Challenges to the Enforcement of Human Rights and Remedies (2)

Challenges to the Enforcement of Human Rights and Remedies (2)

This article deals with the challenges frequently encountered in bid to access judicial remedies for the enforcement of fundamental human rights as follows and the remedies available.

Problem of Ouster Clauses

Ouster clauses are provisions in the statutes that take away or purport to take away the jurisdiction of a competent court of law. It denies the court the ability to make any meaningful contribution with respect to a particular matter brought before the court[1].

In fact, it seeks to deny the litigant of any judicial assistance in respect of the matter brought before it. In other words, the legislature seeks by the enactment of ouster clauses, to deny the court the power of judicial review in respect of the matter in which its jurisdiction has been ousted.

At the initial stage of the National polity in Nigeria, most of the ouster clauses were based on the areas of chieftaincy matters. The ability of the courts to exercise powers or jurisdictions in this area was further restricted by the legitimacy given to these ouster provisions by the then Constitution[2].

Thus, the court at this period had to give effect to the provision of the ouster clauses[3]. In fact, judicial review of ouster clauses suffered a lot of set back at this period of time as courts’ jurisdictions were effectively ousted by these provisions. See the case of Salami Olaniyi v Gbadamosi Aroyehun and others[4].

During the period of the military regimes, a number of Decrees and Edicts were promulgated to take away the jurisdiction of the courts. The Supreme Court was bold enough to review these clauses despite the fact that it was made by the military government although not without reactions from the military.

The opportunity to review these clauses came before the Supreme Court in the case of Lakanmi and Anor v Attorney General of the West and Another[5], an Edict (subsequently validated by Decree No. 45 of 1968) was enacted to forfeit the assets of some named individuals. The Decree contained an ouster clause precluding the court from entertaining any matter relating to the forfeiture of the assets. The Supreme Court declared the Edict and the Decree null and void for ousting the court’s jurisdiction and ‘nothing short of legislative judgment, an exercise of judicial powers.’

However, despite the prohibition of ouster clauses by the Constitution and the powers of judicial review provided for in the Constitution, the Constitution itself provided a number of ouster clauses taking away the jurisdiction of the courts in certain aspects relating to inter-governmental powers and functions. The notable ones are section 170(10) of the 1979 Constitution. It provides in relation to impeachment proceedings thus;

No proceedings or determination of the Committee or of the Assembly or any matter relating thereto shall be entertained or questioned in any Court.

Other ouster clauses are contained in section 6(6) (c) and (d) of the 1979 Constitution. “Subsection (c) provides that: judicial powers shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is conformity with Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution”, and subsection (d) of section 6(6) provides that:

Judicial powers shall not as at the date when this section comes into force, extend to any actions or proceedings relating to any existing law made on or after 5th January, 1966 for the determination of any issue or question as to the competence of any authority or person to make any such law.

Section 195(5) of the 1979 Constitution also provides:

The question whether any, and if so what, directions have been given under this section shall not be inquired in any Court [6]

It must be noted that judicial review of ouster clauses in the above stated provision of the Constitution was highly restricted. In other words, the court gave effect to the ouster clauses contained in the Constitution by refusing to entertain any matter brought in connection with those provisions.

The most notable constitutional ouster clause which the Court denied judicial review was the provision of section 170(10) of the 1979 Constitution. Thus, in the case of Balarabe Musa v Auta Hamza[7], the Court of Appeal refused to review the decision of the Kaduna State House of Assembly in relation to the impeachment of the governor of the State despite huge allegations of procedural irregularity and non-compliance with the provision of the Constitution. The Court was of the view that the jurisdiction of the courts was effectively ousted by section 170(10) of the 1979 Constitution.

Unfortunately, the Supreme Court did not have the opportunity of interpreting this provision of the Constitution at this point in time. With regard to section 6(6) (c) of the 1979 Constitution, the courts also deferred to constitutional ouster clauses by denying judicial review in matters falling under chapter II of the Constitution[8].

The basis for denying judicial review in this instance was that the Constitution effectively ousted the court’s jurisdiction in this matter. Thus, the court in Okogie v Attorney General of Lagos State[9], denied judicial review in that case on the ground that judicial power does not extend to issue whether Fundamental Objectives and Directive Principles of the State Policy has been complied with[10].

The coming into effect of the 1999 Constitution of Nigeria witnessed a remarkable improvement in the judicial review of the provisions of ouster clauses.  Just like the 1979 Constitution, the 1999 Constitution declares its own supremacy[11] and renders void any provision of the law which is inconsistent with its provisions.

The judicial powers are also extended to include all actions against any person or authority in relation to the extent of legal rights. Thus, it would appear that because of the expansion of the court’s power, statutes ousting the jurisdiction of the courts (passed after the coming into effect of the 1999 Constitution) have not come before the Supreme Court for interpretation.

Notwithstanding the expansion of the powers of the courts in relation to judicial review and despite the fact that the Constitution precludes the legislature from passing any law that takes away the jurisdiction of the Court in any matter, the Constitution itself contains some provisions ousting the jurisdiction of the court in certain respects.

The question that, therefore, calls for answer is: what are the reactions of the courts towards provisions of the Constitution taking away the jurisdiction of the courts? This article therefore examines some of the major cases in this period where the courts have reacted to ouster provisions. Thus, in the case of Chief Enyi Abaribe v The Speaker, Abia State House of Assembly and Ors[12] the provision of section 188(10) came before the court for adjudication in relation to impeachment proceedings instituted against the Deputy Governor of Abia State of Nigeria.

The Court of Appeal was of the view that section 188(10) of the 1999 Constitution precludes all courts from allowing any proceedings or determination of a House of Assembly or its Panel with respect to proceedings under section 188 to be challenged before it. It also precludes all courts from allowing any matter relating to such proceedings and determination to be entertained before it.

The Court came to this conclusion in this case because the issue of whether the House of Assembly complied with section 188(1-9) was not raised as an issue before the court. In Inakoju v Adeleke[13]section 188(10) of 1999 Constitution also came to court for interpretation. The Court was of the view that the entire section 188 sub-sections 1-11 must be read together.

It noted that a proper reading of the whole section will reveal that the ouster clause in subsection (10) can only be properly resorted to and invoked after due compliance with sub-sections (l)-(9) that preceded it. Subsection (11) makes it abundantly clear that it is the House of Assembly that decides whether or not a conduct is gross misconduct exists to warrant the removal of a Governor or Deputy Governor.

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This must depend on the facts and circumstances of each particular case. Failure to comply with any of the provisions of subsections (1) – (9) will mean that the ouster clause of subsection (10) cannot be invoked in favour of the House of Assembly.

Also, reactions of the courts to ouster provisions are largely determined by the law in place at the period in time and the government in power. With regard to statutory ouster clauses, the courts even during the Military regime in Nigeria interpreted it very strictly to cushion the effects of such clauses on the role of the courts.

Today, any legislation which contains ouster clauses will be struck down by the courts when challenged. This is because the Constitution has limited the powers of the legislature to enact ouster clauses. The court today will exercise jurisdiction for it to determine whether or not its jurisdiction has been truly ousted. Thus, nobody or authority can hide under ouster clauses to avoid determination of his matter. The court would see that the legislature or persons concerned do not violate the constitution before its jurisdiction can be effectively ousted.

Reviewing of ouster provisions by the courts seems to be a necessary mechanism to ensure constitutional justice, democratic principles, good governance, and sustainable development. It will also reduce injustices in the polity. The reason is that matters brought before courts should be decided on their merits in so far as the court has jurisdiction.

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[1]    See Alabi M.O. A., The Supreme Court in the Nigerian Political System 1963-1997, Demyax PressLtd,    Nigeria, 2002, at 244.

[2]   See section 158(4) (a) and 161(3) of the Republican Constitution of 1963

[3]    28 See the Supreme Court of Nigeria in the case of Enwezor v Onyejekwe(1964) NSCC 9 which gave effect    to ouster clauses by not exercising jurisdiction in chieftaincy matters under section 158(4)(a) and 161 (3) of    the 1963 Constitution.

[4]    (1991) 1 SCNJ 25.

[5] (1970) NSCC 143

[6]   The section has to do with the Control of the Nigeria Police by the Federal and the State governments.

[7]   (1982) NSCC 219.

[8]   Chapter II contains Fundamental Objectives and Directive Principles of State Policies.

[9]  (1981) 2 NCLR 337.

[10]  See also the cases of Adewole v Jakande(1981) 1 NCLR 262, Ehimare v Governor of Lagos State (1981) 1 NCLR 166 for similar position.

[11] See section 1(1) Constitution of the Federal Republic of Nigeria, 1999.

[12]  (2002) 14 NWLR (Pt. 738) 466 at 492.

[13] (2007) 4 NWLR (pt.1025) 423.

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