An Examination of Ouster Clauses in the Nigerian Constitution: Lessons from India.
By Adebayo Faruq Adebayo & Okebunmi Zainab Omowunmi
Ouster clauses in a constitution refer to provisions that seek to limit, exclude or purport to oust the jurisdiction of the courts in reviewing the actions or decisions of certain government bodies or officials. These clauses have been a subject of debate in various jurisdictions, including Nigeria and India. Where the courts jurisdictions are ousted by the competent law makers, it becomes a herculean hard nut to crack for the courts to garment itself jurisdiction. The power of the judiciary to review is being robbed in such actions in which its jurisdiction has been ousted. These provisions exempt the court from scrutinizing the actions of individual, public officials and institutions, not only that, it also precludes the citizens from approaching the courts to enforce their rights and to seek redress for damage suffered by them. The inclusion of ouster clauses in a constitution raises important questions about the balance of power among the judiciary and other branches. In Nigeria, the presence of ouster clauses in the constitution has been a subject of debate, with critics arguing that they undermine the principle of judicial review and the rule of law. By examining the Indian experience, this article explores the constitutionality of ouster clauses in the Nigerian constitution drawing lessons and insights that can inform the ongoing discourse from India. This article discovers some loopholes which serve as opportunities for the court to robe itself jurisdiction in cases of ouster clauses. Additionally, this article will Ice the hot debate of critics on the unconstitutionality or otherwise of ouster clauses
Keywords: Ouster clauses, Judicial Activism, Judiciary, Legislative powers, Political Questions.
Ouster clauses also known as exclusion clauses or non-justifiability clauses, are provisions included in a constitution or legislation that aim to restrict or exclude the jurisdiction of courts or tribunals to review certain matters or decisions. These clauses essentially limit the power of the judiciary to intervene in specific areas, shielding certain actions or decisions from judicial scrutiny. Although the constitution precludes the legislature from making laws that will oust or purport to oust the jurisdiction of the court,the provision is not absolutely sufficient. The provision establishes that:
Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
In simpler terms, this provision means that the National Assembly (the federal legislative body) and the various State Houses of Assembly (state-level legislative bodies) cannot pass laws that exclude or attempt to exclude the jurisdiction of the courts or judicial tribunals. However, the provision is without shield thus it is exposed to various ouster elements. These ouster clauses can either be partial or total clauses. It is total, when it totally prevents the courts from adjudicating on a particular matter, but when it is partial, it merely excludes the jurisdiction for a particular period of time or subject to certain events.
The purpose of these provisions is to uphold the principle of separation of powers and maintain the system of checks and balances. It ensures that no branch of government becomes too powerful and that the judiciary has the authority to review and determine the constitutionality and legality of legislative actions. By subjecting legislative powers to judicial oversight, it helps protect the rights and interests of citizens and ensures that the rule of law is upheld. However, in order to avoid abuse of power, the court should not also interfere in all legislative or executive actions. In this regard, there is a need to oust the jurisdiction of the court in some certain situations to promote the dictate of rule of law. Accordingly, the power of each arm may be restricted or expanded by an express provision of the constitution. These particular restrictions are the provisions of ouster clauses.
(I) OUSTER CLAUSES IN NIGERIAN CONSTITUTION AND THEIR PURPOSES
The purpose of ouster clauses varies depending on the context in which they are used. Some common objectives include:
(A) Finality of Administrative Decisions and Protection of National Security
Ouster clauses may be included to ensure that decisions made by administrative bodies or executive authorities are considered final and not subject to further review or interference by the judiciary. This is often seen as a way to promote efficiency, administrative autonomy and prevent undue delays or disruption in the functioning of government. The provision of Section 215(5) of the Constitution of Federal Republic of Nigeria, 1999 as amended can bear testimony to this assertion.
Section 215(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended states that The question whether any, and if so what, directions has been given under this section shall not be inquired into in any court.
This provision refrains the court from assuming jurisdiction on any matter relating to the order of the President or his minister in his behalf or the Governor to the Inspector General of Police or the Commissioner as the case may be.
Unlike other ouster clause in the Constitution, the application of this particular ouster provision has not been experimented judicially because it has not been subjected to close judicial scrutiny. The only slightest opportunity faced by the Supreme Court to apply this provision was in the Case of A.G. Anambra v A.G. Federation, however, it was lost.
(B) Separation of Powers
Ouster clauses can be seen as a mechanism to delineate the respective roles and powers of the different branches of government, particularly the executive and judiciary. By limiting judicial review, these clauses aim to preserve the autonomy and discretion of the executive branch in certain areas, preventing excessive judicial intrusion into matters of policy and administration. The apt provision of Section 6 6(c) is to the effect that:
“…shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;”
This renders Chapter II of the Constitution of Federal Republic of Nigeria, 1999 as amended unjusticiable. This chapter outlines the socio-economic and political goals that the Nigerian government should strive to achieve. While the provisions in this chapter are not justiciable, meaning they cannot be directly enforced in a court of law, due to the language of the provision of section 6 6(c) which refrains the court from enforcing any of the provisions. Actually, they provide guidance to the government in formulating policies and making decisions and can be made justiciable based on certain circumstances.
(B)(i)JUSTICIABILITY OF CHAPTER II OF THE CONSTITUTION
The s. 6(6)(c) is specifically and expressly mentioned under the Judicial power provision as an ouster clause, thus, it catches more attention. The provisions of Chapter II of the Constitution referring to shall be enforced based on the following cases in Nigeria.
- i) If there is another provision in the constitution that is justiciable and can be linked with any provision in the Chapter II. For instance, the provision of S17(2)(a) on social objectives can be enforced as it can be linked with S42 of the 1999 Constitution of Federal Republic of Nigeria, both of which provide against discrimination of human persons on any ethic or religious grounds and affiliations. See the case Mojekwu v Mojekwu, Ukeje v Ukeje
Ii) Also, if there is any international treaty that has been ratified or domesticated in Nigeria which embeds any of the provision of Chapter II
iii) If there is any provision of Chapter II contained in any part of the constitution and
- iv) If the competent legislature enacts any law which gives life to the provisions of Chapter II.
(C) Preserving Legislative Intent and Removal Proceedings
Ouster clauses may also serve to uphold the legislature’s intent or the policy made by lawmakers. By limiting judicial review, these clauses aim to prevent courts from striking down legislation or interfering with the implementation of laws and legislative proceedings, thereby respecting the principle of parliamentary sovereignty. A clear indication of this provision is the consequence of ouster clause embedded in section 143(10) and 188(10) of the Constitution of the Federal Republic of Nigeria 1999 as altered. Section 143 (10) provides that:
“No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.”
The proceedings and determinations in line with the provisions of Section 143 (1)-(9) in removing the president and the vice president shall not be entertained by any court. Thus, proceedings or determinations made by the Panel or the National Assembly, or any matter related to them, cannot be brought up or challenged in a court of law. In other words, it implies that the decisions or actions taken by these bodies are not subject to judicial review. Similarly, Section 188 (10) on the impeachment of the Governor and the deputy Governor, states that:
No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.
The provision which is impari materia with the earlier cited provision. The framers of the constitution perceived two provisions to be political question which should be internally and politically resolved without the interference of judiciary. However, the court jealously guards its jurisdiction and always at alert to exercise its judicial activism. The law is well settled and holds good that it is incumbent on every court to strictly guard its jurisdiction which should be cherished without emphasis. It follows therefore that any legislation that purports to take away or in any form tamper with the jurisdiction of a court must be specific and unambiguous on the point. It must leave no room for speculation. For this reason, where the constitutionality of the legislative proceedings is questionable, the court robes itself jurisdiction on such matter. Although, the position of section 170 (10) of 1979 Constitution equivalents to section 188(10), 1999 Constitution was judiciously celebrated in the case of Balarabe Musa v Auta Hamzat, this position was followed by the Court of Appeal in the case of Abaribe v. The Speaker Abia State House of Assembly.However, In the recent case of Hon. Muyiwa inakoju & Ors v. Hon. Abraham Adeolu Adeleke & Ors, the Supreme Court held that it is only when the conditions laid down in sub-section 1-9 of section 188 are legally followed that sub-section 10 could come to play. It is deducible that the court has departed from the decision of the early cases and the court can assume jurisdiction to review the constitutionality of the legislative proceedings.
(D) Preservation of the Existing Laws and Competence of the Makers
The Nigerian Constitution is a product of military government decrees. The military government has the foresight of civilian government repealing their Decrees and Edicts, which are laws validly made by the military government during military regime. For this reason, the Military Government protected their enactments by stipulating in the Constitution that such laws made shall not be questioned by any court or tribunal. The provision tends to preserve the existing laws and legalizes the competence of the makers. S 6(6) (d) of the Constitution of the Federal Republic of Nigeria 1999 comes into place. This provision essentially states that:
shall not, as from date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.
This provision limits judicial review on actions or proceedings concerning existing laws made on or after January 15, 1966. It means that any challenges to the constitutionality of laws enacted before that date or pertaining to the competence of the authority or person making those laws will not be subject to judicial review.
This constitutional provision has received judicial interpretation in the case of Uwaifo v. Attorney-General of Bendel State and Wilson v. Attorney General of Bendel State & 2 Ors .
In the case of Uwaifo vs. AG Bendel State, the property of the appellant was seized by the Bendel State government due to Decree no 10 of 1977. The appellant contested this in court. Despite the fact that the case was brought before the Supreme Court during the operation of the 1979 constitution, the court applied the provision of the Decree which was in operation at the time the cause of action arose.
The court held that:
“The effect of the provisions of Section 6 subsection (6) (d) is clearly to retain the fetter previously placed on the Courts by the successive Military Regimes which ruled this country from 15th January, 1966 to 30th September, 1979, not to question the efficacy of the laws which they promulgated. I am of the opinion that no court can in view of the provisions of Section 6 (6) (d) of the Constitution have any jurisdiction to declare that the appropriate authority that promulgated a Decree or Edict had no power to do so.”
This provision is intended to maintain the legal validity and effect of pre-1966 laws, unless it is inconsistent with the current Constitution. Though, the existing law is further protected by another provision, Section 315(1) of the Nigerian constitution. Under this section, existing laws can be regarded as a valid law if and only if it is compatible with the provisions of the Constitutionand the court has inherent powers to nullify or invalidate any provision of an existing law which is inconsistent with the provisions of the Constitution.This point was succinctly made by the Supreme Court in the case of Uwaifo v Attorney General of Bendel State supra, where Idigbe, JSC, stated thus: ‘It seems to me that while the Constitution empowers the court to inquire into validity of any existing law, it clearly intends that the court should not inquire into proceedings which seeks to determines issues or questions as to the competence of any authority or person … to make any existing law.’ A similar pronouncement was made in the case of Nangibo v. Okafor.
(E) Executive Immunity for Effective Running of Office
Officials protected by immunity are constitutionally immune, nobody can institute either civil or criminal actions against them and they cannot be arrested, summoned and imprisoned throughout the time they are politically elected into offices for the purpose of efficacy while in office. Although, these sets of people can institute actions against citizens who infringe on their rights and the defendant, whom action is being instituted upon have the right to counterclaim them notwithstanding their immunity.
The above has been provided for in section 308 of the 1999 constitution which reads;
“Notwithstanding anything to the contrary in this constitution, but subject to subsection 2 of this constitution-(1) No civil or criminal proceeding shall be instituted or continued against a person to whom this section applies during his period of office.
This section further lists the officials which this section applies. These set of people includes the President, Vice-President, Governor and the Deputy governor. The immunity conferred on the President or Vice-President, Governor or Deputy Governor is exclusive, although not absolute but for a particular period of time, therefore, whenever they cease to hold the political post, they can no longer be protected by immunity. One of the exceptions of immunity is election petition, in this case, election petitions challenging the elections that brought them into office could be instituted against them at relevant election tribunals. On the other hand, if there is a pending suit against them before they are elected into offices it shall be discontinued immediately when they are elected into political posts provided it is in their personal capacity.
In all of the ouster provisions contained in the Nigerian statute, no one has spawn as much controversy as the immunity clause. It has been described as a tool that inspires the executive recklessness and encourages official corruption in Nigeria because it was enacted by the military government with the sole aim of preventing intimidation or any form of harassment of federal and states executives.
(II) EXAMINATION OF OUSTER CLAUSES IN INDIAN CONTEXT: LESSONS FROM INDIA
The legal systems of Nigeria and India share some similarities due to their common historical background and influences. Both Nigeria and India inherited the common law legal system from their colonial rulers. Also, Both Nigeria and India have written constitutions that serve as the supreme law of the land. The constitutions outline the fundamental rights and freedoms of the citizens, the structure and powers of the government, and the framework for the legal system. For these reasons, India is used as a case study due to the similarities in their legal system. There are also different ouster clauses in the India Constitution, however, the Indian judiciary has generally adopted a strict approach towards ouster clauses. The Supreme Court of India has consistently held that ouster clauses are subject to judicial review, unless they are explicitly worded to exclude or limit such review. See the case of S.P. Sampath Kumar v. Union of India where the court has emphasized that ouster clauses cannot be interpreted expansively to oust or restrict the jurisdiction of courts, unless the legislative intent to do so in explicit terms.
In several cases, the Indian courts have struck down or read down provisions containing ouster clauses if they are found to be in violation of the basic structure of the Constitution or infringe upon fundamental rights. The courts have interpreted the constitutional provisions and statutes in a manner that upholds the principles of justice, fairness, and the rule of law. Part IV of 1950 Constitution of India titled ‘Directive Principles of State Policy’ which is in pari materia with ‘Fundamental Objectives and Directive Principles of State Policy’ of Chapter II of 1999 Constitution of Nigeria. Just as Nigeria’s Fundamental Objectives and Directive Principles of State Policy, are non-justiciable by section 6 (6) (c) of the Constitution, India’s Directive Principles of State Policy are rendered unenforceable by section 37 of the Indian Constitution which, among other things, provides that “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.“ The Indian Supreme Court has been exercising judicial activism in finding nexus and linkage in the Fundamental objectives with the fundamental rights. In the case of Olga Tellis v. Bombay Municipal Corporation & Ors. which is a landmark case in Indian constitutional law that deals with the right to livelihood and the right to shelter.
The case was then appealed to the Supreme Court of India. In 1985, a five-judge bench of the Supreme Court, headed by Justice P.N. Bhagwati, delivered its judgment in favor of the petitioners. The Supreme Court held that the right to livelihood was indeed a fundamental right under Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty.
The court recognized that the right to livelihood encompassed the right to live with basic human dignity, and the eviction campaign would deprive the pavement dwellers of their means of livelihood. The court also observed that homelessness and deprivation of shelter were antithetical to the right to life. Also, in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan the court showed that there is a connection between the Directive principle of State Policy and the Fundamental Rights.
Furthermore, it is evident that any legislation that ousts or purports to oust the jurisdiction of the court is null and void. However, there is another way of ousting the jurisdiction of the court which is through Constitutional amendment. Since the legislature cannot make constitution but they can amend it, they can amend the constitution in such a way that will rob the court off its competent jurisdiction. Conversely, in India, any Constitutional amendment that will oust the jurisdiction of the court will be nullified. The case of Minerva Mills v. Union of India is a landmark judgment of the Indian Supreme Court. The case involved the interpretation and application of certain provisions of the Indian Constitution, particularly Articles 31C, 14, and 19. In the Minerva Mills case (1980). The Supreme Court struck down certain amendments to the Constitution that sought to give primacy to Directive Principles of State Policy over Fundamental Rights which will oust the jurisdiction of the court. The court held that while Directive Principles are important, they cannot override or nullify fundamental rights, which are considered sacrosanct. The judgment is known for its defense of judicial review and the concept of basic structure doctrine, which limits the amending power of the Parliament.
By applying same in the Nigerian Judicial System, the hot provisions ousting the jurisdiction of the court will be iced.
The following are the possible recommendations that can be proffered after the meticulous examination and comparison of both legal system
- Expansion of Chapter II Provisions Beyond Myopic View
The Olga Tellis case was a significant judgment as it expanded the interpretation of the right to life under Article 21 of the Indian Constitution to include the right to livelihood and shelter. It highlighted the importance of balancing the interests of the state in maintaining public spaces with the fundamental rights of the individuals affected by evictions. Nigeria judiciary should also be given room to exercise the power of vested on them and apply any form of radicalism that will birth justice and uphold rule of law. The court should interpret and apply the law in a way that goes beyond the strict text or original intent of the law. By extending the provisions of Chapter II to provision of Chapter IV of the constitution, then the sharp teeth of the ouster clause will be cut.
- Modern Judicial Activism/Review
The modern court should depart from traditional judicial approaches where they follow only the strict written law without any external factor. Judges often make decisions based on their own personal beliefs, policy preferences, or social considerations, rather than strictly adhering to established legal principles. They may use their position to promote social change, advance certain causes, or address perceived injustices. It allows the judiciary to correct legislative or executive shortcomings and ensure justice and by then any law or Constitutional amendment that will oust the jurisdiction of the court will be struck down. Like in the case of Minerva Mills v. Union of India where the court through judicial activism rendered some amendments null and void. These amendments sought to give primacy to Directive Principles of State Policy over fundamental rights which will oust the jurisdiction of the court. These courage and Judicial activism and radicalism should be inculcated by the Nigerian judiciary.
- Interference of Court in Certain Political Questions
Political questions are deemed better suited for resolution by the political branches of government, such as the executive and legislative branches, rather than the judiciary. The rationale behind this principle is based on the separation of powers and the idea that different branches of government have distinct roles and responsibilities. However, it is important to note that not all political questions are categorically excluded from judicial review. The courts do intervene in certain instances when constitutional rights are at stake or when there are clear violations of the law. In such cases, the judiciary plays a crucial role in upholding the rule of law and protecting individual rights, even if it involves political considerations. Just like in the case of Inakoju v Adeleke.
In conclusion, while ouster clauses exist in the Nigerian constitution, their constitutionality depends on various factors and can be subject to judicial review. Lessons can be learned from the Indian experience, where the courts have played a significant role in preserving the power of judicial review and ensuring the protection of constitutional rights. Drawing lessons from India, it becomes evident that ouster clauses can undermine judicial independence and the rule of law. The recommendation show reforms that can strike a balance between the powers of the judiciary, legislature and the executive, ensuring that the Nigerian constitution upholds the principles of judicial review and the rule of law while providing for a functional governance framework. By learning from India’s journey, Nigeria can enhance its constitutional framework and strengthen its democracy.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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