Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria and Universal Basic Education Commission, No. ECW/CCJ/APP/0808
Admissibility decision in a case brought against the Republic of Nigeria, including the Universal Basic Education Commission - the legal entity responsible for implementing education in Nigeria - for failure to ensure quality education, under the African Charter on Human and Peoples' Rights (ACHPR). Whether the right to education is justiciable by the ECOWAS Court; Scope of the jurisdiction of the ECOWAS Court; Locus standi (whether the complainant has the legal right to initiate a lawsuit).
In SERAP v. Nigeria, the ECOWAS Court considered whether it had the jurisdiction to adjudicate a claim involving the right to education under the African Charter, even if such a right was arguably non-justiciable in domestic constitutional or statutory law. The complainant initiated the case due to lack of adequate implementation of Nigeria's Basic Education Act and Child's Rights Act of 2004. The ruling dealt in detail with the issue of substantive jurisdiction, which involves the issue of justiciability, and the issue of whether the complainant has the legal right to initiate a lawsuit. On these issues, Nigeria argued that the Court lacked jurisdiction to hear the case because it dealt with domestic laws and policy which are not within the subject matter jurisdiction of the Court. Nigeria also argued that the educational objective in the Constitution of Nigeria is non-justiciable and that SERAP lacked standing since it was not directly affected by these laws. The Court dismissed all of these arguments.
On the issue of justiciable rights and substantive jurisdiction, the Court noted that a violation of the right to education under Article 17 of the ACHPR was alleged by the claimants and that, relying on Article 9(4) of the Supplementary Protocol to the treaty establishing the Court and Article 4(g) of the Revised Treaty of ECOWAS, "it is well established that the rights guaranteed by the African Charter are justiciable before this Court." Article 9(4) of the Supplementary Protocol grants the Court jurisdiction to determine cases of violations of human rights in Member States of ECOWAS while Article 4(g) of the Revised Treaty of ECOWAS incorporated the African Charter on Human and Peoples' Rights into that treaty. In coming to its ruling, the Court dismissed the Government's contention that education is "a mere directive policy of the government and not a legal entitlement of the citizens," concluding that "the contention of the Government that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold." The Court noted a distinction between the recognition of education within the domestic legal framework of Nigeria and the human right to education in the ACHPR to which Nigeria is a State Party. It went on to say that it "clearly has jurisdiction to adjudicate on applications concerning the violation of human rights that occur in Member States of ECOWAS" and that it "has jurisdiction over human rights enshrined in the African Charter and the fact that these rights are domesticated in the municipal law of Nigeria cannot oust the jurisdiction of the Court."
In holding that SERAP did indeed have standing, the Court cited the doctrine of action popularis that allows any person or entity to challenge a violation of a public right. Finally, the Court, in part relying on comparative jurisprudence from Bangladesh, India, Ireland, Pakistan, the United Kingdom, the United States, and elsewhere, added that "public international law in general, which is by and large in favour of promoting human rights and limiting the impediments against such a promotion, lends credence to the view that in public interest litigation, the plaintiff need not show that he has suffered any personal injury or has a special interest that needs to be protected to have standing." Rather, the Court stated, the "plaintiff must establish that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable.
Keywords: Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria and Universal Basic Education Commission, No. ECW/CCJ/APP/0808, Enforceability, ESCR
 The ECOWAS Community Court of Justice was created in 1993 within the Revised Treaty of ECOWAS and a 2005 Supplementary Protocol to the treaty establishing the Court allows for persons to bring suits against Member States of ECOWAS.
Consideration of the case on the substantive rights is forthcoming and while this admissibility decision seems to indicate that the Court sees merit in the complainant's arguments on the right to education protected by the African Charter, it remains to be seen what effect is given to the complainants arguments highlighting violations of the right to education under the International Covenant on Economic, Social and Cultural Rights and the respective General Comments.
Socio-Economic Rights and Accountability Project (SERAP)
This case is significant both for its decision on the justiciability of the right to education protected under the ACHPR in the ECOWAS Court as well as the ability of NGOs bring public interest litigation cases within this forum. The Court's decision on locus standi will allow NGOs and other organizations to access the ECOWAS Court as another mechanism through which to seek enforcement of the rights protected under the African Charter.