Developing an Original Theory of Transformative Constitutional Interpretation for Socioeconomic Rights in Nigeria’s Business Law Context

The enforcement of constitutional rights relevant to business activity, including property rights, freedom of trade, and socioeconomic rights, has generated a jurisprudential tension in Nigeria between liberal economic constitutionalism and transformative approaches to constitutional interpretation, yet this tension has not been theorised systematically through original constitutional theory. This study develops an original Transformative Business Constitutionalism Framework (TBCF) for Nigeria, drawing on comparative constitutional theory from South Africa, India, and Colombia, and constitutional political economy to theorise how courts should interpret constitutional provisions affecting business regulation in a manner that balances developmental goals, investor protection, and redistributive constitutional obligations. The TBCF is elaborated through systematic analysis of 80 Nigerian Supreme Court and Court of Appeal constitutional decisions involving business regulation and property rights from 2000 to 2023, applying an original transformative-liberal continuum scoring methodology to characterise judicial interpretive approaches across constitutional areas. Doctrinal analysis is combined with expert interviews of 25 constitutional lawyers and comparative analysis of transformative constitutionalism jurisprudence. Results indicate that Nigerian courts have predominantly applied a liberal formalist rather than transformative approach to constitutional provisions affecting business, with significant consequences for regulatory space for environmental, labour, and consumer protection legislation. The TBCF generates original propositions about the conditions under which transformative interpretation is constitutionally appropriate and provides a normative framework for resolving tensions between economic rights and regulatory objectives.

Keywords: constitutional interpretation, transformative constitutionalism, business regulation, property rights, Nigeria