WUNRN
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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. The
ECOWAS Member States are: Benin, Cape Verde, Cote D’Ivoire, the Gambia, Ghana,
Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone,
Togo. http://www.crin.org/RM/ecowas.asp
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23/11/2009
NIGERIA via ECOWAS - LANDMARK COURT DECISION THAT EDUCATION IS A LEGAL AND HUMAN RIGHT - RIGHT TO EDUCATION FOR GIRLS IN NIGERIA
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 (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."
The ECOWAS Court's decision, made public on 19 November, 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, the right 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."
"Groundbreaking"
"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 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.
Government objections quashed
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."
The Court also said that "As SERAP's claim is premised on Articles 1, 2,
17, 21 and 22 of the African Charter, the Court does have subject matter
jurisdiction of the suit filed by SERAP."
Dismissing the government's argument on locus standi, the Court stated:
"The authorities citied by both the government and SERAP support the
viewpoints canvassed by them. However, we think that the arguments presented by
SERAP are more persuasive for the following reasons: first, the doctrine of
'Actio Popularis' developed under Roman law to allow any citizen to challenge a
breach of public right in Court was a way of ensuring that the restrictive
approach to the issue of standing would not prevent public spirited individuals
from challenging a breach of a public right in Court. Second, SERAP citied
authorities from around the globe which all concur in the view that in a human
rights violation the plaintiff need not be personally affected or have any
special interest worthy of protection."
The Court also said: "Public international law in general is 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 has suffered any personal injury or has a special
interest that needs to be protected to have standing. Plaintiff must establish
that there is a public right which is worthy of protection which has been
allegedly breached and that the matter in question is justiciable. This is a
healthy development in the promotion of human rights and this court must lend
its weight to it, in order to satisfy the aspirations of citizens of the
sub-region in their quest for a pervasive human rights regime."
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