The Tragedies, Comedies And Ironies Of Ouster Clause Provisions In Nigerian Constitutions.
By Gwungmijana Festus
INTRODUCTION:
An ouster clause as a legal concept does not have a definition that could render every other definition useless. In Abaribe V. Speaker Abia State House of Assembly and Anor, the court held that an ouster clause is a clause in the provision of a statute which outs the jurisdiction of the court and as such may be absolute or limited . It is a means by which the legislature oust the power of the court to adjudicate over a particular issue and also preclude the citizens from complaining or questioning the validity of it’s laws or acts
Ouster clause provisions in our constitutions often results to tragedies and humour , demonstrate inconsistencies and disagreement in any section, part or chapter containing it, Contradicts other parts of the constitution or defeat the purpose and utility of such law containing it, as we shall see in this work.
Ouster clause provisions in the military constitution – it’s tragedies, comedies and ironies
The military constitution is found in a special legislation called ” Decree” and ” Edict” at the federal and regional level respectively. According to the military, They always strike to take over power in order to salvage the nation from selfish and corrupt politicians and to right their wrong. No wonder when the military took over power, by virtue of S.3(I) of the Decree NO. 1 1966 (Constitution suspension and modification) Decree, it promised to make law for the peace, order and good governance of Nigeria. Another interesting thing was that the section of the constitution (1963) which provided for the judiciary was not suspended but was saved and preserved.
However, The above promise to make law for the peace, order, and governance; and to allow the continuous functioning of the Judiciary was made an irony in appearance and effect as a result of ouster clause provisions in S.6 of the Decree. It provided that no court of law shall have the power to entertain any question as to the validity of any Decree or Edict. If the judiciary which the regime purported to preserve was for-closed from entertaining question as to the validity of any Decree or Edict, what then could have been the function of the judiciary under that regime? Consequently, the Decree attempted to make the judiciary a toothless bulldog and a mere toy. What an irony! What a tragedy?
Again, the tragedies, ironies and comedies of ouster clause provisions under the military spotlighted in the celebrated but controversial case of E.O Lakanmi & Anor. V. The Attorney General (Western State). A brief fact of the case is set out here for clarity purpose. In that case, the asset of some public servants including the appellants was investigated by a Tribunal of _Inquiry pursuant to Edict No. 5 of 1967 (of the Western State). The Tribunal made an order prohibiting the appellants or their agents from dealing with their properties.
Also, The appellants were not to operate their bank accounts by means of withdrawal under the same condition. The appellants dissatisfied with this made an application to the Western State High Court for the purpose of having the order quashed. But the trial Judge dismissed the application holding that the order was not ultravires and could not be challenged due to ouster clause provisions. Thus the appellants appealed to the Western State Court of Appeal. While the appeal was pending, the federal military Government promulgated three successive Decrees (Decree No. 37, 43,45) to aid the Western State Government as it was apparent on the face of the grounds of appeal that the respondent (Western State Government ) is bound to run into some legal difficulty ; Section 14( 2)(b) and section 14(1) 2 (1) and 2(2) of Decrees. No. 37 and 45 respectively were the pith and meat of the matter. These sections validated the order of the tribunal which confiscated the properties of the appellants and excluded the application of the fundamental rights provisions.
At this point, the court would have been the appellants resort but the Decrees went further to oust the jurisdiction of the court . It also contain retroactive ouster clause by abating (suspending) all pending proceedings in respect of any matter contemplated by the Decree. The effect of this is that, the court has been ousted from entertaining the appellant’s case. Imagine the extent to which the
Military claimed they struck to save and deliver the citizens from the Political demagogue used ouster clause provisions to make the citizen face such a quagmire and untold hardship. What an irony and a tragedy! The military purported to allow the continuous functioning of the Judiciary but in the resent case and several other situations the military had used ouster clause provisions to snatch back the power from the judiciary,especially, when their intervention is badly needed. The ouster clause provision chunted out when the legal order changed in 1983 were eyesore. The Judiciary was disfunctionalised and rendered useless. It is not in over statement to say that Judiciary under the military can be likened to a father who saw his son fell into a lake and started drowning but was prevented by ouster clauses not to save his son. What a tragedy, comedy and irony!
OUSTER CLAUSE PROVISIONS IN THE CIVILIAN CONSTITUTION (1999) ITS TRAGEDIES, COMEDIES AND IRONIES
The 1999 Constitution was given by the military for a civilian democratic regime, thus a Civilian constitution. Despite that it is a civilian constitution made for a democratic regime, it has not been exculpated from its military features in that it is still clustered with ouster clauses.
It is humorous and ironical that the jurisdiction of the court is ousted by the 1999 civilian constitution on important issues such as:
Impeachment of President, Vice President, Governor and Deputy Governor Section 144(10),(88(10)
One may wonder what could have been the intention of the framers of the 1999 constitution to have ousted the court from entertaining a relevant issue as this, considering the fact that abuse of the process is inevitable. It is sad!
Matters Involving the President, Vice President, Governor and Deputy Governor Section 308
Under this section, the holders of the above offices are indirectly made to be above the law and the Judiciary. What a tragedy!
Criminal proceedings instituted by the attorney General or any other Person Section 174 (1)(c)
This provision appears not to be an ouster clause, but it is one of the most obnoxious ouster clause provisions in the 1999 constitution. In that it has placed the attorney General a mere government appointee above the Judiciary. Instituting criminal proceedings in Nigeria is always cumbersome and demanding. Under this provision, the same Attorney-General who is charged with instituting criminal proceedings for the state can unchallengeably oust the requisite jurisdiction of the court to entertain a particular matter. that is; the attorney-general both a builder and a destroyer, What an Irony! imagine if the proceedings is instituted by any other person, the attorney-general can just come like a deus ex-machiner (from no where) to terminate such proceedings, what a comedy.
Issue relating to fundamental Objectives and directive Principles of State Policy 6(6)(C)
Another Blood sucking ouster clause in the 1999 constitution is that contained in section 6(6)(c).
Section 6(6)(b) of the constitution empowers the judiciary to determine matter between persons, government or authority. Also section 13 empowers the three (3) arms of government i.e the judiciary inclusive to ensure the comformity with, observation and application of the provision of chapter 2 which is on fundamental objectives and directive principle of state policy, but ,Section 6(6)(c) take back the power given to judiciary in section 13 to ensure comformity, observation and application of the chapter. What an irony! This is like a gift of the devil, what a tragedy! Again, the word shall has been used many times in chapter two of the constitution and it connotes mandatory compliance according to various judicial authorities. But, the mandatoriness has been made optional as a result of the ouster provision, what an irony!
On top of that, chapter two of the 1999 constitution is the most beautiful chapter of the 1999 constitution. Nigeria would have been an heaven on earth and the government would have been more focus and accountable if it were justiciable. Unfortunately, the provision is humoristic and laughable as it makes ridicule of the rule of law, separation of power, reveal our legislative absurdities and even bereft the chapter of its usefulness or importance. What a tragedy, comedy and irony!
All things considered, it may not be wrong to say that the non justiciability of chapter 2 of the 1999 constitution is an imitation of Article 37 of the Indian constitution. The provision has been made justiciable by the court in india. Therefore, Nigerian court should also imitate same attitude toward all ouster clause provisions in the 1999 constitution
By: GWUNGMIJANA FESTUS
300 Level Student Ambrose Ali University
REFERENCES
D. O.AIKE, Selected Essays on constitutional Law, Umeh publishing Ltd, 1985.
C. E. OKEKE, the Legality of Ouster clauses, Lesson under the Nigeria Legal System. Journal of Comparatives and Legal Philosophy, volume 2 2020.
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