22 November 2009

West Africa: Nigerians Have Legal Right to Education, Ecowas Court Rules

Abuja — In a dramatic and ground-breaking decision, the ECOWAS Community Court of Justice in Abuja has declared that all Nigerians are entitled to education as a legal and human right.

The court said that the right to education can be enforced before the court and dismissed all objections brought by the Federal Government, through the Universal Basic Education Commission (UBEC), that education is "a mere directive policy of the government and not a legal entitlement of the citizens."

The ECOWAS Court's decision, delivered on November 19, followed a suit instituted by the registered trustees of the Socio-Economic Rights and Accountability Project (SERAP) against the Federal Government and UBEC, alleging the violation of the right to quality education, to dignity, the right of peoples to their wealth and natural resources and to economic and social development guaranteed by Articles 1, 2, 17, 21 and 22 of the African Charter on Human and Peoples' Rights.

Reacting to the ruling, SERAP's Solicitor, Femi Falana, who filed and argued the case before the Court with the assistance of Adetokunbo Mumuni, said, "This is the first time an international court has recognised citizens' legal right to education, and sends a clear message to ECOWAS member states, including Nigeria and indeed all African governments, that the denial of this human right to millions of African citizens will not be tolerated."

"We commend the ECOWAS Court for its ground-breaking ruling, which has permanently re-defined human rights jurisprudence in Africa. The ECOWAS Court has consistently demonstrated courage and industry in the discharge of its vital role in putting an end to violation of all human rights and impunity of perpetrators in the sub-region. "We also acknowledge the important contribution of Dr Kolawole Olaniyan of Amnesty International in London, to the case," said Falana.

"The Nigerian government and indeed all African governments should now put every child in school, and educate them at the expense of the state," Falana added.

SERAP's suit (No ECW/CCJ/APP/0808) followed a petition sent by SERAP to the Independent Corrupt Practices and Other Related Offences Commission (ICPC), which led to the discovery by the ICPC of massive corruption and mismanagement of the UBEC funds. The investigation also resulted in the recovery of a stolen N3.4 billion, meant to improve the quality of education and access to education of every Nigerian child. The organisation used the findings of the ICPC as the basis for its suit before the ECOWAS Court.

The Federal Government had alleged, through the UBEC, that "the Court lacks jurisdiction to entertain the action filed by SERAP on the grounds that the Compulsory and Basic Education Act 2004 and the Child's Rights Act 2004 are Municipal Laws of Nigeria and not subject to the jurisdiction of the Court because it is not a treaty of ECOWAS; that the educational objective of Nigeria under the 1999 Constitution is non- justiciable or enforceable; and that SERAP has no locus standi to institute or maintain the action."

Dismissing all the objections by the government, the ECOWAS Court said: "It is important to assess the basis of SERAP's claims in determining the justiciability or otherwise of its claims with respect to the right to education and whether it can be litigated before this Court.

"Though SERAP factually based its claim on the Compulsory and Basic Education Act and the Child's Right Act of Nigeria, it alleged a breach of the right to education contrary to Article 17 of the African Charter on Human and Peoples' Rights and not a breach of the right to education contained under Section II of the 1999 Federal Constitution of Nigeria. It is trite law that this Court is empowered to apply the provisions of the African Charter on Human and Peoples' Rights and Article 17 thereof guarantees the right to education."

"It is well established that the rights guaranteed by the African Charter are justiciable before this Court. Therefore, since SERAP's application was in pursuance of a right guaranteed by the provisions of the African Charter, the contention of the government that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold", the Court further ruled.

On the objection that the court lacks jurisdiction, the Court said: "It is a well established principle of law that jurisdiction is a creature of stature. Under Article 9(4) of the Supplementary Protocol, the Court clearly has jurisdiction to adjudicate on applications concerning the violation of human rights that occur in Member States of ECOWAS.

"The thrust of SERAP's suit is the denial of the right to education for the people of Nigeria, denial of the right of people to their wealth and natural resources and the right of people to economic and social developments guaranteed by Articles 1, 2, 17, 21 and 22 of the African Charter on Human and Peoples' Rights of which Nigeria is a signatory.

"The Court has jurisdiction over human rights enshrined in the African Charter and the fact that these rights are domesticated in the municipal law of Nigeria cannot oust the jurisdiction of the Court."

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