ECOWAS Community Court of Justice Ruling Holds the Government of Nigeria Accountable for Fulfilling the Right to Education despite Corruption

Boys attending primary school in Nigeria. By Dolapo Faiola.

The Court of Justice of the Economic Community of West African States (ECOWAS) has ordered the government of Nigeria to replenish a shortage of funds in its education sector so that it may fulfill its obligation under the African Charter on Human and Peoples’ Rights (Banjul Charter) to provide free and compulsory basic education to every Nigerian child. Nigeria is one of the fifteen West African states that make up ECOWAS, and Nigerian President Goodluck Jonathan is the present ECOWAS Chairman. As a member state, Nigeria is bound to comply with the Court’s judgment, considered by human rights lawyers to have permanently redefined human rights-related jurisprudence on the continent.

The November 2010 judgment resulted from a suit initiated by the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) against the Federal Republic of Nigeria and the Universal Basic Education Commission (UBEC). The complainant alleged that Nigeria had violated its obligations under the Banjul Charter to realize the right to education (Article 17), the right to dignity (Article 5), the right of peoples to freely dispose of their wealth and natural resources (Article 21), and the right of peoples to economic and social development (Article 20). Specifically, SERAP contended that rampant corruption among high-level officials and theft within the ranks of UBEC had left the education sector woefully underfinanced and therefore unable to provide free and compulsory education to all Nigerian children. The Nigerian government, it furthermore alleged, was complicit by its failure to investigate allegations of corruption or confront the culture of free license. SERAP also contended that Nigeria has in effect denied its citizens the right to freely dispose of their natural wealth and resources, which are the bases for realizing the right to education and other economic and social rights.

SERAP’s allegations are based on a report submitted to the Nigerian Presidency in April 2006 that details the mismanagement of funds allocated for basic education in ten states of the Federation of Nigeria. The report’s findings were mirrored in an October 2007 Independent Corrupt Practices Commission (ICPC) report, which detailed repeated instances of theft by UBEC’s highest officials. SERAP estimates that, as a direct consequence, over five million Nigerian children lack access to primary education. In filing suit, SERAP sought, inter alia, a declaration that every Nigerian child is entitled to free and compulsory education pursuant to Nigeria’s own domestic legislation and an order compelling the government to replenish the funds available to the education sector, prosecute those responsible for theft or corruption, and monitor the recovery of stolen funds.

A judgment on the merits would not have been possible had the defendants prevailed on any of their several preliminary objections, which challenged the Court’s jurisdiction, the justiciability of the right to education, and SERAP’s standing as an NGO to bring cases before the Court. The Court rejected these objections in a separate October 2009 ruling, which has been celebrated for affirming the Court’s jurisdiction over States Parties’ human rights obligations and NGOs’ standing to bring cases in a representative capacity. Both procedural holdings are positive developments in the ongoing evolution of the sub-regional human rights system and, as the Court observed, reflect the trend among other regional and international legal settings to lower procedural impediments when substantive human rights principles are at stake.

Proceeding to the merits of SERAP’s claim, the Court began with the allegations of corruption in the education sector, finding that the ICPC report provided only prima facie evidence of isolated incidents of corruption. Even accepting the report’s contents as true, the Court could not conclude that they would have had the degree of negative impact alleged by SERAP. Nor could it rule on SERAP’s claim that corruption was more pervasive than the report indicated, adding that corruption is a criminal matter reserved to Nigeria’s domestic judicial institutions. The Court nonetheless concluded that there were insufficient funds in the education sector for the Nigerian government to fulfill its obligations to realize children’s right to education. The Court declared that the government of Nigeria is responsible for covering the shortfall regardless of its origins and even in the interim while it investigates alleged corruption or theft.

The decision marks a victory for education advocates throughout Nigeria and the African and international community, and represents a noteworthy development for the more general realization of socioeconomic rights in the region. By requiring the government of Nigeria to invest additional resources in its education sector, the Court effectively reallocates the harsh consequences of corruption and general neglect, forcing the government to root out detrimental conduct within its ranks or risk compensating out of other parts of its budget. The court’s position is interesting given international human rights jurisprudence that generally requires states to work only within available resources to fulfill various socioeconomic obligations or, under the International Covenant on Economic, Social, and Cultural Rights, that each State Party take steps “to the maximum of its available resources.” In this case, however, the ECOWAS Community Court has effectively imposed a core minimum requirement despite evidence that Nigeria’s education sector is in financial distress. Its decision makes clear that corruption and chronic mismanagement of funds do not excuse Nigeria from reaching a baseline standard in accordance with its obligations.

With the question of enforcement looming, SERAP recently issued an open letter urging that the eighteen current presidential candidates make full and effective implementation of the judgment central to their campaigns. Regardless of whether the political will can be garnered within Nigeria, the Court’s judgment nonetheless advances regional jurisprudence on states’ obligations to devote sufficient resources to realizing social and economic rights and, in the present case, champions the position that children should not bear the costs of Nigeria’s culture of corruption.

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