SERAP vs Federal Republic of Nigeria and Universal Basic Education Commission ECW/CCJ/APP/08/08
Name of Case
SERAP vs Federal Republic of Nigeria and Universal Basic Education Commission
Nigeria, enforceability of the right to education, enforceability of human rights, economic, social and cultural rights, right of people to their wealth and natural resources, jurisdiction, African Charter on Human and People’s Rights.
Community Court of Justice of the Economic Community of West African States (ECOWAS)
The Economic Community Of West African States (ECOWAS) is a regional group of fifteen countries, founded in 1975. Its mission is to promote economic integration in "all fields of economic activity, particularly industry, transport, telecommunications, energy, agriculture, natural resources, commerce, monetary and financial questions, social and cultural matters ....." ECOWAS is one of the pillars of the African Economic Community.
The ECOWAS Member States are: Benin, Burkina Faso, Cape Verde, Cote D’Ivoire, the Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo.
Article 4(g) of the ECOWAS Treaty guarantees its peoples: “The recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and People Rights.”
The plaintiffs alleged the violation of the right to quality education, the right to dignity, the right of peoples to their wealth and natural resources and the right of peoples to economic and social development guaranteed by Articles 1, 2, 17, 21 and 22 of the African Charter on Human and Peoples’ Rights.
The defendants alleged that the ECOWAS (Community Court of Justice of the Economic Community of West African States) lacks jurisdiction to judge this issue because:
- the Compulsory and Basic Education Act 2004 and the Child’s Right Act 2004 are Municipal Laws of Nigeria and, therefore, not a treaty, convention or protocol of ECOWAS;
- “That the educational objective of the Federal Republic of Nigeria is provided for under Section 18 (1), (2) and (3) of Chapter II of the 1999 Constitution and is non justiciable or enforceable and cannot be determined by the court”;
- That the Plaintiff has no locus standi, because the plaintiff has not “suffered any damage, loss or personal injury”.
(Read in open court to the Public 27th October 2009)
Regarding whether the court has jurisdiction to adjudicate on the application filed by the plaintiff the court failed that 13. “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”. 14. “The thrust of plaintiff’s suit is the denial of the right to education for the people of the Federal Republic of Nigeria, denial of the right of people to their wealth and natural resources and the of people to economic and social developments guaranteed by Articles 1, 2, 17, 21 and 22 of the African Charter on Human and People’s Rights of which Nigeria is a signatory. […] the Court does have subject matter jurisdiction of the suit filed by the plaintiff”
Regarding whether the right to education is justiciable and be litigated before the ECOWAS court, the court failed that 19. “the existence of a right in one jurisdiction does not automatically oust its enforcement in the other. They are independent of each other. Under Article 4(g) of the revised Treaty of ECOWAS, Member States of ECOWAS, affirmed and declared their adherence to the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. The first defendant [Federal Republic of Nigeria] is a signatory to the African Charter on Human and Peoples’ Right and re-enacted it as laws of the Federal Republic of Nigeria to assert its commitment to the same. The first defendant is also signatory of the Revised Treaty of ECOWAS and is therefore bound by their provisions”.
Regarding whether the plaintiff lacks locus standi to initiate or maintain this action the court failed that 34 “public international law in general, which is by and large in favour of promoting human rights and limiting the impediments against such a promotion, lends credence to the view that in public interest litigation, the plaintiff need not show that he [or she] has suffered any personal injury or has a special interest that needs to be protected to have standing”.
35 (d) “the court is satisfied that at this stage prima facie facts have emerged in support of the case that the plaintiff has proper standing to bring the action and that the matter is justiciable in this court”.
The Court said that the right to education can be enforced before the Court and dismissed all objections brought by the Federal Government (FG), 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."
"This is the first time an international court has recognized 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." (SERAP's Solicitor Femi Falana).