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Law and Development in Nigeria: A Need for Activism

Published online by Cambridge University Press:  03 March 2011

Mamman Lawan
Rights & Permissions [Opens in a new window]

Abstract

This article explores the use of law in development at two levels in Nigeria. Development as a state duty has been provided for under the constitution, thereby creating socio-economic rights for citizens, albeit rights which are unenforceable. Seven development policies drawn up at different times have all also invoked law in one way or another to facilitate the achievement of their respective objectives. Both cases reflect the international trend in their respective discourses. The first approach mirrors the international human rights regime, while the second mimics international development discourse. While the instrumental use of law is desirable, this article argues that it is inadequate. More needs to be done to supplement it. First, courts need to adopt a radical interpretation of the constitutional provisions to make socio-economic rights enforceable. Secondly, people need to be active citizens through participation in the development process.

Information

Type
Research Article
Information
Journal of African Law , Volume 55 , Issue 1 , April 2011, pp. 59 - 85
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

In an effort to bring about development, various administrations at the federal level in Nigeria have over the years drawn up at least seven development policies. These policies reflect a “swing of the pendulum”. At first, the state was the be-all and end-all of development, with an emphasis on economic growth. In the mid 1980s, it retreated to give way to the market. At the turn of the millennium, focus shifted to human development without prejudice to the centrality of the market. In each of these stages, law has played an instrumental role. By virtue of its colonial history, Nigeria applies positive law among other normative systems. Positive law by its nature is purposive. In Weber's terminology, it is “a formal rationality”.Footnote 1 Thus the state uses it as an instrument not only for social control, but also for development. At a fundamental level, the Nigerian Constitution has been used to institutionalize the developmental duty of the state. At an ordinary level, law has been invoked as an aiding instrument within the seven development policies.

This article traces the invocation of law at these two levels. It argues that, by institutionalizing state developmental duty, the law created a corresponding right to development for citizens. It reveals that the “swing of the pendulum” in the development approach goes with a similar swing in the use of law in the seven policies. For instance, in the first phase (1960s–70s), policies invoked statutory laws to create state development institutions and to nationalize the economy. In the second phase (1980s), law facilitated the retreat of the state and the advancement of the market. More recently (since 1997), policies have included the rule of law and good governance as critical factors in development. This article argues that, at both levels, the invocation of law was influenced by general international discourse. Development in the constitution concretizes the socio-economic rights embodied in international human rights instruments. Law in development policies on the other hand follows interventionism and neo-liberalism in its different phases. While acknowledging that instrumental use of law is laudable, the article suggests that it needs to be fortified by activism.

INSTITUTIONALIZING DEVELOPMENT DUTY

Development is said to have been the state's raison d'être. This claim is rooted in the social contract theoryFootnote 2 according to which citizens surrender their sovereignty to the state in return for protection of life and property and, at a higher level, provision of an adequate standard of living. Aristotle speaks in this sense when he states that “a state's purpose is not merely to provide a living but to make a life that is good. Otherwise it might be made up of slaves or animals other than man”.Footnote 3 In performing its own part of the contract, the state usually embarks on programmes in various aspects of human needs like health, education, economic empowerment, housing and other social facilities. These are all variables that constitute development, and engagement with them is a developmental endeavour.

In Nigeria, the state recognized these development variables for the first time in chapter II of its 1979 constitution as part of the fundamental objectives and directive principles of state policy. The current 1999 constitution maintained these provisions. It starts with a declaration that “the security and welfare of the people shall be the primary purpose of government”.Footnote 4 By this provision, the constitution accepts that development is the raison d'être of the state. It also effectively institutionalizes the social contract between it and its citizens. Following from this, it specifically states what the state shall do in the discharge of this duty. The economy being central to development, the constitution provides that the state shall: “harness the resources of the nation and promote national prosperity and an efficient, dynamic and self-reliant economy”;Footnote 5 and “control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity”.Footnote 6

The constitution then moves on to particular issues on which the state must focus in its development policy. It provides that the state shall direct its policy towards ensuring that:

  • • “the material resources of the community are harnessed and distributed as best as possible to serve the common good”;Footnote 7

  • • “suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment and sick benefits are provided for all citizens”;Footnote 8

  • • all citizens have the opportunity of securing adequate means of livelihood and adequate opportunity to secure suitable employment;Footnote 9

  • • “there are adequate medical and health facilities for all persons”;Footnote 10

  • • “there are equal and adequate educational opportunities at all levels”;Footnote 11

  • • government strives to eradicate illiteracy by providing, as and when practicable, free, compulsory and universal primary education, free secondary education, free university education and a free adult literacy programme.Footnote 12

From this, it can be argued that the constitution has made development a duty for the state, notwithstanding its aspirational nature. This is supported by the fact that the constitution expressly refers to the provisions as duties which the state owes its citizens. Section 13 unequivocally provides that “[i]t shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions”. From a jurisprudential point of view, duty presupposes the existence of a right because the two are legally correlated, except where the duty is an absolute one.Footnote 13 To the extent therefore that development is a state duty, it is the citizens' right. Indeed, in the human rights discourse, the constituents of development as spelt out above are known as socio-economic rights.

Socio-economic rights are positive human rights in that they require the state to take certain developmental measures. They are the counterpart of civil and political rightsFootnote 14 which were originally negative human rights protecting the individual from the state. The constitution merely adopted a bifurcated approach to the two sets of human rights. The former are provided for as aspirational human rights under chapter 2 of the constitution; they are clearly made non-justiciable as the constitution states that judicial powers conferred on the courts do not extend to any issue or question as to whether any act or omission, or any law or judicial decision, conforms with the rights.Footnote 15 The latter rights have been provided for by all of Nigeria's constitutions since independence in 1960.Footnote 16 They are now contained in chapter 4 of the 1999 constitution as “Fundamental Human Rights” and they have been made justiciable.Footnote 17 They were also justiciable in all the previous constitutions.Footnote 18

As they stand, the two sets of rights in the constitution are distinguishable in terms of enforceability. This distinction was recognized by the courts, as can be seen in the case of Uzoukwu v Ezeonu II where the court stated that:Footnote 19

“Due to the development of Constitutional law in this field distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’… Fundamental rights … are fundamental because they have been guaranteed by the fundamental law of the country; that is the Constitution… [They] are protected and enforced under the Constitution… There are other rights which may pertain to a person which are neither fundamental nor justiciable in the Courts. These may include rights given by the Constitution as under the Fundamental Objectives and Directive Principles of State Policy under Chapter III [sic] of the Constitution.”

The non-justiciability of the provisions can hardly be justified.Footnote 20 The traditional justification that implementation of civil and political rights costs nothing while that of socio-economic rights is costly is not always plausible. Implementation of the former requires institutional structures the running of which entails costs as well. In any case, Nigeria is reasonably self-sufficient courtesy of its abundant oil resources and cannot therefore feign impecuniousness, so as to leave implementation of developmental rights merely aspirational. In fact, it is only when a certain level of development is achieved that civil and political rights can be enjoyed. As rightly pointed out by Bhagwatti J in Minerva Mills Ltd v Union of India,Footnote 21 civil and political rights will be meaningless to people shackled by poverty, disease and illiteracy:

“[T]o the large majority of people who are living an almost subhuman existence in conditions of abject poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberty, though representing some of the most cherished values of free society, would sound as empty words bandied about only in the drawing rooms of the rich and well-to-do and the only solution for making these rights meaningful to them was to re-make the material conditions and usher in a new social order where socio-economic justice will inform all institutions of public life so that the pre-conditions of fundamental liberties for all may be secured. It was necessary to create socio-economic conditions in which every citizen of the country would be able to exercise civil and political rights and they will not remain the preserve of only a fortunate few.”Footnote 22

Unlike Nigeria, socio-economic rights in South Africa are enforceable against the state. Chapter 2, the Bill of Rights, of the constitution of the Republic of South Africa 1996 (as amended in 2003) contains both civil and political, and socio-economic rights. Section 26 guarantees the right to access adequate housing; section 27 guarantees the right to access health care services (including reproductive health care), sufficient food and water, and social security; section 29 guarantees the right to basic (including adult basic) education, and to further education as reasonably and progressively made available and accessible by the state. By virtue of section 38, all these rights are justiciable.Footnote 23

Suffice it to say, the enforceability of rights helps to define and strengthen them. For instance, the rule of law in England is traceable to the definition and enforcement of individual rights by courts. Such defined and enforced rights are the source, rather than the result, of English constitutional law.Footnote 24 Although enforceability of a right is important to its enjoyment, the quality of being a right cannot be said to be dependent upon that enforceability. Development can therefore be said to be a human right under the Nigerian Constitution despite the fact that it is not enforceable.

The institutionalization of development as a human right in Nigeria is influenced by the international human rights regime. Development has long been a matter for international human rights law because what the International Bill of Human RightsFootnote 25 has been championing is the enrichment of people's lives and freedoms. For instance, article 55(a) of the United Nations (UN) Charter enjoins the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development”. Similarly, article 25 of the Universal Declaration of Human Rights (UDHR) guarantees for everyone “the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. The International Covenant on Economic, Social and Cultural Rights (ICESCR) also guarantees the right, among others, to an adequate standard of living, health and education for everyone under its articles 11, 12 and 13. The UDHR in particular is an embodiment of civil and political as well as socio-economic rights. The former were concretized in the International Covenant on Civil and Political Rights (ICCPR)Footnote 26 while the latter were concretized in ICESCR. It is the civil and political rights which found expression in chapter 4 of the Nigerian Constitution as enforceable human rights; socio-economic rights were reflected in chapter 2 as non-enforceable human rights.

What the instruments mentioned above did was to guarantee a right to the various constituents of development. Development as a whole became a human right with the Declaration on the Right to DevelopmentFootnote 27 which the UN General Assembly passed in 1986 (the Declaration). In its preamble, the Declaration recognized that development is a comprehensive economic, social, cultural and political process aimed at the improvement of the well-being of people based on their active participation in that process and in the fair distribution of benefits resulting from it. It also invoked the UN Charter, the UDHR, the ICCPR, the ICESCR and other international instruments relevant to development in declaring the right to development. The Declaration clearly provides in article 1 that: “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”.

The Declaration also places a duty upon states to create national and international conditions favourable to the realization of the right to development,Footnote 28 calling measures to be taken at national level to ensure equal access for all people to basic resources, education, health services, food, housing, employment and the fair distribution of income.Footnote 29 It also declares that all human rights and fundamental freedoms are indivisible and interdependent, and therefore that equal attention should be given to their implementation.Footnote 30 It is germane to state that, though the right to development has been welcomed as a giant step worth developing,Footnote 31 it is not without its critics. Donnelly for instance does not see it as a human right. He argues that, at best, international human rights laws “treat development as a goal rather than a right”.Footnote 32

The idea of development as a human right was fortified at the turn of the millennium. According to the UN Development Programme (UNDP),Footnote 33 human rights and human development share a common vision and a common purpose: the former an intrinsic part of the latter and the latter a means to realizing the former. Human rights are seen as both instrumental to, and constitutive of, development. For instance, freedom of expression requires some measure of social facility in the form of education and health. Similarly, freedom from poverty could remove the shackles of disease and illiteracy. Development requires individual agency, and individual capability is in turn greatly influenced by surrounding social factors. Expanding freedom is therefore both the primary end and the principal means of development.Footnote 34

With the development provisions under the 1999 constitution, we can say that not only has development duty been institutionalized, thereby creating a development right, but that the entire institutionalization approach cannot be separated from the wider international discourse of human rights, as both an instrument and a constituent of development.

LAW IN DEVELOPMENT POLICIES

It has been suggested that it is important for any development policy to take cognizance of the institutions under which it is to occur.Footnote 35 Law is one such institution under which development occurs. Fortunately, it has been recognized as an aiding instrument in Nigeria's development policies. Nigeria had at least seven such policies between 1962 and 2003 and they came in three phases. The first phase was when the state was at the forefront in development and it emphasized economic growth; that was when four National Development Plans were drawn up in succession. The second phase represented the period of structural adjustment when the state started to retreat. The final phase represents a shift of emphasis from economic growth to human development.

The first phase

All four National Development Plans focused on economic growth as a means of raising the standard of living for the citizens of Nigeria.Footnote 36 The first plan (1962–68)Footnote 37 was a launch plan, intended to take Nigeria to a point where it could independently generate the bulk of the resources it needed for development. The military coup in 1966 terminated that plan. The second plan (1970–74) came after the civil war and sought to build a self-reliant nation and a just and egalitarian society. The third plan (1975–80) was the most ambitious of all the plans as it came in the midst of the oil windfall of the mid 1970s. It shared the previous plan's philosophical framework and sought to seize the windfall opportunity to achieve a rapid increase in the standard of living for Nigerians. The fourth plan (1981–85) sought to consolidate the gains of the previous ones, focusing on a more even distribution of income among individuals and socio-economic groups.

The idea of economic growth being central to development was a post-World War II idea and it came to dominate the development discourse. The yardstick for measuring development was the gross domestic product (GDP) and gross national product (GNP) per capita. This was what the World Bank adopted in classifying almost two-thirds of the world as underdeveloped in 1948 for having an annual per capita GNP below $100.Footnote 38 This was also the time when interventionism was in vogue in the development discourse. The state was not seen as a mere enabler for development, it was the centre around which development revolved. It was seen as an embodiment of the collective will of the people and therefore in a better position to tailor the economy in such a way as to serve human needs.

In the later stage of the development discourse, law found a role in a project for the modernization of the third world. It was the Law and Development Movement (LDM), initiated by the West and which held sway in the 1960s and 1970s. It came up with a model, derived from liberal American thought on law, which sought specifically to explain the relationship between legal systems and development in the third world. Law was seen as a necessary element in development as well as an instrument to achieve it and, as a result, legal development was also necessary. “Legal development would enlarge the sphere of liberty and simultaneously guarantee that governments would act in accordance with the wishes of the citizens. Moreover, law was also associated with rational, instrumental action to secure greater material well-being and other developmental goals.”Footnote 39

With its predictability derived from uniform application, and its protection of proprietary rights through laws of contract and property, modern law could encourage economic activity and attract foreign investment. More directly, it was seen as an effective and penetrating instrument through which the state could consciously achieve economic development goals. But modern law and development-oriented legal training were lacking in the third world. In addition to the absence of or general lack of adequate provisions on commerce, finance, labour, social welfare, obligations and property, there were no such institutions as planning, import control, central banking, exchange control, limitations on repatriation of profits, or income taxation, etc. It therefore became necessary to import them to achieve development, though with minor modifications to take care of local circumstances, and as a concession to customary law.Footnote 40

There was no replication of the LDM in the National Development Plans because it was a practical project coming from abroad. It was funded largely by the US government, and the Ford and Rockefeller Foundations, as a non-communist strategy for modernizing the third world.Footnote 41 In it, more than 150 American lawyers are said to have participated in various assignments in third world countries between 1961 and 1971. For example, some scholars were dispatched to teach in law schools while others were sent mainly to assess the feasibility of transferring American legal institutions and experience to these countries with a view to achieving their development.Footnote 42

The LDM had a prescription in the political sphere in that it saw modern law not only as essential in creating a strong state and facilitating public participation, but also in checking the state's use of arbitrary power through an independent judiciary and techniques such as judicial review.Footnote 43 The National Development Plans did not apparently use the political prescription. They merely started focusing on utilizing statutory laws in establishing some of the absent financial institutions which were necessary for development. For instance, during the first plan, several development institutions were created through law. These included the Nigerian Industrial Development Bank, various chambers of commerce and the Lagos Stock Exchange. The Insurance Bill of 1962 also initiated the establishment of the National Insurance Company of Nigeria.Footnote 44 The Central Bank of Nigeria Act (Amendment) DecreeFootnote 45 was also promulgated to make the bank the source of Marketing Board finance, to formalize the existing practice of close consultation between the bank and the Federal Ministry of Finance and to give the bank additional powers of credit control.Footnote 46 A Companies Decree was promulgated requiring all foreign companies with business in Nigeria to be locally incorporated.Footnote 47

In what amounted to an assertion of independence, the second National Development Plan made local control of the economy a strategy for reducing poverty and achieving its overall objectives. This was in line with the interventionist idea of putting the state at the centre of the development process. Nigeria was not far away from independence and its economy was dominated by foreign interests up to the time of the plan. Government thus sought to regulate the use of resources for the benefit of the Nigerian community at large as well as to control the essential and growth-sensitive sectors of the country in the fields of commerce, industry, fuel and energy, construction, transport, finance and education.Footnote 48 The plan stated that the basic objective of planning in Nigeria was not merely to accelerate the rate of economic growth; it was also to give her an increasing measure of control over her own destiny.Footnote 49 It was based on this that the government acquired varying participation interests in all the multi-national oil companies operating in Nigeria beginning from April 1971.Footnote 50 The intention was not merely for the government to be involved in economic activities, it also wanted the direct participation of citizens as well. This found expression in the government's indigenization policy.Footnote 51

Law was to facilitate the implementation of the indigenization policy. So, in February 1972, the government promulgated the Nigerian Enterprises Promotion Decree (NEP Decree)Footnote 52 under which it created the Nigerian Enterprises Promotion Board “to advance and develop the promotion of enterprises in which citizens of Nigeria shall participate fully and play a dominant role”.Footnote 53 The NEP Decree “exclusively reserved for Nigerian citizens or associations”Footnote 54 certain enterprises listed in its schedule 1Footnote 55 such that, as from 31 March 1974,Footnote 56 “no person, other than a Nigerian citizen or association, shall be the owner or part owner of any such enterprise in Nigeria”;Footnote 57 and, on or after the commencement of the decree,Footnote 58 no alien enterprise shall be established in Nigeria.Footnote 59 The enterprises listed under the schedule were thought to be those which Nigerians could manage themselves.

In enterprises which Nigerians did not have the competence to manage, the NEP Decree allowed aliens to participate subject to certain conditions. These enterprises were listed in schedule 2 of the decree.Footnote 60 It provided that no alien shall, from 31 March 1974,Footnote 61 be the owner or part owner of any such enterprise where: (i) the paid-up share capital of the enterprise did not exceed £200,000; or (ii) the turnover of the enterprise did not exceed £500,000; or (iii) if the said capital or turnover exceeded the stated respective amounts, where the equity participation of Nigerian citizens or associations in the enterprise was less than 40 per cent. Furthermore, no alien enterprise shall be established on or after the commencement of the NEP Decree in respect of any of such enterprises, or continue to be operated otherwise than as permitted under the decree.Footnote 62

The third plan continued with the indigenization policy. In fact, the policy was one of the specific short-term objectives aimed at facilitating the ultimate realization of the national objectives of the plan. Law was to continue to legalize the policy and therefore the NEP Decree continued to be the enabling law. The plan stated that:

“It has long been government's objective to increase the participation of Nigerians in domestic trade, industry and other economic activities. This policy, which was given effect in the Nigerian Enterprises Promotion Decree of 1972, will be consolidated during the Plan period. Nigerians will be encouraged, through the provision of information, financial and technical assistance to branch into activities now dominated by foreigners. While foreign enterprise will continue to be welcome, policy will be directed at ensuring that Nigerian entrepreneurship is present and dominant in all sectors of the economy.”Footnote 63

Thus, as a condition for the award of public contracts under the Plan, private firms were required to employ a certain number of Nigerian professionals and technical personnel in proportion to the level of the contract award. The plan allocated one million naira for the establishment of a Nigerianization Enforcement Agency under the auspices of the Federal Ministry of Economic Development and Reconstruction, with the objective of evolving and enforcing programmes of indigenization.Footnote 64 It was during the plan period that the original NEP Decree was repealed and replaced with the NEP Decree of 1977. This new decree reclassified enterprises into three groups: enterprises in schedule 1 (now much longer) were reserved exclusively for Nigerians; aliens could have an interest in enterprises listed in schedule 2 provided equity participation for Nigerians was not less than 60 per cent; and aliens could have an interest in enterprises listed in schedule 3 (highly specialized industrial enterprises such as shipbuilding and motor vehicle manufacturing), provided equity participation for Nigerians was not less than 40 per cent.Footnote 65

The fourth plan was similar to the previous plans and sought to consolidate the gains they made. It was however overtaken by a change of paradigm.

The second phase

Unlike the previous times when the state dominated the development process, the 1980s was a period when the market held sway. The International Monetary Fund and the World Bank advocated a paradigm shift from interventionism to neo-liberalism under the Structural Adjustment Program (SAP). The state was seen as the cog in the wheel of development in developing countries and so it must retreat to give way for the market. With the failure of many state-led experiments, the “left” became weak towards the end of the 1970s. The 1980s therefore saw the experimentation of the right-based approach of less state more market. Dictated by the Bretton Woods system, most developing countries adopted SAP. The programme involved deregulation of the economy, privatization of public enterprises, fiscal austerity, downsizing the public workforce, currency devaluation, etc. Essentially, it sought “to increase the powers and freedoms of entrepreneurs and investors, increase pecuniary incentives and competition, lower costs, restore macroeconomic stability, and make the state leaner and reduce its presence in the economy”.Footnote 66

Law had a major role to play under SAP. The World Bank's interest in the role of law in development grew as part of this programme.Footnote 67 This was the New Law and Development Movement era. Disbursement of loans to third world countries under the programme was made conditional on the adoption of legal reforms specifically on trade and investment.Footnote 68 The reforms “were narrowly tailored to introduce fiscal reform, ending exchange-rate controls, liberalizing trade, securing property rights, ending subsidies, and privatizing state-owned enterprises”.Footnote 69 The main aim was to maximize the role of the market and minimize that of the state in development. Trubek and Santos shed more light on this:

“Rather than [being] an instrument for state policy, law was understood as the foundation for market relations and as a limit on the state … Attention shifted from the establishment of an administrative state to the core institutions of private law, the role of the judiciary in protecting business against the intrusion of government, and the need to change local laws to facilitate integration into the world economy … Neo-liberal law and development thought focused primarily on the law of the market: relatively little concern was shown for law as a guarantor of political and civil rights or as protector of the weak and disadvantaged.”Footnote 70

It seemed obvious that the new programme on law and development was fundamentally the old approach in a new guise, not least because of its ideological underpinnings. It had “the hallmarks of the old ones”Footnote 71 and both were based on the paradigm of liberal legalism. Perry describes the new approach more appropriately as: “[building] upon the apparently ‘discredited’ Weberian thoughts of the law and development movement, suggesting that, in the context of a market economy, the Western liberal democratic paradigm offers a (if not the) model for legal reform”.Footnote 72

It may be argued however that, despite this similarity, the old and new approaches differ in the sense that the old approach regarded the state as the centre which would initiate and promote the process of economic development, while the new approach emphasizes a market-friendly state, though not in the sense of laissez-faire liberalism, but where law merely facilitates market transactions.Footnote 73

Nigeria launched SAP in June 1986 during the Babangida administration. To be sure, SAP was not about written sectoral planning as the previous development plans had been, but it was undoubtedly a turning point in the history of Nigeria's development policy, in that it resulted in a reversal of some sort in the indigenization policy. Among other measures, the local market was to be open and local currency was to be devalued to allow for foreign direct investment.

Nigeria complied with the legal reform prescribed by the Bretton Woods system though it did not take any loans at the time. The Babangida regime promulgated a number of decrees to facilitate SAP. For instance, it promulgated the Second-Tier Foreign Exchange Market Decree of 1986,Footnote 74 establishing the Second-Tier Foreign Exchange Market (SFEM). Its purpose was to devalue the Nigerian currency (naira). It was through SFEM that all routine foreign exchange transactions, including all government imports, were to be channelled.Footnote 75 It was gradually meant to absorb the unofficial parallel foreign exchange market which existed. SFEM and downward adjustments to the official exchange rate of the naira were a two-pronged approach meant to correct the continued overvaluation of the naira.Footnote 76 Through SFEM (later FEM), the naira was to float under the management of the Central Bank. Each week the bank announced in advance how much US dollar foreign exchange it would put in the market. Banks would bid for that supply and the marginal rate at the bidding session determined the exchange rate for that week.Footnote 77 SFEM was important because a market-determined foreign exchange rate was the focal point of SAP.Footnote 78

The government also promulgated the Privatization and Commercialization DecreeFootnote 79 which enabled the privatization and commercialization of public enterprises. Under it, public enterprises were categorized into four main groups: those to be fully privatized,Footnote 80 partially privatized,Footnote 81 fully commercialized,Footnote 82 and partially commercialized.Footnote 83 A Technical Committee on Privatization and Commercialization was established to carry out the privatization exercise.

The NEP Decree of 1977 was repealed and replaced with the NEP ActFootnote 84 in 1989 in order to remove most of the restrictions on ownership and control of enterprises. This act did away with the classification of enterprises in the 1977 decree and created a short list of enterprises in one schedule.Footnote 85 Participation in these enterprises was reserved exclusively for Nigerians. Foreigners were free to have total ownership in, and control of, enterprises not included in the list.Footnote 86

Legal reform on civil justice was also underway to ensure effective enforcement of contractual obligations. The Federal High Court Civil Procedure Rules were reviewed in 1992. The states also reviewed their respective High Court Civil Procedure Rules in succession. Lagos State set the pace and was followed by other states.

The paradigm shift from “left” to “right” did not however affect government's developmental duty. Sectors where development matters most, ie social services like education, health and water, were not fully privatized.Footnote 87 In any case, the idea of the shift was to facilitate economic growth which would in turn improve people's standard of living. So development was still government's business.

The third phase

The 1990s witnessed a change of gear in the development discourse. Development came to be understood as a people-centred process, no longer dominated by economic analysis. In its World Development Report, 1999/2000, the World Bank acknowledges “that development must move beyond economic growth to encompass important social goals - reduced poverty, improved quality of life, enhanced opportunities for better education and health, and more”.Footnote 88

In 1992, the World Bank came up with a governance agenda as a recipe for development. It defines governance as “the manner in which power is exercised in the management of a country's economic and social resources for development”.Footnote 89 It therefore exhorts transition economies and developing countries to embrace good governance as a means of development. It states that “good governance is … synonymous with sound development management [and it] is central to creating and sustaining an environment which fosters strong and equitable development, and it is an essential complement to sound economic policies”.Footnote 90

The state is an indispensable agent in development. In addition to providing public goods, it provides the rule of law which ensures the stability needed “for economic actors - entrepreneurs, farmers, and workers - to assess economic opportunities and risks, to make investments of capital and labour, to transact business with each other, and to have reasonable assurance or recourse against arbitrary interference or expropriation”.Footnote 91 This is necessary because the World Bank identifies lack of an adequate legal framework to be one of the symptoms of bad governance.Footnote 92 Because the framework for development does not evolve on its own, the state as an agent needs to have a system of accountability and transparency to function effectively. In other words, the state must have the capacity to work.

Clearly, the end that the bank had in mind was overall development through market-led economic growth. Private proprietary interests must be protected and effective enforcement of private contracts ensured. The working of the state is therefore crucial for, without it, the market cannot function well.

Nigeria's first opportunity to reflect the World Bank's idea in a development policy came in 1997 when it established the Vision 2010 Committee. This came against the background of the unanimous conviction of Nigerians that development in the country lay far below its potential and the aspirations of her people. The committee's task was “to develop a blueprint of measures and action plans which when implemented can ensure the realization of Nigeria's widely acknowledged potential by the time the nation is 50 years old as an independent country in the year 2010”.Footnote 93 The vision was markedly different from previous plans in the sense that it did not have a capital expenditure to be allocated to various developmental sectors. This point was made clear by the then head of state, General Sani Abacha, during the inauguration of the committee when he said “to equate annual budgets, rolling plans and perspective plans with the Vision 2010 exercise is to miss the point. Budgets and rolling plans will only constitute sub-sets of Vision 2010, which will go beyond the realm of economics to encompass every facet of our national life.”Footnote 94

The development process adopted by the committee was therefore “people-centred, broad-based, self-reliant, market-oriented, highly competitive and private sector-driven, with the government as the proactive enabler”.Footnote 95 It made the well-being of all the people to be the overriding purpose of governance and the economy at all times.Footnote 96 The overall vision of Vision 2010 was to help Nigeria become “a united, industrious, caring and God-fearing democratic society, committed to making the basic needs of life affordable for everyone, and creating Africa's leading economy”.Footnote 97

In achieving its developmental goals, the committee's report identified 13 critical success factors.Footnote 98 Five of these have a legal content: norms and standards,Footnote 99 anti-corruption,Footnote 100 openness,Footnote 101 law and order,Footnote 102 and good and stable governance.Footnote 103 It regrouped the first three into a value system which includes honesty, integrity, hard work and respect for constituted authority. The other two factors are regrouped under the governing system.Footnote 104

The report underscored 12 core values apparently seen as commonly acceptable. Against each core value it identified certain constitutive elements. Among these are honesty and accountability. The elements set against this value are: truthfulness and integrity; recognition of integrity and reward for honesty; and sanctions against crime and corruption. It underscores how the level of efficiency in the public (and private) sector depends largely “on how accountable the entire citizenry is for its actions and behaviour”.Footnote 105 A situation where some people live beyond their legitimate income discourages accountability in others. Honesty and integrity must be rewarded, while dishonesty, corruption and other criminal behaviours must be sanctioned.Footnote 106

There is also the value of openness and transparency. How could a public office for instance be accountable to people without being open and transparent? The two values are therefore two sides of a coin. Governance is better when people have easy access to information, when government on its own discloses information on decisions affecting the public and when freedom of expression and other rights of the people are respected. The value reinforces accountability because the more informed and the more able to express themselves people are, the more empowered they become to call government to order whenever it goes astray.

Constitutive elements of the core value of discipline are identified to include leadership by example, the rule of law, respect for constituted authority, and sanctions against indiscipline. Already, the vision had recognized that respect for human rights, constitutional government, the rule of law and transparency, and accountability in the exercise of power are crucial to development.Footnote 107 Similar ideals and involving the community in legal reforms, ensuring an independent judiciary, and improving access to timely and fair justice have been recognized as necessary to achieve an effective and efficient judicial and law enforcement system.Footnote 108

The primary economic objective of Vision 2010 was liberalization. Deregulating and liberalizing the economy therefore featured as a strategy for achieving it. Thus, like under SAP, law was to facilitate the liberal agenda through either creating a new law or reviewing existing laws. For instance, in order to use natural resources to diversify the economy, the vision identified one strategy to be reforming “land ownership laws to make land readily and speedily accessible to both local and foreign investors”.Footnote 109 Similarly, it stated that implementing supportive regulations in the area of intellectual property, consumer protection, anti corruption, etc is another strategy.Footnote 110

In developing an efficient and competitive financial system that caters for the long-term needs of the economy, the vision made the first strategy: reviewing, updating and implementing existing provisions in relevant laws designed to ensure the professionalism and probity of owners, operators and regulators.Footnote 111 It also adopted as a strategy establishing the Nigerian Urban and Regional Planning Commission in line with the provisions of Decree 88 of 1990 in order to invest in critical sectors of the economy in both urban and rural communities. Similarly, it sought to enact a new pensions law in order to make Nigeria a preferred country for investment by both local and foreign investors, and increase the level of domestic savings as a source of sustainable funds for development.Footnote 112

A more recent development policy in the third phase is the National Economic Empowerment and Development Strategy (NEEDS). It was drawn up in 2003 following in the footsteps of Vision 2010. It proposed “to make poverty a thing of the past in Nigeria [and to make the country] Africa's largest economy and a major player in the global economy”.Footnote 113 It adopted four strategies in pursuit of this: reorientation of values; reduction of poverty (which required acting on several fronts); creation of wealth; and generation of employment. These would in turn require an effective macroeconomic framework. The policy then came up with three “pillars” on which, it said, its success rested.Footnote 114 These pillars were empowering people, promoting private enterpriseFootnote 115 and changing the way government works.Footnote 116

It was in the second and third pillars that NEEDS found roles for law. One specific measure in promoting private enterprises is improvement of security, the rule of law and the timely enforcement of contracts. Reduction of policy-related costs and risks such as a weak legal system is another specific measure.Footnote 117 For instance, at institutional and administrative level, judges and lawyers would be trained in specialized areas, dissemination of decisions broadened, facilities and equipment in courthouses improved, an alternative dispute resolution system created, and commercial courts established.Footnote 118

To support competition under which private enterprises grow, NEEDS stated that government would enact consumer protection and competition laws to protect consumers from monopolistic and unfair trade practices which are direct upshots of market deregulation and privatization. It would also prevent unfair trade practices that may hinder the growth of weaker firms.Footnote 119 Government would also implement the Comprehensive Tax Reform Bill in order to eliminate multiple taxation and fiscal harassment, improve collections and remove barriers to the growth of a vibrant private sector.

In changing the way government works, NEEDS underscored legal reforms to ensure transparency and accountability of public institutions. The reform agenda includes tackling corruption and improving transparency in government accounts and joint venture oil companies.Footnote 120 It was in line with this that the government established by law the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Crimes Commission to enforce anti-corruption laws. The former was established under the Economic and Financial Crimes Commission Act 2004 while the latter was established under the Corrupt Practices (and Other Related Offences) Act 2000. The work of these commissions was to be complemented by reforms in the administration of justice and the police. It also established the Extractive Industries Transparency Initiative, aimed at encouraging the Nigerian National Petroleum Corporation and other oil companies to disclose fully their revenue and cost of operations. NEEDS also stated that the government was pushing for the enactment of a Public Procurement Commission Bill to enhance due process.Footnote 121

Law has been invoked to give effect to the government's monetization policy as one way of reducing incentives for corruption. Under the Certain Political, Public and Judicial Office Holders Act 2002,Footnote 122 official benefits such as cars, housing, utilities, domestic assistance and drivers were monetized in order to reduce the cost of governance and prevent abuse.Footnote 123 In another instance, NEEDS stated that a Fiscal Responsibility Bill would be enacted into law in order to strengthen and make budget processes more transparent at all tiers of government. NEEDS also sought to eliminate conflicts and delays in the legislature enacting appropriation bills into law by addressing the role of the legislature in the budget process.Footnote 124

NEEDS also planned to improve security and the administration of justice in order to secure life and property. Among measures taken were improving the judiciary and police, protecting and promoting human rights, and punishing corrupt practices among security operatives.Footnote 125 In improving the judicial system, NEEDS planned to take three measures:

  • • Partner with the private sector in designing and implementing measures such as setting up a Law and Economy Group to articulate necessary reforms in commercial laws. This was aimed at creating a legal environment conducive to capital inflow and competition.

  • • Increase access to civil justice by simplifying legal proceedings and the law itself, lowering the cost of litigation, reducing delays and evolving an African model for an alternative dispute resolution system.

  • • Create an effective criminal justice system by eliminating delays in trials, removing corrupt officers, training support staff, equipping libraries and introducing computerized recording systems.

It is important to note that the goals of NEEDS are far from achieved. The incidence of poverty is still high in Nigeria.Footnote 126 The way government works has also not changed, as corruption still thrives in the country.Footnote 127 The promised reform of the judicial system which would support private entrepreneurship and help combat corruption has not been fulfilled either. For instance, the system has apparently failed to try former governors (who served during the Obasanjo regime), arraigned on various corruption charges by the EFCC. These include Rev Jolly Nyame of Taraba State, Orji Kalu of Abia State, Saminu Turaki of Jigawa State, Joshua Dariye of Plateau State and James Ibori of Delta State. There are strong indications that the suspects, who are on open-ended bails, have used their influence to frustrate the trials by all means. Already, the EFCC has been weakened through two successive changes in its leadership.Footnote 128 A number of the accused ex-governors are now “on the Presidential guest list and act as Presidential envoys!”Footnote 129 Courts have even started issuing injunctions restraining the EFCC from taking further action against some of them despite ample evidence that they have cases to answer. One instance is a Federal High Court injunction recently issued in favour of the former governor of Rivers State, Peter Odili.Footnote 130

From this discussion, it is clear that the four National Development Plans invoked law in creating development institutions and in giving effect to the indigenization and nationalization policy. The institution-creating function was invoked in the first plan and of course this was the first to be expected because Nigeria was in the early stage of development at that time. From the second plan, law assumed a more substantial role of actualizing the indigenization-nationalization policy. This too was understandable in view of the need to empower the country's citizens. On the whole, the plans sought to put control of the development process in the hands of the state, typical of the interventionist idea in vogue then.

The neo-liberal policy of structural adjustment undoubtedly had a role for law. That role was limited to pushing back the state and advancing the market. Here too, statutes played a significant part besides the reform of the civil justice system, but everything was centred on the market. The focus was on the ability of the legal system to guarantee the calculability and predictability which investors need in an economy.

Neither Vision 2010 nor NEEDS de-emphasized the market. In this respect, they confirmed and rejuvenated the SAP agenda. That was why their invocation of law in the economic sphere was similar to the role given to law under SAP. However, their inclusion of the role of the state as an enabler distinguished them from the previous policies. That also explains their invocation of the rule of law, accountability and transparency. This measure was unprecedented in Nigeria's development policy. It did not come as a surprise, because the approach was then in vogue in development discourse. However, it needs to be noted that, while NEEDS claims to follow Vision 2010, it has not invoked the rule of law as much as the vision did. It emphasized informal core values more and leant towards the establishment of institutions to fight corruption and reform the judiciary. However it is more holistic than the vision in the sense that it treated its three pillar strategy for development conjunctively rather than disjunctively. Yet it has failed to achieve its goals as noted above and the government has not yet enacted the laws proposed under it, such as the Fiscal Responsibility and Public Procurement Commission laws.

Suffice it to say that each of the ways in which law was invoked as instrument of development is important. However, institutionalizing the state's developmental duty and the more recent good governance approach are more important. Without them, there would be no good framework for development. They are needed for the protection of both public and private property and to ensure the state's discharge of developmental duty. However, the entire measures, plausible as they appear, are inadequate to trigger development on their own. The chances of success are very slim. Perhaps this is one reason why Nigeria's rankings in the UNDP's Human Development Index have been low ever since it was included in the assessments.Footnote 131 The ranking is a reflection of the country's crisis of development. It mirrors the extent of its poverty, state of ill-health, and level of its educational backwardness. Law as invoked by the state therefore needs to be supplemented. What would be a viable supplement?

ACTIVISM AS A SUPPLEMENT

This article suggests that activism is one sure way of supplementing the instrumental use of law. This would take two forms. One form is seeking to enforce the right to development. While a constitutional amendment is desired to elevate socio-economic rights to enforceable rights, such an amendment is not absolutely necessary. Courts could interpret relevant enforceable civil and political rights to include relevant socio-economic rights. For instance, the right to life could be interpreted to include the right to health. Similarly, the right to dignity of the human person could be interpreted to mean the right to an adequate standard of living. There is evidence of this activism from India for instance, from which Nigeria could take inspiration. In the case of Olga Tellis v Bombay Municipal Corporation,Footnote 132 the court expanded the meaning of the right to life to cover the right to a means of livelihood. Similarly, in Mohini Jain v State of Karnataka,Footnote 133 the Supreme Court considered that the right to education is included in the idea of the right to life, since there cannot be a meaningful and successful life without education in this modern age. It therefore declared invalid a state law which permitted medical colleges to charge high admission fees.

Such activism in Nigeria finds support in the fact that the African Charter on Human and Peoples' Rights, which contains similar socio-economic rights,Footnote 134 has been domesticated in the country.Footnote 135 More so, the charter did not bifurcate between civil and political rights on one hand and socio-economic rights on the other. It declared categorically in its preamble that the former cannot be dissociated from the latter and that the satisfaction of the latter is a guarantee for the enjoyment of the former. Interestingly, the Nigerian Supreme Court held in the case of Gani Fawehinmi v General Sani Abacha Footnote 136 that want of procedural rules of enforcement under the charter cannot be a bar to its local invocationFootnote 137 nor can a domestic law free a country from its international obligations, such as obligations assumed by the ratification of international human rights instruments.

The other form of activism is active citizenship to bring about good governance. With the necessary democratic structures now in place, Nigerians should strive for credible leadership as a recipe for good governance. Achebe's statement that the problem with Nigeria was that of leadershipFootnote 138 is as valid (if not more so) today as it was when made during the Second Republic. Since leadership is elected in democratic dispensations, the electoral process becomes a necessary tool through which the electorate can ensure credible leadership. People could vote into power good candidates and vote out of power bad representatives. However, this power of the people is only exercisable if elections are conducted freely and fairly. Nigeria does not have a record of free and fair elections, as for instance the general elections of 2003 and 2007 show.Footnote 139

Efforts have been made by the Yar'Adua administration to reform the electoral process.Footnote 140 The administration of Goodluck Jonathan inherited the reform agenda. Even when the process is reformed, people must find supplementary ways of ensuring governance according to rules. Specifically, they must be active participants in the general utilization of public resources for development. If development is freedom as Sen argues (and surely it is),Footnote 141 then it must be fought for, though not necessarily fiercely. People's passivity leaves governments with the discretion to discharge or not to discharge their developmental duty. The probable consequence in a situation of passivity is corruption and underdevelopment. When people insist on their developmental rights, their endeavour results in two things: development takes a bottom-up form; and checks on power are supplemented from the bottom.

Lessons could be drawn from Botswana in this respect. There, good governance has been improved through institutions at local, informal levels. For instance, kgotla has been a traditional institution used by the chiefs to promote their agenda in tribal governance since pre-colonial times. After independence, it became a dialogue forum between local communities and government officials on development issues. In fact, “the need to obtain kgotla approval has become a mandatory part of the initiation of projects in the rural areas. The result is that civil servants develop their programmes with the knowledge that they must be prepared to defend their proposals at the community level and not just order their implementation”.Footnote 142 There are also “freedom squares” where politicians hold rallies in towns and villages and community members can come and question the speakers holding the rallies.Footnote 143

Non-governmental organizations (NGOs), labour unions, professional bodies, religious and other pressure groups and individuals have a significant role to play in this dual bottom-up approach. For instance, they could mobilize people against government passivity. The World Social Forum as a counter to the World Economic Forum at the global level is a good example of grassroots mobilization. It is what Santos would call “counter-hegemonic mobilization”.Footnote 144 As evidence across the world shows, citizens have to be active for a change for the better.Footnote 145 There is evidence of active citizenship in Nigeria as well. For instance, professional bodies had mounted a challenge (albeit unsuccessful) against SAP in military Nigeria;Footnote 146 and NGOs and the media had “forced” General Ibrahim Babangida to “step aside” after he annulled the 12 June 1993 presidential election. These could be replicated to ensure the rule of law and good governance.

However, there cannot be effective active citizenship without development education. There must be awareness campaigns in order for people to know their roles in development. More importantly, the campaigns should focus on changing people's attitudes. People must not continue to see themselves as passive recipients of development. They must believe in their ability to facilitate it. It is only then that they can make an effort for it. Looking at the level of illiteracy in the country,Footnote 147 the campaigns must use more than elite-targeted media such as print media and include radio programmes and lectures in public places such as the market and religious congregations.Footnote 148

Nigeria being a predominantly religious country, religious congregations would provide convenient fora for campaigns, especially since certain attitudes are rooted in religious principles that are mostly misunderstood. For instance, some Muslims may hold a view that poverty is destiny which man cannot change. These fora are often used in promoting issues of public interest such as religious tolerance. They could as well be used effectively in development education, particularly in changing some of these attitudes. Campaigns should take a non-confrontational form, aimed at improving good governance and development through people's participation. Emphasis should be laid on the fact that development is not a privilege but rather a right and that, by participating, people would be cooperating with governments in the discharge of a national duty, and that this effort would in no way be against religious teachings. Coupled with a firm belief in their ability, such participation would be possible and fruitful. When and where necessary, they would demand their legitimate developmental rights from the duty-bearers at the various levels of government. In so doing, development is supported not only by law but by activism.

CONCLUSION

Law is certainly an important instrument for the state. This article has demonstrated how various administrations in Nigeria have invoked it as an instrument for development. The administrations adopted different approaches to development at different times. The 1960s and 1970s were periods of state interventionism. The 1980s saw almost a reversal of that trend with the retreat of the state and the advancement of the market. Throughout these two periods, economic growth was the yardstick and catalyst for development. The 1990s witnessed a shift in paradigm in favour of human development, driven by good governance. Tellingly, this trajectory was not peculiar to Nigeria. It reflected the international development discourse spearheaded by the international development institutions.

As the phase of development changed, so also did the pattern of invocation of law as a facilitating instrument. It first facilitated interventionism through the creation of state development institutions and indigenization-cum-nationalization of the economy. It then switched to facilitate the liberalization of the economy. Finally, law was used to bring about good governance. In addition to these three forms of invocation, it is through law that the state's duty of development was institutionalized, thereby creating a right to development for citizens. This too was not a peculiar endeavour, as it again reflected the international human rights law discourse.

The invocation of law in the three stages of development policy and its use in institutionalizing development duty and right are what this article has referred to as invocation at ordinary and fundamental levels. Commendable though they are, the article has argued that they are inadequate. There is a need to supplement the use of law at each level. With the provision of a development right (ie socio-economic rights) as an unenforceable right in the Nigerian Constitution, courts need to employ activism in interpreting civil and political rights (which are enforceable) to accommodate the otherwise unenforceable rights. At the general and ordinary level, people must imbibe the culture of active citizenship to ensure development. They must not continue to be passive “recipients” of development. Their activism coupled with judicial activism would surely supplement the work of law as an instrument of development.

Footnotes

Ibid
Ibid
Ibid
Ibid

References

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52 No 4 of 1972.

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55 There are 22 types of enterprise listed: advertising agencies and public relations; pool betting and lotteries; assembly of radios, tape recorders, television sets, etc.; blending and bottling of alcoholic drinks; blocks, bricks and ordinary tiles manufacture; bread and cake making; candle manufacture; etc.

56 The decree referred to the “appointed day” which it interpreted under sec 16(1) to be 31 March 1974.

57 Sec 4(1)(a) of the decree.

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61 Again, the decree referred to an “appointed day” which under sec 16(1) meant 31 March 1974.

62 Id, sec 5(1)(a)(i)(ii) and (b). It needs to be made clear that, while sec 4 sanctioned the outright purchase by Nigerian citizens of alien enterprises listed in schedule 1, sec 5 permitted the acquisition of equity participation by Nigerian citizens in alien enterprises listed in schedule 2. See Nigerian Enterprises Promotion Board “Buying and selling under the Nigerian Enterprises Promotion Decree 1972” (1973) at 5. The marginal note “Enterprises partially barred to aliens” to sec 5 bears testimony to this distinction.

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81 27 commercial and merchant banks, 23 major manufacturing firms in various sectors including building, printing, oil, shipping and airline.

82 There were ten major enterprises here.

83 There were 14 major enterprises here.

84 Originally a decree, it became the NEP Act, chap 303, vol XVIII, Laws of the Federation of Nigeria 1990.

85 The schedule contains 40 enterprises which include bread and cake making, hairdressing, laundry and dry-cleaning, ice-cream making, office cleaning and singlet manufacturing.

86 Ogowewo “The shift to the classical theory”, above at note 65.

87 Private hospitals and schools have long existed. Recently, there were moves to privatize federal government-run unity secondary schools. Under pressure, however, the government retreated and invited bids in a public private partnership project to manage the schools. See M Haruna “Ezekwesili's fishy PPP”, available at <http://www.gamji.com/haruna/haruna.htm> (last accessed 23 February 2009).

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94 Id at 34.

95 Id at 11.

96 Id at 30.

97 Id at 7, 18 and 49.

98 Id at 38–39.

99 These are generally shared. According to the report, they include ethics, sense of justice, discipline, integrity, God-consciousness, industry, social responsiveness and selflessness: id at 39.

100 This means fighting social evils such as bribery, inflation of contracts, nepotism, advanced fee fraud, extortion, kickbacks: ibid.

101 This embodies accountability, transparency, justice, freedom of information and expression: ibid.

102 This refers to a situation where lives and property are secure. See id at 59, where the report dwelt on the subject under “Where we are” on political and socio-cultural direction. It says law and order promote social justice, harmony and economic progress: ibid.

103 The report insufficiently relates this aspect to “political stability” which it says “is an essential prerequisite for the achievement of a meaningful economic development”: ibid.

104 Id at 40.

105 Id at 69.

106 Ibid.

107 Id at 54.

108 Id at 78.

109 Id at 102.

110 Ibid. Legal reforms came under “other issues” of the visioning process in chap 1 of the report (see 42–43). The details of these critical success factors are found in chap 3 of the report.

111 Id at 103.

112 Id at 104.

113 Nigerian National Planning Commission National Economic Empowerment and Development Strategy (2004) at ixGoogle Scholar.

114 Id at xv.

115 This is the subject of part three, consisting of chaps 5–7 of NEEDS: id at 52–83.

116 This pillar is covered under part four, consisting of chaps 8–11: id at 86–118.

117 Id at 53 and 55.

118 Id at 56, box 5.1.

119 Id at 55–58.

120 Id at xiii–xiv and 10–11.

121 Id at 87–88 and 101.

122 The act took effect on 1 July 2003. It was extended by circular to cover all federal civil servants from 1 October 2003.

123 NEEDS, above at note 113 at 92. Benefits and maintenance of houses are often inflated to the detriment of public interest.

124 Id at 90.

125 Id at 95–99.

126 UNDP Fighting Climate Change, below at note 131.

127 Transparency International “Corruption perception index 2008”, available at: <http://www.transparency.org/policy_research/surveys_indices/cpi/2008> (last accessed 24 September 2009).

128 (6 June 2008) Leadership.

129 “Editorial” (8 October 2008) The Guardian.

130 (19 December 2008) Daily Trust.

131 UNDP assesses countries' level of human development using three categories: high, medium, and low human development indices. Countries in the first category have a human development index (HDI) value of 0.800 and above; those in the second category have a HDI value between 0.500 and 0.799; and those in the last category have a HDI value below 0.500. Nigeria has always been in the low category. See for instance UNDP Human Development Report 1990: Concept and Measurement of Human Development (1990, UN); UNDP Human Development Report 1995: Gender Human Development (1995, UN); UNDP Human Development Report 2001: Making New Technologies Work for Human Development (2001, UN); and UNDP Human Development Report 2007/2008: Fighting Climate Change: Human Solidarity in a Divided World (2007, UN).

132 1987 LRC (Const) 351.

133 (1992) AIR SC 1858.

134 For instance, art 16 of the charter provides for the right to health; art 17 recognizes the right to education; and art 22 imposes a duty on the state to ensure the right to development.

135 It is domesticated under the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, chap 10, vol 1, Laws of the Federation of Nigeria 1990.

136 (1996) 9 NWLR, pt 475 at 710.

137 The same point was made in the case of Ogugu v State (1994) 9 NWLR, pt 366, 1.

138 Achebe, CThe Trouble with Nigeria (1984, Heinemann Educational)Google Scholar.

139 See for instance the communiqué of the post-election civil society summit organized by the Alliance for Credible Elections at Denis Hotel, Lagos, held on 25th April 2007 (on file with the author), which condemned the April 2007 elections as “fraudulent, a charade and indeed non-elections”; Human Rights Watch Criminal Politics: Violence, ‘Godfathers and Corruption in Nigeria’ (October 2007), vol 19 no 16(A)Google Scholar.

140 It inaugurated an Electoral Reform Committee led by former chief justice, Muhammadu Lawal Uwais, to study and make recommendations for the reform of the electoral process. The committee has submitted its report and the government is expected to implement at least some of its recommendations. See (12 December 2008) Leadership; (12 March 2009) Daily Trust; (12 March 2009) Leadership.

141 Sen Development as Freedom, above at note 34.

142 Holm, JD “Curbing corruption through democratic accountability: Lessons from Botswana” in Snr, KR Hope and Chikulo, BC (eds) Corruption and Development in Africa: Lessons from Country Case-Studies (2000, Palgrave) 288 at 292Google Scholar.

143 Id at 290.

144 de S Santos, BToward a New Legal Common Sense: Law, Globalization, And Emancipation (2nd ed, 2002, Butterworths LexisNexis)Google Scholar.

145 Green, DFrom Poverty to Power: How Active Citizens and Effective States can Change the World (2008, Oxfam International)Google Scholar.

146 Jega, A “Professional associations & structural adjustment” in Olukoshi, AO (ed) The Politics of Structural Adjustment in Nigeria (1993, James Currey) 97 at 97Google Scholar.

147 UNDP put Nigeria's adult illiteracy rate in 1990 as 49%. The rate of 30.9% in 2005 is the lowest Nigeria ever recorded. See UNDP Concept and Measurement, above at note 131 and UNDP Fighting Climate Change, above at note 131.

148 Large congregations are held by Christians every Sunday and by Muslims every Friday.