Bilder, Mary Sarah, Why We Have Judicial Review, 116 YALE L. J. POCKET Part 215 (2007), available at http://ssrn.com/abstract=981241. For a historical account of the development of the concept of judicial review from ancient Athenian times to the present time, see ARNE MAVCIC, THE CONSTITUTIONAL REVIEW 18-22 (2001).

34 It has been empirically demonstrated that the concept of judicial review is now known and recognized in every state of the modern world that has a court/judicial system. See generally CHARLES PLATTO, TRIAL AND COURT PROCEDURES WORLDWIDE (1990) (analyzing, through the contributions of diverse authors, some constitutive elements of judicial review – trial and court procedures – in Australia, Hong Kong, India, Japan, South Korea, New Zealand, Singapore, Austria, Belgium, U.K., France, Italy, the Netherlands, Portugal, Spain, Sweden, Switzerland, Argentina, Brazil, Chile, Ecuador, Uruguay, Canada, Puerto Rico and the US).

35 See e.g., O. HOOD PHILLIPS, CONSTITUTIONAL AND ADMINISTRATIVE LAW (Sweet & Maxwell, 4th ed. 1967) (describing the classical origins and connotations of the concept in English Law); LORD WOOLF ET AL, DE SMITH, WOOLF AND JOWELL’S PRINCIPLES OF JUDICIAL REVIEW (1999) [hereinafter WOOLF ET AL]; MAURO CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD 45-68 (analyzing

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The philosophical and conceptual basis for judicial review lies in the notion that

the regular courts possess the inherent power to strike down a law, to overturn an

executive act, or order a public official to act in a certain manner if they consider such

law or act to be unconstitutional or to be contrary to law in a free and democratic

society.36 While judicial review has indeed been such a time-honored concept, its impact

has been felt more in the sphere of administrative law than in the field of human rights

until relatively recent.37 Today, in various nations and across many jurisdictions of the

world, judicial review is increasingly emerging as a cornerstone of human rights

promotion and protection and has added considerable impetus to human rights

discourses.38

Justifying the inevitable intercourse between human rights and judicial review,

Hutchinson and Monahan assert that:

the centralized and decentralized forms of judicial review in modern times from the French, Italian, former Soviet, U.S., English, and Austrian perspectives); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980) (giving insight into the U.S. perspective on judicial review as postulated by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). For a critical study of the Canadian perspective, see PATRICK MONAHAN, POLITICS AND THE CONSTITUTION: THE CHARTER, FEDERALISM AND THE SUPREME COURT OF CANADA (1987). See generally TASLIM O. ELIAS, JUDICIAL PROCESS IN THE NEWER COMMONWEALTH 179-193 (1990) (discussing the concept of judicial review in the context of the Commonwealth and highlighting its rationale in the doctrines of Separation of Powers, Rule of Law and Administrative Justice). See also LEE BRIDGES, JUDICIAL REVIEW IN PERSPECTIVE (2d ed., Cavendish Publishing, 1995). For an analysis of the Israeli dimension, see Melville B. Nimmer, The Uses of Judicial Review in Israel’s Quest for a Constitution, 70 COLUM. L. REV. 1217 (1970).

36 See WOOLF ET AL, id., at 3-4. See also DAVID ROBERTSON, A DICTIONARY OF HUMAN RIGHTS 125-126 (1997); Marmour, Constitutional Interpretation, supra note 24, at 11.

37 See generally WOOLF ET AL, supra note 35, at 183-194 (describing the effect of the absence of a codified human rights system in the U.K. and stressing that even before the advent of the Human Rights Act of 1998, judicial review related to human rights had been carried out under ordinary common law rules). See also ANDRAS SAJO, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTIONALISM 205-218 (1999) (connecting the evolution of judicial review processes in U.S., French, British and German constitutionalism and the restraints on state power from interfering with the rights of citizens).

38 See e.g., MARGARET DEMERIEUX, FUNDAMENTAL RIGHTS IN COMMONWEALTH CARIBBEAN CONSTITUTIONS 485-499 (1992) (discussing the impact of judicial review in the process of fundamental human rights protection in the Caribbean states); ROBERT J. SHARPE ET AL, THE CHARTER OF RIGHTS AND FREEDOMS 18-29 (1998) (analyzing the impact of judicial review in the process of fundamental human rights protection in Canada); Richard Clayton & Vikram Sachdeva, The Role of Judicial Review in Curing Breaches of Article 6, (2003) JUD. REV. 90-96 (examining the possible impact of judicial review on fair trial rights within European jurisdictions).

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A sensitivity for individual rights might be seen as particularly appropriate and necessary in contemporary society. Individual life is dominated and permeated by large and complex bureaucracies, principally the state and the business corporation. The challenge to individual rights is no longer the lynch mob crying for blood, but the coolly rational bureaucrat, armed with spread sheets and cost-benefit studies. Regard for the Rule of Law…[will] ensure that “social managers” will not trample individuals in the march toward so-called organizational progress.39

In increasing measures, scholars and jurists across legal orientations and

ideological boundaries have continued to identify judicial review – within the context of

the interpretation of constitutionalized human rights – as a necessary tool for democratic

balance and social justice in the modern society.40

Admittedly, in terms of practical experience and scholarship in constitutional

interpretation, the US judiciary represents one of the most remarkable systems with over

two centuries of ever-evolving constitutional dynamics. And no doubt, the arrowhead of

this tradition has been the US Supreme Court. Even though the US Constitution contains

39 ALLAN C. HUTCHINSON ET AL, THE RULE OF LAW: IDEAL OR IDEOLOGY 97 (1987) [hereinafter IDEAL OR IDEOLOGY]. See also FRIEDRICH HAYEK, THE ROAD TO SERFDOM 115 (1946) (emphasis added). See also RONALD DWORKIN, A MATTER OF PRINCIPLE 71 (Reprint ed., Harvard Univ. Press, 1986) (1985) (asserting that judicial review assures that “the deepest, most fundamental conflicts between individual [rights] and society [interests] will once, someplace, finally, become questions of justice”). See also DEMERIEUX, id., at 486 (contending that contrary to “the postulate that in a democratic or majoritarian political set up, judges who are unelected and unaccountable to the citizenry should not have carte blanche to negative policy decisions of the representatives of the majority…the existence of a Bill of Rights imports the existence of judicial review”).

40 See e.g., CAPPELLETTI, supra note 35, at 27 (asserting that “this fundamentally important world-wide movement was effectively begun by the American Constitution of 1789 and its courageous interpretation by the Supreme Court [starting with Marbury v. Madison]”; THE RULE OF LAW: IDEAL OR IDEOLOGY, id., at 110 (contemplating that “By forcing the political process to confront the question of individual rights, public morality will become more reflective and self-critical”); Ernest J. Weinrib, The Intelligibility of the Rule of Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY, id., at 59; Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, PUB. L. 466, 470-473 (1997) (contending that judicial review, as an extrapolation from the principle of Rule of Law, is a notion grounded in legal positivism); David Dyzenhaus, Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?, in JUDICIAL REVIEW AND THE CONSTITUTION 141 (Christopher Forsyth, ed., 2000) (arguing that the substance of the Diceyan principle against arbitrariness engenders “judicial supremacism” for its efficacy); MARK ELLIOTT, THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW 197, 233 (2001) (discussing judicial review in the context of a rights-based approach to good governance in the United Kingdom). For yet another view on the remedial dimension of the importance of judicial review in matters of individual’s rights, see Paul Craig, Ultra Vires and the Foundations of Judicial Review, 57 CAMBRIDGE L. J. 63, 78-79 (1998).

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no explicit provision on the function of judicial or constitutional review,41 the US

Supreme Court has, since the decision in Marbury v. Madison,42 positioned itself as the

undisputed final arbiter in matters involving the interpretation of the US Constitution,43

and in maintaining it as “a living Constitution.”44

Little wonder that Alexis de Tocqueville asserted that “the representative system

of government has been adopted in several states of Europe, but I am unaware that any

41 Art. III of the US Constitution simply provides: Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. 42 5 U.S. (1 Cranch) 137 (1803).43 See Clark, An Introduction to Constitutional Interpretation, supra note 22, at 1; The United

States Supreme Court, “The Court and Constitutional Interpretation”, at http://www.supremecourtus.gov/about/constitutional.pdf (last visited Jan. 14, 2011). See also Marshall L. DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control 104 (1996) (describing the US Supreme Court as “the loose cannon on the deck of American federalism”).

44 See Antonin Scalia, Constitutional Interpretation the Old Fashioned Way, Paper presented at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005, available at http://www.cfif.org/htdocs/legal_issues/legal_updates/us_supreme_court/scalia-constitutional-speech.htm (last visited Jan. 14, 2011).. The United States Supreme Court, “The Court and Constitutional Interpretation”, id.

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nation of the globe has hitherto organized a judicial power in the same manner as the

Americans…A more imposing judicial power was never constituted by any people.”45

It must be mentioned that there is hardly any other aspect of US constitutional law

where the above view finds credence than in the interpretation of the provisions of the US

Bill of Rights. Notwithstanding the protracted controversy that continues to surround

many of the proactive decisions of the US Supreme Court,46 the court has, in a long line

of landmark cases demonstrated its capacity to remain proactive where laws clash with

aspirations of liberty, or where governmental action would result in hardship, injustice or

arbitrariness.47

Rather than cataloguing the prolific achievements of the US Supreme Court in

general terms, however, what is immediately relevant to the present essay is the influence

it has wrought in other jurisdictions of the world in a specific and narrow aspect of

constitutional interpretation: the notion of unenumerated rights.

45 Quoted in The United States Supreme Court, “The Court and Constitutional Interpretation”, id. 46 See, e.g., JESSE H. CHOPPER ET AL, CONSTITUTIONAL LAW: CASES, COMMENTS, QUESTIONS

394- 447 (9th ed. 2001) (analyzing some of the trenchant criticisms against decisions like Roe v. Wade, and numerous others connected to the “right to privacy”).

47 For various scholarly efforts analyzing the work of the US Supreme Court in these fields, see WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); WALTER F. MURPHY ET AL, AMERICAN CONSTITUTIONAL INTERPRETATION (3rd ed., 2003); GORDON SILVERSTEIN, IMBALANCE OF POWERS: CONSTITUTIONAL INTERPRETATION AND THE MAKING OF AMERICAN FOREIGN POLICY (2006); Walter F. Pratt, A New Vocabulary for a New Constitutional Law: United States v. Carolene Products , in LEADING CASES OF THE TWENTIETH CENTURY 125 (Eoin O’Dell ed., 2000). See also Clark, An Introduction to Constitutional Interpretation, supra note 22, at 7-8. Some of the cases where the U.S. judiciary has made ‘positive’ mark as an ‘activist’ institution on social policy include United States v. Carolene Products, 304 U.S. 144 (1938); Brown v. Board of Education, 347 U.S. 483 (1954); NAACP v. Alabama, 357 U.S. 888 (1958); NAACP v. Button, 371 U.S. (1963); Miranda v. Arizona, 384 U.S. 436 (1966) (on procedural safeguards in criminal matters); Goldberg v. Kelly, 397 U.S. 254 (1970); San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); United States v. SCRAP, 412 U.S. 669 (1973); and Milliken v. Bradley II, 433 U.S. 267 (1977). For scholarly discussions on the notable activist periods of the U.S. Supreme Court, see KENNETH M. HOLLAND, JUDICIAL ACTIVISM IN COMPARATIVE PERSPECTIVE 20-28 (1991). See also STEVEN D. SMITH, THE CONSTITUTION AND THE PRIDE OF REASON (1998); AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); THOMAS B. MCAFFEE, INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY (2000); Jesse H. Chopper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 MICH. L. REV. 1 (1984); Clark, An Introduction to Constitutional Interpretation, supra note 22, at 11-13.

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IV. UNENUMERATED RIGHTS: A SURVEY OF JURISPRUDENCE AND SCHOLARSHIP

In written constitutions generally, the corpus of human rights for which an individual

may seek judicial interpretation, protection and enforcement are usually couched in

ascertainable form.48 From a commonsensical perspective, therefore, whatever is not

explicitly contained in a written constitution should not belong in or be read into it. This

has been the viewpoint of judges and scholars of the positivism school of thought in

various ages and climes. Placed within the framework of constitutional rights, any right

not expressly conferred by a constitution cannot and should not warrant enforcement. In

Barnett’s analysis of this viewpoint, “judges should only do what they are qualified to do

and that is enforce ‘the rule laid down’ [since] they have no particular expertise to

identify fundamental rights the content of which is not provided to them by an

authoritative source.”49

The foregoing represents the point of sharp divergence among originalists and

non-originalists. To originalists, a constitution’s meaning must be that as understood by

the public at the time of its making and that if the meaning is not so fixed, the law,

government, individual rights will be unpredictable, arbitrary and rendered susceptible to

the subjective views of the courts. Conversely, non-originalists contend that a

constitution’s meaning must manifest changing societal values and demands, and that if

48 See generally Marmour, supra note 24, at 24; James A Thomson, An Australian Bill of Rights: Glorious Promises, Concealed Dangers, 19(4) MELB. U. L. REV. 1020 (1994); Timothy H. Jones, Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?, 22(1) FED. L. REV. 57 (1994).

49 Randy E. Barnett, “Who’s Afraid of Unenumerated Rights?”, Working Paper Series, Public Law & Legal Theory Working Paper No. 06-02, 2002, p. 13 [hereinafter Barnett, Who’s Afraid?]. See also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 264 (1991) (contending that legal reasoning must “begin with a body of rules or principles or major premises that are independent of the judge’s preferences”).

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its meaning does not so evolve, society will be subjected to archaic values that cannot

respond to current social challenges.50

Since the discussion of constitutional interpretation in this essay is located within

the context of unenumerated human rights, an effort is made at this juncture to examine

how different judiciaries have responded to this notion.

A. United States

As already mentioned, because of the paucity of the provisions of the US

Constitution, and of course, its Bill of Rights, the necessity had arisen over the ages for

the courts, nay the US Supreme Court, to interpret the constitution in ways that would

make it respond to radical changes in social values and dynamics.

Over the course of the last two hundred years, the fount of this judicial

engagement has been the provisions of the Ninth and Tenth Amendments of the US

Constitution. It will be worthwhile to reproduce them at this juncture.

The Ninth Amendment provides:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Tenth Amendment in turn provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

To these is naturally added the Privileges and Immunities Clause of the

Fourteenth Amendment, namely,

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….50 See Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three

Objections and Responses, NORTHWESTERN U. L. REV. 251-253 (1988); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Randy E. Barnett, An Originalism for Non-Originalists, 45(4) LOYOLA L. REV. 620, 633-649 (1999).

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While there had been early skepticism and confusion about the notion of

unenumerated rights in US constitutionalism,51 it was the embrace of Blackstone’s

interpretation of sovereignty as well as the Austinian idea of positivism leading American

statesmen and commentators that had fuelled the suppression and antagonism to

elaborating the corpus of unenumerated rights.52 Wendell Phillips had located this

positivist antagonism to unenumerated rights on the premises of majoritarian sovereignty.

In his words:

There can be no more self-evident proposition, than that, in every Government, the majority must rule, and their will be uniformly obeyed. Now, if the majority enact a wicked law, and the Judge refuses to enforce it, which is to yield, the Judge or the majority? Of course, the first. On any other supposition, Government is impossible.53

St. George Tucker, an eminent Virginian scholar and jurist, had sought to validate

the linkage between unenumerated governmental powers and unenumerated rights in

those provisions as follows:

All powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that every power which concerns the right of the citizen must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution.54

51 See generally BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA app. 1, at 307-308 (St. George Tucker ed., Augustus M. Kelley, 1969) (1803) [hereinafter TUCKER, BLACKSTONE’S COMMENTARIES]; Barnett, Who’s Afraid?, supra note 49, at 2-3; Thomas McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion, BYU L. REV. 351 (1996).

52 Barnett, id., at 9-11. But see JOHN TAYLOR, CONSTRUCTION CONSTRUED, AND CONSTITUTIONS VINDICATED 25 (1820) (condemning the notion of “sovereignty” as an unknown “word [that has] crept into [US] political dialect”].

53 WENDELL PHILLIPS, REVIEW OF LYSANDER SPOONER’S ESSAY ON THE UNCONSTITUTIONALITY OF SLAVERY 10 (1847) (reprint edition 1969).

54 TUCKER, BLACKSTONE’S COMMENTARIES, supra note 51, id.

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Compounding the hazy profile of unenumerated rights was the judicial

ambivalence and uncertainty of US judges of that era. This scenario played out in Calder

v. Bull,55 where Justice Chase had affirmed the possibility of invalidating laws and

powers that violate rights not enumerated in the US Bill of Rights.56 Even though Justice

Iredell had concurred with Chase in that decision, he had, a decade earlier, been a

committed protagonist of unenumerated rights. In defending the failure of the

Constitution of North Carolina to enumerate rights, Iredell had vehemently argued that:

It would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.57

In a number of judicial decisions, the US Supreme Court had alluded to the

substantive implications of the Ninth and Tenth Amendments, albeit without settling the

philosophical and conceptual questions arising from them.58 The uncertainty came to a

head in Griswold v. Connecticut,59 a celebrated decision on the right to privacy which is

not listed in the US Bill of Rights, where Justice Arthur Goldberg had lucidly established

the basis of unenumerated rights in the following words:

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those

55 3 U.S. 386 (1798).56 Id., 877-878.57 THE DEBATES IN THE SEVERAL STATE CONSTITUTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 167 (Jonathan Elliot ed., 2d. ed. 1836) (James Iredell, North Carolina Ratifying Convention, Tuesday, July 29, 1788), quoted in Barnett, Who’s Africa?, supra note 49, at 5.

58 See, for example, Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662 -63 (1875); Ashwander v. TVA, 297 U.S. 288, 300 - 11 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143 -44 (1939); United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947).

59 381 U.S. 479 (1965).

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fundamental rights specifically mentioned in the first eight constitutional amendments...To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment...Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.60

The Connecticut statute prohibiting the use of contraceptives was consequently

voided as an infringement of the right of marital privacy. The reasoning in Griswold has

found adumbration in a bevy of other cases where the right to privacy, not mentioned

anywhere in the US Constitution has been recognized and enforced.61

What, then, is the whole essence of ‘unenumerated rights’ in the provisions of the

topical Amendments to the US Constitution? Lund proffers a navigational aid in this

foggy terrain:

[T]he…Amendments together serve as an emphatic reminder that the Constitution was designed so as to protect a vast number of unenumerated rights from infringement by the federal government, namely all those rights that the federal government is not authorized to abridge in the exercise of its enumerated powers. Some of them may be natural rights, some are positive rights established by state law, and some are political rights exercised in the course of establishing state law.62

Contrary to the initial reluctance towards unenumerated rights, therefore, US

jurists are showing increasing interest in them, extending the scope of rights intrinsically 60 Id. at 488, 491, 492.61 See, e.g., Katz v. United States, 389 U.S. 347 (1967) (right to protection from unreasonable

searches and seizures); Loving v. Virginia, 388 U.S. 1 (1967) (right to marry); Roe v. Wade, 410 U.S. 113 (1973) (right of abortion); Lawrence v. Texas, 539 U.S. 558 (2003) (right to sexual privacy).

62 Nelson Lund, A Constitutional Right to Self Defense?, George Mason University Law and Economics Research Paper Series 06-29, p. 6.

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covered. Jon Roland, Founder and President of the Constitution Society, had in his

seminal essay posited that the body of unenumerated rights under US constitutionalism

covers thirteen categories of rights including right to “recordation of public acts and

disclosure of records”; to complete and accurate reports of revenues and expenditures;

and the right to travel.63 Others have strongly argued that these rights also cover self

defense and gun ownership.64 The US judiciary has also established the existence of a

right to welfare assistance for the indigent;65 offered succor to the illegitimate child;66 and

protection for the mentally ill.67

While the notion of unenumerated rights has received considerable attention in

the US, its philosophical and moral appeal has also engendered somewhat passionate

responses, for and against, in other jurisdictions. Although not usually discussed or

applied as direct adoption of the US notion of unenumerated rights, the idea manifests in

the course of interpreting the constitutions of diverse Anglophone states.68 While there

might be more than one reason for this scenario, it however appears that the following

statement of Canadian Supreme Court Justice Claire L’Heureux-Dubé captures the

picture in convincing light:

63 Jon Roland, “Presumption of Nonauthority and Unenumerated Rights”, at http://www.constitution.org/9ll/schol/pnur.htm#sdendnote4anc (last visited Jan. 14, 2011).

64 See Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 LAW & CONTEMP.

PROBS. 125, 128 (1986); Nicholas J. Johnson, Beyond The Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1, 64-70 (1992); Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1590-93 (2004).

65 Shapiro v. Thompson, 394 U.S. 618 (1969).66 Levy v. Louisiana, 391 U.S. 68 (1968).67 City of Cleburne v. Cleburne Living Centers, 473 U.S. 432 (1985). For a recent scholarly

compilation of topical cases arising from the corpus unenumerated rights in the US, see CHARLES O. PRINCE, PURPOSE OF THE NINTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES: PROTECTING UNENUMERATED RIGHTS (2005).

68 See generally Michael D. Kirby, International Law – The Impact on National Constitutions, Grotius Lecture, April 2005 (on file with author), pp. 8-14 (attempting to explain the historical context of constitutionalism and constitutional interpretation in English-speaking states).

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As the bonds of colonialism loosened, the prominence of American jurisprudence grew throughout the world. This is particularly true in the field of constitutionalism and human rights. The very concept of judicial review of legislation in accordance with guaranteed rights originated in the U.S. Supreme Court, in the classic case of Marbury v. Madison.69

The scenario of unenumerated rights therefore manifests in two ways: in countries

with constitutions “written in language which is brief, sometimes obscure and usually

ambiguous.”70 Australia and Canada, with their very old constitutions (1901 and 1867,

respectively), fall in this rank. The other mode is in countries with certain constitutional

guarantees that are essentially human rights provisions but which are excluded from

enforceability. India, Nigeria, and numerous African states of the neo-Nigerian

constitutional model belong in this category.71 It will be worthwhile to examine these

manifestations in some detail.

B. Australia

It is now beyond polemics that there exists a comparative linkage between the

Australian and US Constitutions, at least in terms of their interpretative dynamics.72 An

eminent Australian scholar, Craven, had actually argued that

The originalism debate in the United States has largely been fought over the interpretation of the Bill of Rights, with its broad, sweeping guarantees of fundamental human rights. It is in this highly emotive context, the stalking-ground of rights to abortion and to freedom from racial discrimination, that the performance of the Supreme Court has been vilified or defended according to the stance of commentators upon the question of original intent. The Australian Constitution does not include a

69 Claire L’Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L. J. 15, 18 (1998).

70 Michael Kirby, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship, 24 MELB. U. L. REV. 1-2 (2000).

71 I have explained the neo-Nigerian constitutional paradigm elsewhere. See ’Dejo Olowu, Human Rights and the Avoidance of Domestic Implementation: The Phenomenon of Non-Justiciable Constitutional Guarantees, 69(1) SASK. L. REV. 39, 57 and accompanying note 74.

72 Id. Another seminal work in this regard is Rebecca Lefler, A Comparison of Comparison: The Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, the Supreme Court of Canada, and the High Court of Australia, 11 S. CAL. INTERDISC. L.J. 165 (2001).

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bill of rights, and so the High Court has not been called upon to deploy its interpretative armory in so controversial a field.73

However, Craven’s contention would appear outdated. Even though Australian

Constitution does not have a Bill of Rights, the Australian judiciary, represented by the

High Court, has been actively engaged in rights-based constitutional interpretation work.

The anchor of the Australian High Court’s forays has been the robust application of the

principle of legality, a well-established concept in English common law. Lord Hoffman

explained the rationale and essence of the principle vis-à-vis the protection of

unenumerated rights this way:

The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.74

This principle has been adopted and applied with approval by Chief Justice

Gleeson of Australia;75 Chief Justice Elias of New Zealand;76 Justice Kirby;77 and Justice

Tipping.78 The principle has steadily evolved into the bedrock of constitutional

interpretation in Australia and New Zealand.79 73 Greg Craven, Original Intent and the Australian Constitution – Coming Soon to a Court Near

You ?, 1 PUB. L. REV. 166, 169 (1990).74 R v. Sec’y of State for Home Dep’t, Ex parte Simms (2002) 2 A.C. 115, 131.75 See MURRAY GLEESON, THE RULE OF LAW AND THE CONSTITUTION 2, 5 (The Boyler Lectures,

ABC Books, 2000); Al-Kateb v. Godwin (2004) 208 A.L.R. 124 at para. 19; Electrolux Home Products Pty Ltd. v. Australian Workers Union (2003) 209 A.L.R. 116 at para. 21, 23.

76 See R v. Pora [2001] 2 N.Z.L.R. 37, para. 53.77 See Daniels Corp’n v. ACCC [2002] 213 C.L.R. 543, 582.78 See R v. Pora [2001] 2 N.Z.L.R. 37 at para. 53.79 See Dan Meagher, Guided By Voices? - Constitutional Interpretation on the Gleeson Court, 7

DEAKIN L. REV. 261 (2002).

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In a country without a Bill of Rights, the principle of legality has become a tool of

establishing separation of powers, rule of law and the protection of human rights in

Australia. It has also helped in formulating ascertainable presumptions against any

exercise of governmental powers. Among some of the established presumptions based on

this principle are that it will never be the intention of the Parliament:

(a) to invade fundamental rights, freedoms and immunities;80

(b) to restrict access to the courts;81

(c) to exclude the right to claims of self-incrimination;82

(d) to deny procedural fairness to persons affected by the exercise of public

power;83

(e) to interfere with vested property rights,84 or to alienate property without

compensation;85 or

(f) to interfere with equality of religion.86

Following the growing acceptance of this principle, therefore, in Australian

Broad. Corp. v. Lenah Game Meats (Lenah Meats),87 for example, Justice Callinan stated

that he disagreed with the unanimous decision in Lange v. Australian Broad. Comm’n,88

and proceeded to confirm the existence of an implied constitutional freedom of political 80 See Potter v. Minahan (1908) 7 C.L.R. 277, 304; R v. Bolton; Ex parte Beane (1987) 162 C.L.R.

514, 523, 532; Bropho v. Western Australia (1990) 171 C.L.R. 1; Coco v. The Queen (1994) 179 C.L.R. 427, 437; Al-Kateb, supra note 75, at paras. 19, 150; Minister v. Al Masri (2003) 197 A.L.R. 241, paras. 82-85.

81 Magrath v. Goldsborough Mort & Co Ltd (1932) 47 C.L.R. 121, 134.82 Pyneboard Pty Ltd. v. Trade Practices Comm’n (1983) 152 C.L.R. 328; Rich v. ASIC (2004) 78

A.L.J.R. 1354.83 Comm’r of Police v. Tanos (1958) 98 C.L.R. 363, 395-396.84 Clissold v. Perry (1904) 1 C.L.R. 363, 373; Clunies Ross v. The C’wealth (1984) 155 C.L.R.

193, 199-200.85 C’wealth v. Haseldell Ltd. (1918) 25 C.L.R. 552, 563; Durham Holdings (2001) 205 C.L.R.

399, paras. 28-31.86 Canterbury Mun. Council v. Muslim Alawy Soc’y Ltd. (1985) 1 N.S.W.L.R. 525, 544 per

McHugh, JA.87 Lenah Meats (2002) 185 A.L.R. 1, 97.88 (1997) 189 C.L.R. 520.

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communication in Australia. It is noteworthy that the Australian High Court has already

extracted some other unenumerated rights from the separation of judicial power effected

by the Constitution of the Australian Commonwealth.89

C. Ireland

Even though the Republic of Ireland has a written constitution containing a bill of

rights, it could not avoid judicial engagement with the subject of unenumerated rights in

the course of interpretative activities. The Irish judiciary had introduced the notion of

unenumerated rights into Irish constitutional jurisprudence when the court was called

upon in 1965 to decide on a claim to the right to bodily integrity under Article 40(3)(1) of

the Irish Constitution, 1937 (Bunreacht na hÉireann), in the case of Ryan v. Att’y Gen.90

It will be apt to reproduce the critical content of the said Article 40.

Article 40 Personal Rights….(3.1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.(3.2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

Rather than define this novel right to bodily integrity, Justice Kenny proclaimed

that the origins of unenumerated rights were to be found in the “Christian and Democratic

nature of the [Irish] State.”91 Even though on appeal the Supreme Court had considered

Justice Kenny’s view as too narrow,92 the apex court had demonstrated in later cases that

89 For scholarly discussions on rights emanating from judicial interpretation of the separation of powers in the Australian Constitution, see George Winterton, The Separation of Judicial Power as an Implied Bill of Rights, in FUTURE DIRECTIONS IN AUSTRALIAN CONSTITUTIONAL LAW 185 (Geoffrey Lindell, ed., 1994); GEORGE WILLIAMS, HUMAN RIGHTS UNDER THE AUSTRALIAN CONSTITUTION, ch. 9 (1999).

90 (1965) I.R. 294.91 Id., at 311.92 Id., at 312.

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the “personal rights” of life, good name and property enumerated in the Irish Constitution

of 1937 were inexhaustive.93

Both Justice Kenny, who introduced the concept of unenumerated rights into Irish

constitutionalism as well as the Supreme Court that glossed over his natural law

justification for them have been subjected to robust criticism.94 Hogan decries the notion

of unenumerated rights as “practically tantamount to an open invitation to the judiciary to

become later day philosopher kings via the guise of Constitutional interpretation.”95

Nevertheless, more than four decades after its inception in Ireland, the sustained

application of the concept has vindicated Doolan’s submission that its discovery was

“one of the most innovative features of [Irish] Constitutional law.”96 Ample judicial

decisions and scholarly pronouncements lend credence to this assertion.

In Macauley v. Minister of Posts and Telegraph,97 the plaintiff had argued that the

fact that the fiat of the Attorney-General was necessary before proceedings could be

initiated by a citizen against a Minister, whereas a Minister could institute proceedings

against a citizen without obtaining such a fiat, constituted an impermissible inequality as

between a Minister and a citizen. The plaintiff failed in his equality argument but

93 See, for example, T.D. v. Minister for Education, Ireland & Ors [2001] 4 I. R. 259; D.P.P. v. MS and the Att’y Gen. [2003] I. R. 606, per Keane, C.J., at 619. For a scholarly assessment of the posture of the Irish Supreme Court on unenumerated rights in these cases, see Orlaith Molloy, Unenumerated Constitutional Rights: The Current Problematic Position, 3 GALWAY STUD. L. REV. 208, 219-220 (2007); Nicola Daly, Unenumerated Rights Reconsidered, 3 GALWAY STUD. L. REV. 224, 225 (2007).

94 See, e.g., Molloy, id., 211 (criticizing the Irish Supreme Court for its “heavy emphasis on Catholic teaching and Christianity in the High Court verdict”); Lesch Bodnik, Bringing Ireland Up To Par: Incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms, 26 FORDHAM INT’L L. J. 396, 425 (2002-2003) (criticizing the Supreme Court for the decision in McGee); Gerard N. Casey, Are there Unenumerated Rights in the Irish Constitution?, 23 IRISH L. TIMES 123 (2005) (criticizing the analogical reasoning drawn from US Constitution to the Irish Constitution as unwarranted since the latter is bereft of any provision to the effect of the US Ninth Amendment).

95 G.W. Hogan, Unenumerated Personal Rights: Ryan’s Case Re-Evaluated, 23 IRISH JURIST 95, 110. See also Michelle Daly, The Separation of Powers: A Means to An End or An End in Itself? , 3 GALWAY STUD. L. REV. 239, 241-243 (2007) (arguing that the tendency towards unenumerated rights was an anathema to separation of powers).

96 BRIAN DOOLAN, CONSTITUTIONAL LAW & CONSTITUTIONAL RIGHTS IN IRELAND 152 (1994).97 (1966) I.R. 345.

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succeeded on the basis that his unenumerated constitutional right of access to the courts

had been infringed.

Similarly, the Irish judiciary had in 1974 extended the scope of unenumerated

rights to cover the protection of the unborn child. In McGee v. Att’y General,98 Justice

Walsh had applied the unenumerated right of the unborn child to restrict another

unenumerated right – to marital privacy. In his words:

Any action on the part of either the husband and wife or of the state to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.99

Whether by statute or by policy, there is no longer any iota of doubt that the

unborn child is guaranteed full protection under the Irish Constitution. What more?

Beyond the Ryan decision, several rights as diverse as the right to communicate;100 and

the right to earn a living,101 have been located within the realm of “personal rights” under

Article 40(3) of the Irish Constitution.

It is also important to note that even though Irish Constitution does not recognize

socio-economic rights in justiciable form, the Directive Principles of Social Policy

contained in Article 45 of the Constitution have presented the courts with opportunity to

define the content and scope of unenumerated rights. In Murtagh Properties v. Cleary,102

the right to earn a living was premised on the content of Article 45.103 An Irish scholar

98 [1974] I.R. 284.99 Id., at 312.100 Att’y General v. Paperlink [1984] I. L. R. M. 373.101 Cafolla v. O’Malley [1985] I. R. 486.102 [1972] I. R. 330.103 Art. 45, IR. CONSTITUTION, provides: [Chapter XIII] Directive principles of social policyArticle 45 [Social Policy](0) The principles of social policy set forth in this article are intended for the general guidance of Parliament. The application of those principles in the making of laws shall be the care of Parliament exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.

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has strongly contended that Article 45 holds the ace in resolving the polarization among

those in favor or against unenumerated rights in Ireland.104

In the other manifestation of judicial recognition of unenumerated rights, written

constitutions do exist, with elaborate human rights provisions (bill of rights), albeit

tainted with a genre of provisions usually tagged ‘Directive Principles’, among which the

Indian version stands out in the developing world.105 And since these constitutional

provisions now variously known across Africa as Fundamental Objectives or Directive

(1) The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.(2) The State shall, in particular, direct its policy towards securing:(i) That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.(ii) That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to serve the common good.(iii) That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment.(iv) That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.(v) That there may be established on the land in economic security as many families as in the circumstances shall be practicable.(3.1) The State shall favor and, where necessary, supplement private initiative in industry and commerce.(3.2) The State shall endeavor to secure that private enterprise shall be so conducted as to ensure reasonable efficiency in the production and distribution of goods and as to protect the public against unjust exploitation.(4.1) The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.(4.2) The State shall endeavor to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.104 See Donal Small, Ryan v. AG, A Bottomless Pit of Rights? – A Proposal for Reform, 2 GALWAY

STUD. L. REV. 40, 48-50 (2003).105 Even though such provisions had been included in IR. CONST., 1937 (Directive Principles of

Social Policy, art. 45); MYAN. CONST., 1947 (Directive Principles of State Policy, arts. 32-44); INDONESIAN CONST., 1951; NEPAL CONST., 1962 (Directive Principles and Policies of the State, pt. IV, arts 24-26); and SRI LANKA CONST., 1972 (Directive Principles of State Policy and Fundamental Duties, ch. VI, arts. 27-29), it was the Indian Constitution of 1950 that provided the model for their first African transplant: the Nigerian Constitution of 1979. See generally Ahmed D. Yahaya, The Party System and the Nigerian Polity, in ISSUES IN THE NIGERIAN DRAFT CONSTITUTION 81(Suleiman Kumo et al, eds., 1977) [hereinafter KUMO ET AL] (showing that the Indian Constitution entirely appealed to Nigeria because “the spirit of the Constitution entrenched the notion of India’s dignity and desire to assert its independence”).

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Principles were not original to Africa, I must delve into their earliest frameworks for

proper understanding of the subject, in this instance, the Indian Constitution.

D. India

Part III of the Indian Constitution of 1950106 sets out “Fundamental Rights”

encompass the right to equality;107 the rights to freedom of speech, expression, assembly,

association, movement and choice of work;108 criminal procedural rights;109 the right to

life and personal liberty;110 the right against exploitation;111 the right to freedom of

religion;112 minority rights;113 and the right to constitutional remedies.114

In Part IV of the Constitution, there is a cluster of “Directive Principles of State

Policy” dealing with such issues as adequate means of livelihood; fair distribution of

material resources; equal pay for equal work; health and strength of all citizens; child

development;115 equal justice and free legal aid;116 functional village arrangement;117 right

to work, to education and to public assistance in certain cases;118 provision of just and

humane conditions of work and maternity relief;119 living wage and fair conditions of

work for workers;120 participation of workers in industrial management;121 uniform civil

106 INDIA CONST., adopted Nov. 26, 1949 (entered into force Jan. 26, 1950), amended by Constitution (Sixty-sixth) Amendment Act, 1990, June 7, 1990, reprinted in NANDI KHANNA, CONSTITUTIONAL LAW AND HISTORY OF GOVERNMENT OF INDIA ACT, 1935 AND THE CONSTITUTION OF INDIA 931-1130 (1992).

107 Arts. 14-18.108 Art. 19(a)-(g).109 Arts. 20 and 22.110 Art. 21.111 Arts. 23-24.112 Arts. 25-28.113 Arts. 29-30.114 Arts. 32-35.115 Art. 39.116 Art. 39A.117 Art. 40.118 Art. 41.119 Art. 42.120 Art. 43.121 Art. 43A.

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code for citizens;122 provision of free and compulsory education for children;123 promotion

of educational and economic interests of weaker sections of society;124 duty of the State to

raise the level of nutrition and the standard of living;125 organization of agriculture and

animal husbandry;126 environmental protection and improvement;127 protection of

monuments, places and objects of national importance;128 separation of judiciary from

executive;129 and the promotion of international peace and security.130

The summary of the provisions of Part IV can be found in Article 38 that says:

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life.(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 37 however expresses the non-justiciable status of those provisions as

follows: “The provisions contained in this Part shall not be enforceable by any court, but

the principles therein laid down are nevertheless fundamental in the governance of the

country and it shall be the duty of the State to apply these principles in making laws.”

The reduction of those provisions into non-justiciable claims had been the product

of the protracted political intrigues that beleaguered India during its transition period. As

constitutional historian Glanville Austin notes:

122 Art. 44.123 Art. 45.124 Art. 46.125 Art. 47.126 Art. 48.127 Art. 48A.128 Art. 49.129 Art. 50.130 Art. 51.

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Although the Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, it was the [Constituent] Assembly that separated them; the leaders of the Independence Movement had drawn no distinction between the positive and negative obligations of the State. Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself.131

Austin is not alone in the assertion that those provisions were originally meant to

be justiciable. As Indian human rights scholar Narively writes, “[t]he prevailing

sentiment in the [Indian national] Sub-Committee [on Fundamental Rights and to the

Constituent Assembly] was in favor of formulating all rights, including those that later on

became the directive principles of state policy, with legal enforceability.”132

Another scholar of the Indian Constitution had explained the essence of the

Directive Principles as follows:

The principal object in enacting the directive principles was to set standards of achievement before the legislature and the executive, the local and other authorities, by which their success or failure could be judged. It was also hoped that those failing to implement the directives might receive a rude awakening at the polls.133

Austin’s later statement lends unflinching credence to this assertion, and adds an

insight into the philosophical basis of those provisions:

The Directive Principles were a declaration of economic independence, a declaration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists.134

131 GLANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 52 (Oxford 1999).

132 VICTOR Z. NARIVELY, CONFLICT: RIGHT TO PROPERTY AND DIRECTIVE PRINCIPLES OF THE INDIAN CONSTITUTION 39 (1988).

133 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 759 (1967). See also NARIVELY, id., at 43-46 (demonstrating through vivid account of the views of various participants in the constitution drafting process that the constitutional provisions on directive principles were couched in flexible language to achieve “the goal of economic democracy”).

134 AUSTIN, supra note 131, at 61. The evolutionary processes of the Indian Constitution and the Directive Principles have been the subject of ample research and need not detain us any further. See e.g., PATTABHI SITARAMAYYA, THE HISTORY OF THE INDIAN NATIONAL CONGRESS 463 (1946); AUSTIN, supra

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The judicial interpretation of those directive principles at the earlier stages of the

Indian constitutional experience demonstrated how the ossified letters of legal documents

could assume vibrant content. While the Supreme Court of India had in 1951 held, inter

alia, that “the directive principles have to conform to and run subsidiary to the chapter on

fundamental rights”,135 in later years, particularly since the Indian emergency years

(1975-1977), Indian courts were to adopt a new, radical and proactive approach to the

interpretation of the scope and content of those directive principles.136

Today, Indian courts have established a veritable juridical pedestal in the

Directive Principles to address the plight of India’s underprivileged masses, to challenge

poverty and deprivation, and to question governmental acts that are capable of fettering

the very life, capabilities and aspirations of ordinary Indians.137

note 131, at 50-113; Leela Simon et al, Fundamental Rights: The Constitutional Context of Human Rights, in HUMAN RIGHTS IN INDIA 41-71 (Chiranjivi J. Nirmal, ed., 2000); Bertus de Villiers, Directive Principles of State Policy and Fundamental Rights: The Indian Experience, 8(1) S. AFR. J. HUM. RTS. 29 (1992); Maureen Callahan, Cultural Relativism and the Interpretation of Constitutional Texts, 30 WILLAMETTE L. REV. 609 (1994).

135 State of Madras v. Champakam Dorairajan (1951) S.C.R. 226, 525.136 See generally Sheetal B. Shah, Illuminating the Possible in the Developing World:

Guaranteeing the Right to Health in India, 32 VAND. J. INT’L L. 435, 462 (1999) (showing the impact of public interest litigation and how the Supreme Court of India has consistently interpreted the enforceable provisions of the Constitution to give meaning and force to directive principles). See also S. Muralidhar, Justiciability – The Indian Experience, in INTERNATIONAL HUMAN RIGHTS INTERNSHIP PROGRAM (IHRIP), CIRCLE OF RIGHTS ECONOMIC, SOCIAL AND CULTURAL RIGHTS ACTIVISM: A TRAINING RESOURCE 435 (IHRIP, 2000) (identifying the human rights consequences of the emergency period in India between 1975 and 1977 as the catalyst for the proactive stance of the Indian judiciary on directive principles).

137 See Villiers, Directive Principles, supra note 134, at 46-48. The tremendous impact of the Indian Constitution in the concerted efforts towards good governance and nation-building since 1950, including particularly the emergency years 1975-1977 under Indira Ghandi’s ill-fated regime has been carefully analyzed and documented in AUSTIN, supra note 131, at 293-390 (1999). Ostensibly in its increasing effort to curtail the effect of the constitutional non-justiciability of Directive Principles, the Indian legislature has continually enacted a broad range of statutes that prioritize social issues. Notable among which are the Plantation Labor Act, 1951; the Mines Act, 1952; the Employees Provident Fund Act, 1952; the Maternity Benefits Act, 1961; the Apprentices Act, 1961; the Contract Labor (Regulation and Abolition) Act, 1970; the Bonded Labor System (Abolition) Act, 1976; the Urban Land (Ceiling and Regulations) Act, 1976; the Child Labor (Prohibition and Regulation) Act, 1986 and the Legal Service Authority Act, 1995. It is significant to note that all these statutes resulted from the energetic activism put into the Directive Principles. See generally Lakshmidhar Mishra, Laws for the Labour, in SOCIAL ACTION THROUGH LAW 107 (P. K. Ghandi, ed., 1985) (commending the manner of legislative intervention in the face of rising economic adversities in India)

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Posing the rhetorical question of whether the Directive Principles in the Indian

Constitution have “helped to bring Indian society closer to the Constitution’s goal of

social, economic, and political justice for all”, Austin concludes thus: “Briefly, the

answer is yes.”138 Similarly, in his assessment of the Indian judiciary’s efforts at giving

life to the otherwise non-justiciable provisions on Directive Principles in the Indian

Constitution, Rao says: “From…a restrictive and narrow definition of human rights, the

Supreme Court has expanded the scope of enforceable rights such as the right to life and

liberty.”139

It is particularly striking to note that the pivot of the Indian judicial approach to

the expansive and proactive interpretation of fundamental rights have been the Directive

Principles, which, technically speaking, are non-justiciable. The Supreme Court has

resoundingly reaffirmed the status of the Directive Principles as being the non-negotiable

corollary of fundamental human rights.140 This reconceptualization has meant a sustained

commitment to the integrative approach to all human rights in Indian courts. A long line

of cases demonstrates this assertion.

138 AUSTIN, supra note 131, at 114. In the next chapter, I shall be considering in analytical detail the groundbreaking jurisprudential developments from Indian courts on this subject and their implications for galvanizing a rights-based approach to human development in Africa.

139 S. N. Nageswara Rao, Human Rights Initiatives, in HUMAN RIGHTS IN INDIA, supra note 134, 52, 64. Art. 21 of the Indian Constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” For an insight into how the National Human Rights Commission of India, in partnership with the civil society, has been of tremendous assistance in monitoring the implementation of the Supreme Court’s decisions on human rights, see Subbash C. Jain, The Commonwealth and Human Rights: An Indian Perspective, 25 C’WEALTH L. BULLETIN 117, 128-132 (1999).

140 In Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C. 1789, the Supreme Court, declared that “[t]hose [fundamental human] rights are not an end in themselves but are the means to an end. The end is specified in Part IV [Directive Principles]”, id., at 1806-1807, per Chief Justice Chandrachud. See also Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461, where the Supreme Court, per Justices Hedge and Mukherjea proclaimed that “the fundamental rights and directive principles constitute the conscience of the Constitution…There is no antithesis between the fundamental rights and directive principles…one supplements the other”, id., at 1641(emphasis in the original).

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In the groundbreaking case of Maneka Ghandi v. Union of India,141 the applicant’s

passport had been seized by the authorities pursuant to the Emergency Orders of that

period, and thus, she had been denied the opportunity to travel abroad. Observing that

any procedure affecting any human rights must not be “arbitrary, fanciful or

oppressive”,142 the Indian Supreme Court seized the opportunity of Ghandi to affirm that

the right to life entrenched in Article 21 of the Indian Constitution also covers the right to

travel abroad.

This case was to mark a historic defining moment for the Indian judiciary as well

as human rights protection in years to follow.143 While Ghandi had arisen as an action in

defense of the right to personal liberty, its broader effects have been felt in the areas of

criminal justice, judicial review, contracts, ecology, fundamental rights as well as other

“implied fundamental rights” including education, legal aid, pollution-free environment,

livelihood and human dignity.144 The proactive approach of the Indian judiciary to many

141 Ghandi, A.I.R. 1978 S.C. 597.142 Id., at 674.143 See Antulay v. Naik, A.I.R. 1992 S.C. 1701, 1717, where the Supreme Court described the

transformative influence of the provision of Art. 21 in Indian constitutionalism as follows: “Article 21 got unshackled from the restrictive meaning placed upon it...It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Ghandi gave a new meaning to the Article and expanded its content and connotation.” See also V. Vijayakumar, The Working of the National Human Rights Commission, in HUMAN RIGHTS IN INDIA, supra note 134, 211, 213 (describing the Ghandi decision as “the turning point for judicial activism in upholding the rights and liberties of individuals under the Indian Constitution”).

144 M. P. Jain, The Supreme Court and Fundamental Rights, in FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP AND REACH 1, 43, 51-52 (S.K. Verma et al, eds., 2000). See, for example, Vellore Citizens’ Welfare Forum v. Union of India, A.I.R. 1996 S.C. 3399, where the Supreme Court laid down the fundamental rule that precautionary measures must be taken by the state and other authorities in the anticipation and prevention of causes of environmental degradation; Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011, where the Supreme Court held the workplace sexual harassment of a woman to be a violation of her rights to equality, life and liberty under arts. 14, 15, and 21; Krishnan v. State of Andhra Pradesh, A.I.R. 1993 S.C. 2178, where the Supreme Court acknowledged that the provision of education depends on the economic capacity of the state, it held that the commercialization of education cannot be permitted. The court further established that under art. 21, the right to education until the age of 14 is a fundamental right; Shetty v. The Int’l Airport Auth. India, A.I.R. 1979 S.C. 259, where the Supreme Court established the rule that although the discretion of awarding contracts for state projects vests in the government, such discretion must be rational, relevant and non-discriminatory”, id., at 157; and, Hoskot v. State of Maharashtra, A.I.R. 1978 S.C. 1548, where the Supreme Court declared that the right to legal aid and speedy trial is an integral part of art. 21.

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questions involving social justice, individual liberty, human development, labor rights

and poverty alleviation has been the offshoot of the judiciary’s commitment to a creative

interpretative process that considers a fundamental human right to “mean merely animal

existence [when it is bereft of] human dignity.”145

Thus, in Olga Tellis v. Bombay Mun. Corp.,146 the petitioners who were slum

dwellers had petitioned against their forcible eviction by the defendant corporation,

alleging a violation of their right to life under Article 21. The Supreme Court held that the

right to life conferred by Article 21 of the Indian Constitution extends to the right to

livelihood, and that in this particular instance, the eviction of the slum dwellers will

deprive them of livelihood, and invariably, life. Even though the applicants had failed to

demand that the corporation allows the slum dwellers to show why they should not be

evicted, the court ordered that further evictions must cease until the end of the prevailing

monsoon season, to mitigate their hardship.147 The court explained the basis of its

decision as follows:

The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law…An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what 145 Jain, id., at 30.146 Tellis, A.I.R. 1986 S.C. 180.147 Monsoon refers to the volatile climatic torrents that sweep sporadically and unpredictably

across India and the South Asian region annually, creating adverse weather conditions. See THE AMERICAN HERITAGE DICTIONARY 549 (4th ed. 2001).

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makes life livable, must be deemed to be an integral component of the right to life.148

The Indian judiciary has consistently shown in many other instances that it will

not abandon the helpless to the vicissitudes of life. In Samity v. State of West Bengal,149

involving a petitioner who had suffered serious cerebral injuries occasioned by a train

accident, the Supreme Court held that under Article 21, he had a right to “timely medical

treatment.”150

The effect of the proactive stance of the Indian judiciary has also been felt in the

fields of industrial, labor and trade practices.151 In a slew of cases, for instance, the

Supreme Court has held that the “equal pay for equal work” principle in Article 39(d) of

the Indian Constitution is within the expanded scope of Articles 14 and 21.152

148 Id., at para. 79F-H, 80A-B (emphasis added). This reasoning was applied in the more recent case of Anthony v. Bihar Gold Mines Ltd., A.I.R. 1999 S.C. 1416, where a government worker had his employment and salary suspended while disciplinary action was being considered. The court held that he must be paid “subsistence allowance” notwithstanding the interdiction. In the court’s words: “Non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee”, id., at 1423. See also Coralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746, 753, where the same court declared: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

149 A.I.R. 1996 S.C. 2415.150 Id., at 2429. See also Panikulangara v. India, A.I.R. 1987 S.C. 990 (laying the precedent for the

judicial principle that access to medical treatment is an integral part of the right to life under art. 21); Kataria v. Union of India, A.I.R. 1989 S.C. 2039 (upholding the claim of the victim to right to assistance by a medical doctor). For an extensive analysis of concerted efforts of various cadres of the Indian judiciary to incorporate the right to health into the fundamental right to life, see Shah, supra note 136, at 475-484.

151 See generally M. Rama Jois, The Supreme Court on Service Law Governing Employees of State, in FIFTY YEARS OF THE SUPREME COURT OF INDIA, supra note 144, at 127-155 (discussing the activist role of the Indian Supreme Court in defending the rights of working people in India). See also Bertus de Villiers, The Socio-Economic Consequences of Directive Principles of State Policy: Limitations on Fundamental Rights, 8(2) S. AFR. J. HUM. RTS. 188-199 (1992) (analyzing the Indian case law on minimum wages, workers’ participation, equal pay, and price fixing, as developed through the activism of the Indian judiciary). See, for example, Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, where the Supreme Court read art. 21 in conjunction with the directive principles in arts. 39(e), (f), 41 and 42, to hold that bonded labor was unconstitutional, constituting a “gross and revolting violation of constitutional values”, per Justice Bhagwati, at 811. For an analysis of other judicial decisions on these issues, see Rao, supra note 139, at 66-67.

152 See e.g., Singh v. Union of India, A.I.R. 1982 S.C. 879; Singh v. J and K, A.I.R. 1986 S.C. 584; Fed’n of Stenographers v. Union of India, A.I.R. 1988 S.C. 1291.

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Also, in Randhirin Shri Literam Sugar Co. Ltd. v. Union of India,153 citing the

directive principles, the Supreme Court held that the price control on foodstuffs was in

the public interest.154

The manner of consistency and clarity with which the Indian Supreme Court has

been administering social justice through its efficacious protection of the ‘implied’ rights

in the Indian Constitution has led a scholar to proclaim that “after Maneka Ghandi’s case

the Court began to apply the fair and reasonable requirements of law not only to

deprivation of life but also to the well-ordered concept of human dignity and life.”155

By virtue of shared British colonial heritage and common law traditions, the

Indian approach to human rights certainly portends strategic implications for other

countries of the developing world, especially those in Anglophone Africa.

E. Nigeria

The Indian constitutional design of directive principles had gained the attention of

constitutional drafters in Indonesia in 1951, Nepal in 1962, and Sri Lanka in 1972.156 For

Africa, Nigeria led the way in 1979 with its Second Republican Constitution.157 That

153 (1990) I S.C.R. 909.154 See Khandsari v. State of Uttar Pradesh, (1981) S.C. 873, for an earlier decision on identical

point. See also Shantistar Builders v. Totane, A.I.R. 1990 S.C. 630, 633, where the Supreme Court held that the right to life included the right to “food, clothing, shelter and a decent environment.”

155 T. R. Andhyarujina, The Evolution of Due Process of Law by the Supreme Court, in SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA 193, 204 (B. N. Kirpal et al eds. 2000). For an assessment of the proactive drive of the Indian Supreme Court between 1950 and 2000, see Vijayashri Sripati, Towards Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to see Ahead, 14 AM. U. INT’L L. REV. 413, 439-452 (1998).

156 For readings on the background to the adoption of Directive Principles in other jurisdictions, see the following: JOSEPH A. L. COORAY, CONSTITUTIONAL AND ADMINISTRATIVE LAW OF SRI LANKA (CEYLON) (1973); TIM MURPHY ET AL, IRELAND'S EVOLVING CONSTITUTION 1937-1997: COLLECTED ESSAYS (1999); Richard Stith, Unconstitutional Constitutional Amendments: The Extraordinary Power of Nepal’s Supreme Court, 11 AM. U. J. INT’L L & POL’Y 47 (1996); Pinai Nanakorn, Re-Making of the Constitution in Thailand, 6(1) SING. J. INT’L & COMP. L. 90, 105-106 (2002); Andrew Ellis, The Indonesian Constitutional Transition: Conservativism or Fundamental Change?, 6(1) SING. J. INT’L & COMP. L. 116 (2002).

157 Fundamental Objectives and Directive Principles of State Policy, ch. II (§§ 13-22), Constitution of the Federal Republic of Nigeria (CFRN), promulgated into law by the CFRN Decree No. 104 of 1979 (entered into force Oct. 1, 1979). For a historical commentary on the CFRN 1979, see JADESOLA AKANDE,

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Constitution provided a litany of principles that would guide the administration of the

Nigerian polity towards the general good (sections 13-22).158 Those objectives and

principles were essentially a set of guidelines designed to secure the ‘national’ targets of

social well-being, social justice, political stability, and economic growth in accordance

with the espoused vision of the Preamble to the Constitution.159

During the drafting stages of the CFRN 1979, Emovon, a Nigerian scholar, had

justified the inclusion of these objectives as follows:

Fundamental Objectives refer to a set of social ideals which are semi-justiciable and designed as targets towards which the country must aim. They define a goal for the Nation without which this country would drift as it appeared to have done in the past. In a country as vast and heterogeneous as Nigeria where we still have primacy of local interests and where the people have…different historical, cultural and religious backgrounds, it has become necessary to spell out in detail the basic principles of the State for the guidance of Government.160

While those Fundamental Objectives could have passed as one of the most

innovative dimensions in the history of constitution making in Nigeria, they are prone to

INTRODUCTION TO THE NIGERIAN CONSTITUTION, at i-xiv (1982). 158 § 13 provides for the overarching duty of all organs and officials of government to apply the

provisions of ch. II; § 14 proclaims sovereignty as being vested in the people of Nigeria; § 15 entrenches the promotion of national loyalty as the cardinal political objective of Nigeria; § 16 entrenches the establishment of a “mixed economic system” as the fundamental objective, which was essentially an official proclamation of the existing free market ideology of the regime; § 17 emphasizes a system of welfare assistance; § 18 declared the commitment of government to education and literacy among Nigerians; § 19 asserts Nigeria’s Afro-centric foreign policy; § 20 directs the State to promote and preserve Nigerian cultures and values; § 21 mandates the Press and media to uphold the fundamental objectives and accountability while § 22 declares the ethics of the Nigerian State as “Discipline, Self-reliance and Patriotism.” Those same provisions were re-enacted verbatim as ch. II (§§ 13-24) in the 1999 version of the CFRN promulgated into law by Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24, May 5, 1999 (entered into force May 29, 1999). For a robust critique of this constitutional model, see ’Dejo Olowu, Fundamental Objectives and Directive Principles of State Policy in Nigeria, in ISSUES IN CONSTITUTIONAL LAW AND PRACTICE IN NIGERIA 290 (Justus A. Sokefun, ed., 2002) [hereinafter SOKEFUN].

159 Para. 3 of the Preamble to the 1979 Constitution provided the basis of the Constitution as “TO PROVIDE…good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people.”

160 Emmanuel U. Emovon, Fundamental Objectives and Directive Principles and Public Accountability, in KUMO ET AL, supra note 105, 29.

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becoming worthless platitudes because of their emasculated constitutional status.161 An

overriding provision of the same Constitution nullifies their legal value:

6(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.…(6) The judicial powers vested in accordance with the foregoing provisions of this section … (c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution….162

It naturally follows, from the above ouster clause, that all the promises of the

Objectives and Principles in Chapter II of the CFRN serve no better purpose than British

coronation oath: mere moral appeal. The decisions of Nigerian courts, as far as the status

of those provisions is concerned, were unequivocal in confining those provisions to the

realm of principles that may only appeal to the morality of any government in power.163

161 See AKANDE, supra note 157, at vi. See also AGUDA, supra note 21, at 77-78 (describing those provisions as “a white elephant…attempt to introduce into the constitution some ideals and concepts in the nature…of a by-gone era”).

162 CFRN, 1979, § 6(6) (c). This same section was re-enacted verbatim as § 6(6) (c) in the CFRN, 1999.

163 I examine a number of relevant decisions in the next segment. Comparative experience in India and Ireland shows that although Directive Principles lack the force of positive law, they have nonetheless crystallized into political imperatives from which no “responsible government” will openly derail. See NARIVELY, supra note 132, at 174-175. See also AUSTIN, supra note 131, at 74-75 (pointing out that since the Directive Principles are seen as “the aims of the Indian social revolution”, every successive parliament has adhered to those principles in the enactment of statutes). As desirable as it would have been for the Directive Principles to become central political issues in Nigeria, the Nigerian political party system and post-election machinery for the implementation of campaign promises have remained problematic since independence. The notion of democratic auditing is yet to find its way into either intellectual debate or the Nigerian political arena. Nigerian electoral politics revolves more around cleavages and parochial interests rather than on political accountability. For readings on Nigerian politics and its long history of failure to yield tangible and sustainable democratic dividends, see A. Fadahunsi, The Constitution, Parties and Ideology: Prospects for National Unity and Welfare, in KUMO ET AL, supra note 105, 103-108; Pita Ogaba Agbese, The State versus Human Rights Advocates in Africa: The Case of Nigeria, in AFRICA, HUMAN RIGHTS AND THE GLOBAL SYSTEM 147, 159-167 (Eileen McCarthy-Arnolds, David R. Penna et al, eds., 1994); Dele Olowu, Centralization, Self-Governance and Development in Nigeria, in THE FAILURE OF THE CENTRALIZED STATE: INSTITUTIONS AND SELF-GOVERNANCE IN AFRICA 193, 204-218 (James S. Wunsch et al, eds., 1995).

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The idea of non-justiciable constitutional provisions had indeed become Nigeria’s

legacy for constitutionalism in Africa. After the debut in 1979, political power brokers in

other African countries had found a leeway out of rights-based accountability to their

peoples. Thus, at independence, Zimbabwe (1980)164 and Namibia (1990)165 must have

looked up to the Nigerian constitutional model of 1979 in drafting their versions of

fundamental objectives that mirror the Nigerian model almost verbatim.166 The

constitutional model of Directive Principles was to fascinate many other African

countries in the years that followed. Many African Constitutions are now replete with

provisions identical to the neo-Nigerian paradigm. These are: Botswana, 1992;167 Eritrea,

1997;168 the Gambia, 1994;169 Ghana, 1992;170 Lesotho, 1993;171 Liberia, 1984;172 Malawi,

164 ZIMB. CONST., Apr. 18, 1980, amended by Constitution of Zimbabwe (Amendment) Act No. 14, 1996, reprinted in CHRISTOF HEYNS, HUMAN RIGHTS LAW IN AFRICA 318 (1999). For a scholarly analysis of salient human rights provisions in the Zimbabwean Constitution, see Pearson Nherere, How Can a Bill of Rights best be Protected against Undesirable Erosion and Amendment?, 7 LEGAL F. 40 (1995).

165 Principles of State Policy, (art. 95), NAMIB. CONST., Mar. 21, 1990, Fundamental Principles, Ch. III (arts. 12-14), reprinted in CHRISTOF HEYNS, HUMAN RIGHTS LAW IN AFRICA 261 (1996) [hereinafter HEYNS, 1996].

166 See generally Kenneth Grundy, The Impact of Regionalism on Contemporary African Politics, in AFRICAN INDEPENDENCE: THE FIRST TWENTY-FIVE YEARS 97 (Gwendolen M. Carter et al, eds., 1985) (highlighting Nigeria’s frontline role in the decolonization struggles of States in the Southern African sub-region). See also Gabriel O. Olusanya, Reflections on the First Twenty-Five Years of the Organization of African Unity, 14 (1) NIG. J. INT’L AFF. 67-72 (1988) (commending Nigeria’s yeoman role in the decolonization and anti-apartheid agenda of the OAU).

167 BOTS. CONST., Sept. 30, 1966, amended by Constitutional (Amendment) Act No. 27, Oct. 9, 1992, reprinted in HEYNS, 1996, supra note 165, 35.

168 National Objectives and Directive Principles, ch. II (arts. 6-12), ERI. CONST., May 23, 1997, reprinted in CHRISTOF HEYNS, HUMAN RIGHTS LAW IN AFRICA 292 (1998).

169 GAM. CONST., Apr. 24, 1970, suspended July 1994, rewritten and approved Aug. 8, 1996, reestablished Jan. 1997, reprinted in HEYNS, 1996, supra note 165, 135.

170 The Directive Principles of State Policy, ch. VI (arts. 34-41), GHANA CONST., Apr. 28, 1992, reprinted in HEYNS, 1996, supra note 165, 146. Note that the constitution recognizes the right to work under satisfactory conditions (art. 24); the right to “equal educational opportunities” (art. 25); and the right to social security (art. 36) as justiciable rights. For a scholarly analysis of salient human rights provisions in the Ghanaian Constitution, see Nana K. A. Busia, Competing Visions of Liberal Democracy, in HUMAN RIGHTS UNDER AFRICAN CONSTITUTIONS: REALIZING THE PROMISE FOR OURSELVES 52 (Abdullahi Ahmed An-Na’im, ed., 2003).

171 Principles of State Policy, ch. III (arts. 25-36), LESOTHO CONST., Mar. 25, 1993, reprinted in HEYNS, 1996, supra note 165, 186.

172 General Principles of National Policy, ch. II (arts. 1-10), LIBER. CONST., Jan. 27, 1984, reprinted in HEYNS, 1996, supra note 165, 201.

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1995;173 Sierra Leone, 1991;174 Tanzania, 1984;175 Uganda, 1995;176 and Zambia, 1991.177

Common to all those constitutional provisions is their non-justiciability because of

language similar to that found in section 6(6)(c) of the Nigerian model.178

V. CONTEXTUAL AFRICAN CHALLENGES AND THE PROMISE OF UNENFORCEABLE ENUMERATED RIGHTS

It is important to note that the provisions usually couched as Directive Principles

are often the exact spirit and letters of economic, social and cultural rights (ESCR)

norms, as elaborated in the International Covenant on Economic, Social and Cultural

Rights (ICESCR), 1966.179 One is perturbed that many African States Parties that are

obliged under Article 2(1) of the ICESCR “to take steps…by all appropriate means,

including particularly the adoption of legislative measures” to secure ICESCR provisions

173 Fundamental Principles, ch. III (arts. 12-14), MALAWI CONST., May 16, 1994, reprinted in HEYNS, 1996, supra note 165, 216.

174 Fundamental Principles of State Policy, ch. II (arts. 4-14), SIERRA LEONE CONST., Oct. 1, 1991, reprinted in HEYNS, 1996, supra note 165, 319.

175 Important Objectives and the Basic Structures of the Direction of Government Affairs, s. 2 (arts. 1-11), TANZ. CONST., 1977, amended by Fifth Amendment of the State Constitution (Act No. 15), 1984 (entered into force on Mar. 15, 1988), reprinted in HEYNS, 1996, supra note 165, 355. Note that art. 22 recognizes the right to work in positive language. For a scholarly analysis of salient human rights provisions in the Tanzanian Constitution, see Chris Maina Peter, Respect for Fundamental Rights and Freedoms: A New Bill of Rights for Tanzania, 67(4) REV. INT’L L. DIPL. & POL. 255 (1989).

176 National Objectives and Directive Principles of State Policy, arts. I-XXIX, UGANDA CONST., adopted Sept. 22, 1995, reprinted in HEYNS, 1996, supra note 165, 371. For a scholarly analysis of salient human rights provisions in the Ugandan Constitution, see Joe Oloka-Onyango, Constitutional Transition in Museveni’s Uganda: New Horizons or Another False Start?, 39 J. AFR. L. 156 (1995).

177 Fundamental Objectives (art. 16), ZAMBIA CONST., Act No. 1, Aug. 30, 1991, amended by Constitution (Amendment) Act No. 18, May 28, 1996, reprinted in HEYNS, 1996, supra note 165, 303. For a scholarly discussion of salient human rights provisions in the Zambian Constitution, see Alfred W. Chanda, Zambia’s Fledgling Democracy: Prospects for the Future, 25-28 ZAMBIA L. J. 125 (1993-1996).

178 See, for example, § 34(1), GHANA CONST. (“The Directive Principles of State Policy contained in this Chapter shall guide [not bind] all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society”) (emphasis added); § 25, LESOTHO CONST. (“These principles shall not be enforceable by any court but…shall guide the authorities and agencies of Lesotho”) (emphasis added); § 14, MALAWI CONST. (“The principles of national policy contained in this Chapter shall be directory in nature”) (emphasis added); § 14, SIERRA LEONE CONST. (“the provisions contained in this Chapter shall not confer legal rights and shall not be enforceable in any court of law”); art. I, UGANDA CONST.; and § 111, ZAMBIA CONST.

179 International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force on Jan. 03, 1976).

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have generally shunned the inclusion of economic, social and cultural rights in the most

fundamental of their domestic laws.

Since 1979 when the Fundamental Objectives and Directive Principles of State

Policy debuted in Nigerian constitutionalism, the entrenched non-justiciability clause has

remained a veritable rampart against their appreciation in Nigerian courts. The non-

justiciability of these provisions has received judicial pronouncement in a series of cases,

chief among which was Okogie v. Att’y Gen., Lagos State.180 Here, the plaintiff had sued

as the trustee of Roman Catholic Schools challenging the abolition of private primary

schools on the ground that it was contrary, inter alia, to freedom of expression

guaranteed in the CFRN 1979. The government had argued that the operation of private

schools was inconsistent with the obligation of the State to give “equal and adequate

educational opportunities” under Section 18(1), CFRN. The court also held that while the

phrase “equal and adequate educational opportunities” did not necessarily restrict the

right of private institutions or other persons to provide similar or different educational

facilities at their own expense, taste and preferences, the Directive Principles must have

to conform to and run subsidiary to the fundamental human rights provisions.181

The reasoning in that decision found wholesale affirmation in Adewole v.

Jakande, Governor of Lagos State.182 It had become evident that the ESCR elements in

the Directive Principles were to remain cosmetic constitutional provisions in Nigeria.

Indeed, the first time those provisions were ever referred to as “rights” was in the

1991 decision of the Nigerian Court of Appeal in Uzuokwu v. Ezeonu II183 where the

180 (1981) 1 N.C.L.R. 218.181 § 18(1) CFRN 1979 provided that: “Government shall direct its policy towards ensuring that

there are equal and adequate educational opportunities at all levels.” §18(1) CFRN 1999 retains the provision in its exact wording.

182 (1981) 1 N.C.L.R. 152.183 (1991) 6 N.W.L.R. (pt. 200) 708.

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court held, inter alia, that “[t]here are other rights which may pertain to a person which

are neither fundamental nor justiciable in the court. These may include rights given by

the Constitution as under the Fundamental Objectives and Directive Principles of State

Policy under Chapter II of the Constitution.” 184

For a very long period, therefore, as far as ESCR were concerned, Nigerian courts

had declined to assume jurisdiction. It is worthy to note, however, that since the era of the

repressive military regimes that ruled Nigeria between 1984 and 1999, efforts had been

made by human rights NGOs and activists to explore the application of the African

Charter in national courts in view of its domestication.185 Thus, in a long line of cases,

Nigerian courts have been called upon to adjudicate on the domestic legal status of the

African Charter. In Ogugu v. State, 186 the Supreme Court of Nigeria held that all rights

provisions in the African Charter are applicable and enforceable in Nigeria through the

ordinary rules of court in the same manner as those fundamental rights set out in Chapter

IV of the Constitution. This position has been affirmed by the later decision of the apex

court in Abacha v. Fawehinmi.187

Notwithstanding the fact that the scanty Nigerian jurisprudence on the African

Charter has exclusively been on civil and political rights, it is plausible to argue that a

priori, the ESCR provisions in the African Charter are domestically enforceable although

further development of jurisprudence in this direction will still be required to make this

184 Id., at 761-762 (emphasis added).185 By virtue of the African Charter on Human and Peoples’ Rights (Enforcement and Ratification)

Act, Ch. 10, LFN 1990, the African Charter was incorporated into the municipal laws of Nigeria. In Oshevire v. British Caledonian Airways (1990) 7 N.W.L.R. (pt. 163) 507, the Court of Appeal held that international treaties incorporated into municipal laws are superior to other municipal laws.

186 (1994) 9 N.W.L.R. (pt. 366) 1. 187 (2000) Fed’n Wkly. L. Rep. (pt. 4) 533. Cf. Fawehinmi v. Abacha (1996) 9 N.W.L.R. (pt. 475)

710, where the Court of Appeal had opined that the African Charter was superior to any other municipal law in Nigeria.

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thinking resonant.188 In this regard, I conjecture a re-awakening of the Nigerian judiciary

to its responsibility in nation-building in light of the Supreme Court’s decision in Att’y

Gen., Ondo State v. Att’y Gen., Fed’n.189 The Ondo State Government had brought an

action challenging the constitutional validity of the Corrupt Practices and Other Related

Offences Act, 2000 as well as the Independent Corrupt Practices and Other Related

Offences Commission (ICPC) set up under it to initiate criminal proceedings in any court

in Nigeria.190

In what may be considered a new judicial perception about the status of the

Fundamental Objectives in Nigeria, the Supreme Court added that:

As to the non-justiciability of the Fundamental Objectives and Directive Principles of State Policy, section 6(6)(c)…says so. While they remain mere declarations, they cannot be enforced by legal process but would be seen as a failure of duty and responsibility of State organs if they acted in clear disregard of them…the Directive Principles can be made justiciable by legislation.191

From the tone of the Ondo State decision, it would appear that the Nigerian

Supreme Court might become favorably disposed to ESCR adjudication in the future,

particularly where there are appropriate statutes to fortify rights-based claims.

188 It would appear that the new ‘democratic’ dispensation has added impetus to ESCR activism in Nigeria going by the number of pending cases. In Eze Amadi v. Att’y Gen., Fed’n, Suit No. ID/231/99, plaintiffs are seeking to enforce the right to accessible and qualitative education as guaranteed under the African Charter. Similarly, in Ilemobayo v. Nigerian Nat’l Petroleum Corp., Suit No. FHC/L/593/97, a Lagos Federal High Court is being asked to hold that the right to work under favorable environment under the African Charter is enforceable despite section 6(6)(c) of the Constitution. It is certain that the outcomes of these cases would go a long way in boosting ESCR jurisprudence in Nigeria.

189 (2002) 9 Sup. Ct. Monthly 1.190 In holding that the statute and the commission set up under it were constitutional and valid, the

apex court referred extensively to the Fundamental Principles in Chapter II of the CFRN 1999. According to the court: [I]t is incidental or supplementary for the National Assembly to enact the law that will enable the ICPC to enforce the observance of the Fundamental Objectives and Directive Principles of State Policy…The ICPC was established to enforce the observance of the Directive Principle set out in Section 15 subsection (5) of Chapter II. See id., at 38-39, 79. § 15(5) CFRN 1999 provides that “[t]he State shall abolish all corrupt practices and abuse of power.”

191 Id., at 96-97. The Ondo State decision has been described by an African human rights activist as supporting “a wider interpretation of the reach of the Fundamental Objectives and Directive Principles of State Policy.” See E-mail from Chidi Odinkalu, Constitutions (Nov. 21, 2002, 15:05:59 GMT) (on file with author).

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While one might be prone to ascribe the parlous state of ESCR adjudication in

Nigeria to substantive issues of legal framework, perhaps the most formidable

impediment to the effective protection of such rights remains the common law procedural

doctrine of locus standi and how the courts have interpreted it in relation to

constitutionalism. Nigerian courts still interpret the rule on the right to sue very strictly,

that is, only the person who shows the court that he or she has personal interest in the

subject matter of the litigation or that the violation complained of affects him or her

directly and personally, has the ‘standing’ to institute an action. This has always been

particularly difficult to establish in public interest litigation cases as few of such actions

ever scale the hurdle.192

The leading decision on the question of locus standi in Nigeria is Adesanya v.

President of the Federal Republic of Nigeria193 where the appellant had commenced an

action challenging the appointment of the Chairman of the Federal Electoral Commission

on the ground that it would violate some constitutional provisions. After a protracted

process of appeals, the Supreme Court of Nigeria held that the appellant lacked the locus

standi to institute the action. In laying the foundation of what was to become Nigeria’s

‘strict constructionist approach’ to locus standi, the apex court had preoccupied itself

with the imprecise task of keeping “vexatious litigants or frivolous claims” at bay.194

Regrettably, despite rigorous attempts by Nigerian lawyers to whittle down the

192 For general discussions on the operation of the doctrine of locus standi in Nigerian courts, see MIKE A.A. OZEKHOME, THE NIGERIAN LAW ON LOCUS STANDI 82-90 (1988); E.A. Taiwo, Locus Standi in Nigeria, in SOKEFUN, supra note 158, 242-153.

193 Adesanya, (1981) 2 NC.L.R. 358.194 Id., at 373, per Fatayi-Williams, Chief Justice of Nigeria.

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conservative rule of locus standi, Adesanya has continued to reverberate on the Nigerian

legal terrain since 1981.195

It is my contention that based upon the dynamic trends on the doctrine in England

as well as in many common law jurisdictions, the test of ‘interest’ in Nigerian courts

should be based on liberal rules of genuine concern and legitimate expectation.196 This

argument has received isolated judicial approval in Ezezoobo v. The Provisional Ruling

Council197 where the Federal High Court held that in public law, locus standi should not

deprive citizens’ access to court for remedies.

Once this proposition gains acceptation in the higher courts and becomes settled,

the question of the extent of state obligations would follow, but for now, the ESCR

struggle must advance towards achieving basic recognition for these rights and their

beneficiaries in Nigerian courts.198

195 See, for example, Irene Thomas v. Olufosoye, (1986) 2 Sup. Ct. 325; Adefulu v. Oyesile, (1989) 5 N.W.L.R. (pt. 122) 377; Okoye v. Lagos State Gov’t, (1990) 3 N.W.L.R. (pt. 136) 115; Obaba v. Military Governor of Kwara State, (1994) 4 N.W.L.R. (pt. 336) 15; Ezeafulukwe v. John Holt Ltd., (1996) 2 N.W.L.R. (pt. 432) 511; HURILAWS v. Gov’t of Zamfara State of Nigeria, Unreported Suit No. ZMS/GS/17/2000, Judgment of the High Court of Zamfara State, May 4, 2001 (on file with author). But see Fawehinmi v. Akilu, (1987) 4 N.W.L.R. (pt. 67) 797, where the Supreme Court, in an unusual manner, held that the appellant had locus standi to commence private criminal proceedings against two suspected military officers in the light of the State’s reluctance and unwillingness to prosecute them for the murder of a frontline Nigerian journalist). Note, however, that the decision was rendered practically useless as the military government retroactively amended the criminal procedure law that guaranteed the right of private prosecution.

196 This is an alchemy of the reasoning that prevailed in cases like Inland Revenue Comm’rs v. Nat’l Fed’n of Self-Employed and Small Businesses Ltd., [1982] A.C. 617 (British House of Lord); Kajing Tubek v. Ekran BAD (1995) Saman Remula 55-27-66 (Supreme Court of Pakistan).

197 Unreported Suit No. FHC/CS/640/95 (on file with author).198 For other decisions relating to locus standi in public law matters in Nigeria, see Akinpelu v.

Att’y Gen., Oyo State, (1984) 5 NC.L.R. 557, and Ejeh v. Att’y Gen., Imo State, (1985) 6 N.C.L.R. 390, in both of which the court held that where the cause of action involves the validity or constitutionality of any enactment, the litigant is relieved of the requirement of locus standi. See also Kokoro-Owo v. Lagos State Gov’t, (1998) Hum. Rts. L. Rep. Afr. 322, and Olatoye v. Governor of Lagos State, Unreported Suit No. FHC/CS/144/99 (on file with author), where the High Court of Lagos State and the Federal High Court, respectively, held that the established practice of forced evictions from homes was inhuman. Contra Thomas v. Olufosoye, supra note 195, at 352-353, where the Supreme Court declared, per Obaseki, JSC, that: “As the law stands, there is no room for the adoption of the modern views on locus standi being followed by England and Australia. The adoption of those views in England has found support in the statute law of England.” This might very well be an unmistakable omen of the apex court’s unwillingness to adapt itself to change. See generally Chinonye Obiagwu & Chidi Anselm Odinkalu, Combating Legacies of Colonialism and Militarism, in HUMAN RIGHTS UNDER AFRICAN CONSTITUTIONS: REALIZING THE

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F. Other Anglophone African States

The non-domestication of international human rights treaties, conservatism, lack of

knowledge about global trends, the virtual non-availability of ESCR precedents, and an

inadequately equipped civil society have been the combined factors for the stunted

development of ESCR jurisprudence by most judiciaries in Africa.199 A survey of the

judicial terrain across Africa reveals that pronouncements relevant for ESCR

jurisprudence are to be gleaned mainly from decisions on other tangential issues.200 Thus,

while it will not be preposterous to assert that the growth of human rights jurisprudence is

generally stunted in much of Africa because of deep and complex inherent and structural

PROMISE FOR OURSELVES 233 (Abdullahi Ahmed An-Na’im, ed., 2003) (asserting that only a “liberal interpretation of locus standi will encourage public interest litigation” in Nigeria).

199 See generally Mirna E. Adjami, African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?, 24 MICH. J. INT’L L. 103, 124 (2002) (identifying what he referred to as the “insurmountable obstacles in developing a domestic human rights jurisprudence” in African courts). Although the context of that discussion is civil and political rights, it nonetheless finds relevance in the present discourse.

200 See e.g., Minister of Home Affairs v. Bickle, 1983 (2) Zimb. L. Rep. 400 (SC) (where the Supreme Court of Zimbabwe struck down an emergency law that automatically forfeited the properties of perceived “enemies” of the State); Katekwe v. Muchabaiwa, 1984 (2) Zimb. L. Rep. 112 (SC) (where the Zimbabwean Supreme Court literally abolished the age-long customary rule that exclusively entitled fathers to sue for seduction damages when their daughters were not yet married); Ephrahim v. Pastory, (1990) LRC (Const.) 757 (where the Tanzanian High Court declared as invalid a rule of Haya customary law that denies a woman the power to sell land. The court had held the customary law rule to be unconstitutionally discriminatory”, id., at 764); Dow v. Att’y Gen. Bots. (1991) LRC (Const.) 574 (where the Botswana Court of Appeal held that a statute that purported to deny citizenship to children of female citizens married to alien fathers was discriminatory and therefore unconstitutional); New Patriotic Party v. Insp. Gen. Police, [1992-1993] Ghana L. Rep. 87 (where the Supreme Court of Ghana held the Public Order Decree, 1972 to be inconsistent with the constitutional freedoms of assembly and association. The court had referred to the African Charter this way: “Ghana is a signatory [sic] to this African Charter. I do not think that because Ghana has not passed specific legislation to give effect to the Charter, the Charter cannot be relied upon”, id., per Archer, at 87); Longwe v. Intercontinental Hotels, (1993) L.R.C. 221 (where the Zambian High Court declared that the denial of access to the plaintiff into the bar of the hotel, on the ground that she was female, amounted to unconstitutional violation of the non-discrimination and equality provisions of the Zambian Constitution). See generally Grace Patrick Tumwine-Mukubwa, Ruled from the Grave: Challenging Antiquated Constitutional Doctrines and Values in Commonwealth Africa , in CONSTITUTIONALISM IN AFRICA: CREATING OPPORTUNITIES, FACING CHALLENGES 287, 301-302 (Joe Oloka-Onyango, ed., 2001) (analyzing the impact of judicial activism on the domestic application of international human rights norms through cases from Southern Africa).

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problems,201 many African judicial institutions function under limitations that have

reduced human rights to abstract ideas, stultifying their appreciation as legal imperatives.

Some scholars have painted the reality of how societal perceptions about the

Ugandan judiciary have negatively affected ESCR promotion and protection.202

And in their careful scrutiny of housing rights and related litigation in Kenya,

Bodewes and Kwinga had described the judicial landscape as follows:

In Kenya, politics play a much more important role than the rule of law in the area of housing and land disputes. The adjudication process, which was intended to provide the necessary safety valve to protect the rights…has totally collapsed under the massive weight of corruption. As a result, the courts have turned a blind eye to both the unlawful and forced evictions of residents…and have sanctioned the rabid land grabbing that is endemic in Kenya today. In Kenya, there is a dearth of jurisprudence in the area of housing rights….203

There can hardly be any realistic disputation that the above assessment broadly

epitomizes the stunted evolution of ESCR jurisprudence in Africa.

The aim of my extensive foray into the contemporary state of ESCR jurisprudence

in Africa is to identify trajectories for constitutional interpretative thrust that will promote

ESCR jurisprudence and invariably, a rights-based approach to democratization,

development and good governance in Africa. From the decisions examined, an inevitable

201 See generally EJAKAIT J.S.E. OPOLOT, A DISCOURSE ON JUST AND UNJUST LEGAL INSTITUTIONS IN AFRICAN ENGLISH-SPEAKING COUNTRIES 25-91, 108-144, 203 (2002) (identifying colonial legal heritage, anachronistic traditions of legal education, corruption, politicization of judicial appointments as some of the most notable factors that have impeded effectual judicial response to human rights in many African countries).

202 See Susan Dicklitch & Doreen Lwanga, The Politics of Being Non-Political: Human Rights Organizations and the Creation of a Positive Human Rights Culture in Uganda, 25(2) HUM. RTS. Q. 482, 495 (2003). Indeed, a leading Ugandan human rights NGO had described the dysfunction of the Ugandan judiciary this way: “[T]he judicial processes are poorly managed, funded, poorly coordinated and susceptible to corrupting influences. As a result, public confidence in the justice system is undermined. Economic, social and political conditions render the justice system irrelevant to the peoples’ needs who are ignorant of their rights, formal laws and procedures of the systems.” Foundation for Human Rights Initiatives, Striving for Justice 8 (2000), quoted in Dicklitch & Lwanga, id., at 493.

203 Christine Bodewes & Ndaise Kwinga, The Kenyan Perspective on Housing Rights, in NATIONAL PERSPECTIVES ON HOUSING RIGHTS 221, 236 (Scott Leckie, ed., 2003).

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inference emerges: that African juridical entities can no longer afford to be complacent in

the delivery of social justice whatever their ideological leanings might be. The path to

that lofty goal lies in the integrative approach to constitutional interpretation of human

rights.204

The consciousness would need to be strengthened among jurists and other

stakeholders in the administration of justice in Africa that in the whirlpool of the dynamic

social, economic, legal and policy complexities of contemporary Africa, their role as

interpreters and arbiters must be underpinned by a constant watch on the products of

democratization and governance. It can no longer be the norm that the judiciary should

insulate itself from social realities more so when it has become axiomatic that

considerable number of human groups and minorities – the homeless, HIV/AIDS patients

and orphans, disabled persons, the unemployed, the illiterate, rural dwellers, refugees,

children, the aged, people of ‘different’ sexual orientations – are often marginalized even

in a democratic set-up.205

204 As Bhagwati strongly admonished: “It is now being increasingly realised that civil and political rights have no meaning and value unless they are accompanied by economic and social rights. This is particularly important in Third World countries. We in the Third World countries have unique problems, totally different from those in the Western countries…we in the Third World are trying to bring about change in the social and economic conditions of the large masses of people with a view to uplifting them from the quagmire of poverty and ignorance and so making basic human rights meaningful for them….” See Bhagwati, Fundamental Rights in Their Economic, Social and Cultural Context, in DEVELOPING

HUMAN RIGHTS JURISPRUDENCE VOL. II 79, 82 (Commonwealth Secretariat & Interights, Second Judicial Colloquium on the Domestic Application of International Human Rights Norms, 1989).

205 See generally Michael Kirby, The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms, in DEVELOPING HUMAN RIGHTS JURISPRUDENCE VOL. I 57, 81 (Commonwealth Secretariat & Interights, First Judicial Colloquium on the Domestic Application of International Human Rights Norms, 1988) (stressing the empirical assertion that in the interplay of the agencies and organs of modern government, democratic institutions do ignore or penalize “minorities or marginal persons”). See also Maria Foscarinis, Downward Spiral: Homelessness and Criminalization, 14(1) YALE L. & DEV. POL’Y REV. 1 (1996).

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VI. CONCLUSIONS

As I already demonstrated, through progressive, expansive or proactive

interpretative techniques, many national judicial institutions have jettisoned the notion of

the non-justiciability of constitutional provisions implicating rights. In many of the

jurisdictions explored, the bulwark of opposition to proactive judicialism is crumbling,

giving way to efforts at rendering substantial (distributive) justice to vast populations.

Little wonder that Peretti argues that “[j]udicial activism and decision-making based on

personal political preference or calculations of political acceptability do not pose a great

threat to the Court’s power and independence. What does pose such a threat is extreme

judicial restraint or, alternatively, judicial activism accompanied by political insensitivity

and carelessness.”206

Reflecting on the Indian judiciary’s legendary breakaway from its earlier

conservatism to respond to the demands of social pressure and its implications for Africa,

now late Zimbabwean jurist, Dumbutshena had argued:

India has many more problems of poverty, ignorance and illiteracy that we have in…Africa. Yet it is in India that judicial activism has changed the face of justice…The question of delivery of justice to the disadvantaged was paramount in the minds of Supreme Court judges. They reformed its procedures and jurisdictional rules relating to constitutional and legal rights of the poor classes who could not approach the court for redress of their grievances…This was judicial activism at its best.207

If, therefore, by any figment of imagination, the responses of European and

American courts are considered peculiar to former colonialist/imperialist legal traditions

and thus objectionable, can the Indian approach be equally so assailed by African

scholars, jurists and activists? By no means.

206 TERRI JENNINGS PERETTI, IN DEFENSE OF A POLITICAL COURT 184 (1999).207 Enoch Dumbutshena, Judicial Activism in the Quest for Justice and Equity, in THE JUDICIARY

IN AFRICA 185, 191-192 (Bola Ajibola & Deon van Zyl, eds., 1998) (emphasis added).

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Without doubt, the gains of global socio-economic rights advocacy through the

jurisprudence of the South African courts cannot but be a veritable pointer to the capacity

of other African States to achieve tangible accomplishment in social justice delivery and

rights-based development if they are so willing.208 Herein lies the very heart of any

credible human rights and development agenda in Africa. The outcome of decisions like

Magaya v. Magaya209 clearly demonstrates the tragic consequences that non-activist

judiciaries portend for Africa and Africans.210

It now behoves African judges, courts, and lawyers as well as human rights

activists to take up the challenge of building a socially relevant and responsive rule-based

human rights system on the domestic fronts. For preliminaries, it will be most appropriate

for African judges, lawyers as well as human rights scholars and activists to ask

themselves the same question as Indian judges had asked themselves since the dark

emergency years until present time:

Can judges really escape addressing themselves to substantial questions of social justice? Can they simply turn round to litigants who come to them for justice and the general public that accords them power, status and respect and tell them that they simply follow the legal text, when they are aware that their actions will perpetuate inequity and injustice? Can they restrict their inquiry into law and life within the narrow confines of a 208 It is noteworthy that since South Africa acceded to the African Charter, only one individual or

inter-state complaint has been brought against it before the African Commission, namely, Prince vs. South Africa (2004) AHRLR 105 (ACHPR 2004). There is no gainsaying that this situation demonstrates the robust output of the institutional structures, particularly the judiciary, in tackling the legal and constitutional challenges for human rights in the relatively ‘new’ state.

209 [1999] 3 LRC 35 (Zimb.) (SC).210 In this case, the Zimbabwean Supreme Court upheld a rule of customary law that denies a

woman heirship to her father’s estate. In this particular instance, the heirship passed to the appellant’s half-brother, son of the late father’s second wife. In its outrageous decision, the Supreme Court held that customary inheritance rules override the constitutional right to non-discrimination. For a scholarly critique of this decision, see David M. Bigge et al, Conflict in Zimbabwean Courts: Women’s Rights and Indigenous Self-Determination in Magaya v. Magaya, 13 HARV. HUM. RTS. J. 289 (2000). Equally outrageous was the refusal of a Lagos State High Court in Nigeria to allow an HIV-positive litigant to enter the courtroom to give evidence in her own case challenging her dismissal from employment on the ground of her HIV status. The judge declined to listen to all arguments that HIV could not be transmitted by the litigant’s entry into the courtroom. See, High Court Judge Denies Person Living With HIV/AIDS Access to Court, SERAC@WORK, July 2001 (Magazine), at 1.

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narrowly defined rule of law? Does the requirement of constitutionalism not make greater demands on the judicial function?211

Even courts that were traditionally conservative are finding it no longer

problematic to identify discriminatory practices where there are any. Strikingly,

discrimination coupled with the denial of access to the necessities of life constitutes the

most problematic obstacle to meeting the goals of good governance, constitutionalism

and sustainable human rights culture in Africa.212

Apart from normative standardization, critical engagement with the integrative

human rights approach will facilitate the opportunity for judiciaries as well as quasi-

judicial bodies in Africa to develop appropriate remedies for all human rights obligations.

Since many ESCR issues are most likely to be fluid and dynamic, national courts would

be able to respond systematically, much like the Indian judiciary has done and is doing, in

rendering purposive constitutional justice to the aggrieved, deprived, marginalized, and

oppressed in Africa.

Far from being an ex cathedra pronouncement on all the dynamics that should

inform critical engagement with the concept of unenumerated rights in African states, this

essay would have fulfilled its purpose if it stimulates further scholarly scrutiny in that

direction.

211 Bhagwati, Fundamental Rights in Their Economic, Social and Cultural Context, VOL. I, supra note 204, at 61.

212 See Tajudeen Abdul Raheem, Pan-Africanism and Constitutionalism, in CONSTITUTIONALISM IN AFRICA: CREATING OPPORTUNITIES, FACING CHALLENGES 5255-57 (Joe Oloka-Onyango, ed., 2001).

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