The judge ruled that the federal and state governments have constitutional duties to provide adequate fund for such education. He said failure by any government to fund free primary and junior secondary education will 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; by the National Assembly enacting the Compulsory, Free Universal Basic Education Act, of 2004, the Act has 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, in which it 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 group 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 affirmative, and stated that in doing so, it relied on the Supreme Court decision in Attorney General of Ondo State & 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, can be made enforceable or justiciable by legislation. Thus, 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, Chino Obiagwu, said that the court has given life and hope to over 28 million Nigerian children who are currently out of primary and junior secondary school or who are at risk of being withdrawn from school because of the inability of their parents or guardians to pay the tuition fees and school expenses, or who are withdrawn from school so that they can be given out in early marriage or be sent to the streets to hawk or beg for alms. By this judgment, any child not enrolled in school or who is withdrawn from school can exercise his or her constitutional rights against the parent or guardian or against the government.
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