RECONSIDERING THE OUSTER CLAUSES; INAKOJU V. ADELEKE VIS-À-VIS THE NEED TO ESPOUSE THE SUPREMACY OF THE CONSTITUTION.

 

article by: Mr Possible
As one who has been schooled in the nuances of constitutional law under the watchful eyes of notable Scholars of Law in the prestigious Faculty of Law, I seek to examine the ouster clauses contained in the constitution in respect of the Judiciary and Legislative proceedings in matters relating to removal of Executive heads.

Ouster clauses exist to preclude the jurisdiction of the courts. It primarily circumscribes the powers of a body to act in specified matters. Ouster clauses are usually regarded as antithetic to democracy and the judicial system. In Nigeria,When ouster clauses are perceived in statutes, the courts usually invoke section 6 of the constitution 1999 to police their constitutionality to entertain the suits. However, to my mind, section 6 of the constitution cannot be invoked to obviate a clause provided for in the same constitution, which expressly ousts the jurisdiction of the court. This standpoint i shall buttress below.

It is no longer news that the Nigerian Constitution 1999 like its predecessor, the1979 constitution, contains provisions which literally ousts the jurisdiction of the courts of Nigeria from interfering with or intervening in matters relating to the removal of Executive heads by members of the Legislative arm. It is of catholic application in the Nigerian Jurisprudence.The constitution thus, precludes the courts from entertaining suits relating to removal proceedings of the President or the Vice President conducted by the National Assembly under section 143(10). The provisions in the afore-said section are Mutatis Mutandis with those aptly etched in Section 188(10) which similarly obviates the courts from entertaining suits relating to removal of Governors and Deputy Governors.

Rather interestingly, there hasn’t been legal whimpers in the federal level to this effect up to this point. The controversy that has pervaded the legal spectrum has always emanated from the shenanigans of State Houses Of Assembly acting Mala fide in the exercise of their Legislative function of removing Executive heads always supposedly alleged to be guilty of Gross Misconduct. The plethora of removal proceedings in respect of Governors is not only frightening but also capable of affecting the stability of the Nation. It is almost like a child’s play as some legislatures indulge in it with all ease and comfort like an English Man will sip coffee on his breakfast table.
It is now necessary to consider these battles as it relates to the topic above..

Section 188(1-9) has abundantly evinced, the procedures to be followed by a state house of Assembly in the course of conducting the Removal Process of a Governor or his Deputy. Rather sadly until now, section 188(10) ousts the jurisdiction of any court in entertaining suits in that regard. It provides thus:

“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”(emphasis mine).

What this section contemplates literally is that any suit at all, as much as it relates to removal proceedings conducted by the Legislature, should not be ENTERTAINED or QUESTIONED by any judicial body whatsoever. ‘Entertained’ as used in the section logically envisages that the suit should not even be received for hearing by any court. A court should not sit to deliberate on the issue as it lacks the jurisdiction.

However, the courts recently have taken propitious steps to clear the air as to the controversy that the section has posed. The legislature over the years have cashed in on the above section to perpetrate inordinate actions against the Executive arm. Being in the know that the courts cannot intervene in such proceedings, the legislature have sometimes hidden under the facade of the “gross misconduct” clause to arbitrarily remove Executive heads. This malicious action came to the fore in the well known case of ALHAJI MUSA BALARABE V. KADUNA STATE HOUSE OF ASSEMBLY.
In that case, the house of Assembly, Kaduna in 1981 conducted impeachment proceedings on the Governor, Balarabe Musa which was glaringly arbitrary. Animosity thrived in the house of assembly and quite unfortunately, the Governor’s party was not the dominating party in the house. Then aggrieved Governor, in a bid to have himself restored back to his position as Governor, ran to the court. However, he could not but look blue as the court declined jurisdiction, relying on the ouster clause in Section 170(10) of the 1979 constitution (the provisions are similar to section 188(10) of the 1999 constitution). The court struck out the suit on the ground that it jurisdiction has been ousted by the constitution.

The question that readily comes to a sane mind is:
Should the Legislature continue to cash in on the ouster clause thus frustrating the very intendment of the Law framers while the judiciary continue to decline jurisdiction?
This question lingered protractedly until the eureka moment where the court of Appeal and the Supreme court decided to restore abundant sanity to legislative bodies on account of their indecorous actions.  In the celebrated case of  INAKOJU V. ADELEKE (2007) 4 NWLR (pt 1025) 423, the court answered the above question in the negative. In that case, 18 members out of 24 members of the Oyo state House of Assembly converged in a hotel in Ibadan to remove the Governor, Rashidi Ladoja. The 18 unscrupulous law makers commenced impeachment proceedings in the hotel and stood to declare the ‘official’ removal of the Governor from office. Ultimately, the supreme court decided to entertain the suit and it was held that sub section (10) cannot be read in isolation. The whole section must be read together. Legislators could not rely on the ouster clause in subsection 10 of section 188 when the procedures set out in the preceding sub section 1-9 of 188 were not religiously followed. The legislators breached subsection 1-9 and thus, section 188(10) could not be invoked. This was a ground breaking decision by the supreme court. It was even later discovered that the ignominious action of the 18 members were orchestrated by a certain Oyo chief head who played the ventriloquist, turning the 18 legislators to puppets, with a view to settling political scores. Such an aberrant action was curbed by the supreme court.

Not surprisingly, in the later case of DAPIALONG V. DARIYE (2007) 8 NWLR (pt. 1036) 332,   the jurisdiction of the court was not challenged at all even when it equally involved the indecorous escapades of flouters of the law,tagged with the appellation, “legislators”. Silence as to the jurisdiction of the court impliedly meant that the preceding case sent a judicial message to other aberrant flouters of the law who sought refuge under the ouster clause. The court went ahead to declare the removal of Joshua Dariye as Governor of Plateau state as unconstitutional and illegal. However, the court made no bones in resonating that the courts had and have jurisdiction in such matters. According to Onnoghen JSC ”
… It is true that section 188(10) of the 1999 constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or a Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirements in section 188 needed for the impeachment as the courts have jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not”.

LEGAL OPINIONS ADDUCED TOWARDS THE ABOVE DECISION(S).

Personally, i do not have a problem with the decisions of the supreme court in the above cases. It is of interest to every sane member of the legal community and the society at large that justice is done. The Legislature, had they been left to frolic about by indecorously removing Executive heads, would have made a mockery of the intendment of the law makers and even reduce the efficacy of the judiciary to a pawn. Clearly, they were in the business of imbuing the legal terra firma with what i cannot but refer to “legislative dementia”.

However, where there seem to be some peradventures or punctures in the decisions above is that it leaves us with the question :
How do we reconcile judicial interference with the unambiguous provisions of section 188(10) of the constitution 1999? That section states that the courts should not entertain the suit entirely nor think of deliberating on it. It therefore means that in entertaining the dispute in INAKOJU V. ADELEKE (supra), the courts undermined the phrase “Entertain or questioned” as used in the above sub section. The court’s ground breaking decision in the above case poses two points:

1. If the legislative body in question conduct the removal in a manner consistent with the procedures laid down, the courts will decline jurisdiction.
2. When the procedures are otherwise laughably flouted, the courts will intervene to declare it unconstitutional.

These two propositions leaves me with a question: How should the court know if the procedures were religiously followed or not? Any man who is in full and quiet possession of his reasoning faculties will say that the court can only know that after ENTERTAINING AND DETERMINING the suit. In that manner then, have they not become Adams and Eves of the unambiguous provisions of Section 188(10) of the Almighty Constitution? The answer is in the affirmative.
In the celebrated INAKOJU’S CASE, Katsina Alu JSC at page 661 stated that
“sub section 1-9 of section 188 states clearly what must be done before a Governor may be removed from office. It is only when these conditions are religiously fulfilled,will a Governor be said to have been removed from office. When the Governor has been constitutionally removed, then and only will sub section 10 come to play. That section ousts the jurisdiction of the court to question such valid removal from office.” (Emphasis Mine).

The last paragraph in the above dictum leaves me with a question to ponder upon, which is : Does the court preempt that the legislature followed due process even before it comes to the court for determination? How does  the court fathom the constitutionality or otherwise of the removal proceedings? Of course they cannot. If that is a new line of learning then it appears to me that i am certainly not prepared to learn; not because i loathe to learn or that i am unwilling to learn but because there is utterly nothing to learn. A court can only be sure that the removal was valid when it has ascertained the facts of the dispute and then interpreted the law to that effect. If we are to go by what the Learned Justice had said, then it means that the court foresaw and foreknew the unconstitutionality of the removal of Governor Rashidi Ladoja of Oyo state and that was why it assumed jurisdiction. In the light of my limited knowledge i humbly think the Justice had erred in the above statement. In the earlier case of ABARIBE V. SPEAKER OF ABIA STATE HOUSE OF ASSEMBLY (2002) 14 NWLR (Pt 788) 466, the respondents commenced removal proceedings on the Appellant who was the then Deputy Governor. The high court raised the issue of jurisdiction and on further appeal to the Court of Appeal, Pats Acholonu JCA (as he then was) upheld the decision in Balarabe’s case, struck out the suit and stated that,
” The worrying aspect of this all embracing provision seems to imply that the court may not even look into the issue as to whether the duly laid down procedures were followed”
What the Learned justice said was the truest interpretation of section 188(10). However, it may not have been the intendment of the law makers as they never intended to give legislators “scorpions and whips” to chastise Executive heads with. The court of Appeal may not have done justice but they followed the obvious interpretation of the Law. It therefore boils down to a single point which i unequivocally point out that the supreme court conveniently violated the constitution to do justice to our legislators. Obviously that it what it seems to me as what has happened.

Other scholars of Law have all commented on this argument and have all adduced that the judiciary cannot necessarily be said to have violated the constitution since they are the custodians of  the constitution thus, the interpretation they give to a section of the constitution is what it is. Well,i can say that custodians of the constitution are not the owners. The constitution cannot be fine-tuned at their behest. A custodian guards, he doesn’t alter. As custodians the courts cannot go against the supremacy of the Constitution. Their position  is a respectable  and scholarly argument but i am tempted to ask again: Is the Constitution no longer supreme? I would say Yes. The constitution declares its supremacy under section 1(1) of the constitution by pontificating that its provisions shall have binding authority on all persons and authorities throughout the federal republic of Nigeria. Rather interestingly, and ironically, Niki Tobi JSC who was among the justices of the supreme court that entertained INAKOJU V. ADELEKE (Supra) had stated officiously in A.G ABIA V. A.G FEDERATION (2006) 16 NWLR (pt. 1005) 265) at 381 that
” the constitution of Nigeria is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek Language, it is the alpha and Omega. It is the barometer with which all statutes are measured. In line with the kingly position of the constitution, all three arms of the government are slaves of the constitution; not in the sense of undergoing servitude but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the constitution over and above all statutes, be it an Act of the National Assembly or a law of the House of Assembly of a state. Therefore, they must dance to the music and chorus of the constitution whether the melody or rhythm is good and bad”. (Emphasis mine)
That the three arms of government are slaves under  the constitution simply tells us that none of them has the power to impetuously defy its clear and unambiguous provision.  If the constitution provides clearly that such legislative proceedings should not even be entertained or questioned, then what further interpretation could be given to such a glaring provision? The section by ousting the jurisdiction of the courts have also precluded them from interpreting that very section after all, such an interpretation can only be given when the suit has been entertained and determined and as such a violation has occurred. Thus, a court has to have jurisdiction before interpretation can take place. Sadly, the courts have been precluded from the means;how then did they get the end? I am forced now to wonder.

Another scholar of Law, Barr. M.T Adenilekun, in his article titled “An Appraisal of the supreme court decision in INAKOJU V.ADELEKE and its impart on political stability in Nigeria” has argued that in the 1979 constitution, section 170(5) which is similar with section 188(5), gives the speaker the sole right to appoint a panel or a committee to investigate the allegations made against the Governor or Deputy but the extant 1999 constitution under section 188(5) gave the chief judge of the state the power, upon request of the Speaker, to set up the panel for investigation. He argued further that by so doing, the intendment of the Law makers of the extant constitution is to grant the judiciary at least quasi judicial powers in respect of Executive removal and whence the power to entertain the Inakoju’s case. Well, it is ravishingly invigorating to be enlightened up to this point. For my money, if the constitution decides to give you an inch, is that any reason why you should decide to take a yard? The power to appoint a panel by the chief judge of the state is simply to ensure “check and balance” at least to a appreciable degree. However, the ouster clause is saying that when the chips are down, it no longer becomes a judicial Business. For me, that is not a valid argument.

It is robustly evident that the judiciary in Nigeria is the arbiter of the law. Their primary function is to interpret the law. However, considering the miasma that has bedeviled the country, the duty of the judiciary can be deemed to have transcended just the interpretation of laws; it now even involves safeguarding the nation from political shambles. As i have stated earlier, the decision given in the celebrated INAKOJU’S case was a relief to the nation. But for that decision, only God knows what would have become of our Executive Heads who unfortunately find themselves under the aegis of corrupt men with obscene hearts garnished with chronic wickedness as “legislators”.
However, Admittedly, the euphoria created by the decision stills begs the question : where did the courts assume jurisdiction from, to entertain the suit in the first place? A court is said to be competent to determine an issue before it when it has jurisdiction to do so. The judiciary have been innocently led to putting square pegs in round holes. They have done the right thing by circumventing due process.
I utterly acquiesce to the fact that the supreme court reflected the true intendment of the law framers, framers of the entire section 188 but still, it is still begging the question, : should the judiciary continue to do justice by first violating the phrase “…shall not be ENTERTAINED or QUESTIONED in any court?” This will not augur well for our jurisprudence. Such an action by the court carries death wounds on its face.

The lasting solution can only emanate from an amendment of the ouster clauses to give the courts jurisdiction to entertain such suits. You may want to even wonder why the Judiciary will be circumscribed from a very dicey legislative activity and in turn, being left in a precarious position as to whether to do justice by violating the constitution, vice-versa.

The need to respect the constitution remains sacrosanct, so as the need to do justice. Personally, when push comes to shove, i would rather they did justice so that legislators who are in the habit of disturbing executive heads unnecessarily will not have their cake and eat it BUT the constitution must be respected if decorum will exist in the country.
Consequently, motions should be moved to occasion an amendment and fully involve the judiciary in matters relating to removal of executive heads. This will ensure that the judiciary will have a right to entertain and determine such matters with a fine tooth comb.

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