Layeni Elizabeth Imoleayo, Bauchi State University
This article dwells on the consideration of the right to food as a justiciable right – that is, as a right that can be interpreted by the courts and can be the subject of litigation, what the right to food entails as well as strategies to the actualization of the right to food in Nigeria.
“Right” is a condition of living without which in any given historical stage of society, men cannot give the best of themselves as active members of the community because they are deprived the means to fulfil themselves as human beings. Similarly, according to Maurice Cranston, a right by definition is a universal moral right, something which all men everywhere, at all times ought to have, something of which no one may be deprived without a great affront to justice, something which is owing to human being simply for being human.
The right to food is a human right protecting the right for people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual’s dietary needs. The right to food protects the right of all human beings to be free from hunger, food insecurity and malnutrition.
The desirability to make the right to food enforceable under the Nigerian constitutional Jurisprudence is apposite to examining whether the right to food has met the minimum requirements as a human right under substantive international human right in Nigeria. Alston argued that one of the substantive criteria that a claim must satisfy in order to qualify as a human right in terms of international law is the eligibility for recognition on the ground that it is an interpretation of the UN charter obligations. Similarly, it should also reflect customary rules or formulation from general principles of law – which should be consistent with an existing body of international human rights law among others.
However, given the debate on the substantive criteria for what qualifies as a human right, it becomes difficult to state what should precisely be a qualification to attain a human right. The reasons are that the establishment of a criterion of enduring relevance is almost impossible in a field that is frequently undergoing evolutionary flux. Even if such criteria can be agreed upon, the process of transforming a claim into international human rights is far from being scientifically pure.
This would imply that a list of substantive criteria that could be agreed by all is an unworkable approach. Given that the Universal Declaration of Human Rights is an important legal instrument embodying one conception of natural right (right to food) into international soft law, it is argued that the right to food meets the requirement from the natural law conceptual foundation. Furthermore, given the pervasiveness of hunger that confronts the average Nigerian citizen, it is further argued that the Nigerian government has a moral obligation to protect and promote the right to food for its citizens as any system where food is insufficiently matched by supply is no doubt one with looming food crisis.
Right to food under International Law
Food as a human right emerged along with the rest of contemporary international law in the aftermath of World War II. The right to food was initially codified in the UN Declaration of Human Rights in 1948. The treaty refers to the right to food as one aspect of the right to a standard of living adequate to ensure the health and wellbeing of each person. This right is intrinsically linked to an individual’s health and wellbeing. The right to food under international law implies the right to means of production or procurement of food of sufficient quantity and quality, free from adverse substances and culturally acceptable. While the importance of creating an enabling environment where everyone can enjoy the right to food by their own efforts should be stressed, it remains incumbent on the State to ensure that those who are unable to do so for themselves are adequately provided for, so that as a minimum, no one suffers from hunger. Every State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food, which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger.
The Special Rapporteur on the Right to Food in 2002 defined it as follows: ‘’the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear’’.
Like any other human right, the right to food , adequate food, entails three levels of obligations on the State; the obligation to respect, to protect , and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to food requires the State not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means that the state must proactively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood including food security.
According to the Food and Agriculture organization of the United Nations, the right to food does not imply that governments have an obligation to hand out free food to everyone who wants it. This is a common misconception. The right to food is not a right to a minimum ration of calories, proteins and other specific nutrients, or a right to be fed. It is about being guaranteed the right to feed oneself, which requires not only that food is available – that the ratio of production to population is sufficient – but also that it is accessible – i.e., that each household either has the means to produce or buy its own food. However, if individuals are deprived of access to food for reasons beyond their control, for instance because of an armed conflict, natural disasters or because they are in detention, recognition of the right to life obliges States to provide them with sufficient food for their survival.
While the economic, social and cultural rights (hereinafter referred to as ESC rights) have been part of the international human rights regime at least since the adoption of the Universal Declaration of Human Rights in 1948, considerably less efforts has been made to develop a conceptual framework to give them content and to construct protection mechanisms to enforce them than in the case of civil and political rights. One of the traditionally neglected issues regarding ESC rights has been their justiciability – that is, the possibility for alleged victims of violations of ESC rights to file a complaint before an impartial body, and request adequate remedies or redress if a violation is deemed to have occurred.
One particular issue is the fact that, while other ESC rights – such as the rights to health and to education – have had a broader constitutional recognition throughout the world, this has not been the case for the right to food, and thus there are fewer countries with an express constitutional provision of this right.
A second problematic factor is, that statutes regarding food security and other food issues usually state public policy goals and principles, but rarely enunciate an individual (or collective) right to food.
These factors may create some difficulties in the identification of a firm legal basis to take a case to court regarding the right to food, and there is no clear statutory basis either, directly arguing a case on the basis of the text of International Covenant on Economic, Social and Cultural rights and on soft law documents such as the General comment No. 12 and the FAO Voluntary Guidelines on the Right to Food before domestic courts with little or no knowledge about international law, can be a highly uncertain bet.
This is the case even in the monistic legal systems where international law is directly part of domestic law and can be directly invoked before courts. Difficulties increase in dualistic systems, where international law is not automatically incorporated into domestic law. Moreover, the right to food is a relatively ‘’young’’ right and lacks a consistent body of case law on which to draw in order to frame a new case and apply law to a new set of facts.
While the foregoing may indeed contribute obstacles for justiciability, they are not insurmountable – on the one hand, the experience of directly applying international human rights instruments and standards is a growing practice in domestic courts in different parts. And the absence of case law is just a state of affairs that can change gradually, when cases start being decided by courts and therefore accumulate.
Even in those cases where the right to food is not directly enshrined in a constitution or defined by a legislative statute, and even when international law cannot be directly invoked before domestic courts, or – as a matter of fact is not frequently invoked before domestic courts, there are a number of indirect ways highlighted by comparative legal experiences of protecting the right to food through litigation.
In fact, in legal systems where the ESC rights are generally not granted a complaint mechanism, or in domestic systems where ESC rights have no constitutional recognition, or where the doctrine of non-justiciability of ESC rights is still prevalent among judges, judicial protection of ESC rights has been mainly channelled through its interconnection with civil and political rights or with general human rights principles.
Right to food in Nigeria
Nigeria has ratified and domesticated the African Charter via the African Charter (Ratification and Enforcement) Act 1983. Notwithstanding that the right to food is not expressly enshrined in the African Charter, the African Commission posits that there is an implied right to food in the African Charter. The Commission in Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (SERAC case), argued that the right to food is implicit in the African Charter flowing from the provisions on the right to life (Article 4), right to health (Article 16), and the right to economic, social and cultural development (Article 22). The Commission also averred that the right to food is interlinked with the right to dignity of human beings and it is essential for the enjoyment and fulfilment of such others as the right to health, right to education, right to work and right to political participation.
In Nigeria, there is the absence of an explicit right to food provision in the constitution. However, a semblance of right to food or food security is localised in section 16 (2)(d) of the constitution that states that the State shall direct its policy towards ensuring suitable and adequate shelter, suitable and adequate food are provided for all citizens. However, this is contained in Chapter II of the constitution, which is neither justiciable, nor enforceable. Notwithstanding that it is not enforceable against the state, this provision can be made justiciable and enforceable via different mechanisms.
The right to food can be implied into the Nigerian constitution via Chapter IV of the constitution, which is enforceable. For example, the right to food and the right to life are interwoven and interdependent. As Oluduro has argued, ‘’without the right to food, all other rights will be meaningless’’. Furthermore, whether one speaks of human rights or basic human need, the right to food is the most basic of all. Unless that right is fulfilled, the protection of other human rights become a mockery for those who must spend all their energy merely to maintain life itself. The right to life includes the protection of health and normal longevity of an ordinary human being, and these can be threatened by the lack of food security or access to adequate food. If the right to life is interpreted strictly, it would cover only those cases where lack of access to food is life-threatening – freedom from starvation. A broader interpretation of the right to life, as a life according to human dignity, may encompass a wider variety of aspects of the right to food, such as those relating to food adequacy. Some courts have, of course framed violations of the right to food as violations of the right to life.
The Nigerian constitution should take a cue from the Indian judiciary (the socio-economic rights provision of Nigeria’s constitution is modelled on the Indian constitution) which has consistently creatively interpreted the constitutional provision regarding socio-economic rights to make them justiciable and enforceable. With specific regards to the provision on the ‘right to food, Article 47 of the Indian constitution enjoins the government to raise the level of nutrition and standard of living of its people. Decisions from Indian courts are of persuasive influence to their Nigerian counterparts. The situation should not be different with respect to the right to food debate.
Another mechanism wherein the right to food may be enforced in Nigeria is by holding the country to respect international obligations regarding the conventions it has ratified in respect of the right to food. A major reason for this is that contracting countries to treaties cannot rely on the basis of its domestic laws as reasons or justification for not performing its expected obligations under such treaties. Nigeria must be seen to respect and implement the various treaties it ratified. Furthermore, by virtue of section 19 (d) of the Nigeria’s constitution, respect for international law is one of the foreign policy objectives of Nigerian government enunciated in the constitution.
A somewhat third strategy consists in deriving duties regarding the right to food from a ‘’right to a vital minimum’’ or ‘’existential minimum’’, considered to stem from the constitutional formula of the social or welfare state, and sometimes from the notion of human dignity. The reasoning implied here is that the goal of the social or welfare state is achieving at least the material conditions necessary to honour its commitment to human dignity. Access to food is therefore considered to be one of those material conditions.
Another way to protect the right to food through courts is consumer rights. Although consumer rights do not form part of international human rights law, consumer protection laws and consumer protection agencies have regularly been part of domestic law throughout the world. Consumer law has been one of the distinctive ways through which adequacy of food products has been dealt with before courts. For example, courts deal regularly with issues regarding non-compliance with food information requirements, and cases requiring withdrawal of food products from the market for failure to comply with health and sanitary standards are not rare.
Since it has been said that the right to food does not imply that government hands out food to everyone who wants it, but that it entails the guarantee to feed oneself, another mechanism for the realization of the right to food in Nigeria is by agriculture. The government should protect the rights of land users, in particular of minority and vulnerable groups, smallholder agriculture in the face of mega-development projects, and to stop soil and water degradation through massive shifts to agro ecological practices.
Food is the most basic of all needs and should be afforded every man. It is of great necessity at this point as a country, to uphold and respect the right to food. Its fulfilment impinges on the realisation of many other human rights. For the comfortable man who is able to meet his material needs, it is difficult to imagine that the right to food is an issue of much urgency. Nonetheless, for those who live on the border of starvation, or whose children suffer from chronic malnutrition and often die at a very early age, the right to food is a very real and urgent issue, and should be made justiciable in Nigeria.
 Universal Declaration of Human Rights, 1948
 Maurice Cranston, what are Human Rights? (London: Bodley Head, 1973)
 Jean Ziegler 2012: ‘’What is the Right to Food?’’
 Philip Alston, ‘Conjuring up new Human Rights: A proposal for quality control’, (1984) 78 American Journal of International law 3, 607
 Ibid; Philip Alston et al, International Human Rights in context: Law, Politics, Morals, (3rd edn, Oxford: Oxford University Press, 2007) Chapter 2
 UN General Assembly Resolution 3217A, III, Article 25 was reaffirmed in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); the treaty recognized as part of an adequate standard of living, which also includes housing and clothing, and separately as the fundamental right to be free from hunger.
 See UN Declaration of Human Right 1948. Art 25 para 2
 Ibid, art 11
 Ibid, art 3 – 11. Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, (1995) 25 Georgia Journal of International and Comparative Law, 287, 317
 FAO, (The) State of Food Insecurity in the world :Addressing food insecurity in protracted crisis (Rome, FAO 2010)
 Special Rapporteur on the Right to Food 2008: para 17; quoted in Special Rapporteur on the Right to Food 2012a.
 ECOSOC, U.N. CHR, The Right to Food, 59th Sess, U.N. Doc. E/CN.4/2003/54, 2003.
 Food and Agriculture organization, 2012c.
 Communication 155/96, (2001)
 SERAC case, ibid para 64.
 SERAC case (n 19) para 65
 Olubayo Oluduro Oil Exploitation and Human Rights Violations in Nigeria’s oil Producing Communities (Intersentia Publishing 2014)
 Presidential Commission on World Hunger, 1980, cited in Philip Alston, ’International Law and the Right to Food’ in Wenche Eide and Uwe Kracht (eds.) Food as a Human Right (United Nations University, Tokyo 1984) 162 – 174
 Article 47 of the Indian constitution
 Universal Declaration of Human Rights 1948, International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and the African Charter on Human and People’s Rights amongst others.
 Generally see Kenneth Ajibo, ‘Facing the Truth: An Appraisal of the Potential C ontributions, Paradoxes and Challenges of Implementing the United Nations Conventions on Contracts for the International Sale of Goods in Nigeria (CISG) in Nigeria (2013).