Tobi Soniyi in Abuja
A Federal High Court in Abuja presided by Justice John Tsoho has declared that every Nigerian child has the constitutional right to free and compulsory primary education and free junior secondary education.
The judge also held that the federal and state governments have constitutional duties to provide adequate fund for it.
The court held that failure by any government to fund free primary and junior secondary education would constitute breach of the constitution.
The court stated that even though the right to free education in section 18(3)(a) of the constitution was ordinarily not enforceable being in chapter 2 of the constitution, the enatment of the Free Universal Basic Education Act of 2004 by the National Assembly had made that provision of the constitution an enforceable right.
The judgment was delivered in a suit filed by the Legal Defence and Assistance Project (LEDAP) against the Federal Ministry of Education and the Attorney General of the Federation.
LEDAP had asked the court to determine whether by the combined effect of section 18(3)(a) of the 1999 Constitution and section 2 (1) of the Compulsory, Free Universal Basic Education Act, (UBE) 2004, the right to free and compulsory primary education and free junior secondary education for all qualified Nigerian citizens are enforceable rights in Nigeria.
The NGO also asked the court to determine whether the federal and state governments are under constitutional obligation to provide financial and institutional resources for free, compulsory and universal primary education and free junior secondary education for all Nigerian citizens, and whether failure by any government to adopt and implement free, compulsory and universal primary education and free junior secondary education amounts to a breach of constitutional obligation of the government in accordance with its duty and responsibility under section 13 of the constitution.
The court answered all the questions raised by the plaintiff in the affirmative, and stated that in doing so, it relied on the Supreme Court decision in Attorney General of Ondo State and Others vs. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222, where it was held that the provisions of chapter 2 of the constitution, even though they are not enforceable by virtue of section 6(6)(b) of the constitution, could be made enforceable or justiciable by legislation.
Following this decision of the Supreme Court, Justice Tsoho held that by enacting the UBE Act, the National Assembly has made the right to free and compulsory primary and free junior secondary education contained in chapter 2 an enforceable or justiciable right.
Reacting to the judgment, the lead counsel to LEDAP, Mr. Chino Obiagwu, said Justice Tsoho had given life and hope to over 28 million Nigerian children who were out of primary and junior secondary schools.
